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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS 27, 2007 July FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 05-30530 Summary Calendar UNITED STATES OF AMERICA Plaintiff–Appellee v. MARVIN K SULLIVAN Defendant–Appellant Appeal from the United States District Court for the Western District of Louisiana USDC No. 6:04-CV-1087 USDC No. 6:01-CR-60049 Before KING, STEWART, and OWEN, Circuit Judges. PER CURIAM:* Marvin K. Sullivan, federal prisoner # 11003-035, appeals the denial of his 28 U.S.C. § 2255 motion in which he challenged his conviction and sentence for making and subscribing a false tax return. Sullivan argues that Booker should be applied to his case retroactively and that it would be a miscarriage of justice not to apply Booker. Booker does not * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  No. 05-30530 apply retroactively to cases on initial collateral review. United States v. Gentry, 432 F.3d 600, 604 (5th Cir. 2005). Further, Booker is not a ground for filing a successive § 2255 motion. In re Elwood, 408 F.3d 211, 213 (5th Cir. 2005). Sullivan’s argument that his conviction is not final is without merit. His conviction became final after the expiration of the direct appellate process. See Gentry, 432 F.3d at 604 n.2. Sullivan also contends that he was denied the opportunity to call an Assistant United States Attorney as a witness in connection with his argument that the Government breached the plea agreement by failing to file a motion under U.S.S.G. § 5K1.1. Sullivan failed to challenge the plea agreement on direct appeal and was thus precluded from raising the claim in a § 2255 motion. See United States v. Lopez, 248 F.3d 427, 433 (5th Cir. 2001). The Government invoked the procedural bar in the district court. See United States v. Drobny, 955 F.2d 990, 995 (5th Cir. 1992). Therefore, the district court did not err in denying Sullivan’s request to present testimony on this issue. Sullivan argues again before this court that the BOP changes regarding placement of prisoners in community confinement centers violates due process and the Ex Post Facto Clause. Because Sullivan previously raised this issue on direct appeal, it should not be considered in a § 2255 motion. See United States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986). The district court did not err in denying this claim. To the extent that Sullivan attacks the applicability of the BOP policies to him, the argument is unavailing because it is not properly raised in a § 2255 motion. See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). Accordingly, the judgment of the district court is AFFIRMED. 2 

746 F.2d 1480 U.S.v.Newton (Carla) a/k/a Dennis (Carla), Dennis (John M.) NOS. 84-5239, 84-5240 United States Court of Appeals,sixth Circuit. OCT 18, 1984 1 Appeal From: E.D.Ky. 2 AFFIRMED.

199 Cal.App.3d 645 (1988) 245 Cal. Rptr. 126 GLENDON DANIELSON et al., Plaintiffs and Appellants, v. ITT INDUSTRIAL CREDIT COMPANY et al., Defendants and Respondents. Docket Nos. E003310, E003792. Court of Appeals of California, Fourth District, Division Two. March 14, 1988. *648 COUNSEL Stewart & Harris and William S. Harris for Plaintiffs and Appellants. Berman & Clark, Mark Wood, Paula A. Daniels, Caprice L. Collins, Shostak & Epstein and Lawrence Shostak for Defendants and Respondents. OPINION HEWS, J. This is a consolidated appeal from judgment entered after the trial court granted defendants' motions to dismiss plaintiffs' complaint pursuant to sections 583.410 and 583.420, subdivision (a)(1)[1] for failure to serve summons and complaint within two years in favor of defendants ITT Industrial Credit Company (ITT), Inland Kenworth, Inc. (Inland), and R & R Distributing Company (Distributing Co.), R & R Truck Brokerage (Truck Brokerage) and Roger Schwingler (Schwingler) and against plaintiffs Glendon and Maxine Danielson (the Danielsons). The issue on appeal is: Did the trial court abuse its discretion in granting defendants' motions to dismiss for failure to serve within two years pursuant to sections 583.410 and 583.420 when it (1) failed to exclude the time during which the action was stayed because it was an asset of the Danielsons' bankruptcy estate? (2) failed to exclude the time during which service was impossible, impracticable or futile because the Danielsons lacked standing to prosecute their lawsuit? *649 FACTS The following factual circumstances are alleged: Between February and June of 1979, the Danielsons negotiated with Joe Morse (Morse), a salesman for Inland, for the purchase of a Kenworth tractor and Utility dry van trailer (tractor-trailer). In mid-June Morse informed the Danielsons they could not qualify for a loan to purchase the tractor-trailer. However, the Danielsons, Morse, Inland, ITT (the credit company) and Matlock and Matlock Transportation (the trucking company for which Glendon Danielson had been driving) orally agreed that the Danielsons would lease the tractor-trailer from ITT and that Matlock Transportation would be the nominal lessee for the first six months of the lease, at which time the Danielsons would be substituted and named as lessees on the master lease in place of Matlock Transportation. According to the agreement, Inland provided the tractor-trailer; the Danielsons agreed to pay all lease payments and other expenses; ITT had the right to claim investment tax credit; and Matlock and Matlock Transportation had the right to claim depreciation on the tractor-trailer. Equity in the tractor-trailer would belong to the Danielsons. Subsequently, ITT, Inland, Matlock and Matlock Transportation entered into the master lease, with Matlock Transportation as the lessee of the tractor-trailer. Pursuant to a separate permanent lease agreement entered into in July 1979 by the Danielsons and Matlock and Matlock Transportation, Glendon Danielson drove the tractor-trailer primarily for Matlock Transportation. After six months had elapsed, ITT refused to substitute the Danielsons for Matlock Transportation on the lease. Matlock Transportation and the Danielsons signed an agreement dated November 26, 1980, whereby Matlock Transportation, as lessee, transferred and the Danielsons assumed all rights and obligations under the master lease. Matlock also agreed to be guarantor on the contract. ITT did not sign a consent to the assignment. However, in May 1981, almost two years after the original master lease was signed, ITT transferred title from Matlock Transportation to the Danielsons. Four months later, ITT transferred title from the Danielsons back to Matlock Transportation. Subsequently, ITT's credit manager told the Danielsons that title to the tractor-trailer was never transferred to them and never would be and that ITT was unaware of any oral agreement to change title on the tractor-trailer from Matlock Transportation to the Danielsons six months into the lease. In June 1981, Distributing Co., Truck Brokerage, and Schwingler assisted Inland and others in repossessing the tractor-trailer and other equipment from the Danielsons. *650 PROCEDURAL HISTORY The Danielsons filed a Chapter 7 petition in the United States Bankruptcy Court in San Bernardino in June 1982. In the bankruptcy schedule under "contingent and unliquidated claims" the Danielsons listed potential litigation claims against ITT, Inland, Matlock, Matlock Construction, Distributing Co., Truck Brokerage, and Schwingler for breach of contract, fraud, conversion, interference with business and constructive trust. The bankruptcy court discharged the Danielsons' debts in November 1982, but the bankruptcy trustee did not close the case or pursue the Danielsons' state court litigation claims. The Danielsons filed this state court lawsuit as plaintiffs in propria persona on December 1, 1982. The trustee did not intervene in or prosecute the action. In the fall of 1984, the Danielsons engaged an attorney to represent them in the state court litigation. The Danielsons filed a substitution of attorney and a first amended complaint in November 1985 and served all defendants with summons and complaint in late November 1985, days before the running of the three-year statute for service of summons. ITT brought its motion to dismiss the Danielsons' complaint pursuant to sections 583.410 and 583.420, subdivision (a)(1) for failure to serve within two years. In March 1986 the trial court granted ITT's motion and entered judgment in favor of ITT and against the Danielsons. The trial court denied the Danielsons' subsequent motion to vacate judgment on May 5, 1986, and the Danielsons appealed from the judgment in case number E003310. A month later, in June 1986, Inland brought its motion to dismiss the Danielsons' complaint for failure to serve within two years, which the trial court granted. Later the Danielsons filed an amended notice of appeal in case number E003310, amending to add the appeal from the trial court's granting of Inland's motion to dismiss.[2] In September 1986 the Danielsons brought a motion in bankruptcy court for an order that the trustee had abandoned the Danielsons' state court claims. The bankruptcy court denied the motion, finding that the trustee had not abandoned the lawsuit "Danielson v. Matlock" (this case) pending in San Bernardino County Superior Court and that this lawsuit remained the property of the debtor's bankruptcy estate. In October 1986, in this state court action, Distributing Co., Truck Brokerage and Schwingler brought *651 their motion to dismiss the Danielsons' complaint for failure to serve summons in two years, which the trial court also granted. The Danielsons appealed in case number E003792. The appeal in case number E003792 has been consolidated with the appeals in case number E003310. Additional facts concerning specific issues are set out in the discussion below. DISCUSSION I Stay (1a) The Danielsons contend that the trial court abused its discretion in granting defendants' motions to dismiss for failure to prosecute pursuant to section 583.410 and for failure to serve summons within two years pursuant to section 583.420, when it failed to exclude the time during which the action was stayed because it was an asset of their bankruptcy estate. (2a) Dismissals for failure to serve summons within two years are governed by sections 583.410 and 583.420, which provide that "[t]he court may in its discretion dismiss an action for delay in prosecution ..." (§ 583.410) where "[s]ervice is not made within two years after the action is commenced against the defendant." (§ 583.420, subd. (a)(1).) When ruling on two-year discretionary dismissals for failure to serve summons, the court must consider the statutory excuses that apply to computation of time for mandatory dismissals for failure to serve summons in three years (§§ 583.420, subd. (b), 583.240) and the same factors it considers when deciding a motion for delay in bringing a case to trial. (§§ 583.420, subd. (b), 583.310; Cal. Rules of Court, rule 373(e).) Section 583.240, subdivision (b) provides that when computing time within which service is to be made, the court shall exclude the time during which "the prosecution of the action or proceedings in the action was stayed and the stay affected service." (3) As a general rule, a judgment or order of the lower court is presumed correct (Harris v. City of Compton (1985) 172 Cal. App.3d 1, 9 [217 Cal. Rptr. 884]) and "`"[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent...."'" (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 563 [194 Cal. Rptr. 773, 669 P.2d 9], citing Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [86 Cal. Rptr. 65, 468 P.2d 193].) (4) The motion to dismiss for failure to serve summons within two years is addressed to the trial court's sound legal *652 discretion (§ 583.410; Cal. Law Revision Com. com., Deerings Ann. Code Civ. Proc., § 583.420 (1988 pocket supp.) p. 102; see Luti v. Graco, Inc. (1985) 170 Cal. App.3d 228 [215 Cal. Rptr. 902]; Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 346 [228 Cal. Rptr. 504, 721 P.2d 590]) and the burden is on the appellant to establish an abuse of discretion. (Denham v. Superior Court, supra, 2 Cal.3d at p. 566.) "`"[E]rror must be affirmatively shown."'" (Wilson v. Sunshine Meat & Liquor Co., supra, 34 Cal.3d at p. 563, citing Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) "`[U]nless a clear case of abuse is shown ... a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.'" (Denham v. Superior Court, supra, 2 Cal.3d at p. 566, citing Loomis v. Loomis (1960) 181 Cal. App.2d 345, 348-349 [5 Cal. Rptr. 550]; see Blank v. Kirwan (1985) 39 Cal.3d 311, 331 [216 Cal. Rptr. 718, 703 P.2d 58].) "`[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.]'" (Barajas v. USA Petroleum Corp. (1986) 184 Cal. App.3d 974, 987-988 [229 Cal. Rptr. 513], citing People v. Giminez (1975) 14 Cal.3d 68, 72 [120 Cal. Rptr. 577, 534 P.2d 65].) (1b) The Danielsons argue that because an action could only be brought by the real party in interest (§ 367), their prosecution of this action was stayed during the time it was an asset of their bankruptcy estate. The Danielsons have not cited, nor has our research revealed, any statute or case which supports their argument. The Bankruptcy Act provides that the commencement or continuation of any legal proceeding against the debtor is automatically stayed by the filing of a petition in bankruptcy, until adjudication or dismissal of the petition. (11 U.S.C. § 362.) However, with one exception found in 11 United States Code section 108 and inapplicable here, nothing in the Bankruptcy Act tolls a debtor's cause of action. Title 11 United States Code section 108 of the Bankruptcy Act operates to toll the statute of limitations for filing an action by the trustee when the debtor files a petition in bankruptcy.[3] On its face *653 this section 108 (a) is unambiguous. It only tolls statutes of limitations for commencing actions and is not applicable to toll the time within which plaintiff has to serve summons under the discretionary dismissal statutes. Title 11 United States Code section 108 (b) and (c) are equally inapplicable; they apply exclusively to individuals protected under chapter 13, section 1301 of the Bankruptcy Act.[4] The Danielsons cite Wood v. Lowe (1974) 39 Cal. App.3d 296 [114 Cal. Rptr. 69], in support of their argument that their prosecution of the action was stayed from December 1982 through November 1985 because the trustee had not abandoned their cause of action. Their reliance on Wood is misplaced. Wood did not discuss the issue of whether section 583.420 was stayed during the time the action was an asset of the bankruptcy estate. Rather, the court in Wood stated that "all causes of action possessed by a bankrupt vest in the trustee and that, absent an `abandonment,' only he can prosecute them." (Id. at p. 299.)[5] Additionally, under the Bankruptcy Act the trustee is not stayed from prosecuting actions. He "may intervene in the action or may move to be substituted as party plaintiff." (Wood v. Lowe, supra, 39 Cal. App.3d at p. 301.) The Danielsons also were not in any way prevented by a stay from petitioning the bankruptcy court for relief in the form of authorization to maintain the suit (People v. Kings Point Corp. (1986) 188 Cal. App.3d. 544, 549 [233 Cal. Rptr. 227]), an order permitting the trustee to prosecute the case in the plaintiff's name (Wood v. Lowe, supra, 39 Cal. App.3d at p. 301) or a formal order of abandonment. (11 U.S.C. § 554; 11 U.S.C. Bankr. Rules, rule 6007(b).) In this action, ITT brought its motion to dismiss in March 1986. Inland brought its motion to dismiss in June 1986. Prior to opposing these motions, the Danielsons had not sought any form of relief from the bankruptcy court which would have given them standing to prosecute this action. Neither had the bankruptcy case been closed nor had the trustee sought a formal order of abandonment, either of which would have given the Danielsons standing to prosecute. However, the Danielsons did prosecute the action from 1982 through June 1986 when it was an asset of the bankruptcy estate by (1) filing the complaint in December 1982, (2) filing an amended complaint and a substitution of attorney in November 1985, (3) serving defendants in November 1985, (4) filing opposition papers to demurrers, motions to strike, and motions to dismiss in 1986, and (5) filing these appeals. *654 In their opposition to these motions and now on appeal, the Danielsons argue that they were "stayed" from prosecuting the action from the time they filed the complaint until they served the defendants in late 1985. Their argument is unpersuasive. The Danielsons were not at any time under a stay order prohibiting them from prosecuting this state court action. From December 1982 through June 1986 they did not seek affirmative relief from the bankruptcy court, which would have permitted them to prosecute this action. However, apparently notwithstanding the above, the Danielsons did prosecute the action whenever it was in their interests to do so. The Danielsons next argue that the bankruptcy court's denial of their September 1986 petition for an order that the trustee had abandoned the Danielsons' state court claims and its finding that the trustee had not abandoned this state court action affirms that the Danielsons were stayed from prosecuting this action from December 1982 to December 1985. We disagree. As stated above, prior to September 1986, the Danielsons were not under a stay order which prevented them from prosecuting the state action. In addition, the bankruptcy court's order of September 1986 was not a stay order which of itself prohibited the Danielsons from prosecuting this action. Nor did the Danielsons understand it to be a stay order. Subsequent to the bankruptcy court's order denying the order of abandonment, Distributing Co., Truck Brokerage and Schwingler filed a motion to dismiss the Danielsons' complaint for failure to serve summons in two years. Notwithstanding the bankruptcy court's order denying their motion for abandonment, the Danielsons, not the trustee, opposed this motion, and they also filed a notice of appeal from the judgment entered after the granting of this motion to dismiss. We find absurd the Danielsons' argument that the bankruptcy court's order denying that the trustee had abandoned their state action somehow retroactively denied them the ability to prosecute the action between December 1982 and October 1985, but permitted them standing to file the lawsuit and to prosecute it beginning in November 1985 when they served the defendants. The prosecution of this action was not stayed. Therefore, we conclude the trial court did not abuse its discretion in failing to exclude any time pursuant to section 583.240, subdivision (b), when it granted defendants' motions to dismiss. *655 II Impossibility (5a) The Danielsons next contend the trial court abused its discretion in granting defendants' motions to dismiss for failure to serve summons in two years when it failed to exclude the time during which service was "impossible, impracticable, or futile" because they lacked standing to prosecute their lawsuit, which was an asset of their bankruptcy estate. (6a) As stated above, when considering motions to dismiss for failure to serve summons within two years brought pursuant to sections 583.410 and 583.420, subdivision (a)(1), the court must consider the statutory excuses that apply to computation of time for motions to dismiss for failure to serve summons in three years. (§ 583.420, subd. (b).) Pursuant to section 583.240, subdivision (d), when computing time within which service is to be made, the court shall exclude the time during which "[s]ervice, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's control." The question is one of whether service of process is rendered "impossible, impracticable or futile" under the circumstances and the statute must be strictly construed. (See Valerio v. Boise Cascade Corp. (1986) 177 Cal. App.3d 1212, 1220 [223 Cal. Rptr. 592]; Cal. Law Revision Com. com., Deerings Ann. Code Civ. Proc., § 583.240 (1988 pocket supp.) pp. 97-98.) A. The ITT and Inland Motions to Dismiss (5b) The Danielsons argue that the trial court should not have counted the two years, eleven months (or, at a minimum, eleven months) during which it was impossible for them to serve defendants ITT and Inland because the Danielsons' claim was an asset of the bankruptcy estate and they did not have standing to prosecute it. "Every action must be prosecuted in the name of the real party in interest...." (§ 367.) (7) "11 U.S.C. § 541(a)(1) (1982) defines property of the bankruptcy estate to include `all legal or equitable interests of the debtor in property as of the commencement of the case.' The scope of section 541 is broad, and includes causes of action. [Citations.]" (Sierra Switchboard Co. v. Westinghouse Elec. Corp. (9th Cir.1986) 789 F.2d 705, 707.) The trustee and not the bankrupt has the legal capacity to sue on a cause of action which has vested in the trustee. "`After adjudication of bankruptcy and the appointment and qualification of a trustee, the bankrupt is without right to institute or prosecute an action, cross-action, or proceeding except on a *656 cause of action not passing to a trustee.' [Citations.]" (Heffron v. Rosenberg (1942) 51 Cal. App.2d 156, 159 [124 P.2d 74]; see Wood v. Lowe, supra, 39 Cal. App.3d at p. 299; Estate of Aldrich (1950) 35 Cal.2d 20, 23 [215 P.2d 724, 19 A.L.R.2d 885].) If, however, the trustee, in exercising his right of election to accept or administer property burdensome to the estate, abandons his claim, "the bankrupt may sue on the claim in his own name." (8 C.J.S. (1962) Bankr., § 194, p. 987; see Sierra Switchboard Co. v. Westinghouse Elec. Corp., supra, 789 F.2d at p. 709.) (5c) The Danielsons cite Wood v. Lowe, supra, 39 Cal. App.3d 296, in support of their argument that "all causes of action possessed by a bankrupt vest in the trustee and that, absent an `abandonment,' only he can prosecute them." (Id., at p. 299.) The Danielsons argue that because they were precluded from prosecuting the action, at least until abandonment or intervention by the trustee, neither of which occurred, they lacked standing to serve summons due to circumstances beyond their control. In response, the defendants argue that once the Danielsons filed the lawsuit, it was incumbent upon the Danielsons to petition the bankruptcy court to compel the trustee to maintain the action or authorize them to prosecute it, and thus service was within the Danielsons' control. (People v. Kings Point Corp., supra, 188 Cal. App.3d at pp. 549-550.) We agree. When the Danielsons filed their bankruptcy petition, they listed the potential claims against defendants as an asset of their estate. At that time, their causes of action against defendants vested in the trustee. The trustee did not pursue the Danielsons' state court claims by either intervening or moving to be substituted in as party plaintiff. He also did not close the bankruptcy estate, by which action the claim would have been deemed abandoned (11 U.S.C. § 554(c)); nor did the trustee seek a formal order of abandonment (11 U.S.C. Bankr. Rules, rule 6007(a).) The situation, however, was not totally out of the Danielsons' control. The Danielsons could have sought relief from the bankruptcy court, such as (1) an order permitting the trustee to prosecute this lawsuit in the plaintiff's name (Wood v. Lowe, supra, 39 Cal. App.3d at p. 299), (2) an order compelling the trustee to maintain the action (People v. King's Point, supra, 188 Cal. App.3d at p. 549), (3) an order authorizing the Danielsons to prosecute the action on their own behalf, or (4) a formal order of abandonment. (11 U.S.C. § 554 (b); 11 U.S.C. Bankr. Rules, rule 6007(b).) The Danielsons did not seek any of the above relief prior to serving defendants. They filed the lawsuit in December 1982, at which time it was an asset of their bankruptcy estate. Then they waited almost three years without taking any action. Subsequently, without authorization from the *657 bankruptcy court, they began prosecution of this lawsuit by filing a substitution of attorney and a first amended complaint, and they also served summons and complaint on all defendants. To explain their fortuitously gained standing to prosecute on the eve of the running of the three-year statute for service of summons, the Danielsons argued in their opposition to ITT's and Inland's motions to dismiss that the trustee by his inaction had abandoned their state court claims. However, "[s]ince 1973 it has been the law that as long as a bankruptcy proceeding is still open there can be no abandonment by the trustee of any property of the estate, including causes of action, without formal order of the bankruptcy court authorizing such abandonment." (In re Teltronics Services, Inc. (E.D.N.Y. 1984) 39 Bankr. 446, 449; see 11 U.S.C. § 554.) (Italics added.)[6] Additionally, new rules of bankruptcy procedure took effect on August 1, 1983. Rule 6007 of the new rules provides a specific procedure for seeking an order of abandonment pursuant to 11 United States Code section 554.[7] The trustee may seek a formal order of abandonment of property of the estate after notice to the creditors (11 U.S.C. Bankr. Rules, rule 6007 (a)) or a party in interest may file and serve a motion requiring the trustee to abandon the property of the estate. (11 U.S.C. Bankr. Rules, rule 6007 (b).) The court sets a hearing for determination of the issues if any party objects to the trustee's proposed abandonment of the asset or if a party in interest files a motion for an order requiring the trustee to abandon the property. (11 U.S.C. Bankr. Rules, rule 6007(c).) Based on the foregoing, the trial court could have reasonably concluded that service was not beyond the Danielsons' control during the two years and eleven and one-half months in which they sat on their rights. Prior to serving defendants in November 1985, the Danielsons did not seek any affirmative relief from the bankruptcy court as provided by the bankruptcy code or suggested by relevant case law. Instead they chose to serve defendants with summons and complaint, when, by their own logic, the Danielsons still did not have standing to prosecute their claims. If, as they argued, the trustee by his inaction had abandoned the Danielsons' claims at the time they served defendants, they could have served defendants at any time after *658 they filed their complaint. It must have been apparent to the Danielsons from the time they filed their lawsuit in propria persona that the trustee did not intend to prosecute their state court claims. At no time prior to December 30, 1986, did the trustee take any action to intervene in this lawsuit or prosecute it. Faced with the trustee's evident inaction, the Danielsons could have timely petitioned the bankruptcy court for an order of abandonment, an order permitting them to prosecute the lawsuit, or an order compelling the trustee to prosecute it or permitting him to proceed on the Danielsons' behalf. There was no bar to the Danielsons' seeking this relief at any time after December 1982. Therefore, it is reasonable to conclude that prosecution of this lawsuit was within the Danielsons' control to the degree that it was not "impossible, impracticable or futile" for them to serve ITT and Inland within two years. B. Distributing Co.'s, Truck Brokerage's and Schwingler's Motion to Dismiss The Danielsons argue that the bankruptcy court's denial of their motion for order of abandonment in September 1986, prior to Distributing Co.'s, Truck Brokerage's and Schwingler's motion to dismiss in state court, affirmed that it was "impossible, impracticable or futile" for them to serve defendants Distributing Co., Truck Brokerage and Schwingler from December 1982 through November 1985 because they did not have standing to prosecute their lawsuit. Their argument is unpersuasive. (6b) The question is whether service of process is impossible, impracticable or futile under the circumstances (Valerio v. Boise Cascade Corp., supra, 177 Cal. App.3d at p. 1220), and generally the excuse of impossibility, impracticability or futility does not apply when the cause for delay in service is not beyond the plaintiff's control. (See, e.g., Valerio v. Boise Cascade Corp., supra, 177 Cal. App.3d at p. 1221; Nelson v. State of California (1982) 139 Cal. App.3d 72, 76 [188 Cal. Rptr. 479]; Lesko v. Superior Court (1982) 127 Cal. App.3d 476, 483 [179 Cal. Rptr. 595]; see also Cal. Law Revision Com. com., Deerings Ann. Code Civ. Proc., § 583.240 (1988 pocket supp.) pp. 97-98.) (5d) The Danielsons have not convinced us that service was not within their control. Even before they filed the lawsuit, the Danielsons were aware that the trustee was not pursuing their state court claims. Rather than petition the bankruptcy court to compel the trustee to prosecute their claims or for other relief, they filed the lawsuit in propria persona. Between December 1982, when they filed the lawsuit, and November 1985, when they served the defendants, the Danielsons took no action to prosecute this *659 lawsuit, either by seeking affirmative relief through the bankruptcy court or by serving the defendants without authorization from the bankruptcy court. Then, in November 1985, without authorization from the bankruptcy court, and presumably without standing to prosecute, the Danielsons filed an amended complaint and served defendants. It was not until after the trial court had granted ITT's and Inland's motions to dismiss that the Danielsons petitioned the bankruptcy court for an order of abandonment, which petition was denied. The Danielsons offer no explanation why they could not have sought any affirmative relief during the three-year period in which they failed to serve defendants. The Danielsons ask the court to accept an argument which would lead to absurd results. They argue that the bankruptcy court's order of September 1986 affirmed that it was "impossible, impracticable or futile" for them to serve defendants because they did not have standing to prosecute between December 1982 and October 1985; but at the same time they argue that they had standing to file the lawsuit in November 1982, to file an amended complaint in November 1985, to serve defendants in November 1985, to oppose all motions in state court in 1986, including the motions brought after the September 1986 bankruptcy court order denying their motion for abandonment, and to file these appeals. In other words, the Danielsons did not have standing to prosecute their lawsuit, except when it was advantageous for them to have it. We decline to accept their reasoning. Thus the fact that the bankruptcy court denied the Danielsons' motion for abandonment in September 1986 is irrelevant to the question of whether service was "impossible, impracticable or futile" during the two year and eleven month period in question. (2b) In determining a motion to dismiss for failure to serve summons in two years, a court must also consider the factors found in California Rules of Court, rule 373(e), such as plaintiff's diligence in serving defendant and "any fact or circumstance relevant to a fair determination of the issue." The greater the delay in service and the closer to the date dismissal becomes mandatory, the more difficult it is for plaintiff to justify the delay in service. Plaintiff must show that he acted with reasonable diligence throughout the entire period of time his case has been pending. (Corlett v. Gordon (1980) 106 Cal. App.3d 1005, 1014-1016 [165 Cal. Rptr. 524].) Additionally, "prejudice accruing to a defendant may be a factor in determining a motion to dismiss ..." and may be presumed in certain circumstances. (Adams v. Roses (1986) 183 Cal. App.3d 498, 505 [228 Cal. Rptr. 339].) "[A] court does not abuse its discretion in presuming *660 prejudice where a delay in service of the summons and complaint is prolonged and unjustified and defendants had no actual knowledge of the existence of the action — in short, the extraordinary circumstances of this case." (Luti v. Graco, Inc., supra, 170 Cal. App.3d at p. 238.) (5e) Here, the actions complained of occurred from 1979 through 1981. The Danielsons filed their complaint in December 1982, but did not serve defendants until November 1985. "A presumption of prejudice under these facts was well within the court's discretion." (Ibid.)[8] Defendants also demonstrated actual prejudice from the delay in service. In support of their motions to dismiss, defendants submitted declarations which evidenced their "inability to make discovery, interview witnesses and preserve evidence during the nearly three years before plaintiffs served defendants with the complaint. [Citations.]" (Adams v. Roses, supra, 183 Cal. App.3d at p. 505.) We conclude the Danielsons have not met their burden of showing the trial court abused its discretion in failing to find the excuse of impossibility, impracticability or futility applied to the facts before it when it granted ITT's, Inland's, Distributing Co.'s, Truck Brokerage's and Schwingler's motions to dismiss for failure to serve summons within two years. Service was at all times within the Danielsons' control. The Danielsons offered no excuse for failure to seek affirmative relief from the bankruptcy court during the two-year and eleven-month delay in serving defendants and failed to demonstrate that service was "impossible, impracticable or futile" under the circumstances of this case. Additionally, the defendants demonstrated actual prejudice as a result of the Danielsons' delay in serving them. Based on the foregoing, we hold that the trial court did not abuse its discretion in granting defendants' motions to dismiss.[9] *661 DISPOSITION The judgment is affirmed. McDaniel, Acting P.J., and Dabney, J., concurred. Appellants' petition for review by the Supreme Court was denied June 8, 1988. NOTES [1] All future code references are to the California Code of Civil Procedure unless otherwise specified. [2] Though the Danielsons did not file a notice of appeal from the court's granting of defendant Inland's motion to dismiss, they did file an amended notice of appeal in case number E003310, amending it to add the appeal from the trial court's granting of this second motion to dismiss. We deem this amended notice of appeal to be the notice of appeal of Inland's motion to dismiss, as that is what the parties assumed. [3] Title 11 United States Code section 108 (a) of the Bankruptcy Act provided: "If applicable law, an order entered in a proceeding, or an agreement fixes a period within which the debtor may commence an action, and such period has not expired before the date of filing of the petition, the trustee may commence such action only before the later of — [¶] (1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; and [¶] (2) two years after the order for relief." (Italics added.) In 1984, this subdivision was amended and clarified, as follows: "If applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period within which the debtor may commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action only before the later of — [¶] (1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or [¶] (2) two years after the order for relief." (Italics added.) [4] As amended in 1984, these subdivisions also apply to individuals protected under chapter 12, section 1201 of the Bankruptcy Act. As amended, the statute remains inapplicable to the Danielsons. [5] See discussion of Wood, footnote 6, infra. [6] Wood v. Lowe, supra, 39 Cal. App.3d 296, is cited by the Danielsons in support of their argument that a formal order is not required. Wood discussed abandonment of assets of the bankruptcy estate under the Bankruptcy Act in effect in 1972. The Bankruptcy Act was amended in 1973 and again in 1979. [7] Title 11 United States Code Bankruptcy Rules, rule 6007 provides, in relevant part: "[¶] (a) Unless otherwise directed by the court, the trustee ... shall give notice of a proposed abandonment.... [¶] (b) A party in interest may file and serve a motion requiring the trustee ... to abandon the property of the estate. [¶] (c) If a timely objection is made as prescribed by subdivision (a) of this rule, or if a motion is made as prescribed by subdivision (b), the court shall set a hearing on notice to the persons as the court may direct." [8] For a recent discussion of presumption of prejudice see Schumpert v. Tishman Co. (1987) 198 Cal. App.3d 598 [243 Cal. Rptr. 810].) [9] Inland, Distributing Co., Truck Brokerage, and Schwingler also argued that the Danielsons lacked standing to file this lawsuit. We do not consider that issue here because we find that resolution of the issue of whether the trial court abused its discretion in granting defendants' motions to dismiss was dispositive. For the same reason, we do not consider the question of whether the Danielsons had standing to oppose defendants' motions to dismiss in the trial court, which was raised by Distributing Co., Truck Brokerage and Schwingler in their letter brief. Neither do we consider Distributing Co.'s, Truck Brokerage's and Schwingler's argument in their letter brief that the Danielsons lacked standing to prosecute this appeal. We also do not consider Distributing Co.'s, Truck Brokerage's and Schwingler's argument that the bankruptcy court's order of December 30, 1986, which authorized the trustee to employ special counsel to prosecute the state court lawsuit, did not confer retroactive standing on the Danielsons to prosecute this lawsuit. Finally, we do not consider the effect, if any, of the trustee's failure to substitute in as real party in interest after the bankruptcy court's order of September 1986 denying the Danielsons' motion for an order of abandonment or his failure to do so after the bankruptcy court's order of December 30, 1986, authorizing the trustee to employ special counsel to prosecute this action.

Affirmed and Memorandum Opinion filed August 25, 2016. In The Fourteenth Court of Appeals NO. 14-15-00900-CR BOBBY EARL WILLIAMS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 183rd District Court Harris County, Texas Trial Court Cause No. 1355107 MEMORANDUM OPINION Appellant entered a guilty plea to the offense of assault with a deadly weapon. The trial court deferred adjudication of appellant’s guilt and placed him on five years’ deferred-adjudication community supervision. Subsequently, the State filed a motion to adjudicate appellant’s guilt. Following a hearing, the trial court found one of the State’s allegations “true” and adjudicated guilt. The trial court sentenced appellant to confinement for ten years. We affirm. The record reflects the State moved to adjudicate on the grounds appellant violated the conditions of his probation by (1) committing aggravated assault; and (2) failing to pay his fine and court costs. Appellant entered a plea of true to the allegation of failure to pay and a plea of not true to the allegation of assault. The trial court found the first of these true, but not the second, as reflected in the judgment and the hearing record. Appellant’s sole issue on appeal claims the evidence failed to establish by a preponderance of the evidence that he threatened Cleve Mitchell with a knife.1 The trial court’s determination whether to proceed with an adjudication of guilt is reviewable in the same manner used to determine whether sufficient evidence supports the trial court’s decision to revoke community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 2014). In an adjudication hearing, the State must prove by a preponderance of the evidence that a defendant violated the terms of his community supervision. Rickels v. State, 202 S.W.3d 759, 763–64 (Tex. Crim. App. 2006). A preponderance of the evidence means “that greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of his probation.” Id. We review the trial court’s decision regarding community supervision revocation for an abuse of discretion and examine the evidence in a light most favorable to the trial court’s order. Id.; Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981). The trial court is the trier of fact and the arbiter of the credibility of the testimony during a hearing on a motion to adjudicate. See Garrett, 619 S.W.2d at 174. Appellant, complainant Cleve Mitchell, and David Taylor lived in the same apartment complex. Taylor testified that on May 20, 2015, he was talking to Mitchell about a female neighbor’s car trouble when appellant “butted in” on their conversation. Words were exchanged and appellant “pulled a knife” on Mitchell and threatened to kill 1 Although the State contends we can affirm the trial court’s judgment on the basis that appellant pled true to the failure to pay allegation, the State cites no authority, and we are aware of none, permitting this Court to affirm on an allegation the trial court did not find “true.” 2 him. Taylor said appellant reached to cut Mitchell but Taylor stopped him. According to Taylor, “if I wouldn’t have grabbed [the knife], [appellant] would have stabbed him.” Taylor testified that Mitchell picked up a chair to defend himself but did nothing to threaten appellant. Mitchell testified appellant was coming at him with his hand in his pocket and Mitchell knew appellant always carried a knife. Mitchell felt threatened and picked up his chair. Appellant walked off and Mitchell sat down. When appellant returned, Mitchell saw the knife in appellant’s hand with the blade exposed. Appellant was coming toward Mitchell and swinging the knife in his direction. Appellant came close enough with the knife that he could have reached Mitchell with it. Mitchell testified that he feared for his life and believed the knife could hurt him. He agreed it could be used as a deadly weapon. Mitchell identified a pocket knife as the same knife appellant had that day. Mitchell denied threatening appellant and said he picked up the chair because appellant was coming toward him with the knife in his pocket. Both appellant and Mitchell called 911. Officer Luis Ontiveros responded to the call. Appellant and Mitchell gave different versions of the event but Taylor’s corroborated Mitchell’s. Ontiveros testified that Mitchell was afraid for his life and Mitchell said appellant “tried to cut me.” Ontiveros recovered a knife from appellant’s wife and identified it in court. Taylor identified the same knife as the one appellant had that day. Appellant claimed he told Mitchell to “shut up” not because he was angry but because the neighbor was trying to tell appellant what she wanted to do with her car. Appellant testified that Mitchell reacted angrily, responding “Nobody tells me to shut up.” Appellant denied reaching for his back pocket before Mitchell picked his chair up and threatened appellant. According to appellant, that was when he reached for his pocket. Appellant then walked away. When appellant walked by again, Mitchell made 3 an angry face at him, and appellant “took off and started walking real fast towards [Mitchell]. And [Mitchell] jumped out of the chair and he went to rear back with it.” Appellant denied trying to cut Mitchell and testified he never pulled his knife out, although he admitted to making a motion toward Mitchell as if he had a knife, saying he was “playing with” Mitchell. Appellant testified Taylor never restrained him, and that Taylor had been to dialysis that day and was “drogged [sic] out.” According to appellant, the knife his wife gave to Ontiveros was not appellant’s and he did not know where his pocket knife went. Appellant admitted that the offense of aggravated assault with a deadly weapon for which he was on deferred-adjudication community supervision also involved a pocket knife. The trial court heard the conflicting evidence and as the trier of fact determined credibility. See Garrett, 619 S.W.2d at 174. The testimony of Taylor, Mitchell, and Ontiveros is some evidence that supports the trial court’s finding that appellant threatened Mitchell with a knife. We conclude the greater weight of credible evidence supports the trial court’s reasonable belief that it is more probable than not that appellant violated a condition of community supervision by threatening Mitchell with a knife. See Rickels, 202 S.W.3d at 763–64. Accordingly, the trial court did not abuse its discretion in finding the State’s allegation “true.” Appellant’s issue is overruled and we affirm the trial court’s judgment. /s/ John Donovan Justice Panel consists of Justices Busby, Donovan, and Wise. Do Not Publish — Tex. R. App. P. 47.2(b). 4 

698 F.Supp. 768 (1988) Ann KIRKENDALL, Individually and as Personal Representative of the Estate of Dee Franklin Kirkendall, Deceased, Plaintiff, v. HARBOR INSURANCE COMPANY, Defendant. Civ. No. 87-2033. United States District Court, W.D. Arkansas, Fort Smith Division. October 21, 1988. *769 Sam Sexton, Jr., Sexton, Kirkpatrick, Nolan, Van Winkle & Caddell, Fort Smith, Ark., for plaintiff. Robert L. Henry, III, Little Rock, Ark., for defendant. MEMORANDUM OPINION H. FRANKLIN WATERS, Chief Judge. I. Introduction This action was initiated by plaintiffs, Dee Franklin Kirkendall and Ann Kirkendall, against Blood Systems, Inc. (BSI) on February 26, 1987. Jurisdiction is founded upon diversity of citizenship. Plaintiff alleged that BSI is a non-profit corporation engaged in the business of supplying blood to various medical and hospital entities. In Arkansas, BSI operates under the firm name and style of United Blood Services (UBS). Ark.Code Ann. § 23-79-210 (1987) (formerly Ark.Stat.Ann. §§ 66-3240 and 66-3241) authorize direct actions against the insurer of such non-profit corporations and require those entities to disclose to injured persons the identity of the liability insurance carrier and the limits of liability. Because BSI allegedly failed and refused to disclose the identity and liability limits of its insurer, BSI was named as the party defendant. As the basis of plaintiff's claims, plaintiffs originally contended that BSI supplied blood which was contaminated with AIDS virus to Sparks Regional Hospital (Sparks). Dee Kirkendall received the contaminated blood on March 28, 1985, in the course of a transfusion necessitated during surgery while he was hospitalized at Sparks. Plaintiffs alleged that the contaminated blood was a "product" supplied in a "defective condition" which rendered it "unreasonably dangerous" by reason of which BSI should be held strictly liable. Alternatively, plaintiff contended that BSI was negligent in the "screening" of its donors and in failing to test the blood for the presence of the AIDS virus. Dee Kirkendall was subsequently diagnosed as suffering from AIDS for which he sought compensatory relief. Plaintiff, Ann Kirkendall, claimed damages for loss of consortium and infliction of mental distress. The apparent basis of her mental distress claim is her fear of having contracted AIDS through sexual intercourse with her husband. By order dated July 8, 1987, this court found that BSI is a charitable institution immune from suit under Arkansas law, and directed that Harbor Insurance Company (Harbor) be substituted as the party defendant. Harbor issued and delivered to BSI liability insurance policy number HI177397 which was in effect during the relevant time period. This policy would be implicated, subject to certain limitations, upon a finding that BSI acted negligently in this case. Dee Kirkendall died on April 23, 1987, as a result of having contracted the AIDS virus during the blood transfusion on March 28, 1985. On July 15, 1987, Ann Kirkendall filed an amended and substituted *770 complaint, individually and as personal representative of the Estate of Dee Kirkendall, against Harbor Insurance Company, re-stating the allegations pertaining to strict liability and negligence, and asserting that Harbor Insurance Company had issued the aforementioned liability policy to BSI with coverage up to $10,000,000. A "self-insured retention" provision amounting to a $250,000 "deductible" was contained in the policy. On March 14, 1988, defendant filed a motion for partial summary judgment, arguing that the supplying of blood is a "service" to which the implied warranties of the Uniform Commercial Code do not apply and further that blood is not a "product" for purposes of imposing strict product liability in tort. See Ark.Code Ann. §§ 4-86-102; XX-XXX-XXX(2); 4-2-316; 20-9-801, 802 (1987). By order dated April 13, 1988, this court granted defendant's motion and dismissed plaintiff's strict liability claims with prejudice. Plaintiff subsequently withdrew her request for jury trial. Accordingly the matter was tried to the court without a jury on August 16-18, 1988. The following shall serve as the court's findings of fact and conclusions of law required by Rule 52, of the Federal Rules of Civil Procedure. Discussion The court will not attempt to chronicle the history and development of the body of knowledge pertaining to the recognition of and research into the etiology of the illness commonly referred to as AIDS, except insofar as relevant to the issues in this case. An excellent synopsis of that history is contained in Kozup v. Georgetown University, 663 F.Supp. 1048, 1051-53 (D.D.C. 1987) aff'd in part and vacated in part, 851 F.2d 437 (D.D.Cir.1988). Briefly stated, by mid-1982 the medical community was aware of an unusual incidence of an acquired immuno deficiency among hemophiliacs, homosexual men, and intra venous drug users. Other than having unusual stresses to their respective immune systems, it was not known what factors were common among members of these groups. In December, 1982, an article in the Morbidity/Mortality Weekly Review suggested the possibility that AIDS was transmissible by blood. Notwithstanding this article, by January, 1983, although there was a consensus that a significant public health problem was posed by the increasing numbers of persons who had developed symptoms consistent with acquired immuno deficiency, there was no consensus as to the methods of transmission of such a disease. Dr. Ernest R. Simon, M.D., Executive Vice President for Medical Affairs of United Blood Services, Inc., testified that it was recognized early in 1983 that homosexual men were at "high risk" for AIDS. Nonetheless, direct questioning of prospective blood donors as to their sexual preference was not utilized by UBS, BSI or other members of the blood banking community. In the March/April, 1983, issue of Transfusion Magazine, a joint statement on Acquired Immune Deficiency Syndrome related to transfusion appeared. 23 Transfusion, March-April 1983, at 87-88. The "joint statement" dated January 13, 1983, was developed by the American Association of Blood Banks (AABB), the Council of Community Blood Centers (CCBC), and the American Red Cross (ARC) with assistance from the American Blood Commission, National Gay Task Force, the National Hemophilia Foundation, and representatives from the American Blood Resources Association, the Center for Disease Control, and the Food and Drug Administration. The "joint statement" suggested that donor screening should include specific questions to detect possible AIDS or exposure to patients with AIDS and that all donors should be asked questions designed to elicit a history of night sweating, unexplained fevers, unexpected weight loss, lymphadenopathy or Kaposi's sarcoma. However, the "joint statement" unambiguously stated, "Direct or indirect questions about a donor's sexual preference are inappropriate." The "joint statement" did not advise routine implementation of any laboratory screening program or surrogate testing for AIDS by blood banks at this time. Transfusion at 87-88. *771 Immediately after the MMWR article appeared, Kenneth R. Woods, Ph.D., President of the Council of Community Blood Centers, issued a newsletter noting the possibility that AIDS may be transmissible by transfusion but that: [T]here have been no initiatives among blood center physicians to amend pre-donation interviews of males to include specific inquiries about sexual habits. Experienced physicians believe that the small number of prospective blood donors to whom such questions would apply frequently do not respond in sufficient candor to expect that these persons could thereby be disqualified as blood donors. An HHS News release issued by the Department of Health and Human Service, dated March 4, 1983, recognized that blood or blood products "appear to be the vehicles responsible for the increased incidence of AIDS among hemophilia patients." HHS News at 1. The following groups were considered to be at "high risk" for AIDS: patients diagnosed with AIDS, sexual partners of AIDS patients, persons with symptoms and signs suggestive of AIDS, sexually active homosexual or bisexual men with multiple partners, Haitian entrants to the United States, present or past abusers of intravenous drugs, and sexual partners of individuals at high risk for AIDS. The HHS document recommended that studies be conducted to evaluate screening procedures, including specific laboratory tests, careful medical histories, and physical examinations. HHS News at 2-3. A March 24, 1983, memorandum from the Director of the Office of Biologics of the National Center for Drugs and Biologics recommended that the donor medical histories should include specific questions designed to detect possible AIDS symptoms or exposure to patients with AIDS, such as questions which elicit a history of night sweats, unexplained fevers, unexpected weight loss, or signs of lymphadenopathy or Kaposi's sarcoma. In response to the research information and recommendations of public health agencies, BSI instituted various revisions in its donor screening process. On January 31, 1983, BSI issued a memorandum to its executive, technical and medical directors directing that AIDS placards be placed in obvious locations in its blood centers. AIDS handouts were to be given to each donor to read before the donor interview. Two distinct changes in the questioning were implemented: (1) donors were to be asked, "Do you understand the information we have provided you about AIDS?", and (2) donors were to be asked, "Are you in good health today?" The placards referred to in the memorandum stated in bold print: The risk of exposure to AIDS is greater among persons who: * Have recently resided or traveled in Haiti. * Are homosexually active males with numerous contacts. * Are intravenous drug users. * Have (or may have had) hepatitis. If you have been associated with any of these groups or if you have recently experienced: * Prolonged fevers. * Unexplained weight loss. * Swelling of lymph glands. * Unexplained skin eruptions. PLEASE DISQUALIFY YOURSELF FROM DONATING PLASMA. You may also disqualify yourself by answering "No" when the interviewer asks you the question: `Are you in good health today?' You do not need to state a reason. Your voluntary deferral will be kept in the strictest confidence. On April 15, 1983, the interview process was updated so as to specifically require the interviewer to ask the following questions: "Have you been exposed to a patient with AIDS or to individuals who are at increased risk of contracting AIDS?" and "Have you had night sweating, unexplained skin eruptions or fevers, weight loss or swollen lymph glands?" Blood Service, Inc. Medical Technical Procedures Manual Memo (April 15, 1983). These questions were designed to follow FDA interim recommendations. *772 On May 18, 1983, Dr. John C. Petricciani, M.D., Director of the Office of Biologics, wrote to Dr. Simon noting that the "Important Notice" placards submitted in April of 1983 did "not include sexual partners of individuals who may be at increased risk or bisexual men with multiple partners." The "Important Notice" placard was immediately revised to include these increased risk groups. In December, 1984, Dr. Elaine C. Esber, M.D., then Acting Director of the Office of Biologics Research and Review, issued a memorandum to all blood centers advising that the HTLV-III virus had been reported as the etiological agent of AIDS. Department of Health and Human Service (Dec. 14, 1984). A revised set of recommendations to blood centers was issued. These recommendations included a recommendation that educational materials be provided to donors informing them that the following persons should refrain from donating blood: (1) persons with AIDS or one of the following symptoms — weight loss, night sweats, blue or purple spots on or under the skin or on mucous membranes, swollen lymph nodes lasting more than one month, persistent white spots or unusual blemishes in the mouth, fever in excess of 99 degrees Fahrenheit for more than ten days, persistent cough and shortness of breath, persistent diarrhea; (2) past or present abusers of intravenous drugs; (3) males who have had sex with more than one male since 1979, and males whose male partner has had sex with more than one male since 1979; (4) Haitians who have entered the United States after 1977; (5) patients with hemophilia; and (6) sexual partners of individuals in any of the above categories. It was not recommended that specific questions be asked regarding intravenous drug use, homosexuality, bi-sexuality, Haitian residence, or hemophilia, although specific questions were to be asked regarding physical symptoms. These recommendations also suggested that a confidential means be provided whereby the donor could prevent his or her blood from being transfused. In January, 1985, a document entitled, "Provisional Public Health Service Inter-Agency Recommendations for Screening Donated Blood and Plasma for Antibody to the Virus Causing Acquired Immunodeficiency Syndrome" was published. This document noted that the newly discovered retrovirus "human T-lymphotropic virus type III" (HTLV-III) is the cause of AIDS, and that tests to detect antibody to HTLV-III would be licensed in the near future. The antibody tests are modifications of the enzyme-linked immunosorbent assay (ELISA), which uses antigens derived from whole disrupted HTLV-III. These recommendations stated that persons accepted as donors should be informed that their blood will be tested for HTLV-III antibody and that they will be notified if their test is positive. This document clearly indicates that all blood or plasma should be tested for HTLV-III antibody by ELISA as soon as such testing became commercially available. If the ELISA test was found to be positive, another test, such as the Western blot technique was to be utilized. In the Western blot test, antibodies can be detected to HTLV-III proteins of specific molecular weights. According to the January, 1985, document, the Western blot test should be considered positive if band p24 or gp41 is present alone or in combination with other bands. A February 19, 1985, memorandum from the Director of the Office of Biologics Research and Review to all registered blood establishments informed blood centers that the FDA would soon license the HTLV-III virus antibody test. Department of Health and Human Services (Feb. 19, 1985). Collection facilities were encouraged to voluntarily begin performing the test as soon as supplies were "commercially available". Prior to mandatory testing, a voluntary phase-in period would exist during the period of time before final regulations could be put into effect. Because of the potentially serious impact that a positive test result could have on individual donors, it was recognized that it was "very important" that staff be adequately trained. On March 2, 1985, the FDA licensed the ELISA test manufactured by Abbott Laboratories. In October of 1984, BSI had *773 issued a letter-commitment to Abbott for the purchase of kits for 60,000 tests, when licensed. March 2, 1985, was a Saturday. The following Monday, March 4, 1985, UBS ordered 400 kits for use in the Fort Smith center. The kits were shipped on March 12, 1985, and received in the Fort Smith center on March 13, 1985. On March 22, 1985, 400 more kits were received. The kits which had been received on March 13, 1985, were stored and refrigerated until Abbott representatives arrived in Fort Smith on March 18, 1985, to train the UBS employees. Training was conducted on March 18-19, 1985. Routine testing of newly donated blood began in Fort Smith on March 23, 1985. On March 6, 1985, an unidentified individual donated a unit of blood, referred to as unit number XXXXX-XXXX, during a blood drive at an industrial plant in Rogers, Arkansas. On March 7, 1985, this unit of blood was shipped to Boone County Hospital in Harrison, Arkansas. On March 19, 1985, the unit of blood was returned to UBS in Fort Smith. Because blood has a "shelf life" of only 35 days, this unit was shipped to Sparks Regional Medical Center in Fort Smith on March 20, 1985. Sparks is UBS' largest single user of blood. It was common practice for blood which was unused by hospitals in outlying counties to be routinely returned and routed to Sparks in order that it may be used prior to its expiration date. On March 25, 1985, Dee Kirkendall was admitted to Sparks Hospital for heart surgery. The surgery was performed on March 28, 1985. During surgery, Dee Kirkendall received blood unit XXXXX-XXXX. That unit of blood was not tested for the presence of HTLV-III antibodies by any test at any time. On July 22, 1986, Dr. O.L. Davenport, M.D., Medical Director of UBS, wrote a letter to the unidentified donor informing him that a unit of blood he had donated on April 23, 1986, had been confirmed positive for AIDS. Dee Kirkendall's physician was notified of this fact in October, 1986. When Dee Kirkendall's blood was subsequently tested, it too was confirmed positive for AIDS. It is not seriously disputed that he was infected with the AIDS virus via the transfusion with blood unit number XXXXX-XXXX on March 28, 1985. Nor is there any doubt that Dee Kirkendall died of AIDS on April 23, 1987, as a result of the March 28, 1985, transfusion. Plaintiff's proof is directed toward two principal contentions: (1) that UBS was negligent in its "screening" procedures, and (2) that UBS was negligent in failing to provide Dee Kirkendall with blood which had been tested in some manner for the presence of antibodies to the HTLV-III (HIV) virus at the time of the March 28, 1985, transfusion. With respect to the former contention, plaintiff attempted to prove at trial through the testimony of Dr. Melvin Kramer, Ph.D. and other witnesses that the donor interview process observed by UBS was flawed and that the staff was inadequately trained to detect possible AIDS-infected donors prior to the implementation of routine ELISA testing. As discussed previously, it is clear that UBS revised its donor information placards and interview questionnaire as expeditiously as possible in order to correlate its "screening" with the latest research information available to the scientific community. Additionally, a confidential unit exclusion procedure was available whereby a donor could notify the blood bank within hours that his blood should not be used for transfusion purposes. The question, "Are you in good health today?" further provided a donor with an opportunity to self-defer without embarrassment. Plaintiff essentially maintains that donors should have been directly asked explicit questions, such as "Are you a homosexual or a bi-sexual?" and "Have you visited male or female prostitutes?" UBS' position, as well as that of the entire blood banking industry, is that this would offend potential donors and would ultimately cause a significant reduction in the blood supply. This position of the industry was repeatedly referred to during trial as "co-operation, not confrontation". *774 The court considers it fairly obvious that very little insight or imagination is required to understand that such questions would be offensive to a significant segment of the population. However, this alone is not a sufficient reason to prohibit such questions. If such questioning of potential donors would measurably reduce the risk of transmission of the AIDS virus without jeopardizing the supply of blood available to the public, then the standard of care required of blood centers would seem to dictate such questioning. Nonetheless, not only is there absolutely no proof in the record that such questions would in general reduce the risk of transmission by blood of the AIDS virus, there is no proof whatsoever that such questioning would have had any effect on Dee Kirkendall's receipt of untested blood unit XXXXX-XXXX. Neither the Food and Drug Administration, the Centers for Disease Control, the Council of Community Blood Centers, the American Association of Blood Banks, nor the American Red Cross has ever recommended the use of direct "confrontational" questioning of potential donors regarding their sexual habits. See Joint Statement on Acquired Immune Deficiency Syndrome Related to Transfusion, supra. However, even assuming that the unidentified donor of blood unit XXXXX-XXXX would respond candidly to such questions, there is not one iota of proof that the donor had any symptoms or signs suggestive of AIDS at the time of the donation, nor that he was a sexually active homosexual or bisexual man with multiple partners, that he was a recent Haitian entrant to the United States, that he was a present or past user of intravenous drugs, that he was a sexual partner of an individual at increased risk of AIDS, nor that he visited prostitutes. Thus, even had the donor been confronted with specified questions about his sex habits and the like while being interviewed in the manner suggested by the plaintiff, there is not the slightest proof or indication that this would have had any effect whatsoever on the donor's blood having been collected by UBS. Therefore, not only is there a complete lack of "proximate causation" between the failure of UBS personnel to ask these questions (or use a different "screening" process altogether) and the collection of blood unit XXXXX-XXXX, there is not even a "but for" causation relationship between the two events. Had the absent proof been forthcoming, the court would have been squarely presented with the issue regarding "confrontation" of donors. However, in the complete lack of such evidence a discussion regarding the theoretical effectiveness of screening procedures, as observed or in the abstract, becomes academic and irrelevant to the issue of liability. Suffice it to say that there is no evidence to suggest that the notification/interviewing/screening procedure utilized by UBS has anything to do with this case. Plaintiff also contends that, in addition to proper donor "screening", UBS should have utilized "surrogate testing", i.e. testing for something other than AIDS in an attempt to screen out AIDS-infected blood. Prior to the development of ELISA testing, there were 15 to 20 possible "surrogate tests" which had been considered by researchers. Dr. Simon testified that as of 1983 no test for AIDS was available at all, surrogate or otherwise. After a joint study involving its medical director in 1983, UBS concluded that surrogate testing would not be useful because there was no statistical difference between different risk groups and there appeared to be no correlation between the various surrogate tests which measured different things. At trial, Mr. Jack Smythe of the Western Tennessee Regional Blood Center confirmed this view. It is not disputed that the FDA has never licensed surrogate testing for AIDS. Neither the AABB nor the CCBB ever recommended the use of any surrogate tests. One such surrogate test was known as the Hepatitis B core antibody test, which plaintiff contends would have screened out a significant percentage of AIDS infected donors. With regard to the Hepatitis B core antibody test the evidence reflects the existence of no organization, governmental or medical, which advocated the use of such a test as a screen against AIDS. Unless the entire blood banking industry was *775 negligent the failure of UBS to utilize this test cannot give rise to liability. Plaintiff's argument that the entire industry was, in fact, negligent will be discussed infra. More immediately dispositive of plaintiff's "surrogate-test argument" is that plaintiff can point to no test which would have screened out the donor whose contaminated blood Dee Kirkendall received. In fact, there is no proof that even had the ELISA test itself been performed the donor would have been deferred. In any event, plaintiff must show that UBS' failure to implement the hepatitis-B core antibody test or some other surrogate test caused Dee Kirkendall to become infected. As the proof stands, it is a matter of the purest speculation what any surrogate test would have disclosed that the blood was infected. Because plaintiff has failed to demonstrate what surrogate test, if any, would have prevented Dee Kirkendall's receipt of blood unit XXXXX-XXXX, the critical element of causation is lacking. The court recognizes that once the blood contained in unit XXXXX-XXXX was disposed of, no further tests could later be made. Nonetheless, in the absence of any showing as to how UBS' failure to perform any particular surrogate test proximately caused blood unit XXXXX-XXXX to be transfused into Dee Kirkendall, i.e. that had UBS performed any particular surrogate test that blood unit would not have been transfused into Dee Kirkendall, the court cannot impose liability upon UBS on the basis that surrogate testing was not performed. Even if the failure to perform surrogate testing was "negligent" in the abstract, there can be no liability unless that failure proximately caused Dee Kirkendall to become infected with AIDS and unless Dee Kirkendall would not otherwise have become so infected. The required showing of proximate causation is lacking and plaintiff's argument with respect to surrogate testing must fail on that basis. However, as discussed infra, even if there could be found a causal relationship between UBS' failure to utilize surrogate testing for AIDS and Dee Kirkendall's receipt of blood unit XXXXX-XXXX, the failure to utilize surrogate testing cannot be considered negligent conduct. Finally, plaintiff contends that under the circumstances of this case UBS was negligent in its failure to test blood unit XXXXX-XXXX for the presence of HTLV-III (HIV) antibodies prior to the transfusion of March 28, 1985. As indicated earlier, the ELISA test first became commercially available and licensed on March 2, 1985. UBS received its first test kits on March 13, 1985, sufficient to perform 400 tests. On March 22, 1985, UBS received testing kits sufficient in number to perform 400 additional tests. Training of UBS employees on the use of the test kits was conducted on March 18-19, 1985. The testimony indicated that training as to the use of the kits was absolutely essential in order for test results to have any meaning. Patricia Jones testified that 375 to 500 tests were made in the training. On March 13, 1985, the day the first 400 kits arrived, the Fort Smith center had 1513 units of blood components in its "inventory", including units "in process" and on consignment in other locations. On March 23, 1985, the inventory of blood and blood products consisted of 1753 units. Approximately 300 to 425 kits remained after training. Obviously it would not have been possible to test all of the blood components in inventory as of March 23, 1985. However, only red blood cells and whole blood would "expire" in a short period of time as the "shelf life" of these products is 35 days compared to a year for cryoprecipitate and frozen plasma. On March 23, 1985, there were 193 units of red blood cells in inventory. The question naturally arises at this point why the red blood cells could not have been tested, deferring testing of other blood components until latter. Because 169 ELISA-tested units of red blood cells were available on March 28, 1985, plaintiff contends that the tested blood should have been substituted for untested blood as it became available. The answer is that it is not that simple. According to the uncontradicted testimony of UBS employees, as a *776 matter of logistics alone it would have required two days to have all of the blood units located in hospitals in outlying areas collected and brought back to Fort Smith. If all 1753 units of blood components available on March 23, 1985, were "recalled" for testing, it would have taken approximately 90 consecutive hours of testing to have performed the ELISA test on each unit, even if sufficient kits were available, which they were not. In the three day period subsequent to March 23, 1985, approximately 349 units of blood and blood products were used for transfusion purposes by area hospitals serviced by the Fort Smith UBS facility. The testimony indicated that UBS could not cease using untested blood because the 169 units of tested red blood cells would not supply UBS' customers with a minimum supply. To further complicate the problem, at Sparks Hospital 35 to 55 "cross-matches" of donor serum with recipient cells are performed each day for prospective blood transfusions. This is required to assure recipient compatibility with the donor's blood. After a cross-match is completed, the donor's blood is held for 48 hours, earmarked for use by one particular donor. Approximately 25 patients per day actually used or received blood cross-matched and "tagged" for their use. On any given day, Sparks hospital had "on hold" 150 to 200 units of cross-matched blood. If cross-matched blood were returned by Sparks Hospital for AIDS testing by UBS, all of the replacement blood would have to be re-cross-matched. Only five cross-matches can be performed in 45 minutes. It follows that the blood units could not be returned to UBS for testing without jeopardizing the supply of blood available for use by emergency or surgery patients of Sparks Hospital. UBS also serviced fifteen other hospitals in several counties. In light of this, plaintiff contends that "segments" of blood on hand at the various hospitals could be tested for HIV antibodies without disturbing the actual units of blood or the blood supply. It appears to be true that this could theoretically have been done. However, as indicated above, this assumes that UBS had unlimited testing capability, equipment, personnel, and time in which to do so. Had UBS the testing capability, it could have tested all of the blood and blood products in inventory on March 23, 1985, by some time on March 26, 1985, if it tested none of the units collected in that period of time. This ignores, too, that 349 units of blood and blood products were actually used in that period for transfusion by the hospitals serviced by the Fort Smith UBS facility. Because it is unknown at any given time what particular blood product or blood type will actually be needed by area hospitals, or the exact number of units that will be needed, only by testing all of the inventory without significantly disrupting the blood supply could the risk of transmission of AIDS be practically eliminated. Any significant disruption of the blood supply would have caused a greater risk to blood recipients than was present in the supplying of untested blood. Therefore, only by first testing whole blood and red blood cells, which are time-dated, and by testing only segments of red blood cells or whole blood contained in the entire UBS Fort Smith inventory, and only by delaying testing of newly donated blood, could UBS have possibly tested unit number XXXXX-XXXX without impairing the blood supply. Again, this is only a possibility because it may be that some of the 349 units of blood used in the three days after March 23, 1985, would not have been tested by the time it was needed after being cross-matched for use by a particular patient. There was just as much likelihood that one of the 349 units actually used was contaminated with HTLV-III (HIV) as was unit XXXXX-XXXX. Thus, the likelihood is that some untested blood would have had to have been used in the interim period, unless, as plaintiff urges, UBS advised all sixteen of its serviced hospitals to delay all elective and non-emergency surgery until all blood could be tested. Only by taking all of the above steps could the risk of transmission of HTLV-III be significantly reduced without endangering the supply of blood. *777 Thus, it comes down to this: was the risk of AIDS-contaminated blood such as to require that these measures be taken? At this juncture plaintiff would urge that the risk of AIDS is the risk of death and all possible measures must be taken to protect human life. Patricia Jones testified that since HIV testing began in March of 1985, over 66,000 units of blood have been tested by UBS of Fort Smith for the presence of HIV antibodies. Only ten confirmed cases have been detected. Therefore, since testing began by the Fort Smith center, one in every 6,600 units of donated blood have tested positive for AIDS antibodies. This is approximately .0151%. This percentage is comparable to the results of testing by the Western Tennessee Regional Blood Center, according to the testimony of Mr. Jack Smythe, President and Chief Executive Officer of that institution. In retrospect it can be seen that in the years since AIDS testing began, only one of every 6,600 units of donated blood were infected with the AIDS virus, although this was not known in 1985. However, even had UBS been aware of this fact, it could not have predicted that any of the 1753 units of blood products in its inventory on March 23, 1985, would have tested positive for AIDS antibodies. The overwhelming statistical probability was that not one unit of the 1753 units in inventory would test positive. Dr. Simon testified that a higher percentage of positive test results occurs as time goes by, partially because the antibody tests will not reflect a reactive result until two to six months after actual infection. Therefore it can be inferred that a test of a given population in 1985 would reflect fewer positive results than a test of the same population in 1988, even if no "spreading" of the virus or new infection occurred in that population. Thus, even had UBS in 1985 the benefit of the years of research and study which have occurred in the interim, it could not have foreseen that any of its inventory during the relevant time period would, upon testing, reflect the presence of AIDS antibodies. UBS could not have known that its failure to test its inventory would result in harm to any of the recipients of its blood, even if it had been possible and feasible to test all of the inventory. The collective knowledge of the blood industry in 1985 was far less than it is today. Even today, it would not be possible to accurately assume that any harm would have resulted to anyone as a result of UBS' failure to test its inventory between March 23, 1985, and March 28, 1985. Finally, it was essentially undisputed at trial, that even had blood unit XXXXX-XXX been tested, it may not have tested positive for the presence of HTLV-III (HIV) antibodies. After infection with the virus, a "window" of two to six months exists during which antibodies to the virus cannot be detected in the blood. For purposes of trial it was assumed that the HIV virus was present in blood unit XXXXX-XXXX because the donor later tested positive for the presence of HIV antibodies and no other cause of Dee Kirkendall's having contracted AIDS can be located. It cannot be assumed, however, that blood unit XXXXX-XXXX contained antibodies to the HIV virus; thus it cannot be said with any degree of certainty that had an ELISA test been made of that unit, the results would have caused its exclusion from the blood supply. Against this remote degree of risk is to be balanced the feasibility of testing inventory in the manner suggested by the plaintiff. At the risk of oversimplifying the matter, resort to basic principles of negligence law instructs us that "if one's conduct was reasonable in the light of what one could anticipate, there would be no negligence, and no liability." W. Keeton, Prosser and Keeton on Torts, § 43, p. 280 (5th Ed.1984). Stated another way, "those (injuries) which, although foreseeable, were foreseeable only as remote possibility, those only slightly probable, are beyond and not within the circle (of liability)...." W. Keeton, Prosser and Keeton on Torts, supra, p. 281, n. 7, quoting Mauney v. Gulf Refining Co., 193 Miss. 421, 9 So.2d 780 (1942). The issue with which the court is confronted is whether the failure to test inventory between March 23, 1985, and March *778 28, 1985 (assuming it to have been possible), constitutes negligence in light of the probable consequences. We are not confronted with a failure to test at all. The evidence indicates that a failure to ever test for HIV antibodies would naturally and probably result in harm at some point, even if the chances of receiving AIDS-contaminated blood from any particular unit is one in 6,600. Further, we are not dealing with a failure to test the 1753 units at a time when to do so would be more feasible and less threatening to the quantity of blood available. We are presented with the question of whether the failure to test the inventory between March 23, 1985, when testing began, and March 28, 1985, when Dee Kirkendall received blood unit XXXXX-XXXX, was unreasonable in light of the risk of harm known at the time and the feasibility of doing so. Resort to general principles of negligence law indicate that it was not unreasonable for UBS to decide not to test inventory and to test only new donations after March 23, 1985. This conclusion is buttressed somewhat by the conduct of other hospitals, blood banks, and organizations across the country. In Kozup, supra, the district court for the District of Columbia held that the standard of care for a hospital is established by looking to the conduct of the medical profession in similar circumstances as of that date. The court wrote: Yet, plaintiffs cannot point to a single hospital that was taking the measures which plaintiffs contend it was negligent for Georgetown not to take. All they offer is the testimony of two physicians who contend in hindsight that all hospitals should have been doing more to screen blood and donors than they were doing in late 1982 and early 1983. These opinions cannot be permitted to supplant the standard of care as established by the conduct of the medical community which plaintiffs' experts criticize. Kozup, supra, at 1055. On July 15, 1988, Kozup was affirmed by the Court of Appeals for the District of Columbia Circuit, with regard to the negligence claims. See Kozup v. Georgetown University, 851 F.2d 437 (D.C.Cir.1988). McKee v. Miles Laboratories, Inc., 675 F.Supp. 1060 (E.D.Ky.1987) expressly followed the Kozup standard. In Mckee, a pharmaceutical company had pooled the plasma of thousands of individuals in manufacturing Factor VIII Concentrate for use by hemophilia patients. Plaintiff contended that the company was negligent in failing to use alternative testing methods to protect recipients from AIDS. In granting defendant's motion for summary judgment on negligence the court noted: [P]laintiff can point to no organization, government entity or medical association within the United States which advocated the use of plaintiff's alternative testing as a means of screening defendant's product for AIDS. McKee, at 1064. The applicable standard of care was to be established by "looking to the conduct of the industry or profession in similar circumstances...." Id. Prior to the current advent of AIDS cases, a wealth of hepatitis transfusion-related cases indicated that the applicable standard of care was that of a reasonably prudent blood bank in the same or similar situation. Juneau v. Interstate Blood Bank, Inc., 333 So.2d 354 (La.App.1976) cert. denied, 337 So.2d 220 (1976); Hines v. St. Joseph's Hospitals, 86 N.M. 763, 527 P.2d 1075 (1974); See Hutchins v. Blood Services of Montana, 161 Mont. 359, 506 P.2d 449 (1973). An interesting malaria transfusion case in accord is Tufaro v. Methodist Hospital, Inc., 368 So.2d 1219 (La.App.1979). See also Annotation: Liability of Blood Supplier or Donor For Injury or Death Resulting From Blood Transfusion, 24 A.L.R. 4th 508 (1987). These cases establish that compliance with existing federal regulations, guidelines of blood banking organizations, and conduct in accordance with the conduct of other blood banks similarly situated satisfies the duty of care owed to potential recipients. This being the case, it is noted that UBS complied with all FDA regulations during the relevant time period, as well as the recommendations of the American Red Cross, Council of Community Blood Centers, *779 and the American Association of Blood Banks, particularly with regard to its screening interview process and its decision not to utilize surrogate testing for AIDS. Dr. Simon testified that UBS' testing of all new donors after March 23, 1985, exceeded the standard of care in the industry, as did Mr. Jack Smythe, Dr. Robert Randell, and Mr. Michael Couch. The AABB mandated testing as of July 1, 1985. The FDA did not require it until January 5, 1988. Michael C. Couch, Chief Executive Officer of the Louisiana Blood Center, testified that that organization began HIV antibody testing on March 25, 1985, through March 27, 1985, in various parts of Louisiana. That organization did not test its inventory, but only new donors as did UBS. Patricia Jones testified that the American Red Cross did not begin HIV testing until late March or early April of 1985, and that organization did not test its inventory. Dr. Robert Randell of the Sacramento Blood Center indicated that testing at that center did not begin until April 15, 1985. Not until May 22, 1985, were all units of blood and blood products in that center tested for HIV antibodies. Dr. Jack Smythe related that routine testing did not begin at the Western Tennessee Regional Blood Center until April 22, 1985, and that no inventory was tested there. All of these persons testified that the standard of care observed by blood banks across the country did not require the testing of inventory for the presence of HIV antibodies. All of these individuals testified that UBS met or exceeded the standard of care observed by reasonably prudent blood banks in their screening procedures, decision not to implement surrogate testing for HIV antibodies, the beginning of routine testing for HIV antibodies on March 23, 1985, and the decision not to test inventory. Additionally, as noted earlier, plaintiff has failed to demonstrate any dispositive nexus between any of UBS' screening procedures or its failure to utilize surrogate testing and the injuries received by Dee Kirkendall. Thus, even had UBS fallen short of industry standards with regard to these practices, no liability could attach as a result. Plaintiff was unable to point to any organization that began routine HIV testing earlier than did UBS. Plaintiff demonstrated the existence of no blood bank which tested inventory after testing was implemented. Had Sparks Hospital been located within the area serviced by the Sacramento Blood Center, Dee Kirkendall would have received blood unit XXXXX-XXXX approximately two and one half weeks before any HIV testing began. If the Western Tennessee Regional Blood Center had been the blood bank involved, Dee Kirkendall would have received the tainted blood some three and one-half weeks before any testing began. UBS began testing two to four days prior to the institution of routine testing by the Louisiana Blood Center and more than three months before it was required by the AABB. Only if the entire blood banking industry was negligent in the manner in which HIV testing was implemented and carried out, as Dr. Melvin Kramer suggested, could the court conclude that UBS acted negligently in this case. A similar argument was advanced in Kozup. Of this contention that court stated: This is not, as plaintiffs contend, an instance where `what ought to be done is fixed by a standard of reasonable prudence' but is simply not complied with by an entire community. (citation omitted) In that situation, courts have not hesitated to compel an entire community to upgrade its standard of care. Kozup, supra, at 1057-1058. As an example, the court in Kozup referred to the T.J. Hooper, 60 F.2d 737 (2d Cir.1932), wherein Judge Learned Hand required all tugboats to be equipped with radios although none were so equipped at the time. Courts are naturally reluctant to allow an industry to set its own standards. Even compliance with statutory or regulatory standards is not conclusive on the issue of due care. See W. Keeton, Prosser and Keeton on Torts, supra, § 36, p. 233. Such a statutory or regulatory standard is no more than a minimum and it does not necessarily preclude a finding that the actor was negligent in failing to take additional precautions. See Restatement (Second) of Torts, § 288C. Neither does compliance *780 with a de facto industry standard necessarily insulate an actor from liability. However, whether UBS' conduct in this case is judged by a general standard of reasonable prudence or by looking to the actual conduct of reasonably prudent members of the blood banking industry as of the date in question, plaintiff has failed to meet her burden of proving that UBS acted negligently by failing to test its inventory of blood and blood products between March 23, 1985, and March 28, 1985. As UBS did not cause injury to Dee Kirkendall through any negligence on its part, Harbor Insurance Company is not liable to the plaintiff on its policy of insurance under Arkansas' "direct action" statute, Ark.Code Ann. § 23-79-210. A separate judgement in accordance herewith will be concurrently entered. JUDGMENT On August 16, 1988, through August 18, 1988, the above entitled matter was tried to the court sitting without a jury, pursuant to agreement by and between the parties. Plaintiff appeared in person and through her counsel, Sam Sexton, Jr., and the defendant appeared by and through designated corporate representatives and its counsel, Robert L. Henry, III and G. Spence Fricke. From the testimony of the witnesses for the respective parties, exhibits introduced and received in evidence, and the statements and arguments of counsel, the court finds and concludes that this court has jurisdiction of the subject matter hereof and the parties hereto; and that defendant is entitled to judgment on the merits with regard to all issues raised in plaintiff's complaint, as amended; IT IS, THEREFORE, CONSIDERED, ORDERED, AND ADJUDGED that plaintiff's complaint, as amended, be dismissed with prejudice for the reasons set forth in the court's memorandum opinion filed concurrently herewith. IT IS SO ORDERED.

791 S.W.2d 440 (1990) Jack B. SIMCOX and Mary B. Simcox, Respondents, v. John J. OBERTZ, Jr., and Margaret I. Obertz, Appellants. No. 56876. Missouri Court of Appeals, Eastern District, Division Four. May 9, 1990. *441 James Allan Borchers, Thomas A. Federer, St. Charles, for appellants. Deborah Jean Tomich, St. Charles, for respondents. CARL R. GAERTNER, Judge. Appellants John and Margaret Obertz appeal from an adverse judgment requiring that they remove a storage structure from their property. We affirm in part and reverse in part. Appellants and respondents Jack and Mary Simcox are next-door neighbors in the Oak Hill Estates Subdivision in St. Charles County. The Simcoxes were the first homeowners in the subdivision, while the Obertzes purchased the last house built in Oak Hill Estates in January of 1986. In June of that year, Mr. Obertz poured a concrete pad in his backyard in preparation for erecting a storage building behind, but not connected to, his house. Mr. Simcox personally contacted Mr. Obertz, informed him of the subdivision restrictions and provided Mr. Obertz with a copy of same. The Simcoxes also retained an attorney, who sent the Obertzes a letter notifying them that placing a building on their property violated the restrictive covenants of the subdivision and that further action would be taken if construction proceeded. Construction ceased for approximately two years, during which time Mrs. Obertz was recovering from illness. In June, 1988, construction resumed, and the building was completed that month. The building is a detached structure fifteen feet tall with a barn roof, visible from nine of the twelve houses in the subdivision. The Obertzes use it for storing three lawn mowers, snow tires, a snow blower, shovels, firewood, gasoline cans, ladders, a hose, a wheelbarrow, and sundry other items. It also contained a loft, which requires a ladder to access, where cases of motor oil and gallon jugs of windshield wiper fluid are stored. The Obertzes planted white pine trees in September and October of 1988 in order to obscure the shed from the view of the surrounding houses. The Simcoxes filed their petition for injunction on September 13, 1988. After a bench trial on May 22, 1989, the trial court found in favor of the Simcoxes, requiring removal of the building within ninety days, and awarding them attorney's fees. The Obertzes appeal this decision. Appellants' first point on appeal asserts the trial court erred in finding the storage shed violated the subdivision restrictions, because service sheds are allowed under the covenants, or in the alternative, that the covenants are so ambiguous as to require resolution in favor of free use of the land. The pertinent provisions of the restrictive covenant in question are as follows: ARTICLE V General Restrictions Declarant herby [sic] covenents [sic] and grants to the Association and its successors and assigns, that each of said Lots in the Subdivision and the person or persons, corporation or other legal entity owning the same, shall stand, be bound and chargeable to the Association and its successors and assigns, and to the other Lot Owners, for the following building erection and use restrictions, and lot uses and restrictions, to wit: (a) Residence Use All Lots shall be used for no other purpose except as single family residences, [sic] Businesses operated from *442 homes are expressly precluded in Oak Hill Estates. No buildings shall be erected, placed or permitted to remain on any lot other than one detached single family dwelling and private attached two-car garage. (o) Storage All clothes line equipment [sic] garbage cans, service sheds, wood piles, and storage piles shall be kept within the confines of each rear yard so as to conceal them from view of neighboring Lots and streets except that garbage cans can be placed at curb for regular trash pickups. All rubbish, trash, and garbage shall be regularly removed from each Lot and shall not [sic] allowed to accumulate thereon. The standard of review of a court-tried equity action is well established. The trial court's judgment will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Baker v. McCue-Moyle Dev. Co., 695 S.W.2d 906, 911 (Mo.App.1984). In the absence of findings of fact, we may assume all fact issues were resolved in accord with the judgment.[1] Rule 73.01(a)(2); Estate of Strauss v. Schaeffer, 781 S.W.2d 274, 275 (Mo.App. 1989). There are also several long-standing precepts to keep in mind when reviewing a case involving restrictive covenants. Restrictions upon free use of land are not favorites of the law. Schneider v. Forsythe Group, Inc., 782 S.W.2d 139, 143 (Mo.App.1989). Restrictive covenants are therefore narrowly construed, and are not extended to include anything not clearly expressed within the document. Lake Saint Louis Community Ass'n v. Ravenwood Properties, Ltd., 746 S.W.2d 642, 644 (Mo.App.1988). Doubts respecting application of a restriction are resolved in favor of free use of the land, but the plain and obvious intent and purpose of the restriction controls. Id. Restrictive covenants are examined in the context of the entire instrument, not in just a single clause. Schneider, 782 S.W.2d at 143. Absent any indication that a "special meaning" of a particular word is intended, we assign plain, ordinary, usual definitions to the language used. Lake Saint Louis, 746 S.W.2d at 644. Appellants contend the trial court erred in ordering the removal of their "storage shed" because Article V(o) of the Covenants and Restrictions "contemplated and allowed for such `service sheds'". Alternatively, they argue that the total prohibition of any out-buildings under Article V(a) conflicts with the allowance of service sheds under Article V(o) creating an ambiguity which must be resolved in favor of the free use of property by the owner. Under the facts of this case we reject both alternatives. Appellants' contention is predicated upon a syllogistic argument that a shed is a structure used for storage; they use their building for storage; therefore, it is a shed. The fallacy of this argument lies in its major premise. Not all structures used for storage are sheds; some are warehouses. The full definition of the noun "shed", as opposed to the rather fragmentary dictionary definitions cited by appellants in their brief, contained in Webster's Third New International Dictionary of the English Language, unabridged (1981), is as follows: A slight structure (as a penthouse, lean-to, or partially open separate building) built primarily for shelter or storage: OUT BUILDING; esp: a single-story building with one or more sides unenclosed. A permanent structure built upon a concrete slab twelve feet wide, fifteen feet deep and fifteen feet high can hardly be considered slight. Plaintiffs' building is neither single story nor partially unenclosed. Further, reading Article V of the Covenants and Restrictions in its entirety demonstrates a focus upon the protection *443 of open vistas and the prohibition of sight obstructions, not the use to which an out-building may be put. Even if we were to accept appellants' argument that their building could be considered a "service shed", they admit it is not concealed from neighboring lots and from the street. The Restrictions speak to present concealment from view, not to possible future concealment after three more years, when the pine trees planted around the building will, as predicted, have attained sufficient height and density to provide screening. We find no error in the trial court's conclusion that the building erected by appellants, over the expressed objection of their neighbor and with actual notice of the subdivision restrictions, was in violation of those restrictions. Appellants also contend that respondents should be denied relief in equity under the "unclean hands doctrine." This contention stems from the admission by Mr. Simcox on cross-examination that from December, 1985 to June, 1986 he conducted some insurance business from his home and that he had constructed a deck on his residence without clearance from the subdivision Architectural Committee. Appellants argue that these violations of the very restrictions respondents seek to enforce should preclude them from equitable relief. As stated in Osterberger v. Hites Constr. Co., 599 S.W.2d 221, 229 (Mo.App. 1980), "... the hoary and murky doctrine that `one who seeks equity must come in with clean hands' applies only to a party who shows he was injured by the asserted inequitable conduct." Appellants made no such showing. In fact, no mention of these alleged restriction violations was made by appellants during their testimony. Moreover, Mr. Simcox's admission that perhaps as many as ten insurance clients came to his home between December, 1985 and June, 1986, even overlooking the triviality of the matter, ended near the time appellants moved into the neighboring residence and over two years before the construction of their building and the institution of this litigation. Prior misconduct of a plaintiff which has ended before the commencement of the action should not bar his right to equitable relief from subsequent conduct of the defendant. River Corp. v. Redpath, 466 S.W.2d 140, 145 (Mo.App.1971). Point denied. Appellants' final point challenges the trial court's award of attorney's fees to respondents. The rule in Missouri is that, in the absence of a statutory or contractual agreement to the contrary, attorney's fees are not awarded as of right even to a successful litigant. Harris v. Union Elec. Co., 766 S.W.2d 80, 89 (Mo. banc 1989) cert. den. ___ U.S. ___, 109 S.Ct. 3245, 106 L.Ed.2d 592 (1989); Nichols v. Bossert, 121 S.W.2d 211, 213 (Mo.App.1987). Fees can be awarded in an equity action, Harris, 766 S.W.2d at 89, but only in exceptional circumstances. Nichols, 727 S.W.2d at 213; Farley v. Johnny Londoff Chevrolet, Inc., 673 S.W.2d 800, 806 (Mo.App.1984). Here, the trial court awarded attorney's fees not because of exceptional circumstances, but because "... I think the covenants provide for it ... [.]" Close inspection of the covenants reveal only one instance where attorney's fees are awardable, and that is when an action is required to collect delinquent assessments. The general provisions relating to enforcement of the covenants, by either the Oak Hill Estates Homeowners Association or by individual owners, make no mention of any right to collect attorney's fees. The trial court's award of attorney's fees was therefore erroneous. We therefore reverse the trial court as to the award of attorney's fees, and affirm in all other respects. HAMILTON, P.J., and STEPHAN, J., concur. NOTES [1] Appellants made a general request below for findings of fact and conclusions of law. A general request for findings is insufficient to require the trial court to make specific findings. Mills v. Mills, 663 S.W.2d 369, 375 (Mo.App. 1983).

508 F.3d 1278 (2007) Adriana LORENZO, Petitioner, v. Michael B. MUKASEY, Attorney General,[*] Respondent. No. 06-9505. United States Court of Appeals, Tenth Circuit. November 20, 2007. *1279 *1280 Submitted on the briefs:[**] Hakeem Ishola, Salt Lake City, UT, and J. Christopher Keen and Edward L. Carter, Orem, UT, for Petitioner. Stephen J. Flynn, Senior Litigation Counsel, and Mary Jane Candaux, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC, for Respondent. Before KELLY, BALDOCK, and BRISCOE, Circuit Judges. BALDOCK, Circuit Judge. Petitioner Adriana Lorenzo seeks review of the Department of Homeland Security's (DHS) January 2006 reinstatement order, which revived a November 1998 order removing her from the United States. First, Lorenzo claims the original 1998 removal order was legally defective and thus not subject to reinstatement. Second, Lorenzo alleges DHS, in reinstating her prior order of removal, failed to comply with 8 C.F.R. § 241.8, which provides the procedure for reinstating removal orders under the Immigration and Nationality Act (INA). Third, Lorenzo argues the procedure established by 8 C.F.R. § 241.8(a) fails to comport with both 8 U.S.C. § 1229a(a)(1) and the Due Process Clause of the Fifth Amendment. See U.S. Const. amend. V. We have jurisdiction under 8 U.S.C. § 1252, and deny the petition for review. I. Petitioner, a citizen of Mexico, attempted to enter the United States on November 19, 1998 by presenting a green card, under the name Hortencia Perez-Cortez, to an immigration officer at a California port of entry. Immigration officials determined Lorenzo's green card was not genuine, in violation of 8 U.S.C. § 1182(a)(6)(C)(i). Accordingly, officials summarily deported her under 8 U.S.C. § 1225(b)(1). Shortly thereafter, Lorenzo reentered the United States. Petitioner claims she passed through an official point of entry in the back seat of a car, without immigration officials examining or questioning her documentation. Immigration officials' next encounter with Lorenzo occurred in 2006 after her husband, an American citizen, submitted a Petition for Alien Relative.[1] A fingerprint comparison showed that immigration officials had previously removed Lorenzo from the United States. Petitioner admitted she had previously used the name Adriana Esparza-Jimenez and that immigration officials had removed her from the country in 1998. After a review of three DHS computer databases and Lorenzo's immigration file confirmed her statements, DHS denied Lorenzo's Application to Register Permanent Residence or Adjust Status. Instead, DHS determined Lorenzo was subject to removal under 8 U.S.C. § 1182(a)(9)(A)(i). DHS issued a Notice of Intent to reinstate Lorenzo's prior removal *1281 order under 8 U.S.C. § 1231(a)(5). Petitioner did not contest the agency's findings. DHS then issued an order reinstating Lorenzo's prior deportation order in January 2006. This timely petition for review followed. II. At the outset, we examine our jurisdiction to review Petitioner's claims. We must carefully consider our jurisdiction to review Petitioner's first claim related to the underlying 1998 removal order. Our pre-REAL ID Act precedent held that 8 U.S.C. § 1231(a)(5) universally precluded our review of underlying removal orders.[2]See Garcia-Marrufo v. Ashcroft, 376 F.3d 1061, 1063-64 (10th Cir.2004). The REAL ID Act of 2005's addition of 8 U.S.C. § 1252(a)(2)(D) to the INA, however, alters our prior holding. Under § 1252(a)(2)(D), only the jurisdictional limitations found in § 1252 — excepting those in § 1252(a)(2)(B) & (C), which are inapplicable here — apply generally to our review of "constitutional claims or questions of law."[3]See Ballesteros v. Ashcroft, 452 F.3d 1153, 1157 (10th Cir.2006) ("[U]nless another subparagraph of § 1252 precludes review of . . . claims that raise either constitutional or legal questions, we . . . have jurisdiction to review those claims."). Because § 1231(a)(5)'s jurisdictional limitation is clearly outside the scope of § 1252, we may no longer categorically hold that we lack jurisdiction to review constitutional and statutory claims related to all underlying removal orders. See Ramirez-Molina v. Ziglar, 436 F.3d 508, 513-14 (5th Cir.2006) (holding that § 1252(a)(2)(D) "prevents" the operation of § 1231(a)(5) in cases in which "an underlying order is questioned on constitutional or legal grounds"); accord Debeato v. Att'y Gen. of United States, 505 F.3d 231, 233-35 (3d Cir.2007) (adopting the Fifth Circuit's reasoning in Ramirez-Molina). Unfortunately, this modification of the INA and our precedent does not aid Petitioner. Section 1252(a)(2)(D) preserves § 1252(a)(2)(A). Section 1252(a)(2)(A) provides that "no court shall have jurisdiction to review" orders of removal entered under 8 U.S.C. § 1225(b)(1), "except as provided in subsection (e) of this section." The avenues for review provided by § 1252(e) are strictly limited and do not apply here. See Ochoa-Carrillo v. Gonzales, 446 F.3d 781, 782 (8th Cir.2006) (explaining that "the limited habeas review of removal orders issued under § 1225(b)(1) that is authorized by § 1252(e)(2) may not be conducted in a § 1231(a)(5) reinstatement proceeding"). Petitioner's 1998 removal order was issued pursuant to § 1225(b)(1). As a result, we lack jurisdiction to review any constitutional or statutory claims related to the underlying removal order in this case.[4] *1282 We next consider our jurisdiction to review Petitioner's second and third claims relating to the 2006 reinstatement order. Prior to the enactment of the REAL ID Act of 2005, we held that a reinstatement order is a "final order of removal" reviewable under 8 U.S.C. § 1252(a)(1). See Berrum-Garcia v. Comfort, 390 F.3d 1158, 1162 (10th Cir.2004); Garcia-Marrufo v. Ashcroft, 376 F.3d 1061, 1063 (10th Cir.2004); Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1162 n. 3 (10th Cir.2003). The REAL ID Act's modification of the INA confirms our previous holding and dispels any lingering doubts as to our jurisdiction to review reinstatement orders. See Duran-Hernandez, 348 F.3d at 1162 n. 3. Because the jurisdictional limitations found in 8 U.S.C. § 1231(a)(5) are outside the scope of § 1252, § 1252(a)(2)(D)'s jurisdiction saving provision clearly applies. See Ballesteros, 452 F.3d at 1157; see also Debeato, 505 F.3d at 233-35; Ramirez-Molina, 436 F.3d at 513-14. In enacting § 1252(a)(2)(D), Congress clearly provided for our review of "constitutional claims or questions of law" related to reinstatement orders. We have construed § 1252(a)(2)(D)'s "constitutional claims or questions of law" language to reach "those issues that were historically reviewable on habeas," namely "constitutional and statutory-construction questions, not discretionary or factual questions." Diallo v. Gonzales, 447 F.3d 1274, 1281-82 (10th Cir. 2006). Petitioner's allegations relating to the 2006 reinstatement order touch upon matters of constitutional law and statutory construction. We, therefore, have jurisdiction to review these claims under 8 U.S.C. § 1252(a)(2)(D). III. Although petitions for review have replaced habeas petitions, in the context of orders of removal, our standard of review remains the same. See Silva-Rengifo v. Att'y Gen. of United States, 473 F.3d 58, 63 (3d Cir.2007). We review constitutional and legal questions de novo. Id.; Fernandez-Vargas v. Ashcroft, 394 F.3d 881, 884 (10th Cir.2005). We give deference to the DHS's reasonable interpretation of the statutes it is charged with administering. Fernandez-Vargas, 394 F.3d at 884. A. Petitioner's second claim is that DHS, in reinstating her prior order of removal, failed to comply with the procedure set forth in 8 C.F.R. § 241.8(a). 8 C.F.R. § 241.8(a) requires DHS to make three findings in support of a reinstatement order: 1) the alien is subject to a prior removal order, 2) the alien is, in fact, the alien who was previously removed, and 3) the alien unlawfully reentered the United States. In regard to the first and second findings, Petitioner alleges the occasional use of the pronoun "he" in the report describing her initial removal calls into question whether she, or some unknown male, was the subject of the initial 1998 removal order. This argument, predicated on what is clearly a typographical error, cannot prevail. DHS established Petitioner's identity through her photograph and fingerprints, as well as her statements to immigration officials. The agency, therefore, clearly made the required findings that Petitioner was the subject of a prior deportation order and that she was, in fact, previously removed from the United States. Regarding the third finding, Petitioner argues immigration officials failed to establish that she was illegally in the United States. This argument has no merit. Petitioner's allegation that she reentered the United States in the back of a car, without immigration officials questioning her right to enter, fails to amount to a claim that she entered the country legally. 8 U.S.C. *1283 § 1182(a)(7)(A)(i)(I) states that aliens entering the United States without proper documentation are "inadmissible." Furthermore, 8 U.S.C. § 1182(a)(9)(A)(i), precludes an alien removed under 8 U.S.C. § 1225(b)(1) from gaining lawful admission to the United States for a period of five years. Petitioner, by her own admission, reentered the United States in November 1998, the month of her initial removal. Because immigration officials issued her underlying removal order under 8 U.S.C. § 1225(b)(1), Petitioner could not have reentered the country legally at this time. DHS's search of three computer databases and Petitioner's immigration file clearly established she never received authorization to reenter the United States. We reject Petitioner's second claim. B. Petitioner's third claim is that the procedure the Attorney General set forth in 8 C.F.R. § 241.8 to govern the reinstatement of removal orders contravenes 8 U.S.C. § 1229a(a)(1) and the Due Process Clause of the Fifth Amendment. Section 1229a(a)(1), states that, "[i]n general," an "immigration judge shall conduct proceedings for deciding the . . . deportability of an alien." See also 8 U.S.C. § 1229a(a)(3) (stating that generally "a proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be . . . removed from the United States"). On the other hand, 8 U.S.C. § 1231(a)(5) provides that once the Attorney General determines an alien has reentered the United States illegally, after a previous removal, "the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed . . . and the alien shall be removed under the prior order at any time after the reentry." Section 1231(a)(5) suggests that the procedures set forth in § 1229a are inapplicable to the reinstatement of removal orders. As a result, immigration officers, rather than immigration judges, make reinstatement determinations. Compare 8 C.F.R. § 241.8 (interpreting § 1231(a)(5) to allow "immigration officer[s]" to make reinstatement determinations), with § 1229a(a)(1) (stating that deportation proceedings are generally to be conducted by immigration judges). At best, this conflict between § 1229a and § 1231(a)(5) renders the INA ambiguous. See De Sandoval v. United States Att'y Gen., 440 F.3d 1276, 1280-83 (11th Cir.2006) (joining the First and Eighth Circuits in concluding that the INA is ambiguous). In cases of statutory ambiguity, we defer to any reasonable interpretation given to the statute by the agency charged with administering its terms. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999); Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Section 241.8 of the Attorney General's regulations implements 8 U.S.C. § 1231(a)(5). Three clear indications exist that 8 C.F.R. § 241.8 is a reasonable interpretation of the INA. First, 8 U.S.C. § 1229a(a)(1) states that, "[i]n general," immigration judges shall conduct deportation proceedings. This language simply states a general rule, which leaves ample room for exceptions. Second, the INA makes a clear distinction between "[r]emoval proceedings," discussed in 8 U.S.C. § 1229a, and "[r]einstatement of removal orders," discussed in 8 U.S.C. § 1231(a)(5). Third, the language of 8 U.S.C. § 1231(a)(5), which specifically governs the reinstatement of removal orders, assumes the use of summary, rather than judicial, proceedings. We, therefore, join our sister circuits in upholding 8 C.F.R. § 241.8 as a valid interpretation of the INA. See Morales-Izquierdo v. Gonzales, 486 F.3d *1284 484, 495 (9th Cir.2007) (en banc); De Sandoval, 440 F.3d 1276, 1281-83 (11th Cir. 2006); Ochoa-Carrillo v. Gonzales, 437 F.3d 842, 846 (8th Cir.2006); Lattab v. Ashcroft, 384 F.3d 8, 17-20 (1st Cir.2004). Petitioner also claims the procedure established by 8 C.F.R. § 241.8 for the reinstatement of removal orders violates her right to procedural due process. To establish a due process claim in this context, Petitioner must demonstrate she suffered prejudice as a result of DHS's reinstatement procedure. See Berrum-Garcia, 390 F.3d at 1165; Garcia-Marrufo, 376 F.3d at 1064; Duran-Hernandez, 348 F.3d at 1162. We note that § 241.8 provides sufficient process to withstand a facial attack on its validity. See Morales-Izquierdo, 486 F.3d at 496. "Because the risk of error is so low, any additional or substitute procedural safeguards . . . would produce marginal protections, if any, against erroneous determinations, while the cost in terms of resources and delay would be substantial." Id. In this case, Petitioner admitted that immigration officials removed her from this country in November 1998. She admittedly reentered the United States, without proper authorization, shortly thereafter. As we have explained, Petitioner could not have entered the United States legally at this time. Petitioner was unquestionably removable under 8 C.F.R. § 241.8 and 8 U.S.C. § 1231(a)(5). Given these facts, Petitioner cannot show DHS's reinstatement procedures caused her prejudice. Cf. Berrum-Garcia, 390 F.3d at 1165. We, therefore, reject petitioner's third claim. PETITION DENIED. NOTES [*] In accordance with Fed. R.App. P. 43(c)(2), Michael B. Mukasey is substituted for Alberto R. Gonzales as the Respondent in this action. [**] After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1(A)(2). The case is therefore ordered submitted without oral argument. [1] DHS approved this Petition for Alien Relative (PAR). A PAR is filed by a U.S. citizen or lawful permanent resident to establish his or her relationship to an alien relative who wishes to immigrate to the United States. Approval of a PAR is the "first step in helping a relative immigrate to the United States. Eligible family members must wait until there is a visa number available before they can apply for an immigrant visa or adjustment of status to a lawful permanent resident." U.S. Citizenship and Immigration Services, http:// www.uscis.gov/portal/site/uscis/menuitem.5af 9bb95919f35e66f6141 76543f6d1a/?vgnextoid=c67c7f9ded54d010VgnVCM10 000048f3d6a1RCRD. [2] Section 1231(a)(5) states that if, after a prior removal, the Attorney General finds an alien has reentered the United States illegally "the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry." [3] Section 1252(a)(2)(D) provides that "[n]othing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review [i.e., 8 U.S.C. § 1231(a)(5)], shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section." [4] We note that 8 U.S.C. § 1252(b)(1)'s requirement that a petition for review be filed "not later than 30 days after the date of the final order of removal" also survived the enactment of 8 U.S.C. § 1252(a)(2)(D). See Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227 (10th Cir.2003) ("The filing of a timely petition for review is mandatory and jurisdictional and is not subject to equitable tolling.").

523 F.Supp.2d 940 (2007) LADCO PROPERTIES XVII, L.L.C., Plaintiff, v. JEFFERSON-PILOT LIFE INSURANCE COMPANY, Defendant. No. 4:06-cv-00088. United States District Court, S.D. Iowa, Central Division. November 13, 2007. *941 *942 Scott D. Mikkelsen, Stanley J. Thompson, Davis Brown Koehn Shors & Roberts PC, Des Moines, IA, for Plaintiff. Debra Lynne Hulett, Richard J. Sapp, Nyemaster Goode West Hansell & O'Brien, Des Moines, IA, C. Bailey King, Jr., Robert R. Marcus, Smith Moore LLP, Greensboro, NC, for Defendant. MEMORANDUM OPINION AND ORDER ROBERT W. PRATT, Chief Judge. Before the Court are two motions for summary judgment. On July 2, 2007, Defendant, Jefferson-Pilot Life Insurance Company ("Jefferson-Pilot"), filed a Motion for Summary Judgment. Clerk's No. 31. Also on July 2, 2007, Plaintiff, Ladco Properties XVII, L.L.C. ("Ladco"), filed a Motion Summary Judgment. Clerk's No. 30. Jefferson-Pilot resisted Ladco's Motion for Summary Judgment on July 26, 2007 (Clerk's No. 33); on that same day, Ladco resisted Jefferson-Pilot's Motion for Summary Judgment. Clerk's No. 32. On August 10, 2007, both Jefferson-Pilot and Ladco filed their respective replies. Clerk's Nos. 36, 38. Ladco has requested oral argument on this matter, however, the Court finds that such argument would not materially aid the resolution of this case. Accordingly, the matter is fully submitted. I. FACTUAL BACKGROUND. For the most part, the parties do not dispute the facts of this case.[1] Ladco is an Iowa limited liability company. Pl.'s Am. Statement of Material Facts ¶ 1. Ladco was formed on November 12, 2002, for the purpose of developing a medical office facility in Ankeny, Iowa, in conjunction with Mercy Medical Center, referred to as Mercy North. Id. ¶¶ 1, 2. Ladco secured construction financing from a local bank and two local insurance companies. Id. ¶ 5. The Mercy North project involved 95,286 square feet of rentable space. Id. ¶ 3. By 2004, Mercy Medical Center agreed to rent approximately 53,000 square feet at Mercy North. Id. ¶ 4. Ladco, meanwhile, sought tenants for the additional space. Id. Some time in 2004, Ladco retained Venture Mortgage, a mortgage broker, to obtain sources of permanent financing for Mercy North. See id. ¶¶ 5, 6. Venture Mortgage presented Ladco with competing loan proposals from three different lenders. Def.'s Statement of Material Facts ¶ 9. One of the lenders was Jefferson-Pilot, an insurance company based in Greensboro, North Carolina.[2] Pl.'s Am. Statement of Material Facts ¶¶ 6, 7. Ladco *943 submitted a loan application and other Mercy North project information to Jefferson-Pilot. Id. ¶ 9. On or about December 15, 2004, Jefferson-Pilot approved Ladco for a loan in the amount of $12,590,000, with an interest rate of 5.66%. Id. Prior to entering into a mortgage loan commitment, Ladco had its attorney review the loan commitment, and Ladco negotiated several provisions of the loan commitment. Def.'s Statement of Material Facts ¶ 10. Although Ladco denies that its attorney negotiated any terms of the Deposit clause,[3] Ladco does admit that aspects of the Deposit clause were negotiated.[4]Id. ¶ 11; Pl.'s Response to Def.'s Statement of Additional Material Facts ¶ 5. On January 14, 2005, Jefferson-Pilot and Ladco entered into a mortgage loan commitment ("the Loan Commitment"), in which Jefferson-Pilot agreed, under certain conditions, to make a permanent loan to Ladco in the amount of $12,590,000 in connection with the Mercy North project. Def.'s Statement of Material Facts ¶ 1. Under the terms of the Loan Commitment, however, Jefferson-Pilot was obligated to fund the loan only if Ladco satisfied certain conditions precedent before the Loan Commitment expired.[5]Id. ¶ 3. One of the conditions precedent was that Ladco secure fully executed leases with tenants generating a minimum annual runt of $1,265,000 before the Loan Commitment expired ("Leasing Requirement"); that is, lease out approximately 90% of the total rentable space at Mercy North. Id.; Pl.'s Am. Statement of Material Facts ¶ 14. The Leasing Requirement, in effect, ensured that Ladco would have sufficient cash flow from rent payments to meet its debt obligation to Jefferson-Pilot. See Pl.'s Am. Statement of Material Facts ¶ 15. Thus, the Leasing Requirement was a risk reducing measure for Jefferson-Pilot. Id. ¶ 16. Further, under the terms of the Loan Commitment, Ladco agreed to provide a deposit of three percent of the loan amount, or $377,700 ("the Deposit"), which was to be retained by Jefferson-Pilot in the event that the loan did not close before the expiration date. Def.'s Statement of Material Facts ¶ 6. Specifically, the Deposit provision states: Upon acceptance of this [Loan] Commitment, [Ladco] shall pay [Jefferson-Pilot] a deposit (the "Deposit") in the amount of $377,700.00, of which $125,900.00 must be in cash and $251,800.00 may be in the form of an irrevocable letter of credit . . . The Deposit shall be held by [Jefferson-Pilot], without interest, as partial consideration for [Jefferson-Pilot's] committing to make the Loan and reserving the funds for that purpose, and [Ladco] shall become obligated to borrow the Loan. When the Loan is closed in accordance with the terms of this [Loan] Commitment, the Deposit less $20,000.00 shall be refunded to [Ladco]. Upon [Jefferson-Pilot's] receipt of all executed documents . . . and all other items required under this [Loan] Commitment, [Jefferson-Pilot] shall return *944 the remaining $20,000.00 to [Ladco]. In the event that the Loan does not close by the Expiration Date (except solely through [the] wrongful failure of [Jefferson-Pilot] to fund [the Loan] . . .), the Deposit will be forfeited as liquidated damages and becomes the sole property of [Jefferson-Pilot] and will be considered earned in payment for the time, effort, and expenses of [Jefferson-Pilot's] employees expended in the review and study of the Property and the documents pertaining to the proposed Loan, and the reservation by [Jefferson-Pilot] of funds necessary for the Closing of the Loan. It is understood and agreed that an actual determination of [Jefferson-Pilot's] expenses is not feasible and that the Deposit represents a reasonable estimate of such costs and expenses. Pl.'s App. at 35-36. Unfortunately, despite Ladco's good faith efforts to satisfy the Leasing Requirement, Ladco experienced difficulty. Pl.'s Am. Statement of Material Facts ¶ 21. Ladco's difficulty stemmed from delays in two prospective tenants executing their leases due to uncertainties in the number of "units" Mercy Medical Center was willing to "sell" to them. Id. Accordingly, because Ladco was unable to meet the Leasing Requirement, it exercised its option to extend the expiration date to September 28, 2005. Def.'s Statement of Material Facts ¶ 13. However, at some point; Ladco realized that it would be unable to meet the Leasing Requirement by September 28, 2005. Id. ¶ 14. Thus, on or about September 21, 2005, Ladco requested an extension of the Loan Commitment to December 16, 2005. Id. ¶ 15. At that time, Ladco informed Jefferson-Pilot of the situation with the two prospective tenants, and indicated that 66% of Mercy North space was currently leased and occupied, and that 72% of Mercy North would be leased and occupied by December 1, 2005. Pl.'s App. at 50-51; Pl.'s Am. Statement of Material Facts ¶ 22. In response, Jefferson-Pilot proposed an addendum in which it offered to extend the Loan Commitment to December 30, 2005. Def.'s Statement of Material Facts ¶ 16. The proposed addendum, dated October 4, 2005, provided that Ladco had until October 10, 2005 to return the executed addendum to Jefferson-Pilot, or the Loan Commitment would be deemed expired. Pl.'s App. in Support of Pl.'s Resistance at 29-30. Although Ladco did not return the executed addendum by October 10, 2005, Jefferson-Pilot continued to proceed in good faith toward a closing date in late December, based on assurances from Ladco that the executed addendum was forthcoming. Def.'s Statement of Material Facts ¶¶ 18, 19. In a letter dated October 13, 2005, Ladco informed Jefferson-Pilot that due to prospective tenant delays, meeting the Leasing Requirement by the expiration date was uncertain. See Pl.'s App. at 52. Ladco, however, offered to have Jon Garnaas, Ladco's principal, personally guarantee the remaining lease space; that is, enter into a "master lease" to assure Jefferson-Pilot of Ladco's income stream. See id. The "master lease," in turn, would be released at such time as new tenants leased and occupied the space. See id. Jefferson-Pilot claims that it never received this letter. Def.'s Response to Pl.'s Am. Statement of Material Facts ¶ 25. Regardless, it again became apparent that Ladco would be unable to meet the Leasing Requirement by December 30, 2005. See Def.'s Statement of Material Facts ¶ 20. In a letter dated December 13, 2005, Ladco requested that the Loan Commitment be extended for an additional nine months, to September 30, 2006. Id. ¶ 22. Ladco attached a modified copy of the October 4, 2005 proposed addendum to the *945 letter. See id. ¶ 23. In a letter dated December 15, 2005, Jefferson-Pilot rejected Ladco's request for an extension until September 30, 2006, and the modifications to the proposed addendum. Id. ¶ 25. Jefferson-Pilot stated that because Ladco did not accept the October 4, 2005 addendum by October 10, 2005, as provided for by the terms of the addendum, the Loan Commitment was deemed expired on September 28, 2005. Def.'s App. at 150-51. In addition, Jefferson-Pilot informed Ladco that, pursuant to the terms of the Loan Commitment, the Deposit had been "forfeited as liquidated damages as a result of Ladco's failure to fulfill its obligations under the [Loan] Commitment." Id. at 151. Presently, Ladco seeks the return of the Deposit. II. STANDARD FOR SUMMARY JUDGMENT 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." Fed.R.Civ.P. 56(c). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material if the dispute over it might affect the outcome of the suit under the governing law. Id. The moving party has the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In meeting its burden, the moving party may support his or her motion with affidavits, depositions, answers to interrogatories, and admissions. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party has carried its burden, the nonmoving party must go beyond the pleadings and, by affidavits, depositions, answers to interrogatories, or admissions on file, designate the specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548; Anderson, 477 U.S. at 257, 106 S.Ct. 2505. In order to survive a motion for summary judgment, the nonmoving party must present sufficient evidence for a reasonable trier of fact to return a verdict in his or her favor. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548. On a motion for summary judgment, a court is required to "view the evidence in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences." See United States v. City of Columbia, 914 F.2d 151, 153 (8th Cir.1990) (citing Woodsmith Pub. Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir.1990)). A court does not weigh the evidence or make credibility determinations. See Anderson, 477 U.S. at 252, 106 S.Ct. 2505. A court only determines whether there are any disputed issues and, if so, whether those issues are both genuine and material. Id. In the present case, both sides have moved for summary judgment on Ladco's claims. Particularly in the presence of competing cross motions for summary judgment, a court must keep in mind that summary judgment is not a paper trial. Accordingly, a "district court's role in deciding the motion is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe." Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994). In a motion for summary judgment this Court has but one task, to decide, based on the evidence of record as identified in the parties' moving and resistance papers, whether there is any material dispute of fact that requires a trial. See id. (citing Anderson, 477 U.S. at *946 249, 106 S.Ct. 2505 and 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2712 (3d ed.1998)). The parties then share the burden of identifying the evidence that will facilitate this assessment. Waldridge, 24 F.3d at 921. Neither does filing cross motions for summary judgment mean the parties have waived their right to trial. See Wermager v. Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir.1983) ("[T]he filing of cross motions for summary judgment does not necessarily indicate that there is no dispute as to a material fact, or have the effect of submitting the cause to a plenary determination on the merits.") (citations omitted). Rather, for the purposes of summary judgment, a party concedes there are no factual issues and accepts the other party's allegations only for the purpose of their own motion. See Federal Practice and Procedure § 2720; see also Metro. Life Ins. Co. v. Johnson, 297 F.3d 558, 561-62 (7th Cir.2002) (reviewing the record with "all inferences in favor of the party against whom the motion under consideration is made") (citing Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir.1998)). "Cross motions simply require [a court] to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed." Barnes v. Fleet Nat. Bank, 370 F.3d 164, 170 (1st Cir.2004) (quoting Wightman v. Springfield Terminal Ry., 100 F.3d 228, 230 (1st Cir.1996)). In this matter, then, each motion will be "evaluated independently to determine whether there exists a genuine dispute of material fact and whether the movant is entitled to judgment as a matter of law." St. Luke's Methodist Hosp. v. Thompson, 182 F.Supp.2d 765, 769 (N.D.Iowa 2001). Nevertheless, "[s]ummary judgments in favor of parties who have the burden of proof are rare, and rightly so." Turner v. Ferguson, 149 F.3d 821, 824 (8th Cir.1998). III. LAW AND ANALYSIS Ladco filed a one count complaint seeking the return of the Deposit. Specifically, Ladco argues that the failure to satisfy the Leasing Requirement did not amount to a breach of contract because the Leasing Requirement is a condition precedent to the Loan Commitment. That is, once Ladco failed to satisfy a condition precedent to the Loan Commitment, no valid Loan Commitment existed for Ladco to breach. In the alternative, Ladco contends that if it did breach the Loan Commitment, the Deposit forfeited as liquidated damages is, in fact, an unlawful penalty. Because the Loan Commitment is governed by the laws of North Carolina,[6] the Court turns to North Carolina law to determine whether the condition precedent at issue is a condition precedent to the Loan Commitment, and if not, whether the forfeiture of the Deposit is an unlawful penalty. The Court will address each argument in turn. A. Breach of Contract To determine whether the Leasing Requirement is a condition precedent to the Loan Commitment, the Court turns to the language of the contract. The Leasing Requirement provides, in relevant part: III. CONDITIONS PRECEDENT The following requirements must be met by [Ladco] to the satisfaction of [Jefferson-Pilot] and are conditions precedent to the funding of the Loan: A. Leases: The tenants and the form, terms and conditions of all leases relating *947 to the Property must be satisfactory to and approved by [Jefferson-Pilot]. At the Closing, the leases set forth on Exhibit "A" attached hereto and incorporated herein (the "Required Leases"), must be in existence, fully executed, and not in default, containing the terms listed on Exhibit "A", and generating a minimum annual rent of $1,265,000.00, exclusive of tenant contributions for taxes, insurance and common area maintenance. Pl.'s App. at 33 (emphasis added); Def.'s App. at 144. Ladco argues that the Leasing Requirement is a condition precedent to the Loan Commitment. Ladco contends that, because it did not satisfy the Leasing Requirement, there was no valid Loan Commitment for Ladco to breach. Jefferson-Pilot, however, argues that the clear language of the Loan Commitment illustrates that the Leasing Requirement is not a condition precedent to the Loan Commitment. A condition precedent is a fact or event, "`occurring subsequently to the making of a valid contract, that must exist or occur before there is a right to immediate performance, before there is a breach of contract duty, before the usual judicial remedies are available.'" Cargill, Inc. v. Neuse Prod. Credit Assoc., Inc., 26 N.C.App. 720, 217 S.E.2d 105, 107 (1975) (quoting 3A Corbin, Contracts, § 628 at 16 (1960)). Thus, if the Leasing Requirement is, indeed, a condition precedent to the Loan Commitment, then liquidated damages would be improper in this case. See Harris & Harris Constr. Co., Inc. v. Crain & Denbo, Inc., 256 N.C. 110, 123 S.E.2d 590, 595 (1962) (explaining that if parties negotiate a condition precedent to the contract, then the performance of the condition is essential before parties become bound to the contract). In North Carolina, "the goal of [contract] construction is to arrive at the intent of the parties when the [contract] was issued." Gaston County Dyeing Mach. Co. v. Northfield Ins. Co., 351 N.C. 293, 524 S.E.2d 558, 563 (2000). In reviewing the language of the Leasing Requirement to arrive at the intent of the parties, the Court finds that the Leasing Requirement is not a condition, precedent to the Loan Commitment. First, as noted above, the express language of the Loan Commitment unambiguously states that the Leasing Requirement is a condition precedent to the funding of the Loan, not a condition precedent to the validity of the Loan Commitment. See Martin v. Vance, 133 N.C.App. 116, 514 S.E.2d 306, 309 (1999) (stating that when a contract is unambiguous on the face of the document, courts must interpret the document as written). That is, Ladco's failure to meet a condition precedent to the funding of the loan does not affect the validity of the Loan Commitment. See Harris & Harris Constr. Co., 123 S.E.2d at 596 ("The fact that no duty of performance on either side can arise until the happening of a condition does not necessarily make the validity of the contract depend upon it happening."). There is no indication in the Loan Commitment that suggests that Jefferson-Pilot's commitment to make the loan of up to $12,590,000 was conditional and dependent upon Ladco satisfying the Leasing Requirement by the expiration date. See Cargill, 217 S.E.2d at 107 (explaining the difference between a condition precedent and a promise). Moreover, reading the Loan Commitment as a whole, and in reference to other provisions, it is evident that the Leasing Requirement is not a condition precedent to the Loan Commitment. See Jones v. Casstevens, 222 N.C. 411, 23 S.E.2d 303, 305 (1942) ("Since the object of construction is to ascertain the "intent of the parties, the contract must be considered as an entirety. The problem is not what the *948 separate parts mean, but what the contract means when considered as a whole." (citations omitted)). For example, reading the Leasing Requirement provision in reference to the Deposit provision demonstrates that the validity of the Loan Commitment is independent from conditions required for the funding of the loan. Specifically, the Deposit provision provides: In the event the Loan does not close by the Expiration Date (except solely through [the] wrongful failure of [Jefferson-Pilot] to fund [the Loan] . . .), the Deposit will be forfeited as liquidated damages. . . . Pl.'s App. at 36 (emphasis added). The emphasized portion of the Deposit provision illustrates that the parties contemplated certain situations where Jefferson-Pilot could "rightfully fail" to fund the loan, yet maintain the Deposit as liquidated damages. The situations contemplated refer back to Section III of the Loan Commitment, where the parties identified certain conditions precedent for the funding of the Loan, including the Leasing Requirement. See Pl.'s App. at 33-35. Section III clearly and unambiguously provides: "The following requirements must be met by [Ladco] to the satisfaction of [Jefferson-Pilot] and are conditions precedent to the funding of the Loan." Id. at 33. Additionally, if the Termination clause of the Loan Commitment is read in reference to the Leasing Requirement, it is again evident that the Leasing Requirement is not a condition precedent to the Loan Commitment. The Termination clause provides, in part: "This [Loan] Commitment shall be deemed terminated at [Jefferson-Pilot's] option in any of the following events . . . (ix) the terms and conditions of this Commitment are not satisfied." Pl.'s App. at 36 (emphasis added). If the Leasing Requirement is, indeed, a condition precedent to the Loan Commitment, then the Termination clause would be unnecessary, as the Loan Commitment would automatically be deemed invalid upon Ladco's failure to satisfy the Leasing Requirement. Thus, to conclude that the "conditions precedent" found in Section III apply to the validity of the Loan Commitment would result in an unreasonable interpretation of the contract as a whole. C & H P'ship v. Shaw Indus. Group, Inc., No. 1:04CV00323, 2006 WL 1229001, *6, 2006 U.S. Dist. LEXIS 27231, at *19 (M.D.N.C. May 4, 2006) (explaining "contracts will be construed as a whole with each part being given an effect, but also being considered with reference to the other provisions of the contract"). Furthermore, as noted above, adopting Ladco's interpretation of the Leasing Requirement as a condition precedent to the Loan Commitment would deem various terms of the Loan. Commitment useless. See Gaston County Dyeing Mach. Co., 524 S.E.2d at 563 ("The various terms of the [contract] are to be harmoniously construed, and if possible, every word and every provision is to be given effect."). Here, the Court concludes that based on the plain language of the Loan Commitment and construing the Loan Commitment as a whole, the Leasing Requirement is not a condition precedent to the Loan Commitment. Therefore, when Ladco was unable to satisfy the Leasing Requirement pursuant to the terms of the Loan Commitment, Ladco was in breach of the contract. B. Liquidated Damages Because the Court finds that Ladco was in breach of the Loan Commitment, the Court must determine whether the forfeiture of Ladco's $377,700 deposit is a liquidated damage or a penalty. Liquidated damages are "a sum which a party to a contract agrees to pay or deposit which he agrees to forfeit, if he breaks some promise . . . arrived at by a good-faith effort to estimate in advance the actual damage which would probably ensue *949 from the breach. . . ." Knutton v. Cofield, 273 N.C. 355, 160 S.E.2d 29, 34 (1968) (quoting McCormick, Damages § 146 (1935)). A penalty, on the other hand, is "a sum which a party similarly agrees to pay or forfeit . . . but which is fixed, not as a pre-estimate or probable actual damages, but as a punishment, the threat of which is designed to prevent the breach. . . ." Id. (quoting McCormick, Damages § 146, quoted with approval in Kinston v. Suddreth, 266 N.C. 618, 146 S.E.2d 660, 662 (1966)). In North Carolina, a liquidated damage provision is enforceable when: (1) damages are speculative or difficult to ascertain, and (2) the amount stipulated is a reasonable estimate of probable damages, or the amount stipulated is reasonably proportionate to the damages actually caused by the breach. Id. Ladco, as the party seeking to invalidate the liquidated damages provision, has the burden of establishing that the provision is an unenforceable penalty. Seven Seventeen HB Charlotte Corp. v. Shrine Bowl of the Carolinas, Inc., 641 S.E.2d 711, 714 (N.C.Ct. App.2007). Here, Ladco argues that the damages were not difficult to ascertain, and that the amount stipulated is an unreasonable estimate of probable damages, or that the amount stipulated is not reasonably proportionate to the damages actually caused by the breach.[7] Jefferson — Pilot, on the other hand, argues that the damages were difficult to ascertain, and the amount stipulated is a reasonable estimate of probable damages. I. Were damages speculative or difficult to ascertain? Ladco states that the damages were not difficult to ascertain at the time the Loan Commitment was signed. Specifically, Ladco contends that the potential damages consisted of Jefferson-Pilot's cost of processing the loan, e.g., payment for the time, effort, and, expense of Jefferson — Pilot's employees in reviewing the property, preparing documents, and any costs arising from the reservation of funds necessary for the closing of the Loan. The question of "whether damages are difficult of ascertainment is to be determined by consideration of the status of the parties at time they enter into the contract, and not at the time of the breach." Green Park Inn, Inc. v. Moore, 149 N.C.App. 531, 562 S.E.2d 53, 58 (2002). At the time the parties entered into the Loan Commitment, Ladco expressly "agreed that an actual determination of [Jefferson-Pilot's] expenses is not feasible. . . ." Pl.'s App. at 36. Now, post-breach, Ladco contends that the damages were not difficult to ascertain. Ladco states that the methodology to determine Jefferson-Pilot's damages is "straightforward." Pl.'s Resistance Br. at 7. Ladco points to its expert's method, which was used to estimate the damages Jefferson-Pilot allegedly suffered as a result of the breach. This, Ladco argues, demonstrates that the damages were not speculative or difficult to ascertain at the time the parties entered into the Loan Commitment. The methodology, apparently, even takes into account the "fluctuations in interest rates" which may affect *950 Jefferson-Pilot's damages. Id. The Court, then, is left to wonder why Ladco did not provide this "straightforward" information at the time the parties entered into the Loan Commitment. Not only did Ladco fail to share this "straightforward" information with Jefferson-Pilot, but Ladco agreed to contract language that was directly contrary to Ladco's knowledge — Ladco claimed to understand and agreed that an actual determination of Jefferson-Pilot's damages in the event of a breach was not feasible at the time the parties entered into the contract. See Pl.'s App. at 36. Given Ladco's, option to extend the Loan Commitment expiration date, the uncertainty in the fluctuating interest rates, and the unambiguous language of that portion of the Deposit provision, the Court concludes the potential damages were speculative and difficult to ascertain at the time the parties entered into the Loan Commitment. See Olive v. Williams, 42 N.C.App. 380, 257 S.E.2d 90, 93 (979) ("Clear and express language of the contract controls its meaning, and neither party may contend for an interpretation at variance with the language on the ground that the writing did not fully express his intent."). 2. Was the Deposit a reasonable estimate of the probable damages? The basic test of the reasonableness of an agreement liquidating damages is whether the stipulated amount or amount produced by the stipulated formula represents a reasonable forecast of the probable loss." Coastal Leasing Corp. v. T-Bar S Corp., 128 N.C.App. 379, 496 S.E.2d 795, 798 (1998) (citation omitted). In making such a determination, however, the Court should keep in mind that the clause was "negotiated by the parties, who are familiar with the circumstances and practices with respect to the type of transaction involved, and the clause carries with it a consensual apportionment of the risks of the agreement that a court should be slow to overturn." Id. at 798 (citation omitted). The Deposit provision, in its entirety, is noted above in the Facts section, however, for case of reference, the Court refers to the applicable portion of the Deposit provision, which states: Upon acceptance of this [Loan] Commitment, [Ladco] shall pay [Jefferson-Pilot] a deposit (the "Deposit") in the amount of $377,700.00[8]. . . . In the event that the Loan does not close by the Expiration Date . . ., the Deposit will be forfeited as liquidated damages and becomes the sole property of [Jefferson-Pilot] and will be considered earned in payment for the time, effort, and expenses of [Jefferson-Pilot's] employees expended in the review and study of the Property and the documents pertaining to the proposed Loan, and the reservation by [Jefferson-Pilot] of funds necessary for the Closing of the Loan. It is understood and agreed that an actual determination of [Jefferson-Pilot's] expenses is not feasible and that the Deposit represents a reasonable estimate of such costs and expenses. Pl.'s App. at 36 (emphasis added). Ladco argues that the Deposit is not a reasonable estimate of the actual damages suffered by Jefferson-Pilot as a result of the breach because "even though [interest] rates move[] down, it is still a rarity that a Jefferson-Pilot loan does not close — over 99.5% of all loans with a negotiated commitment letter close." Pl.'s Br. in Support for Mot. for Summ. J. at 10. The Court is unclear why this statistic is relevant to the analysis of whether the Deposit is a reasonable estimate of Jefferson-Pilot's probable damages. It appears that Ladco is implying that because the three percent deposit is only forfeited in .5% of Jefferson-Pilot's loan commitment transactions, *951 the three percent deposit is not reasonable.[9] The fact that loan commitments are rarely breached, making forfeitures a rare occurrence, does not make the forfeiture clause de facto unreasonable. Regardless, Ladco continues by stating that Jefferson-Pilot "testified [that] it cannot determine U.S. Treasury rates with any certainty and [such an attempt] would be a random `walk in the woods.'" Id. This testimony, Ladco argues, shows that Jefferson-Pilot acknowledges that the Deposit is not a reasonable estimate of probable damages because, by Jefferson-Pilot's own admission, damages are, in fact, impossible to determine.[10]Id. Following Ladco's logic, any time there is a liquidated damages clause, the estimate would be deemed unreasonable because the probable damages are difficult or "impossible" to determine with any type of probability. The liquidated damages provision is just that, a reasonable estimate of' probable damages because the probable damages are speculative. In this instance, because the probable damages were difficult to determine at the time of entering into the Loan Commitment, both parties agreed that three percent of the total loan amount would be a reasonable estimate of the probable damages. See Pl.'s App. at 36 ("It is understood and agreed that . . . the Deposit represents a reasonable estimate of such costs and expenses."); see also Fidelity & Cas. Co. of N.Y. v. Nello L. Teer Co., 250 N.C. 547, 109 S.E.2d 171, 173 (1959) (stating that in construing a contract, neither party can obtain an interpretation contrary to the express language of the contract); Burden Pallet Co., Inc. v. Ryder Truck Rental, Inc., 49 N.C.App. 286, 271 S.E.2d 96, 97 (1980) (stating that the object of a signature to a contract is, to show assent). The parties in this case, moreover, are sophisticated business entities. Ladco argues that unequal bargaining power existed between Jefferson-Pilot and itself, pointing out the financial disparity between Jefferson-Pilot and Ladco. Although the parties may have disparate financial positions — indeed, one is the lender of funds, while one is the borrower of funds — the parties, nonetheless, had equal bargaining power in this case. For example, Ladco retained the services of a mortgage broker to access permanent financing for Mercy North, received three offers from different lenders — one of which offered a lower deposit requirement than Jefferson-Pilot, determined that Jefferson-Pilot offered the most "attractive" package, negotiated several provisions contained in the Loan Commitment, including the Deposit clause, retained counsel from a prominent law firm to review the Loan Commitment, and entered into the Loan Commitment. See Pl.'s Am. Statement of Material Facts ¶¶ 5, 6; Def.'s Statement of Material Facts ¶¶ 9, 11; Def.'s Additional Statement of Material Facts ¶¶ 3, 5; Pl.'s Response to Def.'s Statement of Additional Material Facts ¶ 5. Thus, considering the nature of the contract, the intention of the parties as expressed in the contract, the contract language, the sophistication of the parties, *952 the fact that "the parties are better than anyone to determine a reasonable compensation for a breach," and the fact that the probable damages were difficult to ascertain, the Court concludes that the liquidated damages stipulated were a reasonable estimate of the probable damages and not a penalty.[11]See E. Carolina Internal Med., P.A. v. Faidas, 149 N.C.App. 940, 564 S.E.2d 53, 57 (2002); see also Coastal Leasing Corp., 496 S.E.2d at 798 (stating that "no court should strike down a reasonable liquidated damage agreement based on foresight that has proved on hindsight to have contained an inaccurate estimate of the probable loss"). Accordingly, Jefferson-Pilot's Motion for Summary Judgment is GRANTED, and Ladco's Motion for Summary Judgment is DENIED. See Mosely v. WAM, Inc., 167 N.C.App. 594, 606 S.E.2d 140, 142 (2004) ("Under the general rules of contract construction, where an agreement is clear and unambiguous, no genuine issue of material facts exists and summary judgment is appropriate."). IV. CONCLUSION For the reasons stated above, Jefferson-Pilot's Motion for Summary Judgment (Clerk's No. 31) is GRANTED, and Ladco's Motion for Summary Judgment (Clerk's No. 30) is DENIED. Accordingly, all subsequent motions filed by the parties (Clerk's Nos. 42, 43, 46, 47, 48, 57, and 60) are DENIED as moot. IT IS SO ORDERED. NOTES [1] Unless otherwise noted, the facts stated herein are uncontested. [2] Jefferson-Pilot does business nationwide and employs approximately 1,200 employees at its Greensboro headquarters. See Pl.'s Am. Statement of Material Facts ¶ 7. [3] The Deposit clause will be discussed further infra. [4] Jefferson-Pilot contends that Venture Mortgage, on behalf of Ladco, negotiated an agreement with Jefferson-Pilot, whereby a portion of the deposit could be paid in the form of a letter of credit rather than cash. Def.'s Br. in Support of Mot. for Summ. J. at 4. [5] The Loan Commitment was initially scheduled to expire on July 29, 2005. Def.'s App. at 1. The Loan Commitment, however, was amended to provide Lade) with the option to extend the expiration of the Loan Commitment for two consecutive thirty-day periods, to August 29, 2005, and to September 28, 2005, with interest increasing with the exercise of each extension, to 5.73% and 5.80% respectively. Id. at 144. [6] The parties agree that the Loan Commitment is governed by the laws of North Carolina. Def.'s Statement of Material Facts ¶ 7. [7] In North Carolina, to demonstrate that the amount stipulated is a liquidated damage, the party need not demonstrate that the amount stipulated was both a reasonable estimate of probable damages and that the amount stipulated is reasonably proportionate to the actual damages. See Ledbetter Bros., Inc. v. N.C. Dep't of Transp., 68 N.C.App. 97, 314 S.E.2d 761, 767 (1984) (stating that the party must show that the stipulated amount is "either a reasonable estimate of the damages . . . or is reasonably proportionate to the [actual] damages"). Because Jefferson-Pilot argues the reasonable estimate element, the Court will only discuss the reasonable estimate. [8] The Deposit, $377,700, is three percent (3%) of the total loan amount, $12,590,000. [9] It appears that Ladco's argument presumes that Jefferson-Pilot always utilizes a three percent liquidated damages clause in their loan commitments. [10] The Court notes that in an effort to address the first element of the Knutton test, Ladco argues that Jefferson-Pilot's probable damages were not difficult to ascertain and Jefferson-Pilot's arguments to the contrary are incorrect. Yet, Ladco points to the same Jefferson-Pilot arguments, that probable damages were difficult to ascertain, in an effort to address the second element of the Knutton test. Ladco's attempt to directly discredit JeffersonPilot's arguments to address the first Knutton element, while using the same Jefferson-Pilot arguments to address the second Knutton element, undermines Ladco's argument. [11] Ladco also argues that awarding the Deposit as liquidated damages would cause Jefferson-Pilot to gain a windfall. The general rule in North Carolina, however, is that "the amount stipulated in a contract as liquidated damages for a breach, if not a penalty, may be recovered in the event of a breach even though no actual damages are suffered." Knutton, 160 S.E.2d at 35. Accordingly, Ladco's arguments regarding Jefferson-Pilot's alleged "windfall" is not relevant to whether the Deposit served as a liquidated damage or a penalty.

NUMBER 13-13-00241-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ____________________________________________________________ BETTY ANN VALDEZ SALAZAR AND ALL OTHER OCCUPANTS, Appellants, v. SYLVIA H. GARCIA, Appellee. ____________________________________________________________ On appeal from the County Court of Willacy County, Texas. ____________________________________________________________ MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Perkes Memorandum Opinion Per Curiam Appellants, Betty Ann Valdez Salazar, and all other occupants, appealed a judgment entered by the County Court of Willacy County, Texas. On April 30, 2013, the Clerk of this Court notified appellant that the filing fee was due within ten days from the date of the notice. The filing fee was not paid and on May 23, 2013, the Clerk of this Court notified appellant, in accordance with Texas Rule of Appellate Procedure 42.3(c), that we would dismiss this appeal unless the $175.00 filing fee was paid. See TEX. R. APP. P. 42.3(c). Appellant has not responded to the notices from the Clerk or paid the $175.00 filing fee. See TEX. R. APP. P. 5, 12.1(b). The Court, having considered the documents on file and appellant’s failure to pay the filing fee, is of the opinion that the appeal should be dismissed. See id. 42.3(b),(c). Accordingly, the appeal is DISMISSED for want of prosecution. PER CURIAM Delivered and filed the 20th day of June, 2013. 2 

501 F.3d 1197 (2007) UNITED STATES of America, Plaintiff-Appellee, v. William SCHAEFER, Defendant-Appellant. No. 06-3080. United States Court of Appeals, Tenth Circuit. September 5, 2007. Howard A. Pincus, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with him on the briefs), Denver, CO, for Defendant-Appellant. Kim I. Martin, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with her on the brief), Kansas City, KS, for Plaintiff-Appellee. Before TYMKOVICH, EBEL, and HOLMES, Circuit Judges. HOLMES, Circuit Judge. In this criminal appeal, Defendant-Appellant William Schaefer challenges the government's evidence as insufficient to support his convictions under 18 U.S.C. §§ 2252(a)(2) and (a)(4)(B), for receipt and possession of images involving the sexual exploitation of minors. In particular, Mr. Schaefer contends the government failed to offer evidence to show that any single visual image he received or possessed traveled across state lines. Mr. Schaefer *1198 seeks a reversal and acquittal on both counts. Exercising jurisdiction under 28 U.S.C. § 1291, we hold that the government failed to offer sufficient evidence to establish the requisite jurisdictional nexus of a movement across state lines (i.e., a movement in interstate commerce). Specifically, we conclude that the government's evidence concerning Mr. Schaefer's use of the Internet, standing alone, was not sufficient to establish that the child-pornography images at issue moved across state lines. Accordingly, we REVERSE Mr. Schaefer's convictions and REMAND to the district court for entry of a judgment of acquittal. I. BACKGROUND The government charged Mr. Schaefer in the District of Kansas with one count of receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).[1] These charges stem from a lead the Kansas City Office of Immigration and Customs Enforcement (ICE) received from the ICE national headquarters. According to the information, Mr. Schaefer used his computer and his credit cards to subscribe to websites containing images of child pornography. These sites provide paying members electronic access to pornographic images. Following the tip from ICE, authorities executed a search warrant at Mr. Schaefer's home. Agents seized a desktop computer, CD-Rom disks ("CDs"), and various documents. Forensic testing on the computer revealed that Mr. Schaefer purchased at least five subscriptions to child pornography websites. The testing also revealed images of child pornography in the computer's "unallocated clusters"[2] and on the temporary "Internet cache files."[3] The parties stipulated that one CD confiscated contained eight images of child pornography and the second contained three pornographic images. Authorities interviewed Mr. Schaefer after the search of his home, and he admitted to seeking out images of child pornography on the Internet. The district court held a bench trial, after Mr. Schaefer waived his right to a jury trial. Other than Mr. Schaefer's *1199 home state of Kansas, the evidence at trial referenced only three states — New Jersey, Florida, and Washington.[4] However, none of these geographical references concerned the receipt of the images, the CDs possessed, or the actual images found on the CDs and the computer. In addition, an investigating agent testified that he had no evidence Mr. Schaefer downloaded images via computer and placed them on the CDs found in his home. No evidence at trial explained where Mr. Schaefer obtained the visual depictions found on the CDs or who placed the images on the CDs. Moreover, no evidence indicated where the websites Mr. Schaefer accessed were based, where the websites' servers were located, or where Mr. Schaefer's Internet provider's server was housed. Focusing primarily on the knowledge component of §§ 2252(a)(2) and (a)(4)(B), however, the district court found Mr. Schaefer guilty on both counts. Specifically, with respect to the two counts, the district court found the evidence established beyond a reasonable doubt that Mr. Schaefer both knowingly "possessed" and "received" images of child pornography. The court did not fully elaborate in its ruling as to how the government satisfied the jurisdictional prong of §§ 2252(a)(2) and (a)(4)(B) — that the "visual depiction had been mailed, shipped, and transported in interstate or foreign commerce by computer or other means." See R. vol. I., Doc. 39, District Court Memorandum and Order, at 5-6, 8-10 (Sept. 12, 2006). Important to this appeal, the district court based the possession conviction solely on Mr. Schaefer's possession of the pornographic images on the two CDs, and not on his possession of the images found on the Internet cache files or in the unallocated clusters.[5] The district court sentenced Mr. Schaefer to 70 months' imprisonment on count 1, to run concurrently with a 70-month sentence for count 2. The court also issued concurrent terms of three years' supervised release. Mr. Schaefer filed this timely appeal. II. DISCUSSION Mr. Schaefer maintains that we must reverse his conviction for possession and receipt of child pornography because the government produced insufficient evidence on the interstate nexus requirement of §§ 2252(a)(2) (receipt) and (a)(4)(B) (possession). According to Mr. Schaefer, the complete absence of proof at trial that the images he possessed and received traveled across state lines requires an acquittal, as the jurisdictional nexus is an essential element of the statute. Ordinarily, we construe a challenge to the sufficiency of the evidence as a question of law reviewed de novo. United States v. Chavis, 461 F.3d 1201, 1207 (10th Cir.2006), cert. denied, ___ U.S. ___, 127 *1200 S.Ct. 2062, 167 L.Ed.2d 769 (2007). We view the evidence in the light most favorable to the government, United States v. Triana, 477 F.3d 1189, 1194 (10th Cir. 2007), cert. denied, ___ U.S. ___, 127 S.Ct. 2928, 168 L.Ed.2d 257 (2007), "affirming the district court unless no [reasonable] jury, when presented with the evidence introduced at trial together with the reasonable inferences therefrom, could find the defendant guilty beyond a reasonable doubt." United States v. Kimler, 335 F.3d 1132, 1140 (10th Cir.2003) (alteration added) (citing United States v. Campos, 221 F.3d 1143, 1151 (10th Cir.2000)). In this case, however, Mr. Schaefer failed to raise an objection, so our review is for plain error. See United States v. Lawrence, 405 F.3d 888, 900 n. 7 (10th Cir. 2005), cert. denied, 546 U.S. 955, 126 S.Ct. 468, 163 L.Ed.2d 355 (2005). We recently reiterated that a "forfeited claim of insufficient evidence must be reviewed under the plain-error standard."[6]United States v. Goode, 483 F.3d 676, 681 n. 1 (10th Cir. 2007) (emphasis added). A. Sufficiency of the Evidence Mr. Schaefer does not challenge the district court's finding on either count with respect to the "knowing" elements. Our review concerns only whether the evidence at trial sufficiently satisfied the jurisdictional nexus necessary to support a conviction under §§ 2252(a)(2) and (a)(4)(B). Because the sections contain coterminous jurisdictional requirements, we focus initially on the common conduct required to secure a conviction under both the receipt and possession counts. 1. Jurisdictional Nexus Each section's jurisdictional provision requires the government to establish that in committing the offense a visual image "has been mailed, or has been shipped or transported in interstate or foreign commerce . . . by any means including by computer." See 18 U.S.C. §§ 2252(a)(2) and (a)(4)(B). Ultimately, the decision to uphold or overturn Mr. Schaefer's convictions turns on whether an Internet transmission, standing alone, satisfies the interstate commerce requirement of the statute.[7] Mr. Schaefer asserts that § 2252(a)'s jurisdictional provisions requires movement across state lines, and it is not enough to assume that an Internet communication *1201 necessarily traveled across state lines in interstate commerce. We agree. We hold that the government did not present sufficient evidence to support the jurisdictional nexus of the § 2252(a) provisions at issue. They require a movement between states. The government did not present evidence of such movement; instead, the government only showed that Mr. Schaefer used the Internet. We recognize in many, if not most, situations the use of the Internet will involve the movement of communications or materials between states.[8] But this fact does not suspend the need for evidence of this interstate movement. The government offered insufficient proof of interstate movement in this case. a. Statutory Analysis In reaching this conclusion, "we begin . . . with the language of the statute." United States v. Wilson, 182 F.3d 737, 740 (10th Cir.1999) (internal quotation marks omitted) (quoting Bailey v. United States, 516 U.S. 137, 144, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995)). The plain language of §§ 2252(a)(2) and (a)(4)(B) speaks of movement "in commerce," and "giving the words used their ordinary meaning" this signifies a movement between states. United States v. Hunt, 456 F.3d 1255, 1264-65 (10th Cir.2006) (internal quotation marks and citations omitted) (quoting Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990)). We do not read § 2252(a) as contemplating that the mere connection to the Internet would provide the interstate movement required by the statute. After establishing a computer or Internet connection as the method of transport, the government must still prove that the Internet transmission also moved the images across state lines. For example, by comparison, we cannot find any precedent supporting the notion that showing a defendant "shipped" a proscribed image, without more, satisfies the statutory requirement. The government must couple such evidence with proof the defendant shipped the image across state lines (i.e., in interstate commerce). See, e.g., United States v. Schatt, No. 99-6317, 2000 WL 358460, * 2 (10th Cir.2000) (unpublished) (finding the interstate nexus satisfied when videotapes shipped from Louisiana to Oklahoma). It is apparent that Congress elected not to reach all conduct it could have regulated under § 2252(a). Congress's use of the "in commerce" language, as opposed to phrasing such as "affecting commerce" or a "facility of interstate commerce," signals its decision to limit federal jurisdiction and require actual movement between states to satisfy the interstate nexus. Compare Russell v. United States, 471 U.S. 858, 859, 105 S.Ct. 2455, 85 L.Ed.2d 829 (1985) (noting *1202 term "affecting interstate or foreign commerce" conveys Congress's intent to exert full Commerce Clause power), with Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115-16, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001) (noting "in commerce" language limits Congress's reach). The language of 18 U.S.C. § 1343 (the wire fraud statute), which uses "in commerce" language very similar to that found in § 2252(a), supports this view. Section 1343's "in commerce" terminology has been repeatedly held to require that communications actually cross state lines to support a conviction. See United States v. Cardall, 885 F.2d 656, 675-76 (10th Cir. 1989) (discussing how "fraud-tainted funds" traveled in interstate commerce as required by the wire fraud statute); accord United States v. Davila, 592 F.2d 1261, 1263-64 (5th Cir.1979) (discussing the type of interstate activity required under wire fraud statute); Center Cadillac, Inc. v. Bank Leumi Trust Co. of N.Y., 808 F.Supp. 213, 227 (S.D.N.Y.1992) (noting the wire fraud statute requires the communication cross state lines), aff'd, 99 F.3d 401 (2d Cir.1995) (unpublished opinion). We therefore proceed under the view that Congress made a purposeful decision not to exercise its full Commerce Clause power in § 2252(a). See generally Scarborough v. United States, 431 U.S. 563, 571, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977) ("As we have previously observed, Congress is aware of the distinction between legislation limited to activities `in commerce' and an assertion of its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce.") (certain internal quotation marks omitted) (quoting United States v. Am. Bldg. Maint. Indus., 422 U.S. 271, 280, 95 S.Ct. 2150, 45 L.Ed.2d 177 (1975)). Under this framework, the plain terms of § 2252(a) convey that Congress intended to punish only those who moved images or "materials" across state lines (i.e., in interstate commerce). See, e.g., 18 U.S.C. § 2252(a)(2). In 1988, Congress amended § 2252(a) to add the phrase "including by computer." We do not construe this amendment as indicating that Congress intended for use of a computer, without more, to satisfy the statute's jurisdictional requirements. Congress simply wanted to be "doubly sure" we recognized that the statute contemplates more than traditional methods of sending and receiving images. Cf. United States v. Alpers, 338 U.S. 680, 684, 70 S.Ct. 352, 94 L.Ed. 457 (1950) (noting in context of obscenity statute that Congress inserted additional language to make clear the law reached what, at the time, was a growing motion picture industry). The phrase "including by computer" specifies a method of interstate movement; the government must still establish that any computer-related movement crossed state lines. Accordingly, on these facts, the government was required to prove that any Internet transmissions containing child pornography that moved to or from Mr. Schaefer's computer crossed state lines. The government failed to do so. b. Case Law The government maintains that the evidence at trial met the jurisdictional element, asserting that evidence showing that the visual images "came from the [I]nternet suggests an origin outside [of Kansas]." Aple. Br. at 9. However, we discern no support in our case law for the proposition that under § 2252(a) the government need not prove the movement of the proscribed items across state lines. See, e.g., Kimler, 335 F.3d at 1135 (establishing that images traveled from Mr. Kimler's home computer in Kansas to his internet company's server in Missouri and then on to email company's server in California); *1203 Wilson, 182 F.3d at 744 & n. 4 (discussing bulletin board server located in California and Mr. Wilson's computer located in Colorado, so data "traveled in interstate commerce . . . via telephone line"); United States v. Simpson, 152 F.3d 1241, 1245 (10th Cir.1998) (offering evidence that Mr. Simpson downloaded visual images via the Internet from a website in Boston onto his computer in Oklahoma). Cf. United States v. Kammersell, 196 F.3d 1137, 1138-39 (10th Cir.1999) (finding jurisdictional element of 18 U.S.C. § 875(c) satisfied when AOL instant message traveled from sender in Utah to AOL server in Virginia and back to recipient in Utah). The case law in our circuit that the government relies upon does not advance its cause. See United States v. Bass, 411 F.3d 1198, 1202 (10th Cir.2005), cert. denied, 546 U.S. 1125, 126 S.Ct. 1106, 163 L.Ed.2d 917 (2006); Kimler, 335 F.3d at 1139, 1140 n. 8. The holdings in Kimler and Bass are predicated on challenges distinct from the jurisdictional challenge presented here, and neither holding reaches as far as the government asserts.[9] In Kimler, Mr. Kimler did not contest the government's evidence that every transmission from and to his computer "necessarily" traveled in interstate commerce via telephone lines or that he received images sent via the Internet "across state lines." Kimler, 335 F.3d at 1138. Moreover, in Kimler, sufficient evidence existed to demonstrate that the proscribed images actually crossed state lines by virtue of the Internet. Id. (showing images traveled from "Hotmail" server in California through Missouri to Mr. Kimler's home in Kansas). As for Bass, our holding did not turn on the evidence concerning the jurisdictional component of the statute, which we review here. Instead, Bass involved the statute's "knowing possession" element. See Bass, 411 F.3d at 1201-02. In answering the question whether a defendant's use of the Internet, without more, is sufficient proof of § 2252(a)'s jurisdictional nexus, we have not been able to draw upon a wealth of authority from other courts of appeals. Some circuits, however, have addressed the question or related ones. We recognize that, at least upon cursory inspection, this limited universe *1204 of circuit authority appears to uniformly reflect the view that Internet use is sufficient proof. See United States v. MacEwan, 445 F.3d 237, 244 (3d Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 208, 166 L.Ed.2d 144 (2006) (adopting a mode of analysis, under 18 U.S.C. § 2252A, that directly equates Internet use with interstate commerce); United States v. Carroll, 105 F.3d 740, 742 (1st Cir.1997) (stating that transmission of photographs via the Internet is "tantamount to" moving them through interstate commerce for purposes of 18 U.S.C. § 2251(a)). Cf. United States v. Runyan, 290 F.3d 223, 242 (5th Cir. 2002) (assuming without discussion that use of the Internet may be equated with a movement in interstate commerce and, as to prosecution under related child-pornography statute, 18 U.S.C. § 2252A, holding that "the Government must make a specific connection between the images introduced at trial and the Internet to provide the requisite jurisdictional nexus"). However, the true picture is more complicated. For example, the First Circuit's decision in Carroll actually offers little support for the proposition that Internet use, standing alone, is sufficient to establish the jurisdictional element of § 2252. Carroll is fact-dependent and distinguishable. The government prosecuted Mr. Carroll under another child pornography statute, 18 U.S.C. § 2251(a), which prohibits inter alia (a) persuading a minor to engage in sexually-explicit conduct, (b) for the purpose of producing a visual depiction of that conduct, and (c) with the knowledge or reason to know that the depiction will be transported in interstate commerce. See Carroll, 105 F.3d at 741-42; 18 U.S.C. § 2251(a). The government introduced evidence pertinent to the jurisdictional requirements of that statute — specifically, evidence that Mr. Carroll had the intent to move the images across state lines. Id. at 742. It showed that Mr. Carroll planned to travel to Massachusetts with the pornographic photographs that he had taken in New Hampshire of the minor victim; once in Massachusetts, his objective was to disseminate the photographs via the Internet by means of his computer. Mr. Carroll reportedly planned to use the photographs to start an Internet dating service. Id. at 743. In this factual context, the court observed that "[t]ransmission of photographs by means of the Internet is tantamount to moving photographs across state lines and thus constitutes transportation in interstate commerce." Carroll, 105 F.3d at 742. Giving the quoted language its most reasonable interpretation, the court was simply acknowledging that, given Mr. Carroll's willingness to move the photographs across state lines, his use of an instrumentality that was unquestionably capable of accomplishing this task — the Internet — was "tantamount" to a movement across state lines. Significantly, the Carroll court never questioned that there in fact had to be an intention to move the photographs "across state lines" — as opposed to simply an intention to place them on the Internet. Accordingly, Carroll does not lend much support to the view that proof of Internet use, alone, is sufficient to establish the jurisdictional element of § 2252(a). Standing more directly for this proposition, however, is the Third Circuit's decision in MacEwan, with which we must respectfully disagree. The MacEwan approach runs counter to the plain terms of § 2252(a). There, the court held that, given the interstate character of the Internet, a connection to a website server or request for an image from a server via the Internet invariably involves data moving in interstate commerce. Id. Thus, it concluded that in order to establish the jurisdictional element of 18 U.S.C. § 2252A(a)(2)(B) — a child-pornography statute with jurisdictional language identical in material respects *1205 to that of § 2252(a) — the government need only prove that the defendant used the Internet in relation to the offense. Id. at 244. The MacEwan court, however, overlooked the limiting jurisdictional language that Congress employed, i.e., the "in commerce" language. In effect, it recast the jurisdictional requirement of the child-pornography statute into one that could be satisfied by use of an "interstate facility," and determined that the Internet was such a facility. Id. at 245 (referring to the Internet as "an instrumentality and channel of interstate commerce"). Consequently, it did not insist on proof that the particular child-pornography images crossed state lines, only proof that the defendant "downloaded those images from the Internet." Id. However, the term "interstate facility" (or similar terms) is noticeably absent from § 2252(a), as well as the statute directly at issue in MacEwan, § 2252A(a)(2)(B). Cf. 18 U.S.C. § 1958(a) (criminalizing the use of "any facility of interstate or foreign commerce" in the commission of a murder-for-hire). As noted, Congress could have used language in § 2252(a) that would have effected a more expansive exercise of its Commerce Clause powers than accomplished by the "in commerce" language; yet, it elected not to do so. In sum, our review concludes that under the plain terms of § 2252(a), and our precedent, there is no "Internet exception" to the statute's jurisdictional requirements. Simply stated, we decline to assume that Internet use automatically equates with a movement across state lines. With respect to such interstate movement, the government must introduce sufficient evidence to satisfy its burden of proof. 2. Evidentiary Sufficiency: Receipt and Possession Convictions Keeping in mind our holding that proof of use of the Internet, standing alone, does not satisfy the jurisdictional requirements of §§ 2252(a)(2) and (a)(4)(B), we now separately analyze the sufficiency of the government's evidence concerning Mr. Schaefer's receipt and possession convictions. These convictions cannot stand because the government failed to present sufficient evidence concerning the movement of the child-pornography images across state lines.[10] a. Receipt Conviction As to the receipt count, we agree with Mr. Schaefer that the government needed to prove the visual images he received on his computer via the Internet moved across state lines. Because the government provided no relevant evidence to meet this essential element, the conviction cannot stand. More specifically, unlike Kimler, Wilson, Simpson, or Kammersell, the government offered no evidence here on: (1) the server locations of the websites that Mr. Schaefer searched; or (2) the server location of Mr. Schaefer's Internet service provider. Nor did the government travel down any of the myriad other conceivable paths of proof to establish the movement of the pornographic images across state lines. Accordingly, we must conclude that insufficient evidence exists to support Mr. Schaefer's conviction under 18 U.S.C. § 2252(a)(2). *1206 b. Possession Conviction Similarly, the government's proof is insufficient regarding the possession count. The government points to several facts to support its position: first, the evidence that Mr. Schaefer visited Internet sites that sold child pornography, and downloaded child pornography to his computer; second, the evidence that the CDs found in his possession were technically capable of accepting downloaded materials (i.e., they were "rewritable"); and third, the CDs, among other things, contained foreign-language movie clips of child pornography that were embedded with Internet website addresses, and an image of a young girl, who presumably had her image on the Internet because she was familiar to law enforcement from other child pornography investigations. The government maintains that this evidence was sufficient to establish the interstate commerce element because it permitted a reasonable fact-finder to determine that the images of child pornography on the CDs were obtained from the Internet. For the reasons discussed above, however, the government's arguments are based upon a faulty legal premise: it was not enough for the government to prove that the child-pornography images on the CDs were obtained from the Internet. The government needed to prove that the images on the CDs moved between states. Even if we analyze the government's arguments under the correct legal framework, the government's proof was virtually non-existent on this point. In this connection, our Wilson decision is instructive. See Wilson, 182 F.3d at 744. Mr. Wilson was prosecuted under § 2252(a)(4)(B). A government agent testified at trial that some of the child-pornography images found on computer disks in Mr. Wilson's possession originated from a German magazine. We concluded that this testimony, standing alone, was insufficient to satisfy the statute's jurisdictional nexus. Id. We reasoned that the government must prove that the specific images ended up on the disks through a movement in interstate commerce. In this regard, we stated: [The government agent] offered no explanation . . . as to how those particular images found their way to the diskettes in defendant's possession. Nor did the prosecution otherwise attempt to outline the possible methods by which defendant could have obtained the files through interstate commerce (e.g., obtaining copies of the German magazines and scanning the images into his computer; downloading copies of the images from an out-of-state computer via the Internet . . . etc.). Id. (emphasis added). Likewise, even if we assume arguendo that the images appearing in the foreign-language movie clips and the image of the young girl originated outside of the State of Kansas (like the images from the German magazine in Wilson), the government offered no proof that the particular images on the CDs in question moved across state lines. In particular, the government offered no proof that Mr. Schaefer accessed the images through an interstate Internet connection and either downloaded them directly to the CDs or downloaded them to his computer and later transferred them to the CDs.[11] Accordingly, we must conclude that the government's jurisdictional proof regarding *1207 the possession count was insufficient to support Mr. Schaefer's conviction. B. Plain Error Standard We have concluded that the jurisdictional language of §§ 2252(a)(2) and (a)(4)(B) unambiguously requires the movement across state lines of the statutorily-proscribed items. Thus, the district court committed clear and obvious error in finding Mr. Schaefer guilty without evidence of such movement. See United States v. Ahidley, 486 F.3d 1184, 1193 (10th Cir.2007) ("focusing on the unambiguous language of the statute" in holding under plain-error review that "[d]espite the presence of contrary authority in other circuits" the district court's error in discerning the restitution statute's requirements was "error of an obvious nature"). In Goode, we affirmed that it will be the extraordinarily rare case where error that is predicated upon the insufficiency of the evidence will not adversely affect a defendant's substantial rights and seriously affect the fairness, integrity, or public reputation of judicial proceedings. See Goode, 483 F.3d at 681 n. 1 (discussing "the noncontroversial proposition that a conviction in the absence of sufficient evidence of guilt is plainly an error, clearly prejudiced the defendant, and almost always creates manifest injustice"). This is not such a rare case.[12] Consequently, we notice the jurisdictional errors in Mr. Schaefer's two child pornography convictions and conclude that those convictions cannot stand. III. CONCLUSION For the reasons noted above, we conclude that the government presented insufficient proof to establish the jurisdictional basis for Mr. Schaefer's convictions under 18 U.S.C. §§ 2252(a)(2) and (a)(4)(B). In particular, we hold that the government's evidence concerning Mr. Schaefer's use of the Internet, standing alone, was insufficient to satisfy the jurisdictional requirements of these statutes. Under plain-error review, we notice the resulting errors. Accordingly, we REVERSE the district court's criminal judgment and REMAND to the district court for the entry of an order of acquittal. TYMKOVICH, J., concurring. I concur in the opinion but write separately to make two points. The first is about the Internet. The development and growth of the Internet over the past fifteen years complicates the statutory analysis in this case. We all know now that virtually every transmission over the Internet (especially web site access) crosses state boundaries, and quite often international borders. See, e.g., T. Bonnett, Is ISP-Bound Traffic Local or Interstate?, 53 Fed. Comm. L.J. 239, 264-68 (March 2001). In this case, I have no doubt the images traveled across state and national borders. Having said that, the statute of conviction, 18 U.S.C. § 2252(a)(2) and (a)(4), requires evidence of such a transmission. The government asserts that the record contained such evidence, but, as the opinion demonstrates, it did not. Nor has the *1208 government asked us to take judicial notice of the ubiquitous interstate nature of the Internet. Given the architecture of the Internet, it is vanishingly remote that an image did not cross state lines. Another case may well be a candidate for judicial notice of this issue. My second point is about the evidence in this case. Typically, the evidence of the interstate element is readily presented by the prosecution, or can be gleaned from the record. Most Internet cases, for example, include testimony regarding the location of the servers accessed by defendant, or some other evidence that reveals the interstate character of the particular transmissions at issue. See, e.g., United States v. Wollet, 164 Fed.Appx. 672 (10th Cir.2006) (interstate movement of images could be inferred because Oklahoma resident used AOL as his Internet service provider and all AOL servers are located outside the state). This is not such a case. And for that reason, I must reluctantly conclude that the evidentiary failure constitutes plain error under our case law. NOTES [1] The statute reads in relevant part: (a) Any person who — . . . (2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce or through the mails, if — (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct; . . . (4) either — (B) knowingly possesses 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if — (i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (ii) such visual depiction is of such conduct. . . . [2] "Unallocated clusters" are hidden files on the computer hard drive usually not accessible to a user. See R. vol. I, Doc. 39, District Court Memorandum and Order, at 3 n. 1 (Sept. 12, 2006). [3] An "Internet cache" is a file that retains information about recently visited websites allowing the site to be loaded faster in the future. See R. vol. I, Doc. 39, supra, at 3 n. 2. [4] A website Mr. Schaefer visited used a third party billing company based in New Jersey and that company used a Florida-based company to coordinate its billing business. See R. vol. II, Exhibit 1. Microsoft, headquartered in Washington State, issued Mr. Schaefer's email address. Id. at 5. [5] The district court did not convict Mr. Schaefer for the images found in the Internet cache files or the unallocated clusters on his computer because the government offered no evidence showing Mr. Schaefer knew the computer contained the images, thus no evidence showed he exhibited control over the images. See R. vol. I, Doc 39, supra, at 6. Additionally, the court reasoned that, even if Mr. Schaefer could be said to have "possessed" the images found on the unallocated clusters at one time, he could not be convicted for this, because the government did not establish that his putative possession occurred during the time period charged in the indictment. Id.; see also United States v. Tucker, 305 F.3d 1193, 1204 (10th Cir.2002) (explaining the proof necessary to establish knowing possession). [6] The plain-error test requires the defendant demonstrate: (1) an error; (2) that is plain and obvious under established law; and (3) affects the defendant's substantial rights. See Goode, 483 F.3d at 681 (referencing the factors set forth in United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). If a defendant meets these conditions, a court may correct the error "if it seriously affects the fairness, integrity, or public reputation of judicial proceedings." See id. (internal quotation marks omitted). [7] We note that the government attempts to support the possession and receipt convictions by relying on precedent addressing Congress's authority to regulate purely intrastate activities, including child pornography. See, e.g., United States v. Jeronimo-Bautista, 425 F.3d 1266, 1269 (10th Cir.2005), cert. denied, 547 U.S. 1069, 126 S.Ct. 1771, 164 L.Ed.2d 516 (2006); see also Gonzales v. Raich, 545 U.S. 1, 17, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) (regulating intrastate production and possession of illegal drug). However, Mr. Schaefer does not challenge Congress's broad Commerce Clause powers or the constitutionality of the statute. Indeed, he accepts that Congress has the broad power to regulate purely intrastate activity, but this concession does not bear on our review of the sufficiency of the evidence for the jurisdictional requirement under §§ 2252(a)(2) and (a)(4)(B). Mr. Schaefer frames his challenge as "decidedly more modest," claiming that the government failed to prove an element of the crime, which in turn "renders his conviction infirm." See Aplt. Opening Br. at 22. Thus, Jeronimo-Bautista and Raich are inapposite as to Mr. Schaefer's conviction. [8] We reach this conclusion understanding the likely interstate and international architecture and operation of the world wide web. See, e.g., Reno v. ACLU, 521 U.S. 844, 849, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) ("The Internet is an international network of interconnected computers."). But we cannot assume this intuitive fact (i.e., a movement via the Internet of child-pornography images between states) on the record before us. Nor has the government asked us to take judicial notice of this fact under Federal Rule of Evidence 201. As to judicial notice, we recently declined to use the doctrine in a case involving computer technology. See United States v. Andrus, 483 F.3d 711, 721-722 (10th Cir. 2007). A judicially noticed fact is "one not subject to reasonable dispute in that it is either (1) generally known . . . or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b). Although judicial notice may be taken sua sponte, Fed.R.Evid. 201(c), it would be particularly inappropriate for the court to make broad assumptions about the Internet absent notice to and comment by the parties. Andrus, 483 F.3d at 721. [9] In addition, the government's reliance on our unpublished opinion in United States v. Wollet, 164 Fed.Appx. 672 (10th Cir.2006) is misplaced. Mr. Schaefer has attached to his Reply Brief portions of the appellate filings in the Wollet case, which we are permitted to notice. See, e.g., United States v. Ahidley, 486 F.3d 1184, 1192 n. 5 (10th Cir.2007). In Wollet, the government introduced evidence tending to establish that any communications that Mr. Wollet received or transmitted via the Internet moved across state lines. In particular, the government presented documentary and testimonial evidence establishing that Mr. Wollet used America Online (AOL) as his Internet provider for a computer that was located in Oklahoma and, significantly, it sponsored testimony of an AOL representative who averred that AOL routes all transmissions through the company's servers in Virginia. See Aplt. Reply Br., Attachment 2 at 6, 13 & Attachment 3 at 10-11. And, further, the government's evidence consisting in part of Mr. Wollet's admissions and his son's incriminating testimony confirmed that Mr. Wollet used that AOL Internet connection to download child pornography. Wollet, 164 Fed. Appx. at 674. It was in this specific factual context — where any Internet transmissions perforce moved across state lines — that we treated evidence of the downloading of images from the Internet as sufficient to establish the interstate-commerce jurisdictional component of § 2252(a). In this regard, we stated: "The jury could rationally have concluded Wollet downloaded the images from the Internet to the diskettes and thus, the images (the graphic files) traveled in interstate commerce." Id. In contrast, the government's evidence here did not establish a necessary movement of Mr. Schaefer's Internet communications across state lines. Accordingly, proof of Mr. Schaefer's use of the Internet, standing alone, will not suffice. [10] The government does not attempt to base an argument in support of Mr. Schaefer's convictions on the movement in interstate commerce of any "materials" used to produce the pornographic images. Nor did it advance this theory of prosecution at trial. Accordingly, we need not directly address the "materials" component of the statute in analyzing the sufficiency of the jurisdictional evidence to support Mr. Schaefer's convictions. [11] Indeed, the government offered no solid proof linking Mr. Schaefer's use of the Internet — whether involving an interstate connection or not — to the pornographic images on the CDs. For example, the government made no effort to show that the specific images stored on Mr. Schaefer's computer also appeared on the CDs. [12] Among other things, in Goode, there actually was evidence in the record to establish jurisdiction with regard to the charged offense. 483 F.3d at 682. In the child-pornography area, our relevant cases (including those relied upon by the government) also reflect that there was record evidence to establish the requisite jurisdictional nexus. See, e.g., Kimler, 335 F.3d at 1135; Wilson, 182 F.3d at 744 & n. 4; see also, supra, note 9 (discussing Wollet). In contrast, the government offered no proof here concerning the path the child-pornography images took before appearing on the two CDs (in particular, no proof that they moved between states).

753 S.W.2d 557 (1988) Debbe Augustine GOFF, Respondent, v. ST. LUKE'S HOSPITAL OF KANSAS CITY and T. Crouch, M.D., Appellants. No. 69604. Supreme Court of Missouri, En Banc. May 17, 1988. Rehearing Denied June 14, 1988. *558 B.W. Jacob, Jr., Robert C. Haldiman, Kansas City, for T. Crouch. Kevin E. Glynn, William J. DeBauche, Appellate Counsel, Kansas City, for St. Luke's Hosp. of Kansas City. Gordon W. Myerson, Kansas City, John Lewis, Springfield, for Debbe Goff. BLACKMAR, Judge. The plaintiff brought suit against St. Luke's Hospital of Kansas City and against Thomas T. Crouch, M.D., for the wrongful death of her husband, Gary Augustine. The jury returned a verdict against both defendants for $2,000,000. Neither defendant challenges the amount of the verdict, and neither asked for an apportionment of fault. The court of appeals reversed and remanded as to both defendants, for different reasons. We granted transfer and, taking the case as on initial appeal, affirm as to the hospital but reverse and remand as to the doctor. We state the facts that the jury could have found in support of the plaintiff's claim. Gary Augustine was 29 years old at the time of his death on July 21, 1980. He had *559 apparently enjoyed good health until sometime in 1979, when he lost his kidney function by reason of glomerulonephritis. His physician in Springfield initially prescribed a regimen of home dialysis, but then a kidney transplant was sought in the hope of a more durable solution. A cadaver kidney became available and on June 26, 1980 the transplant surgery was performed at St. Luke's, which is a designated kidney transplant center. The transplant was apparently successful, but the implanted kidney was rather quickly rejected and was removed on July 8, 1980 at St. Luke's. Gary remained at the hospital and, because he had no functioning kidney, resumed dialysis three times weekly. During the week beginning Monday, July 14, some problems appeared. There was a low grade fever and a decline in the hematocrit, which measures the percentage of red cells in a person's blood. The normal hematocrit reading is 45. A kidney patient usually has a lower hematocrit, but could adapt, if the reading does not become too low. Red cells are essential to carry oxygen from the lungs to the tissues and to maintain other important metabolic functions. A patient's hematocrit may decline either because of a loss of red cells or because the body is not manufacturing red cells. A decline is more significant in an anemic patient (one whose supply of red cells is already low) than in one in the normal range, because there is no reserve to fall back on. A hematocrit reading of 20 marks a critical point, recognized by the hospital's procedural manual, and is starred in hospital charts to call the abnormality to the attention of readers.[1] Gary's hematocrit was in the low twenties when he entered St. Luke's. This is not unusual for renal patients. Following the removal of the transplant it dropped to 19 and then, on July 14, to 18. The next test was taken on Saturday, July 19, yielding a reading of 16. The plaintiff's experts were of the opinion that the drop to 16 was a medically significant event which should have had the attention of a physician. They indicated that, at the very least, preparations should have been made to give blood over the weekend, or during the dialysis scheduled for Monday. Prior to dialysis, however, nothing was done and Gary's physician was not notified. On Monday another hematocrit was taken, before dialysis had begun, and the reading was 10. The drop from 16 to 10 was very significant. Dialysis began at 11:30 on July 21. Gary was seen during dialysis by Dr. Janardana Sharma, a nephrologist who shared responsibility with the defendant Crouch as his attending physician. Their detailed relationship is described more fully in Part I of this opinion. The time of Sharma's visit is not pinpointed but was during the early portion of the dialysis. He returned to his office across the street at 1:30 PM and did not again see Gary alive. When he was made aware of the hematocrit reading of 10, after his return to the office, Sharma issued orders to "type and cross LPPC's[2] today on dialysis" and, later to "give two units LPPC's when ready." The jury could reasonably have found this to be an order to give the blood while Gary remained on dialysis, when the mechanical procedures are easier and faster. Sharma's order did not indicate that there was any urgency, although he could have used conventional notations to call for immediate action.[3] Blood as ordered had arrived from the community blood center by 3:15 P.M., and was then available for cross matching to determine compatibility. At this time Gary was still on dialysis. While dialysis was in progress other disturbing symptoms appeared. Gary complained of back pain, which is often a symptom *560 of severe anemia. His blood pressure dropped to 80 over 40, an alarmingly low figure, and his pulse rate rose substantially, indicating that the body was attempting to compensate for the paucity of red cells. Saline solution was administered to raise the blood pressure and had some effect, but this also operated to further dilute the red cell component. The readings were reported to Dr. Sharma at a time not pinpointed in the record, and he may have directed that Gary be taken off dialysis. The dialysis, in any event, was terminated and Gary was returned to his room without having received the blood. The jury was not obliged to conclude that this return was at the direction of Dr. Sharma. Subsequent events need not be described in detail. A resident physician saw Gary outside his room at 4:40 PM and directed that the blood be administered STAT. Administration of the blood in Gary's room did not begin until 5:30 P.M. Five minutes later a "code blue" emergency was called, indicating a life-threatening situation. Despite efforts of several doctors, Gary died about two hours later. I. Dr. Crouch's Liability The case against Dr. Crouch is unusual in that there is no claim that he was negligent in any respect. The plaintiff seeks to hold him liable solely on account of his professional relationship with Dr. Sharma. Crouch does not challenge the jury's finding that Sharma was negligent. Crouch and Sharma are board certified nephrologists. The speciality of nephrology has to do with functions and diseases of the kidney. They were stockholders and employees of a professional corporation organized under Chapter 356, RSMo, and were the only nephrologists then affiliated with that professional corporation. They were also the only nephrologists then affiliated with the kidney transplant center at St. Luke's. Arrangements for Gary's care and treatment were made through the transplant center and not through the office of the professional corporation, which is across the street. Crouch and Sharma, however, were not employees of the hospital or of the transplant center. Their services are billed by their professional corporation. Crouch and Sharma were responsible for the medical aspects of the patient's problems, including monitoring of the kidney function following transplant surgery and, of course, for the resumption of dialysis following rejection and removal of the transplant. They are not surgeons. The surgery involved in the transplant and removal of the kidney was performed by a surgeon associated with the transplant center. The hospital records show Dr. Crouch as the admitting physician. The plaintiff testified as to her understanding that he was the nephrologist in charge of Gary's care and treatment, although their initial visit, long before the transplant, was with Dr. Sharma because Crouch was out of town. Sometimes Crouch would visit Gary during his hospital stay and sometimes Sharma would. There is no evidence that the professional corporation arrangement was discussed with Gary or with the plaintiff at any time, or that Gary considered that he had retained the services of the professional corporation. On Monday, July 14, 1980 Dr. Crouch left town on a vacation. After that time Dr. Sharma was the only nephrologist attending Gary. Crouch left no orders or directions for Dr. Sharma, who was in complete charge of the medical aspects of Gary's case so long as Crouch remained away. The case against Dr. Crouch was submitted by an instruction reading as follows:[4] Your verdict must be for plaintiff against defendant, Thomas T. Crouch, M.D., if you believe: First, Doctor Janardana Sharma was acting within the scope and course of his agency for defendant, Thomas T. Crouch, M.D., during Gary L. Augustine's admission *561 and treatment at St. Luke's Hospital of Kansas City, and Second, plaintiff was the spouse of Gary L. Augustine, and Third, either Doctor Janardana Sharma failed to timely order blood, or failed to see that blood was timely given, or failed to adequately monitor the lab reports of Gary Augustine's blood, and Fourth, Doctor Janardana Sharma, in any one or more of the respects submitted in paragraph Third was thereby negligent, and Fifth, such negligence directly caused or directly contributed to cause the death of Gary L. Augustine. "Scope and course of agency" was defined as follows:[5] Acts were within the "scope and course of agency" as that phrase is used in Instruction No. 10 if: 1. they were performed by Doctor Janardana Sharma to serve the interests of Thomas T. Crouch, M.D. according to an express or implied agreement with Thomas T. Crouch, M.D., and 2. Thomas T. Crouch, M.D. either controlled or had the right to control the physical conduct of Doctor Janardana Sharma. This agency submission is inappropriate under the evidence. There is no showing that Crouch "controlled or had the right to control" Sharma in the performance of his professional duties. The record, rather, showed that Crouch and Sharma shared responsibility for Gary's care and treatment. While Sharma was present and Crouch was not, Crouch could not give directions to Sharma and had no right of control. The submission on the basis of the two instructions just quoted, then, lacks evidentiary support and reversal is required. Crouch argues that the evidence demonstrates no legal theory for holding him liable for Sharma's negligence. He points to their status as employees of a professional corporation, suggesting that the corporation may be vicariously liable but that shareholders not participating in the negligent act are not. Section 356.150, RSMo 1978, which was in effect at the time of Gary's treatment,[6] reads as follows: This chapter shall not affect any law, duty, right or privilege arising out of or applicable to the relationship between a person rendering professional services and a person receiving those services, including, but not limited to, liability or privilege arising out of the professional services.... The plaintiff argues that Crouch is liable because he and Sharma were jointly involved in Gary's care and treatment, citing Baird v. National Health Foundation, 235 Mo.App. 594, 144 S.W.2d 850 (1940) and, particularly, Crump v. Piper, 425 S.W.2d 924, (Mo.1968). Numerous other cases involving the treatment of a patient by more than one physician are cited. The closest cases are those on which the elements of partnership or joint venture, which is a form of partnership, appear. A physician may be liable for the malpractice of his partner within the scope of the partnership's professional activity, even though not personally present or at fault.[7] We do not need to decide what the situation would be if the patient had been advised that Crouch and Sharma were employees of a professional corporation and were treating Gary in this capacity. The evidence as to what was made manifest to the patient is scanty. Gary was admitted through the "kidney transplant clinic" and not through the office of the professional corporation. It is the sense of the statute *562 then in force that the physician-patient relationship is a personal one, in spite of the professional corporation arrangement, which has its origin in tax considerations. The jury could find that the patient understood that the two nephrologists, Crouch and Sharma, were jointly responsible for his medical care. Malpractice claims have aspects both of tort and of contract law.[8] The patient's understanding is of great importance. We conclude that the action against Dr. Crouch should be reversed and remanded for further proceedings. We cannot fully anticipate the issues that might be developed on remand, or the additional evidence that might be offered pursuant to the holding of this opinion, and so will not comment further. Nor do we express any conclusion about comparable situations under the statute now in force. II. The Hospital's Liability The hospital argues that the plaintiff did not make a submissible case against it. It asserts, appropriately, that it does not practice medicine and that everything its employees did was consistent with the instructions of Dr. Sharma. It also asserts error in the verdict director and other trial error. We conclude that none of the errors claimed is established. A. The Evidence of Negligence The defendant hospital argues that there is no evidence that it was negligent. The point can best be considered in the light of the plaintiff's verdict director against the hospital, which reads as follows:[9] Your verdict must be for Plaintiff and against defendant St. Luke's Hospital of Kansas City if you believe: First, plaintiff was the spouse of Gary L. Augustine, and Second, the employees of St. Luke's Hospital of Kansas City were acting within the scope and course of their employment by St. Luke's Hospital of Kansas City during Gary L. Augustine's admission and treatment at St. Luke's Hospital of Kansas City, and Third, defendant's employees failed to follow its critical values of blood policy and procedure, or failed to adequately monitor the lab reports of Gary L. Augustine's blood, or failed to timely order blood, or failed to see that blood was timely given. Fourth, defendant St. Luke's Hospital of Kansas City, in any one or more of the respects submitted in paragraph Second was thereby negligent, and Fifth, such negligence directly caused or directly contributed to cause the death of Gary L. Augustine. There is prejudicial error, of course, unless all four of the alternatives set forth in paragraph Third are supported by substantial evidence. We conclude that they are so supported. On Saturday morning, July 19, the hospital's employees became aware of the hematocrit reading of 16, which is well below the hospital's critical values. According to the plaintiff's experts, in the exercise of due care, a resident physician should have made arrangements to give blood sometime during the weekend, or, at the very least, to report the low reading to Dr. Sharma as the attending physician, in which case the hospital might be able to leave decisions to him. There is no evidence of any such report, and no indication that Sharma saw the patient on Saturday or Sunday. There was support then, for findings of "failure to follow its critical values of blood policy and procedure" and of failure "to adequately monitor the lab reports." It is not necessary to point to any particular employee of the hospital as the person at fault, any more than it is necessary to decide which employee of a supermarket should have noticed a dangerous condition which is shown to have existed for a substantial *563 time.[10] If a physician noticed the reading he or she should have taken action; if not, the hospital employees should have reported it to someone qualified to make decisions. The jury might also find a failure on the hospital's part to give prompt and proper attention to the Monday reading of 10. The record also supports a conclusion that the hospital "failed to timely order blood." The record shows that resident physicians had the authority to order blood over the weekend and to cause it to be administered. If it were felt that blood should not have been administered without Dr. Sharma's approval, he could have been notified. Another possibility would be to order suitable blood to be available Monday morning, when Gary was next scheduled for dialysis. Blood is sometimes ordered so that it will be available if needed, even though it is not certain that it will be given. The jury might also believe that the hospital employees did not proceed so quickly as they should have after Dr. Sharma gave the blood order on July 21. The hospital employees knew how long the dialysis was expected to continue, and could have advised the blood bank that blood was needed in time to meet this schedule. They cannot excuse themselves by asserting that Dr. Sharma gave no STAT or ASAP order. They knew when the blood would be needed in order to carry out his orders. There is also evidence that the hospital "failed to see that blood was promptly given." In addition to the delay over the weekend, the jury could also find the hospital at fault for the delay of more than two hours from the arrival of the blood to the beginning of the transfusion. Blood can be given much more efficiently during dialysis, yet the patient was returned to his room. The jury did not have to find that Dr. Sharma ordered the return. It might expect the hospital to explain why blood received at 3:15 was not administered until 5:30 P.M. The plaintiff's expert testimony indicated that every hour was important, especially after the hematocrit dropped to 10 Monday morning. The four particulars of negligence contained in the verdict director, then, are supported by the evidence. It follows that the plaintiff made a submissible case of negligence. To so hold does not make the hospital responsible for practicing medicine. Nor does it require the hospital residents or other employees to second guess the attending physician. The negligence asserted relates to the hospital's duty to provide care for the patient, and to carry out physicians' orders. We must remember that the patient is in the hospital constantly, while the attending physician sees him only briefly. Hospital employees, whether or not physicians, may be called upon to exercise judgment not inconsistent with the physician's orders, when the attending physician is not present or available. The jury could have found several instances in which prompt action by the hospital employees would have made the blood available sooner. The hospital also argues that the plaintiff has failed to establish causation. Its basic claim is that Gary died of a septicaemia, as shown by the autopsy finding of staphylococci in the blood, and that the low red cell content was not a contributing factor.[11] The plaintiff's experts concede the possibility of such an infection, but are positive in saying that the anemic condition, as evidenced by the constant decline in the hematocrit, contributed to the patient's death. The only way to raise the hematocrit quickly is to give blood. Time was of the essence. One witness said that the lack of red cells was "a major cause of death." The test of causation is met. Jackson v. Ray Kruse Const. Co., 708 S.W.2d 664, 669 n. 6 (Mo. banc 1986). The issue is for the jury. We also reject the hospital's claim that the cross-examination *564 rendered the expert testimony so uncertain that it could not support the essential findings. The cross-examination merely raised questions for the jury to evaluate, in the context of the entire record. Goslin v. Kurn, 351 Mo. 395, 173 S.W.2d 79, 87 (1943). B. Trial Error The defendant hospital has two additional criticisms of the verdict director against it as quoted above. The conjunction, "and" is omitted between paragraph Third and paragraph Fourth, with a period rather than a comma at the end of paragraph Third. Then paragraph Fourth refers to negligence in the respects submitted in paragraph Second, whereas the particulars of negligence are submitted in paragraph Third. Only the first of these complaints is challenged in the motion for new trial, Item 20 of which reads as follows: The court erred in submitting plaintiff's verdict directing Instruction No. 8 against St. Luke's Hospital since the verdict director erroneously eliminated the conjunctive "and" at the end of the third proposition of Instruction No. 8 and before the fourth proposition of Instruction No. 8, in direct violation of M.A.I. 20.20. Rule 70.03 of our rules reads as follows: Counsel need not object to any instructions to be given at the request of any other party or by the court on its own motion or to the refusal of any instructions requested by such party. Specific objections to instructions shall be required in motions for new trial unless made at trial. The making of objections during trial shall not preclude making additional objections to the same or other instructions in the motion for new trial. No general objection to instructions is required. The hospital has preserved only the failure to insert the conjunction, "and." The complaint about the mix-up in paragraphs was not mentioned in the new trial motion. By Rule 70.02(c) the deviation from MAI is error, but we are required to determine whether the omission of "and" was prejudicial. The governing rule is Rule 84.13(b) reading as follows: Materiality of Error. No appellate court shall reverse any judgment unless it finds that error was committed by the trial court against the appellant materially affecting the merits of the action. We conclude that the omission of "and" was not prejudicial. Paragraph Third contains four hypotheses in the disjunctive, separated by "or." It is difficult to see how any literate juror could conclude that the jury did not have to find the facts submitted in paragraph Fourth, in addition to one of the alternate submissions of paragraph Third. There is no ground for confusion. Cf., Lee v. Mirbaha, 722 S.W.2d 80, 84 (Mo. banc 1986) (finding no prejudicial error in the use of "these" in converse instructions, when the appropriate and responsive word would have been "this.") In Kirkendall v. Townsend, 559 S.W.2d 561 (Mo.App.1977), the court was confronted with an instruction in which the "and" had been omitted between all paragraphs of a verdict directing instruction. The trial court had granted a new trial on this basis, and the court of appeals affirmed. The holding is appropriate because the judgment of the trial court on matters of prejudicial error is entitled to great weight. Here the trial court overruled the motion for new trial, and so our holding is entirely consistent with Kirkendall. Even so, the Kirkendall opinion expresses dissatisfaction with a situation in which the least typographical error would mandate a new trial. The defendants cite Brown v. St. Louis Public Service Company, 421 S.W.2d 255 (Mo. banc 1967), for the proposition that any deviation from the MAI patterns requires reversal unless "it is made perfectly clear by the proponent of the instruction that no prejudice could have resulted from such deviation." The case is distinguishable for several reasons. In the first place, it was directed toward attempts at deliberate deviation from, or attempted "improvement" of, MAI Instructions, in order to make it clear to the bar that counsel should *565 not substitute variations of their own for the MAI text. The opinion expressly disclaims any intention of holding that all typos or inadvertent variances require reversal. Secondly, the trial court in that case granted a new trial because of the deviation from the patterns, and so the proponent of the instruction had the burden of demonstrating error on appeal. Third, we sense no purpose in that opinion of departing from the long-established proposition of Rule 84.13(b), quoted above.[12]Brown does not require reversal in this case. The defendant hospital, in its argument to the jury, clearly stated that the plaintiff had to establish each of the five propositions set forth in the verdict director. The plaintiff squarely took on each of the alternatives of paragraph Third, and argued that the record demonstrated negligence in each of these respects. It is proper to consider counsels' arguments in determining prejudicial error. Welch v. Hyatt, 578 S.W.2d 905, 914 (Mo. banc 1979). We are not persuaded that we should reverse the trial court for the reason assigned. Nor do we find plain error in the confusion between paragraph Second and paragraph Third. We may raise an eyebrow at the lack of careful proofreading in a case of this importance, but we cannot say that the jury was misled as to the issues it was required to decide. Because of the failure of preservation we do not have the benefit of the trial judge's views, and we decline to reverse him. Failure of the defendant hospital to object before the instructions were given to the jury plays no part in our decision. We have reviewed the error preserved and find it not to be prejudicial. This is in line with other recent cases, in which the appellate courts give great deference to the conclusion of the trial judge as to the prejudicial effect of errors in instruction,[13] and are reluctant to reverse for error which does not give indication of prejudice.[14] It is nevertheless appropriate to observe that a lawyer who finds something in his opponent's instruction which may adversely affect presentation to the jury may speak up at the time, in an effort to obtain the best legal submission for his client. The lawyer who does not do so is not doing his best to win the case before the jury, but rather is thinking of appeal before the verdict is in. The lawyer who remains silent is entitled to review under Rule 70.03, but is not entitled to reversal unless prejudice is established. This is the teaching of our recent cases.[15] The plaintiff was allowed to read in evidence portions of the deposition of Donna Cling, a nurse employed by St. Luke's as "supervisor of incenter dialysis". St. Luke's objected on the ground that the plaintiff had not shown that she was unavailable as required by Rule 57.07(a)(3). The plaintiff countered with the argument that Cling's statements could be received as admissions of St. Luke's because of her supervisory position. The trial court overruled the objection. The court of appeals found error sufficient to require reversal. We agree that there was error but do not discern prejudice. Even though the witness had an important supervisory position she was not a managerial person whose statements constitute admissions by her employer,[16] nor was she acting within the scope of her employment when she *566 made the statement.[17] She testified on deposition at the instance of the plaintiff and not as an officer of the hospital.[18] She is not shown to have participated in Gary's care. Testimony in open court remains the rule and deposition testimony the exception, requiring a showing of unavailability. But error does not necessarily require reversal. Prejudice must appear. Rule 84.13(b). The deposition testimony was given under oath, with all parties having the right to full examination. The witness said, essentially, that she would report a hematocrit reading which was below 20 to the responsible physicians, and that with a reading of 18 or 16 blood would probably be given. This is consistent with St. Luke's procedural manual received in evidence. St. Luke's did not express disagreement and did not call any witness to challenge the testimony. There is no reason to assume that Cling's testimony in open court would have differed from the deposition testimony. Under these circumstances, prejudice to St. Luke's is not apparent. St. Luke's argues that the trial judge compounded the error when he would not allow it to read other portions of Cling's deposition during its case. The trial court's ruling is consistent with his major premise that the plaintiff could read portions of the depositions as admissions. If this were correct, the defendant had no right to read additional portions as substantive evidence. As we have held, however, the trial judge's assumption was not correct, and St. Luke's had as much right to read from the deposition as the plaintiff did. St. Luke's is not entitled to reversal, however, because it made no offer of proof as to the additional portions of the deposition which it wanted to read.[19] The offer, pointing up the contention of prejudice, is an essential condition of relief at the appellate level. St. Luke's could also have made an effort to bring the witness in and, if she were unavailable, could then read from the deposition. But it made no attempt to follow this course of action, possibly through fear of condoning the error previously asserted. A party confronted with an erroneous ruling may be expected to take reasonable steps to blunt the effect. St. Luke's also objects to the trial court's refusal to allow it to present Dr. Thomas Wiegmann as an additional expert witness. The initial order of denial was entered when the trial was scheduled to go forward on October 28, 1985, and the proposed witness had not been listed until October 21. Then there was a postponement until January 21, 1986. St. Luke's argues that there was a sufficient change of circumstances so that it should not be denied the additional expert witness testimony it desired. Although the trial court has great discretion in maintaining the integrity of discovery in prior pretrial proceedings, it should hesitate to deny a party the right to important testimony. St. Luke's, however, has failed to point out on the record of the trial court, and to us, the testimony it expected from Dr. Wiegmann. Its supplemental answers to interrogatories, filed October 21, 1985, indicate only the areas to be covered and do not indicate disagreements with the plaintiff's experts. No further offer was made at trial. We are unable to determine how it was harmed by the denial. This relieves us of determining whether the trial court abused its discretion. The judgment against St. Luke's Hospital is affirmed. The judgment against Dr. Crouch is reversed and the case is remanded for such further proceedings as may be indicated. BILLINGS, C.J. and HIGGINS, J., concur. ROBERTSON, J., concurs in result. DONNELLY, J., dissents in separate opinion filed. *567 WELLIVER and RENDLEN, JJ., dissent and concur in separate dissenting opinion of DONNELLY, J. DONNELLY, Judge, dissenting. In Brown v. St. Louis Public Service Company, 421 S.W.2d 255, 259 (1967), this Court held that "where there is deviation from an applicable MAI instruction which does not need modification under the facts in the particular case, prejudicial error will be presumed unless it is made perfectly clear by the proponent of the instruction that no prejudice could have resulted from such deviation." The rationale for the Brown holding was articulated by Judge Ben W. Swofford in McGowan v. Hoffman, 609 S.W.2d 160, 163 (Mo.App.1980): The Supreme Court of this state with laudable intent and worthy and efficient aspiration adopted MAI and ruled so as to enforce upon the bench and bar a very strict code of restriction by and compliance with its mandatory use, all of which has effected a vast savings in judicial time and taxpayers' money. But the gate of restriction and compliance must in the interest of fundamental justice be left somewhat ajar. Thus, from the consistent and binding decisional law, since the adoption of MAI and Rule 70.02, the principle has evolved that courts faced with violations or impermissible modifications of MAI must gauge the prejudicial effect thereof. Such defect in submission of a case must be shown to be non-prejudicial before it can be given. It appears to this Court that it must be shown, and the judicial mind and conscience satisfied by means of some positive force of fact or logic, that no "prejudicial effect" has resulted from the erroneous instruction. The burden to make this showing rests upon the party offering the instruction. In Hudson v. Carr, 668 S.W.2d 68 (Mo. banc 1984), an instruction on damages, taken from MAI without change, was given in behalf of plaintiff. Defendant asserted on appeal that under the evidence the MAI instruction should have been modified. The Court held, in such circumstance, that "when the instruction is only abstractly erroneous there is a need for balancing and balancing in this instance indicates that a new trial is not necessary." Hudson v. Carr, 668 S.W.2d at 72. In Fowler v. Park Corp., 673 S.W.2d 749, 756 (Mo. banc 1984), the wrong MAI instruction on standard of care was given in behalf of plaintiff and the Court, without mentioning Brown, placed the burden of demonstrating prejudice on the party opposing the instruction and held "that we should reverse only for defects of substance with substantial potential for prejudicial effect." It must be said that Fowler was an unwarranted and unwise extension of Hudson. See Points v. Dzur, 713 S.W.2d 634 (Mo.App.1986); Abshire v. Nordson Corp., 688 S.W.2d 1, 2 (Mo.App.1985) (Stewart, J., dissenting); McCarter and Behr, MAI Error After Fowler v. Park Corp.: Prejudicial or Not?, 41 J. of Mo. Bar 308 (July-August 1985). But Fowler remains intact. I dissent. NOTES [1] St. Luke's "Hematology Procedure Manual," introduced as evidence, listed "critical values requiring notification of pathologists, clinicians and/or nursing stations." The critical hematocrit level was "less than 20 per cent." [2] LPPC's stands for Leukocyte Poor Packed Cells. This is blood in which the white cells have been removed, leaving only the oxygen carrying red cells. [3] STAT is the hospital's code word for immediately. ASAP (as soon as possible) connotes less urgency. "When ready," the convention used, means sometime during the day. [4] The instruction cites M.A.I. 21.01 (1965 New), M.A.I. 20.02 (1983 Revision), M.A.I. 19.01 (1981 Revision), M.A.I. 18.01 (1965 New). [5] The instruction cites M.A.I. 13.06 (1978 Revision). [6] This statutory provision has been repealed, and replaced to some extent by § 356.171.1, RSMo 1986, which might appear to limit liability to the professional person rendering the service. Our decision is not authoritative for cases arising after the effective date of the amended statute. [7] In addition to Crump v. Piper, supra, and Baird v. National Health Foundation, supra, see generally, Reed v. Sale Memorial Hosp. & Clinic, 698 S.W.2d 931 (Mo.App.1985); 70 C.J.S. Physicians & Surgeons, 54. [8] See generally, 70 C.J.S. Physicians & Surgeons 64(a) pp. 458-459. [9] The instruction cites M.A.I. 20.02 (1983 Revision) Modified, M.A.I. 19.01 (1981) Revision, M.A.I. 18.01 (1965 New). [10] E.g., Brown v. Kroger Co., 344 S.W.2d 80, 84 (Mo.1961). [11] The evidence of septicaemic infection was not conclusive. No blood culture taken while the patient was alive showed bacterial infestation. There was a delay in taking the post-mortem specimen and one witness suggested that the bacteria might have proliferated after death in the blood, which is an excellent culture medium. [12] Rule 84.13(b) is derived from 512.160.2, RSMo 1986 (L.1943, p. 353, sec. 140). [13] See, Brickner v. Normandy Osteopathic Hospital, Inc., 687 S.W.2d 910 (Mo.App.1985), and Abshire v. Nordsen Corp., 688 S.W.2d 1 (Mo.App. 1985), in which the respective trial courts reached apparently conflicting results on whether instructional error required reversal. Both cases were affirmed by the court of appeals, and we denied transfer, deferring to the trial judge's discretion in measuring prejudice. [14] Cornell v. Texaco, Inc., 712 S.W.2d 680, 682 (Mo. banc 1986); Lawton v. Jewish Hospital of St. Louis, 679 S.W.2d 370, 374-75 (Mo.App. 1985). [15] Cornell v. Texaco, Inc., 712 S.W.2d 680 (Mo. banc 1986); Hudson v. Carr, 668 S.W.2d 68 (Mo. banc 1984); Fowler v. Park Corporation, 673 S.W.2d 749 (Mo. banc 1984). [16] Cf., Brown v. Kroger Co., 344 S.W.2d 80 (Mo. 1961); Rule 57.07(a)(2). [17] See, e.g., Roush v. Alkire Truck Lines, 299 S.W.2d 518 (Mo.1957), Missouri State Highway Commission v. Howard Construction Co., 612 S.W.2d 23, 26 (Mo.App.1981). [18] Cf., Annin v. Bi-State Development Agency, 657 S.W.2d 382 (Mo.App.1983). [19] E.g., Karashin v. Haggard Hauling & Rigging, Inc., 653 S.W.2d 203 (Mo. banc 1983).

112 Cal.App.3d 1 (1980) 169 Cal. Rptr. 57 THE PEOPLE, Plaintiff and Respondent, v. RICHARD CARY SOLDOFF, Defendant and Appellant. Docket No. 36000. Court of Appeals of California, Second District, Division One. November 13, 1980. *3 COUNSEL Weitzman & Fidler, Howard L. Weitzman and Larry Fidler for Defendant and Appellant. George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Robert F. Katz and Richard D. Marino, Deputy Attorneys General, for Plaintiff and Respondent. OPINION JEFFERSON (Bernard), Acting P.J.[*] In an information, defendant was accused of committing several felony offenses: in count 1, a violation *4 of section 11351 of the Health and Safety Code (possession of cocaine); in count 2, a violation of section 11359 of the Health and Safety Code (possession of marijuana for sale); in count 3, a violation of section 12020, subdivision (a), of the Penal Code (possession of a sawed-off shotgun); and in count 4, a violation of section 496 of the Penal Code (receiving stolen property). Defendant made a motion to suppress evidence. After a denial of this motion by the court, he withdrew his plea of not guilty to counts 2 and 3, and entered a plea of guilty thereto. He appeals from the judgment entered on the plea of guilty. On appeal, defendant advances the following contentions in attacking the judgment of conviction: (1) The trial court erred in denying his motion to suppress evidence in that (a) a search warrant was invalid because it was issued on information obtained as a result of a prior illegal search, and (b) destruction of a tape of a police broadcast required suppression of the evidence; and (2) The plea of guilty was invalid because he did not waive his privilege against self-incrimination upon entering the plea. I A Summary of the Facts On January 31, 1978, about 11 p.m., while Officers Venegas and John of the Los Angeles Police Department were in a patrol car, they received a radio broadcast reporting an "ambulance shooting" at 2139 Nichols Canyon. Their understanding of the report was that a shooting had occurred and an ambulance had been dispatched to that address. They arrived there five minutes after they received the broadcast report. No one was in front of the house; they saw two automobiles in the driveway; they observed that lights were on outside the house, but no lights were on inside the house. A few moments later, an ambulance arrived. The officers knocked on the front door of the house and identified themselves. There was no response. Officer Venegas looked into a front window. It was not locked, so he pushed it open. Believing that someone had been shot, Officer Venegas entered the house through the window to look for a possible victim. He opened the front door for other officers to enter. They then made a search of the house. A bullet hole was in the glass door of the den, and blood was on the floor of the den. A blanket with fresh blood on it was also on the floor *5 of the den. A trail of blood about 10 feet in length extended outside the den to a patio. There was also a pool of blood on the patio. Officer Venegas then returned to the den and opened a door to a corridor extending to another room, which appeared to be a laboratory. In the laboratory he saw in plain view an open can in which there were 10 to 15 baggies containing a green, plant-like material. A sawed-off shotgun and rifles were also in plain view on a table in the laboratory. In searching a bedroom, Officer Venegas found another sawed-off shotgun. In a closet in the bedroom, the officer saw three large, opaque garbage bags. In the belief that they might contain a dismembered body, he felt those bags. From his touch, he concluded that the bags appeared to contain plant material. In a second bedroom the officer saw open boxes in which there were open cans containing a white powdery substance. The search of the house lasted about 20 minutes. Officer John then returned to the patrol car and made a radio report that no victim had been found. Another officer telephoned the narcotics division of the police department. An hour later, a narcotics officer (Papke) arrived. Officer Venegas showed Papke what they had found. At about 3 a.m., Officers Venegas and Papke left the house to obtain a search warrant. At the hearing on the motion to suppress evidence, defendant's mother testified that she arrived at the house about 8 a.m., on the morning of February 1, 1978, that a police car was in the driveway, and police officers were inside the house. She stated that her son possessed a gun collection which was missing and that the house was in disarray. The officers told defendant's mother that they were waiting for a search warrant. She then left the house to talk with another officer. She returned about 10 a.m. that same morning and observed a search warrant on the bar as you walked in the den. II The Motion to Suppress Evidence Was Properly Denied by the Trial Court (1a) In contending that the trial court erred in denying his motion to suppress evidence obtained as a result of the issuance of a search warrant, defendant argues that the entry into the house by Officer Venegas *6 through the open window was a warrantless entry and, hence, was illegal; and that since the information obtained in that entry was the basis for the subsequent issuance of the search warrant, the issuance of the warrant must be held to be invalid. The thrust of defendant's argument that the search warrant was invalid centers on the theory that there was an absence of exigent circumstances to justify the warrantless entry. (2) Preliminarily, we take note of the fact that a proceeding under Penal Code section 1538.5 to suppress evidence is a full hearing on the issues before the superior court sitting as a finder of fact. (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410 [118 Cal. Rptr. 617, 530 P.2d 585]; People v. Lawler (1973) 9 Cal.3d 156, 160 [107 Cal. Rptr. 13, 507 P.2d 621].) Thus, the power to judge the credibility of witnesses, to resolve conflicts in the testimony, to weigh the evidence and draw factual inferences, is vested in the trial court. On appeal, all presumptions favor the proper exercise of that power; and the trial court's findings — whether express or implied — must be upheld if supported by substantial evidence. (See Keithley and Lawler, both supra.) The question presented here is that of a determination of what constitutes exigent circumstances to justify a warrantless entry and search of premises. (3) The courts have formulated several rules to govern situations that will permit of a warrantless entry and search under the doctrine of exigent circumstances to excuse the necessity of obtaining a search warrant. One recognized rule is known as the "hot pursuit" doctrine to preclude escape of a suspected felon. (See Warden v. Hayden (1967) 387 U.S. 294 [18 L.Ed.2d 782, 87 S.Ct. 1642]; United States v. Santana (1976) 427 U.S. 38 [49 L.Ed.2d 300, 96 S.Ct. 2406].) Another accepted rule is that of the "necessity" to prevent destruction of evidence. (See Cupp v. Murphy (1973) 412 U.S. 291 [36 L.Ed.2d 90, 93 S.Ct. 2000]; Schmerber v. California (1966) 384 U.S. 757 [16 L.Ed.2d 908, 86 S.Ct. 1826]; cf. Rochin v. California (1952) 342 U.S. 165 [96 L.Ed. 183, 72 S.Ct. 205, 25 A.L.R.2d 1396].) Another recognized exception to the warrant requirement is also a "necessity" situation — a motive to enter and search premises to preserve the life of a person thought to be in the premises and in imminent danger. In People v. Hill (1974) 12 Cal.3d 731, 754 [117 Cal. Rptr. 393, 528 P.2d 1], the court expressed this principle in the following language: "A warrantless entry of a dwelling is constitutionally permissible *7 where the officers' conduct is prompted by the motive of preserving life and reasonably appears to be necessary for that purpose." We find examples of the preserving-life necessity as constituting exigent circumstances in cases such as People v. Roberts (1956) 47 Cal.2d 374 [303 P.2d 721]; People v. Clark (1968) 262 Cal. App.2d 471 [68 Cal. Rptr. 713]; and People v. Gonzales (1960) 182 Cal. App.2d 276 [5 Cal. Rptr. 920]. The factual situations in these cases were reviewed by our high court in Horack v. Superior Court (1970) 3 Cal.3d 720 [91 Cal. Rptr. 569, 478 P.2d 1]. In Horack, the court made this pertinent observation: "Thus, in People v. Roberts, we stated that `[n]ecessity often justifies an action which would otherwise constitute a trespass, as where the act is prompted by the motive of preserving life or property and reasonably appears to the actor to be necessary for that purpose.' [Citation.] The `necessity' in Roberts was that police heard a moaning sound as if from a person in distress and entered defendant's apartment to render aid; the evidence sought to be suppressed was discovered in plain sight after the valid emergency entry. Similarly, in Clark, police entered the defendant's apartment because circumstances apparent to the officers indicated the `probability that a woman within the apartment was the unwilling victim of some criminal act.' [Citation.] And in Gonzales, a police officer discovered marijuana in a search for identification in the clothing of a man found seriously injured with an abdominal stabbing wound." (Id. at p. 725; accord, People v. Smith (1972) 7 Cal.3d 282, 285 [101 Cal. Rptr. 893, 496 P.2d 1261].) An instructive case is People v. Superior Court (Peebles) (1970) 6 Cal. App.3d 379 [85 Cal. Rptr. 803], in which the court held that exigent circumstances were present within the meaning of Roberts where officers entered an apartment to assist a suspected felon whom they believed had been injured in an attempted bombing. The cases relied upon by defendant to support his view that the preserving-life necessity exception to the warrant requirement is not applicable in the case before us are not persuasive. People v. Smith (1972) 7 Cal.3d 282 [101 Cal. Rptr. 893, 496 P.2d 1261], for example, did not involve any emergency entry to determine whether an injured victim needed assistance. And in Horack v. Superior Court (1970) 3 Cal.3d 720 [91 Cal. Rptr. 569, 478 P.2d 1], the police had no reason to suspect that any occupant needed assistance.[1] *8 (1b) In the case before us, we conclude that there were ample exigent circumstances within the meaning of the preserving-life necessity exception to the warrant requirement to justify the officers' entry into the house in question. Here, as in Hill, supra, 12 Cal.3d 731, 755, "entering the premises was the only practical means of determining whether there was anyone inside in need of assistance." It is to be noted that the officers responded to a police broadcast about a possible shooting. They found a bullet hole and blood on the floor and in the patio. Since there was an absence of a body or a suspect, the search for a body was reasonable, including search of the trash bags in the closet in the belief that a dismembered body might be found therein. We conclude, therefore, that there was a valid emergency entry. The evidence sought to be suppressed was discovered in plain sight.[2] III The Destruction by the Police of the Tape Recording of a Police Broadcast After the police broadcast a report on the night of January 31, of an "ambulance shooting" at the Nichols Canyon address, a second broadcast was made in the early hours of February 1, which stated that the victim of the shooting was on his way to or in the hospital. Both of these broadcasts were tape recorded by the police. The recording of the second broadcast was destroyed by the police. It is defendant's position that the destruction of this tape recording rendered the evidence seized from the Nichols Canyon address inadmissible and subject to suppression. This second tape recording pertaining to the defendant's residence was destroyed by the police custodian of records after he preserved a recording *9 of the first police broadcast. The custodian destroyed the second recording after having spoken with defense counsel, under the impression that the recording he preserved was the recording which defense counsel wanted and because the custodian did not know of the existence of other recordings relating to the incident at defendant's house. Defendant advances the argument — based on People v. Hitch (1974) 12 Cal.3d 641 [117 Cal. Rptr. 9, 527 P.2d 361] — that the second recording was beneficial to his defense because it would establish that there was no existing preservation-of-life emergency at the time the officers made the warrantless search of his residence. "[T]he Hitch rule exists to guarantee a defendant a fair trial through the preservation of evidence and not to punish police conduct." (People v. Swearingen (1978) 84 Cal. App.3d 570, 574 [148 Cal. Rptr. 755].) The Hitch case neither holds nor suggests that a law enforcement agency has a duty to retain and preserve all records permanently that may possibly benefit prospective defendants in future cases. (See City of Sacramento v. Municipal Court (1978) 83 Cal. App.3d 795, 799 [148 Cal. Rptr. 114].) (4) In the case at bench, the officer who conducted the warrantless search of the defendant's house testified that he did not receive information that the emergency no longer existed until after the search had taken place. The existence of the recording of the second broadcast would have been relevant to the issue of when it was received by the officers in the field. Its absence, however, did not prevent defendant from attacking the credibility of the officer with respect to when he heard the second broadcast. Granted that "[t]he burden of preservation applies to physical evidence relevant to the determination of preliminary facts requisite to the admissibility of critically incriminating evidence" (People v. Alfieri (1979) 95 Cal. App.3d 533, 546 [157 Cal. Rptr. 304]), the trial court, in denying the motion to suppress evidence, impliedly found that the People met its burden of showing that "the governmental agencies involved ... established, enforced and attempted in good faith to adhere to rigorous and systematic procedures designed to preserve" the evidence (People v. Hitch, supra, 12 Cal.3d 641, 652-653) and that the custodian honestly believed, from his conversations with defense counsel, that the *10 recording of the first broadcast was all that defense counsel desired preserved and that defense counsel did not expect the custodian go any further into any matter other than the first broadcast. We conclude, therefore, that the trial court did not err in denying the motion to suppress evidence. IV The Plea of Guilty Was Invalid Under the Circumstances The People concede that defendant's plea of guilty to counts 2 and 3 of the information was invalid and must be set aside, because he was not advised of his privilege against self-incrimination upon entering the plea. (See People v. Levey (1973) 8 Cal.3d 648, 654 [105 Cal. Rptr. 516, 504 P.2d 452]; In re Tahl (1969) 1 Cal.3d 122, 130 [81 Cal. Rptr. 577, 460 P.2d 449].) The case must thus be remanded to permit defendant to withdraw his pleas of guilty to counts 2 and 3. Upon a withdrawal of the guilty pleas, counts 1 and 4, dismissed in furtherance of justice, shall be reinstituted and defendant is entitled to enter not guilty pleas to all four counts and proceed to trial. The judgment entered on the pleas of guilty is reversed with directions that defendant's pleas of guilty to counts 2 and 3 of the information be set aside and that defendant be rearraigned for pleas on those counts and on counts 1 and 4 to be reinstated accordingly. Lillie, J., and Dunn (G.W.), J.,[*] concurred. NOTES [*] Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council. [1] Defendant seeks to distinguish Roberts by calling attention to the fact that the officers in the instant case did not hear any groans coming from the Nichols Canyon premises. But Roberts cannot be interpreted as holding that the preserving-life exception to the warrant requirement applies only when groans are heard coming from the house in question. [2] Defendant calls our attention to the fact that there is no "murder scene" exception to the search warrant requirement. (Mincey v. Arizona (1978) 437 U.S. 385 [57 L.Ed.2d 290, 98 S.Ct. 2408].) But Mincey acknowledged the rule of necessity in emergency situations by observing: "We do not question the right of the police to respond to emergency situations. Numerous state [citing, inter alia, People v. Hill, supra] and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid." (Id. at p. 392 [57 L.Ed.2d at p. 300].) [*] Assigned by the Chairperson of the Judicial Council.

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT APR 22 2015 MOLLY C. DWYER, CLERK KARL TOBEY, No. 13-36214 U.S. COURT OF APPEALS Petitioner - Appellant, D.C. No. 2:12-cv-00440-RAJ v. MEMORANDUM* JEFFERY UTTECHT, Respondent - Appellee. Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding Argued and Submitted April 6, 2015 Seattle, Washington Before: HAWKINS, RAWLINSON, and CALLAHAN, Circuit Judges. Karl Tobey (“Tobey”) appeals the denial of his habeas petition. After his first trial ended in a hung jury, Tobey was convicted of two counts of child rape in Washington state court. He claims that the prosecution improperly bolstered the testimony of the child witness and misstated the burden of proof during closing * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. argument, and that these errors had a substantial or injurious effect on the jury’s verdict. We affirm. Tobey’s habeas petition is subject to the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), which provides that the state court’s decision is entitled to deference unless it “(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.” To obtain relief on a claim of prosecutorial misconduct, a habeas petitioner must do more than show that the remarks were “undesirable or even universally condemned” but must demonstrate that the comments “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quotation omitted); see also Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (habeas relief warranted if prosecutorial misconduct had a substantial and injurious effect or influence on the jury’s verdict). In order to determine whether the comments rendered the trial fundamentally unfair, it is necessary to examine the entire proceedings and place the prosecutor’s statements in context. See Greer v. Miller, 483 U.S. 756, 765–66 (1987). 2 I. Vouching The state court’s denial of Tobey’s claim that the prosecutor improperly bolstered the witness’s credibility in closing argument was not objectively unreasonable. See Harrington v. Richter, 562 U.S. 86, 98 (2011) (holding that a state habeas petitioner has the burden of showing there was no reasonable basis for the state court to deny relief). The allegedly improper statements, when viewed in context, are permissible argument rather than improper vouching. The focus of the prosecutor’s comments was always on the jury’s role as factfinder and why it should believe the child’s testimony, rather than the prosecutor’s opinion of the witness’s veracity. Moreover, even if improper, the prosecutor’s comments were not overtly flagrant violations, and Tobey has not borne his burden of demonstrating that these stray comments had a substantial or injurious effect on the outcome of the trial. II. Misstatement of Burden A few statements by the prosecutor in the course of a lengthy closing and rebuttal suggested the jury needed to decide if the child victim was telling the truth or had “made this all up” or was “evil.” The Washington courts held these were improper statements of the law and the burden of proof. See State v. Tobey, 138 Wash. App. 1060 (June 4, 2007) (unpubl.) (citing State v. Fleming, 921 P.2d 1076, 1078 (Wash. App. 1996)). The jury, however, was accurately instructed that 3 arguments by counsel were not evidence, that only the court could define the law for the jury, and that it needed to “have an abiding belief in the truth of the charge” to be satisfied beyond a reasonable doubt. Moreover, the jury appears to have carefully weighed the evidence and testimony, convicting on some but not all of the counts charged. The prosecutor’s statements, though erroneous, were not so obviously egregious as to undermine the fundamental fairness of the proceeding and have a substantial impact on the outcome of the trial.1 III. Uncertified Issues Tobey also raises two uncertified issues in his brief, which we construe as a request to expand the certificate of appealability. Murray v. Schriro, 745 F.3d 984, 1002 (9th Cir. 2014). We deny the request because Tobey has not made a “substantial showing of the denial of a constitutional right” with respect to his claims for ineffective assistance of counsel or cumulative error. See 28 U.S.C. § 2253(c)(2). AFFIRMED. 1 Because we affirm applying the Brecht “substantial and injurious effect” standard de novo, we need not address whether we should apply additional AEDPA deference to the state court’s determination that Tobey was not prejudiced by the prosecutor’s misstatements. Cf. Ayala v. Wong, 756 F.3d 656 (9th Cir. 2014), cert. granted, Chappell v. Ayala, 135 S. Ct. 401 (2014). 4 

108 F.3d 339 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.SIERRA CLUB; Committee for Green Foothills; Committee forthe Permanent Repair of Highway One, Plaintiffs-Appellants,v.DEPARTMENT OF TRANSPORTATION; Elizabeth Dole; FederalHighway Administration; Ray A. Bernhart; CaliforniaDepartment of Transportation, James W. Van Loben Sels;California Transportation Commission, Defendants-Appellees. No. 95-16264. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 4, 1996.Submission Vacated Nov. 29, 1996.Resubmitted and Decided Feb. 13, 1997. Before: NORRIS, KOZINSKI, and TASHIMA, Circuit Judges. ORDER 1 This case is now resubmitted for decision. This appeal is dismissed as moot.

282 P.2d 215 (1955) Sam ZARROW and Henry Zarrow, copartners, d/b/a Sooner Pipe & Iron Company, and also d/b/a Sooner Oil Company, and C.O. Dunn, Plaintiffs in Error, v. A.M. HUGHES, Defendant in Error. No. 36191. Supreme Court of Oklahoma. February 23, 1955. Rehearing Denied April 19, 1955. John W. Tillman, Fred A. Tillman, Pawhuska, Max G. Cohen, Tulsa, for plaintiffs in error. Frank T. McCoy, John T. Craig, Robert P. Kelly, Pawhuska, for defendant in error. *216 CORN, Justice. The plaintiff for his cause of action against the defendants alleged in his petition that he owned a cattle ranch in which there was located a certain pasture, and described the pasture, and claimed that during the year 1951 he was taking cattle for pasture, and, but of the wrongful acts of the defendants and each of them would have stocked said pasture and that he had an opportunity to do so. That two of the defendants, Sam Zarrow and Henry Zarrow, during this period of time owned the oil mining leases and that they, together with the defendant C.O. Dunn and other employees, operated said oil mining leases. That they failed and neglected to prevent salt water, oil and other substances from escaping and allowed it to run over the surface of the ground, and certain openings were exposed to the cattle in the pasture, and ran into the stock water, and that by reason of the acts of the defendants, and each of them, he was prevented from taking cattle to pasture. That he had an opportunity and contract to do so, and was damaged in the sum of $3,000. The answer of the defendants was a general denial. The case was tried to a jury and it returned a verdict for the plaintiff in the sum of $2,650. The evidence of the plaintiff establishes that he is the owner of a ranch, a part of which was the "North pasture" which comprised about 1200 to 1400 acres. That in the spring of 1951 he was taking cattle to graze and took 500 head of cattle belonging to Bill Lohman to graze on his south pasture; that Bill Lohman later contracted with plaintiff, through plaintiff's foreman, Bright Drake, to put 200 head of other cattle in the north pasture at $15 per head for the grazing season of April to October, 1951. That the foreman, Drake, thereafter checked the pasture and found the creek polluted with salt water and oil; *217 that he told Lohman about it and after learning of the pollution, Lohman refused to put his cattle in the north pasture. That Sam Zarrow and Henry Zarrow, operating as Sooner Oil Company and Sooner Pipe and Iron Company, were the owners of the oil mining lease within the pasture; that C.O. Dunn was actually in charge of the lease and operating it; that Dunn looked after the production of oil and salt water, and did all the work on the lease; that oil and salt water escaped from the defendants' leases in sections 20 and 21, which were in the north pasture; that oil and salt water leaked out of the stuffing box; that there was a lot of leakage around their wooden tanks; and they had a lot of old pipe that leaked; that complaint was made to Dunn all summer long about the pollution, and Dunn always promised it would be corrected. The salt water and oil flowed over a salt water pond down the hillside into the stream, and stood in pools in the bed of the stream most of the summer of 1951; that the stream was a water supply for cattle in said north pasture; that because of the condition of the pollution. Lohman's cattle were not put to pasture in the north pasture. That the salt water pond was brim full around the middle of August, 1951, when plaintiff took pictures of the conditions existing on the lease in said north pasture, which were introduced in evidence. That defendants, in the middle of August, 1951, long after the contract was broken, started to correct the conditions there existing. That expenses incurred in the caring for the Lohman cattle, if they had been grazing, would have been $50 for salt, and $300 for labor for the six months grazing season. The defendants say in their brief that the trial court erred in overruling their demurrer to the petition. From an examination of the petition of the plaintiff we hold the trial court did not err in such ruling. In Pure Oil Co. v. Quarles, 183 Okl. 418, 82 P.2d 970, 975, we held: "So far as the facts indicate, plaintiffs were in peaceable and undisputed possession of the 2,480 acres; for a consideration they agreed to let Bozarth occupy and use the pasture. There is no law prohibiting such a contract. If the parties are willing to enter into the same, knowing the existing circumstances, it is enforceable, and disinterested third parties who interfere and wrongfully cause a breach thereof cannot assail the contract by interposing claims or defenses that may be asserted by the parties thereto. Bozarth was willing to perform but for the pollution caused by defendants. This trespass caused the actual damage for which plaintiffs were entitled to judgment as rendered. We must hold, therefore, that the judgment for actual damages is supported by the facts as found." The defendants in their brief contend that the court had no jurisdiction of the subject matter of the suit as the venue was not in Osage county. This contention is based on the fact that only one of the defendants was a resident of Osage county, C.O. Dunn, who they claimed was a pumper and was not a proper party defendant. As authority for such contention, the defendants cite: Summers v. Williams, 206 Okl. 164, 242 P.2d 139. In that case we find some discussion which seems to be contrary to our holding in this case. To that extent the same is overruled. As reflected by the evidence the defendant, Dunn, did not own any interest in the producing wells, but was the employee of the other two defendants who did own the wells, and had charge of the operations of the wells and leases for them. The rule is stated in Franklin Drilling Co. v. Jackson, 202 Okl. 687, 217 P.2d 816, 817, 19 A.L.R.2d 1015, as follows: "52 O.S. 1941, § 296, which provides that no inflammable product, or salt water from any oil or gas well shall be permitted to flow over the land, places a duty upon the owner and the operator of such well of preventing such substances to escape from the well to the premises of others. The statute is a penal one and a violation thereof renders the offenders liable for all damages caused thereby." *218 In that case we held for violation of section 296, of Title 52 O.S. 1951, negligence as a matter of law is imputed and implied to those in charge of the operations, as well as to the owner. The petition alleged, and the evidence established that the defendant, Dunn, was in charge of the leases and operations thereof when salt water escaped and polluted the stock water. There are other assignments of error, to-wit: "The court erred specifically in the admission of incompetent testimony in the case and in showing throughout the trial of the case his interest in and his prejudice for the plaintiff in the case. "Error of the court in admitting certain testimony with respect to ownership and title to real estate involved in the case. "Error of the court in defining certain issues and reiterating statements prejudicial to the defendants." We have made a careful examination of these last three assignments of error and hold that the trial court did not commit reversible error in his action and holding therein. In Moses v. Miller, Okl., 268 P.2d 900, we held: "Under the provisions of Title 22, § 1068, O.S. 1951, a cause will not be reversed on account of improper or unwarranted remarks made by the court in the progress of the trial unless from an examination of the entire record it appears that a miscarriage of justice has resulted or that a party has been deprived of a substantial constitutional or statutory right." Judgment affirmed. JOHNSON, C.J., WILLIAMS, V.C.J., and WELCH, ARNOLD, HALLEY, BLACKBIRD and JACKSON, JJ., concur. DAVISON, J., dissents.

508 F.3d 905 (2007) Joseph F. NASCIMENTO, Plaintiff-Appellant, v. Katherine DUMMER; Robyn Weber, Defendants-Appellees. No. 06-35062. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 25, 2007. Filed November 21, 2007. *906 *907 Kevin E. Vainio, Esq., Attorney at Law, Butte, MT, for appellant Joseph F. Nascimento. Robyn L. Weber, Weber Law Firm, PLLC, Helena, MT, pro se. Before: B. FLETCHER, ANDREW J. KLEINFELD, and RONALD M. GOULD, Circuit Judges. GOULD, Circuit Judge: This appeal requires us to consider issues relating to the district court's jurisdiction during the pendency of interlocutory appeals and whether a sanction of dismissal was error. Joseph Nascimento ("Nascimento") raises three issues in this appeal: (1) whether the Montana district court had jurisdiction to set a discovery schedule before the mandate had issued on Nascimento's appeal of a Nevada district court order transferring the case to Montana; (2) whether the Montana district court abused its discretion in denying Nascimento's motion to extend the discovery deadline; and (3) whether the Montana district court erred in dismissing, or even had jurisdiction to dismiss, Nascimento's suit without prejudice as a sanction for his and his attorney's failure to appear at a scheduled pretrial conference. I Nascimento filed a complaint in federal district court in Nevada in July of 2003 asserting various claims against, among other defendants, his ex-wife and the attorney who had represented her in a custody dispute that was resolved several years before this action. Nascimento alleged that improprieties took place in connection with the custody dispute. In June of 2004, the Nevada district court dismissed his claims against most of the named defendants for lack of personal jurisdiction but permitted the suit to continue against the ex-wife and former lawyer.[1] With respect to these remaining defendants, the Nevada court exercised its authority under 28 U.S.C. § 1406 to transfer the case to the District of Montana, where both defendants resided and where most of the events underlying Nascimento's claims had taken place. Nascimento appealed the district court's refusal to reconsider both the dismissal of the defendants and the transfer of the case to the United States Court of Appeals for the Ninth Circuit, which ultimately dismissed the appeal on the *908 ground that it did not relate to a final, appealable order. After the order dismissing this appeal was filed but nine days before the mandate issued, the Montana district court entered an order setting a discovery schedule in Nascimento's case. Nascimento requested an extension of the discovery deadline because he stated that he was having difficulty obtaining counsel in Montana, but the court denied his motion. Nascimento then filed a Notice of Appeal, or alternatively a Request for a Writ of Mandamus, in the Ninth Circuit seeking review of the order denying his motion to extend discovery. This Notice of Appeal was faxed to the district court and entered in the docket. One week after Nascimento's Notice of Appeal of the discovery order was filed, the district court held a final pretrial conference, the date for which had been set more than a month earlier. Neither Nascimento nor his attorney appeared at that conference, nor did either of them alert the district judge or opposing parties of their intention not to appear because of the pending appeal. Robyn Weber, the former lawyer for Nascimento's ex-wife, was the only party who attended the pretrial conference. At that conference District Judge Molloy declared that he would dismiss Nascimento's complaint as a sanction under Federal Rule of Civil Procedure 16(f) for his failure to appear as well as for his lack of preparation for trial. Nascimento's complaint was thereafter dismissed without prejudice in a written order filed five days later. II We consider each of the issues raised by Nascimento in turn. (1) The Nevada district court order that Nascimento appealed to the Ninth Circuit in June of 2004 was not a final, appealable order. The Nevada district court order of which Nascimento was seeking reconsideration had two components: dismissal of some, but not all, of the defendants for lack of personal jurisdiction; and transfer of the claims against the remaining defendants to the District of Montana under 28 U.S.C. § 1406. Neither of these orders is a final appealable order, nor does either one satisfy the collateral order doctrine. See Special Investments, Inc. v. Aero Air, Inc., 360 F.3d 989, 993 (9th Cir.2004) (dismissal of some defendants for lack of personal jurisdiction while allowing suit to continue against others is not directly appealable); Varsic v. U.S. District Court, 607 F.2d 245, 251 (9th Cir.1979) (transfer orders under 28 U.S.C. § 1406 are not directly appealable). Consequently, the denial of Nascimento's motion to reconsider these earlier interlocutory orders was also not independently appealable. See Long v. Bureau of Economic Analysis, 646 F.2d 1310, 1317 (9th Cir. 1981) (vacated on other grounds by 454 U.S. 934, 102 S.Ct. 468, 70 L.Ed.2d 242). When a Notice of Appeal is defective in that it refers to a non-appealable interlocutory order, it does not transfer jurisdiction to the appellate court, and so the ordinary rule that the district court cannot act until the mandate has issued on the appeal does not apply. See Ruby v. Secretary of Navy, 365 F.2d 385, 388-89 (9th Cir.1966) (en banc). Nascimento's June 2004 Notice of Appeal was defective in that it sought to appeal non-appealable orders. Thus we never had jurisdiction over that appeal, and it was proper for the Montana district court to begin exercising jurisdiction over the case.[2] *909 (2) The Montana district court did not abuse its discretion by denying Nascimento's motion to extend the discovery deadline. See Century 21 Real Estate Corp. v. Sandlin, 846 F.2d 1175, 1181 (9th Cir.1988). Nascimento had nearly five months to conduct discovery after the order setting the discovery schedule was entered, but he made no attempts to do so until or immediately before the deadline. His claim that he was delayed in finding Montana counsel to help in the discovery process because of uncertainty about the jurisdictional and venue issues in the case is not persuasive, because the mandate in his appeal on those grounds issued only nine days after the discovery schedule in the Montana district court was set. Finally, the events giving rise to Nascimento's claims against his ex-wife and her lawyer, which arose following a domestic relations dispute, had occurred several years earlier, and had lasted in some form or another for several years, so the factual contours of the issues about which he wanted information through discovery were established and did not require more time to develop. The district court in Montana acted within its sound discretion in denying Nascimento's motions for an extension.[3] (3) The district court also did not abuse its discretion when it dismissed Nascimento's case without prejudice as a sanction under Federal Rule of Civil Procedure 16(f) for his and his attorney's failure to appear at a scheduled pretrial conference or to otherwise prepare for trial. The district court properly considered the factors relevant to its decision to dismiss the complaint as a sanction for a rules violation and concluded that no less severe sanction would be appropriate under the circumstances and that continuing the suit in light of Nascimento's non-cooperation would risk prejudicing the defendants. See Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir.1987). A dismissal sanction will be overturned if the reviewing court has a definite and firm conviction that the sanction was clearly outside an acceptable range. Chism v. National Heritage Life Ins. Co., 637 F.2d 1328, 1331 (9th Cir.1981) (overruled on other grounds by Bryant v. Ford Motor Co., 832 F.2d 1080 (9th Cir.1987) (en banc)). Here, dismissal of Nascimento's complaint was an appropriate and permissible response of the district court to his failure to appear or to explain that he would not be appearing because of his pending appeal, at the scheduled pretrial conference. The district court did not abuse its discretion in imposing this sanction. Finally, that Nascimento had already entered a Notice of Appeal regarding the denial of his motion to extend discovery did not deprive the Montana district court of jurisdiction to dismiss his complaint. Discovery orders, such as an order not to extend the time for discovery, are interlocutory and thus not usually subject to immediate appeal. See David v. *910 The Hooker, Ltd., 560 F.2d 412, 415 (9th Cir.1977). As explained above, appeals of such interlocutory orders do not transfer jurisdiction to the appellate court and thus do not strip the district court of jurisdiction to conduct further proceedings in the case. Ruby v. Secretary of Navy, 365 F.2d 385, 388-89 (9th Cir.1966) (en banc). This precedent signifies that when a litigant makes an improper interlocutory appeal, such action will not throw a monkey wrench into the machinery of our justice system. Instead, when an improper appeal is taken, the district court retains its jurisdiction to act on the case, and its extant orders must be followed by the litigants, at risk of grave sanction. Though Nascimento also framed his Notice of Appeal as a petition for a writ of mandamus, such petitions for extraordinary writs do not destroy the district court's jurisdiction in the underlying case. See Ellis v. U.S. District Court, 360 F.3d 1022, 1023 (9th Cir.2004) (en banc). Further, even if the order denying Nascimento an extension had been immediately appealable under the collateral order doctrine, it only would have divested the district court of jurisdiction over the discovery issue and would not have affected its jurisdiction over other matters in the case. See Britton v. Co-Op Banking Group, 916 F.2d 1405, 1412 (9th Cir.1990). No stay of the district court proceedings pending resolution of the appeal had been sought or granted, and so Nascimento remained under an obligation to comply with the district court's orders and pretrial timetable notwithstanding his appeal. His failure to comply with court orders was properly sanctionable by a dismissal of his case without prejudice.[4] AFFIRMED. NOTES [1] The Nevada district court order that was entered in June of 2004 and from which Nascimento appealed was actually an order denying his motion for reconsideration of that court's earlier order dismissing Nascimento's suit against most of the defendants for lack of personal jurisdiction and transferring the case against the remaining defendants to Montana. Nascimento appealed both the original order and the order denying his motion for reconsideration to the Ninth Circuit, but as only the dates surrounding the second appeal are relevant to the case before us, the procedural history of the first appeal is not discussed in this opinion. [2] Even if the Montana district court had erred in initiating proceedings in the case before the mandate had issued, any such error would be made moot by that court's later decision to dismiss Nascimento's case as a sanction for his non-appearance at the pretrial conference. See Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969) (holding that an issue is moot when it has "lost its character as a present, live controversy of the kind that must exist if we are to avoid [rendering] advisory opinions on abstract propositions of law."). [3] Though the denial of a motion to extend discovery is generally not appealable, in this case it merged into the district court's final appealable order dismissing Nascimento's case without prejudice, and so we have jurisdiction to review it. Cf. Chacon v. Babcock, 640 F.2d 221 (9th Cir.1981) (holding that an order is not appealable unless it disposes of all claims as to all parties or judgment is entered in compliance with Fed.R.Civ.P. 54(b)). [4] Such a dismissal without prejudice is a final appealable order open to direct review by this court. See United States v. Wallace & Tiernan Co., 336 U.S. 793, 794 n. 1, 69 S.Ct. 824, 93 L.Ed. 1042 (1949) ("That the dismissal was without prejudice to filing another suit does not make the cause unappealable, for denial of relief and dismissal of the case ended this suit so far as the District Court was concerned."); see also De Tie v. Orange County, 152 F.3d 1109, 1111 (9th Cir.1998) ("The dismissal of an action, even when it is without prejudice, is a final order."); Thompson v. Potashnick Constr. Co., 812 F.2d 574, 576 (9th Cir.1987) ("That the dismissal is without prejudice and the litigation may be renewed does not affect its appealability. . . . ").

129 Cal.App.2d 67 (1954) 276 P.2d 703 GLADYS JENSEN et al., Respondents, v. SOUTHERN PACIFIC COMPANY (a Corporation), Appellant. Docket No. 15931. Court of Appeals of California, First District, Division One. November 22, 1954. *69 Rankin, Oneal, Luckhardt, Center & Hall, Duncan Oneal, Hugh S. Center and W.R. Dunn for Appellant. Fitzgerald Ames, Sr., James F. Boccardo, David S. Lull and Edward J. Niland for Respondents. WOOD (Fred B.), J. The widow and two minor children of Kresten Jensen recovered judgment for $25,000 from Southern Pacific Company for the death of Kresten, which occurred while he was driving a truck easterly on Broadway Street, Burlingame, across the Southern Pacific tracks. He was hit by a southbound train. It was 5 p.m. on May 8, 1946. [1] (1) Did the verdicts in favor of the engineer, conductor and fireman, employees of the Southern Pacific Company, exonerate the company from liability based upon neglident operation of the train? No. If the company's liability, predicated upon negligent operation of the train, rested solely upon respondeat superior and not upon its own independent tort, exoneration of the trainmen would have exonerated the company. (Freeman v. Churchill, 30 Cal.2d 453, 461 [183 P.2d 4], and authorities there cited.) *70 However, in the instant case, plaintiffs in one of the counts of the complaint, pleaded concurrent liability upon the part of the company and the trainmen.[*] Such allegations presented the possibility of proof of independent negligence upon the part of the company. This principle was recognized in Benson v. Southern Pac. Co., 177 Cal. 777 [171 P. 948]. "The verdict in the case was against the defendant Southern Pacific Company, and no reference was made therein to the other defendant, the motorneer." (P. 778.) The complaint was framed in part upon the negligence of the employee and the responsibility of the employer therefor but it was also alleged that the defendants were negligent in operating the train at an excessive speed at a crowded thoroughfare. "In so far as this was done without express direction of the employer, it would be liable, therefor, only on the rule of respondeat superior. If, however, the negligent speed was maintained by the express direction of the employer, the latter would on that account be negligent, and its negligence would concur with that of the employee who obeyed the instruction by operating at such negligent speed, and the right to recover against them would be joint." (P. 779.) It further appeared that there was evidence "tending to prove that the train was being operated on schedule time and at a rate of speed predetermined by the defendant corporation. If the verdict was based upon that view of the case, the responsibility of the parties defendant being joint, the defendant company would not be prejudiced by the failure to find against its codefendant. All intendments being in favor of the verdict, it must be considered that the jury based the same upon a finding of joint liability, unless there is something in the record which prevents that conclusion." (P. 780.) The absence of a verdict in respect to the trainman in the Benson case does not render the reasoning of the court in that case any less applicable to the pleadings and the evidence in our case, as said in Hedlund v. Sutter Med. Serv. Co., 51 Cal. App. *71 2d 327, 335 [124 P.2d 878]; "We recognize that in the Benson case no verdict was returned for or against the servant, but the case was treated by the court as one in which the failure to return a verdict was tantamount to a verdict in the servant's favor. It was cited to this effect in Blackwell v. American Film Co., 189 Cal. 689, 698 [209 P. 999]." We find nothing inconsistent with these views in Will v. Southern Pac. Co., 18 Cal.2d 468 [116 P.2d 44], or other subsequent decisions in this state. In our case, there was evidence that the company, not the trainmen, directed and controlled the speed of trains at the crossing. The engineer testified that he did not have the determination of speed; that he did not determine whether he should go 60 miles an hour past crossings; the speed boards regulated the speed of the train that he maintained; the type of crossing protection did not make any difference as to the speed he maintained; that "our speed is all regulated by speed boards." The time schedule also governed. It was prescribed by the company, not by the trainmen. According to the conductor's best recollection the speed of the train at the time of the accident was 60 miles an hour. [2] (2) Did the superior court have jurisdiction to determine whether or not the defendant company was negligent in failing to provide crossing protection additional to that required by the Public Utilities Commission? Yes. The defendant company maintained at this crossing a warning device known as the Griswold, installed pursuant to an order of authorization of the Public Utilities Commission in 1934 upon application of the company for permission to make such an installation. This order was made by the commission against the background of its General Order No. 75-A which in 1939 was superseded by General Order No. 75-B, prescribing regulations for the protection of grade crossings. Section 8 of order 75-B declares that no railroad shall "remove" any form of crossing protection or "reduce" the hours during which any such protection is maintained or "substitute" any form of crossing protection for a form already maintained unless the consent for such "removal, reduction or substitution" shall have been secured from the commission, save for certain exceptions not here relevant. It appears that the commission has given no consent to any such "removal, reduction or substitution" at this crossing at the sole expense of the defendant company. Prior to the *72 commission's installation of the Griswold signal in 1934, the city of Burlingame in 1930 and again in 1931 applied for orders requiring the company to install gates at this crossing. The commission granted the first request contingent upon the city's paying half the cost and the second request contingent upon the city's paying all the cost of installation. The city failed to meet those conditions. The company contends that we have here the exercise by the Public Utilities Commission of exclusive jurisdiction for the protection of the traveling public at street and railway grade crossings "which establish the minimum and the maximum of care to be exercised in the matter of warning highway travelers of trains in the course of usual operations," at the very crossing at which the accident here involved occurred. The company in this behalf invokes the plenary power which the Constitution gives the Legislature to confer authority upon the commission and the exercise of that plenary power as expressed in such statutes as sections 768, 1202, 1706, 1709, 1759, 2109 and 2110 of the Public Utilities Code and interpreted in such decisions as Los Angeles Ry. Corp. v. Los Angeles, 16 Cal.2d 779, 783-788 [108 P.2d 430]; Northwestern Pac. R.R. Co. v. Superior Court, 34 Cal.2d 454 [211 P.2d 571]; People v. Western Air Lines, 42 Cal.2d 621, 630, 633-634 [268 P.2d 723]; Holder v. Key System, 88 Cal. App.2d 925, 932 [200 P.2d 98]. The fallacy of this argument inheres in the failure to distinguish between the functions respectively exercised by the commission and the court in the situation presented by the facts of this case. The overlap of function is seeming, not real. The commission acts in a legislative capacity; the court, in a judicial capacity. The commission lays down requirements governing future conduct by the company for the safety of the public at grade crossings. The court determines whether or not the past conduct of the company was in violation of duties owed by it to particular members of the public. The state, in prescribing such safety regulations (whether done by legislative enactment expressed in a statute or by action of the commission expressed in an order), has never gone so far as to say to a utility company that compliance therewith constitutes a complete discharge of its duties toward the public. The state does not undertake to foresee and declare in advance what, under all circumstances, constitutes ordinary care. Regulations of this nature lay down minimum, not maximum, requirements. (Hinkle v. Southern Pac. Co., *73 12 Cal.2d 691, 701-702 [87 P.2d 349]; Peri v. Los Angeles Junction Ry., 22 Cal.2d 111, 126 [137 P.2d 441]; Bush v. Southern Pac. Co., 106 Cal. App. 101, 108 [289 P. 190]; Lloyd v. Southern Pac. Co., 111 Cal. App.2d 626, 637-638 [245 P.2d 583].) Indeed, the regulations here involved show upon their face that they are minimum, not minimum and maximum. Section 8 of General Order 75-B proscribes merely the "removal, reduction or substitution" of crossing protection devices without commission consent. It does not prohibit "additions" thereto without such consent. And section 7 of the General Order affirmatively sanctions such "additional protection" without prior consent. It requires merely that additional installations be "reported" to the commission. [3] (3) Was it error to permit the jury to consider whether or not ordinary care required the furnishing of certain warning devices, such as a flagman or crossing gates? No. Defendant's complaint under this head seems to be that the question whether or not a person of ordinary prudence would have furnished one or more additional warning devices, such as a flagman or gates, presented technical engineering questions improper for submission to the jury; improper in the absence of proof of a business custom or practice of furnishing such devices under similar circumstances. That may be the law in some jurisdictions but not in California. As early as 1892 our Supreme Court held it competent for a jury to determine whether or not it was negligence for a railway company to use a "Miller hook coupling" on a caboose in connection with a "Potter drawhead coupling" on a freight car. (Martin v. California Cent. Ry. Co., 94 Cal. 326 [29 P. 645].) In Green v. Southern Pac. Co. (1921), 53 Cal. App. 194 [199 P. 1059] (hearing by Supreme Court denied), the court held that the "jury, under the evidence, was authorized to determine that failure to have a flagman there [a grade crossing] was negligence and a proximate cause of the accident." (P. 203. See also Marchetti v. Southern Pac. Co., 204 Cal. 679, 684 [269 P. 529]; Peri v. Los Angeles Junction Ry., supra, 22 Cal.2d 111, 120-126.) [4] "Evidence of custom in the same trade or occupation is admissible for the consideration of the jury but it is not conclusive on the question of what constitutes ordinary care. Conformity to `the general practice or custom would not excuse the defendant's failure unless it was consistent *74 with due care.' [Citations.]" (Reagh v. San Francisco Unified Sch. Dist., 119 Cal. App.2d 65, 70 [259 P.2d 43].) Defendant also complains that on this subject the jury "was not instructed to consider whether ordinary care was used in the matter of warnings at the crossing; instead it was instructed upon the wholly immaterial matter as to whether ordinary care was used to furnish and maintain devices for the purpose of protecting travelers in general and warning them ..." This seems to us a distinction without a difference. [5] We perceive no sound reason why, in addition to defining negligence and the duty to use ordinary care, a court may not inform the jury of the various factors presented by the issues and the evidence which they may properly take into consideration, such as speed and the presence or absence of signals, flagmen and gates. [6] Defendant speaks of evidence of the use by defendant of gates at four other grade crossings in Burlingame. It objects that there was no evidence of similarity of conditions to justify the introduction of that evidence. But there was evidence that all of the crossings were over major streets in the city of Burlingame; that Broadway crossing had the heaviest vehicular and pedestrian traffic; and that the amount of traffic going over a crossing has a very important bearing upon the determination of the type of crossing protection to be used. Identical conditions will rarely be found. Substantial similarity is normally sufficient. Determination of relevancy, including similarity of conditions in such a case, is primarily the function of the trial judge. We find no sufficient basis for disturbing his decision in this instance. The evidence had some tendency to show custom or practice and also the practicability and feasibility of installing and maintaining gates at such crossings, including Broadway. Defendant speaks also of the impossibility of the creation, by custom or usage, of a duty to maintain gates at Broadway when a duty to maintain Griswold signals thereat is imposed by order of the Public Utilities Commission. That reflects a misconception of the scope of that order, discussed earlier in this opinion. [7] Moreover, custom or usage does not create a duty. It is merely a factor for consideration of the jury in determining whether ordinary care was exercised. [8] (4) Was it prejudicial error to admit in evidence the applications of the city of Burlingame to the Public Utilities Commission requesting added safeguards at this crossing? No. *75 The applications of the city of Burlingame to the Utilities Commission for an order requiring the railway company to install and maintain gates at this crossing, including Broadway, were, as stated by the court "not offered for the truth of the statements contained therein, only to show that the city of Burlingame had notified the railroad that they deemed the crossing to be dangerous." Thus limited, they tended to show that the defendant company had been put upon its inquiry concerning the potentially hazardous character of this particular crossing. As such, they seem relevant. The company says that it was chargeable with such knowledge; hence, this evidence was unnecessary, and therefore irrelevant, citing Martindale v. Atchison, T. & S.F. Ry. Co., 89 Cal. App.2d 400, 412 [201 P.2d 48]. In that case the defendant had admitted knowledge of previous accidents mentioned in the proffered letters. In the instant case, there was no similar admission on the part of the defendant. Indeed, it denied the existence of any unusual hazard at the Broadway crossing. Moreover, while the defendant was probably chargeable with knowledge of the physical character and condition of its property, it was not necessarily chargeable, to the same degree at least, with knowledge of traffic conditions, including the volume and congestion of traffic at this crossing, which contributed materially to the hazardous condition in question. Thus, it has been held that when the existence of danger is due to causes other than the activity of the defendant, it is necessary to prove that he had actual or constructive notice of that danger. (Hatfield v. Levy Brothers, 18 Cal.2d 798, 806 [117 P.2d 841].) [9] The degree of care necessary to constitute ordinary care is measured by reference to the circumstances of danger and risk known to the obligor; hence "it is usually ... permissible to prove any fact, known to such person at the time, which would have a reasonable tendency to increase or decrease the risk and danger of a particular course of action." (Bresee v. Los Angeles Traction Co., 149 Cal. 131, 136 [85 P. 152, 5 L.R.A.N.S. 1059]; emphasis added.) In Marchetti v. Southern Pac. Co., supra, 204 Cal. 679, 684, the court attached significance to the fact that the city authorities had requested the railway company to install an automatic crossing signal. Moreover, a party is not limited to making out a mere prima facie case. (People v. McMonigle, 29 Cal.2d 730, 742-743 [177 P.2d 745].) Under the circumstances, we see no sound reason why *76 plaintiffs should be precluded from showing that defendant had in fact been put upon its inquiry concerning such hazardous condition. [10] (5) Was there prejudicial error in the instructions relative to decedent's duty to exercise due care? No. The court advised the jury: "If you find that what Kresten Jensen did in this case was what an ordinarily prudent person would have done under like circumstances, you will not find him guilty of contributory negligence even though you find that he did not stop, look or listen or did not alight from his truck." (No. 37.) The court also read to the jury the text of subdivision (a) of section 575 of the Vehicle Code and instructed them in the terms of instruction No. 149 of B.A.J.I. (3d rev. ed.). The court thereby instructed that failure to stop when a clearly visible signal device gives warning of the immediate approach of train raises a presumption of negligence, a presumption which might be overcome by evidence showing that the conduct in question was excusable, justifiable and such as might reasonably have been expected from a person of ordinary prudence. Defendant contends that the first of these instructions (No. 37) is erroneous and that the two are contradictory, making it impossible to know which one the jury used and applied in finding upon the issue of contributory negligence. Instruction No. 37, taken alone and literally, is erroneous and presents a seeming contradiction with No. 149. However, when we read both instructions in the light of other instructions[**] on the subject, we do not think the total effect was misleading. *77 (6) Was it prejudicial error to refuse defendant's requested instruction concerning excuse or justification for the violation of a statute? No. In connection with the text of section 575, subdivision (a), of the Vehicle Code, the court gave instruction No. 149 of B.A.J.I., as we have noted. The legal effect of a presumption was also appropriately explained to the jury, in the same terms as was done in Combs v. Los Angeles Ry. Corp., 29 Cal.2d 606, 609 [177 P.2d 293], and in Ornales v. Wigger, 35 Cal.2d 474, 478-479 [218 P.2d 531]. Defendant assigns error because B.A.J.I. No. 149 lacks a description of the kind of facts that will excuse the violation of a statutory standard, claiming that defendant made a proper request for such a description. B.A.J.I. No. 149 is "a complete and correct statement of the law" and "when combined with the instruction explaining the legal effect of a presumption, clearly states the applicable principles of law" (Combs v. Los Angeles Ry. Corp., supra, 29 Cal.2d 606, 610) but "the fact which will excuse the violation of a statute has been defined by the court as one resulting `from causes or things beyond the control of the person charged with the violation'" (Satterlee v. Orange Glen Sch. Dist., 29 Cal.2d 581, 589 [177 P.2d 279]). [11] It is not error to refuse an instruction which is incomplete because its omits the element of excuse or the definition of the facts which will excuse the violation of a statute. (Combs v. Los Angeles Ry. Corp., supra, 29 Cal.2d 606, 609; Tossman v. Newman, 37 Cal.2d 522, 524-525 [233 P.2d 1]; Boots v. Potter, 122 Cal. App.2d 927, 937 [266 P.2d 176].) [12] But when such an instruction (B.A.J.I. No. 149, for example) is given, a party who desires a more specific or elaborate instruction (such as a definition of the facts which will justify or excuse a violation) it is his duty to prepare *78 and request a suitable instruction therefor. (Ornales v. Wigger, supra, 35 Cal.2d 474, 478-479; Kuehn v. Lowthian, 124 Cal. App.2d 867 [269 P.2d 666]; Gioldi v. Sartorio, 119 Cal. App.2d 198 [259 P.2d 62].) Defendant claims it met these requirements when it requested the following instruction, which the court refused: "The Court instructs you that a presumption of negligence or contributory negligence arises from the violation of an express statute, such as the provisions of the California Vehicle Code, which I have read to you. In the absence of sufficient evidence in excuse or justification to balance the resulting presumption of negligence or contributory negligence, the presumption of negligence or contributory negligence is conclusive. The burden of producing evidence in excuse or justification rests upon the violator, or upon those claiming damages for his death. "Moreover, it is not a sufficient excuse or justification for the violation of an express statute that it resulted by reason of some other negligent act upon the part of the violator, such as his failure, upon approaching a railroad grade crossing, to observe other precautions which a reasonably prudent motorist woud have observed under the conditions which then and there existed. "A showing of excuse or justification is not sufficient unless it shows that the violation resulted `from causes or things beyond the control of the person charged with the violation.'" [13a] We do not think this request met the requirements. The proffered instruction is not clear and adequate in all respects. It omits the customary expression "if you find," the absence of which tends to suggest there has been a violation; it refers to evidence in excuse or justification to "balance" the presumption, instead of to "overcome," or its equivalent; the next to the last sentence tends to assume the "violation" of a statute and a "failure" to observe other precautions, and tends to obscure the test which is clearly and correctly stated in the last sentence of the instruction. [14] "A court is under no duty and indeed should not give an instruction which, although technically a correct statement of the law, is so worded as to be confusing or misleading, or which by construction or implication may appear to indicate that a given rule of law applies only to one of the parties when it in fact applies equally to both." (Kuehn v. Lowthian, supra, 124 Cal. App.2d 867, 873; hearing by Supreme Court denied.) *79 [13b] The trial judge, confronted with defendant's request for this instruction and plaintiffs' request for B.A.J.I. No. 149, naturally chose the latter as the more adequate and more clearly expressed and one which had been approved by the Supreme Court. At the moment of making that selection, it quite conceivably did not occur to the judge that the last sentence of defendant's instruction was of special or critical significance to it, especially in view of another of defendant's instructions which by its very brevity and clarity of expression emphasized and focused attention upon the element of "excuse or justification." This instruction the court gave. It reads as follows: "If you find from all the evidence that at the time and place of the accident in question the deceased, without adequate excuse or justification, violated a standard of conduct established by an express statute for the operators of motor vehicles approaching a railroad grade crossing, then the deceased was guilty of contributory negligence as a matter of law without any other proof of his failure to exercise due care." Here we have defendant requesting and obtaining an instruction on the effect of a statutory violation when committed "without adequate excuse or justification" and no mention made of the kind of circumstances which might "excuse or justify." Under these circumstances we do not consider that defendant appropriately and adequately presented to the trial judge its desire for a suitable qualifying instruction concerning the circumstances which will excuse the violation of a statute. [15] (7) Did plaintiffs' counsel commit prejudicial misconduct during his closing argument to the jury? No. In his argument to the jury defense counsel stressed the time, almost a year, that elapsed between the date of the accident and the filing of the complaint and (according to plaintiffs' brief and not denied by defendant) challenged plaintiffs to explain the delay. In response, plaintiffs' counsel said to the jury: "Now, he (Mr. Center) asked why did it take so long to bring suit. He asked me something that might cause me to go outside of the record in answering that. Let's take a hypothetical situation now. Of course, we had no evidence supporting it in this particular case, but let's take a hypothetical situation, let's take an injury or a death, any of you lose a loved one as a result of an accident, you consulted a lawyer, you present *80 the facts to him. He enters into an agreement of employment with you and undertakes the prosecution of your case on your behalf and on behalf of your children, if there are other heirs at law. Then the other side, acting through adjustors such as Mr. Blake, who has been in the courtroom all during this trial, comes to the attorney representing those heirs and settlement negotiations commence. Suit is usually filed ____" Thereupon, defendant's counsel objected, cited this statement as prejudicial misconduct and asked for a mistrial and that the jury be instructed to pay no attention to these remarks of counsel. The court ruled: "Well, I have an instruction here that I will give to the Jury, that any statement of counsel is not evidence and you are to decide the case only from the evidence produced by the witnesses, and also this last statement that was objected to of Mr. Lull's will be stricken from the record, and the Jury is instructed to pay no attention to it." In view of this ruling and admonition to the jury it is improbable that the quoted statement of plaintiffs' counsel resulted in a different verdict than would have been given had no such statement been made. "It is only in extreme cases that the court, when acting promptly and speaking clearly and directly on the subject, cannot, by instructing the jury to disregard such matters, correct the impropriety of the act of counsel and remove any effect his conduct or remarks would otherwise have." (Tingley v. Times Mirror Co., 151 Cal. 1, 23 [89 P. 1097]. See also Albaugh v. Mt. Shasta Power Corp., 9 Cal.2d 751, 778 [73 P.2d 217], and Drotleff v. Renshaw, 34 Cal.2d 176, 180 [208 P.2d 969].) [16] This same contention was presented to and overruled by the trial court upon defendant's motion for a new trial. That is a determination that the challenged statement was made in good faith and did not prejudice the defendant, a determination not to be disturbed unless plainly wrong. (Lafargue v. United Railroads, 183 Cal. 720, 724 [192 P. 538]; Haskins v. Southern Pac. Co., 3 Cal. App.2d 177, 193 [39 P.2d 895].) The judgment is affirmed. Peters, P.J., and Bray, J., concurred. A petition for a rehearing was denied December 22, 1954, and appellant's petition for a hearing by the Supreme Court was denied January 19, 1955. NOTES [*] In paragraph III of the second count plaintiffs allege that "said defendants C.A. Maddux [engineer] and M.L. Wallis [conductor] and Southern Pacific Company, controlled, maintained and operated said southbound train, which collided with decedent's truck in such a careless and negligent manner as to cause said train to be propelled at an unlawful, excessive and dangerous rate of speed" and "by causing said southbound train to be operated at an excessively high rate of speed and above that which would be careful or prudent under the circumstances in view of the obstruction caused by the parked cars, trucks and buses, adjacent to said crossing and obscuring the vision and view of said engineer and said decedent at said crossing." [**] Among the other instructions were these: the tracks of a railroad such as those here involved are in themselves a warning of danger; before one drives an automobile upon the space which would be occupied by a train if it were to pass over such tracks it is his duty to use every reasonable opportunity to look and listen for the approach of a train on the tracks. If the view of the tracks is obstructed, greater caution is required in approaching them; if the obstruction is such that one cannot obtain without stopping a reasonable assuring view of the tracks in both directions before entering the dangerous track area, then, ordinarily it is his duty to stop, look and listen for the approach of a train, and if necessary, alight from his vehicle, go forward a few steps and take advantage of the view thus afforded. If a person nearing a railroad crossing saw or heard a train rapidly approaching but failed to heed the warning of danger or endeavored to cross the tracks immediately ahead of the train, the law would hold him guilty of contributory negligence. If deceased without adequate excuse or justification violated a standard of conduct established by express statute for the operators of motor vehicles approaching a railroad grade crossing, he was guilty of contributory negligence as a matter of law without any other proof of his failure to exercise due care. If the deceased took no precaution for his own safety as he came up to and attempted to cross the tracks and his failure to do so was the proximate cause of his death, he was guilty of negligence as a matter of law. Although the law never waives the duty to exercise reasonable care before and in the act of crossing railroad tracks, it does not require that such care be exercised in exactly the same manner under all circumstances; conditions at hand may invite or even require a variation from the pattern of conduct normally required; in determining whether deceased was negligent, you should consider the conditions existing at the time and place and ask whether they were such as would have caused a reasonably prudent person to believe that there was no danger or that there was no need to take all the precautionary measures one should take in approaching and crossing railroad tracks.

12 N.Y.3d 132 (2009) ___ N.E.2d ___ ___ N.Y.S.2d ___ IDT CORPORATION, Respondent, v. MORGAN STANLEY DEAN WITTER & CO. et al., Appellants. Court of Appeals of New York. Argued February 10, 2009. Decided March 26, 2009. *134 Davis Polk & Wardwell, New York City (Guy Miller Struve, Benjamin S. Kaminetzky and Rebecca Winters of counsel), for appellants. *135 Patterson Belknap Webb & Tyler LLP, New York City (Stephen P. Younger of counsel), Grayson & Kubli, P.C., Vienna, Virginia (Alan M. Grayson, of the Virginia bar, admitted pro hac vice, and Victor A. Kubli of counsel), and Bracewell & Giuliani, LLP, Houston, Texas, and New York City (Glenn A. Ballard, Jr., Jeffrey L. Oldham and Michael D. Hess of counsel), for respondent. Judges CIPARICK, GRAFFEO, READ, SMITH and JONES concur; Chief Judge LIPPMAN taking no part. *136 OPINION OF THE COURT PIGOTT, J. IDT Corporation and Telefonica Internacional, S.A., both telecommunications companies, executed a Memorandum of Understanding (MOU) in August 1999 concerning SAm-1, a vast underwater fiber-optic cable network Telefonica was building. Pursuant to the MOU, IDT was to buy from Telefonica a 10% equity share in NewCo, a corporation that would "construct, establish, operate and maintain ... and ... sell capacity on" SAm-1. A separate entity was to be created to market products associated with the network. IDT would have the right to buy capacity in the network, at a favorable rate, during its operational life. In June 2000, Telefonica informed IDT that it intended to modify the MOU, replacing NewCo with a larger entity, Emergia, in which Telefonica offered IDT a five percent share. According to IDT, Morgan Stanley Dean Witter & Co. (Morgan Stanley), Telefonica's investment banker, advised IDT in the summer of 2000 that the value of a five percent interest in Emergia was far greater than that of a 10% interest in NewCo. Nevertheless, IDT, unpersuaded, broke off negotiations with Telefonica in October 2000. Although Morgan Stanley acted as Telefonica's investment banker in relation to SAm-1, it had previously acted on IDT's *137 behalf in 1999, in negotiations concerning a different proposed fiber-optic cable network, and in subsequent matters. IDT engaged Morgan Stanley as its financial adviser in regard to shares in Net2Phone, Inc. that it sold in the summer of 2000 for about $1 billion. According to IDT, in 1999-2000, Morgan Stanley requested and received confidential business and financial information concerning IDT, had access to IDT's records, and enjoyed wide-ranging communications with its executives. IDT commenced an arbitration proceeding on May 25, 2001, against Telefonica, alleging that Telefonica had breached the MOU, in particular its provisions entitling IDT to an equity share in NewCo and giving it the right to buy capacity in SAm-1. IDT sought an award in an amount no less than $3.15 billion. IDT made no allegations against Morgan Stanley. No representative of Morgan Stanley testified, but a valuation memorandum concerning NewCo and Emergia that Morgan Stanley had presented to IDT in 2000 was subpoenaed and submitted to the arbitration panel. Following a lengthy hearing, the panel concluded that Telefonica had breached both the "capacity purchase" and "equity purchase" provisions of the MOU. It calculated IDT's aggregate damages for Telefonica's capacity purchase breach to be $16,883,817. However, noting the weakness of the telecommunications market in the second half of 2000, the panel calculated that the present value of IDT's interest in NewCo was negative, and concluded that IDT had suffered no damages as a result of Telefonica's breach of the equity purchase provisions.[1] Telefonica paid IDT $21.6 million, representing damages and interest. On November 5, 2004, IDT commenced this action against Morgan Stanley, alleging that it had provided Telefonica with confidential information about IDT, induced Telefonica to *138 breach the MOU and, moreover, presented false and misleading evidence to the arbitration panel, affecting the panel's assessment of IDT's damages. Its complaint contains five causes of action: (1) breach of fiduciary duty, (2) intentional interference with existing contract, (3) intentional interference with prospective business relations, (4) misappropriation of confidential and proprietary business information, and (5) unjust enrichment. IDT seeks compensatory damages, disgorgement of profits obtained by Morgan Stanley in connection with SAm-1, punitive damages, and the return of a $10,000,000 fee that IDT paid Morgan Stanley in relation to the Net2Phone, Inc. transaction, plus interest and fees. Morgan Stanley moved to dismiss the complaint under CPLR 3211, arguing, among other things, that IDT's claims were barred by collateral estoppel and the statute of limitations. Supreme Court dismissed IDT's intentional interference with prospective business relations claim, but otherwise denied the motion (2006 NY Slip Op 30076[U]). On appeal, the Appellate Division affirmed, with one Justice dissenting, holding that IDT's remaining claims were not barred by collateral estoppel, because IDT had not "had an opportunity to conduct discovery on the extent of the damages it suffered due to Morgan Stanley's alleged tortious conduct" (45 AD3d 419, 419 [1st Dept 2007]). The majority also concluded that the claims stated valid causes of action and were not time-barred. The Appellate Division granted Morgan Stanley leave to appeal to this Court, certifying the question whether its order was properly made. We answer that question in the negative and reverse.[2] Although the issue of whether IDT is collaterally estopped from relitigating the amount of its compensatory damages divided the Appellate Division in this case, we need not address it, because all of IDT's claims are either time-barred or fail to state a cause of action. We conclude that IDT's breach of fiduciary duty, tortious interference with contract, and misappropriation of confidential and proprietary business information *139 claims are untimely and its unjust enrichment claim fails to state a cause of action. We address the causes of action in the sequence they appear in the complaint. IDT's first cause of action alleges that Morgan Stanley breached fiduciary duties it owed to IDT, by "provid[ing] Telefonica with IDT's confidential and proprietary business and financial information without IDT's knowledge or consent," thus inducing Telefonica to renege on the MOU, and by "devis[ing] a fraudulent scheme to dupe both IDT and the Arbitration Panel as to the `distinction' between NewCo and Emergia and the valuation of these companies." IDT alleges that the arbitration panel was misled into minimizing the amount of damages Telefonica owed to IDT. It seeks full compensatory damages—in an amount it describes at the outset of its complaint as "hundreds of millions of dollars"—as well as disgorgement of profits and punitive damages. IDT submits that its breach of fiduciary duty claim is governed by a six-year statute of limitations and is therefore timely. Morgan Stanley asserts that a three-year limitations period applies. New York law does not provide a single statute of limitations for breach of fiduciary duty claims. Rather, the choice of the applicable limitations period depends on the substantive remedy that the plaintiff seeks (Loengard v Santa Fe Indus., 70 NY2d 262, 266 [1987]). Where the remedy sought is purely monetary in nature, courts construe the suit as alleging "injury to property" within the meaning of CPLR 214 (4), which has a three-year limitations period (see e.g. Yatter v Morris Agency, 256 AD2d 260, 261 [1st Dept 1998]). Where, however, the relief sought is equitable in nature, the six-year limitations period of CPLR 213 (1) applies (Loengard, 70 NY2d at 266-267). Moreover, where an allegation of fraud is essential to a breach of fiduciary duty claim, courts have applied a six-year statute of limitations under CPLR 213 (8) (Kaufman v Cohen, 307 AD2d 113, 119 [1st Dept 2003]). Here, IDT primarily seeks damages—in the amount of "hundreds of millions of dollars"—and the equitable relief it seeks, including the disgorgement of profits, is incidental to that relief. This is not an action in which it can reasonably be asserted that "the relief demanded in the complaint ... is equitable in nature and that a legal remedy would not be adequate" (Loengard, 70 NY2d at 267). Thus, looking to the *140 reality, rather than the form, of this action (see Matter of Paver & Wildfoerster [Catholic High School Assn.], 38 NY2d 669, 674 [1976]), we conclude that IDT seeks a monetary remedy. Moreover, we are not persuaded by IDT's argument that its breach of fiduciary duty claim is essentially a fraud action and therefore governed by a six-year statute of limitations. The fiduciary relationship alleged by IDT exists between Morgan Stanley and IDT, not between Morgan Stanley and the arbitration panel. For us to conclude that IDT's breach of fiduciary duty cause of action is a sufficiently pleaded fraud action, we would have to discern a claim that IDT acted in "justifiable reliance" (Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996]) on Morgan Stanley's alleged misrepresentation or material omission. Although IDT asserts that Morgan Stanley attempted to deceive it in 2000, with regard to the relative values of Emergia and NewCo, IDT does not claim that it was actually duped. In fact, IDT refused to accept a modified MOU, contrary to Morgan Stanley's recommendations. Consequently, we conclude that this is not a fraud allegation, and that the three-year limitations period of CPLR 214 (4) applies. We now turn to the question of when IDT's breach of fiduciary duty claim accrued. A tort claim accrues as soon as "the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint" (Kronos, Inc. v AVX Corp., 81 NY2d 90, 94 [1993]). As with other torts in which damage is an essential element, the claim "is not enforceable until damages are sustained" (id. at 94). To determine timeliness, we consider whether plaintiff's complaint must, as a matter of law, be read to allege damages suffered so early as to render the claim time-barred (id. at 94-97). Here, the only reasonable inference to be drawn from IDT's allegations is that it first suffered loss, as a result of Morgan Stanley's alleged breach of fiduciary duty, after Telefonica refused to comply with the MOU. The exact date of the injury is not alleged but must have been before May 25, 2001, when IDT commenced the arbitration against Telefonica, alleging that it had sustained a loss of some $3.15 billion as a result of Telefonica's breach of their binding agreement. More than three years passed, therefore, *141 before IDT commenced this action, rendering IDT's breach of fiduciary duty claim time-barred.[3] Turning to IDT's second and fourth causes of action[4]— intentional interference with existing contract and misappropriation of confidential and proprietary business information, respectively—the statute of limitations in each case is three years, under CPLR 214 (4), which the parties do not dispute. As with IDT's first cause of action, the claims were not enforceable until IDT first suffered damages. The damages are those resulting from Telefonica's refusal to comply with the MOU— intransigence that was allegedly induced by Morgan Stanley by means of the disclosure of confidential IDT business information. Again, we must conclude from IDT's complaint that it first suffered loss—as a result of Morgan Stanley's alleged interference with contractual relations and misappropriation of confidential business information—when Telefonica refused to comply with the MOU. And again, although the exact date of the injury is not alleged, it must have been before May 25, 2001, rendering the claims time-barred. IDT argues that Morgan Stanley's statute of limitations defenses should be barred by equitable estoppel. However, IDT fails to demonstrate that any action or inaction by Morgan Stanley caused IDT's delay in bringing this action (see Zumpano v Quinn, 6 NY3d 666, 673-676 [2006]). According to its complaint, IDT learned in 2000 that Morgan Stanley was denigrating it in discussions with Telefonica. IDT, given its awareness that Telefonica's financial adviser had disparaged it, should have made further inquiry before the statute of limitations expired (see Putter v North Shore Univ. Hosp., 7 NY3d 548, 553-554 [2006]). Finally, IDT alleges that Morgan Stanley was unduly enriched by the investment banking fees it obtained from IDT and from Telefonica "and any other fees Morgan Stanley received for its `search' for a replacement anchor tenant, as well as any other fees of any kind that Morgan Stanley has earned for additional, presently-unknown misappropriations and misuses of IDT's confidential business and financial information." On appeal, Morgan Stanley does not argue that the unjust *142 enrichment claim is time-barred. Instead it contends that IDT's fifth claim fails to state a cause of action. We agree. "The theory of unjust enrichment lies as a quasi-contract claim" (Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 572 [2005]). It is an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties concerned. Where the parties executed a valid and enforceable written contract governing a particular subject matter, recovery on a theory of unjust enrichment for events arising out of that subject matter is ordinarily precluded (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987]). It follows that the unjust enrichment claim cannot form the basis of IDT's demand that Morgan Stanley return the $10,000,000 fee paid in relation to the Net2Phone, Inc. transaction, because that fee arose from services governed by an engagement letter signed by IDT on July 26, 2000.[5] Nor can the unjust enrichment claim support the disgorgement of any profits Morgan Stanley obtained from Telefonica or other companies, in connection with SAm-1. An unjust enrichment claim "rests upon the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another" (Miller v Schloss, 218 NY 400, 407 [1916]; see also Restatement [First] of Restitution § 1). In seeking Morgan Stanley's profits from SAm-1, IDT does not, and cannot, allege that Morgan Stanley has been unjustly enriched at IDT's expense, because IDT did not pay the alleged fees. Accordingly, the order of the Appellate Division should be reversed, with costs, defendants' motion to dismiss the remaining causes of action granted, the complaint dismissed in the entirety, and the certified question answered in the negative. Order reversed, etc. NOTES [1] The panel rejected IDT's contention that NewCo and Emergia were one and the same. Rather, it found, NewCo was envisaged as a company holding the infrastructure assets of SAm-1, and did not encompass the marketing function and revenues of the enterprise. In reaching this conclusion, the arbitration panel relied on, among other things, minutes of a July 2000 IDT board meeting, indicating that IDT recognized that Emergia was a larger enterprise, with greater growth potential, than NewCo. The arbitration panel expressed skepticism about Morgan Stanley's summer 2000 valuation of NewCo and Emergia, noting that its projections were "prepared by Telefonica and Morgan Stanley to be presented to IDT as part of the process of negotiating IDT's ownership percentage in Emergia." [2] After Supreme Court denied the motion to dismiss, the parties proceeded to discovery and Morgan Stanley produced documents that, according to IDT, reveal further wrongdoing by Morgan Stanley during the arbitration proceeding. IDT filed an amended complaint. Supreme Court granted Morgan Stanley's motion to dismiss the new claims. That decision is under appeal. In June 2008, IDT moved to dismiss the present appeal as moot, on the ground that the original complaint had been significantly amended. We denied the mootness motion on September 4, 2008 (11 NY3d 750 [2008]). [3] Morgan Stanley contends that the breach of fiduciary duty claim fails on the merits, because there was no fiduciary relationship between IDT and Morgan Stanley on the transaction in suit, but this too is a question we need not reach because the claim, even if meritorious, is time-barred. [4] IDT did not appeal Supreme Court's dismissal of its third claim. [5] IDT's argument that it engaged Morgan Stanley under duress is unpersuasive, in that the coercion by Morgan Stanley that IDT alleged in its complaint occurred after IDT refused to pay the fee, not before the fee was agreed on.

133 B.R. 487 (1991) In re Darrell E. BARNETT and Gloria J. Barnett, Debtors. Bankruptcy No. X86-02468S. United States Bankruptcy Court, N.D. Iowa, W.D. September 10, 1991. *488 Alvin J. Ford, Sioux City, Iowa, for debtors. Donald H. Molstad, Sioux City, Iowa, trustee. DECISION RE: TRUSTEE'S FINAL REPORT WILLIAM L. EDMONDS, Bankruptcy Judge. Case trustee Donald H. Molstad requests approval of his final report including approval of trustee's compensation in the amount of $8,382.98. This requested trustee's fee includes $1,500.00 based on "constructive disbursements" to secured creditors. Because the trustee has calculated requested fees using constructive disbursements, the U.S. Trustee has refused to approve the final report and comments to the court that fees on such disbursements should not be allowed. Hearing on the application and the U.S. Trustee's comments was held by telephone on August 7, 1991. FINDINGS OF FACT During his administration, the trustee sold real estate to Berne Coop for $87,000.00 in cash. According to the trustee's final report, the buyer agreed to assume[1] a $10,000.00 mortgage on a bin located on the transferred property. Also during his administration of the estate, trustee Molstad sold a parcel of real estate to Elmer Mordhorst for $76,500.00. The sale price included Mordhorst's "assumption" of a real estate contract having a balance of $40,000.00. The buyer paid $36,500.00 in cash to the trustee. In calculating his maximum fee under 11 U.S.C. § 326(a), trustee has included as disbursements the debts assumed by Mordhorst and Berne Coop. These assumptions of debt total $50,000.00. Their inclusion as disbursements increases the maximum fee calculation by $1,500.00. The trustee requests the maximum fee. DISCUSSION A case trustee is entitled to "reasonable compensation" for "actual, necessary services rendered . . ." 11 U.S.C. § 330(a)(1). The trustee's compensation is limited to an amount arrived at by applying a sliding scale of percentages to "all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor, but including holders of secured claims." 11 U.S.C. § 326(a). The base upon which the maximum fee is calculated was not intended by Congress to include the value of property abandoned by the trustee or the value of property turned over to secured creditors. S.Rep. No. 95-989, 95th Cong., 2d Sess. 37-38 (1978); H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 327 (1977); U.S.Code Cong. & Admin.News (1978), pp. 5787, 5823-5824, 6283-6284. The base does include moneys received in the liquidation of encumbered estate property even to the extent the trustee pays out such moneys to secured creditors. Id. But trustees have been denied a statutory fee based upon the sale price of fully encumbered property or the sale of property enjoying only slight equity. First National Bank of Louisville v. B & L Enterprises, Inc., (In re B & L Enterprises, Inc.), 26 B.R. 220, 223 (Bankr.W.D.Ky.1982). *489 Courts have disagreed, however, on whether trustees may collect fees based on "constructive disbursements" which are said to exist when the trustee sells encumbered property subject to the lien. The constructive disbursement is considered to be the amount or value of the lien which the buyer assumes or which the sale is made subject to. It is said that the value of the lien is "constructively disbursed" to a party in interest in the case. The case trustee and the U.S. Trustee have cited four cases to the court which bear upon the decision in the pending case. Supporting the trustee's position are In re Stanley, 120 B.R. 409 (Bankr.E.D.Texas 1990) and Southwestern Media, Inc. v. Rau, 708 F.2d 419 (9th Cir.1983). Supporting the position of the U.S. Trustee are In re New England Fish Co., 34 B.R. 899 (Bankr.W.D.Wash.1983) and In re Indoor-Outdoor Dining, Inc., 77 B.R. 952 (Bankr. S.D.Fla.1987). Having considered the arguments of the parties and the cited authorities, I conclude that the trustee's maximum fee may not be calculated based on the value of liens to which the transfer of property is made subject. The primary reason for my decision is the language of the statute. Section 326(a) provides that the limit of compensation is to be calculated by applying percentages to "all moneys disbursed or turned over. . . ." When a trustee sells property to a buyer subject to a lien, there has been no money disbursed or turned over to the lienholder. He has not received any money at the time of the sale or upon the trustee's closing distribution. The lienholder may never receive anything for his interest, depending on the amount and priority of various liens and the value of the property. The creditor might be benefited. Such a sale would have the effect of granting the creditor relief from the stay as to the estate so creditor might pursue satisfaction of the lien. Also, the creditor may have the opportunity to deal with a more solvent or stable buyer and thus might be able to work out a continuing payment of the value of the lien without the necessity of foreclosure or the loss of value if another and superior lienholder forecloses. But these benefits are not money. By "constructive disbursement" it must be meant that because of some policy which we wish to support, we regard the benefit provided to the secured creditor as having the same quality as the act actually described in the statute—the turnover or disbursement of money to the creditor. Arguably, the policies which the theory of constructive disbursement serve could include our encouraging trustees to make sales subject to liens where sales free and clear of liens are not possible or do not provide the same net benefit to the estate. It is also arguable that sales subject to liens are often as difficult and complex as sales free and clear of liens and that trustees should be rewarded for accomplishing such work in the same fashion as they would be rewarded had the sale been free and clear of liens. Third, one can say that the net benefit to the estate or to the unsecured creditors is the same regardless of whether estate property is sold free and clear of liens or subject to them. If so, why should the former provide greater compensation possibilities for the trustee than the latter? These arguments have merit, yet I do not believe that the language of the statute can bear their weight. Congress has chosen to provide money disbursed or turned over as the basis for calculation. It could, but did not, choose the words "property" or "value". "Money" is the more limited term. "In usual and ordinary acceptation, [money] means coins and paper currency used as circulating medium of exchange, and does not embrace notes, bonds, evidences of debt, or other personal or real estate." Black's Law Dictionary, 906 (5th ed.1979). I cannot escape the feeling that were I to rule in the trustee's favor, I would be legislating a result different from that provided for by Congress. I would probably be doing so to foster a policy of fairly compensating trustees for services provided. Congress has provided one test for compensation —reasonable compensation for actual and necessary services. 11 U.S.C. § 330(a). But regardless of how warranted compensation *490 may be under such a test, it may not exceed the cap provided in 11 U.S.C. § 326(a). That cap is determined by considering the moneys disbursed or turned over. To transmute or perhaps to transmogrify the congressional cap on fees to a test of benefit to the estate, is to ignore § 326(a). Unfortunately, the result may be that there are times that the trustee provides greater benefit to the estate than that for which he may be compensated. If so, it is the responsibility of Congress to correct for that circumstance. One might argue that the court's literal reading of the statute would subject trustees to inevitable second guessing by parties in interest who would argue that trustees structure sales free and clear of liens rather than subject to them, in order to obtain higher fees. Such a specter may exist, but I have seen no evidence of its substance in practice. Prior to this ruling, this issue has been an open one, and either trustees have not sought fees based on the "constructive disbursements" theory or if they have, creditors have not sought to challenge them or to impugn their motives. To the extent the specter takes substance, we will have to deal with it. However, I suspect that there is less of a problem than may be imagined. Often the method of purchase will be determined by the buyer whose main concerns will be quality of title and value. More often than not, sales free and clear of liens will be the practical rule and not an exception pursued by the trustee as a fee enhancement device. Finally, were I to accept the trustee's position on this issue, the determination of the amount of "constructive disbursements" would not always be such an easy task. When the trustee sells property free and clear of liens, generally, the limit on his fee will be calculated by his disbursement or turnover of the moneys received. However, if he or she bargains to sell property of the estate subject to liens, it may be that the trustee will not always know, or need to know, the number or value of these liens. It is not necessary for creditors holding liens on estate property to file proofs of claim. If there is equity in the property, such creditors would merely await the opportunity to satisfy their liens outside of the administration of the estate. In order to calculate the fee maximum would it be necessary for the trustee to prove the value of these liens? I expect so, but it would seem to be an otherwise wasteful process. For the foregoing reasons, I conclude that 11 U.S.C. § 326(a) does not permit calculation of the trustee's maximum fee by considering the value of liens which are not paid by the trustee but which remain attached to the property interest transferred by the estate. Accordingly, IT IS ORDERED that trustee Donald H. Molstad is allowed trustee's fees in the amount of $6,882.98. In all other respects, the trustee's final report is approved and disbursement may be made in accordance with the final report as modified by this order. Judgment shall enter accordingly. SO ORDERED. NOTES [1] The final report stated that buyer had "assumed" the mortgage. The Offer to Buy does not express whether the Coop assumed the obligation or merely purchased the real estate subject to it.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 11a0714n.06 No. 09-2400 FILED UNITED STATES COURT OF APPEALS Oct 18, 2011 FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk STEPHEN LAMARR HALL, ) ) Plaintiff-Appellant, ) ) v. ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE MILLICENT WARREN, et al., ) EASTERN DISTRICT OF MICHIGAN ) Defendants-Appellees. ) ) OPINION ) Before: MARTIN and STRANCH, Circuit Judges; THAPAR, District Judge.* JANE B. STRANCH, Circuit Judge. Stephen Lamarr Hall is a prisoner in the custody of the Michigan Department of Corrections (“MDOC”). He brought this pro se civil rights action under 42 U.S.C. § 1983 against a group of prison officials, alleging that they unreasonably exposed him to Environmental Tobacco Smoke (“ETS”) despite an MDOC medical notice requiring that he be placed in tobacco-free housing. Hall appeals the district court’s dismissal of his claims against one of the officials, and the court’s grant of summary judgment to the others. For the following reasons, we AFFIRM in part and REVERSE in part and REMAND for further proceedings. I. FACTUAL BACKGROUND From July 2004 to December 2006, Hall was an inmate at Michigan’s Bellamy Creek Correctional Facility. On April 15, 2005, his medical provider, Dr. Scott Holmes, issued an MDOC * The Honorable Amul R. Thapar, United States District Judge for the Eastern District of Kentucky, sitting by designation. No. 09-2400 Hall v. Warren, et al. Special Accommodation Notice (“SAN”) stating that Hall required “Tobacco free housing” and a “Bottom Bunk.” These housing requirements were specifically designated as “Permanent” on the SAN. MDOC medical records indicate that Hall was treated for shortness of breath “secondary to second hand smoke” and was prescribed Albuterol, a bronchodilator commonly used to treat lung diseases and other breathing ailments. On December 22, 2006, Hall was transferred from Bellamy Creek to Thumb Correctional Facility (“TCF”). Despite the “Permanent” SAN requiring that Hall be placed in tobacco-free housing, Hall was placed in the Cord Unit, which was not tobacco free. In an affidavit submitted to the district court, Hall claimed that the smoke in his new unit was intolerable, at times he thought he was going to pass out, and he stayed very sick. When Hall initially discussed a transfer with Michael Markee, the Assistant Resident Unit Supervisor at the Cord Unit, Hall recalled that Markee seemed distant and not very interested and told Hall to KITE1 him to be placed on his list for a transfer. On December 23, Hall sent a KITE to Markee, explaining that he had “a tobacco-smoke free accommodation” that required he be placed in a housing unit free of all environmental tobacco smoke (ETS). The KITE asked Markee for a transfer to a tobacco-free unit because he was having difficulty breathing and chest pains. On the same day, Hall also sent a KITE to Fred Folts, the Assistant Resident Unit Supervisor at the Burns Unit, which was the tobacco-free unit at TCF. Hall’s KITE to Folts explained that he was told by one of the unit officers to KITE Folts and Markee 1 A KITE is a written form issued by MDOC that inmates use to communicate with corrections staff. -2- No. 09-2400 Hall v. Warren, et al. to be moved to a non-smoking unit because he had a tobacco-smoke free permanent accommodation notice to be placed in the Burns unit. Hall requested Folts to “please help” because he was having a terrible time breathing with chest pains. Hall also sent KITES to the prison’s health care unit on December 23 and 25, requesting to see the doctor and be transferred to a tobacco-free unit. Hall apparently received no response from Markee or Folts. A few days later, on December 29, Hall sent a handful of additional KITES to several other prison officials. One was sent to Geraldine Wilson, the Resident Unit Manager: I believe (ARUS) Markee and (ARUS) Folts are purposely not responding to my KITES to be moved to a smoke free housing unit as I suffer from asthma symptoms and cigarette smoke exacerbates my condition. I have a medical accommodation notice that is not being honored. Will you please help me[?] R27-2 at 8. He also sent a KITE to Katherine Corrigan, the Assistant Deputy Warden: I know that you are not the person to write to about this kind of problem. However, when I attempted to correct the matter by contacting both (ARUS) Markee [and] (ARUS) Folts, and when they failed to respond I just wrote (RUM) Wilson, and (Warden) Warren. I have very serious medical problems that require I be housed in a tobacco-smoke free environment. I also have an accommodation notice in my prisoner file stating same. Would you please have me removed to a non-smoking unit, as I’m having a very difficult time here. Id. at 9. Also on December 29, Hall sent a KITE to Millicent Warren, the Warden at TCF: Will you please remove me from this unit as I have (asthma) and cigarettes make it extremely difficult to breathe, chest pains, headaches, dizziness. I have a permanent housing accommodation for me to be placed in another unit. I’m getting very ill here, please have me sent over to Burns Unit immediately. Id. at 10. Hall sent follow-up KITES to Markee and Folts also on December 29, reiterating that the SAN requiring tobacco-free housing was not being honored and notifying them that he was writing to their supervisors (i.e., Wilson, Corrigan, and Warren) regarding the issue. On the same day, Hall -3- No. 09-2400 Hall v. Warren, et al. sent another KITE to the heath care unit, repeating his need to be moved and requesting medical staff to intervene on his behalf. At some point in early January 2007, Hall discussed his continuing need for tobacco-free housing with Markee. Hall followed-up on that conversation on January 4, with a KITE to Markee: After our conversation I expected you to have contacted (ARUS) Folts by now to have me moved. What’s the problem with me getting moved out of this unit[?] It has become clear you are not going to help me move and neither is anyone else. Id. at 11. Hall also sent a similar follow-up KITE to Folts on the same day: I’m writing to find out whether or not you heard anything from (ARUS) Marke [sic] or anyone else I’ve attempted to contact. Markee said he was going to talk to you and have me moved over to your unit, will you please call him for me! I am so sick! Id. at 12. And he sent another follow-up KITE to Wilson: I have been trying to get moved from this unit since my coming to this facility 12/22/06. Will you please do something to help me get moved to a non smoking unit[?] After all, everyone tells me there is no smoking in any government buildings and no one will move me, maybe you will! Id. at 13. Hall sent a follow-up KITE to the health care unit on the same day, and submitted more formal requests for medical treatment on January 6 and 11. In an affidavit submitted to the district court, Markee acknowledged reviewing Hall’s record in early January 2007 and noticing the SAN requiring tobacco-free housing. He also recalled seeing Hall on January 9, calling Folts about the SAN he noticed in Hall’s file, and Folts telling him that he could not move Hall to the top of the waiting list because all of the units are designated as smoke free and he could not remove other inmates who had waited their turn to get into the Tobacco Free -4- No. 09-2400 Hall v. Warren, et al. Unit. Folts, however, submitted an affidavit contradicting Markee’s account, claiming that he did not recall being made aware of Hall’s request to move to the Tobacco Free Unit in January 2007. On February 28, Hall sent additional KITES to Folts and Wilson reiterating his request to be transferred to a tobacco-free unit. On March 1, he sent a similar KITE to Corrigan and another one to Wilson. The KITE to Wilson read: “I really don’t think you will answer me but . . . please know I have tried everything to get you people to respond to my KITES and I continue to be denied--I won’t be trying again. I still can’t breathe!” Id. at 17. On March 13, Hall filed a formal grievance with prison officials pursuant to MDOC’s three- step grievance procedure. In it, Hall claimed that attempts were made to resolve this matter by speaking with the ARUS about a transfer to a smoke free unit. Because nothing was done to date, Hall said he was compelled to grieve the matter because he was sick with difficult breathing and pain. He continued: I have medical problems that prohibit me from being exposed to cigarette smoke for which I was given a permanent tobacco free housing accommodation ordered by Dr. Scott L. Holmes. I arrived at this facility 12/22/06 and I am still being housed in a smoking unit, where I have been suffering from breathing problems that are becoming more serious by the day. I have exercised patience and I am now suffering the consequences for it. I need to see the doctor and be moved immediately. The ARUS in this unit has known of my condition since my arrival as I have made several requests to be moved having been told there are no beds ready. This grievance is specifically directed at Mr. Markee ARUS for Cord [Unit] that has a smoke free accommodation and a signed smoke free procedure form in my file. R27 at 42. Wilson was the initial Stage I respondent to Hall’s grievance. Her investigation concluded that there was a permanent order for Hall to be placed in a tobacco free unit. She noted that prison -5- No. 09-2400 Hall v. Warren, et al. staff was “working diligently” to accommodate Hall, but that Folts reported there were no “empties” at this time. Wilson reported that Hall was put at the top of the list. Wilson’s supervisor, Corrigan, reviewed and signed the response in accordance with MDOC policy. On March 22, Hall filed a Stage II appeal, reiterating that “smoking is prevalent throughout” his unit and that he required tobacco-free housing. After he filed his Stage II appeal, Hall was moved to the tobacco-free Burns Unit on March 24. Warren then responded to the appeal at Stage II, noting that Hall had been moved but acknowledging that he was on the waiting list a considerable length of time because he needed a lower bunk in addition to the tobacco free accommodation. Although he had been moved to a tobacco-free unit, Hall nevertheless filed a Stage III appeal. MDOC’s Grievance and Appeals section responded to the Stage III appeal, concluding that the grievance had been resolved by his placement in Burns Unit. II. PROCEDURAL BACKGROUND On November 6, 2008, Hall filed this action in the Eastern District of Michigan, using the court-provided form for pro se prisoner civil rights complaints under 42 U.S.C. § 1983. As defendants, he named Warren, Corrigan, Wilson, Markee, and Folts. He also named Dr. Joseph Burtch, the primary healthcare provider at TCF. Hall broadly alleged that the defendants violated the Eighth Amendment by unreasonably exposing him to second hand cigarette smoke for three months, 12/22/06 to 3/24/07, despite the SAN that ordered permanent smoke/tobacco free housing. He alleged that the defendants knew of the accommodation order in his prisoner file and simply ignored the doctor’s order. He claimed that he suffered injury from over exposure to second hand -6- No. 09-2400 Hall v. Warren, et al. smoke and sought $50,000 in compensatory damages and $500,000 in punitive damages against each defendant. On February 5, 2009, counsel for Warren, Corrigan, Wilson, Markee, and Folts filed a motion for summary judgment. They argued that they were entitled to qualified immunity because there was no evidence to support a finding of deliberate indifference to a serious medial need in violation of the Eighth Amendment. Defendants claimed that the April 15, 2005 SAN requiring tobacco-free housing was superceded by a subsequent SAN, dated May 18, 2006, which did not require such a placement. Defendants also questioned the legitimacy of Hall’s claims, pointing out that, although the possession of smoking paraphernalia was permitted in the Cord Unit (i.e., it was not “tobacco free”), smoking itself was strictly prohibited. On February 16, the other defendant, Dr. Burtch, filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Burtch argued that dismissal of Hall’s claims against him was required for failure to exhaust administrative remedies because Hall did not specifically name him or any other medical staff in his formal grievance as required by MDOC’s grievance procedure. Burtch was the only defendant to make this non-exhaustion argument in the district court. Hall responded to the motion for summary judgment on March 2. He attached the numerous KITES discussed above, which he claimed to have sent prison officials notifying them of the SAN and requesting transfer to a tobacco-free unit. He argued that all of the defendants were liable because they undertook no affirmative steps to address his need to be properly placed in housing conducive to his medical condition. He specifically challenged the defendants’ argument that the tobacco-free SAN was superceded and no longer in effect, attaching MDOC Policy Directive -7- No. 09-2400 Hall v. Warren, et al. 04.06.160, which provided that permanent SANs are valid at all facilities unless cancelled. Hall also responded to Burtch’s motion to dismiss, clarifying that his claim against Burtch was based on his failure to ensure the enforcement of the SAN requiring tobacco-free housing. He attached the KITES and health care requests sent to medical staff, and argued that his claim should not be barred for failure to exhaust because, at the time of the grievance’s filing, he was not aware of Burtch’s name. The case was assigned to a magistrate judge, who issued his Report and Recommendation (“R&R”) on August 7, 2009. The magistrate recommended that Hall’s claims against Burtch be dismissed for failure to exhaust because Hall failed to name Burtch in the grievance as required by MDOC procedures. He also recommended that Hall’s claims against Burtch be dismissed, and summary judgment be granted to Warren, because they were not personally involved in the alleged unconstitutional conduct. The magistrate recommended summary judgment be granted to Corrigan, Wilson, and Markee because there was no evidence that they were deliberately indifferent to Hall’s medical needs. According to the magistrate, however, a reasonable jury could find that Folts was deliberately indifferent given Markee’s affidavit indicating that he notified Folts in early January regarding Hall’s SAN and that Folts took no immediate action. Folts filed an objection to the R&R within 10 days of it being filed. Hall, however, did not do so. The district court issued an order and judgment on September 21, 2009, adopting the R&R in part and rejecting it in part. First, the district court concluded that it was under no obligation to independently review the record regarding the claims against defendants Burtch, Warren, Corrigan, Wilson, and Markee because Hall did not file any objections to the R&R. Accordingly, the court dismissed the claims against these parties for the reasons explained in the R&R. Second, the court -8- No. 09-2400 Hall v. Warren, et al. rejected the magistrate’s recommendation that summary judgment be denied to Folts. According to the court, even assuming that Folts knew of Hall’s SAN in early January, his actions did not constitute a sign of Folts’ deliberate indifference; rather, the delay in accommodating plaintiff’s request for the Burns Unit showed a deliberate concern on the part of Folts to accommodate both of Hall’s medical related needs, his need for a bottom bunk and for a smoke-free environment. The court also concluded that there was no evidence that Hall actually suffered from a sufficiently serious medical need requiring tobacco-free housing. On the same day the district court dismissed the case, Hall filed his untimely objections to the R&R. He alleged that he did not receive the R&R until September 8 and that he had ten days to respond to the R&R after that date. He also filed a motion for enlargement of time to object to the magistrate’s R&R. On September 25, the district court issued an order acknowledging receipt of Hall’s motion and objections, and noting that they appeared to have been prepared before receipt of the district court’s order dismissing the case. The court granted the motion for additional time, expressly stating that it would consider plaintiff’s objections. The court construed the objections as a motion for reconsideration and carefully reviewed the objections. The objections did not persuade the district court to change its previous disposition. Hall filed a timely notice of appeal on October 20, 2009. III. ANALYSIS A. Hall’s Objections to the Report and Recommendation As a preliminary matter, we briefly consider Hall’s argument that the district court erred by treating his objections to the magistrate’s R&R as a motion for reconsideration. Hall contends that -9- No. 09-2400 Hall v. Warren, et al. his objections should have been considered timely under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b) because he did not receive the R&R until September 8, 2009. Although Hall believes he was prejudiced by the district court’s decision to treat his objections as a motion for reconsideration, our review of the record convinces us otherwise. The district court exercised its discretion to enlarge the time for Hall to file his objections. See Patterson v. Mintzes, 717 F.2d 284, 286–87 (6th Cir. 1983) (holding that a district court may accept and consider objections filed beyond limitations period). The court carefully reviewed plaintiff’s objections and came to the conclusion that they were the same arguments considered and rejected by the magistrate judge and the court. The district court construed the objections as a motion for reconsideration simply because the case had been dismissed. Given that all of Hall’s objections to the R&R were considered by the district court, Hall has failed to establish prejudicial error resulting from the district court’s treatment of his objections. B. Claims Against Defendant Burtch The district court dismissed Hall’s claim against Burtch for failure to exhaust administrative remedies. The district court held that Hall failed to satisfy MDOC grievance procedures, which require prisoners to name each person against whom they grieve. Hall challenges the district court’s dismissal on appeal, primarily arguing that, at the time he filled out the administrative grievance, he did not know Burtch’s name and should not be required to provide it on the grievance form because prison officials failed to interview him as required by MDOC grievance procedures. Under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), “[p]risoners must exhaust their administrative remedies before challenging prison conditions.” Grinter v. Knight, 532 - 10 - No. 09-2400 Hall v. Warren, et al. F.3d 567, 577 (6th Cir. 2008). As the Supreme Court explained in Jones v. Bock, 549 U.S. 199 (2007), “prisoners must complete the administrative review process in accordance with the applicable procedural rules—rules that are defined not by the PLRA, but by the prison grievance process itself.” Id. at 218 (internal citation and quotation marks omitted). Although “exhaustion is not per se inadequate simply because an individual later sued was not named in the grievances,” id. at 219, a plaintiff generally fails to exhaust administrative remedies by failing to include an official’s name in a grievance if it is required by the applicable grievance procedures, Sullivan v. Kasajaru, 316 F. App’x 469, 470 (6th Cir. 2009). MDOC Policy Directive 03.02.130 lays out the MDOC process applicable to Hall’s grievance. It specifically requires the grievance to include the dates, times, places, and names of all those involved in the issue being aggrieved. Neither Burtch nor any other medical official is named in Hall’s grievance. Although Hall’s grievance indicates that Hall wished to see a doctor, it does not allege that a medical official committed any wrongful act. Instead, the grievance is exclusively concerned with the need for a transfer to a tobacco-free unit. Hall’s argument that he needed an interview to learn Burtch’s name is unpersuasive given the absence of any medical-related claim in his grievance. For these reasons, the district court correctly dismissed Hall’s claim against Burtch for failure to exhaust administrative remedies. C. Claims Against Remaining Defendants Hall contends that the district court erred by granting summary judgment to the remaining defendants. Summary judgment is warranted where “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(a). In considering - 11 - No. 09-2400 Hall v. Warren, et al. a motion for summary judgment, “the court must view the evidence and draw all reasonable inferences in favor of the non-moving party.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (en banc) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The essential question is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). Defendants Warren, Corrigan, Wilson, Markee, and Folts all assert entitlement to qualified immunity. “Under the doctrine of qualified immunity, ‘government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Phillips v. Roane County, 534 F.3d 531, 538 (6th Cir. 2008) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Determining whether the prison officials in this case are entitled to qualified immunity requires two inquiries: “First, viewing the facts in the light most favorable to the plaintiff, has the plaintiff shown that a constitutional violation has occurred? Second, was the right clearly established at the time of the violation?” Id. at 538–39. We may exercise our discretion to decide which inquiry to address first in light of the circumstances of the case. See Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 818 (2009). 1. Constitutional Violation A prisoner alleging an Eighth Amendment claim under Section 1983 must prove two elements. The first, which is an objective inquiry, requires the prisoner to show that the official’s alleged mistreatment was “sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) - 12 - No. 09-2400 Hall v. Warren, et al. (internal quotation marks omitted). The second, a subjective component, requires him to show that the official had “a sufficiently culpable state of mind”—i.e., “one of deliberate indifference to inmate health or safety.” Id. (internal quotation marks omitted). a. Objective Component In the context of ETS claims, a prisoner establishes the objective component of an Eighth Amendment claim by showing that (i) he has an existing serious medical need for a smoke-free environment, Hunt v. Reynolds, 974 F.2d 734, 735 (6th Cir. 1992), or (ii) regardless of current health, the level of ETS in the prison creates an unreasonable risk of serious damage to his future health, Helling v. McKinney, 509 U.S. 25, 35 (1993). Hall’s complaint is based on the defendants’ alleged disregard of his existing medical needs rather than a risk of future harm. Hall alleges that he is a chronic care patient with “serious medical needs” and has “suffered injury from over exposure to second hand smoke”. A reasonable jury could conclude that Hall had an objectively serious medical need for a smoke-free environment. “A serious medical need is ‘one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.’” Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008) (quoting Blackmore v. Kalamazoo County, 390 F.3d 890, 897 (6th Cir. 2004)). Hall presented medical records from June 2005 indicating that he was treated for shortness of breath secondary to second hand smoke and was prescribed albuterol. Hall also introduced a “Permanent” SAN, issued by his MDOC medical provider, specifically stating that he required “Tobacco free housing.” This evidence is sufficient to create a genuine issue of material fact as to the objective seriousness of - 13 - No. 09-2400 Hall v. Warren, et al. Hall’s need for a smoke-free environment. See, e.g., Jacobs v. Young, 134 F.3d 371, 1997 WL 809925, at *2 (6th Cir. Dec. 17, 1997) (unpublished table opinion) (holding that prisoner established a genuine issue of material fact by introducing medical records indicating he had angina and emphysema and recommending he share a cell with a non-smoker). In the district court, Defendants argued that the tobacco-free SAN was superceded by a subsequent SAN, issued on May 18, 2006, which did not list any tobacco-free housing requirement. As Hall and the magistrate pointed out, however, the applicable MDOC policy provides that permanent SANs are valid at all facilities unless cancelled. And in order for a SAN to be cancelled, there must be approval from a medical service provider after an examination of the prisoner. The record contains no evidence of any such cancellation. Hall further supported the validity of the April 2005 SAN by introducing an MDOC Special Accommodations History form, printed February 26, 2009, indicating that the tobacco-free SAN was still effective as of that date. We invited the defendants to file a brief specifically addressing the effectiveness of Hall’s medical notice purportedly requiring tobacco-free housing. They accepted our invitation and adhered to their position that the SAN is outdated and was superseded by the May 2006 SAN. However, the defendants completely failed to address—let alone refute—the applicability of the MDOC policy providing that permanent SANs remain effective unless cancelled. For these reasons, we conclude that Hall presented enough evidence to survive summary judgment on the objective component of his Eighth Amendment claim. - 14 - No. 09-2400 Hall v. Warren, et al. b. Subjective Component The second inquiry is whether there is evidence sufficient to allow a reasonable jury to conclude that each defendant acted with deliberate indifference to Hall’s existing medical needs. A prison official is deliberately indifferent “only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847. “Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Id. at 842 (internal citation omitted). Existing precedent convinces us that Hall introduced sufficient evidence of deliberate indifference to survive summary judgment given the numerous unanswered KITE notices Hall sent to the defendants notifying them of his medical condition and requesting that they comply with the SAN requiring tobacco-free housing. In Jacobs v. Young, a panel of this Court reversed a district court’s summary judgment for prison official defendants where the plaintiff alleged deliberate indifference to his serious medical need for smoke-free housing. 1997 WL 809925, at *3. We held that the plaintiff established a genuine issue of material fact as to whether the defendants acted with deliberate indifference where the plaintiff “filed grievances complaining about being housed with smokers, and defendants denied these grievances.” Id. As the Court concluded, this evidence suggested “that defendants were aware that [plaintiff] faced the risk of harm by being housed with smokers, yet defendants disregarded that risk.” Id. - 15 - No. 09-2400 Hall v. Warren, et al. Our sister circuits have reached similar results. In Murrell v. Chandler, 277 F. App’x 341 (5th Cir. 2008), the Fifth Circuit reversed a grant of summary judgment to a group of prison officials where the plaintiff “presented evidence that he advised [the officials], either verbally or in written grievances, that the no smoking policy was not being enforced at the prison . . . and that he was having serious health problems as a result.” Id. at 343–44. The Court concluded that “[t]his evidence create[d] a genuine issue of material fact as to whether the defendants were involved in violating [plaintiff’s] Eighth Amendment right to be free of cruel and unusual punishment.” Id. at 344. Similarly, in Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003), the Third Circuit held that the prison-official defendants were not entitled to summary judgment based on qualified immunity on a prisoner’s claims that they exposed him to unreasonable levels of ETS. Id. at 269. The court concluded that the prisoner’s allegations that he had written letters to “prison officials about his sensitivity to ETS [and] no change was made in housing conditions” was sufficient to overcome summary judgment because it “demonstrate[d] deliberate indifference on the part of prison officials.” Id. Like the plaintiffs in Young, Murrell, and Atkinson, Hall introduced evidence creating a genuine issue of material fact regarding whether each of the defendants knew of a substantial risk of harm to Hall and failed to take reasonable steps to abate it. As noted above, Hall produced written KITE notices sent to each prison official notifying them of his previously diagnosed medical condition and requesting that they comply with the MDOC SAN requiring tobacco-free housing. - 16 - No. 09-2400 Hall v. Warren, et al. Although several of the defendants deny receiving these KITES,2 whether the defendants were informed of a substantial risk of harm to Hall (either by the KITES or otherwise) is a question of fact “subject to demonstration in the usual ways,” Farmer, 511 U.S. at 842, and appropriately decided by the trier of fact. Defendants challenge the seriousness of the risk of harm to Hall by contending that all MDOC facilities were non-smoking and that this smoking prohibition was strictly enforced. Such conclusory allegations, however, do not establish as a matter of law that the risk of harm to Hall was insignificant. Hall has produced evidence indicating that an MDOC medical provider specifically prescribed tobacco-free housing—not simply non-smoking housing—and that the defendants failed to comply with that prescription for several months despite repeatedly being made aware of it. Hall also submitted an affidavit specifically alleging in relevant part that the smoke in the Cord Unit was “intolerable” at times. Defendants certainly may argue before the trier of fact that, in light of the non-smoking policy and its alleged enforcement, the risk to Hall was “insubstantial or nonexistent,” Farmer, 511 U.S. at 844, but their conclusory claims at this stage are insufficient to establish entitlement to summary judgment.3 2 Corrigan and Wilson submitted affidavits denying receipt of any KITE from Hall regarding tobacco-free housing. Warren, however, submitted no affidavit denying receipt. Markee denied receiving any KITE after January 9, 2007 (without addressing whether he received any before that date), and Folts acknowledged receiving at least one of the KITES approximately two weeks before Hall filed his grievance Although Folts contended this was the first he learned of Hall’s need for tobacco-free housing, Markee claimed that he informed Folts of Hall’s SAN and his need in early January 2007. 3 Similarly, the defendants might demonstrate to the satisfaction of the trier of fact that “they responded reasonably to the risk” created by Hall’s housing placement and thus should “be found - 17 - No. 09-2400 Hall v. Warren, et al. Warren, who is the warden at TCF, argues that the district court’s summary judgment as to her was appropriate because Section 1983 liability may not be based on a respondeat superior basis. Although we agree that liability may not be imputed to a supervisor based entirely upon the actions of a subordinate, see, e.g., Monell v. Dep’t of Soc. Servs. of New York City , 436 U.S. 658, 691 (1978), “this does not automatically mean that a supervisor can never incur liability under § 1983,” Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 81 (6th Cir. 1995). Supervisors can be held liable for their own “active unconstitutional conduct . . . rather than on their supervision of others engaging in unconstitutional conduct.” Spencer v. Bouchard, 449 F.3d 721, 730 (6th Cir. 2006). Hall claims that Warren personally failed to transfer him to tobacco-free housing despite receiving a written KITE alerting her to Hall’s serious medical condition and the need for a transfer. This was not a “vague and generalized” notice insufficient to notify a warden “of the specific concerns about [a prisoner’s medical] needs and alleged deprivation.” Estate of Young v. Martin, 70 F. App’x 256, 261 (6th Cir. 2003). Rather, it clearly documented his medically prescribed need for tobacco-free housing and requested Warren to effectuate a transfer to the Burns Unit because he was getting very ill. Warren has failed to introduce any evidence establishing her lack of involvement in making or overseeing transfer decisions at TCF. Taken in the light most favorable free from liability.” Farmer, 511 U.S. at 844. For example, Markee might argue that he notified Folts immediately upon learning of the tobacco-free SAN, and Folts might claim that he could not immediately place Hall in tobacco-free housing because of his additional need for a lower bunk. But again, the record as it exists now is not sufficiently clear to establish as a matter of law that any of the defendants acted reasonably in response to the alleged risk of harm. - 18 - No. 09-2400 Hall v. Warren, et al. to Hall, this record is sufficient to create a genuine issue of fact as to whether Warren was subjectively aware of the risk of harm to Hall.4 In sum, we express no view as to the ultimate merits of Hall’s claim that each of the defendants acted with deliberate indifference. At this stage, however, we are required to view the facts in the light most favorable to Hall, and genuine issues of material fact exist as to whether (i) Hall had an objectively serious medical need for tobacco-free housing and (ii) each of the defendants subjectively knew that Hall faced a substantial risk of serious harm and recklessly disregarded that risk by failing to take reasonable measures to abate it. 2. Clearly Established Right Because there are genuine issues of material fact as to whether the defendants committed a constitutional violation, we reach the second question—whether the right was clearly established at the time of the alleged violation. “For a right to be clearly established, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (internal quotation marks omitted). “This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent.” Hope v. Pelzer, 536 U.S. 730, 739 (2002). 4 Even if Hall’s claim against Warren were based on her supervisory role, Warren could still be held liable if she “implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of [an] offending subordinate.” Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). The unanswered KITES could lead a reasonable juror to conclude that Warren knowingly acquiesced in her subordinates’ refusal to transfer Hall to a tobacco-free unit. For this additional reason, Warren is not entitled to summary judgment based on her supervisory position. - 19 - No. 09-2400 Hall v. Warren, et al. In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court recognized an Eighth Amendment claim based on a prison official’s deliberate indifference to a prisoner’s existing serious medical needs. As the Court explained, deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983. Id. at 104 (internal citations, footnotes, and quotation marks omitted). In Hunt v. Reynolds, we applied this line of reasoning in the ETS context, holding that a prisoner with a serious medical need could state an Eighth Amendment claim based on exposure to ETS. 974 F.2d at 735. Other circuits took the same approach, recognizing that Estelle clearly established ETS claims of deliberate indifference based on a prisoner’s existing serious medical needs. See, e.g., Atkinson, 316 F.3d at 268; Weaver v. Clarke, 45 F.3d 1253, 1256 (8th Cir. 1995). And in 2002, we affirmed a judgment and damages in favor of a Michigan prisoner alleging that exposure to ETS constituted deliberate indifference to his serious medical needs. See Reilly v. Grayson, 310 F.3d 519, 521 (6th Cir. 2002); see also Talal v. White, 403 F.3d 423, 427–28 (6th Cir. 2005) (reversing dismissal of Eighth Amendment claim based on prisoner’s exposure to ETS). In light of this well-established authority, Hall’s allegations, if true, state a violation of the Eighth Amendment that was apparent at the time of the defendants’ alleged wrongful conduct. Consequently, Hall has satisfied the second requirement to overcome the defendants’ motion for summary judgment based on qualified immunity. - 20 - No. 09-2400 Hall v. Warren, et al. CONCLUSION For the aforementioned reasons, we AFFIRM the district court’s dismissal of Hall’s claims against Burtch, but REVERSE the district court’s summary judgment on the claims against Warren, Corrigan, Wilson, Markee, and Folts, and REMAND for further proceedings consistent with this opinion. - 21 - 

622 F.Supp. 595 (1985) Daniel R. and Patricia C. McCARTHY, Plaintiffs, v. UNITED STATES of America, Defendant. No. C78-1480. United States District Court, N.D. Ohio, E.D. October 8, 1985. *596 Sheldon Sager, Cleveland, Ohio, for plaintiffs. Jason Green, Trial Atty., Tax Div., Dept. of Justice, Washington, D.C., for defendant. MEMORANDUM OF OPINION MANOS, District Judge. On November 6, 1978, plaintiffs, Daniel R. and Patricia C. McCarthy, filed the above-captioned case against the United States of America challenging income tax deficiencies assessed and collected by the Internal Revenue Service (IRS) for fiscal years 1973 and 1974. Jurisdiction is invoked pursuant to 28 U.S.C. § 1346(a)(1).[1] The case is currently before the court on cross-motions for summary judgment. For the following reasons, the plaintiffs' motion is denied and the government's motion is granted. I. On March 22, 1973, the New York Yankees Partnership ("Partnership") purchased the New York Yankees professional baseball franchise from the New York Yankees, Inc. (NYY Inc.). See Purchase Agreement, Def's. Exh. I. The Partnership acquired: (1.)(a) ... All of the properties and assets of NYY of every kind, nature and description, tangible and intangible, ... and described as including ...: * * * * * * (v) All contract rights and other assets of NYY, including ...: * * * * * * (4) ... radio and television broadcasting contracts, * * * * * * (9) the goodwill of NYY's businesses, and (10) all rights of NYY to use the name "New York Yankees" and any name including the term "Yankees". Id. The Partnership paid NYY Inc. Ten Million Dollars ($10,000,000.00) and assumed certain of its liabilities and obligations. Id., ¶'s (1.)(c), (2.). Plaintiff, Daniel R. McCarthy, owns a three (3) percent interest in the Partnership and is entitled to deduct a pro rata share of the Partnership's losses from the gross income on his individual tax returns.[2] For fiscal years 1973 and 1974, plaintiffs took amortization deductions for the radio and television broadcasting contracts which the Partnership acquired when it purchased the Yankees. The Internal Revenue Service ("IRS") denied those deductions and assessed deficiencies. Plaintiffs paid the deficiencies *597 and filed timely claims for refunds.[3] The IRS denied the refund claims and this suit followed.[4] It is uncontroverted that an inherent right of a baseball franchise is the right to broadcast games: Ownership of a professional baseball franchise includes rights, duties and obligations created by the baseball industry through the Major League Agreement ..., Major League Rules ..., and the American League Constitution.... An element of an American League Baseball Franchise is the ownership of "property rights in the baseball games played within one's park, including the reports, descriptions, accounts and reproductions thereof".... Absent any limitations, this property right gives the franchise owner an ability to market his product by: 1. charging admission to the public; and 2. contracting with segments of the broadcasting media for dissemination over the public airwaves. The American League Broadcasting Agreement and the Major League Central Fund Agreement have placed limitations on that right by setting forth rules and regulations relating to local and national broadcasting of major league baseball. See Plaintiffs' Response to Defendant's First Motion for Partial Summary Judgment at 3 (emphasis added) ("Plaintiff's Response"). The IRS contends that the plaintiffs are attempting to amortize their share of the Partnership's broadcasting rights. See Defendant's Reply Memorandum at 5-6, fn. 3. Whereas, the plaintiffs argue that the Partnership purchased "a right to receive a series of future payments" that arose when NYY Inc. severed some of its broadcasting rights from the franchise and sold them under the broadcasting contracts. See Plaintiff's Response at 7-8. Plaintiffs contend that the Partnership may amortize the present value of its right to this stream of income over the life of the broadcasting contracts just as a pensioner may deduct the return of his investments in a pension fund over the period of his expected life. See 26 U.S.C. § 72. Alternatively, plaintiffs argue that they need not recognize any of the income which the broadcasting contracts generated. They rely on the assignment of income doctrine, contending that NYY Inc., the predecessor, was the proper party to pay taxes on the income from the broadcasting contracts. Thus, plaintiffs would not take amortization deductions off-setting this income; instead, they would simply not recognize the income. Plaintiffs allege that there are three distinct broadcasting contracts at issue in this case: (1) a contract between the National Broadcasting Company ("NBC") and the Commissioner of Major League Baseball ("network broadcasting contract"), (2) a contract between WPIX, a local New York City television station, and NYY, Inc. ("local television broadcasting contract"), and (3) a contract between Strauss Broadcasting *598 Group, Inc. ("Strauss") and NYY Inc. ("radio broadcasting contract"). The Network Broadcasting Contract. The network broadcasting contract grants NBC the exclusive right to televise nationally the Game of the Week, playoff games, the All-Star game, and the World Series.[5] The named parties to the contract are NBC and the Commissioner of Major League Baseball ("Commissioner").[6] On December 1, 1972, all Clubs of Major League Baseball entered into an agreement entitled, the Major League Agreement In Re Major Leagues Central Fund ("Major League Agreement").[7] NYY Inc. derived its rights under the network broadcasting contract between the Commissioner and the network from the agreement between the major league clubs and the Commissioner. The Major League Agreement confers on the Commissioner authority to sell as a pool each Club's right to broadcast its games nationally. ¶ 4. It imposes on the Commissioner a number of duties associated with the management of the funds from this sale such as (1) making payments to the Pension Fund of the Major League Player's Association, (2) providing funds to cover the administrative costs of the Commissioner's office and of the Major League's Executive Council, and (3) maintaining a reserve fund of One Million Dollars ($1,000,000.00) for the Commissioner's Office. ¶ 5. The Agreement entitles each Club to an annual pro rata share of the profits remaining after these expenditures and provides for automatic, perpetual renewal unless any four (4) Clubs of either the National or American League give notice to the Commissioner of their intent to terminate it. ¶'s 5, 7. Finally, it includes a clause which states: 9. The terms and provisions of this Agreement shall be binding upon and inure to the benefit of the successors and assigns of each of the parties hereto as members of their respective Leagues. (emphasis added). The Local Television Broadcasting Contract and the Radio Broadcasting Contract. The local television broadcasting contract grants WPIX the exclusive right to televise Yankee games in the New York City area.[8] ¶ 2.(a). Under the contract, WPIX and NYY Inc. agree to divide the revenue from advertising and the licensing of other broadcasts. ¶'s 7, 8. WPIX promises to televise between 70 and 100 Yankee games each season. ¶'s 1.(i), 2.(a), 4. Each party agrees that the one may assign the contract if the other consents. ¶ 20. Finally, the contract provides that sixty (60) days before the end of the 1974 season, NYY Inc. and WPIX will negotiate an extension of the contract. ¶ 3. If the parties do not reach an agreement by the end of the season each agrees to provide the other with its best offer, and NYY Inc. promises that it will not enter into a contract with another local television station which incorporates terms as favorable as WPIX's best offer unless it first reoffers those terms to WPIX.[9]Id. *599 The radio broadcasting contract obligates Strauss to broadcast on its New York City radio station all regular season games of the Yankees. ¶ 2. Under the contract, NYY Inc. retains all property rights to the radio broadcasts of its games. ¶ 19. NYY Inc. agrees to pay Strauss a calculated portion of the revenues which it generates through the sale of advertising. ¶ 9. NYY Inc. has the right to assign the contract without prior approval of Strauss. The contract terminates at the end of 1974. ¶ 2; June 30, 1972 and June 29, 1973, Letters from Strauss to NYY Inc. Def.'s Exh. T. II. The assignment of income doctrine requires the assignor of income to recognize it as ordinary income. Helvering v. Eubank, 311 U.S. 122, 61 S.Ct. 149, 85 L.Ed. 81 (1940); Commissioner v. P.G. Lake, Inc., 356 U.S. 260, 78 S.Ct. 691, 2 L.Ed.2d 743 (1958). When the property of the assignor generates income, the assignor realizes the income by the exercise of the power to assign it. Id. The doctrine does not apply to an assignor who divests himself or herself of title to the property which generates the income. Blair v. Commissioner, 300 U.S. 5, 14, 57 S.Ct. 330, 334, 81 L.Ed. 465 (1937); Millette & Associates, Inc. v. Commissioner, 594 F.2d 121, 124 (5th Cir.1979); Cold Metal Process Co. v. Commissioner, 247 F.2d 864, 871 (6th Cir.1957). A taxpayer may amortize intangible property when it has (1) an ascertainable value, and (2) a limited useful life. 26 U.S.C. § 167(a)[10]; 26 C.F.R. § 1.167(a)-3.[11] A taxpayer may not amortize intangible property which does not have an ascertainable value because there is no base from which to compute the amortization deductions. Dobson v. United States, 551 F.Supp. 1152, 1155, 1 Cl.Ct. 11 (1982); Forward Communications Corp. v. United States, 608 F.2d 485, 492, 221 Ct.Cl. 582 (1979); First Northwest Industries of America v. Commissioner, 70 T.C. 817 (1978) rev'd on other grnds. 649 F.2d 707 (9th Cir.1981). The taxpayer has the burden of proving how long of a limited useful life the property has; if he does not sustain the burden, he may not amortize the property. Laird v. United States, 556 F.2d 1224, 1236 (5th Cir.1977); First Northwest Industries, supra; Dobson, supra, 551 F.Supp. at 1155. III. Plaintiff's reliance on the assignment of income doctrine is misplaced. The doctrine does not apply to the sale of the Yankee franchise and its attendant broadcasting contracts because NYY Inc. conveyed its entire interest in the franchise and the contracts to the Partnership. *600 Blair, supra, 300 U.S. at 14, 57 S.Ct. at 334; Cold Metal, supra, 247 F.2d at 871; Millette, supra, 594 F.2d at 124. The Network Broadcasting Contract. Plaintiffs may not amortize the network broadcasting contract. It has neither an ascertainable value nor a limited useful life. The Partnership purchased the rights of NYY Inc. under the Major League Agreement, including the right to a pro rata share of the profit from the network broadcasting contract. NYY Inc. could not have sold the right to this profit as an asset separate from the Major League Agreement because only the Commissioner or some other party to the Agreement could enforce the national broadcasting contract. Although NYY Inc. was not a named party to the network broadcasting contract — only the Commissioner and NBC were — NYY Inc., however, was a disclosed principal on behalf of which the Commissioner contracted. What the Partnership purchased from NYY Inc. was the right to be a disclosed principal. Thus, the national broadcasting contract has no value apart from the Major League Agreement because the right to a pro rata share of the profit from the network broadcasting contract is inherent in and inseverable from the Major League Agreement. Moreover, the Major League Agreement does not have an ascertainable value apart from the Yankee franchise. A party could assign its rights under the Agreement only to the entity which purchased its franchise. The Agreement provides that its "terms and provisions ... will be binding upon and inure to the benefit of the successors and assigns of each of the parties hereto as members of their respective Leagues." The emphasized language limits the category of "successors and assigns;" it does not refer to the "parties." The Agreement defines the "parties" collectively as the "Clubs" and individually as a "Club." ¶ 1.(e). A Club is clearly a member of a League. Thus the phrase "as members of their respective Leagues" must refer to "successors and assigns" unless it is to be construed as a redundancy. The Partnership purchased the combined franchise and Major League Agreement rights, not the rights to the network broadcasting contract. The network broadcasting contract increases the value of the purchase but is not a separate property interest. Accordingly, plaintiffs may not amortize the network broadcasting contract. Even if this court held that the Major League Agreement had an ascertainable value separate from the value of the franchise, the plaintiffs could not amortize it because it does not have a limited useful life. Laird, supra 556 F.2d at 1236 (5th Cir.1977); First Northwest Industries, supra; Dobson, supra, 551 F.Supp. at 1155. It provides for its automatic perpetual renewal unless four (4) clubs of either League affirmatively give notice to the Commissioner of its termination. No Club gave such notice. Since the plain terms of the Major League Agreement demonstrate the existence of no limited useful life, plaintiffs may not amortize it. The Local Television Broadcasting Contract and the Radio Broadcasting Contract. Also, plaintiffs may not amortize the value of the local television broadcasting contract because it has no limited useful life. The Partnership purchased the rights of NYY Inc. under the local television broadcasting contract. Under the contract's terms, both the Partnership and WPIX promise to negotiate in good faith for the extension of the contract. Each promises to submit to the other its best offer for the continuation of the contract. Moreover, if these negotiations initially fail, the Partnership is bound to give WPIX the first option to enter into a new contract on the terms of WPIX's best offer before it may offer equally favorable terms to another station. The contract contemplates a continuing relationship. Consequently, it has no limited useful life on which to base amortization. This court need not address extensively whether the radio broadcasting contract is amortizable. In their 1973 and 1974 Partnership *601 Tax Returns, the plaintiffs do not claim that it had an ascertainable value and thus, may not take amortization deductions for it. Def.'s Exhs. D and E. For the reasons stated above, the government's motion for summary judgment is granted, and the plaintiffs' motion for summary judgment is denied. IT IS SO ORDERED. NOTES [1] 28 U.S.C. § 1346(a)(1) provides: (a) The district courts shall have original jurisdiction, concurrent with the United States Claims Court, of: (1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws; ... [2] Mrs. Patricia C. McCarthy is a party to this suit because she filed a joint return with her husband, Daniel R. McCarthy. [3] 26 U.S.C. § 6511(a) provides: (a) Period of limitation on filing claim. — Claim for credit or refund of an over-payment of any tax imposed by this title in respect of which tax the taxpayer is required to file a return shall be filed by the taxpayer within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later, or if no return was filed by the taxpayer, within 2 years from the time the tax was paid. Claim for credit or refund of an over-payment of any tax imposed by this title which is required to be paid by means of a stamp shall be filed by the taxpayer within 3 years from the time the tax was paid. [4] 26 U.S.C. § 6532(a)(1) provides: (a) Suits by taxpayers for refund.— (1) General rule. — No suit or proceeding under section 7422(a) for the recovery of any internal revenue tax, penalty, or other sum, shall be begun before the expiration of 6 months from the date of filing the claim required under such section unless the Secretary or his delegate renders a decision thereon within that time, nor after the expiration of 2 years from the date of mailing by certified mail or registered mail by the Secretary or his delegate to the taxpayer of a notice of the disallowance of the part of the claim to which the suit or proceeding relates. [5] Agreement between The Major League Baseball Television Committee and NBC News, Def.'s Exh. R. at 2-3; April 29, 1971 letter from NBC to Bowie K. Kuhn, Commissioner of Baseball and February 14, 1972 letter from NBC to Kuhn, Def.'s Exh. C. [6] Id. [7] The Major League Clubs first entered into the Major League Agreement In Re Major Leagues Central Fund on December 1, 1961. They amended it on December 1, 1962, July 1, 1967, December 1, 1968 and December 1, 1972. The 1972 amendments were in force when the Partnership purchased the Yankees franchise in 1973. [8] Where the local television broadcasting contract conflicted with the network broadcasting contract, the network broadcasting contract was given priority. Local television broadcasting contract, ¶'s 2.(b), (c); 15. [9] Paragraph 3. the local television broadcasting contract provides: This Agreement shall remain in force for the 1972, 1973 and 1974 seasons. NYY shall conduct first negotiations with Station during the sixty (60) day period commencing August 1, 1974 in an attempt to reach agreement upon terms applicable for the extension of this Agreement. During such period, Station and NYY shall endeavor to reach mutual agreement upon such terms as will be applicable for such extension. Immediately upon the expiration of such sixty (60) day period, if NYY and Station have not agreed upon such terms and conditions, both NYY and Station shall furnish the other in writing the terms and conditions (the "NYY Offer" and "Station Offer," respectively) most favorable to the party receiving each such Offer with respect to which each party is willing to agree to such extension. NYY may thereafter make any agreement for the telecast of NYY games with another television station located in the Home Territory upon terms and conditions at least as favorable to that station as the NYY offer but not as favorable as the Station Offer without reoffering such terms and conditions to Station. [10] Section 167(a) provides: There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence) — (1) of property used in trade or business, or (2) of property held for the production of income. [11] Regulation 1.167(a)-3 provides, in pertinent part: If an intangible asset is known from experience or other factors to be of use in the business or in the production of income for only a limited period, the length of which can be estimated with reasonable accuracy, such an intangible asset may be the subject of a depreciation allowance. Examples are patents and copyrights. An intangible asset, the useful life of which is not limited, is not subject to the allowance for depreciation. No allowance will be permitted merely because, in the unsupported opinion of the taxpayer, the intangible asset has a limited useful life. No deduction for depreciation is allowable with respect to goodwill.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON IN RE PARENTAGE AND SUPPORT No. 70921-6- OF: L.L. Minor child. p"t <~ ro KYLA ESTES, in; DIVISION ONE Appellant, CO v. UNPUBLISHED OPINION JONATHAN LaVOI, FILED: September 22. 2014 Respondent. Spearman, C.J. — Kyla Estes appeals orders providing for the custody and support of her child, L.L. Because Estes fails to demonstrate that the trial court erred, we affirm. FACTS Kyla Estes and Jonathan LaVoi are the parents of L.L., born August 28, 2012. The parents' brief romantic relationship had ended by the time L.L. was born, and their parenting relationship has been fraught with conflict. After L.L's birth, LaVoi regularly requested visitation with the child. On the occasions that Estes agreed, she would either arrive late, cut the visit short, or cancel the visit altogether. More often than not, however, Estes refused to allow LaVoi to visit. No. 70921-6-1/2 Estes filed a petition for a residential schedule and a parenting plan, and the trial court entered a temporary order designating Estes as the primary residential parent of L.L. and giving LaVoi visitation twice a week. Estes frequently violated this order by failing to bring L.L. to scheduled visits. On the few occasions that LaVoi was able to see L.L., Estes interfered with their relationship by making frequent allegations of abuse or neglect to third parties. For example, Estes told a hospital social worker that LaVoi used drugs while L.L. was in his care. Child Protective Services investigated Estes's claim and determined it to be unfounded. Estes also told L.L.'s pediatrician that L.L. had suffered injuries during a visit with LaVoi. The pediatrician did not observe any of the injuries alleged by Estes. Estes repeatedly contacted the Kitsap County Sheriff's Department to demand they perform welfare checks on L.L. while he was with LaVoi. Officers observed the child and saw no cause for concern. Estes and her family also engaged in extensive hostile behavior towards LaVoi, his attorneys, the guardian ad litem (GAL) and several visitation supervisors. When L.L. was approximately one month old, Estes and her mother showed up unannounced at LaVoi's home at approximately 6:00 a.m. With L.L. in her arms, Estes spent more than ten minutes ringing LaVoi's doorbell, pounding on the door and yelling. Estes screamed obscenities about LaVoi's new girlfriend and told LaVoi he would never see L.L. again. Estes's mother also participated in the yelling. Estes contacted law enforcement at least eight times to claim that LaVoi or his friends had abused or harassed her. She and her parents filed multiple bar grievances against both LaVoi's attorney and the GAL and No. 70921-6-1/3 sought an internal affairs investigation against an officer who performed a welfare check on L.L. On May 8, 2013, the trial court ordered Estes to participate in a psychological evaluation with a psychologist approved by the GAL. Estes failed to undergo the evaluation. On September 26, 2013, the trial court ordered that LaVoi be the primary residential parent of L.L. The trial court ordered Estes to bring L.L. to the courthouse by 4:00 p.m. that day. The order informed Estes that if she did not comply, the trial court would issue a bench warrant for her arrest and a writ of habeas corpus to recover the child. The trial court also entered a temporary restraining order restricting Estes from having any contact with LaVoi or L.L. except for supervised visitation. Estes failed to produce L.L. as ordered. The trial court issued a writ of habeas corpus and the King County Sheriff's Office spent seven days attempting to locate L.L. Estes's parents finally produced L.L. after a detective notified them that Estes would face criminal charges. Estes later admitted that she hid at her parents' house with L.L. during that time. Trial began on October 21, 2013. LaVoi was represented by counsel and Estes, who had previously discharged her attorney, appeared pro se. Following three days of testimony, the trial court entered findings of fact and conclusions of law, a parenting plan and an order of child support. The trial court ordered that LaVoi remain L.L.'s primary residential parent. The trial court found that Estes's contact with L.L. should be restricted to a total of eight hours of supervised visitation a week because Estes No. 70921-6-1/4 engaged in abusive use of conflict during the duration of L.L.'s life and had withheld access to L.L. from LaVoi for a protracted period of time without good cause. CP 1183. The trial court ordered Estes to pay LaVoi $10,000 in attorney fees due to her "intransigence and filing of frivolous motions." Clerk's Papers (CP) at 1181. The trial court also ordered Estes to pay LaVoi $296.23 per month in child support. In doing so, the trial court found Estes to be voluntarily unemployed and imputed her income at $1,345.00 per month based on her work history. Proceeding pro se, Estes appeals the September 27, 2013 order designating LaVoi as the primary residential parent and the November 4, 2013 findings of fact and conclusions of law, parenting plan and order of child support. DECISION In determining a parenting plan, the trial court exercises broad discretion. In re Marriage of Kovacs. 121 Wn.2d 795, 801, 854 P.2d 629 (1993). Atrial court's decision regarding custody or visitation will not be overturned absent abuse of that discretion. In re Marriage of Rich. 80 Wn. App. 252, 258, 907 P.2d 1234 (1996). A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds. In re Marriage of Littlefield, 133 Wn.2d 39, 46-7, 940 P.2d 1362 (1997). We review the trial court's findings of fact to determine whether substantial evidence supports the findings. Sunnvside Valley Irrigation Dist. v. Dickie, 111 Wn. App. 209, 214, 43 P.3d 1277 (2002). We do not review the trial court's credibility determinations, nor do we weigh conflicting evidence. Rich. 80 Wn. App. at 259. No. 70921-6-1/5 1. September 26. 2013 Temporary Order Estes claims that the trial court erred in designating LaVoi as the primary residential parent of the child and restricting her contact. She argues that she did not receive sufficient notice because she believed the hearing scheduled for that day was only a pretrial hearing and not one at which her status as primary residential parent would be determined. Because any temporary parenting plans entered pretrial are terminated by the final parenting plan, Estes's challenge to the September 26, 2013 order is moot. See RCW 26.09.060(10)(c). 2. November 4. 2013 Final Orders Estes claims that the trial court erred in determining a residential schedule without considering the required statutory factors in RCW 26.09.187(3)(a).1 But it is clear from the court's lengthy and detailed findings of fact that the court did 1 RCW 26.09.187(3)(a) requires the trial court to consider the following factors when determining residential provisions: (i) The relative strength, nature, and stability of the child's relationship with each parent; (ii) The agreements of the parties, provided they were entered into knowingly and voluntarily; (iii) Each parent's past and potential for future performance of parenting functions ... including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child; (iv) The emotional needs and developmental level of the child; (v) The child's relationship with siblings and with other significant adults, as well as the child's involvement with his or her physical surroundings, school, or other significant activities; (vi) The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule; and (vii) Each parent's employment schedule, and shall make accommodations consistent with those schedules. No. 70921-6-1/6 consider the required factors in determining that LaVoi should be L.L.'s primary residential parent: a. Jonathan LaVoi has a strong relationship with [L.L.]. Although Kyla Estes' failure to allow regular and consistent contact between Jonathan LaVoi and the child may have delayed their ability to have such a relationship, significant testimony established that Jonathan LaVoi and child have a strong, stable, bonded relationship at this time. b. Ms. Estes has a loving relationship with her son; however she has no acknowledgment that her actions potentially have had a detrimental impact on her child. c. The parties do not have any agreements regarding parenting of the child. d. Jonathan LaVoi is capable of and has demonstrated his ability to perform the parenting functions. e. Kyla Estes has demonstrated an inability to perform certain key parenting functions, such as assisting the child to develop and maintain appropriate interpersonal relationships, and exercising appropriate judgment regarding the child's welfare. The court does not find that she would physically harm her child but rather that she fails to recognize that her actions have potentially harmed her child emotionally. f. The emotional needs and development level of the child requires that the child be placed in the primary care of Jonathan LaVoi, who has demonstrated that he is capable of providing a loving and stable environment for the child. g. The emotional needs and developmental level of the child requires that Kyla Estes engage in the court ordered psychological evaluation. Lisa Barton, the guardian ad litem, recommended the psychological evaluation because without it, the court would be unable to determine whether Kyla Estes has mental health issues and whether she would continue to create conflict. No. 70921-6-1/7 h. The emotional needs and developmental level of the child requires that Kyla Estes have supervised visitation pending the psychological evaluation and the successful completion of its recommendations to ensure that Kyla Estes does not continue to interfere with the child's emotional needs, such as a regular and consistent relationship with Jonathan LaVoi, and the absence of conflict. i. Jonathan LaVoi has surrounded himself with a suitable, stable and appropriate support system of friends and family with whom the child is developing positive relationships. j. The court is concerned about the child's relationship with the maternal grandparents and uncle based on their individual behavior and their assistance of Kyla Estes's willful and blatant violation of court orders, as well as their participation, engagement and initiation of hostile behavior and conflict. k. Jonathan LaVoi has demonstrated a desire and ability to have a positive, consistent, stable relationship with the child. The court finds credible Jonathan LaVoi's testimony that he wants the child to have a relationship with the mother. The court finds credible Jonathan LaVoi's testimony that he will not interfere with or violate court orders regarding Kyla Estes' visitation with the child. Jonathan LaVoi has not engaged in any behavior throughout the litigation which indicates otherwise. I. The court finds that Kyla Estes has demonstrated no desire or ability to ensure that Jonathan LaVoi and child have a consistent, positive, stable relationship. 1) Kyla Estes has engaged in the abusive use of conflict. 2) Kyla Estes has violated multiple court orders, including multiple missed visits and a blatant violation of the court's September 26, 2013 transference of custody order for seven days. 3) The court does not find Kyla Estes' testimony that she will not violate future orders credible. m. The only evidence the court has regarding either party's employment is Jonathan LaVoi's testimony about his employment. Jonathan LaVoi has a full time job, but has flexible hours regarding when he goes into work and leaves work each day. n. Kyla Estes testified that she has a business license and a job that allows her to be at home with the child during the day, however, she provided no evidence or testimony as to what her job is, how No. 70921-6-1/8 much it pays, and whether it is sufficient to support the child financially. The court finds that based on Kyla Estes' claims of "poverty," she is voluntarily unemployed. CP at 1169-70. Estes does not challenge any of the findings of fact and we therefore treat them as verities on appeal. See In re Marriage of Brewer, 137 Wn.2d 756, 766, 976 P.2d 102 (1999). Estes claims that the trial court erred in restricting her contact with L.L. based on her abusive use of conflict and withholding of L.L. from LaVoi. She argues that the trial court was instead obligated to restrict LaVoi's contact with L.L. because LaVoi engaged in acts of domestic violence against her. A trial court may limit a parent's residential time with a child ifthe parent engages in the "abusive use of conflict by the parent which creates the danger of serious damage to the child's psychological development" or "has withheld from the other parent access to the child for a protracted period without good cause." RCW 26.09.191 (3)(e)(f). A trial court must limit a parent's residential time with a child if the parent has a history of acts of domestic violence. RCW 26.09.191 (2)(iii). Again, the trial court made thorough and comprehensive findings regarding Estes's abusive use of conflict, based on Estes's frequent violation of court orders regarding visitation, false allegations of abuse and neglect, and harassment of LaVoi, his friends, his attorneys and the GAL. The trial court also found that Estes had allowed L.L. to witness her behavior and that it had a detrimental effect on his well-being. Again, Estes does not challenge these findings and we treat them as verities. The trial court also found that Estes's claims of domestic violence were 8 No. 70921-6-1/9 not credible. The unchallenged findings support the trial court's limitation of Estes's contact with L.L. Estes argues that the trial court erred in limiting her visitation with L.L. to eight hours per week. The basis for Estes's claim appears to be that, following the entry of the trial court's order, she has had unspecified difficulties scheduling visits with LaVoi and the court-appointed visitation supervisor. This does not establish that the trial court abused its discretion. Estes argues that the trial court erred in allowing LaVoi to take L.L. on an out-of-state vacation without notifying her in advance as required by the parenting plan. Because the vacation is alleged to have taken place after the trial, this claim concerns matters outside the record. We consider only evidence that was before the trial court at the time a decision was made. See RAP 9.1; 9.11. While we recognize that Estes has filed her briefs pro se, pro se litigants are held to the same standards as attorneys and must comply with all procedural rules on appeal. In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993). Estes contends the trial court erred in finding that she refused to undergo the court-ordered psychological evaluation. She claims that she has had multiple psychological evaluations and provided documentation to the trial court. Estes does not cite to the trial court record but instead urges this court to consider two documents she has attached to her brief. Because it is clear from the dates that these documents were created after the trial, they were not part of the trial court record and we will not consider them. No. 70921-6-1/10 Estes argues the trial court erred in failing to require LaVoi to establish paternity. But the trial court found that LaVoi and Estes both signed an acknowledgment of paternity alleging that LaVoi was the father of L.L. Estes does not challenge this finding. An acknowledgement of paternity "is equivalent to an adjudication of parentage of a child and confers upon the acknowledged father all the rights and duties of a parent." RCW 26.26.320(1). Estes claims that the trial court erred in permitting LaVoi to question her regarding bar grievances she had filed against his attorneys. She contends the trial court should have sustained her objection to the question as irrelevant. But Estes's actions were relevant to whether she had engaged in abusive use of conflict. Estes also claims the trial court erred in permitting LaVoi to "berate and victimize" her during closing argument. Br. of App. at 11. Because this was a bench trial, we presume that the trial court based its decision solely on admissible evidence. Crosetto v. Crosetto. 65 Wn.2d 366, 368, 397 P.2d 418 (1964). Estes challenges the trial court's award of attorney fees to LaVoi, arguing that the trial court did not adequately consider her ability to pay. We review a trial court's decision on attorney fees for abuse of discretion. In re Marriage of Burke. 96 Wn. App. 474, 476, 980 P.2d 265 (1999). Here, the trial court awarded LaVoi $10,000 in attorney fees due to Estes's intransigence and filing of frivolous motions. The trial court made detailed findings in support of its award: The court finds that a judgment should be entered against Kyla Estes in favor of Jonathan LaVoi in the amount of $10,000.00 for attorney fees. The court finds that Kyla Estes' intransigence and filing of 10 No. 70921-6-1/11 frivolous motions has unreasonably and unnecessarily increased Jonathan LaVoi's attorney fees. The court finds it is reasonable for Kyla Estes to be responsible for a portion of Jonathan LaVoi's legal fees. 1. As of October 14, 2013, Jonathan LaVoi had incurred $57,246.66 in attorney fees. It is reasonable to find that those fees increased during the week of October 14, 2013 for trial preparation, and during the week of October 21, 2013, during the trial. 2. Due to Kyla Estes's intransigence and blatant violation of court orders, Jonathan LaVoi had to file two motions for contempt. Both motions for contempt were granted. Both orders of contempt were upheld on revision. 3. Kyla Estes filed at least two frivolous motions - her motion to vacate pursuant to CR 60 and her motion to remove the guardian ad litem. Both motions were denied. As a result of her frivolous motions, Kyla Estes was found to have violated CR 11. The denial of her motions was upheld on revision. 4. Kyla Estes also sought a trial de novo and refused to agree to dismiss it, even after being notified by two judicial officers that it was inappropriate. As a result, Jonathan LaVoi incurred attorney fees in moving to have the trial de novo dismissed. 5. Jonathan LaVoi incurred substantial attorney fees between September 26, 2013, when the court granted him temporary custody, and October 3, 2013, when Kyla Estes returned the child. As a result of Kyla Estes' custodial interference, two additional hearings had to be held. Had Kyla Estes returned the child on the 26th of September, these two hearings would have been unnecessary. 6. Jonathan LaVoi has been awarded $3,000.00 in attorney fees and a $200 civil penalty in the orders for contempt. He was awarded $1,500.00 in attorney fees on the court's motion in finding that Kyla Estes had violated CR 11. He was awarded $500.00 in the court's order dismissing Kyla Estes' request for a trial de novo. Kyla Estes has not paid on any of the judgments. The award of fees Jonathan LaVoi has already received does not compensate him for the fees he has incurred as a result of Kyla Estes' frivolous motions and intransigence. 7. The court finds that the additional award of $10,000.00 in attorney fees to Jonathan LaVoi is reasonable. 11 No. 70921-6-1/12 CP at 1181-82. Estes does not challenge these findings. Furthermore, if a trial court awards fees on the basis of intransigence, the financial ability of the party to pay the fees is not relevant. In re Marriage of Mattson, 95 Wn. App. 592, 604, 976 P.2d 157(1999). Estes also contends the trial court erred in ordering her to pay child support, claiming she does not have the financial resources to do so. We review a child support order for abuse of discretion. In re Marriage of Bell. 101 Wn. App. 366, 371-72, 4 P.3d 849 (2000). "This court will not substitute its own judgment for that of the trial court where the record shows that the trial court considered all relevant factors and the award is not unreasonable under the circumstances." [n re Marriage of Fiorito, 112 Wn. App. 657, 664, 50 P.3d 298 (2002). A court will impute income to a parent for purposes of child support when the parent is voluntarily unemployed or underemployed. RCW 26.19.071(6). "The court shall determine whether the parent is voluntarily underemployed or voluntarily unemployed based upon that parent's work history, education, health, and age, or any other relevant factors." RCW 26.19.071(6). The trial court found that Estes had "failed to find meaningful and gainful employment in order to support herself and the child" and that she had not complied with a previous order to search for at least ten jobs a week. The trial court found that there was "no evidence that she has actively sought reasonable employment, or that she is employed." CP at1180. The trial court found that Estes was voluntarily unemployed. Though Estes challenges this finding, Estes 12 No. 70921-6-1/13 does not identify any evidence in the record from which the trial court could have found otherwise. And though Estes claims that the trial court refused to consider financial documentation that she provided, she provides no citation to the record in support of this claim. Estes fails to demonstrate any abuse of discretion in the child support order. Finally, Estes claims the trial court should not have required her to pay the cost of visit supervision, citing her inability to pay. But Estes does not challenge the trial court's finding that supervision was warranted. Moreover, the trial court's finding that Estes was refusing to look for employment was supported by the evidence. As a result, Estes does not demonstrate that the trial court abused its discretion in obligating her to pay the cost of visit supervision. We affirm all of the challenged orders. -?Af\t^<^ C-U. WE CONCUR: 1 M ^ rT 13 

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA,  No. 05-50102 Plaintiff-Appellee, v.  D.C. No. CR-04-01396-NAJ ANTONIO LOPEZ-PERERA, OPINION Defendant-Appellant.  Appeal from the United States District Court for the Southern District of California Napoleon A. Jones, District Judge, Presiding Argued and Submitted January 12, 2006—Pasadena, California Filed February 21, 2006 Before: Mary M. Schroeder, Chief Judge, Alfred T. Goodwin and Raymond C. Fisher, Circuit Judges. Opinion by Judge Goodwin 1815  UNITED STATES v. LOPEZ-PERERA 1817 COUNSEL Jeremy D. Warren, San Diego, California, for the defendant- appellant. Anne Kristina Perry, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee. 1818 UNITED STATES v. LOPEZ-PERERA OPINION GOODWIN, Circuit Judge: Antonio Lopez-Perera appeals his conviction of violating 18 U.S.C § 922(g)(5)(A), (being an alien illegally or unlaw- fully in the United States in possession of a firearm). He assigns error to the denial of his Federal Rule of Criminal Procedure 29 motion seeking a judgment of acquittal. Because the district court misinterpreted the meaning of the statute, it erred in denying the motion. I. Background On May 9, 2004, Lopez-Perera, a citizen of Mexico, drove his van, with no passengers, from Mexico into the San Ysidro Port of Entry in California. When first asked by an officer at the border, Lopez-Perera falsely stated that he was a United States citizen. Lopez-Perera then offered a California security guard identification card as proof of his citizenship. The officer did not accept the proffered card as proof of cit- izenship and directed Lopez-Perera towards secondary inspec- tion. Lopez-Perera waited approximately twenty-five minutes in the secondary inspection area and then drove his van toward the north exit of the San Ysidro Port of Entry. Border officers noticed Lopez-Perera’s movements and stopped him before he could leave the area. After stopping the van, the officers arrested and searched Lopez-Perera. The search uncovered the California security guard identification card and a permit to carry an exposed firearm. The permit to carry an exposed firearm prompted the officers to search the van. The search revealed the presence of a .38 caliber Taurus Revolver. Lopez-Perera was held at the port of entry and questioned by an Immigration and Customs Enforcement special agent.  UNITED STATES v. LOPEZ-PERERA 1819 After providing Lopez-Perera with a Miranda warning and receiving a signed waiver, the special agent learned that Lopez-Perera was a citizen of Mexico and that the pistol recovered in the van was Lopez-Perera’s. On May 19, 2004, Lopez-Perera was indicted for violating 18 U.S.C. § 911 (making a false claim of United States citi- zenship) and 18 U.S.C. § 922(g)(5)(A) (possession of a fire- arm by an alien illegally or unlawfully in the United States). On October 26, 2004, Lopez-Perera was tried on both counts in a bench trial. Lopez-Perera put on no affirmative evidence, conceded the false claim to citizenship charge, and moved for a judgment of acquittal with respect to the firearm charge. As noted, the court denied the motion and found Lopez-Perera guilty on both counts. Lopez-Perera was sentenced to thirteen months imprison- ment for each count followed by a year of supervised release on the false claim of citizenship charge and three years of supervised release on the firearm charge. The terms of impris- onment for each count were to run concurrently as were both terms of supervised release. II. Analysis This appeal requires us to construe 18 U.S.C. § 922(g) (5)(A) and 27 C.F.R. § 478.11. Lopez-Perera argues that the drafters intended to use immigration terms of art when they denounced the possession of a firearm by a person “illegally or unlawfully in the United States.” The district court dis- agreed and held that, by his physical presence in the port of entry, Lopez-Perera satisfied the element of the crime of being illegally or unlawfully in the United States. We hold that the law is contrary to the district court’s ruling. “To determine the plain meaning . . . of a statute, we must examine not only the specific provision[s] at issue, but also the structure of the law as a whole including its object and 1820 UNITED STATES v. LOPEZ-PERERA policy.” Almero v. INS, 18 F.3d 757, 760 (9th Cir. 1994). If a statute is silent regarding an issue, we will defer to the inter- pretation of the administrative agency charged with imple- menting the statute. Id. at 763. [1] Here, 18 U.S.C. § 922(g)(5) reads: (g) It shall be unlawful for any person — . . . (5) who, being an alien— (A) is illegally or unlawfully in the United States; or (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(26))); . . . to ship or transport in interstate or foreign com- merce, or possess in or affecting commerce, any fire- arm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. 18 U.S.C. § 922(g)(5) (emphasis added). The portion of the statute at issue in this case is the term “illegally or unlawfully in the United States.” The statute provides no definition of what constitutes illegal or unlawful presence in the United States. [2] The legislative history is similarly silent. No comments concerning the meaning of “illegally or unlawfully in the United States” appear in the 1968 legislative history. See, e.g., 114 CONG. REC. S13867-69 (daily ed. May 17, 1968). There are also no comments regarding the term in the 1986 legisla-  UNITED STATES v. LOPEZ-PERERA 1821 tive history, when the statute was amended to include the most recent language for § 922(g)(5)(A). See, e.g., 132 CONG. REC. S9556-60 (daily ed. May 6, 1986); 132 CONG. REC. H7075-92 (daily ed. April 10, 1986); 131 CONG. REC. S18155- 18237 (daily ed. July 9, 1985). When Senator Durbin introduced his 1998 amendment to the statute, his comments focused on his concern about for- eign tourists purchasing firearms in the United States, not about aliens sneaking firearms into the country. See 144 CONG. REC. S8641 (daily ed. July 21, 1998) (statement of Sen. Durbin) (“I think, frankly, we ought to say that if you come into this country as our guest, not as a citizen of the United States, that we are going to restrict your right to purchase a firearm.”). Senator Durbin did not offer a definition of the words used in the amended statute. See id. at S8639-42. [3] The Bureau of Alcohol, Tobacco, and Firearms (“BATF”), however, as the agency charged with administer- ing § 922, has promulgated a regulation including a definition for “Alien illegally or unlawfully in the United States.” 27 C.F.R. § 478.11. The relevant portion of the BATF’s defini- tion provides: Aliens who are unlawfully in the United States are not in valid immigrant, nonimmigrant or parole sta- tus. The term includes any alien — (a) Who unlawfully entered the United States with- out inspection and authorization by an immigration officer and who has not been paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act (INA). 27 C.F.R. § 478.11 (emphasis added). The BATF’s definition requires analysis because it fills a gap left by Congress in enacting § 922(g)(5)(A). See Chevron, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984). 1822 UNITED STATES v. LOPEZ-PERERA In 1996, the BATF published a notice in the Federal Regis- ter that it was planning to amend the regulation to include def- initions for the categories of persons prohibited from owning firearms. Definitions for the Categories of Persons Prohibited From Receiving Firearms, 62 Fed. Reg. 34,634, 34,635 (June 27, 1997) (to be codified at 27 C.F.R. § 478.11). During the requisite public comment process, the Immigration and Natu- ralization Service (“INS”) submitted comments to the BATF regarding the immigration-related definitions. Id. In making the comments, the INS pointed out that “the INA uses specific legal terms to refer to the status of aliens in the United States.” Id. at 34,637 (emphasis added). [4] The BATF considered the INS’ suggestions and stated that it “agrees with the INS that the wording of the definition for [aliens illegally and unlawfully in the United States] should reflect the terminology used in the Immigration and Nationality Act. Accordingly, [B]ATF is adopting INS’ pro- posed definition into the final regulations.” Id. These BATF statements in the Federal Register make clear that the lan- guage in 27 C.F.R. § 478.11 must be construed in light of immigration law. [5] But, the analysis cannot end here because the definition that the INS recommended, and the BATF adopted, does not define the term “entered.” In the context of immigration law, however, “enter” is “a specific legal term.” Entering the United States “requires: ‘(1) a crossing into the territorial lim- its of the United States, i.e., physical presence; (2)(a) inspec- tion and admission by an immigration officer, or (b) actual and intentional evasion of the inspection at the nearest inspec- tion point; and (3) freedom from official restraint.’ ” Sidhu v. Ashcroft, 368 F.3d 1160, 1163-64 (9th Cir. 2004) (quoting Matter of Patel, 20 I. & N. Dec. 368, 370 (1991)). [6] Here, Lopez-Perera satisfied the first entry requirement because he crossed into the United States from Mexico; the San Ysidro Port of Entry is in the United States. Just as in  UNITED STATES v. LOPEZ-PERERA 1823 Sidhu, it is arguable whether Lopez-Perera satisfied the sec- ond entry requirement because he was considered by an offi- cer at primary inspection and forwarded on to secondary inspection. The inspection point is moot, however, because Lopez-Perera was never free from official restraint and, there- fore, never entered the United States. See Id. at 1164 (“Because Sidhu never exited secondary inspection, she was not free from official restraint.”). “Aliens who proceed directly as instructed by signs or otherwise to the customs facility . . . are not sneaking into the United States. Instead they are presenting themselves to American officials in the manner designated by the United States government.” United States v. Zavala-Mendez, 411 F.3d 1116, 1120 (9th Cir. 2005) (confirming the well established proposition that a person is not “in” the United States until he is not only physically pres- ent on the United States side of the border, but also enjoys “freedom from official restraint.”), see also United States v. Lombera-Valdovinos, 429 F.3d 927, 929 (9th Cir. 2005) (explaining that “an alien who is on United States soil, but who is deprived of [his] liberty and prevented from going at large within the United States, remains under official restraint and therefore has not entered the country”) (internal citations omitted). We are confronted with two questions when analyzing an administering agency’s construction of a statute. Chevron, 467 U.S. at 842. The first question is “whether Congress has directly spoken to the precise question at issue.” Id. If it has, both courts and agencies are bound by Congress’ clear mean- ing. Id. at 842-43. If Congress has not spoken clearly and an agency has promulgated a regulation, however, we cannot simply impose our own construction of the statute as we could in the absence of a regulation. Id. at 843. “Rather, if the stat- ute is silent or ambiguous with respect to the specific issue, the [second] question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. Deference is granted to the agency’s administrative inter- pretations 1824 UNITED STATES v. LOPEZ-PERERA whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations. If this choice repre- sents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned. Id. at 844-45 (citations and internal quotations omitted). [7] Considering the confluence of immigration law and criminal law inherent in § 922(g)(5)(A), it cannot be said that the BATF’s decision to utilize immigration-specific terms is an impermissible construction of the statute. See id. at 866 (“[F]ederal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of . . . policy choices and resolving the struggle between competing . . . public interest[s] are not judicial ones: ‘Our Constitution vests such responsibilities in the political branches.’ ” (quoting TVA v. Hill, 437 U.S. 153, 195 (1978))). Furthermore, no part of § 922(g)(5)(A)’s legislative history indicates that the decision to use immigration law definitions is one that Congress would not sanction. In its brief and in response to questions at oral argument, the government argued that the “official restraint” doctrine is limited to illegal re-entry cases under 8 U.S.C. § 1326. The cases cited by the government to support this argument, how- ever, highlight Congress’ detailed understanding of the differ- ence between the terms “come to the United States” and “in the United States.” United States v. Hernandez-Garcia, 284 F.3d 1135, 1137-39 (9th Cir. 2002) (recognizing a distinction  UNITED STATES v. LOPEZ-PERERA 1825 between “coming to” and “entering” the United States); United States v. Gonzalez-Torres, 309 F.3d 594, 599 (9th Cir. 2002) (“Deliberately overruling case law requiring entry to sustain a smuggling conviction, Congress replaced the words ‘brings into’ with the words ‘brings to.’ ”). Indeed, in revising 8 U.S.C. § 1324 to no longer require an alien’s “entry” to sus- tain a smuggling conviction, Congress has shown that it understands the distinction between “coming to” the United States (which does not require entry) and coming “into” or being “in” the United States (which requires both physical presence and freedom from official restraint). See, e.g., United States v. Munoz, 412 F.3d 1043, 1048-49 (9th Cir. 2005) (holding that an alien being smuggled to the United States “comes to” the United States under 8 U.S.C. § 1324(a)(2)(B) when he crosses the border whether or not he or she is under official restraint). [8] Section 922(g)(5)(A) does not criminalize the posses- sion of a firearm by an alien who “comes to the United States” or “brings a firearm to the United States,” but instead criminalizes the possession of a firearm by an alien who is “il- legally or unlawfully in the United States.” Therefore, because Lopez-Perera had not entered the United States, he could not have been “illegally or unlawfully in the United States.” III. Conclusion [9] It is clear that Lopez-Perera did not, at the time and place charged, enter the United States. Because he had not yet entered the United States, he could not have been “illegally or unlawfully in the United States.” Congress has made clear that it understands the distinction between the terms “coming to” and “bringing to” the United States and the term “in the United States” and has chosen to use the latter in § 922(g)(5)(A). The district court erred in construing § 922(g)(5)(A) outside the context of immigration law and should have granted Lopez-Perera’s Rule 29 motion. We 1826 UNITED STATES v. LOPEZ-PERERA therefore REVERSE the conviction on the § 922(g)(5)(A) count, and remand the case for a revised sentence. 

309 So.2d 475 (1974) Phillip Robert ROYNICA v. STATE. 5 Div. 130. Court of Criminal Appeals of Alabama. October 1, 1974. Rehearing Denied November 12, 1974. *477 John S. Glenn, Opelika, for appellant. William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State. *478 PER CURIAM. The grand jury of Lee County returned an indictment (Tr. 106) against the appellant, an indigent, for murder in the first degree. The alleged victim was Burt Michael Froney. The jury returned a verdict for murder in the first degree with punishment therefor fixed at life imprisonment. The same grand jury returned another indictment (Tr. 114) against the same appellant, Roynica, for assault with intent to murder Sharon Faye Froney, wife of the deceased. The jury convicted him of assault with intent to murder and fixed his punishment at twenty years imprisonment in the penitentiary. Both indictments were tried together before the same jury. This procedure was by agreement of the trial court, the appellant and respective counsel. Mrs. Froney testified for the state that she was a victim of knife wounds when her husband was killed by a knife assault. The testimony of Mrs. Froney was essentially the same as her testimony in the case of Ronald Keith Connell v. State. The opinion in the Connell case was released on May 7, 1974 and is now subject to review by the Supreme Court of Alabama. We will not repeat the testimony. If necessary, we will refer to her testimony in the instant case, but will not burden this opinion with a repeat of the testimony in Connell. I. Appellant, along with three companions involved in the alleged offense, was arrested in a California motel, pursuant to the mandate of a federal warrant charging the appellant and his companions with flight to escape prosecution in Alabama for the commission of a felony, namely, for the murder in the first degree of Burt Michael Froney. The warrant was issued pursuant to Title 18, § 1073, United States Code, Crimes and Criminal Procedure. This § 1073 reads as follows: "Whoever moves or travels in interstate or foreign commerce with intent either (1) to avoid prosecution, or custody or confinement after conviction, under the laws of the place from which he flees, for a crime, or an attempt to commit a crime, punishable by death or which is a felony under the laws of the place from which the fugitive flees, or which, in the case of New Jersey, is a high misdemeanor under the laws of said State, or * * * shall be fined not more than $5,000 or imprisoned not more than five years, or both." Appellant contends that the federal warrant was invalid for lack of probable cause; that his arrest thereunder was illegal and invalid, because it was premised on an invalid Alabama magistrate's warrant issued by the Circuit Judge of Lee County. (Title 15, § 399, Recompiled Code 1958). Appellant contends that the affidavit supporting the Alabama arrest warrant was conclusional. The affidavit that supports the issuance of the flight warrant for the arrest of appellant (see Exhibit 20, Tr. 102) was made by Thomas J. McCrystle, an FBI agent. The warrant appears on page 101 of the transcript. This affidavit is based on information that Agent McCrystle received from Sheriff James Pearson of Lee County that on January 10, 1972, warrants were issued in Lee County for the arrest of appellant and his companions (listed by name) charging murder, a felony cognizable under the penal laws of Alabama. The agent's affidavit also states that individuals answering the description of the four individuals were observed hitchhiking on 1-65, in the vicinity of Tulsa, Oklahoma. We quote from United States v. Mayer, 22 F.2d 827, (3 Cir.) wherein that court quoted on page 829 as follows: "`On the question of probable cause, it is well established that the indictment itself, together with proof that the defendant is one named in it, is prima facie evidence of probable cause, but not conclusive *479 evidence. Beavers v. Henkel, 194 U.S. 73, 24 S.Ct. 605, 48 L.Ed. 882; Benson v. Henkel, 198 U.S. 1, 25 S.Ct. 569, 49 L.Ed. 919; Hyde v. Shine, 199 U.S. 62, 25 S.Ct. 760, 50 L.Ed. 90; Greene v. Henkel, 183 U.S. 249, 22 S.Ct. 218, 46 L.Ed. 177; Tinsley v. Treat, 205 U.S. 20, 27 S.Ct. 430, 51 L.Ed. 689. * * *" It further appears in the same case, which quotes United States v. Gault, No. 513, 271 U.S. 142, 46 S.Ct. 459, 70 L.Ed. 875, May 3, 1926, as follows: "`* * * referring to the committing magistrate: "He is not intended to hold a preliminary trial, and, if probable cause is shown on the government's side, he is not to set it aside because on the other evidence he believes the defendant innocent." * * *'" We hold that in the instant case, the United States magistrate, Mr. Denson, had a lawful right to act on Agent McCrystle's statement that the warrant for appellant's arrest, according to his informant Sheriff Pearson, had been issued and was outstanding. The information came from a reliable source, the Sheriff of Lee County, and the warrant, as in the indictment, was prima facie evidence of probable cause. We hold that under the circumstances, the flight warrant based, as it was on the state warrant, was valid and authorized the arrest of the four alleged fugitives named in the warrant. However, it is said in State v. Ford, Mo.1973, 495 S.W.2d 408, that a flight warrant was itself probable cause for FBI agents to arrest appellant, and it was not necessary that the agent be possessed of all the information that was presented to the judicial officer at the time the warrant was issued. There was no duty on the part of the federal magistrate to go behind the state warrant of arrest for murder and investigate the validity vel non of such state warrant, which, as we have already stated, was prima facie evidence of probable cause. II. The FBI agents in California acted on a teletype message from Alabama, which stated the appellant was wanted for unlawful flight to avoid prosecution for murder in Alabama. Having determined, supra, that the flight warrant was valid, the FBI officers had lawful authority to arrest appellant and his alleged partners in crime without physical possession of the flight warrant. Bowers v. Coiner, 309 F. Supp. 1064(7) (D.C.); Bartlett v. United States, 232 F.2d 135 (5th Cir. 1956); United States v. Donnelly, 179 F.2d 227 (7th Cir. 1950); Spurlin v. State, 46 Ala.App. 485, 243 So.2d 758, writ denied 286 Ala. 738, 243 So.2d 763; Gill v. U. S., 421 F.2d 1353, cert. den., 400 U.S. 851, 91 S.Ct. 85, 27 L.Ed.2d 89, rehearing denied, 400 U.S. 920, 91 S.Ct. 177, 27 L.Ed.2d 161. III. When the FBI agents were making the arrest of appellant et al. in the motel room, to which they obtained lawful entry, they observed three knives, a black sheath and a pair of white boots. These knives, also some other articles, were in plain view of the agents and within reach of one or more of the fugitives. The seizures were incidents of the arrest of appellant. We have determined, supra, that the arrest was lawful and effected pursuant to the mandate of a lawful flight warrant issued in Alabama. The state offered evidence of a sequence of possession relative to these articles and their unchanged condition. They were properly admitted in evidence as part of the res gestae of the alleged crime. IV. Appellant objected to the introduction in evidence of the four flight warrants *480 for the arrest of the appellant and his three companions (see Exhibit 20, Tr. 98-102). The ground of objection was that the exhibits were copies of the originals that had not been accounted for. There was competent testimony by Agent McCrystle and federal commissioner Denson that the copies were correct copies of the originals that were sent to an official custodian of the government. The original warrant was a public record. We quote from McElroy, Law of Evidence in Alabama, 2d Ed., Vol. 2, Key Note No. 218.02, page 150: "`Proof of the content of the public record may be made by a copy thereof—at common law, by a sworn or examined copy; and usually, under a statute, by a certified copy. Miller v. Boykin, 70 Ala. 469, 478. "`The term "examined or sworn copy" of a public record means a copy which a witness testifies was correctly copied by him from, or was compared by him with, the oridinal [sic] and found to be a correct copy of the original. 20 Am.Jur., Evidence, sec. 1038.'" Ex parte State of Alabama ex rel Attorney General, Petition for Writ of Certiorari to the Court of Criminal Appeals (Re: Thomas William Yelton v. State of Alabama) Opintion released August 8, 1974. We think that pursuant to Yelton v. State, Ala., and McElroy, supra, the copies were admissible. V. Appellant complains of error in the admission in evidence of the contents of a teletype message sent by an FBI agent from his office in Opelika, Alabama, to the FBI office in San Francisco, directing the arrest of appellant and his companions pursuant to the flight warrant. It appears in the evidence that FBI agent McCrystle, a witness for the state, testified that he sent a teletype message to the FBI office in San Francisco in which he stated that the warrants had been obtained and issued by a federal magistrate; that the warrants charged appellant and his companions with unlawful flight to avoid prosecution on a felony charge of murder; that the teletype requested that "these people" be apprehended. All of this evidence was adduced without objection thereto. Then followed: "Q. Was anything said in the teletype about what precautions to take if they—" Then followed appellant's objection that the teletype itself was the best evidence. No more evidence was adduced as to the contents of the teletype. The court overruled the objection. The objection came too late. It did not come until after the aforequoted question was answered. The witness had already testified as to the contents of the flight warrant. Ledlow v. State, 221 Ala. 511, 129 So. 282; Embrey v. State, 283 Ala. 110, 214 So.2d 567; Alabama Digest, Vol. 6A, § 693. FBI agent Wolf, a witness for the state, testified in response to a question propounded by the state that he received a teletype informing him as follows: "* * * four individuals were wanted for unlawful flight to avoid prosecution for the crime of murder somewhere in Alabama, I know it was in the Mobile Office territory of Alabama, and that warrants had been issued for their arrest." The appellant objected prior to the answer on the grounds that the evidence was hearsay. He was bound by this ground. Henry v. Brown, 143 Ala. 446, 39 So. 325. The best evidence rule was not invoked. We do not think the court erred in its ruling, but, if so, it was error without injury. Agent McCrystle had already testified without timely objection as to the teletype which he had sent. VI. Appellant complains that the trial court erred in overruling his objection to a *481 question whereby state's witness Denson, the federal magistrate, was called on to state whether or not it was usual procedure for federal agents to arrest accused persons without warrants. The witness answered: "A. I know that procedure insofar as arrest and that once a warrant is issued by a United States Magistrate, a teletype is sent out to the various FBI officers informing them that a warrant is outstanding and issued and they are authorized then to make an arrest." Argument was made as to the effect of the question and answer: "The effect on the Defendant was to create in the minds of the jury, and of the Court, the impression that the Defendant had been lawfully arrested." We have ruled, supra, that the FBI arrest of the appellant and the companions was lawful. The question and answer were without injury to the appellant. VII. Appellant's next contention asserts that the trial court erred in admitting in evidence a blouse (Exhibit 17) that Mrs. Froney was wearing when she was stabbed or cut, for which appellant was being tried on a charge of assault with intent to murder. As we view the evidence, the blouse was in the same condition with the exception that some slits were made in the hospital emergency room to remove the blouse from the victim's person. The slits were inconsequential so far as the evidentiary value of the blouse is concerned. The jury was informed about the emergency necessity of a hurried removal of the blouse. These slits in our judgment did not detract from the evidentiary purpose of the exhibit. The ruling of the court was free from error. VIII. Another assertion of error is addressed to the admission of State's Exhibit 28, namely, a photograph taken at the scene of the crime. This photograph was relevant and admissible. Cauley v. State, 33 Ala.App. 557, 36 So.2d 347(5), cert. den., 251 Ala. 163, 36 So.2d 354. Exhibit 24, a photograph depicting the body of the deceased, was admitted in evidence over appellant's objection. State Trooper Brown stated that he uncovered the body upon entering this trailer. State Exhibit 30, consisting of a photograph showing the lower part of the body and the rear of the camper from the inside, was admitted over appellant's objection. Both of these exhibits, in our opinion, were admissible. Williams v. State, 255 Ala. 229, 51 So.2d 250; Alabama Digest, Criminal Law, Vol. 6, Key Note No. 438. IX. It appears that a witness, Toxicologist Dale Bloomer, made an examination of some blood in a vial. He identified the fluid as human blood and Type A grouping. The blood came to this witness from Doctor Roper, who identified the blood as that of the deceased, Burt Michael Froney. This identification was admitted in evidence without objection and was sufficient to establish the source of the blood despite the inscription on the vial bearing the name of "Fortney". There was no error in admitting this testimony of witness Bloomer relative to the blood sample. X. Appellant contends that the trial court erred in overruling his motion to require the District Attorney to produce a statement of the witness Chase, a companion in the crime, made to the FBI agent. *482 The District Attorney replied that Deputy Sheriff Ronnie Watkins had a copy of a FBI report given to Mr. Watkins in confidence by the FBI relative to Chase's violation of some federal law or statute. We hold that the trial court had no authority to require the District Attorney to produce this report, which was not in his possession nor under his control, but given in confidence to the Deputy Sheriff. XI. Mrs. Froney, the victim of the appellant's alleged assault with intent to murder, testified over appellant's objection, which was overruled, that she heard one of the four hitchhikers ask, after her husband was slain: "`Well, did you get his wallet?' And he said `Yeah.'" This statement, timed as it was, formed a part of the res gestae and was admissible. XII. Appellant asserts that the trial court erred in overruling his objection to the admission in evidence of certain articles belonging to others, which did not connect the appellant with the crime. These articles were: (a) Driver's training certificate of Ronald Keith Connell, an alleged accomplice in the murder; (b) An Australian Bush Hat belonging to the alleged accomplice Connell. These items tended to identify Connell as present when the crime was committed and were properly admitted in evidence. It appears from the appellant's testimony that Connell was present when the crime was committed. Also Chase, an admitted murderer of Mr. Froney, testified that Connell was present. There was no error on the part of the court in failing to exclude these articles. XIII. Witness Sharon Faye Froney, wife of the victim and herself a victim of several knife wounds at the hands of one of the four alleged murderers of her husband, testified, over appellant's objection and an adverse ruling with respect thereto, that she was under sedation at the time she gave the statement. We note that the objection was made after the witness had answered in the affirmative. We will not review this ruling. Walker v. State, 265 Ala. 233, 90 So.2d 221. XIV. The appellant took the stand as a witness for himself. The state cross examined him relative to a statement he made to FBI officers in San Francisco. This statement tended to impeach the appellant. It does not appear that the Miranda warnings were given but such warnings were not a prerequisite to such cross examination for impeachment purposes. Harris v. State of New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1. In the light of this decision, the court was correct in permitting the cross examination. XV. Appellant next contends error on the part of the court in overruling his objection to the state's question to Mrs. Froney, if she noticed "* * * any unusual actions by any of these four individuals after they got into the trailer?" The objection was premised on the ground that the question called for a mental operation and a conclusion of the witness. Evidence of mental operations is admissible. Starr v. Starr, 293 Ala. 204, 301 So.2d 78, (Released September 12, 1974). Mrs. Froney answered: "A. I didn't notice anything strange about any of them. They were just nice, normal young kids." *483 In view of the answer, if the court's ruling was wrong, there was no injury to the appellant. However, this rule of exclusion as to mental operations is abrogated. XVI. Another contention is that the court erred in overruling appellant's objection to the state's question propounded to appellant on cross examination. We quote the question, objection and ruling of the court: "Q. Isn't it a fact that you did come back there after you all had done in Mr. Froney, and Miss Jordan still had the knife on Mrs. Froney and at that time you pulled Mrs. Froney up off of the bed there, and stabbed her and pushed her into the bathroom? "MR. GLENN: We object to this question, if it please the Court; the District Attorney has a right to lead, but he said `after you all did in Mr. Froney and'— "THE COURT: This is cross-examination and respectfully overruled." We do not think the question was misleading or "loaded" as in Marsh et al. v. State, 16 Ala.App. 597, 80 So. 171. Even so, the appellant's answer coupled with answers to prior questions tended to establish that he was free of any involvement in the knifing of Mrs. Froney. The ruling of the court, if in error, did not result in any injury to the appellant. XVII. The trial court, at the request of the state, exempted some of the state's witnesses from the rule of sequestration. Counsel for the appellant admits that there is a long line of cases, almost endless in numbers, so he says, that authorized such exemption. However, appellant importuned this court to overrule these cases. We adhere to the decisions of this court approving such exemption. We have no authority to overrule the cases of the Supreme Court. We are bound to follow them. XVIII. Appellant complains that the trial court committed error in instructing the court reporter not to take down appellant's oral argument on the law with respect to a motion before the court. The court stated, when the ruling was made, that the court reporter "was worked to death." We will not charge the court with error in giving such instructions to the court reporter. Title 7, § 262, Recompiled Code of Alabama 1958, does not mandate that the legal argument be reported. Oral argument on the law is sometimes reported, but such service is not mandated in Lee County. XIX. Appellant claims error in the refusal of the court to give appellant's written charges 9, 11 and 13 in case no. 106, and charges 6 and 7 in case no. 114. All of these charges are abstract. None was based on the evidence. The court did not err in refusing these charges. Slaughter v. State, 47 Ala.App. 634, 259 So.2d 840, cert. den., 288 Ala. 751, 259 So.2d 845; Alabama Digest, Vol. 6A, Criminal Law, Key Note No. 814(3). XX. The next contention of error asserted by appellant relates to a statement, Exhibit 35, a waiver of rights, which appellant, after being recalled, admitted he had signed. The FBI agent Wolf testified that, before the appellant made a statement, Exhibit 35 was read over to him and he also *484 read the form and signed it. On further examination by appellant's counsel, the agent testified that he was not present when the form was read to the appellant and signed, but that Agent Schwab told him that the appellant signed the form. The colloquy resulted in the appellant being recalled to the stand, when and where he admitted that he understood and signed the waiver. It appears to us that appellant's Miranda rights were adequately protected. We wish to note that Agent Wolf (Tr. 512) testified neither he nor anyone else in his presence or hearing offered appellant any reward or made any threats toward appellant to get him to make the statement. We hold that the admission of the waiver in evidence was not error. XXI. Further contention is made that appellant's fingerprints "taken while he was being illegally held in custody" should not have been admitted in evidence. We have held, supra, that the appellant was lawfully arrested and the premise that he was in illegal custody is without merit. XXII. The appellant asserts that the trial court erred in refusing to give appellant's affirmative charge in both case no. 106 and no. 114. We cannot agree with this contention. We have determined, supra, that the arrest of the appellant in California was lawful and the evidence seized at the time met the demands of law. Appellant's companion at the time of the homicide was one Chase, who testified that he stabbed and killed Mr. Froney; that he stabbed Mrs. Froney. He exonerated appellant from any participation, accessorial or otherwise, in the two crimes and took full blame. The appellant took the stand and likewise disclaimed any responsibility or participation in the two offenses. The jury was authorized to consider all evidence and determine therefrom the guilt or innocence of the defendant, and was not bound to accept the exonerating evidence of Chase and the appellant. Chase had already pled guilty and been sentenced. We stated in the case of Ronald Keith Connell v. State, Ala.Cr.App., which is now subject to review by the Supreme Court of Alabama, as follows: "It appears to us from the evidence that this defendant, Connell, was huddled with the other two men in deep conference, which was a prelude to the knife attack on the victim; that the knife was wielded by one of these three men; that the defendant, Connell, was huddled over the victim with the other men when the victim pleaded to them to leave him alone, or words to that effect, and to take the motor vehicle and go ahead. It was at this time that the knife was being wielded and in such a manner as to cause the death of Mr. Froney. "We hold that the jury could draw a reasonable inference from the secretive conference by the three men and their huddle over the victim that the defendant was an accomplice to the homicide." The attack on Mrs. Froney occurred immediately following the fatal attack on her husband. The attacks were also closely related and interwoven, and the time of demarcation so thin between the two, we think that there was a continuing application of the original aid and encouragement existing in the first attack, namely, the attack on Mr. Froney, or that the jury could so find. The aid and encouragement overflowed and involved the appellant in the second attack, namely, on Mrs. Froney. In other words, all the evidence taken together supports the jury's verdict; that the appellant *485 and his companions determined to rob and kill both Mr. and Mrs. Froney, cover up the crimes by burning the camper, and take light from the scene of the crime. The affirmative charges in both cases were correctly refused. XXIII. Appellant's final assertion of error embraces the action of the court, after the state and appellant both had rested, in recalling the appellant to the stand. The action of the court was admissible and within the court's discretion. Orr v. State, 225 Ala. 642, 144 So. 867(1); Miller v. State, 21 Ala.App. 653, 111 So. 648(1). We wish to state in conclusion that the record in this case is in three volumes and contains 586 pages. Appellant's comprehensive brief contains 314 pages of narration and 101 pages of propositions and argument. The state filed an excellent brief. We have reviewed the entire transcript and have considered the arguments of both appellant and appellee. We have written to appellant's argument and contentions seriatim. We have concluded that the trial court exercised much patience and effort in considering all objections and contentions of appellant. We compliment the court in its efforts to reach a fair determination of all issues presented at the trial. We do not find that the court committed any prejudicial error. The judgment in each case, no. 106 and no 114, is due to be and the same is hereby Affirmed. CATES, P. J., and TYSON, HARRIS and DeCARLO, JJ., concur. ALMON, J., not sitting.

114 U.S. 663 5 S.Ct. 974 29 L.Ed. 281 THE TENNESSEE BOND CASESSTEVENS and othersv.MEMPHIS & C. R. CO. and others.1SAMEv.MEMPHIS, C. & L. R. CO. and others.1SAMEv.LOUISVILLE, N. & G. S. R. CO.1SAMEv.CHICAGO, ST. L. & N. O. R. CO. and others.1SAMEv.MISSISSIPPI & T. R. CO.1SAMEv.MOBILE & O. R. CO. and others.1 Appeals from the Circuit Court of the United States for the Western 1 District of Tennessee. STEVENS and others 2 v. LOUISVILLE, N. & G. S. R. CO.1 SAME 3 v. NASHVILLE & N. W. R. Co. and others.1 SAME 4 v. 5 NASHVILLE & D. R. Co. and others. (Two Cases.)1 SAME 6 v. MCMINNVILLE & M. R. CO. and others.1 SAME 7 v. 8 NASHVILLE, C. & ST. L. R. CO. and others. SAME 9 v. WINCHESTER & A. R. CO. and others. 1 Appeals from the 10 Circuit Court of the United States for the Middle 11 District of Tennessee. STEVENS and others 12 v. CINCINNATI, C. G. & C. R. CO. and others.1 SAME 13 v. KNOXVILLE & K. R. CO. and others.1 SAME 14 v. EAST TENNESSEE, V. & G. R. Co. (Two Cases.)1 15 Appeals from the Circuit Court of the United States for the Eastern District of Tennessee. 16 May 4, 1885. 17 These are suits brought by the holders of unpaid bonds of the state of Tennessee, issued to various railroad companies under the act of February 11, 1852, 'to establish a system of internal improvements,' to enforce the lien which was vested in the state by that act on the property of the companies respectively as security for the payment of the bonds, and the accruing interest thereon. The sections of the act on which the rights of the parties depend are 1, 2, 3, 4, 5, 6, 7, 10, 12, 13, and 14. These are as follows: 18 'Section 1. Be it enacted by the general assembly of the state of Tennessee that whenever the East Tennessee & Virginia Railroad Company shall have procured bona fide subscriptions for the capital stock in said company to an amount sufficient to grade, bridge, and prepare for the iron rails the whole extent of the main trunk line proposed to be constructed by said company, and it shall be shown by said company to the governor of the state that said subscriptions are good and solvent, and whenever said company shall have graded, bridged, and shall have ready to put down the necessary timbers for the reception of rails, and fully prepared a section of thirty miles of said road at either terminus, in a good and substantial manner, with good materials, for putting on the iron rails and equipments, and the governor shall be notified of these facts, and that said section, or any part thereof, is not subject to any lien whatever, other than those created in favor of the state by the acts of 1851-52, by the written affidavit of the chief engineers and president of said company, together with the written affidavit of a competent engineer by him appointed, at the cost of the company, to examine said section, then said governor shall issue to said company coupon bonds of the state of Tennessee, to an amount not exceeding eight thousand dollars per mile on said section, and on no other condition, which bonds shall be payable at such place in the United States as the president of the company may designate, bearing an interest of six per centum per annum, payable semi-annually, and not having more than forty nor less than thirty years to mature. 19 'Sec. 2. Be it enacted, that the bonds before specified shall not be used by said company for any other purpose than for procuring the iron rails, chairs, spikes, and equipments for said section of said road, and for putting down said iron rails, and the governor shall not issue the same unless upon the affidavit of said president, and a resolution of a majority of the board of directors, for the time being, that said bonds shall not be used for any other purpose than for procuring the said iron rails, chairs, spikes, and equipments for said section, and for putting down said iron rails; and the governor shall have power to appoint a commissioner to act, under oath, in conjunction with said president, in engotiating said bonds for e purposes aforesaid, and to act in any other matters pertaining to said company where the interest of the state, in the opinion of the governor, may require it. 20 'Sec. 3. Be it enacted, that so soon as the bonds of the state shall have been issued for the first section of the road as aforesaid, they shall constitute a lien upon said section so prepared as aforesaid, including the road-bed, right of way, grading, bridges, and masonry, upon all the stock subscribed for in said company, and upon said iron rails, chairs, spikes, and equipments when purchased and delivered; and the state of Tennessee, upon the issuance of said bonds, and by virtue of the same, shall be invested with said lien or mortgage without a deed from the company for the payment by said company of said bonds, with the interest thereon as the same becomes due. 21 'Sec. 4. Be it enacted, that when said company shall have prepared, as aforesaid, a second section, or any additional number of sections, of twenty miles each of said road, connecting with a section already completed for the iron rails, chairs, spikes, and equipments, as provided in the first section of this act, and the governor shall be notified of the facts, as before provided, he shall, in like manner, issue to said company like bonds of the state of Tennessee, to an equal amount with that before issued under the first section of this act, for each and every section of twenty miles of said road so prepared, as aforesaid, but upon the terms and conditions hereinbefore provided; and upon the issuance of the said bonds the state of Tennessee shall be invested with a like mortgage or lien, without a deed from said company, upon said stock, and upon said first and additional section or sections of said road so prepared, upon the rails and equipments put, or to be put, upon the same, for the payment of said bonds and the accruing interest thereon: provided, that if the last section of said road shall be less than twenty miles, or if the railroad proposed to be constructed by any company hereinafter specified shall be less than thirty miles in extent, bonds of the state shall be issued for such section, or such railroad, as may be less than thirty miles in extent for an amount in proportion to the distance, as provided in this act, but upon the same terms and conditions in all respects, as required in regard to the bonds to be issued for the other sections of said road. And when the whole of said road shall be completed, the state of Tennessee shall be invested with a lien, without a deed from the company, upon the entire road, including the stock, right of way, grading, bridging, masonry, iron rails, spikes, chairs, and the whole superstructure and equipments, and all the property owned by the company as incident to or necessary for its business, and all depots and depot stations, for the payment of all of said bonds issued to the company as provided in this act, and for the interest accruing on said bonds. And after the governor shall have issued bonds for the first section of the road, it shall not be lawful for the said company to give, create, or convey to any person or persons, or body corporate whatever, any lien, incumbrance, or mortgage of any kind, which shall have priority over, or come in conflict with, the lien of the state herein secured; and any such lien, incumbrance, or mortgage shall be null and void as against said lien or mortgage of the state, and the said lien crmortgage of the state shall have priority over all other claims existing or to exist against said company. 22 'Sec. 5. Be it enacted, that it shall be the duty of said company to deposit in the bank of Tennessee, at Nashville, at least fifteen days before the interest becomes due, from time to time, upon said bonds issued as aforesaid, an amount sufficient to pay such interest, including exchange and necessary commissions, or satisfactory evidence that said interest has been paid or provided for; and if said company fail to deposit said interest as aforesaid, or furnish the evi ence aforesaid, it shall be the duty of the comptroller to report that fact to the governor, and the governor shall immediately appoint some suitable person or persons, at the expense of the company, to take possession and control of said railroad, and all the assets thereof, and manage the same and receive the rents, issues, profits, and dividends thereof, whose duty it shall be to give bond and security to the state of Tennessee, in such penalty as the governor may require, for the faithful discharge of his or their duty as receiver or receivers, to receive said rents, issues, profits, and dividends, and pay over the same, under the direction of the governor, towards the liquidation of such unpaid interest. And if said company fail or refuse to deliver up said road to the person or persons so appointed by the governor, the person so appointed shall report that fact to the governor, who shall forth with issue his warrant, directed to the sheriffs of the counties through which said road shall run, commanding them to take possession of said road, fixtures, and equipments, and everything pertaining thereto, and place the said receiver in full and complete possession of the same, and said receiver so appointed shall continue in the possession of said road, fixtures, and equipments, and run the same, and manage the entire road, until a sufficient sum shall be realized, exclusive of the costs and expenses incident to said proceedings, to pay off and discharge the interest as aforesaid due on said bonds, which being done, the receiver shall surrender said road and fixtures and equipments to said company. The comptroller shall from time to time settle the accounts with the receiver, and the balance shall be deposited in the treasury of the state. The comptroller is authorized, and it is made his duty, upon his warrant to draw from the treasury any sum of money necessary to meet the interest on such bonds, as may not be provided for by the company, as provided for in this act, and the comptroller shall report thereof to the general assembly from time to time. 23 'Sec. 6. Be it enacted, that if said company shall fail or refuse to pay any of said bonds when they fall due, it shall be the duty of the governor to notify the attorney general of the district in which is situated the place of business of said company of the fact; and thereupon said attorney general shall forthwith file a bill against said company, in the name of the state of Tennessee, in the chancery or circuit court of the county in which is situated said place of business, setting forth the facts, and thereupon said court shall make all such orders and decrees in said cause as may be deemed necessary by the court to secure the payment of said bonds, with the interest thereon, and to indemnify the state of Tennessee against any loss on account of the issuance of said bonds, by ordering the said railroad to be placed in the hands of a receiver, ordering the sale of said road and all the property and assets attached thereto or belonging to said company, or in such other manner as the court may deem best for the interest of the state. 24 'Sec. 7. Be it enacted, that at the end of five years after the completion of said road, said company shall set apart one per centum per annum upon the amount of bonds issued to the company, and shall use the same in the purchase of bonds of the state of Tennessee, which bonds the company shall pay into the treasury of the state, after assigning them to the governor, and for which the governor shall give said company a receipt; and, as between the state and said company, the bonds so paid in shall be a credit on the bonds issued to the company; and bonds so paid in, and the interest accruing thereon from time to time, shall be held and used by the state as a sinking fund for the payment of the bonds issued to the company, and should said company repurchase any of the bonds issued to it under the provisions of this act, they shall be a credit as aforesaid, and canceled. And should said company ail to comply with the provisions of this section, it shall be proceeded against, as provided in the fifth section of this act.' 25 'Sec. 10. Be it enacted, that the provisions of this act shall extend to and embrace the Chattanooga, Harrison, Georgetown & Charlestown Railroad Company, the Nashville & Northwestern Railroad Company, the Louisville & Nashville Railroad Company, the Southwestern Railroad Company, the McMinnville & Manchester Railroad Company, the Memphis & Charleston Railroad Company, the Nashville & Southern Railroad Company, the Mobile & Ohio Railroad Company, the Nashville & Memphis Railroad Company, the Nashville & Cincinnati Railroad Company, the East Tennessee & Georgia Railroad Company, the Memphis, Clarksville & Louisville Railroad Company, and the Winchester & Alabama Railroad Company, so far as the main trunk roads to be constructed by said companies lie with the limits of this state, and not otherwise, and said companies shall have all the powers and privileges and be subject to all the restrictions and liabilities contained in this act. * * *' 26 'Sec. 12. Be it enacted, that the state of Tennessee expressly reserves the right to enact by the legislature thereof, hereafter, all such laws as may be deemed necessary to protect the interest of the state, and to secure the state against any loss in consequence of the issuance of bonds under the provisions of this act; but in such manner as not to impair the vested rights of the stockholders of the companies. 27 'Sec. 13. Be it enacted, that it shall be the duty of the governor, from time to time, when there shall be reliable information given to him that any railroad company shall have fraudulently obtained the issuance of bonds of the state, or shall have obtained any of said bonds contrary to the provisions of this act, he shall notify the attorney general of this state, whose duty it shall be forthwith to institute, in the name of the state, a suit in the circuit or chancery court of the county of the place of business of the company, setting forth the facts. And when the fact shall satisfactorily appear to the court that any of said bonds shall have been fraudulently obtained, or obtained contrary to the true intent, meaning, and provisions of this act, then, and in such case, the court shall order, adjudge, and decree that said road, lying in the state, with all the property and assets of said company, or a sufficiency thereof, shall be sold, and the proceeds shall be paid into the treasury, and it shall be the duty of the comptroller immediately to vest the same in stocks, creating a sinking fund, as provided for in the seventh section of this act. And said company shall forfeit all rights and privileges under the provisions of this act, and the stockholders thereof shall be individually liable for the payment of the bonds so fraudulently obtained by such company, and for all other losses that may fall upon the state in consequence of the commission of any other fraud by such company, excepting such stockholders as may show to the said court that they were ignorant of or opposed to the perpetration of such frauds by the company. 28 'Sec. 14. Be it enacted, that in the event any of the roads, fixtures, or property belonging to any of said roads shall be sold under the provisions of this act, it shall be the duty of the governor to appoint an agent for the state, who shall attend said sale and protect the interest of the state, and shall, if necessary to protect said interest, buy in said road or property in the name of the state; and in case said agent shall purchase said road for the state, the governor shall appoint a receiver, who shall take possession of said road and property, and use the same as provided for in the fifth section of this act; and said receiver shall settle with the comptroller semi-annually until the next meeting of the general assembly.' 29 On the twenty-first of February, 1852, an act was passed providing for the identification of the bonds to be issued to the several companies unde the act of February 11, the material parts of which are sections 7, 8, and 9, as follows: 30 'Sec. 7. Be it further enacted, that the different internal improvement companies to whom the bonds of the state may be lent under the different acts of the present legislature shall pay the expenses of engraving and preparing the same. 31 'Sec. 8. Be it enacted, that the governor of the state shall cause to be engraved and printed the bonds which may be issued under the acts of the present general assembly, as a loan made to internal improvement companies; and the said bonds shall bear date on the first day of January prior to their issuance, and the coupons thereto shall be payable on the first days of January and July of each year. 32 'Sec. 9. Be it enacted, that the coupons shall be signed and numbered by the comptroller, and the bonds shall be countersigned, sealed, and numbered by the secretary of state; and upon delivering said bonds to the company authorized to receive the same, the secretary of state shall take a receipt, reciting the number, date, and amount of said bonds, in a well-bound book to be deposited in his office, and the comptroller and secretary of state shall each be entitled to receive twenty-five cents for each bond so prepared, to be paid by the party receiving the said bond.' 33 By sections 5 and 6 of an act of February 21, 1856, the sinking fund provisions of the act of 1852 were changed as follows: 34 'Sec. 5. Be it further enacted, that it shall be the duty of the several railroad companies in this state, who have received, or may hereafter receive, bonds of the state, or the indorsement of their bonds by the state, to aid in the construction of their said several roads, under the provisions of the act of 1851-52, and the acts amendatory thereto, at the expiration of five years from the issuance or indorsement of their several bonds, annually to set apart and pay over to the treasurer of the state two per cent. per annum upon all bonds which have been or may hereafter be issued or indorsed as aforesaid, as a sinking fund for the ultimate redemption of the bonds issued or indorsed as aforesaid; which sinking fund, when paid over, the governor, comptroller of the treasury, and president of the Bank of Tennessee shall invest in the bonds of the state, and reinvest all accruing interest in like securities; and they are hereby constituted a board of commissioners for the management, government, and control of said sinking fund. 35 'Sec. 6. Be it further enacted, that should any of said railroad companies fail or refuse to comply with the provisions of the fifth section of this act, it shall be the duty of the governor forthwith to notify the attorney general of the district in which is situated the place of business of said company failing or refusing as aforesaid, of the fact; and thereupon the attorney general shall immediately proceed against said company to collect said sinking fund, in the manner prescribed in the sixth section of an act entitled 'An act to establish a system of internal improvements in this state,' passed February 11, 1852.' 36 By another act, passed March 20, 1860, the same provisions were further amended as follows: 37 'Section 1. Be it enacted by the general assembly of Tennessee, that the money or bonds that have heretofore or may be paid by the cities or railroad companies in this state to the sinking fund commissioners by the first of January, 1860, together with the accruing interest thereon to that date, shall be passed directly to the credit of the party having so paid the same, and be a release to said party for that amount on the debt due by them to the state of Tennessee. 38 'Sec. 2. Said bonds shall be all canceled by said commissioners, and if indorsed bonds of any railroad company shall be canceled as hereinafter provided for the cancellation of state bonds, and shall be delivered over to said company or corporation, taking the president's of said company or the officer's of said company receipt for the same, which receipt shall be filed an the copy of the same placed upon a book, which the said commissioners shall keep for that purpose. If state bonds, they shall be canceled and filed in the office of the secretary of state as hereinafter provided. 39 'Sec. 3. That after the first day of January, 1860, all railroad companies or city corporations who have or may hereafter receive the bonds of the state, or its indorsement of their own under the general internal improvement law of this state, or any other law, shall be required to pay two and one-half per cent. per annum as a sinking fund on the amount of the bonds so issued or indorsed by the state for said company or corporation, to be paid in equal installments on the first days of April and October, five years after the date of said bonds, and annually thereafter. 40 'Sec. 4. All bonds issued during any one year shall be dated on the first day of January of that year. 41 'Sec. 5. Said companies or corporations may pay said sinking fund in cash or in the like character of bonds that may have been issued or indorsed by the state for said company at their face or par value. 42 'Sec. 6. If paid in money, the commissioners shall invest it immediately in the bonds of the state, and shall have the same canceled and filed as heretofore provided. Such bonds are to be of the same character as those issued to such company or corporation. 43 'Sec. 7. The sinking fund, when paid, in all cases shall be passed directly to the credit of said company or corporation, and be a release to said company or corporation from that amount due by them to the state. The commissioners shall issue a receipt to each company or corporation for such payment, retaining a duplicate in a well-bound book kept for that purpose. 44 'Sec. 8. Each and every railroad company or city corporation shall provide the interest semi-annually, as now provided by law, on the amount of bonds unpaid at the time said interest falls due, and not on the original amount issued to or indorsed by the state for said company as heretofore provided. 45 'Sec. 9. The comptroller of the state shall keep a regular account against each company or corporation, charging them with the amount of bonds originally issued to or indorsed for said company or corporation by the state, and crediting them by the amount of sinking fund paid, and shall furnish the treasurer of state a statement of the amount due by each company or corporation on the first of June and December of each year, that he may know how much interest each company or corporation has to pay. 46 'Sec. 10. The commissioners of the sinking fund shall cancel all bonds of the state, as soon as paid in or purchased, by cutting out the governor's and secretary of state's names, and so defacing each coupon that it cannot by possibility be used or circulated, and shall file the same in the secretary of state's office. 47 'Sec. 11. This law shall be in full force from and after its passage, and shall repeal all laws in conflict with it, but shall not be so construed as otherwise to affect any law on the subject of the sinking fund or the payment of interest due on state or indorsed bonds.' 48 Under these statutes state bonds were from time to time issued to the several enumerated railroad companies in the following form: 49 '$1,000. $1,000. 50 'No. —————. UNITED STATES OF AMERICA. No. —————. 51 'Know all men by these presents: That the state of Tennessee acknowledges to owe to —————, or order, one thousand dollars of the lawful money of the United States of America, which the said state promises to pay in the city of New York, on the —————day of —————, 18——, with interest thereon, at the rate of six per cent. per annum, according to the tenor, and upon the presentation, of the coupons hereunto attached. For the payments of said sums of money, and the interest thereon, at the times and places, and in the manner aforesaid, the faith of the said state of Tennessee is irrevocably pledged, this bond being issued in pursuance and by authority of an act of the general assembly of sai state, passed February 11, 1852, to establish a system of internal improvements in said state. 52 'In testimony whereof, and in pursuance of the acts aforesaid, I, —————, governor of the state of Tennessee, have hereunto subscribed my name officially, and caused the same to be countersigned by the secretary of state, with the great seal of the state affixed. 53 '[—————.] Done at the executive department in the city of Nashville, this —————day of —————, 18——.' 54 To which was attached the following form of coupon. 55 '30. THE TREASURER OF THE STATE OF TENNESSEE 30. 56 'Will pay the bearer THIRTY DOLLARS, in the city of New York, on the first day of January, 1877, being the semi-annual interest then falling due on bond No. —————. 57 J. C. SUTTRELL, 30. 58 'Comptroller.' 59 Upon the issue of the bonds, receipts were executed by the companies, respectively, in the form required by the statute, in a well-bound book deposited in the office of the secretary of state. The bonds, after their delivery, were sold in the market by the respective companies, in conjunction with the state commissioner, and the proceeds used in the way contemplated by the statute. No complaint is now made of any default on the part of the several companies, whose roads are involved in these suits, prior to the late civil war. After the oeginning of the war, however, but few payments were made, and various expedients were resorted to, from time to time, for relieving the companies from their embarrassments. In 1866 another act was passed authorizing a further issue of state bonds, under which some of the bonds embraced in these suits were put out. In this act the provisions as to the lien for the security of the payment of the bonds was substantially the same as in the act of 1852. None of these devices, however, accomplished the purpose the state had in view, and on the twenty-fifth of February, 1869, 'An act to liquidate the state debt, contracted in aid of railroad companies in the state of Tennessee,' was passed. That act is as follows: 'Whereas, under the general internal improvement laws of the state, passed from time to time, aid has been granted to various railroad companies by the loaning of the six per cent. bonds of the state, to enable said companies to iron, equip, build, and bridge, and for other purposes, which is now secured to the state by a first mortgage or lien on the franchise, property, and fixtures of respective railroad companies; and 60 'Whereas, it is desirable for the general welfare of the state that the state shall be reimbursed such amounts as have been advanced to the different railroad companies, as fast as may be practicable; therefore, 61 'Section 1. Be it enacted by the general assembly of the state of Tennessee, that the respective railroad companies, or either of them that have created indebtedness to the state, are hereby authorized to repay any amount of the principal of such indebtedness as they have respectively created in the bonds of the state, in such amount and at such times as may be practicable: provided, however, that nothing in this act shall be so construed as to release said railroad companies from any lien which the state may have on the same for any unpaid interest now due on said bonds of the state, authorized to be surrendered by this act. 62 'Sec. 2. Be it further enacted, that any railroad company or companies repaying any indebtedness due the state under the provision of this act, are authorized to issue bonds of equal amount and denomination with the bonds of the state paid and delivered up for cancellation, as hereinafter provided, which said railroad bonds, so issued in lieu of any equal amount of state bonds, shall be certified to by the comptroller and entered in a book to be kept for that purpose, with date, number, and amount, and shall be a lien, pro rata in amount and of equal validity and effect with the unretired part of the state indebtedness, upon such railroad, and all its property, franchises, fixtures, and material. 63 'Sec. 3. Be it further enacted, that in order to facilitate the railroad companies that may wish to avail themselves of the provisions of this act, in repaying the indebtedness due to the state respectively, they, or any of them, are hereby authorized to consolidate their property, in whole or in part, with other railroad companies, and issue bonds and stock as provided for in the second section of this act, and may adopt the corporate franchise of either of the roads as the stockholders may elect, and each railroad company paying its indebtedness, and such railroad companies as may consolidate under the provisions of this act, are hereby authorized to determine, by a vote of the stockholders of said company or consolidated companies, the number of directors of such company, and elect the same under the new organization, and that the said directors, so elected, shall, according to the by-laws and rules of said corporation, elect one of their number president of said company. 64 'Sec. 4. Be it further enacted, that the the comptroller of the state shall receive from the railroad companies, or any of them, bonds of the state in such amounts as may be presented, and cancel the same in the presence of the officer or agent of the railroad company paying them in, and execute to the said railroad company or companies duplicate receipts for the amount and number of said bonds so paid in; and it shall further be the duty of the comptroller to certify on the bonds of any railroad company or companies, repaying indebtedness due to the state, that the same has been paid, and that the so certified [bonds] are secured by first mortgage: provided, that said railroad companies shall liquidate their indebtedness prior to the maturity of the bonds that have caused said indebtedness: and be it further provided, that said bonds, when executed by the respective railroad companies, or either of them, shall be deposited with the comptroller of the state, whose duty it shall be to deliver said bonds, or any number of them, to the president and directors of the company, on the deposit by said president and directors, or authorized agent, of an equal amount of the six per cent. bonds of the state of Tennessee, with unpaid coupons attached, and the company's first mortgage bonds, authorized to be issued by this act, shall have no validity or value except the comptroller's certificate is affixed on the face of each bond that said bond is executed, and issued, and by virtue of law takes the place of a bond of the state, and is the first mortgage bond. 65 'Sec. 5. Be it further enacted, that the comptroller shall be entitled to a fee of one dollar on each thousand dollars of the bonds certified as aforesaid, to be paid by the railroad company for which the same is done; and it shall be lawful for the comptroller to discharge the duties imposed by this act, by and through an agent in the city of New York; and all the provisions of this act shall attach to and become a part of the charter of any railroad company or companies acting under it. 66 'Sec. 6. Be it further enacted, that by and with the consent of the board of directors of any railroad company in this state under the general improvement law passed the eleventh of February, 1852, and all the amendments thereto, that any person or corporation may, by paying the indebtedness of such railroad company to the state in the bonds of the state, as provided for by law, be, and they are hereby, substituted and entitled to all the liens against said company for the payment of said debt that the state had or has by law, and the governor and secretary of state shall give such party or parties paying such indebtedness a certificate showing the facts, which shall be evidence against said company of such indebtedness to said individuals or corporations. 67 'Sec. 7. Be it further enacted, that any person or persons may, with the consent and approbation of any railroad company, which is indebted to, and for which the state of Tennessee holds a lien, pay the said debt, so far as the state is concerned, in the bonds of the state, or any coupons of bonds at par, and the person or persons so paying the debt of any railroad company with the consent of such railroad company, shall, upon filing with the treasurer of this state the written assent of said railroad company, under the corporate seal of said railroad company, be entitled to have and hold all the lien or liens which the state of Tennessee had or has upon said railroad or its property, and shall have the same right to enforce the same which the state of Tennessee had; the object and intent being to place the person or persons so paying with the consent of said railroad company in the same position and with the same rights which the state of Tennessee had previous to and before the said payment, and with full power to enforce the same. 68 'Sec. 8. Be it further enacted, that any person or persons who may, with the consent and approbation of any railroad company, pay any part or portion of the indebtedness of such company, as provided in sec. ___, shall have, hold, and subrogated in all the rights, privileges, and lien or liens of the state, to the extent of, and in proportion to, the amount of such indebtedness, with the same rights and privileges the state now has, to the extent of such payment or payments: provided, the passage of this act shall not decrease the lien of the state upon any railroad of the state until the entire claim of the state is fully liquidated; or affect the interest of the present bondholders of the state: provided, that railroad companies which have issued second mortgage bonds, availing themselves of the provisions of this act, shall file with the comptroller bonds of the same series as those loaned to such company, for which the state holds a first mortgage lien: provided, the bonds to be issued by the company, under the provisions of this act, shall not have a longer time to run than the bonds of the state thus released and canceled. 69 'Sec. 9. Be it further enacted, that this act shall take effect from and after its passage.' 70 At the next session of the general assembly, January 20, 1870, this act was amended as follows: 71 'AN ACT FOR THE PAYMENT OF THE STATE DEBT. 72 'Section 1. Be it enacted by the general assembly of the state of Tennessee, that an act entitled 'An act to liquidate the state debt, contracted in aid of railroad companies in the state of Tennessee,' passed February 25, 1869, be, and the same is hereby, amended so as to allow any railroad company which may be indebted to the state by reason of the bonds of the state loaned to said railroad company, to pay into the state, in liquidation of the principal of said indebtedness, any of the legally issued six per cent. bonds of the state of Tennessee outstanding, without regard to series or number; and such payment shall, to the extent made, be a full and perfect discharge of the lien which the state holds upon the property of such railroad company, held by virtue of the bonds of the state issued to such railroad company, whether they be the same bonds or the same series of bonds issued to said company under the act passed February 11, 1852, and acts amendatory thereof, or not. 73 'Sec. 2. Be it further enacted, that railroad companies issuing their own mortgage bonds, under the provisions of the act which this is intended to amend, be allowed to fix the rate of interest which the said bonds of the railroad company are to bear, and all laws in conflict are hereby repealed: provided, that when said railroad companies owe interest already due, coupons past due shall be taken by the comptroller or treasurer in discharge of such indebtedness for interest. 74 'Sec. 3. Be it further enacted, that when any company, under the provisions of this act, shall pay into the treasury of the state bonds which have been issued by the state to said company, the said bonds shall be canceled; but should any company, in discharge of its own debts, pay into the treasury any bonds that were issued to other companies that may still be in ebted to the state, such bonds so paid in shall not be canceled, but shall be held by the state as purchased bonds, retaining a lien for the state upon the road to which said bonds were originally issued until the debt of said road to the state shall be fully discharged when the bonds so held shall be canceled: provided, that the provisions of this act shall not be so construed as to allow the payment and satisfaction of debts created by bonds issued by the state, and upon which the state is secondarily liable, nor to the payment of the sinking fund, now required by law, of the railroad companies of this state. 75 'Sec. 4. Be it further enacted, that this act shall take effect from and after its passage.' 76 Under these statutes the companies whose roads are involved in the present suits against the Memphis & Charleston Railroad Company, the Louisville, Nashville & Great Southern Railroad Company, the Nashville & Decatur Railroad Company, the Nashville, Chattanooga & St. Louis Railroad Company, the East Tennessee, Virginia & Georgia Railroad Company, the Chicago, St. Louis & New Orleans Railroad Company, the Memphis & Tennessee Railroad Company, and the Mobile & Ohio Railroad Company, by the use of substitution bonds or otherwise, obtained from the state a discharge of the liens upon their property under the act of February 11, 1852, and the acts amendatory thereof, so far as the state had the right to execute such a discharge. In doing so, however, they used, to some extent, other state bonds than those which were issued to them originally under the provisions of the act. The bonds so issued and not returned to the state constitute the causes of action on which these suits are brought against the companies above named. 77 To provide for cases where the companies failed to meet their obligations to the state under the act of 1852, and did not comply with the provisions of the acts of 1869 and 1870, an act of December 21, 1870, was passed, in which, after reciting as follows: 'Whereas, in the recent attempt to sell the state's interest in said roads, various legal questions arose, presenting serious obstacles to a sale under the act of 1870, which it is deemed expedient and necessary to obviate before the interest of the state in said roads shall be again offered for sale; and whereas, by the act of 1852, c. 151, § 12, the right is expressly reserved to the state to enact all such laws in the future as should be deemed necessary to protect the interest of the state, and to secure the state against any loss in consequence of the issuance of bonds under the provisions of said act, in such manner as not to impair the vested rights of stockholders of the companies,'—provision was made for a summary proceeding to foreclose the lien vested in the state, under the act of 1852, and the several amendatory acts, by filing a bill in equity, in the court of chancery at Nashville, against the delinquent companies, to obtain a decree for the sale of the interest of the state in their property. In this act it was provided that the purchase money might 'be discharged in any of the outstanding legal bonds of the state;' and that, upon the sale of any of the franchises of either of the companies, 'all rights, privileges, and immunities appertaining to the franchises so sold under its act of incorporation and the amendments thereto, and the general improvement law of the state and acts amendatory thereof, shall be transferred to and vest in such purchaser; and the purchaser shall hold said franchise subject to all liens and liabilities in favor of the state, as now provided by law, against the railroad companies.' 78 Under the provisions of this act the liens on the roads involved in the suits against the Memphis, Clarksville & Louisville Railroad Company, the Nashville & Northwestern Railroad Company, the McMinnville & Manchester Railroad Company, the Winchester & Alabama Railroad Company, the Cincinnati, Cumberland Gap & Charleston Railroad Company, and the Knoxville & Kentucky Railroad Company w re all foreclosed, and the property sold under decrees which reserved the lien of the state referred to in the statute, 'as far as may be necessary to secure the purchase money as aforesaid, and the other rights of the state under the decree in this cause and the said acts of the legislature.' Payments of the purchase money were made in bonds of the state of Tennessee without distinction. Bonds of the state, issued to the companies that constructed the foreclosed roads, not taken up at these sales or otherwise by the state, are the causes of action embraced in the suits against the last-named companies, and the defendants in those suits now claim the property under the purchases at the foreclosure sales, free of all liens in favor of the state or its bondholders. 79 The circuit courts dismissed the bills in all the suits, and these appeals were taken from the several decrees to that effect, 80 Argued by George Hoadly and Wager Swayne; and submitted by E. L. Andrews, J. C. F. Gayner, E. M. Johnson, and Edward Colston, for appellants. 81 Argued by C. F. Southmayd, Ed. Baxter, Wm. M. Ramsey, E. H. East, P. Hamilton, and John A. Campbell; and submitted by Wm. M. Baxter, L. W. Humes, D. H. Poston, W. K. Poston, J. B. Heiskell, Geo. Brown, and James Fentress, for appellees. 82 WAITE, C. J. 83 The question which lies at the foundation of all these suits is whether the statutory lien with which the state of Tennessee was invested, upon the issue of its bonds to railroad companies under the internal improvement act of February 11, 1852, and the several acts amendatory thereof, bound the property of the company to which the issue was made for the payment of the bonds so issued, and the interest thereon, to the several holders thereof, or only to the state; for, if to the state alone, it is conceded the lien has been discharged, and is no longer operative. The precise point of the inquiry is for whose benefit the lien was created. Was it the state, or the bondholders, or both the state and the bondholders? The lien which was vested in the state was as security for the payment by the company of 'all of said bonds issued to the company, as provided in this act, and for the interest accruing on said bonds.' This is the language of the provision for the final lien which was to attach, on the completion of the whole road, to 'all the property owned by the company, as incident to, or necessary for, its business.' Section 4. To whom this payment was to be made is nowhere stated in express terms. In the absence of anything to the contrary, the implication would undoubtedly be that it must be to the holder of the bond, as he was the person to whom the bond, as a bond, was payable; but if, on an examination of the whole statute, in the light of surrounding circumstances, and interpreting it with reference to the subject-matter of the legislation, it appears that the intention was to secure only a payment to the state of the debt incurred by the company on the loan of the bonds, there is nothing in the language employed to express the legislative will, which necessarily extends the operation of the statute beyond what is raquired to give effect to such an intention. It may be that the legislature used the phrase 'payment of the bonds and the accruing interest thereon' to express the idea of 'payment to the state for the bonds,' and, if it did, the statutory lien will stand only as security for such a payment. 84 The liability of the companies to the bondholders, if any there be, rests alone on the statute, which contemplated loans by the state of its own bonds to the several companies in aid of the public works they were respectively engaged in constructing. The bonds were to be 'coupon bonds of the state of Tennessee.' This implies state bonds with coupons for interest attached, in the ordinary form then in use, whereby the faith of a state of the United States was pledged for their payment. Such must have been the understanding of all parties at the time, for the bonds actually issued were of that kind, and on their face bound only the state. The law made no provision for naming, either in or upon a bond, the particular company in whose favor it was issued. Neither did the bonds themselves, as issued, contain, by indorsement or otherwise, any obligation whatever on the part of the companies. They were state bonds, pure and simple, 'issued in pursuance and by authority of an act of the general as embly of said state, passed February 11, 1852.' They were not even made payable to the companies to which they were respectively issued, but went on the market as coupon bonds of the state of Tennessee, payable to the bearer thereof, and apparently nothing else. In this form they were bought and sold by dealers and investors in public securities. So that the point to be determined, from an examination of the statute, is whether a state, when lending its own bonds and taking back security for their payment, intended to protect those who might afterwards become the holders of the bonds against the consequences of its own repudiation or inability to pay, or only to indemnify itself against loss by reason of the loan of its credit to those who were engaged in constructing its great works of internal improvement. To say the least, the strong presumption is that, in such a transaction, the purpose of a state would be to protect itself, and not to secure its own pledge of faith to the bondholders by a mortgage from those to whom its credit was loaned. 85 Such being the subject-matter of the legislation, we proceed to inquire what the payment was which the state intended to secure by the statutory lien with which it was to be invested. It was to be a payment. This implies a debt from him who pays to him who is to receive, and that when the payment is complete the debt will be discharged. It is not claimed that a borrowing company was to incur two debts by accepting a loan under the statute,—one to the state, and the other to those who might become the purchasers or holders of the borrowed bonds. The obligation was to pay the bonds once, not twice, and the payment was to be made at the time and in the way provided by the law. Who, then, became the creditor of the borrowing company when it incurred its debt for the borrowed bonds? Was it the state or the bondholders? 86 Much stress was laid in the agrument on the provision in section 3, 'that so soon as the bonds of the state shall be issued * * * they shall constitute a lien,' etc.; and it was insisted that, as the bond constitutes the lien, and the lien is but an incident of the debt, the lien must continue and follow the bond in the hands of the holder thereof until it is finally paid and taken up by the company. From this it was argued that the bondholder must be the creditor, within the meaning of the statute, and that a payment would not be complete so as to discharge the debt of the company until it was made to him. Similar language was used in a statute of South Carolina, passed December 20, 1856, to aid in the construction of the Charleston & Savannah Railroad, under which the state guarantied, by indorsement, the bonds of the railroad company, and it was provided 'that so soon as any such bonds shall have been indorsed as aforesaid * * * they shall constitute a lien,' etc. This, it was held by the supreme court of that state in Hand v. Savannah & C. R. Co. 12 S. C. 314, vested in the state a lien, not merely for its own protection against the guaranty, but also for the better security of the bonds themselves, into whosesoever hands they might fall. But, as this court had occasion to say in Railroad Cos. v. Schutte, 103 U. S. 140, 'contracts created by, or entered into under, the authority of statutes, are to be interpreted according to the language used in each particular case to express the obligation assumed. * * * Every statute, like every contract, must be read by itself, and it no more follows that one statutory contract is like another, than that one ordinary contract means what another does. * * * It must be determined from the language, used in each particular case, what has been done, or agreed to be done, in that case.' Under the South Carolina statute the primary liability for the payment of the bonds to the respective holders thereof rested on the company, and the state was bound only as surety. This was shown on the face of the bonds themselves, and the language of the statute was, therefore, to be c nstrued with that as the subject-matter of the legislation; that is to say, a guaranty by the state of the obligations of the railroad company. Here the state is the primary obligor, and the legislation is with reference to a loan of state bonds, on which the railroad companies are in no way to appear as bound. The liability of the companies grows out of the borrowing of state bonds, to be sold in the market as state bonds, and apparently nothing but state bonds. The loans were to be by the state to the companies, and the object was to secure the payment of the loans. It may well be that the same language when applied to one class of securities means one thing, and when applied to another class something else. The question now is, what does it mean in this case? 87 The fact which establishes the lien is the issue of bonds by the state to a company; that is to say, the delivery of bonds by the state to a company under the contract of loan. The lien attaches as soon as the delivery is complete, and when there is no obligation on the part of the company to the holders for the payment of the bonds, because the company is itself the holder, and there can be no obligation of payment by itself to itself. But the delivery of the bonds by the state to, and their acceptance by, a company, created at once an obligation on the part of the company to pay the loan, or, what is the same thing, pay the bonds to the state. That it was the purpose of the statute to secure the performance of this obligation on the part of the company is shown by the fact that from the moment of the delivery of the first bond to the company, and before the bond could be negotiated by a sale or transfer to a third person, a lien was vested in the state by the very act of delivery upon all the property of the company then acquired, or thereafter to be acquired, superior to any other lien or incumbrance which could be created by the company afterwards. This is the express provision of the last paragraph in section 4; and while it is said once in the entire act that the bonds shall constitute the lien, it is repeated again and again that, upon the issue of the bonds, the state shall be invested with a lien, etc. The only place where it is stated that the bonds shall constitute a lien is that in which provision is made for the issue on the completion of the first section of 30 miles, and, before the sentence in which this expression appears is completed, it is declared that the lien is to vest 'upon the issuance of the bonds and by virtue of the same.' But when the whole road is completed, and the lien is established on all the property owned by the company as incident to and necessary for its business, the language is: 'And when the whole of said road shall be completed, the state of Tennessee shall be invested with a lien * * * for the payment of all of said bonds issued to the company as provided in this act, and for the interest accruing on said bonds.' This shows unmistakably that the state attached no special importance to the particular phraseology of section 3, with reference to the issue for the first 30 miles of the road. The evident purpose of the whole provision was to vest in the state a lien to secure the obligation which the company assumed in consideration of the state bonds issued to it in aid of works of internal improvement to be constructed for the benefit of the public. If that obligation was to pay the bonds to the several persons who might become the holders thereof, then the security would run with the bond; but if the obligation was to pay the state for the bonds, the security would inure only to the benefit of the state, and be subject to the control of the state, without regard to the bondholders. 88 The lien was to be 'for the payment of all of said bonds issued to the company, as provided for in this act, and for the interest accruing on said bonds.' It was, as has been seen, to begin as soon as the bonds were put into the hands of the company, for it was then and by that act that the liability f the company under the statute was created. At that time no one but the state could be interested in the security, and at that time clearly the lien operated only as security for the payment of the loan of the bonds. This could be made by a return of the bonds themselves, or in any other way provided in the statute. A return of the bonds to the state would not technically pay the bonds, but it would pay the loan, and thus cancel the obligation of the company to the state and discharge the lien. This brings us to the inquiry whether provision was made in the statute for payment by the company in some other way than by taking up the bonds from the several holders thereof, and if so, to whom and how. 89 The obligation under the statute is to pay the bonds and the interest accruing thereon. This clearly means payment of the bonds and the interest in the way provided by the statute, if there be any. As the liability of the company to pay at all grows out of the statute, it follows that if a particular mode of payment is provided for in the statute, payment in that mode is all the company can be required to make. Looking then to the statute, we find that provision is made in one part for the payment of interest and the enforcement of that obligation of the company, and in other parts for the payment of principal. 90 1. As to interest. Section 5 makes it the duty of a company to deposit in the Bank of Tennessee, at least 15 days before coupons for interest on any of the bonds issued to that company fall due, an amount of money sufficient to pay such interest, including exchange and necessary commissions, or satisfactory evidence that it has been paid or provided for. The Bank of Tennessee was established by the act of January 19, 1838, 'in the name and for the benefit of the state,' and 'the faith and credit of the state' were 'pledged' for its support. The state was its only stockholder, and was entitled to all the profits of its business. It was the fiscal agent of the state, and was practically the treasury in which all public moneys were kept. The state treasurer held none of the state funds in his own hands, but deposited them all in the bank, where they were placed to the credit of the 'Treasurer of Tennessee,' and subject to his checks, drawn according to law, and countersigned by the comptroller. Other accounts connected with the financial business of the state were kept in the books of the bank, headed 'Interest on State Bonds,' 'Interest paid on State Bonds,' 'Railroad Companies for Interest,' and otherwise. The entries made in the books showed the amount which each railroad company paid in for interest, but the payments were all passed to the credit of the state, either in the treasurer's general account, or in the account headed 'Interest on State Bonds.' The bank paid the interest on all state bonds without reference to the purpose for which they were issued. It had correspondents in New York and Philadelphia through whom such payments were made, and these agents took up the coupons when presented and forwarded them to the bank, by which they were handed over to the proper state officers. The moneys paid in by railroad companies for interest were sent with other moneys of the state to the New York and Philadelphia agents, by whom they were paid out upon coupons, no distinction being made as to the different kinds of bonds. The agents kept no accounts with the companies, and neither they nor the bank knew what bonds had been issued to any particular company. No attempts were made, either by the bank or its agents, to classify or identify coupons, when paid, as being coupons from bonds issued to one company or another. 91 In the books of the treasurer of state there was an account headed 'Bank of Tennessee,' the reverse of that kept by the bank in the name of the treasurer. There was also an account headed 'Interest on Capitol Bonds,' in which was shown the interest paid on bonds issued for the state house. Besides this there was an account headed 'Interest on Internal Improvem nt Bonds,' showing the gross amount paid out on such bonds, but not by whom the money was furnished, nor the numbers or character of the bonds on which the interest was paid. No separate accounts were kept in the treasurer's books with the different railroad companies, and, with the exception of the distinction between capitol and internal improvement bonds on his books, the treasurer paid no attention to the different kinds of bonds, but treated all as equally the obligations of the state. This was the way in which the business was done by all the companies, the bank, and the treasurer of the state, as long as the bank was in operation. 92 Under these circumstances it is difficult to see how a deposit in the bank by a company of the money to pay interest can be treated otherwise than as, within the meaning of the statute, the payment by the company of the accruing interest on the bonds, which the company had bound itself to make. The deposit was made to enable the state to meet its own obligations. It was not placed, neither by the statute was it required to be placed, to the credit of the company, but of the state. The bank did not take the money for the company, but for the state, and consequently the deposit was accepted and kept as and for state funds. Neither the bank nor the state was bound, either to the companies or to the bondholders, to use the deposits made by a particular company to pay the interest on bonds issued to that company. The bank is nowhere made by the law the agent of the company. It was to take, keep, and pay out according to law, for the state, all moneys deposited or set apart for the liquidation of accruing interest. If the deposits made by the various companies were not enough for that purpose, it was the duty of the comptroller to draw from the treasury, on his own official warrant, a sufficient amount to make up the deficiency. No special provision was made in the statute as to the way in which coupon-holders were to be paid. That was all left to be determined by such regulations as might from time to time be adopted for the government of state officers and state agencies in the payment of state debts. The money when deposited became at once the money of the state, and was in no way thereafter subject to the control of the depositor. When used to pay maturing interest, it was paid by, and on behalf of, the state, through its own agencies, to redeem its own pledges of faith to the holders of its own obligations. The company performed its whole duty to the state when it deposited in bank, subject to the control of the state, a sufficient amount of money to meet the interest which was to accrue on the state obligations 15 days thereafter, and the expenses incident to such payment. It is true, an option was given the company to pay the interest instead of making the deposit; but this was clearly intended for the convenience of the company, and not because of any obligation the company was supposed to be under to the bondholders. Payment, therefore, by a company, into the bank, of a sufficient amount of money to enable the state to meet its accruing interest, was, and was intended by the legislature to be, not only a payment of the interest on the bonds by the company, but the payment, and the only payment, of interest the lien created by the statute was to secure. To hold other wise would be to decide that the legislature, while providing for a loan of the bonds of the state to corporations engaged in works of internal improvement, required the corporations to secure by liens on their own property, not only the payment to the state of the interest on the loan, but also the redemption by the state of its own pledges of faith to the future holders of the state bonds that were lent. Certainly no such construction will be given to the statute unless it is imperatively demanded; and when provision is made in express terms for a payment to the state, no second payment of the same debt will be presumed to have been in the contemplation of the parties in the absence of some positive requirement to the contrary. The lien must be held to be for the security of the payment which is expressly provided for, and no other. 93 But the correctness of this view of the statute is made still more apparent by another important provision of the same section 5, to the effect that if a company failed to deposit the interest at the time required, or furnish the necessary evidence that payment of the interest had been made or otherwise provided for, the governor should appoint a receiver to take possession, and run and manage the railroad of the company until a sufficient sum was realized from the earnings to discharge such 'unpaid interest.' The failure of a company to make its deposit did not relieve the state from the obligation to keep its faith and pay the interest to its bondholders at maturity. Consequently, the 'unpaid interest' here referred to must have been the interest for which a deposit had not been made, and this clearly implies that the deposit was § the payment which the lien was intended to secure. Interest on the lent bonds deposited for was paid, within the meaning of the statute, an that not deposited for was unpaid. A receiver was to be appointed, and possession taken, only when there was default on the part of the company in making its deposit. Non-payment of interest by the state, after the deposit, created no such default. As the statutory remedy for the enforcement of the statutory lien must be presumed to have been intended to be commensurate with the lien itself, and this remedy was confined to cases of default in making deposits, there cannot be a doubt that it was the understanding of the legislature that a deposit for interest was a payment of interest on the bonds, so far as the company was concerned, and released the company as well as its property from all further liability to the state, or to any one else, which had been assumed for interest. The pledge of state faith for the performance of all state obligations under the act constituted the only security of the bondholders for the prompt payment of the interest due to them. The liens on the property of the companies stood only as security for the payment of the interest on the bonds to the state. 94 2. As to the principal. This is provided for in three ways: (1) By the establishment of a sinking fund; (2) by foreclosure if the company failed to pay the bonds at maturity; and (3) by foreclosure and proceedings against guilty stockholders, before maturity, if an issue of bonds was obtained by fraud, or contrary to the provision of the act. The sinking fund was first established by section 7 of the original act, which required each company, at the end of five years after the completion of its road, to set apart annually 1 per centum of the amount of bonds issued to such company, and use it in the purchase of bonds of the state of Tennessee, which bonds the company was to pay into the treasury of the state, taking a receipt therefor, and, as between the state and the company, the bonds so paid in were to be a credit on the bonds issued. The bonds paid in, and the accruing interest thereon, were to be held and used by the state as a sinking fund for the payment of the bonds issued to the company. If in this way a company repurchased and paid in any of the bonds issued to it, they were to be canceled. Should a company fail to comply with these provisions, it was to be proceeded against, as in section 5, for a failure to pay, or deposit for, interest. This provision was changed by the act of 1856 so as to increase the annual payments to 2 per cent. on the amount of the issue of bonds, and to require them to be made in money, and to begin at the end of five years after the dates of the several issues. The money, when paid into the treasury, was to be invested by a board of sinking-fund commissioners in bonds of the state, and all accruing interest was to be reinvested in like securities. If a company failed to comply with these provisions of the amending ac , it was to be proceeded against as for a default in the payment of the bonds at maturity under section 6 of the act of 1852. Under the statutes of 1852 and 1856 the companies were not released from their obligations to provide semi-annually for the payment of the accruing interest on the entire issue of bonds. That was still to be kept up, notwithstanding the debt of the company to the state had been reduced by the annual payments required by section 7. 95 By the act of 1860 other changes were made, which increased the amount of annual payments to 2 1/2 per cent. on the original issues, and allowed them to be made in money, or in bonds of a like character with those issued to the company, at their face value. If paid in money, the sinking-fund commissioners were to invest it immediately in bonds of a like character with those issued to the company, and have them canceled. By this act also the company was released from the obligation under the act of 1852 to provide for the interest on the whole issue of bonds, and required to deposit only for that which would accrue on the amount of bonds 'unpaid' at the time the interest fell due. What was here* meant by the word 'unpaid' is shown by sections 1, 2, and 9 of the act, which provide that all sinking-fund payments, in money or bonds, made before January 1, 1860, with the accruing interest thereon to that date, 'shall be passed directly to the credit of the party having so paid the same, and be a release to said party for that amount of the debt due by them to the state of Tennessee.' The comptroller of the state was also required to open and keep a regular account with each company, charging it with the total amount of bonds originally issued to such company, and crediting it with the amount of the sinking fund paid. It was also made his duty to furnish to the treasurer of state a statement of the amount due by each company on the first days of June and December in every year, 'that he may know how much interest each company has to pay,' that is, deposit, 'as now provided by law, on the amount of bonds unpaid at the time said interest falls due, and not on the original amount issued to * * * said company.' Act 1860, §§ 8, 9. 96 While it is true that neither the act of 1856 nor that of 1860 can change any contracts the companies may have made with bondholders under the act of 1852 before their passage, they may be resorted to in aid of construction to show what had been the legislative understanding, for a long series of years, of the meaning of the words 'payment of said bonds and the accruing interest thereon,' as used in the original act. The provision of section 7 is that the company shall pay the bonds purchased into the state treasury, and that for the purchased bonds so paid in a receipt shall be given and a credit allowed, as between the state and the company, on the bonds issued. Thus the company was required to make a payment to the state, and for this payment the state was to give a credit on the bonds. This clearly implies that the loan of the bonds was to create a debt on the bonds by the company to the state, and that this debt was to be discharged pro tanto on the payment annually into the state treasury of the amount required by the sinking-fund section. If there were nothing else in the statute, no one would doubt that the payment of the bonds which the company was required to make was a payment to the state for the bonds at the times and in the manner provided. 97 It is contended, however, that, as the credit to be secured by these payments was only 'as between the state and said company,' the liability of the company to the bondholders is not affected by what may be done by and with the state. This would be true if there were any such liability to the bondholders, but the very point to which our inquiries are now directed, is as to whether or not that liability exists. The phrase relied on and quoted above is undoubtedly suggestive of some other liability of the company on the bonds than one to the state, but it does not of itself create such a liability. If it exists at all, it must be by virtue of some other provision of the statute. As has already been seen, there is but one debt, and whatever pays that debt cancels all the obligations of the company upon the bonds. Whenever, therefore, it appears that payment of the bonds must be made to one, the idea of a debt on the bonds to another is excluded. Here a payment to the state is absolutely required. This obligation to pay is express, and has not been left to implication. The provision is that the sinking-fund bonds must be bought and paid in at the appointed times, and to the prescribed amount. If this is not done, the payment is to be enforced by putting the railroad of the company into the hands of a receiver, and running and managing it until the requisite amount of money is realized by the state from the earnings. Under the act of 1856 the payments were required to be made in money, and, in case of default, proceedings for foreclosure and sale were to be instituted to collect the amount to be paid, as in cases of non-payment of bonds at maturity. If the statutes of 1852 and 1856 stood alone, it would be clear to our minds that payments into the sinking fund were to be treated as a release pro tanto of all the liability of the company on, or an account of, the bonds. But the act of 1860 shows, beyond all question, that such was the legislative understanding at that time of the operation of this provision of the original act. It is there declared in positive language that by the loan of the bonds a debt was incurred by the company to the state, and that payments to the sinking fund should release and discharge the companies pro tanto from their liability on that debt. 98 It is argued, however, that as these payments under all the statutes were to be held and used by the state as a sinking fund for the ultimate redemption of the issued bonds themselves, from the several holders thereof, the obligation of the company to pay the bonds would not be discharged in that way; and some remarks of this court in Sinking Fund Cases, 99 U. S. 725, are cited as authority to that effect. The decision in that case was that the contributions to the sinking fund, then under consideration, did not pay the debts of the several companies by which the contributions were made, because that fund was established, not to secure the payment of the bonds of the United States which had been lent to the companies, but the repayment to the United States, in the manner and at the time required by law, of 'the amount of said bonds so issued and delivered to said company, together with the interest thereon which shall have been paid by the United States.' But here the sinking fund is to be held and used by the state, not to discharge the debt of the company to the state, but that of the state to its bondholders. It was established, not to secure the state, but to enable the state to pay its own debts at maturity. In this way all payments made by the companies to the state on account of the principal of the bonds were set apart and laid by under investment, so that at the appointed time they might be used by the state to redeem its own obligations. The fund in the treasury belonged to the state, and was not in any manner subject to the control of the company, or to be used to pay its debt. That debt was discharged by the payments which, under the law, were put into the fund. All payments out of the sinking fund were to be made by the state on its own debts, and not on the debt of the company. A sinking fund may be, and generally is, intended as a cumulative security for the payment of the debt with which it is connected. In this case the debt to which it belongs is that of the state, and not that of the company, which was paid so as to furnish the state with the means to create such a fund. 99 Reference was made in the argument to the way in which, under the act of 1852, and perhaps that of 1856, the sinking fund was to be kept and invested, a d it was urged that the fund must have been intended as security for the payment of the bonds to the bondholders by the company, because if a bond issued to a particular company was bought by that company and paid into the fund, it was canceled, while all other bonds were kept alive to be held and used by the state to take up at maturity the bonds issued to the company, which had not been so paid in. The argument seems to be, that, as the purchase of a bond issued to a particular company, and its payment into the fund by that company, would of itself be a payment of that bond by the company, both to the state and the holder, the special provision for the cancellation of such a bond, while others are to be kept alive, is indicative of a purpose not to cancel the obligation of the company under the statute until the company had not only provided the state with the means to take up all the other outstanding bonds, but until the state had itself performed its own obligations and actually taken them up. This is undoubtedly a circumstance to be considered in determining what the payment was which the state intended the company should make, and for the security of which the lien was created; but it is not to our minds enough to overcome the many provisions found in the other parts of the statute, which so clearly show that there was to be but one creditor of the company on account of the contemplated loans of the bonds, and that creditor the state. Whatever, therefore, satisfies that creditor, under the law, satisfies the debt. We cannot accede to the proposition, so much relied on by the counsel for the bondholders, that on putting out the bonds the company occupied towards the bondholder the relation of principal debtor, and the state that of surety only, until the company made the prescribed payments to the state, and that after these payments were made the relations of the parties changed, so that thereafter the state was principal and the company a surety only. The debt of the company, whatever it was, continued the same in its relation to all the parties from the time it was created until it was paid. There is nothing in the statute which contemplates any change in the obligations of the parties to wards each other. There may have been no good reason for keeping some of the state securities paid into the fund alive, and directing that others should be canceled, inasmuch as all were to represent state debts, for which the state was equally bound; but that was the will of the legislature, and it was consequently so enacted. Afterwards this policy was changed, and all state bonds, of whatever character, were canceled by mutilation as soon as they were paid in, or bought for the sinking fund. Act 1860. In this way all danger of a misappropriation of securities in the sinking fund was avoided. As bonds issued to railroad companies under the act could alone be used for the investment of the fund under this act, their cancellation did not affect the liability of the several companies thereon to the state, because that was to continue until payment was made to the state by the company to which it was issued. Payment by the state to the bondholder did not discharge the liability of the company on the bond so paid. 100 The provision for a foreclosure in case of the failure of the company to pay at maturity the bonds issued to it is found in section 6, which makes it the duty of the governor, when such a default occurs, to notify the attorney general, who must thereupon file a bill against the company in the name of the state of Tennessee in the chancery or circuit court of the proper county. Upon the filing of this bill, the court is authorized to make such judicial orders, including the appointment of a receiver, and a sale of the road and all the property of the company, as may be necessary and proper to secure the payment of the bonds, with the interest thereon, and to indemnify the state against loss by their issue. We see no special significance, so far as the present question is concerned, in the dir ction to the attorney general to file the bill in the name of the state. Without such a direction there might be doubt whether the suit to be instituted should be in the name of the attorney general or of the state. It was probably unimportant whether the one form or the other was adopted, for, in any event, the object would be to enforce the obligation of the company and collect the money which was due. The legislature, however, saw fit to avoid all doubt on this subject, and to direct that the proceeding should be in the name of the state. Taken by itself, therefore, this section adds little, if anything, to the other evidence in the statute, as to who the creditor was for whose benefit the money was to be collected. The proceeds of the foreclosure were to be used to pay ththe bonds, within the meaning of the statute, and also to indemnify the state against loss. To whom the payment was to be made must be determined by lookin elsewhere. There is nothing to show that the author of the statute had the security of the bondholder in his mind when draughting this section, any more than when draughting the others. Payment of the bonds meant in this section what it did in the others; no more, no less. It is true that here payment of the bonds and indemnity to the state are both spoken of, but payment of the bonds through a proceeding for foreclosure might not be enough to indemnify the state against all loss incident to the loan of the bonds. There might be expenses incurred in the foreclosure which would not be reimbursed by a simple payment of the amount of the bonds. Indemnity of this and a like character was evidently the purpose of this particular provision in the section. It was, in the language of counsel for the bondholders, to secure the state against 'a money loss * * * in the way of counsel charges, or receiver's charges, or betterment expenses, or debts not included in the words 'to secure the payment of said bonds." 101 Proceedings for foreclosure before the maturity of the bonds, and the liability of guilty stockholders in case of issues of bonds obtained by fraud, or contrary to the provisions of the act, are provided for in section 13. This section makes it the duty of the governor, as soon as he receives reliable information of such fraud or irregularity, to notify the attorney general, who must at once institute a suit in the circuit or chancery court of the proper county. In such a suit the court is given authority to order a sale of the road, and the property and assets of the company, or so much thereof as may be necessary. When such a sale is made, the proceeds are to be paid into the treasury and invested by the comptroller in 'the same stocks, creating a sinking fund, as provided for in the seventh section.' The guilty company is also made to forfeit all its rights and privileges under the act, and its guilty stockholders are made individually liable 'for the payment of the bonds so fraudulently obtained by such company, and for all other losses that may fall upon the state in consequence of the commission of any other fraud by such company.' Thisisis is manifestly for the benefit of the state alone. T bondholder can have no special interest in such a proceeding. His rights are in no way affected by the fraud of the company in obtaining the bond he owns. The state is his debtor, and he has no right to call for the money owing to him until the maturity of his bond, which will not be until 30 or may be 40 years after the commission of the fraud which gave the state the right to call at once on the company and its implicated stockholders for the payment of the bond he holds. It will hardly be contended that it was intended to make the stockholder individually liable to the bondholder, yet his liability is for 'the payment of the bonds' just as is that of the company. If in his case payment of the bonds does not mean payment to the bondholder, it does not in that of the company. The language of the act is the same in both cases, and there is nothing whatever to show t at as to one it meant one thing, and as to the other something else. The evident purpose of this section was to give the state the power, immediately on the discovery of a fraud, to demand of the company 'payment of the bonds,'—that is, payment of an amount of money equal to that called for by the bonds,—and a remedy at once against the company and its implicated stockholders for the enforcement of such a payment in case it was not voluntarily made. The money when collected was to be set apart and invested 'as a sinking fund for the payment of the bonds' by the state. 102 By section 14 it was made the duty of the governor to appoint an agent for the state, to attend all sales, made either under section 6 or section 13, to protect the interest of the state, and, if necessary for that purpose, to buy the road or property in the name of the state. If bought, it was to be put in the hands of a receiver to manage and run in the way provided in section 5, until the next meeting of the general assembly. The receiver was to settle his accounts with the comptroller semi-annually, but no directions were given in relation to the manner in which the net earnings were to be used in case of a sale under section 6. He was to take possession of 'the said road and property and use the same as provided for in the fifth section,' and, on the settlement of his accounts with the comptroller, the balances remaining in his hands would necessarily go into the treasury, there to be dealt with as the general assembly should direct. If a purchase was made by the state under section 13, the presumption would be that the earnings must go into the sinking fund, as such was the provision made for the proceeds of a sale to another purchaser; but all that would necessarily be under the control of the general assembly when it met. 103 Having thus gone over the other sections, we are prepared to consider section 12, in its bearing on the question which is now under discussion. This section reserves to the state in express terms the right to enact 'all such laws as may be deemed necessary to protect the interest of the state, and to secure the state against all loss in consequence of the issuance of bonds under the provisions of this act, but in such manner as not to impair the vested rights of the stockholders of the companies.' This reservation includes, and was undoubtedly intended to include, full power in the state, as against every one except stockholders, to do whatever might be deemed necessary by the legislature, with the lien reserved for the security of the obligations assumed by the companies. Nothing is said about bondholders. It will, of course, be conceded that if bondholders actually had any vested right or interest as against the state in the security created by the statute, nothing could be done under this section by the state to impair that right. But the same was probably true of stockholders, and the special care taken to preserve the rights of stockholders, without referring to bondholders at all, raises a strong presumption that it was never intended to vest in them any right which would interfere in the remotest degree with the free exercise of all the power of the state to deal with the borrowing companies in reference to the bonds and the security created therefor, just as might, under any circumstances that should arise, be deemed most for the interest of the state and the companies, they being the only parties to the contract of the companies that were to be at all interested in what was to be done. As has been seen, the bonds to be issued were on their face to bind only the state. At that time repudiation of state faith was not thought of. No purchaser of state bonds ever asked whether anything else than the faith of a state was pledged for their payment promptly at maturity. Repudiation was looked upon as dishonorable, and something that would never occur. Security to the state against loss by the loans of its bonds which were provided for must, therefore, be presumed to have been the sole purpose of the liens which were to be created on the issue of the bonds. Bondholders were never thought of in this connection, for they had the security of the faith of the state, and could not have been supposed to look for anything else. Hence this reservation of power by the state was made broad enough to allow the state to deal with the securities which were taken from the companies at its own discretion, and in any way that might be deemed just. No such power could be exercised if the bondholders held an interest in the securities adverse to the state. Under these circumstances this section is to be looked upon as excluding any such possible intent, and operating as a standing notice to all who might, from time to time, become the holders of any of the lent bonds that the payment of the bonds, and the interest thereon, which the several companies bound themselves for, was to be made to the state, and not to them, and that the security which was taken by the state was for the performance of this obligation, and might be dealt with by the state in any manner its own legislature should direct or provide. This reservation of power is entirely inconsistent with the idea of a debt from the company to the bondholders on account of the bonds; and, if there could have been any doubt on this subject without section 12, there certainly is none with it. 104 This disposes of all the cases; for the state, in the exercise of its legislative discretion, has released each of the companies whose property is involved in these suits from all its obligations growing out of the original loans, and has canceled the liens created for their security. The companies have either voluntarily paid their debts to the satisfaction of the state, or the state has foreclosed the lien which was reserved, and sold the property, free of that incumbrance, either to the present defendants or to those under whom they claim. 105 Some reliance was placed, in the argument for the bondholders, upon the legislative history of the passage of the act of 1852, which showed an offer and rejection of certain proposed amendments, and also upon the construction which had been put on the act by certain state officers of high authority in the administration of the public affairs; but we have deemed it unnecessary to add to the length of this opinion by particular reference to that branch of the argument, because, as we think, the statute contains within itself unmistakable evidence of its meaning. The same is true of the reference which has been made to other statutes of Tennessee, and to statutes of the states and of the United States upon the same general subject. This statute differs in its phraseology from some, and perhaps all, of the others, but its own language furnishes all the aid which is required for its true interpretation. 106 The decree in each of the cases is affirmed. 107 MATTHEWS and BLATCHFORD, JJ., took no part in these decisions. 1 S. C. 3 Fed. Rep. 673, and 100.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-11-00211-CV City of New Braunfels, Texas, Appellant v. Carowest Land, Ltd., Appellee FROM THE DISTRICT COURT OF COMAL COUNTY, 433RD JUDICIAL DISTRICT NO. C2010-1519D, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING MEMORANDUM OPINION Appellant City of New Braunfels, Texas no longer wishes to pursue its appeal and has filed a motion to dismiss. Appellant’s counsel states that he has conferred with counsel for appellee, who does not oppose this motion. We grant the motion and dismiss the appeal. Tex. R. App. P. 42.1(a). __________________________________________ Jeff Rose, Justice Before Justices Puryear, Pemberton and Rose Dismissed on Appellant’s Motion Filed: July 1, 2011 

689 N.W.2d 1 (2004) 2004 SD 110 Donald E. MOELLER, Petitioner and Appellant, v. Douglas L. WEBER, Warden, South Dakota State Penitentiary, Respondent and Appellee. No. 22510. Supreme Court of South Dakota. Argued on March 22, 2004. Decided October 6, 2004. *4 Mark F. Marshall of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for appellant. Lawrence E. Long, Attorney General, Grant Gormley, Assistant Attorney General, Craig M. Eichstadt, Robert Mayer, Deputy Attorneys General, Gary Campbell, Sherri Sundem Wald, Assistant Attorneys General, Pierre, for appellee. KONENKAMP, Justice. [¶ 1.] Petitioner, Donald Moeller, was tried, convicted, and sentenced to death for the rape and murder of a nine-year-old girl. He applied for a writ of habeas corpus in the circuit court. We affirm the circuit court's denial of relief. Background [¶ 2.] On May 8, 1990, nine-year-old Becky O'Connell was abducted after she visited a local store in Sioux Falls. Moeller had also been a customer there. After Becky left the store, a witness saw her presumably heading home. The witness also testified that he noticed Moeller moving toward Becky and Becky shying away *5 from him. Becky never made it home. Shortly after the witness had seen Becky and Moeller, three men driving through a secluded tract south of Sioux Falls noticed a light blue pickup with South Dakota license plates leaving the area. They later described the driver of the vehicle as matching Moeller's general description. [¶ 3.] The next day, two men discovered Becky's body south of Sioux Falls in the area the blue pickup had been seen. An autopsy revealed that Becky had been sexually assaulted and stabbed to death. Three days later, as part of the murder investigation, a police detective spoke with Moeller about Becky's disappearance. Moeller admitted owning a blue pickup truck. He denied any involvement with the disappearance and provided the detective with blood and hair samples. The following day, Moeller fled South Dakota. He left behind his ill mother and his truck. While in the State of Washington, he used at least two aliases. [¶ 4.] On Moeller's disappearance, the police obtained a search warrant for his home. Under his bed, they discovered a section of the Sioux Falls Argus Leader containing a composite sketch of Becky's murderer and an article discussing the crime. Moeller's clothes, which would have been subject to soil analysis, were found freshly washed in his otherwise messy, filthy room. [¶ 5.] Moeller was eventually apprehended and returned to South Dakota. On July 31, 1991, he was indicted by a Lincoln County Grand Jury on one count of first degree rape, one count of felony murder, and one count of first degree murder. The State filed a death penalty notice alleging four aggravating circumstances. [¶ 6.] Moeller's first trial began in July 1992. On September 1, 1992, the jury returned a verdict of guilty of one count of rape in the first degree, and one count of premeditated murder in the first degree. After a presentence hearing, the jury imposed the death sentence. [¶ 7.] The conviction was reversed on appeal and remanded for a new trial. State v. Moeller, 1996 SD 60, 548 N.W.2d 465 (Moeller I). The same attorneys who represented Moeller in the first trial represented him in the second trial. In the second trial, the State presented testimony that Moeller had visited the entrance to the secluded crime scene two days before Becky's rape and murder. The State offered expert evidence that soil samples taken from Moeller's vehicle and the crime scene were similar. Also DNA evidence was offered relating to semen taken from Becky's body that demonstrated `That the probability of a person in the Caucasian population having DNA characteristics common to Moeller's would be 1 in 130 million if the' APO-B DNA analysis was not included and a 1 in 14.8 billion probability if the APO-B DNA analysis was included. [¶ 8.] The jury convicted Moeller of rape in the first degree and murder in the first degree. After a presentencing hearing, the jury found three aggravating circumstances and imposed the death sentence. On direct appeal, we affirmed. State v. Moeller, 2000 SD 122, 616 N.W.2d 424 (Moeller II). [¶ 9.] On February 16, 2001, Moeller filed an application for habeas corpus. The matter was heard by Circuit Judge Gene Paul Kean of the Second Judicial Circuit. The habeas court appointed counsel to represent Moeller. Also, the court granted Moeller's request to depose the State's soil expert, obtain a new defense soil expert, and hire a new DNA expert. The habeas hearing was held on February 27, 2002. Following the hearing, Moeller *6 requested and was granted leave to add additional claims. The habeas court issued its memorandum opinion denying relief and quashing the writ. After additional arguments and motions, the court also issued Findings of Fact and Conclusions of Law. Analysis and Decision [¶ 10.] Because a petition of habeas corpus collaterally attacks a final judgment, our review is limited. Hays v. Weber, 2002 SD 59, ¶ 11, 645 N.W.2d 591, 595. Habeas review is not a substitute for a direct appeal. Lien v. Class, 1998 SD 7, ¶ 10, 574 N.W.2d 601, 606. As a general matter, habeas corpus is used to review only: (1) whether the court has jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) whether, in certain cases, a defendant was deprived of basic constitutional rights. New v. Weber, 1999 SD 125, ¶ 5, 600 N.W.2d 568, 571-72. Findings of fact are reviewed under the clearly erroneous standard. Id. Habeas corpus petitions are subject to the doctrines of res judicata and collateral estoppel. Rhines v. Weber, 2000 SD 19, ¶ 59, 608 N.W.2d 303, 316. I. [¶ 11.] Moeller first contends that the habeas court erred when it concluded that the trial court's decision to admit testimony concerning gahnite was not a trial error that had substantial and injurious effect on the jury's verdict and thereby deprived him of his rights to due process of law as provided by the state and federal constitutions.[1] In essence, this claim is an attempt to revive an issue presented on direct appeal. In Moeller II, we examined whether the trial court abused its discretion in admitting a belated report by Dr. John P. Wehrenberg, the State's soil expert, and in failing to conduct a Daubert admissibility hearing on whether "Wehrenberg's testimony was scientifically valid and admissible." 2000 SD 122, ¶¶ 71-75, 616 N.W.2d at 445-46. In affirming the trial court's decision to allow testimony concerning the presence of gahnite, we reasoned that Moeller's right to due process of law was not violated because he was "on notice" that gahnite was of "substantial interest" to the State's expert. Id. ¶ 78. Likewise, we held that Moeller's right to due process of law was not abridged by the trial court's decision to forego a Daubert hearing because the State's expert's methodology was neither complex nor novel, and because Moeller presented no evidence that the methodology was so flawed as to be unreliable. Id. ¶ 86-87. [¶ 12.] Moeller now challenges these decisions on two fronts. First, he alleges that Wehrenberg's conclusions were "demonstrably false." Moeller bases his allegation on new expert testimony presented by Dr. Edward Duke who concluded that gahnite was not present in the sample tested by the State's expert. Second, Moeller alleges that because the grains identified by the State's expert as gahnite were destroyed before his second trial, he was entitled to an inference that the evidence would not support Wehrenberg's conclusions. [¶ 13.] Duke's analysis has no effect on our earlier decision. The new evidence does not give us reason to reconsider our conclusion that the trial court was correct in refusing to mandate a Daubert hearing before Wehrenberg's testimony and did not abuse its discretion in allowing *7 the gahnite evidence. Furthermore, Duke's findings do not change our view that the gahnite evidence was relevant and that Wehrenberg's testimony rested on a reliable foundation. Duke's conclusions merely question the weight of the evidence presented by Wehrenberg, not its admissibility. As we stated in Moeller II, "there is [still] no evidence in the record that Wehrenberg's methodology or analysis was so skewed as to alter the otherwise reliable scientific method." Id. ¶ 87. At most, Duke's analysis amounts to new evidence. However, newly discovered evidence is not a sufficient ground for habeas relief where no deprivation of a constitutionally protected right is involved. Boyles v. Weber, 2004 SD 31, ¶ 11, 677 N.W.2d 531, 538 (citing Herrera v. Collins, 506 U.S. 390, 390-91, 113 S.Ct. 853, 855, 122 L.Ed.2d 203 (1993)). [¶ 14.] Moeller asks us to declare, on habeas review, that the evidence destroyed by Wehrenberg would not have been favorable to the State. We are not persuaded that Moeller's right to due process was violated by the destruction of the grains identified by Wehrenberg as gahnite. While the destruction of this evidence is regrettable, it did not taint Moeller's subsequent criminal trial. We find it difficult to envision a constitutional flaw in the proceedings where no party discovered Wehrenberg's destruction until eleven years after the event and where, at the time of destruction, Moeller had in his possession comparable evidence. [¶ 15.] Even if Moeller had discovered the destruction of the evidence before his trial, it does not necessarily follow that he would have been entitled to such an adverse inference. In State v. Engesser, we held that an adverse inference should not be drawn from missing evidence unless it was disposed of intentionally or in bad faith. 2003 SD 47, ¶ 44, 661 N.W.2d 739, 754-55. We reiterated this position in State v. Bousum: "mere negligence in the loss or destruction of evidence does not result in a constitutional violation." 2003 SD 58, ¶ 16, 663 N.W.2d 257, 263. Our view on this issue is drawn from well-settled Supreme Court case law. In California v. Trombetta, the United States Supreme Court held that due process was not violated when law enforcement officers failed to preserve breath samples despite the introduction of the results of the breath analysis test. 467 U.S. 479, 488, 104 S.Ct. 2528, 2533-34, 81 L.Ed.2d 413 (1984). In reaching this conclusion, the Court reasoned that a state's duty to preserve evidence is "limited to evidence that might be expected to play a significant role in the suspect's defense." Id. (emphasis added). Evidence plays a "significant role" where the evidence possessed "an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 488-89, 104 S.Ct. at 2534 (emphasis added). [¶ 16.] Although Moeller argues that Wehrenberg's destruction of evidence was more than mere negligence, we are not convinced. In his deposition, Wehrenberg candidly admitted that he destroyed the evidence. He stated that this was necessary because a substance that he used during his analysis was carcinogenic. He indicated that he was under no direction to destroy the evidence, and that, in fact, the State was unaware that he had done so. Moeller seems to argue that the State's direction to Wehrenberg that he should analyze the grains in a "generalized manner" was tantamount to an instruction by the State to destroy the evidence upon completion of the analysis. However, the habeas court rejected this argument and *8 instead concluded that Wehrenberg's conduct was negligent and not a calculated effort to destroy exculpatory evidence. We find no fault with the habeas court's finding. There is simply no support in the record that the destruction of the evidence by Wehrenberg was more than mere negligence. Thus, we see no violation of Moeller's right to due process. [¶ 17.] Our conclusion that the destruction of the "gahnite" grains does not amount to a violation of Moeller's right to due process is furthered by the undisputed fact that at the time of the destruction comparable evidence was available for Moeller's review. True, the samples delivered to Moeller's expert may not have been the identical samples tested by Wehrenberg, but samples taken from both the crime scene and Moeller's vehicle were available for analysis. In fact, these samples were sent to Moeller's soil expert and remained under the control of Moeller's counsel. [¶ 18.] Given that the record does not reflect that the State acted in bad faith in the destruction of evidence and given that the destruction did not impair Moeller's ability to examine comparable evidence, we conclude that Moeller would not have been entitled to an adverse inference even if he had discovered the destruction of the evidence before his direct appeal. Therefore, we find no error in the habeas court's conclusion that the destruction of the evidence did not amount to a violation of Moeller's constitutionally protected rights. II. [¶ 19.] Moeller next contends that the habeas court erred when it concluded that Moeller was not denied his right to due process of law by the trial court's instructions concerning life imprisonment without parole. During jury deliberations in the sentencing phase of Moeller's second trial, the jury asked, "If the penalty of `life imprisonment without parole' should be imposed upon the defendant, will he EVER have a chance to appear before a parole board?" (Emphasis in original.) The trial judge responded, "We acknowledge your note asking questions about life imprisonment without parole. All of the information which I can give you is set forth in the jury instructions." Moeller argues now that the trial judge was bound to further define "life imprisonment without parole." [¶ 20.] Moeller contends that the Due Process Clause forbids the execution of a prisoner where the trial court refused to give a jury instruction defining the meaning of "life without parole." His argument is founded on several United States Supreme Court cases mandating that when a defendant is facing the possibility of execution, and a prosecutor argues that the defendant poses a future threat to society, and a trial court refuses to inform the jury whether life imprisonment precludes the opportunity for parole, the defendant's right to due process has been violated. See Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002); Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994); Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). [¶ 21.] This case is not similar to the ones Moeller cites. As we held in Moeller's direct appeal, "future dangerousness was not specifically raised as a concern by [the] State." Moeller II, 2000 SD 122, ¶ 155, 616 N.W.2d at 461. Furthermore, we held that the instructions given to the jury "were an accurate and complete reflection of the law." Id. ¶ 156. There is no ambiguity in an instruction that defines life imprisonment as "life without parole." Thus, Moeller's constitutional rights were not violated by the trial *9 court's instruction and subsequent response to the jury question. Indeed, any further explanation would have been at best redundant and at worst confusing. The trial court was correct in not elaborating on an already proper instruction. III. [¶ 22.] Moeller next contends that the habeas court erred in finding no ineffective assistance of trial counsel. Moeller's first claim in this regard originates from the decision of his trial attorneys not to substantially participate in the Daubert hearing on the admissibility of DNA evidence. After our reversal of Moeller's original conviction, the trial court established January 13, 1997 as the date for the hearing on DNA evidence. At Moeller's request, the court rescheduled the hearing for March 3, 1997. On February 19, 1997, Moeller again requested that the court reschedule the hearing. The court denied the request. [¶ 23.] At the Daubert hearing, Moeller's attorneys stated that they were "totally unprepared" to participate in the hearing, and, as a result, they were not "competently and adequately" representing Moeller. Despite this, the court proceeded with the hearing. Moeller's counsel presented no expert testimony in defense and conducted only perfunctory cross-examination. As a result of the hearing, the court found that the DNA evidence was admissible under the Daubert standard. [¶ 24.] In response to the continuance request and unpreparedness statement, the trial court issued findings of fact that explained its decision to deny Moeller's request for a continuance. The court found that the claim of inadequate time to prepare for the hearing was not credible. Furthermore, the court held that the decision of defense counsel "to not call witnesses or examine witnesses at the Daubert hearing was a tactical decision made with the intent to create the appearance of error and ineffective assistance of counsel, and not the result of being denied the opportunity to adequately present a defense."[2] On habeas, Moeller now claims that his attorneys' strategy was unreasonable and prejudicial. [¶ 25.] Moeller argues that the proper test here is whether his substantial rights were affected during the hearing because trial counsel was constructively absent during the Daubert hearing. He further argues that our scope in reviewing trial counsel effectiveness is limited to the DNA hearing, a "discrete portion" of the trial. Thus, before proceeding further, we must determine (1) whether the strategy of defense counsel during the hearing amounted to a constructive absence of counsel, and (2) whether the Daubert hearing was a "discrete portion" of the trial. [¶ 26.] Moeller looks to several cases for support on his contention that he was not afforded assistance of counsel during the Daubert hearing. However, the cases Moeller relies on are not analogous. This is certainly not a case where trial counsel fell asleep during trial or did not attend the entire trial. Instead, as both the habeas and trial courts found, Moeller's trial counsel embarked on a calculated strategy. While its effectiveness may be questioned, certainly Moeller's representation during the hearing was more than *10 "mere physical presence." The issue presented here is a question of the effectiveness of assistance of counsel, not the lack of it. Thus, Moeller is not entitled to a presumption of prejudice, as he suggests. [¶ 27.] Nor are we convinced that we may not look beyond the Daubert hearing in determining the effectiveness of trial counsel. Moeller contends that we must narrow our review to only the DNA hearing. He cites Collier v. Turpin, 177 F.3d 1184, 1196 n. 17 (11th Cir.1999) as standing for this proposition. However, Moeller's reliance here is misplaced. In Collier, the court noted that in determining whether counsel provided effective assistance, a court should look to each discrete portion of a trial without regard to performances at other times during the trial. Id. There, the court reasoned that it would be improper for a court to look at the guilt and sentencing phases in toto. Never did the Collier court suggest that it was improper for a court to review counsel's performance at an evidentiary hearing in combination with counsel's performance during the trial. Thus, we see no reason to review in isolation trial counsel performance during the Daubert hearing. With our preliminary inquires answered, we proceed to determine whether the strategy of not substantially participating in the Daubert hearing amounted to ineffective assistance of counsel. [¶ 28.] The well-established two-prong test for a claim of ineffective assistance of counsel requires a showing "(1) that counsel's representation fell below an objective standard of reasonableness, and (2) that such deficiency prejudiced the defendant." Coon v. Weber, 2002 SD 48, ¶ 11, 644 N.W.2d 638, 642 (citations omitted). "`The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.'" Id. (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). Lawyers "are presumed to be competent unless otherwise shown and the reasonableness of counsel's performance is evaluated from counsel's perspective at the time in light of all of the circumstances." Id. (citing Davi v. Class, 2000 SD 30, ¶ 17, 609 N.W.2d 107, 112). "[A] wrong or poorly advised exercise of judgment is not alone enough to support a subsequent claim of ineffective counsel." Jones v. Class, 1998 SD 55, ¶ 23, 578 N.W.2d 154, 162. [¶ 29.] As a result of the Daubert hearing, the trial court allowed the State to introduce DNA evidence using both APO-B and other markers. It is worth noting initially that even now Moeller presents no testimony or other evidence that might have led to the exclusion of any DNA evidence based on any marker other than the APO-B marker at the Daubert hearing. His failure to challenge that evidence leads us to the conclusion that even if trial counsel had attempted to prevent its admission, they probably would have failed. Thus, Moeller does not realistically demonstrate that the performance of his defense attorneys in regard to most of the DNA evidence was ineffective. [¶ 30.] From the above, we can reasonably conclude that trial counsel was faced with the realization that even if the APO-B DNA evidence was excluded, the evidence still showed `in the remaining analysis that the probability of a person in the Caucasian population having DNA characteristics common to Moeller's would be 1 in 130 million.' While trial counsel did not attack the admissibility of the APO-B DNA evidence, counsel sought during trial to inject reasonable doubt in the minds of the jurors regarding all DNA evidence *11 presented by the State. Defense counsel vigorously cross-examined the State's DNA experts regarding the methodology, reliability, and control procedures of their testing. Trial counsel obtained an admission from the State's DNA expert that it had only recently been determined that APO-B DNA evidence was reliable and that no other laboratory had made such a determination. In addition, in closing argument, defense counsel repeatedly referred to the lack of validation procedures, not just for the APO-B DNA evidence, but for all DNA evidence presented by the State. In essence, counsel used the questionable reliability of the APO-B DNA evidence to support an inference that the remaining DNA evidence was equally unreliable. Thus, we cannot say that the strategy to forego a vigorous defense against the admission of the APO-B DNA evidence in the Daubert hearing was ineffective, where the admission of such evidence was effectively challenged at trial. [¶ 31.] Next, Moeller claims ineffective assistance of counsel because trial counsel failed to test the mineral identified by the State's expert as gahnite. For this claim, Moeller relies heavily on later testing that concluded that the material found was neither gahnite nor common spinel. However, as we noted above, we review defense counsel performance from their perspective at the time in light of all of the circumstances. Coon, 2002 SD 48, ¶ 11, 644 N.W.2d at 642 (citations omitted). [¶ 32.] At trial, Moeller's soil expert testified that ancient glaciers moving through what is now South Dakota deposited the soils now found in the Minnehaha and Lincoln county areas. Moeller's expert also opined that soils found throughout the eastern part of the state would be substantially similar. Moreover, the expert explained that any mineral deposit, such as gahnite, if found in a specific area of the state would likely be found in other areas of the state due to the manner in which the soils were deposited. Lastly, the defense expert testified that the mineral found by the State's expert was more likely common spinel, a rare mineral, though not as rare as gahnite. [¶ 33.] From the testimony, it is clear that instead of attempting to show that the mineral was common spinel rather than gahnite, defense counsel chose to proceed with a theory that the State's expert was mistaken in his conclusion that a soil analysis could isolate any locale in the eastern part of the State. Trial counsel argued that it was irrelevant whether the mineral found was gahnite because, as the defense expert testified, whether the soil was found in Lincoln, Lake, or Minnehaha County, "It's all similar." Proceeding under such a theory was neither unreasonable nor ineffective. IV. [¶ 34.] Moeller argues that the habeas court erred when it concluded that the trial court's decision to admit APO-B DNA evidence was not a trial error that had substantial and injurious effect on the jury's verdict and deprived Moeller of his right to due process of law as provided by the Constitutions of the United States and South Dakota. At the onset, we note that the habeas court ruled that Moeller showed no error on the part of the trial court in admitting the disputed DNA evidence. [¶ 35.] Moeller argues that the trial court failed to exercise its gatekeeping function when it admitted the APO-B DNA testing results because the evidence was not sufficiently reliable. Moeller points to the fact that "Moeller II [is] the only reported decision in which APO-B was determined reliable enough to be admissible." He called an expert who "testified *12 that the use of APO-B for forensic applications was not generally accepted in the forensic community[.]" Moeller further asserts that the validation process used by the State's DNA expert was insufficient and incomplete. Finally, Moeller argues that as a result the State was able to present evidence that "when the APO-B frequency was included with the other [DNA] markers the likelihood [that Moeller was the perpetrator] went into the range of 1 in 14.8 billion, or a virtual certainty that Moeller was the perpetrator." This Moeller argues was clearly prejudicial. [¶ 36.] Trial courts have broad discretion in determining whether to admit expert testimony. State v. Weaver, 2002 SD 76, ¶ 24, 648 N.W.2d 355, 364. Only where a court abuses its discretion in admitting evidence will we reverse. Moeller I, 1996 SD 60, ¶ 51, 548 N.W.2d at 479. In determining whether to admit expert opinion, a court should look to whether the testimony "will assist the trier of fact to understand the evidence or to determine a fact in issue." SDCL 19-15-2. Proposed expert testimony must rest on a reliable foundation and be relevant. Moeller I, 1996 SD 60, ¶ 52, 548 N.W.2d at 479. "`Pertinent evidence based on scientifically valid principles will satisfy those demands.'" Id. (quoting State v. Hofer, 512 N.W.2d 482, 484 (S.D.1994)). Habeas corpus is a collateral review meant "to afford relief to those whom society has `grievously wronged.'" Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1721, 123 L.Ed.2d 353 (1993). Where a constitutional error exists, the State must show that the error was harmless. Id. at 641, 113 S.Ct. 1710 (Stevens, J., concurring). A habeas court's findings of fact are given "considerable deference" and as such are reviewed under a clearly erroneous standard. Rhines, 2000 SD 19, ¶ 9, 608 N.W.2d at 306. [¶ 37.] An assertion that we must find error in the admission of the APO-B DNA evidence merely because no other reported decision has deemed it admissible is immaterial. While prior admission of similar evidence in other jurisdictions may assist a trial judge in determining whether to admit evidence, we do not see the lack of reported precedent as an outright impediment against admission. [¶ 38.] In regard to the validation process, Moeller contends that (1) the State's expert failed to deliver to Moeller certain documents regarding the validation process, (2) untrained personnel (students) conducted the validation, and (3) the validation studies were not complete before the testing. The habeas court specifically rejected each of these assertions in its Findings of Fact and Conclusions of Law. The habeas court found: * * * 19. * * * p. Moeller's belief that validation reports were never turned over to the defense and were discarded by Dr. Schanfield stems from his confusion over: i. .... ii. .... iii. The time frame of the initial validation studies and what occurred thereafter in relationship to the second trial. iv. Work done with students to determine whether laboratory models could be duplicated with some relative ease. q. Merely because Moeller is confused about some of the data or what its *13 implication might be does not imply that it was never disclosed. r. This Court is left with the firm impression that all available APO-B material and information had been disclosed during discovery leading up to the second trial. s. [The State's expert's] validation information was published, and that certainly preserved the information Moeller now seeks. t. While the Court is of the opinion that discovery of APO-B material was adequate and court orders satisfied, nothing satisfies Moeller. After giving him everything required, he wants more even when his hired expert concluded that some of it was unnecessary. Having received everything directly involved in testing the samples in this case, Moeller wants to go back further to ask for data from an earlier time. It is not necessary. This approach is consistent with Moeller's past approach of attacking [the State's expert]. 20. * * * c. Being peer reviewed is only one criteria to look at. That was satisfied at the 1997 Daubert hearing. d. In the years between 1992, when Dr. Schanfield was working on APO-B studies, and 1997, when the second trial began, Dr. Schanfield continued his work on APO-B markers. By the retrial in Moeller II, Dr. Schanfield had presented his validation studies on APO-B at regional forensics meetings. e. There is a disagreement within the DNA community about APO-B markers. i. Dr. Eisenberg has a strong, subjective opinion about the validity of APO-B as a useful DNA marker. However, she never read AGTC's presentation of their validation studies. Dr. Eisenberg was not even sure whether she needed to review the database gels used by AGTC. She had not read the Daubert hearing record; as a result, she did not have a full understanding for Dr. Schanfield's opinion. Dr. Eisenberg indicated that even the bioblots would not be necessary for her review. Rather, what concerned her was her fundamental, subjective belief that APO-B was not a good, reliable marker despite contrary testimony. ii. Dr. Robin Cotton of Cellmark Labs testified at the Daubert hearing that there is no particular objection to the APO-B marker, and APO-B is a perfectly good marker. [¶ 39.] Moeller presents nothing that might lead us to the conclusion that these findings are clearly erroneous. He rests his assertion on the rejected testimony of his expert at the habeas hearing, testimony refuted by the State's DNA expert. Therefore, we see no reason to disturb the habeas court's findings. [¶ 40.] The validation process conducted by the State's expert may not have satisfied every critic; however, that is not the standard. In determining the reliability of scientific testimony, we have oft pointed to the non-exhaustive list of guidelines delineated in Daubert. See Weaver, 2002 SD 76, ¶ 25, 648 N.W.2d at 364; State v. Guthrie, 2001 SD 61, ¶ 35, 627 N.W.2d 401, 416 (2001). In Weaver, we quoted eight such guidelines from Guthrie: *14 (1) whether the method is testable or falsifiable; (2) whether the method was subjected to peer review; (3) the known or potential error rate; (4) whether standards exist to control procedures for the method; (5) whether the method is generally accepted; (6) the relationship of the technique to methods that have been established as reliable; (7) the qualifications of the expert; and (8) the non-judicial uses to which the method has been put. (Internal citations omitted.) Id. The fundamental error in Moeller's argument is that he now wishes to interpose certain scientific standards of validation on our Daubert guidelines of admissibility. For example, Moeller apparently believes that because certain standards in the DNA community dictate that peer review be conducted before testing a sample, the Daubert guideline that a method be subjected to peer review must not have been met. Expert testimony need only be based on a "reliable foundation." Weaver, 2002 SD 76, ¶ 24, 648 N.W.2d at 364. There is no requirement that the foundation be one that is absolutely accepted throughout the scientific community. Moeller rests his entire argument on the premise that the State's expert failed to meet the rigorous validation processes of the DNA community. He devotes no ink to explaining where the State's expert failed to meet our admissibility requirements. At most, Moeller's arguments are a tangential attack on whether the method used by the State's expert was generally accepted in the scientific community. However, these attacks do not persuade us to declare that the trial court abused its discretion in admitting the evidence. [¶ 41.] In furtherance of our belief that the trial court did not err in admitting the disputed DNA evidence, we note that the habeas court effectively conducted what might be referred to as a "post-conviction" Daubert hearing. During the habeas hearing, Moeller's DNA expert was allowed to testify at length on problems she perceived in the APO-B testing. However, even at this stage, Moeller's expert was unable to convince the habeas court that the evidence based on the APO-B marker failed to meet our admission standards. All the habeas court found was that there is disagreement in the DNA community on whether APO-B is a valid marker. Again, perfect agreement is not a prerequisite to admission of scientific evidence. V. A. Prosecutorial Discretion [¶ 42.] Moeller contends that the habeas court erred when it concluded that failure to follow the procedures outlined in SDCL 23A-27A was not a structural error affecting the entire trial process depriving him of his rights to due process and equal protection of the law, and violating the doctrine of separation of powers as provided by our state and federal constitutions. Unquestionably, the State in the exercise of its discretion may choose whether to prosecute individuals and what charges to bring against them. There is also no question that this general principle extends to the prosecution of a person suspected of committing a crime for which the penalty, upon conviction, is either life imprisonment or execution by lethal injection. The question before us here is this: does the State, in addition to having the discretion to decide that it will seek the conviction of a person for a capital crime, also have the discretion to decide whether it will seek the death penalty in a given case? Moeller argues that allowing the State such discretion violates our statutes and the Due Process and Equal Protection Clauses of the Fourteenth Amendment.[3]*15 Our answer to this question has important consequences for, among other things, the size of the pool of cases considered when fair proportionality of sentencing is challenged. [¶ 43.] SDCL Chapter 23A-27A provides the statutory scheme for the prosecution of capital crimes. A review of the initial sections, quoted in part, will clarify the context of the question. According to § 23A-27A-1, "in all cases for which the death penalty may be authorized, the judge ... shall include in instructions to the jury for it to consider, any mitigating circumstances and any of the [ten] aggravating circumstances which may be supported by the evidence...." SDCL 23A-27A-2 provides: "In all cases in which the death penalty may be imposed and which are tried by a jury, ... the court shall resume the trial and conduct a presentence hearing before the jury." Id. (emphasis added). (The meaning of the "may" in that statute is that the imposition of the death penalty lies within the jury's limited discretion. The limitation of that discretion is provided by § 23A-27A-4: "If, upon a trial by jury, a person is convicted of a Class A felony, a sentence of death shall not be imposed unless the jury verdict at the presentence hearing includes a finding of [1] at least one aggravating circumstance and [2] a recommendation that such sentence be imposed." (enumeration added).) SDCL 23A-27A-2 continues: "Such hearing shall be conducted to hear additional evidence in mitigation and aggravation of punishment. At such hearing the jury shall receive all relevant evidence, including: (1) Evidence supporting any of the aggravating circumstances listed under § 23A-27A-1; ... [and] (4) All evidence concerning any mitigating circumstances." Then, according to § 23A-27A-3, the jury, after argument of counsel in the presentencing hearing, "shall retire to determine whether any mitigating or aggravating circumstances... exist." [¶ 44.] Moeller relies on dictum from State v. Clothier, 381 N.W.2d 253 (S.D.1986), to support his argument that it is not within the statutory discretion of the prosecution to decide whether to seek the death penalty.[4] In Clothier, the prosecutor announced that he would not seek the death penalty if the defendant were convicted of the charged offense of first-degree murder. Nonetheless, although the defense certainly did not object to the prosecutor's waiving of the death penalty, defense counsel insisted that the jury had to be death qualified because the applicable statutes mandated that all convictions for first degree murder were death penalty eligible and only a jury could decide life or death as the appropriate punishment. Reasoning that the jury could not impose the death penalty if the prosecutor declined to offer evidence or argument in support of it, the trial court refused to death qualify the jury. At the end of the trial, the jury returned a verdict of first degree manslaughter, making the question moot. Nonetheless, on appeal, this Court wrote, *16 The procedure for ascertaining the punishment and possible imposition of the death penalty ... is provided by SDCL [Chapter] 23A-27A [].[5] Nothing in this [Chapter] authorizes the prosecutor or judge to determine the penalty prior to a guilty verdict. The procedure is provided in SDCL [Chapter] 23A-27A [], which should be followed in capital cases. Id. at 258. In a footnote, the Court went on to state: If the prosecutor has a recommendation, he may state it at the presentence hearing provided by SDCL 23A-27A-2. There may be situations where the State has no evidence of aggravating circumstances proscribed in SDCL 23A-27A-1 to justify the death penalty; but, SDCL 23A-27A-3 indicates the jury is to determine the mitigation or aggravation, unless it is a nonjury case, then the judge conducts the presentence hearing. SDCL 23A-27A-6. [¶ 45.] First, we must repeat that this conclusion in Clothier cannot be understood as other than dictum. Since, as the Clothier court noted, "the penalty issue for first-degree murder was rendered moot when the jury failed to find him guilty of that charge," the issue was not properly before it. Clothier, 381 N.W.2d at 258. It is a fundamental principle of our jurisprudence that courts do not adjudicate issues that are not actually before them in the form of cases and controversies. [¶ 46.] Second, an aggressive reading of these passages in Clothier, such as Moeller proposes, would result in absurdity. Suppose, for example, that, in Clothier, the jury had convicted the defendant of first-degree murder. The putative holding in Clothier would require that the verdict be thrown out because the option of death had been illegally eliminated, even though there was no evidence offered or sought to be offered in support of it. Worse, this reading of the statute, that both the State and the defense are obliged to present evidence (because "the jury shall receive" "all relevant evidence" and shall hear "[a]ll evidence concerning any mitigating circumstances"), is impossible, for it contravenes the fundamental principle that the defense cannot be required to present any evidence whatever. SDCL 23A-27A-2 (emphasis added). See U.S. CONST. amend. V. Moreover, the Clothier Court's suggestion that the prosecutor can only state a recommendation in the sentencing phase has no basis in the statutes, including the one the Court cites for it. To follow Clothier's dictum literally, removing all prosecutorial discretion in assessing the facts to support a death penalty sentence, would radically transform our system into a process "totally alien to our notions of criminal justice." Moeller I, 1996 SD 60, ¶ 132, 548 N.W.2d at 494. In sum, we must fall back on the rule of statutory construction that requires us to give a sensible reading to statutes. See, e.g., State v. Barton, 2001 SD 52, ¶ 8, 625 N.W.2d 275, 278 (citations omitted). We presume that the Legislature intended no absurd or unreasonable result. Id. Thus, we set aside Clothier's dictum. [¶ 47.] Turning to the individual sections, then, one finds that § 23A-27A-1 requires the judge to include in instructions to the jury that it consider any mitigating circumstances and any of the ten aggravating factors "which may be supported by the evidence." SDCL 23A-27A-1 *17 (emphasis added). SDCL 23A-27A-1 refers to the situation obtaining before the jury retires to consider the question of guilt, and the "may" refers to the possibility that the evidence will support a mitigating or aggravating factor and at the same time implies that instructing the jury on that possibility lies within the discretion of the judge. That is, the trial court, not the prosecution, makes the initial decision whether the jury is to receive instructions on the mitigating or aggravating factors to be considered in the determination of guilt. [¶ 48.] SDCL 23A-27A-2 takes effect only after the jury has returned a verdict of guilty. At that point, the jury hears "additional evidence in mitigation and aggravation of punishment. In such a hearing, the jury shall receive all relevant evidence, including ... [e]vidence supporting any of the aggravating circumstances listed under § 23A-27A-1" as well as "[a]ll evidence concerning any mitigating circumstances." Id. (emphasis added). At this point, the discretion of the parties and the trial court is limited to the latter's determination of the relevance of proffered evidence: the court is obliged to allow (for "the jury shall hear") both the State and the defense to present "all relevant evidence." That is, the court shall allow the prosecution to present all relevant evidence supporting any of the aggravating factors, and the defense to present all relevant evidence concerning any mitigating factors. Relevant evidence includes "[e]vidence supporting any of the aggravating" factors and "all evidence concerning any mitigating circumstances." [¶ 49.] We assume that statutes mean what they say. South Dakota Subsequent Injury Fund v. Casualty Reciprocal Exch., 1999 SD 2, ¶ 17, 589 N.W.2d 206, 209. Quite clearly, § 23A-27A-2 means that the jury is to hear all relevant evidence that either side wishes to present. Accordingly, when "the prosecution intends to seek the death penalty," nothing more — or less — can be meant than that the prosecution believes that, if the case goes to trial, it has sufficient evidence to support a jury finding that one or more of the aggravating factors exist in the case and that any mitigating evidence will be found an insufficient counterweight to preclude a death sentence.[6] On the other hand, when "the prosecution does not intend to seek the death penalty," the meaning can be either (1) that the prosecution believes it has insufficient evidence to support a jury finding that aggravating factors exist in the case or (2) that it has proposed — and the court has agreed — that (a) at the conclusion of the culpability phase, the jury will be given no instructions on aggravating factors — without which a death sentence cannot be imposed — and, therefore (b) the jury need not be death-qualified. To underscore the point, neither the defense nor the prosecution may be prevented from presenting relevant evidence to the jury in the penalty phase of the trial. The notion that prosecutorial discretion exists in the penalty phase is a distraction. The only discretion in the penalty phase is that of the trial court to determine relevance in accordance with standard canons of evidence. [¶ 50.] Revisiting Clothier's dictum with the preceding analysis in hand, we can now state that its interpretation was off the mark in declaring that "[n]othing in this [Chapter] authorizes the prosecutor or judge to determine the penalty prior to a guilty verdict." 381 N.W.2d at 258. The Clothier court wrote: "The issue of punishment *18 by death was eliminated prior to trial by the prosecutor and the court, which left as the only punishment life imprisonment if convicted of first-degree murder." Id. The reality is that under § 23A-27A-1, once the prosecutor announces an intention to proffer no evidence to support any aggravating circumstance, there are no aggravating factors for the jury to consider, and thus no other penalty than life imprisonment can be imposed. [¶ 51.] As for Moeller's constitutional challenge to the prosecution's discretion in seeking the death penalty, we adhere to our holding in Moeller II that "[s]elective enforcement of SDCL 23A-27A-1 and 22-16-4 is insufficient to show that the statutes have been unconstitutionally applied to a specific defendant, absent a showing that the particular selection was deliberately based on an unjustifiable standard such as race, religion or other arbitrary classification." 2000 SD 122, ¶ 165, 616 N.W.2d at 463. Moeller insists that, because the State assumed a prerogative to pursue the death penalty in his case, he has been denied due process of law and the equal protection of the laws as guaranteed by the Fourteenth Amendment. The State took this decision, however, even before the trial began, in order to obtain a death-qualified jury. Moeller has presented no evidence that the prosecution exercised unlawful discretion. Accordingly, Moeller's challenge fails. B. Proportionality Review [¶ 52.] In Rhines, this Court set forth its interpretation of proportionality review in capital cases. 1996 SD 55, 548 N.W.2d at 415. Moeller asserts that, by restricting proportionality review to the decisions of other capital sentencing authorities, we are abridging all convicted defendants' rights to due process and equal protection of the laws as protected under the Fourteenth Amendment. Moeller urges that we should instead expand the pool of similar cases to include all homicide cases that were prosecuted or could have been prosecuted under the State's current capital punishment scheme. The nub of Moeller's argument is that there is an unconstitutional element of arbitrariness in the size of the pool for comparison under proportionality review. According to Moeller, this arbitrariness results from this State's current practice of vesting in the Attorney General and State's Attorneys the decision whether to seek the death penalty. [¶ 53.] As we stated in our discussion of Moeller's other issue, there was no illegitimate prosecutorial discretion involved here in the decision whether to seek the death penalty. Since there is no illegitimate discretion, there can be no element of arbitrariness. We see no compelling reason here to retrace that discussion — or its predecessors in Rhines and Moeller. Accordingly, we hold that our treatment of proportionality review is constitutional.[7] VI. [¶ 54.] Moeller argues that the habeas court erred when it concluded that the process by which Moeller was charged, convicted, and sentenced to death was not defective in some substantial form required by law. Moeller relies on the Supreme *19 Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), for his argument that his constitutional rights were violated when the State failed to list in the indictment the statutory aggravators that it intended to use to support his death sentence. However, in Schriro v. Summerlin, ___ U.S. ___, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), the United States Supreme Court made clear the limited application of its ruling in Ring. Writing for the majority of the Court, Justice Scalia unequivocally explained, "Ring announced a new procedural rule that does not apply retroactively to cases already final on direct review." Id. at 2526. Moeller's direct review was final August 30, 2000. Moeller II, 2000 SD 122, 616 N.W.2d 424. Ring did not announce its new procedural rule until 2002. 536 U.S. at 584, 122 S.Ct. at 2428. As such, the rule does not apply to Moeller. [¶ 55.] Even if we were to conclude that the Court's decision in Ring was applicable here, we do not believe that the new rule would provide relief. South Dakota's Constitution permits a charge to be brought by indictment or information. SD Const. art. VI, § 10. To gain a thorough grasp of the holding in Ring, we must examine two earlier decisions. The first was Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). The rule from that case is succinctly stated in the concurring opinions of Justices Stevens and Scalia: "[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt." Id. at 252-53, 119 S.Ct. at 1228-29 (opinion of Stevens, J.); see also 526 U.S. at 253, 119 S.Ct. at 1229 (opinion of Scalia, J.). The second case was Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), where the Court wrote: "[U]nder the Due Process Clause of the Fifth [and Fourteenth] Amendment[s] and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt." Id. at 476, 120 S.Ct. at 2355 (emphasis added). [¶ 56.] Adhering to its holdings in Jones and Apprendi, the Supreme Court in Ring struck down Arizona's capital sentencing structure. There, in an opinion authored by Justice Ginsburg (joined by Justices Stevens, Scalia, Kennedy, Souter and Thomas), the Court held that in examining alleged aggravating factors that would justify imposing the death penalty requires a jury, not a judge, to find the existence of such factors beyond a reasonable doubt. See Ring, 536 U.S. at 609, 122 S.Ct. at 2443. Arizona law had allowed a judge to determine the existence of aggravating and mitigating factors in deciding to impose death. The Court summed up its holding as follows: "If a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt." Id. at 586, 122 S.Ct. at 2430. [¶ 57.] Moeller believes that the federal constitution, as interpreted by the Supreme Court in these three recent decisions, makes unconstitutional South Dakota's procedure in giving the statutory aggravators through means other than in an indictment. In Ring, the Court held that because Arizona's enumerated aggravating factors operate as "the functional equivalent of an element of a greater offense," the Sixth Amendment requires that they be found by a jury. *20 536 U.S. at 609, 122 S.Ct. at 2443. From this Moeller reasons that aggravating circumstances are "elements" that must be alleged in an indictment or information. Thus, he argues, because the State did not allege the aggravators in the indictment, it was defective and the court lacked jurisdiction to impose the death sentence. [¶ 58.] We reject these arguments for three reasons.[8] First, Ring did not hold that indictments in capital cases must allege aggravating and mental state factors. See id. at 597 n. 4, 122 S.Ct. at 2437 n. 4 ("Ring does not contend that his indictment was constitutionally defective."). Ring held that Arizona's aggravating factors operate as "the functional equivalent of an element of a greater offense," but did not hold that such factors become actual elements in a new substantive offense. Ring, 536 U.S. at 609, 122 S.Ct. at 2443 (quoting Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. at 2365 n. 19) (emphasis added). Apprendi declared that the "substantive basis for ... [the] enhancement is thus not at issue; the adequacy of ... [the] procedure is." Apprendi, 530 U.S. at 475, 120 S.Ct. at 2354 (emphasis added); see also Cannon v. Mullin, 297 F.3d 989, 994 (10thCir.2002) ("that Apprendi announced a rule of criminal procedure forecloses ... argument that Ring announced a substantive rule."). Jones stated that "[t]he constitutional safeguards that figure in our analysis concern not the identity of the elements defining criminal liability but only the required procedures for finding the facts that determine the maximum permissible punishment...." 526 U.S. at 243 n. 6, 119 S.Ct. at 1224 n. 6 (emphasis added).[9] [¶ 59.] Second, although the State did not allege its statutory aggravating circumstances in the indictment, it gave Moeller advance formal notice of which statutory aggravators it was going to rely on in its written notice of intent to seek the death penalty. The notice was given on September 3, 1996, and the jury was sworn in on April 28, 1997, some eight months later. The Court in Jones; Apprendi, and Ring dealt with the indispensable role of the jury in deciding criminal cases.[10] These cases did not address *21 whether notice of an aggravating factor had to be conveyed to the defendant only by means of an indictment or information, as opposed to some other means. We are satisfied that the holdings in these three cases have not been transgressed here.[11] The notice of aggravating factors given to Moeller was sufficient. Other state courts have held likewise. See Terrell v. State, 276 Ga. 34, 572 S.E.2d 595 (2002) (state not under constitutional obligation to place statutory aggravators in the indictment); State v. Edwards, 810 A.2d 226 (R.I.2002) (same). The jury found beyond a reasonable doubt the existence of the statutory aggravators that were in the State's notice. That same jury sentenced Moeller to death. [¶ 60.] Third, it must be kept in mind that this is a state criminal case. In Hurtado v. California, 110 U.S. 516, 538, 4 S.Ct. 111, 122, 28 L.Ed. 232, 239 (1884), the Supreme Court held that the requirement of a grand jury indictment set forth in the Fifth Amendment to the Constitution of the United States was not applicable to the states. The Supreme Court has never overruled Hurtado. Thus, as acknowledged in both Apprendi and Ring, there is no federal requirement that a state felony prosecution, including a capital case, be commenced by an indictment issued by a grand jury. Under South Dakota's Constitution and statutes, an information signed by the prosecutor is an adequate method of bringing a criminal charge. We see no reason why a notice of aggravating factors is not similarly permissible, so long as a jury has the ultimate decision on whether those factors have been proved beyond a reasonable doubt. [¶ 61.] Insofar as Moeller had considerable advance notice of the aggravating factors to be considered in the sentencing phase of his case and the jury considered those factors and found them to exist beyond a reasonable doubt, Ring's holding, if applicable, has been followed here. Our analysis is bolstered by the Supreme Court's recent decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). There, the Court succinctly summed up its precedents, stating that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Id. at 2537 (citations omitted) (emphasis in original). The clear import of the language is that where a jury finds aggravating factors or where a defendant admits to aggravating *22 factors, a judge may use such factors to increase a defendant's sentence. The trial court here made no findings independent of the jury findings. We conclude that Moeller's constitutional rights as delineated in Jones; Apprendi, and Ring were not violated. [¶ 62.] Affirmed. [¶ 63.] GILBERTSON, Chief Justice and ZINTER, Justice, and WILBUR, Circuit Court Judge, and MILLER, Retired Justice, concur. [¶ 64.] WILBUR, Circuit Court Judge, sitting for SABERS, Justice, disqualified. [¶ 65.] MILLER, Retired Justice, sitting for MEIERHENRY, Justice, disqualified. NOTES [1] Gahnite is a rare mineral. According to Perry Rahn, Moeller's soil expert in his second trial, gahnite is less common than gold. At trial, Dr. Wehrenberg testified that he found gahnite in both the wheel well of Moeller's pickup and at the crime scene. [2] In Moeller II, this Court determined that the trial court "did not abuse its discretion in denying his motions for a continuance." 2000 SD 122, ¶ 24, 616 N.W.2d at 434. As an aside, we agree with the habeas court's observation that "if defense counsel were allowed to employ tactics which end in a questionable result and then urge the tactic as a significant error requiring a new trial, the mischief which would result would be limitless." [3] We review constitutional questions de novo. State v. Dillon, 2001 SD 97, ¶ 12, 632 N.W.2d 37, 43. [4] Dictum is the abbreviation for "obiter dictum," the plural being "obiter dicta." Dicta are pronouncements in an opinion unnecessary for a decision on the merits. As Chief Justice Marshall explained in Cohens v. Virginia, dictum should be avoided because, among other reasons, it is usually made through inadequate effort in its formulation. 19 U.S. (6 Wheat.) 264, 5 L.Ed. 257 (1821). See also Richard B. Cappalli, The American Common Law Method, 18-19 (Transnational Publishers 1997). [5] The Clothier opinion mistakenly cites SDCL 23A-27A-10, rather than the entire chapter 23A-27A, in this and the next sentence. [6] Of course, the case may not go to trial if the defendant has agreed to plead guilty to a lesser charge. [7] Moeller cites to Palmer v. Clarke, 293 F.Supp.2d 1011 (D.Neb.2003), as analogous. In Palmer, on habeas review the federal district court determined that the Nebraska Supreme Court's practice of limiting review to "cases in which the death penalty [had] been imposed ... violated [the defendant's] due process rights[.]" Id. at 1042-43. Our review is not limited to cases in which the death penalty was actually imposed; we review cases in which the death penalty might have been imposed. Thus, Moeller's cited precedent is distinguishable. [8] Federal courts have come down on both sides of the question. See e.g., United States v. Lentz, 225 FSupp2d 672, 675 (E.D.Va.2002) ("[T]he Supreme Court did not mandate that a fact that must be found to increase punishment beyond that authorized by the jury verdict constitutes an actual element of a new substantive crime. All Ring stands for is that any factual determination necessary to impose the death penalty must be found by a jury beyond a reasonable doubt"). "Defendants are correct that, in light of Ring v. Arizona, 536 U.S. 584, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the statutory aggravating factors `must ... be alleged in the indictment and found by a jury.'" United States v. Matthews, 246 FSupp2d 137, 142 (N.D.N.Y.2002) (quoting United States v. Quinones, 313 F.3d 49, 53 n. 1 (2dCir.2002)). See also United States v. Sampson, 245 F.Supp.2d 327 (D.Mass.2003). [9] This was Justice Scalia's understanding of the holding as well. See e.g., Ring, 536 U.S. at 612-13, 122 S.Ct. at 2445 (Scalia, J., concurring) ("What today's decision says is that the jury must find the existence of the fact that an aggravating factor existed. Those States that leave the ultimate life-or-death decision to the judge may continue to do so — by requiring a prior jury finding of [an] aggravating factor in the sentencing phase or, more simply, by placing the aggravating-factor determination (where it logically belongs anyway) in the guilt phase.") (emphasis added). [10] The Court noted that of the thirty-eight states that impose the death penalty, twenty-nine states, including South Dakota, "commit sentencing decisions to juries." Ring, 536 U.S. at 608 n. 6, 122 S.Ct. at 2442 n. 6. Certainly, there is no suggestion that the Ring Court believed its holding left South Dakota's death penalty scheme unconstitutional. [11] Moeller asks us to attribute some legal significance to the Eighth Circuit case of United States v. Allen, 357 F.3d 745 (8thCir.2004). The Allen court held that failure to allege mental culpability and aggravating factors in a capital defendant's indictment violates the Fifth Amendment indictment clause. Id. at 747-48. Moeller believes this decision supports his view that the information here should have included the aggravating factors used against him. We do not believe that the 8th Circuit's recent decision bears any significance here. As we point out above, in Ring, a state criminal case, the defendant did not contend that his indictment was constitutionally defective, and the Supreme Court did not hold that Ring's indictment was defective for failing to allege the aggravating factors in the indictment. See Ring, 536 U.S. at 597 n. 4, 122 S.Ct. at 2437 n. 4. Allen is a federal criminal case and the requirement of a grand jury indictment in the Fifth Amendment is not applicable to the states, as declared in the Hurtado decision cited above. Thus, there is no federal constitutional requirement that a state felony prosecution, including a capital case, be commenced by an indictment issued by a grand jury. A close reading of the Allen decision supports our analysis. The foundation of the decision in Allen rests entirely on the Fifth Amendment's mandate that all "capital or otherwise infamous crime" be brought solely by grand jury indictment. South Dakota has no such requirement. Thus, the foundation upon which the Allen Court based its opinion is not applicable here.

583 F.3d 1059 (2009) UNITED STATES of America, Plaintiff-Appellee, v. Saladean Walker SALEAN, also known as Michael Germane Walker, Defendant-Appellant. No. 08-3315. United States Court of Appeals, Eighth Circuit. Submitted: May 11, 2009. Filed: October 16, 2009. Manvir Kaur Atwal, AFPD, Minneapolis, MN, for appellant. Thomas More Hollenhorst, AUSA, Minneapolis, MN, for appellee. Before LOKEN, Chief Judge, BYE, Circuit Judge, and MILLER,[*] District Judge. LOKEN, Chief Judge. Saladean Walker Salean pleaded guilty to being a felon in possession of a firearm *1060 in violation of 18 U.S.C. § 922(g)(1). Applying the Armed Career Criminal Act, the district court[1] determined that Salean has three prior violent felony convictions and sentenced him to fifteen years in prison, the mandatory minimum sentence under 18 U.S.C. § 924(e)(1). Salean appeals, arguing that his 1995 Minnesota state court conviction for aiding and abetting assault in the fourth degree was not a violent felony within the meaning of § 924(e)(2)(B). Reviewing the district court's resolution of this issue de novo, we affirm. See United States v. Boaz, 558 F.3d 800, 806 (8th Cir.2009) (standard of review). The Armed Career Criminal Act 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." § 924(e)(2)(B). The conviction at issue resulted from a 1994 fight at the correctional facility in St. Cloud, Minnesota. Salean pleaded guilty to aiding and abetting fourth degree assault of a correctional officer. At that time, the Minnesota statute provided in relevant part: 609.2231. Assault in the fourth degree * * * * * Subd. 3. Correctional employees. Whoever assaults an employee of a correctional facility ... while the employee is engaged in the performance of a duty... and inflicts demonstrable bodily harm, is guilty of a felony and may be sentenced to imprisonment for not more than two years or to payment of a fine of not more than $4,000, or both. Minn.Stat. § 609.2231, subd. 3 (1994). Assault was defined in the Minnesota Criminal Code as "(1) An act done with intent to cause fear in another of immediate bodily harm or death; or (2) The intentional infliction or attempt to inflict bodily harm upon another." Minn.Stat. § 609.02 (1994). Salean concedes, as he must, that the conduct proscribed in Minn.Stat. § 609.2231, subd. 3 (1994), falls squarely within the first clause of § 924(e)(2)(B)(i), an offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another." The proper inquiry is "the conduct encompassed by the elements of the offense, in the ordinary case." James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). The Minnesota statute required proof, not only of an assault, but also that "demonstrable bodily harm" resulted. Unlike the third degree misdemeanor assault offense at issue in United States v. Howell, 531 F.3d 621, 624 (8th Cir.2008), the "ordinary case" violation of this statute involved the intentional use of physical force against another. See United States v. Smith, 171 F.3d 617, 621 (8th Cir.1999); accord United States v. Martinez, 962 F.2d 1161, 1168-69 (5th Cir. 1992); United States v. Bregnard, 951 F.2d 457, 460-61 (1st Cir.1991); United States v. O'Neal, 937 F.2d 1369, 1372 (9th Cir.1990).[2] *1061 Salean nonetheless argues that, while the elements of Minn.Stat. § 609.2231, subd. 3 (1994), describe a violent felony, the transcript of the 1995 hearing at which he entered an "Alford" guilty plea[3] demonstrates that he did not admit to using or attempting to use physical force against a correctional officer and therefore his conviction was not a violent felony. We disagree. In Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Supreme Court confirmed that the phrase "has as an element" in § 924(e)(2)(B)(i) means "that § 924(e) mandates a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions." Only when the statute in question proscribed "discrete, alternative sets of elements," one or more of which was not, generically, a violent felony, do we apply a modified categorical approach that reviews the charging document, jury instructions, plea agreement or plea hearing transcript, and comparable judicial records to determine whether the defendant was in fact convicted of a violent felony alternative. Boaz, 558 F.3d at 808; see Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor, 495 U.S. at 602, 110 S.Ct. 2143. See also Nijhawan v. Holder, ___ U.S. ___, 129 S.Ct. 2294, 2299, 174 L.Ed.2d 22 (2009), which applied Taylor's categorical approach to the term "aggravated felony" in 8 U.S.C. § 1227(a)(2)(A)(iii). In this case, Minn.Stat. § 609.2231, subd. 3 (1994), prohibited only one kind of behavior, an assault of a correctional officer engaged in the performance of his duties that inflicted demonstrable bodily harm. As that is a single crime, the elements of which fall within the definition of a violent felony in § 924(e)(2)(B)(i), all convictions for violating the statute are predicate violent felonies under the categorical approach mandated by Taylor and by later Supreme Court cases applying Taylor. In these circumstances, we simply may not consider judicial documents relating to Salean's specific conviction that might be pertinent were a modified categorical analysis required. We note that Section 6090.2231, subd. 3, was amended in 1997, after Salean's conviction, to proscribe two kinds of acts against a correctional employee — (1) an assault that inflicts demonstrable bodily harm, and (2) intentionally throwing bodily fluids or feces at the employee. As these are discrete, alternative ways to violate the statute, a modified categorical analysis might be required to determine whether a particular violation of the current statute was a violent felony under § 924(e)(2)(B). We need not consider that issue in this case. The judgment of the district court is affirmed. NOTES [*] The HONORABLE BRIAN STACY MILLER, United States District Judge for the Eastern District of Arkansas, sitting by designation. [1] The HONORABLE RICHARD H. KYLE, United States District Judge for the District of Minnesota. [2] For purposes of § 924(e)(2)(B)(i), it is irrelevant that Salean's 1995 conviction was for aiding and abetting fourth degree assault. See United States v. Groce, 999 F.2d 1189, 1191-92 (7th Cir.1993); accord United States v. Brown, 550 F.3d 724, 728 (8th Cir.2008) (aiding the commission of aggravated robbery is a crime of violence under U.S.S.G. § 4B1.2). Because modern criminal statutes abrogate the common law distinction between principals and aiders and abettors, the "generic sense" of statutes prohibiting crimes such as assault "covers . . . `aiders and abettors' as well as principals." Gonzales v. Duenas-Alvarez, 549 U.S. 183, 190, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). [3] See North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Because an Alford plea, like other guilty pleas, results in a conviction, Alford pleas are indistinguishable from other guilty pleas for purposes of § 924(e)(2)(B). See United States v. McCall, 507 F.3d 670, 675 n. 4 (8th Cir.2007), vacated and remanded on other grounds, 523 F.3d 902 (8th Cir.2008); accord United States v. Guerrero-Velasquez, 434 F.3d 1193, 1197 (9th Cir.2006); Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir.2004).

124 U.S. 400 (1888) WIDDICOMBE v. CHILDERS. Supreme Court of United States. Argued December 1, 1887. Decided January 23, 1888. ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI. *401 Mr. S.S. Burdett for plaintiff in error. Mr. James Hagerman for defendants in error submitted on his brief. MR. CHIEF JUSTICE WAITE delivered the opinion of the court. This was a suit brought by Albert C. Widdicombe to recover the possession of the S.E. ¼ sec. 36, T. 64, R. 6, Clarke County, Missouri. He claimed title under a patent of the United States bearing date December 15, 1871, issued upon a location of agricultural scrip on the 10th of May, 1871, under the act of July 2, 1862. 12, Stat. 503, c. 130. As an equitable defence to the action, such a defence being permissible by the laws of Missouri, the defendants alleged in substance that they claimed title under Edward Jenner Smith, who, on the 6th of July, 1836, went to the proper land office and made application for the purchase of the land in dispute; that his application was duly accepted, and he completed the purchase by the payment of the purchase money as required by law; that the entries made at the time by the proper officers in the plat and tract books kept in the office showed that he had bought and paid for the S.E. ¼, but that the register, in writing his application, described the S.W. ¼ by mistake; that he signed the application without discovering the error; that he immediately went into the possession of the S.E. ¼, as and for *402 the lands he had purchased, and he and those claiming under him have asserted title thereto, and paid taxes thereon ever since; that afterwards the entries on the plat and tract books were changed, without authority of law, so as to show that his purchase had been of the S.W. ¼ instead of the S.E. ¼; that Widdicombe located his scrip on the S.E. ¼ with full knowledge of all the facts, and that he now holds the legal title under his patent in trust for those claiming under Smith, whom the defendants represent in the suit. The prayer of the answer was that such trust might be established, and Widdicombe decreed to convey the legal title to those who had acquired Smith's rights. The trial court found the facts to be substantially as stated in the answer. The Supreme Court, on appeal, affirmed this finding, and rendered judgment in favor of the defendants, requiring Widdicombe to convey in accordance with the prayer of the answer. From that judgment this writ of error was brought. We entertain no doubt whatever as to the correctness of the findings of fact in the courts below. The evidence establishes beyond all question that Smith intended to buy, and the officers at the land office intended to sell the S.E. ¼. That tract was then unsold, while the S.W. ¼ had been purchased by Robert Wooden at private entry on the 8th of November, 1834, and this was shown by the records of the office. The written application, by mistake, described the wrong land and the certificates of the register and receiver followed the application; but the entries upon the records of the office were correct. The officers supposed they had sold, and Smith supposed he had paid for, the S.E. ¼. This was in 1836. For twenty-two years afterwards, certainly, and, as we are satisfied, for a much longer time, the plat and tract books showed that this quarter section was not subject to entry or sale. At some time, but exactly when or by whom does not distinctly appear, the entry of Smith was changed from the S.E. ¼ to the S.W. ¼, thus showing two entries of the S.W. ¼ — one by Wooden in 1834, and the other by Smith in 1836. The fact of the change, as well as what it was, appeared on the face of *403 the records, and no one could have been misled by it unless he wilfully shut his eyes to what was before him. Widdicombe was sworn as a witness in his own behalf, and the following is the whole of his testimony: "I am plaintiff in this cause. I applied for and entered the land in controversy at the Boonville land office, as shown by my application in evidence, in the early part of 1871. Never was in Clarke County, Mo., or the northeastern part of the State prior to June, 1874. Never saw the Hampton map of Clarke County, referred to in evidence, prior to that time. Never saw any records, other than the government or United States records, having reference to the land in controversy prior to that time. I had heard of no person claiming the land in controversy prior to the time I went to Clarke County, in 1874. The defendant, Childers, was cutting timber upon the land when I went there, in June, 1874, and was cutting about the middle of the tract; so he informed me. "Cross-examined by defendants: "I discovered the southeast quarter 36, 64, 6 W., was vacant while employed in making an examination of the records to purchase for a party in Scotland County an 80-acre tract, where there were three applicants at the same time for the same piece of land, one of whom was the sheriff of Scotland County. There had been a correction, alteration, or erasure, call it as you please, on the plat and tract books in the register's office, in section 36, township 64, range 6 west, and I saw it before I made the entry. [On] The plat book, whereon the numbers of entries are posted, in section 36, and on the southeast quarter of said section, there is a perceptible erasure. On the tract book the letter `W,' in the Smith entry, appears to have been made with a heavy stroke of the pen, and has a much heavier and darker appearance than the letter `S' preceding it, and has the appearance of having been changed from some other letter, and the letter `E' is the only letter over which the letter `W' could have been written so as to have formed a correct description of any other entry, either in that or any other section, or in the description of lands similarly situated." The evidence shows clearly and distinctly that Widdicombe *404 had been for many years familiar with the books of the office and their contents, as well as with the way in which the business was done there. He must have known that the original entry by Smith was of the S.E. ¼, and that it could not be changed to the S.W. ¼ without putting the entry on a quarter section that had already been bought and paid for. Under these circumstances the conclusion is irresistible that he is legally chargeable with notice of Smith's prior entry and of the rights which had been acquired under it. Such being the case the judgment below was clearly right. There cannot be a doubt but that if the mistake in the written application and in the certificates of the register and receiver had been discovered before the patent was issued to Widdicombe, it would have been corrected in the land office upon proper application in that behalf. The error was one which arose from the mistake of the register, one of the officers of the local land office, and comes directly within the provisions of § 2369 of the Revised Statutes, which is a reenactment of the act of March 3, 1819, 3 Stat. 526, c. 98, and in force from the time of the entry by Smith until now. The act of 1819 was extended by the act of May 24, 1828, 4 Stat. 301, c. 96, to cases where patents had been or should be issued. This extension is now embraced in § 2370 of the Revised Statutes. Another statute, passed May 24, 1824, 4 Stat. 31, c. 138, now § 2372 of the Revised Statutes, authorizes similar relief. The mistake in this case does not appear to have been discovered by Smith, or those claiming under him, until after Widdicombe had got his patent, and after they had been in the undisputed enjoyment for thirty-five years and more of what they supposed was their own property under a completed purchase, with the price fully paid. Widdicombe, being a purchaser with full knowledge of their rights, was in law a purchaser in bad faith, and, as their equities were superior to his, they were enforceable against him, even though he had secured a patent vesting the legal title in himself. Under such circumstances, a court of chancery can charge him as trustee and compel a conveyance which shall convert the superior equity into a paramount legal title. The cases to this effect *405 are many and uniform. The holder of a legal title in bad faith must always yield to a superior equity. As against the United States his title may be good, but not as against one who had acquired a prior right from the United States in force when his purchase was made under which his patent issued. The patent vested him with the legal title, but it did not determine the equitable relations between him and third persons. Townsend v. Greeley, 5 Wall. 326, 335; Silver v. Ladd, 7 Wall. 219, 228; Meader v. Norton, 11 Wall. 442, 458; Johnson v. Towsley, 13 Wall. 72, 87; Carpentier v. Montgomery, 13 Wall. 480, 496; Shepley v. Cowan, 91 U.S. 330, 340; Moore v. Robbins, 96 U.S. 530, 535; Worth v. Branson, 98 U.S. 118, 121; Marquez v. Frisbie, 101 U.S. 473, 475. The judgment is affirmed.

661 F.2d 918 Brooksv.City of Richmond 81-6037 UNITED STATES COURT OF APPEALS Fourth Circuit 7/8/81 1 E.D.Va. DISMISSED

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT SEPT 15, 2006 No. 06-10619 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ D. C. Docket No. 05-00005-CR-FTM-33-SPC-0 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LUIS HATUEY PENALVER, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida _________________________ (September 15, 2006) Before BLACK, MARCUS and WILSON, Circuit Judges. PER CURIAM:  Luis Hatuey Penalver appeals his 135-month sentence, imposed after he pled guilty to conspiracy to possess with intent to distribute more than 1000 marijuana plants, 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(vii), and possession with intent to distribute more than 1000 marijuana plants, 21 U.S.C. § 841(a)(1), (b)(1)(A)(vii). On appeal, Penalver argues that the district court erred in applying a four-level aggravating-role enhancement, pursuant to U.S.S.G. § 3B1.1(a), because he was not an organizer or leader of the conspiracy. The parties are familiar with the background facts, and we do not recount them here. “A district court’s upward adjustment of a defendant’s Guidelines offense level due to his status as a leader or organizer under U.S.S.G. § 3B1.1 is a finding of fact reviewed only for clear error.” United States v. Phillips, 287 F.3d 1053, 1055 (11th Cir. 2002). “The government bears the burden of proving by a preponderance of the evidence that the defendant had an aggravating role in the offense.” United States v. Yeager, 331 F.3d 1216, 1226 (11th Cir. 2003). Under the Guidelines, a four-level increase is applied to the defendant’s offense level if he or she “was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). In making the aggravating-role determination, the district court should consider several factors, including “the exercise of decision making authority, the 2 nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.” U.S.S.G. § 3B1.1 cmt. n.4. “There can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy.” Id. An enhancement under § 3B1.1 “requires the exercise of some authority in the organization, the exertion of some degree of control, influence, or leadership.” United States v. Yates, 990 F.2d 1179, 1182 (11th Cir. 1993). After carefully reviewing the record, the sentencing transcript, and the parties’ briefs, we conclude the district court had ample evidence to support its finding that Penalver was an organizer or leader of a criminal activity involving five or more participants. We accordingly hold the district court did not clearly err in applying a four-level aggravating-role enhancement, pursuant to § 3B1.1(a), and we affirm Penalver’s 135-month sentence. AFFIRMED. 3 

131 F.Supp.2d 1003 (2001) UNITED PHOSPHORUS, LTD., an Indian corporation; Shroff's United Chemicals, Ltd., an Indian corporation; and J.C. Miller & Associates, Inc., an Illinois corporation, Plaintiffs, v. ANGUS CHEMICAL COMPANY, a Delaware corporation; Angus Chemie GmbH, a German corporation; the Estate of Freeman Hughes through its representative Yvonne Hughes; Ollie W. Chandler; Lowell Pals; Gary W. Granzow; D.B. Gupta; and Lupin Laboratories, Ltd., an Indian corporation, Defendants. No. 94 C 2078. United States District Court, N.D. Illinois, Eastern Division. February 16, 2001. *1004 *1005 *1006 Peter Michael katsaros, Baum, Sigman, Auerbach, Pierson, Neumann & Katsaros, Ltd., Frederick Scott Rhine, Terence J. Moran, James Eric Vander Arend, Gessler, Hughes & Socol, Ltd., Chicago, IL, for United Phosphorus, Ltd., Shroff's United Chemicals, Ltd. and J.C. Miller & Associates, Inc. T. Mark McLaughlin, Andrew Stanley Marovitz, Kaspar J. Stoffelmayr, Mayer, Brown & Platt, Stephen Novack, Patrick A. Fleming, Jennifer Lyn Friedes, Novack & Macey, Chicago, IL, for Angus Chemical Company, Angus Chemie GMBH, Freeman Hughes, Ollie W. Chandler, Lowell Pals and Gary W. Granzow. Barrie Laine Brejcha, David G. Wix, Matthew G. Allison, Baker & McKenzie, Chicago, IL, for D.B. Gupta and Lupin Laboratories, Ltd. MEMORANDUM OPINION AND ORDER LEVIN, United States Magistrate Judge. Before the court are Defendants' motion(s) to dismiss for lack of subject matter jurisdiction (pursuant to Fed.R.Civ. P.12(b)(1)) as to Counts I and II of the second amended complaint. INTRODUCTION Plaintiffs are (a) an Indian chemical manufacturer called United Phosphorus, Ltd. ("UPL"), (b) an Indian company entitled Shroff's United Chemicals Ltd. ("SUCL") (Shroff Dep. 25), ("the Indian Plaintiffs") and (c) an American firm, J.C. Miller & Associates ("JCM"), which once had an interest in a joint venture that wanted to sell technology to the Indian Plaintiffs. Defendants are (a) Angus Chemical Corporation and its corporate officers, Freeman Hughes, Ollie Chandler, Lowell Pals, Gary W. Granzow (collectively "Angus"), (b) Angus Chemie GmbH ("Chemie"), and (c) Lupin Laboratories, Ltd. and its officer and owner D.B. Gupta (collectively "Lupin"). Counts I and II of the second amended complaint, essentially, allege that Defendants attempted to monopolize, monopolized and conspired to monopolize the market for certain chemicals in violation of § 2 of the Sherman Antitrust Act. 15 U.S.C. § 2. Defendants threshold argument is that the court lacks subject matter jurisdiction under the Foreign Trade Antitrust Improvements Act ("FTAIA"), which limits application of the Sherman Act to conduct with a "direct, substantial, and reasonably foreseeable effect" on domestic commerce. 15 U.S.C. § 6a. *1007 BACKGROUND FACTS The following was expressed by the District Court in ruling on a motion under the original complaint herein: India currently has the greatest incidence of tuberculosis in the world. The primary pharmaceutical drug used in India to cure this potentially fatal illness is Ethambutol. Two chemicals, 2-Amino-1 Butanol ("AB"), the key ingredient of Ethambutol, and 1-Nitro-Propane ("1-NP"), the raw material used to make AB, are the subjects of this litigation. To make Ethambutol, Indian chemical laboratories, including Defendant Lupin, use AB, which they buy from Defendant Chemie, currently the world's only manufacturer of AB. Chemie, a German subsidiary wholly owned by Defendant Angus, uses 1-NP as raw material to manufacture AB at its plant in Germany. Angus, a Delaware Corporation in the business of manufacturing and selling chemical products, makes 1-NP at a plant in Sterlington, Louisiana, and is presently the world's only manufacturer of 1-NP. Mem. Op. & Order, 1994 WL 577246, *1 (N.D.Ill. Oct. 18, 1994). The lawsuit in this case stems from prior trade secret litigation between several of the parties. In the early 1990's, the Indian Plaintiffs began to consider manufacturing AB. The Indian Plaintiffs planned to acquire the technology for making AB, and its raw material 1-NP, from Dr. John Miller (owner of JCM) who also was the former Vice President of Research and Development for Angus (makers of AB and 1-NP). While at Angus, Miller supervised Angus's propriety efforts to improve its AB processes and had ongoing access to the manufacturing process details for Angus's products. Defendants position was as follows: While Rajju Shroff (the principal of Indian Plaintiffs) worked to acquire AB technology from Dr. Miller, he concealed Miller's identity and background from his own government by filing an official application to the Indian government falsely declaring that the technology for the AB process would be acquired from a different scientist, Dr. Phillip Adams. Adams Dep. 99-101, 133. Shroff, assertedly, withheld Miller's involvement in the project stating that Angus didn't "know that we [Shroff and Miller] are in touch." They still think it is Dr. Phil Adams. Letter from Shroff to Miller (July 30, 1991) (DX 41). Avowedly, as soon as Angus learned that Shroff would be obtaining AB technology from Miller, Angus filed suit in the Circuit Court of Cook County ("the Cook County Action") to enjoin Miller from misappropriating its trade secrets. Two years later, when Angus was faced with a discovery ruling that would have required it to disclose the very details of the technology it sued to protect, Angus voluntarily dismissed its own suit. The following year, in 1994, Plaintiffs initiated this action challenging Angus's pursuit of the Cook County Action. The Indian Plaintiffs allege that, but for Angus's initiation of the Cook County Action, Plaintiffs would have sold AB as well as other chemicals for profit. Moreover, JCM claims that it would have sold technology to the Indian Plaintiffs and others. Thus, in the second amended complaint, the Indian Plaintiffs alleged, inter alia, that they intended to manufacture AB, 1-NP and certain other specified chemicals and that Defendants used various anticompetitive means to thwart Plaintiffs' plans. RELEVANT STATUTE The FTAIA, states: Sections 1 to 7 of this title (Sherman Act) shall not apply to conduct involving trade or commerce (other than import trade or import commerce) with foreign nations unless — (1) such conduct has a direct, substantial, and reasonably foreseeable effect — *1008 (A) on trade or commerce which is not trade or commerce with foreign nations, or on import trade or import commerce with foreign nations; or (B) on export trade or export commerce with foreign nations, of a person engaged in such trade or commerce in the United States; and (2) such effect gives rise to a claim under the provisions of sections 1 to 7 of this title, other than this section. If sections 1 to 7 of this title apply to such conduct only because of the operation of paragraph (1)(B), then sections 1 to 7 of this title shall apply to such conduct only for injury to export business in the United States. 15 U.S.C. § 6a (1982). ANALYSIS Defendants move to dismiss Plaintiffs' second amended complaint for lack of subject matter jurisdiction.[1] I. SUBJECT MATTER JURISDICTION A. DIRECT, SUBSTANTIAL, AND REASONABLY FORESEEABLE EFFECT ON DOMESTIC COMMERCE. Defendants threshold argument is that the court lacks subject matter jurisdiction because Plaintiffs have failed to demonstrate that Defendants' alleged antitrust conduct has a "direct, substantial, and reasonably foreseeable effect" on United States commerce as required by the FTAIA. Section 1 of the Sherman Act prohibits conspiracy "in restraint of trade or commerce among the several States, or with foreign nations." 15 U.S.C. § 1. Section 2 of the Sherman Act prohibits monopolization and attempted monopolization "of the trade or commerce among the several States, or with foreign nations." 15 U.S.C. § 2. Section 6a, supra, which was added to the Sherman Act in 1982, sets forth the criteria for determining United States antitrust jurisdiction over international business transactions. 15 U.S.C. § 6a. In 1982, Congress enacted the FTAIA as an amendment to the Sherman Act to clarify the extraterritorial reach of the federal antitrust laws. O.N.E. Shipping, Ltd. v. Flota Mercante Grancolombiana, S.A., 830 F.2d 449, 451 (2d Cir.1987); Roger P. Alford, "The Extraterritorial Application of Antitrust Laws: A Postscript on Hartford Fire Insurance Co. v. California," 34 Va.J.Int'l L. 213, 216 (1993). The purposes of the FTAIA, as set forth in its legislative history, are to "encourage the business community to engage in efficiency producing joint conduct in the export of American goods and services" and to amend the Sherman Act to create a unitary statutory test to determine whether American antitrust jurisdiction exists over certain international transactions. H.R.Rep. No. 686, 97th Cong., 2d Sess., reprinted in 1982 U.S.Code Cong. & Ad. News 2487. Congress enacted the FTAIA because it believed that American jurisdiction over international commerce should be limited to transactions that affect the American economy. Hartford Fire Ins. v. California, 509 U.S. 764, 796, n. 23, 113 S.Ct. 2891, 125 L.Ed.2d 612 (citing H.R.Rep. No. 686, 97th Cong., 2d Sess., reprinted in 1982 U.S.Code Cong. & Ad. News 2487); Phillip Areeda & Herbert Hovenkamp, Antitrust Law, ¶ 236'a (Supp.1992). Congress believed that "the concern of the antitrust laws is protection of American consumers and American exporters, not *1009 foreign consumers or producers." Phillip Areeda & Herbert Hovenkamp, Antitrust Law, ¶ 272h2 (1997) (emphasis in original). With this in mind, Congress amended the Sherman Act by passing the FTAIA so that jurisdiction over foreign commercial conduct would not be exercised unless such conduct had a "direct, substantial, and reasonably foreseeable effect" on United States commerce. Moreover, Congress intended that the antitrust laws would not be "triggered ... by any minor impact," but only by "direct, substantial, and reasonably foreseeable" effects on United States commerce. Phillip Areeda & Herbert Hovenkamp, Antitrust Law ¶ 272h2 (1997). Under the FTAIA, the proscriptions of the Sherman Act apply to trade or commerce with foreign nations, other than import transactions, only when the conduct providing the basis for the claim has a direct, substantial and reasonably foreseeable anticompetitive effect on United States domestic commerce. The amendment was clearly intended to exempt from United States antitrust law conduct that lacks the requisite domestic effect, "even where the anti-trust conduct originates in the United States or involves American-owned entities operating abroad." Optimum, S.A. v. Legent Corp., 926 F.Supp. 530, 532 (W.D.Pa.1996). The FTAIA does not, however, preclude all persons or entities injured abroad from recovering under United States antitrust laws. When the activity complained of has a demonstrable effect on United States domestic commerce, foreign corporations injured abroad may seek recovery under the Sherman Act. As the House Report states, the FTAIA "preserves antitrust protections in the domestic marketplace for all purchasers, regardless of nationality or the situs of the business..." H.R.Rep. No. 686, 97th Cong., 2d Sess., reprinted in 1982 U.S.Code Cong. & Ad. News 2487. The effect on domestic commerce required by the FTAIA must be sufficient to "give[] rise to a claim" under the Sherman Act. 15 U.S.C. § 6a(2). A plaintiff's showing of domestic effects must include a demonstration of "antitrust injury to the market or to competition in general, not merely injury to individuals or individual firms." McGlinchy v. Shell Chem. Co., 845 F.2d 802, 815 (9th Cir.1988); see, e.g., Blackburn v. Sweeney, 53 F.3d 825, 830 (7th Cir.1995) (antitrust claim requires injury due to "effects ... on competition"); Dial A Car, Inc. v. Transportation, Inc., 82 F.3d 484, 486 (D.C.Cir.1996) (antitrust claim requires "anticompetitive impact on the market as a whole"). Moreover, conduct on American soil is not always sufficient to prove effect on domestic commerce because it is the situs of the effect, not the conduct, which is crucial. Liamuiga Tours, Div. Of Caribbean Tourism Consultants, Ltd. v. Travel Impressions, Ltd., 617 F.Supp. 920, 924 (E.D.N.Y.1985). As discussed hereinafter, the court finds that the alleged conduct underlying Plaintiffs' claims can have had no effect on any United States commerce in the chemicals that Plaintiffs state they would have manufactured. Discovery has revealed that there is only one chemical as to which Plaintiffs took even preliminary steps — AB, which Plaintiffs did not intend to sell in the United States. Plaintiffs may have considered making 1-NP, but only for their own use in manufacturing AB. As for the other chemicals named in the second amended complaint, the record shows, at most, that Plaintiffs had a conclusory intent to think about making them at some point in the future. Respectfully, conjecture alone, however, cannot establish the necessary domestic effect under the FTAIA, as a matter of law. McElderry v. Cathay Pacific Airways, Ltd., 678 F.Supp. 1071, 1078 (S.D.N.Y.1988) (FTAIA requires more than "speculative" domestic effects). Plaintiffs' "failure to establish any anticompetitive domestic effect [is] jurisdictional," implicitly fails to meet the requisite "direct, substantial, and reasonably foreseeable effect" test and requires dismissal of their antitrust claims. Gushi *1010 Bros. Co. v. Bank of Guam, 28 F.3d 1535, 1544 (9th Cir.1994). B. A SHOWING OF THE REQUISITE EFFECT ON DOMESTIC AB SALES HAS NOT BEEN MADE. In late 1990 and early 1991 Plaintiffs decided to manufacture AB in Vapi, India.2d Am. Cmplt. ¶ 55. Plaintiffs planned to manufacture AB by using technology developed through a joint venture called Miller-Deltachem, in which JCM was one of the principals. Id. ¶¶ 57, 59. Plaintiffs first allege that Defendants used various anticompetitive means to interfere with Plaintiffs' AB plans, including making threats against Plaintiffs' potential AB customers and initiating a "sham" state court lawsuit (the Cook County action) in 1991 to prevent JCM's principal, Miller, (Angus's former Vice President for Research and Development) from divulging Angus's trade secrets. 2d Am. Cmplt. ¶¶ 85-89, 97(b)-(e). Defendants maintain, however, that even if Plaintiffs' allegations of misconduct have merit, the evidence demonstrates that there could have been no effect on domestic commerce. 1. Plaintiffs Would Not Have Sold AB In The United States. Plaintiffs threshold argument is that they would have sold AB in the United States if the Defendants had not intentionally interfered with their efforts to manufacture AB. Defendants, however, argue that Plaintiffs never intended to sell AB in the United States and that Plaintiffs, even if they had wanted to, could not have made any AB sales in the United States. Defendants further assert that even if their alleged scheme to prevent the Plaintiffs from manufacturing AB had been successful, it could have had no effect on domestic commerce, must less the required "direct, substantial, and reasonably foreseeable effect" sufficient to give rise to a cause of action under the Sherman Act. They assert that the FTAIA requires dismissal of Plaintiffs' claims. a. Plaintiffs Did Not Have An Intent (Or Ability) To Sell AB In The United States. The evidence in this case indicates that Shroff began to develop plans to manufacture AB after Phillip Adams (Shroff's consultant) told him that it was a "good project for India." Shroff Dep. 35-36. Moreover, Anant Thakore, a past president of the Indian Drug Manufacturer Association, who has been involved in the Indian AB business since the early 1970s and who is considered to be "the best authority in India" on the subject, testified that Indian buyers purchase 90-95% of the world's AB supply. Thakore Dep. 38, 285-86, 328, 390; see also id. at 63 ("potential customers [for AB] were anyone who makes ethambutol in India"). The record demonstrates that Miller learned about Shroff's companies at a meeting with Adams and one of Shroff's chemical brokers, Eugene Klim. At the meeting, Miller told Adams and Klim that he "was interested in talking with [UPL] because he had business that would be very good in India," and that "he had a process for making [AB] whose market is in India." Klim Aff. ¶ 9 (DX 140); Klim Dep. 45-47. Moreover, Adams told Miller that he would pass on Miller's card to Shroff because "Miller said that the market was in India" and "we had no need for [AB] in this country." Adams Dep. 83; see also id. at 81-82 (Miller said that "the AB product would be used in India.") Klim himself had "no interest" in AB because, as he swore in an affidavit submitted in the Cook County action, "the market for it is in India with no U.S. business." Klim Aff. ¶ 11 (DX 140); see also Klim Dep. 54, 56-57. The day after the meeting with Miller, Klim alerted Shroff to an opportunity to license a "proven process" to manufacture a product for which there is "an ongoing requirement in India for 1.5 million lbs." *1011 Letter from E. Klim to R. Shroff (Feb. 8, 1991) (DX 2); see Klim Dep. 71-72; Shroff Dep. 40-42. That product turned out to be AB and the source of the technology was Miller-Deltachem. Shroff Dep. 42; 2d Am. Cmplt. ¶ 59. Klim's report to Shroff on the Indian demand for AB was based on Miller's estimate of "the value of this whole thing." Klim Dep. 72. A subsequent letter to Shroff, which Miller drafted for Klim, stated that the demand for AB was "1.5 million lbs used in India" and [a]nother potential "1.5 million lbs in China," and that "this product would be used exclusively in Asia (especially India)." Letter from E. Klim to R. Shroff (Feb. 21, 1991) (DX 4); see Facsimile from J. Miller to E. Klim (undated) (DX 143); Miller Dep. 144; Klim Dep. 82; Shroff Dep. 52, 55. The Miller/Klim letter makes no mention of any possible use for AB in the United States. Two months later, Shroff advised Miller that "there is [a] reasonably good market in India based upon his company's evaluation of "[p]ublished import figures" from the Indian government." Letter from R. Shroff to J. Miller (Apr. 18, 1991) (DX 6); Shroff Dep. 64, 67. Miller responded with a letter describing the "market for AB in India" and projecting annual sales and gross profits for UPL based on the assumption "that UPL pursues only the India AB potential" and not also "the Chinese AB market." Letter from J. Miller to R. Shroff (Apr. 22, 1991) (DX 7); see Shroff Dep. 71-72. Neither letter mentions any possibility of selling AB in the United States. Shroff's plans for the size of his AB plant confirm that Plaintiffs' production and sale of AB was to be limited to India. The Indian Plaintiffs' Application for Foreign Collaboration submitted to the Indian government estimated the Indian Plaintiffs' annual production of AB in metric tons per year, assuming that the plant would not reach "full capacity" until its third year of operation. Application at 4 (DX 8); see Shroff Dep. 78, 132-33. "Full capacity" for Shroff meant 1000 metric tons of AB per year, which was precisely his estimate of the annual demand for AB in India: Q: So your estimate was you planned to build a plant with an annual capacity of 1,000 metric tons of AB based upon your assessment that the demand in India for AB was approximately that? A: Yeah. Shroff Dep. 134. The fact that Plaintiffs' AB plans were limited to non-United States markets is further demonstrated by Plaintiffs' intent to sell AB for use only in manufacturing ethambutol, which is not made in the United States.[2] Moreover, Shroff knows of no "other uses for AB except for the manufacture of ethambutol." Shroff Dep 147; see also id. at 773 ("AB that United Phosphorus might undertake to make would be used for the production of Ethambutol"). Miller also denied any knowledge that "Shroff or his companies planned to do anything with AB other than to sell it to ethambutol makers." Miller Dep. 405. Moreover, Plaintiffs' litigation consultant Peter Kizuik, who was formerly sales manager for nitroparaffins at Angus's competitor, W.R. Grace, knows of no application for AB other than the production of ethambutol. Kizuik Dep. 49, 51, 104. The record further demonstrates that Plaintiffs would not have sold AB to the Italian facility of American Cyanamid or its subsidiary Lederle. Angus DC Br. 12, 14-16. During the period covered by Plaintiffs' lawsuit, the Lederle division of the American Home Products (formerly a division of American Cyanamid), was the only company in the world, that had FDA approval to sell ethambutol domestically. Lederle imported ethambutol into the United States from Italy, where it made *1012 ethambutol using an AB intermediate that it buys in India. Id. ¶ 7; see also Gupta Dep. 122-24; 430-31; 432-33; Leffler Dep. 492 (aside from Lederle, "[n]obody else sells" ethambutol in the United States). The record shows that the very small amount of AB that was sold in this country during the relevant time period was used solely as an ingredient in a product for making rocket motors which was unrelated to ethambutol (the only use of AB for which Plaintiffs were aware). Plaintiffs allegation that they would have sold AB to American "laboratory supply houses" (Pls. DC Br. 11 n. 2, 12, 14-15) and that "there was every reason to think that" Miller eventually would have told Shroff about supply houses is not supported by the record. Pls. DC Br 12 n. 5. The record demonstrates that Shroff had no plans to sell AB to supply houses, did not know about this outlet for AB sales, and had no interest in it. Clearly Plaintiffs had no intention of selling AB to American supply houses because neither Miller nor Shroff ever had any discussions with a single American supply house. Miller Dep. 413; Shroff Dep. 144-45, 161-62. Rather, as of the documents and testimony reveal, Plaintiffs intended to sell AB to ethambutol makers abroad. The record in the case reveals only that Miller's former partner Burkholder "may have" talked to supply houses about AB (see Pl.'s DC Br. 27). Miller testified that Burkholder "may have mention [AB] ... [I]t's certainly a possibility. I don't know." Miller Dep. 543-44. The record further demonstrates that if Plaintiffs could have sold to supply houses, such sales would not amount to any kind of "substantial effect" on domestic commerce. Plaintiffs' catalogues indicate that supply houses sell AB in tiny volumes — offering AB in 1-gram to 500-gram quantities as effective prices ranging from $142 to $18,600 per kilogram. See Pls. Exs. A, B. In comparison, Angus sold AB to 3M in 1994 for $15.76 per kilogram. (DX 296) The record clearly indicates that AB is not purchased in significant quantities from supply houses. This court finds that based on the record that Plaintiffs had no actual plans to sell AB in this country and that there would have been no significant AB sales opportunities for Plaintiffs in this country even if they had tried to sell AB here. For instance, Miller testified that he "had no conversation with any potential customers for AB in the United States." Miller Dep. 413. Moreover, Shroff testified that he and his "marketing man" spoke with ten to twelve potential AB customers, all of which were located in India. Shroff Dep. 144-45, 161-62. Plaintiffs have put forth no evidence tending to show that, but for the claimed antitrust violations, they would have sold AB domestically. It is clear that Plaintiffs cannot carry their burden of showing a "direct, substantial, and reasonably foreseeable effect" on domestic commerce under the FTAIA As Plaintiffs' own liability expert agreed, "any effect upon United States commerce, based on what [he has] seen with respect to AB sales" would be "less than substantial." Leffler Dep. 475-76. b. The Only Domestic AB Buyer Would Not Have Purchased AB From Plaintiffs. While Plaintiffs assert that they would have sold AB in the United States, Defendants argue that they would have found no buyers. The evidence indicates that during the time period covered by Plaintiffs' claims, 3M was the only customer in the United States that purchased AB. AB Customer Sales 1992-1994 (Ex. A); Littel Aff. ¶¶ 5-7 (Ex. L). Plaintiffs' expert acknowledged that "the only AB that's sold in the United States is to 3M." Leffler Dep. 443; see also Angus Off-Schedule Price Authorization (eff. Jan. 1, 1994) (DX 296) (all AB other than AB sold to 3M "is sold outside the United States"). *1013 Dr. Anthony Manzara, Division Scientist at 3M, testified that 3M purchases "very small amounts" of AB which is used by others in the manufacture of rocket motors. Manzara Dep. 25-26, 29. Between 1992 and 1994, 3M purchased less than 0.4% of the world's AB production manufactured for sale, with 1994 sales to 3M totaling under $25,000 (representing 0.16% of all sales and 0.14% of total volume.) AB Customer Sales 1992-1994 (Ex. A); Littel Aff. ¶ 5 (Ex L). Dr. Leffler characterized Angus's AB sales "in the United States [as] trivial." Leffler Dep. 467. The record indicates that this small amount of AB business would not have been available to Angus's competitors. For example, 3M has never conducted any formal bidding for its AB purchases and it has never solicited offers from other AB suppliers, even when W.R. Grace, a well-know Angus competitor, offered AB for sale. Manzara Dep. 31, 45. Dr. Manzara explained that 3M purchases Angus's AB because of its "quality, purity and general reliability," that 3M is contractually bound to give its customers six-months notice of any change in its AB supplier, and that changing 3M's AB supplier entailed a risk of producing an inferior product, which could "jeopardize 3M's AB supplier relationship" with its customers. Id. at 32-35, 44-45. As a result, 3M's AB purchases are "too small — and the risk and effort required to switch ... are too great — for 3M to change its AB supplier, as long as Angus supplies good quality product on a timely delivery schedule without unreasonable price increases." Id. at 46. Dr. Manzara testified that the risks and costs of changing AB supplier's "would overwhelm any possible savings." Id. at 46. He further stated that even if Angus "had doubled the price" of its AB, "it probably would not have been a major concern" to 3M. Id. at 114. Furthermore, even if a new supplier (like Plaintiffs) offered to cut Angus' AB prices in half, 3M "probably wouldn't be interested." Id. at 139. This court finds that 3M would not have purchased AB from Plaintiffs and consequently, there would be no applicable "direct, substantial and reasonably foreseeable effect" on domestic commerce. c. Plaintiffs Cannot Bootstrap By Claiming Effects On Domestic Ethambutol Sales. Defendants assert that Plaintiffs cannot claim domestic injury by supposing that their exclusion from the Indian AB business had an effect on domestic sales of ethambutol. Any alleged effect would not result in an injury to Plaintiffs because they have not claimed that they either (1) intended to make ethambutol, or (2) were prevented from making a single ethambutol sale. Moreover, during the relevant time period, Lederle had the required FDA authorization to provide ethambutol to domestic consumers. The record indicates that there is no factual basis by which Plaintiffs can claim that there is a link between alleged misconduct in claimed foreign AB markets and the supply or price of Lederle's ethambutol in the United States. Plaintiffs' expert Dr. Leffler has no opinion about whether domestic ethambutol sales are themselves "substantial," and he has conducted no analysis of how changes in overseas AB prices affect the price of ethambutol that Lederle sells here. Leffler Dep. 492-93, 495. Moreover, based on the record, there is no reason to suppose that Lederle, the only domestic ethambutol supplier, would have purchased AB from a new supplier like Plaintiffs. As Dr. Leffler noted, Lederle could lose its FDA approval by changing AB suppliers. Id. at 47. Furthermore, both Shroff and Miller testified that they never spoke to anyone at Lederle or American Cyanamid about the possibility of selling AB to Lederle. Shroff Dep. 163; Miller Dep. 405. Since the early 1990's, Lederle has satisfied its needs by purchasing an intermediate, D2AB, that its supplier Lupin Laboratories *1014 makes in India with AB from Angus. See Gupta Dep. 430-31. The FTAIA explicitly bars antitrust actions alleging restraints in foreign markets for inputs (such as AB) that are used abroad to manufacture downstream products (like ethambutol) that may later be imported into the United States. Clearly, the domestic effects in such a case, if any, would obviously not be "direct," much less "substantial" and "reasonably foreseeable." Papst Motoren GmbH v. Kanematsu-Goshu, Inc., 629 F.Supp. 864, 869 (S.D.N.Y. 1986) ("Papst's alleged restraint on STC in Japan cannot be said to have an anticompetitive effect upon United States commerce based upon [the] later sale of STC manufactured motors in the United States, since jurisdiction over Sherman Act claims `is not supported by every conceivable repercussion of the action objected to on United States commerce.'"); see also Phillip Areeda & Herbert Hovenkamp, Antitrust Law ¶ 364a (rev. ed.1995) ("radiating injuries through the economy are far beyond the ability or willingness of antitrust courts to trace and measure"). In Eurim-Pharm, the court rejected an attempt to establish jurisdiction by claiming that restraints abroad "had a spillover effect on domestic commerce" and noted that "[t]his is precisely the type of case Congress sought to eliminate from United States antitrust jurisdiction." EurimPharm GmbH v. Pfizer, Inc., 593 F.Supp. 1102, 1106-07 (S.D.N.Y.1984). When the court denied Plaintiffs' motion to compel discovery regarding the Lupin Defendants' sales to ethambutol manufacturers, it recognized that claimed effects on a domestic ethambutol market are insufficient to establish subject matter jurisdiction in a case alleging misconduct in overseas markets for products used to manufacture ethambutol. Tr. 40. (Nov. 30, 1999) (Ex. D) ("there is not subject matter jurisdiction, because it winds up with an end product that is different than was sold in Italy"). In view of the foregoing, the court finds that this claim of Plaintiffs' cannot stand. 2. Defendants Have Not Stopped Plaintiffs From Making AB. Plaintiffs claim that Defendants were the cause of Plaintiffs' failure to sell AB in the United States. Defendants counter that Plaintiffs now are making AB and that Plaintiffs' long delay in making AB was purely a matter of their own business choice. The record shows that Shroff testified in 1996 that he was waiting for this litigation filed by his companies to conclude before going forward with AB production. See, e.g., Shroff Dep. 481, 684, 708-09. By March 1999, however, Shroff had determined that his lawsuit was moving too slowly, and he decided to begin making AB. Id. at 756-57; see also Dave Dep. 92 (Shroff instructed his scientists to begin work on AB in mid-1998). The evidence indicates that UPL has "produced samples [of AB] and [is] working on pilot plant production," using a successful AB process that is "really simple and good" and that requires only "easily available" raw materials. Shroff Dep. 761-62, 767, 770-71; see also Dave Dep. 95-101 (raw materials and equipment necessary for UPL to make AB are easily available.) UPL, thus, was prepared to go into full production "as soon as possible." Shroff Dep. 761. Moreover, UPL's general manager of research and development testified that he was confident that UPL can manufacture and sell AB more cheaply than Angus can. Dave. Dep. 104. Accordingly, this court finds that Plaintiffs' failure to sell AB in the United States was a consequence of Plaintiffs' own business decisions and thus, cannot be considered as an "effect" of any conduct of Defendants. C. A SHOWING OF THE REQUISITE EFFECT ON DOMESTIC 1-NP SALES HAS NOT BEEN MADE. Plaintiffs claim that there is demand for 1-NP in the United States and *1015 that Defendants prevented the Indian Plaintiffs from manufacturing 1-NP, which they allege would also have been made with technology provided by Miller-Deltachem. See, e.g., 2d Am. Cmplt. ¶¶ 95, 117(b), 158(b). Defendants, aver, however, that Plaintiffs began to consider manufacturing 1-NP only to fulfill their own requirements for AB production and not for sale in the United States. Id. ¶¶ 92-95. The record demonstrates that Plaintiffs' 1-NP plans were limited to 1-NP production for Plaintiffs' own use to make AB. Angus DC Br. 17-18. For instance, Shroff testified that he did not believe that any other market exists for 1-NP: Q: And your intent at the time was to make 1-NP to use as a raw material for the manufacture of AB? A: That's right. Q: You had no intention of selling 1-NP anywhere else or doing anything with 1-NP other than making — A: There's no market. Q: There's no market for 1-NP? A. I don't think so. Shroff Dep. 215-16. As a result, Plaintiffs intended to manufacture 1-NP only for their own account to make AB. Id. at 445-46 (Shroff's plan "for the 1-NP that [he] planned to make" was "[t]o produce for our own requirements," and AB was the "only" product that Shroff "had in mind" for 1-NP). Moreover, Shroff never investigated any uses for 1-NP other than making AB. Id. at 907. Furthermore, because Plaintiffs had no plans for 1-NP other than for their own use, they never identified a single potential American consumer for 1-NP. Miller Dep. 368-69. Shroff testified that in order to make 1-NP, Plaintiffs would need a new plant; however, they did not "draw up any plans or blueprints" or "have any discussions with contractors or construction companies." Shroff Dep. 444. Thus, there are no "written business plans or projections" of any kind involving 1-NP. Id. at 445. However, while the record shows that Plaintiffs did consider purchasing W.R. Grace's ("Grace") nitroparaffins plant in Deer Park, Texas, Shroff's $5 million offer was considered grossly inadequate because Grace had determined that $20 million was an appropriate sales price. Neeves Dep. 78, 83, 96; Kiziuk Dep. 192-93. In fact, Plaintiffs' litigation consultant Peter Kiziuk testified that a $5 million offer was "insufficient and that anyone who made such an offer [w]asn't a serious contender." Kiziuk Dep. 192-93. As demonstrated by the record even though Plaintiffs claim they had no available source to purchase 1-NP (2d Am. Cmplt ¶¶ 92-95), it is unclear whether the Indian Plaintiffs would have manufactured 1-NP for their own use in the production of AB. There are three other methods for making AB that do not require 1-NP. Thakore Dep. 336-37; see also Dave Dep. 95, 98, 101-102, 106 (describing three ways to make AB without 1-NP). JCM had contracted with the Indian Plaintiffs to develop a process for making AB that did not require 1-NP. Miller Dep. 415-16, 420; Shroff Dep. 467. Moreover, UPL's general manager of research and development reports that UPL is working on two different methods for making AB that do not involve 1-NP, and it expects to undercut the price of the AB that Angus makes using 1-NP. Dave Dep. 95, 98, 101-02, 104; see also Shroff Dep. 766-67, 770-71. Because the Indian Plaintiffs have decided to make AB without 1-NP, Shroff states they have no plans to manufacture 1-NP. Shroff Dep. 773. The court also notes that Plaintiffs' damages expert has not opined that they are entitled to any damages for lost sales of 1-NP. See Zmijewski Report 8, 16-19 (DX 297). This court finds that based upon the record that the Indian Plaintiffs did not have firm plans to manufacture 1-NP and that they intended to manufacture 1-NP only for the purpose of making AB in India and never considered selling it in the United States. Plaintiffs' own 1-NP needs *1016 were also uncertain (and are now nonexistent) given the alternative methods for producing AB. Plaintiffs, therefore, cannot sustain their burden under the FTAIA by claiming anticompetitive effects in an alleged domestic 1-NP market. This court finds that it would be speculative to suppose that any alleged conduct that prevented the Indian Plaintiffs from making 1-NP could have had any domestic 1-NP sales, far less a "direct, substantial, and reasonably foreseeable effect" sufficient to give rise to a Sherman Act claim. Such speculation cannot overcome the jurisdictional bar of the FTAIA. McElderry, 678 F.Supp. at 1078. (domestic effects that were "at best[] speculative" did not satisfy FTAIA); Liamuiga Tours, 617 F.Supp. at 925 (dismissing action because "[w]hile the effects in St. Kitts are substantial, at best domestic consequences are speculative"). Furthermore, it bears noting at this juncture that Plaintiffs' assertion that but for the actions of Angus, they would have purchased the Grace nitroparaffins plant, moved it to India, and then used it to manufacture chemicals there for sale in the United States is unavailing. The record evidence was that Angus played no role in this situation. Even more importantly, the record establishes that Plaintiffs' $5 million offer to purchase the nitroparaffins plant was clearly insufficient. Thus, Plaintiffs were not considered to be serious contenders. D. A SHOWING OF THE REQUISITE EFFECT ON DOMESTIC SALES OF OTHER CHEMICALS HAS NOT BEEN MADE. Plaintiffs allege in their second amended complaint that Defendants prevented them from manufacturing (1) other basic nitroparaffins in addition to 1-NP i.e., 2-nitropropane ("2-NP"), nitromethane ("NM"), and nitromethane ("NE"); (2) other nitroparaffin derivatives including tris amino, 2-amino-2-methyl-1-propanol ("AMP"), and bronopol; and (3) a variety of other chemicals, including tertiary butyl amine, guanidine carbonate, phosgene, an ester made from AB "bottoms," a gas scrubbing agent, chloropicrin, and sodium sulfate. E.g., 2d Am. Cmplt. ¶¶ 98-100, 108, 116, 117(c)-(d), 158(d). Defendants, however, assert that Plaintiffs' had no specific plans to manufacture these additional chemicals (i.e., there was no agreement with Miller-Deltachem to develop the technology to manufacture the chemicals) and in fact, Plaintiffs' plans for manufacturing these chemicals were nothing more than speculative. 1. Plaintiffs Had No Plans To Manufacture Or Sell Other Nitroparaffins. Plaintiffs contend that Defendants' scheme to prevent Plaintiffs from manufacturing 1-NP also prevented them from manufacturing other nitroparaffins because "[m]aking 1-NP necessarily entails making" all four of the basic nitroparaffins. Pl.s Br. in Opp'n 17 (filed July 7, 1994). However, as has already discussed, Defendants maintain that Plaintiffs would never have made 1-NP under any circumstances. Rather, the Indian Plaintiffs intended to make 1-NP only to supply their own needs for manufacturing AB, and there are a number of methods for making AB that do not require 1-NP, including ones the Indian Plaintiffs have used. The record demonstrates that Plaintiffs would not have manufactured 1-NP by nitrating propane because it generates a large amount of waste material. Miller Dep. 251-52. If Plaintiffs had manufactured 1-NP for their own use, they would have done so using a method that produces no other chemicals. The record further shows that based on Plaintiffs' "production assumptions," they would not have nitrated propane to produce 1-NP. Plaintiffs would have satisfied any needs for other basic nitroparaffins (in particular, NM) on the open market. Zmijewski Report 9-10 (DX 297). Plaintiffs, thus, reached an agreement that Miller-Deltachem would *1017 provide the Indian Plaintiffs with technology for manufacturing 1-NP without making other products. Shroff Dep. 394-95, 400. 2. Plaintiffs Had No Plans To Manufacture Or Sell Other Nitroparaffin Derivatives. Plaintiffs allege that they intended to manufacture nitroparaffin derivatives which included, tris amino, bronopol and AMP because these chemicals would have been "natural business expansions" after making AB and 1-NP. Pls. DC Br. 26 n. 11. Defendants, contend, however, that Plaintiffs had no actual plan to manufacture these nitroparaffin derivatives. The evidence demonstrates that Plaintiffs had no plan to manufacture bronopol. For instance, Miller has never done any work on bronopol, and he regards it as "[n]ot certain," but merely a "probability," that Plaintiffs will ever make bronopol, even after AB production begins. Miller Dep. 92-93, 96; see also Adams Dep. 57, 69-71 (Shroff rejected bronopol technology offered by his consultant Adams in 1991). Moreover, Shroff completely lost interest in bronopol after discovering that two other Indian companies were already making it: "Usually we produce chemicals where there is hardly any competition." Shroff Dep. 896-97; see also Adams Dep. 57, 69-71. Furthermore, Miller "never did any lab work regarding the commercialization" of any other nitroparaffin derivatives listed in the complaint, and he "never did any business plan type document" with respect to these chemicals. Miller Dep. 200, 202. With regard to tris amino and AMP, the only steps the Indian Plaintiffs took towards manufacturing nitroparaffin derivatives includes a "literature survey," where they were not able to identify a single use or potential buyer for tris amino or AMP. Shroff Dep. 715-16, 718, 902-03. Moreover, a "very preliminary report" of lab work concerning bronopol was never completed. Dave Dep. 175-76; see also id. at 121-22 (no "research and development efforts" of any kind regarding other derivatives.) In addition, decisions at UPL about which products to pursue were made by a committee that kept written minutes, and UPL has a policy requiring its scientists to keep written records of any lab work. Dave Dep. 55-58, 61. The record reflects, however, that no documents were produced reflecting a plan to manufacture these chemicals. Furthermore, Miller never discussed his ideas for making AMP with Shroff. Miller Dep. 200, 202. The evidence further shows that Shroff testified that Plaintiffs are waiting for the conclusion of this litigation before moving forward with their plans to make nitroparaffin derivatives. See, e.g., id. at 705-06 ("as soon as this litigation is over we will go ahead"); id. at 715-16 (Shroff's company decided to wait until litigation concludes before "mov[ing] forward with its consideration of making" tris amino, bronopol, and AMP); id. at 718-19 (AMP plans are on hold because Shroff is "[w]aiting for the litigation to be over"); id. at 773-74 (with respect to AMP, tris amino, and bronopol, "[w]e will make it after the litigation is over, but ... we may go earlier.") The record thus demonstrates that its Plaintiffs' own business decisions that have kept them from progressing towards making nitroparaffin derivatives.[3] *1018 3. Plaintiffs Had No Plans To Manufacture Or Sell The Other Chemicals Named In The Second Amended Complaint. Plaintiffs allege that they would have manufactured tertiary butyl amine, guanidine carbonate, phosgene, an ester made from AB "bottoms," a gas scrubbing agent, chloropicrin and sodium sulfate if Defendants had not interfered with their attempts to do so. In contrast, Defendants allege that the record clearly shows that Plaintiffs would never have manufactured these chemicals. The record demonstrates that Plaintiffs engaged in preliminary discussions regarding the manufacturing of these chemicals. For instance, Plaintiffs engaged in some discussion regarding the possibility of manufacturing tertiary butyl amine and agreed to "follow up at a later date" but never did. Miller Dep. 283-84. Plaintiffs also discussed the possibility of making guanidine carbonate in India although they did not discuss any timetable because they were "waiting to do AB first and then move on to other projects." Id. at 298. Guanidine carbonate was just "somewhere down the road." Id. at 622. Plaintiffs had not engaged in research and development efforts with respect to most of the chemicals. For example, regarding phosgene, Plaintiffs have made no research and development efforts because their factory is located next to a plant that makes phosgene which allows them to receive it through a direct pipe. Shroff Dep. 859. Furthermore, in most instances, Plaintiffs had made no efforts to make or sell the chemicals (see id.) and had not identified customers for which the chemicals could be sold. See, e.g., Miller Dep. 637-38. This court finds that the record demonstrates that Plaintiffs had no plan to manufacture and sell other nitroparaffins, nitroparaffin derivatives and the other chemicals discussed, supra, listed in the second amended complaint. Plaintiffs cannot point to any evidence showing that they had developed a plan to manufacture and sell these chemicals in the United States in any quantity, much less quantities that constitute a "substantial effect" on domestic commerce. The record is also undisputed that Plaintiffs' failure to pursue these manufacturing opportunities had nothing to do with Defendants actions. In fact, Shroff testified that the Angus Defendants had done nothing that would have an affect on whether the Indian Plaintiffs' made these chemicals. Shroff Dep. 857-63; see also id. at 863 (between 1992 and 1999, the Indian Plaintiffs introduced "20 new products, and ... are selling quite a lot in USA" without the Angus Defendants making "any attempt to interfere"). Clearly, Plaintiffs' decision to proceed with the manufacturing of these chemicals is based on their own business judgment. Therefore, Defendants' conduct had no effect on commerce, much less a "direct, substantial, and reasonably foreseeable" effect sufficient to give rise to a Sherman Act claim. See McElderry, 678 F.Supp. at 1078 ("speculative" domestic effects insufficient under FTAIA). E. JCM'S ALLEGED INJURIES Plaintiffs assert that Plaintiff JCM sustained injury as a result of Defendants' antitrust conduct. Defendants avow, however, that the FTAIA does not give the court jurisdiction over JCM's claims on the basis of alleged domestic injuries. 1. The Indian Plaintiffs May Not "Piggy-Back" On JCM's Claims. In this case, the record demonstrates that the Indian Plaintiffs would have only been injured abroad. First, JCM was not a competitor or a consumer *1019 in the nitroparaffins and nitroparaffin derivatives markets which Plaintiffs allege Defendants have monopolized in violation of the Sherman Act. JCM's involvement was as one of two joint venturers in Miller-Deltachem that was allegedly going to sell technology to the Indian Plaintiffs so that they could manufacture chemicals. The contracts between Miller-Deltachem and the Indian Plaintiffs prevented Miller-Deltachem and JCM from using Miller-Deltachem's technology to manufacture the chemicals themselves. See AB Technology Sales Agreement ¶ 4.2 (DX 49) ("The Process Technology Package ... shall be and remain the property of SUCL."); id. ¶ 4.5 ("All Process Technology ... shall be the sole and exclusive property of SUCL ... MDV will not sell any AB Process Technology to any third party."); 1-NP Technology Sales Agreement ¶¶ 4.2, 4.5 (DX 48) (same with respect to 1-NP). Furthermore, the alleged injury to JCM and Miller-Deltachem is that they did not receive payments that they would have earned for providing technology to the Indian Plaintiffs. Under the FTAIA, when the court's jurisdiction over a Sherman Act claims rests on a claimed "effect ... on export trade or export commerce ... of a person engaged in such trade or commerce in the United States," the Sherman Act "shall apply to such conduct only for injury to export business in the United States," 15 U.S.C. § 6a (emphasis added). In other words, "a foreign company cannot demonstrate the domestic injury requirement by `piggy-backing' onto the injury of a United States exporter." Optimum, 926 F.Supp. at 532 (internal quotations omitted). The Optimum court thus held that an Argentine firm alleging anticompetitive conduct in an Argentine market "cannot maintain an action under the Sherman Act based merely upon injury to United States exporters attempting to enter the Argentine ... market." Id. at 533. Similarly, in The `In' Porters, the court dismissed a suit brought by a French clothing distributor alleging that the defendants' anticompetitive conduct had caused it to "terminate[] its relationship with a number of United States clothing exporters." The `In' Porters, S.A. v. Hanes Printables, Inc., 663 F.Supp. 494, 499-500 (M.D.N.C.1987). This court, therefore, concludes that the Indian Plaintiffs cannot establish FTAIA jurisdiction over JCM's claimed export-related injuries because the FTAIA "requires an actual injury to plaintiff within the United States." Id. at 500. 2. The Alleged Effects On JCM Could Not "Give Rise" To A Sherman Act Claim. Defendants allege that Plaintiffs have shown no effect on domestic sales of AB, 1-NP, or any other chemical, and there is no allegation that JCM suffered any domestic injury in the market. To the contrary, JCM's alleged injuries stem from business that Miller-Deltachem allegedly lost as a supplier of technology to chemical manufacturers and as an industry consultant. As the record shows any alleged domestic effects on JCM caused by Defendants' misconduct could not "give[] rise to a claim under the provisions of" the Sherman Act. The record demonstrates that the effects of Defendants alleged conduct is insufficient to establish an antitrust claim. First, the only markets in which Plaintiffs accuse Defendants of committing monopolization offenses are markets for nitroparaffins and nitroparaffin derivatives. Defendants are not participants in any market for chemical industry consulting services, and Plaintiffs do not allege antitrust violations in any such market. Second, the record contains no evidence concerning competitive conditions in the market for chemical industry consulting services, and there is no reason to believe that Miller-Deltachem's alleged injuries as a supplier of such services could reflect any injury to competition in that market, rather than simply injury to Miller-Deltachem itself. Moreover, Plaintiffs' liability *1020 expert Dr. Leffler has no opinion "as to how competition has been affected"' by Miller-Deltachem leaving the market altogether. Leffler Dep. 502. "It is axiomatic that the antitrust laws were passed for `the protection of competition, not competitors.'" Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 224, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993); see also, e.g., Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 894 (10th Cir.1991) (because "the main purpose of the antitrust laws is to preserve and promote competition[,] ... [w]hether or not a practice violates the antitrust laws is determined by its effect on competition and not its effect on an individual competitor"). Accordingly, the FTAIA requires Plaintiffs to prove "antitrust injury to the market or to competition in general, not merely injury to individuals or individual firms." McGlinchy, 845 F.2d at 815. This court finds that when, as here, antitrust plaintiffs can show at most "injury to themselves, rather than to the relevant market," they have failed to show "the requisite domestic anticompetitive effect," and their claims fail under the FTAIA. Id.; see also McElderry, 678 F.Supp. at 1077-78 (plaintiff cannot overcome FTAIA with an "allegation of mere monetary injury," since a "Sherman Act plaintiff must `show injury to a market or to competition in general, not merely injury to individuals'"). Here, Plaintiffs have not shown the requisite domestic anticompetitive effect regarding JCM's unsupported claims of domestic injury. Clearly, the lack of any "direct, substantial, and reasonably foreseeable" domestic effect sufficient to give rise to a Sherman Act claim bars Plaintiffs' antitrust claims. F. THE COOK COUNTY ACTION Plaintiffs contend that Defendants' (Angus) amended complaint filed in the Cook County Action operates as an "admission" on the impact on domestic commerce issue. See Pls. DC Br. 16-17. Defendants, however, state that Plaintiffs' assertion is erroneous and merely an improper attempt to relieve Plaintiffs of their burden of establishing that Defendants' conduct had a "direct, substantial, and reasonably foreseeable effect" on domestic commerce. Plaintiffs' "admission" contention cannot prevail. As Plaintiffs' own citations recognize, a pleading from a different action is "not a judicial admission, and thus not binding or conclusive." Enquip, Inc. v. Smith-McDonald Corp., 655 F.2d 115, 118 (7th Cir.1981); see also Harbor Ins. Co. v. Continental Bank Corp., 922 F.2d 357, 364 (7th Cir.1990) (doubting that doctrine of "men the hold" has any force other than to "bar a contract party from changing his position in [the same] litigation" and declining "to determine ... whether it applies outside the contract area") (cited as Pls. DC Br. 16-17). Furthermore, even assuming the admissibility of the Cook County pleading for some purpose(s), it does not show that Plaintiffs must prove that they intended to and were prepared to sell AB, 1-NP, bronopol, tris amino and AMP in the United States. At most, Angus's amended complaint shows that Angus believed their trade secrets were at risk because Plaintiffs intended to use those secrets to manufacture these chemicals abroad.[4] Furthermore, with respect to the principal products at issue in the Cook County action, Angus believed and still believes that Plaintiffs intended to use Angus's trade secrets to manufacture AB in India for sale in India and to manufacture 1-NP for use in manufacturing AB in India. Furthermore, the Cook County amended complaint *1021 contains no allegations about sales of any chemicals in this country. As demonstrated by the record, it is clear that Plaintiffs never had any significant plan to make AB, 1-NP, bronopol, tris amino, or AMP for sale in the United States. And the subject Cook County pleading contains no suggestion to the contrary. G. PLAINTIFFS' FTAIA/NONJURISDICTIONAL CONTENTION Plaintiffs allege that the FTAIA presents a question of substantive law rather than an issue of jurisdiction. Plaintiffs thus assert that their antitrust claims should go to a jury because there are disputed issues of fact concerning the FTAIA and that a reasonable jury could conclude that their claims satisfy the FTAIA. Defendants, however, correctly point out that satisfaction of the FTAIA's requirements is a matter of subject matter jurisdiction. Accordingly, the FTAIA's threshold subject matter jurisdiction issue must first be addressed by the court at this time, not by a jury at trial. At its essence, the FTAIA concerns the very power of the Court to hear and decide antitrust claims. Case law, and other authorities, uniformly agree that the FTAIA limits the "jurisdiction" of American courts over antitrust claims involving foreign commerce.[5] Stated differently, legal authorities are consistent in describing the FTAIA issue presented here as one of subject matter jurisdiction.[6] As the District Judge stated in his prior opinion in this case, "Congress ... passed the FTAIA to amend the Sherman Act so that jurisdiction over foreign commercial conduct would not be exercised unless such conduct had a `direct, substantial, and reasonably foreseeable effect' on United States commerce." United Phosphorus, Ltd. v. Angus Chem. Co., 1994 WL 577246, *1022 at *7, (N.D.Ill. Oct. 18, 1994) (emphasis added). The legislative history also compels the same conclusion: it was Congress's "intent ... to address only ... subject matter jurisdiction" in passing the FTAIA, which "does not affect the legal standards for determining whether conduct violates the antitrust laws." H.R.Rep. No. 686, 97th Cong., 2d Sess., reprinted in 1982 U.S.Code Cong. & Ad. News 2487 (emphasis added). The FTAIA, therefore, clearly presents a jurisdictional question that must be resolved by a court before a case may proceed to a determination regarding its merits. In Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), the Supreme Court explained that "`[w]ithout jurisdiction the court cannot proceed at all in any cause.' ... The requirement that jurisdiction be established as a threshold matter... is `inflexible and without exception.'" See also Okoro v. Bohman, 164 F.3d 1059, 1061 (7th Cir.1999) ("jurisdictional issues should be addressed first and if they are resolved against jurisdiction the case is at an end and there is no occasion to address the merits"); Cook v. Winfrey, 141 F.3d 322, 325 (7th Cir.1998) ("a federal court must assure itself that it possesses jurisdiction over the subject matter ... before it can proceed to take any action respecting the merits.") Plaintiffs have not cited any real authority to support their claim that the FTAIA "presents a question of substantive law."[7] In fact, Plaintiffs' argument in support of their unprecedented position is to note that the FTAIA does not contain the word "jurisdiction." Plaintiffs further contention that a "reasonable jury could conclude" that their claims satisfy the FTAIA is unavailing because "[t]he court must decide whether jurisdiction exists, not whether there is sufficient evidence to have a trial on the jurisdictional issues." In re W.L., 1999 WL 33878, at *2 n. 2 (N.D.Ill. Jan. 19, 1999). Moreover, "disputes over material facts will not preclude the district court from determining the jurisdictional issues." Lumpkin v. United States, 791 F.Supp. 747, 749 (N.D.Ill.1992). Therefore, questions of jurisdiction must be determined by the court and not by a jury (see, e.g., Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 537-38, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995)), and "no case can properly go to trial if the court is not satisfied that it has jurisdiction." Crawford v. United States, 796 F.2d 924, 928 (7th Cir.1986). This court finds that given the case law and legislative history that it is clear that the FTAIA is a matter of subject matter jurisdiction that limits the jurisdiction of American courts over antitrust claims involving foreign commerce. Thus, any disputed facts regarding the court's subject matter jurisdiction must be resolved by the court at this time. See Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir.1998) (district court erred in failing *1023 to resolve factual disputes concerning jurisdiction under the FTAIA before reaching other issues).[8] II. FTAIA APPLICABILITY Plaintiffs argue that the FTAIA is not applicable in this case because they would have been involved in exporting chemicals from India into the United States but for the alleged antitrust violations. Pls. DC Br. 35-37. Defendants counter that Plaintiffs' argument is both incorrect and irrelevant. In asserting their theory, Plaintiffs rely on the FTAIA's introductory language, which states that the FTAIA's requirement of a "direct, substantial, and reasonably foreseeable effect" on domestic commerce applies to claims "involving trade or commerce (other than import trade or import commerce) with foreign nations." 15 U.S.C. § 6a. Based on this language, Plaintiffs assert that the parenthetical exclusion of "import trade or import commerce" means that a foreign antitrust claim need never satisfy the FTAIA as long as it involves products that might be shipped to the United States. It is therefore, Plaintiffs' contention that if a foreign antitrust plaintiff merely alleges that it would have exported goods to the United States, then the FTAIA requirement would not apply. The court determines that Plaintiffs' position is not a correct statement of the law. The "main significance" of the FTAIA is to make[] clear that the concern of the antitrust laws is protection of American consumers and American exporters, not foreign consumers or producers" — a concern that is "triggered by direct, substantial, and reasonably foreseeable effects on United States commerce, not by any minor impact." Phillip Areeda & Herbert Hovenkamp, Antitrust Law ¶ 272h2, at 362-63 (1997) (emphasis in original); see also The `In' Porters, S.A., 663 F.Supp. at 499. The antitrust laws' goal of protecting American consumers and producers cannot realistically be served by Plaintiffs' version of the FTAIA, which would permit foreign plaintiffs to bring treble damages suits based on conduct that has only indirect, insubstantial, and unforeseeable effects on commerce in this country. Accordingly, Plaintiffs' theory has been consistently rejected by the courts, which have recognized that "the `import trade or import commerce' exception to the FTAIA applies only to domestic importers." S. Megga Telecomms. Ltd. v. Lucent Technologies, Inc., 1997 WL 86413, at *8 n. 22 (D.Del.1997) (Reply Ex. AAA) (emphasis added); accord Coors Brewing Co. v. Miller Brewing Co., 889 F.Supp. 1394, 1398 (D.Colo.1995) (FTAIA applies to antitrust claims involving foreign markets "with the exception of claims brought by domestic importers") (emphasis added); The `In' Porters, 663 F.Supp. at 499 (FTAIA "establishes ... requirements that an antitrust plaintiff, other than a domestic importer, must prove to establish subject matter jurisdiction") (emphasis added); see also Papst Motoren GmbH, 629 F.Supp. at 869 (FTAIA required dismissal of antitrust claims alleging restraints abroad claimed to affect products shipped to the United States). These courts have, thus, held that the FTAIA exempts those claims that involve the business of United States firms that import goods into the United States and not all claims involving the export of goods to the United States from abroad or all claims involving goods may eventually be shipped to the United States.[9] Plaintiffs' theory is further belied by the language of the FTAIA because one way *1024 in which a plaintiff can show the requisite "direct, substantial, and reasonably foreseeable effect" on domestic commerce is by showing such an effect on "import trade or import commerce with foreign nations." 15 U.S.C. § 6a(1)(A). If Plaintiffs' theory were correct, this would mean that all import-related antitrust claims would be immune from the FTAIA and such a statutory interpretation is not permissible. See United States v. Nordic Village, Inc., 503 U.S. 30, 36, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) (statutes "must, if possible, be construed in such fashion that every word has some operative effect"); United States v. Ranum, 96 F.3d 1020, 1030 (7th Cir. 1996). Furthermore, a leading treatise explains, while the FTAIA's language may be "cumbersome and inelegant," it plainly "means that the antitrust laws do not apply to domestic or foreign conduct affecting foreign markets, consumers or producers unless there is a direct, substantial, and reasonably foreseeable effect on the domestic market." Phillip Areeda & Herbert Hovemkamp, Antitrust Law ¶ 272h2 (1997) (emphasis in original). In short, the court finds that the FTAIA is applicable to the case herein. CONCLUSION[10] In view of the foregoing, Defendants' motion to dismiss Counts I and II of the second amended complaint for lack of subject matter jurisdiction is granted.[11] Too, because the court does not have original subject matter jurisdiction over Plaintiffs' federal claim(s), the court has no (and thus declines to exercise) supplemental jurisdiction over Plaintiffs' state law tortious interference claim (Count III). 28 U.S.C. § 1367(a); Pinney Dock and Transp. Co. v. Penn. Cent. Corp., 196 F.3d 617, 621 (6th Cir.1999); Da Silva v. Kinsho Int'l Corp., 229 F.3d 358, 361 (2nd Cir.2000); In re Copper Antitrust Litigation, 117 F.Supp.2d 875, 877 (W.D.Wis. 2000); see Wellness Community Nat'l v. Wellness House, 70 F.3d 46, 50 (7th Cir. 1995). NOTES [1] In this regard: "The district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Long v. Shorebank Development Corp., 182 F.3d 548, 554 (7th Cir.1999) (quoting Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir.1993) (per curiam)). [2] It appears no company has manufactured ethambutol in the United States during the entire period covered by Plaintiffs' claims. Little Aff. ¶¶ 4, 7. [3] Plaintiffs reliance on Heatransfer Corp. v. Volkswagenwerk, A.G., 553 F.2d 964 (5th Cir. 1977) is, respectfully, inapposite. See Pls. DC Br. 26 n. 11. In that case, a jury awarded damages to a manufacturer of automobile air conditioners for air conditioner models that it actually made and also for models that it did not make (having been unlawfully excluded from making those). The court held that this issue concerned the "growth ... of ongoing business" rather than "the expansion of a present business into a new [product] market," and that the plaintiff therefore was not required to show "the preparedness and intent to expand in these areas." Heatransfer, 553 F.2d at 986 n. 20. By contrast, Plaintiffs' contention here that they would have sold tris amino, bronopol and AMP in this country clearly involves the "expansion" of their business into new product markets. Thus, unlike the plaintiff in Heatransfer, Plaintiffs must show "preparedness and intent," which they cannot do. [4] Additionally, following further discovery in the Cook County action, Angus filed a second amended complaint (Reply Ex. JJ) withdrawing its claims regarding bronopol, tris amino, and AMP. See Harbor Ins., 922 F.2d at 364-65 (cited by Plaintiffs at Pls. DC Br. 17) ("if pretrial discovery or other sources of new information justify a change in a contract party's litigating position," the change could not, under any circumstances, "be deemed a forbidden attempt to `mend the hold'"). [5] See, e.g., Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 931 (2d Cir.1998) ("FTAIA forbids the exercise of jurisdiction over [certain] Sherman Act violations"); Caribbean Broadcasting Sys. Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1085 (D.C.Cir.1998) ("a court has subject matter jurisdiction only to the extent that" the FTAIA is satisfied); Gushi Bros. Co. v. Bank of Guam, 28 F.3d 1535, 1544 (9th Cir.1994) (applying FTAIA standard to claim under the Bank Holding Company Act and holding that the plaintiffs' "failure to establish any anticompetitive domestic effect was jurisdictional"); McGlinchy v. Shell Chem. Co., 845 F.2d 802, 813 (9th Cir.1988) (FTAIA "precluded subject matter jurisdiction"); Filetech S.A. v. France Telecom S.A., 1999 WL 92517, at *1 (S.D.N.Y.1999) ("Within the context of the Sherman Act and the FTAIA, to establish jurisdiction defendant's conduct complained of must" satisfy the FTAIA); S. Megga Telecoms. Ltd. v. Lucent Technologies, Inc., 1997 WL 86413, at *9 (D.Del.1997) ("plaintiffs fail[ed] to establish subject matter jurisdiction under the FTAIA"); Galavan Supplements, Ltd. v. Archer Daniels Midland Co., 1997 WL 732498, at *1 (N.D.Cal.1997) ("Under the FTAIA, courts only have jurisdiction over `conduct involving trade or commerce ... with foreign nations' if that conduct" satisfies the FTAIA); Optimum, S.A. v. Legent Corp., 926 F.Supp. 530, 533 (W.D.Pa.1996) (dismissing antitrust claims "for lack of subject matter jurisdiction" under FTAIA); McElderry v. Cathay Pacific Airways Ltd., 678 F.Supp. 1071, 1077 (S.D.N.Y.1988) ("Under the [FTAIA], federal courts do not have jurisdiction" over claims that do not meet its standards); Papst Motoren GmbH v. Kanematsu-Goshu (U.S.A.) Inc., 629 F.Supp. 864, 869 (S.D.N.Y.1986) (granting "motion to dismiss for lack of subject matter jurisdiction" under FTAIA); Liamuiga Tours v. Travel Impressions, Ltd., 617 F.Supp. 920, 925 (E.D.N.Y.1985) (claims lacked the "jurisdictional nexus" required by FTAIA); The `In' Porters, S.A. v. Hanes Printables, Inc., 663 F.Supp. 494, 499 (M.D.N.C.1987) (FTAIA "establishes three requirements that an antitrust plaintiff ... must prove to establish subject matter jurisdiction"); Eurim-Pharm GmbH v. Pfizer Inc., 593 F.Supp. 1102, 1107 (S.D.N.Y.1984) (granting "motion to dismiss for lack of subject matter jurisdiction" under FTAIA). See also In re Copper Antitrust Litigation, 117 F.Supp.2d 875 (W.D.Wis.2000). [6] Plaintiffs' supplemental citation of Da Silva v. Kinsho Int'l Corp., 229 F.3d 358 (2nd Cir. 2000), respectfully, is of no aid to Plaintiffs. As is pertinent here, that case merely recites general, generic principles regarding the analytical approach as to whether an issue affects subject matter jurisdiction or the merits. And, factually, Da Silva, is a Title VII not an antitrust case. [7] Plaintiffs' citation to Hartford Fire Ins. Co. v. California, 509 U.S. 764, 113 S.Ct. 2891, 125 L.Ed.2d 612 (1993) is misplaced. In explaining that the district court there "undoubtedly had jurisdiction," the Court included a footnote describing the FTAIA and noted that "the conduct alleged plainly meets [the FTAIA's] requirements." Hartford Fire, 509 U.S. at 795-96, n. 23, 113 S.Ct. 2891 (emphasis added). The Supreme Court's reference to the FTAIA in its explanation that subject matter jurisdiction was uncontested firmly established that the FTAIA sets forth standards governing the jurisdiction of American courts over foreign antitrust actions. Like every other relevant authority, Hartford Fire demonstrates that the FTAIA is jurisdictional. On a different Hartford Fire issue raised by Plaintiffs: Plaintiffs also claim that, under Hartford Fire, they need only show a "substantial effect in the United States" to pursue their antitrust claims, and not the "direct, substantial and reasonably foreseeable effect" required by the FTAIA. But as noted above, even arguendo if the Hartford standard is applied, for all the same reasons that the undisputed record shows no "direct, substantial, and reasonably foreseeable effect" on domestic commerce under the FTAIA, the record shows no "substantial effect" on domestic commerce under the test proposed. [8] Relevantly, see also citation and quotation at Footnote 1 herein, p. 1008, supra. [9] The legislative history that Plaintiffs cite is not inconsistent with all this case law. The legislative history does not describe the FTAIA as exempting from its coverage all claims involving goods shipped to the United States, but only claims involving import transactions (see Pls. DC Br. 36-37) — i.e., the business of domestic firms importing goods into the United States. The only case that even remotely supports Plaintiffs' position is Eskofot A/S v. E.I. Du Pont De Nemours & Co., 872 F.Supp. 81 (S.D.N.Y.1995). However, more recent decisions have declined to follow its flawed analysis, which conflicts with the great weight of authority. See S. Megga, 1997 WL 86413, at *8 n. 22. Plaintiffs' additional citations of Hartford Fire and Eurim-Pharm do not assist them. See Pls. DC Br. 37. Hartford Fire said nothing at all about the exception for import transactions. Eurim-Pharm also did not address the issue and, in any event, the dicta quoted by Plaintiffs refers, like the legislative history, only to "import transactions," which limits the exception's scope to claims brought by domestic importers. See Eurim-Pharm, 593 F.Supp. at 1106. [10] The court reviewed and considered all of the points raised by the Plaintiffs, including some that were found impracticable and unnecessary to be addressed herein. The court is mindful, too, that Plaintiffs also addressed the subject motion to dismiss issues in Plaintiffs' motion for partial summary judgment brief and reply. The court did review and consider all of Plaintiffs' arguments as to the subject motions to dismiss that were contained in the described partial summary judgment briefs of the Plaintiffs. Also, the court has reviewed Plaintiffs' surreply memorandum in opposition and finds nothing therein that would impact on the count's motion decision here. [11] In view of the court's ruling, it's unnecessary to consider the other motion argument(s) of the Defendants under Counts I and II of the second amended complaint.

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-01-00079-CR ______________________________ GLEN DAVIDSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 5th Judicial District Court Bowie County, Texas Trial Court No. 00-F-388-5 Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Justice Grant O P I N I O N Glen Davidson appeals his conviction for indecency with a child. A jury found Davidson guilty and assessed punishment at twenty years' confinement and a $10,000 fine. Davidson contends the trial court erred in admitting certain "outcry witness" testimony because the State failed to prove the mother was the proper outcry witness, because the State failed to provide a summary as required by Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2002) or, alternatively, provided an insufficient summary as the testimony was beyond the scope of the summary provided, and because the outcry statement was not reliable. Davidson and his wife were friends of Kimberly Walraven, the mother of the alleged victim, A.W., and they babysat Walraven's three children and provided her transportation. After confronting Davidson about smoking marihuana in front of her children, Walraven asked A.W., who was six years old at the time, if she was keeping any secrets with Davidson. A.W. told her mother about things Davidson had done to her while he was babysitting. Walraven took A.W. to Child Protective Services (CPS) and to a medical examiner. After A.W. had been interviewed by CPS personnel and the police, approximately eleven months after she had first talked to her mother, she put in writing, at her mother's request, some of the things that had happened. This short letter was given to the defense. During Walraven's testimony, Davidson objected at trial to the use of Walraven as an outcry witness on the ground that the State did not provide a written summary of the outcry statement. The court held a hearing outside the presence of the jury, found A.W.'s letter to be reliable and sufficient as a summary of the outcry statement, and overruled Davidson's objection. No questions had been asked about the content or circumstances of the outcry statement. Back in the presence of the jury, the prosecution continued questioning Walraven. Before the hearing, Walraven had testified that when she had confronted Davidson about smoking marihuana in front of her children, telling him that he could not expect them to lie, he had looked directly at A.W. and said "even the Bible says . . . there's not always a good time to tell the truth." Immediately after the hearing outside the presence of the jury, the prosecution elicited the following testimony: After Walraven asked Davidson to leave her apartment, A.W. was sitting on the floor and would not look at her mother. Walraven asked her to come over to her and said, "[A.W.], you know, truth is the best thing all the time," and she asked, "[H]as anything strange, or anything you wouldn't want to tell mama, or is there anything that Davidson has told you that you shouldn't tell mama?" and A.W. looked "scared to death" and said "no" in a shaky voice. Walraven said, "[T]here is, isn't there?" A.W. began to cry, and Walraven took her into the bedroom and told her she would love her no matter what. Then they prayed, so A.W. would not be afraid to tell her mother. When the prosecutor asked, "What specifically did she tell you at that time[,]" Walraven answered that A.W. had told her Davidson had touched her private part, had made her touch his, and had oral sex with her. After Walraven answered, Davidson objected that the outcry statement was not spontaneous, that it was elicited by coercion from the mother, and that the testimony was not contained in the summary. The judge overruled the objection. Walraven continued to repeat, in more detail and without further objection, what A.W. had told her. She said Davidson made A.W. look at "dirty" magazines. She testified "I would say that he [Davidson] had had oral sex with her, and I asked her if he made her have oral sex with him, and she said, no." Walraven testified A.W. had seen "gooey stuff" come out of Davidson's penis "a bunch of times." She said Davidson would wake A.W. "all the time." Walraven said that A.W. was crying and that during the conversation, there were silent times where she would just hold A.W. because A.W. was shaking like she had done something wrong, and she was "scared to death" and felt embarrassed. Davidson cross-examined Walraven. The prosecutor then called A.W. to testify. He asked several questions to determine whether A.W. could tell the difference between the truth and a lie, and she promised to tell the truth. A.W. testified Davidson had shown her pictures of people without their clothes on from magazines. She testified Davidson would ask her to take her clothes off, would take his clothes off, would bring a mattress into the living room, would ask her to lie on the mattress, would get on the mattress with her, and would touch her privates. A.W. testified that one night when the three children were spending the night at the Davidsons' home and his wife was at work, after A.W.'s brother and sister had gone to sleep, Davidson got on top of her on the mattress and moved up and down on top of her with his privates touching her. She testified there were times when she would see his privates and saw stuff come out of his private. She testified about Davidson touching her privates with his finger and it hurting her. She testified that Davidson told her to keep it a secret from her mother. She testified that she remembered telling her mother what had happened and writing it in her own words. Davidson cross-examined A.W. Hearsay is not admissible except as provided by statute or by the rules of evidence. See Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990). Article 38.072 of the Texas Code of Criminal Procedure creates an exception to the hearsay rule for statements of child abuse victims if all the requisite conditions are met. Dorado v. State, 843 S.W.2d 37, 38 (Tex. Crim. App. 1992). Article 38.072 provides that in sexual offense cases committed against a child twelve years of age or younger, statements that were made by the alleged child victim to the first person, eighteen years of age or older, other than the defendant, about the offense will not be inadmissible because of the hearsay rule. Tex. Code Crim. Proc. Ann. art. 38.072. In order for this hearsay exception to apply to such a statement, on or before the fourteenth day before the proceedings begin, the party intending to offer the statement must notify the adverse party of its intention to do so, and provide the adverse party with the name of the witness through whom it intends to offer the statement and a written summary of the statement. Id. Also, the trial court must find, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement. Id. Additionally, the child must testify or be available to testify at the proceeding in court or in any other manner provided by law. Id. The trial court has broad discretion to determine whether the child complainant's statement falls within the hearsay exception. The exercise of that discretion will not be disturbed unless the record shows a clear abuse of discretion. See Reed v. State, 974 S.W.2d 838, 841 (Tex. App.-San Antonio 1998, pet. ref'd). Davidson contends the State failed to prove that the victim's mother was the proper outcry witness. However, Davidson did not raise this issue at trial, and it is therefore not preserved for review. This issue is overruled. Davidson contends the State failed to provide a written summary of the expected testimony of the outcry witness. He argues that the handwritten note prepared by A.W. cannot constitute the required summary. He also argues that because A.W.'s note was written eleven months after the initial outcry statement was made and after interviews with the CPS personnel and the police, there is no indicia of reliability regarding the letter's description of the outcry statement's content. Alternatively, Davidson contends that the summary provided by the State was insufficient to apprise Davidson of the content and scope of the hearsay statements to which the outcry witness testified, and therefore the court erred in admitting the witness's testimony that was beyond the scope of the notice provided, as it did not meet the requirements for the hearsay exception. The statute does not mandate who must prepare the summary or how it should be prepared. The statute only requires that it be a written summary of the statements made by the alleged child victim about the offense which the state intends to introduce through another witness. Therefore, it is the content of the writing, not who wrote it or whether it is typed or printed, that will determine whether the writing is a summary of the statement, as required by the statute. Also, there is no requirement that the court determine the reliability of the summary. The court must determine if the state provided the defendant with a summary of the statements made by the alleged victim about the offense, which the State intended to introduce, and determine whether the outcry statement itself is reliable. The purpose of the notice requirement is to prevent the defendant from being surprised by the introduction of the outcry hearsay testimony. Gay v. State, 981 S.W.2d 864, 866 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd). The written summary must give the defendant adequate notice of the content and scope of the outcry testimony. Id. While there is no authority requiring a detailed summary, the summary of the outcry statement must be more than a general allusion to sexual abuse. Thomas v. State, 1 S.W.3d 138, 140 (Tex. App.-Texarkana 1999, pet. ref'd). It must describe the alleged offense in some discernible manner. Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). It is sufficient if it reasonably informs the defendant of the essential facts related in the outcry statement. See Gottlich v. State, 822 S.W.2d 734 (Tex. App.-Fort Worth 1992, pet. ref'd), overruled on other grounds, Curry v. State, 861 S.W.2d 479, 483 n.2 (Tex. App.-Fort Worth 1993, pet. ref'd); Norris v. State, 788 S.W.2d 65 (Tex. App.-Dallas 1990, pet. ref'd). In Biggs v. State, the appellate court found that the summary provided to the defendant was deficient because it provided little more information than was contained in the indictment and did not summarize the detailed information that the victim had related to her mother about the "games" she played with the defendant. 921 S.W.2d 282, 285 (Tex. App.-Houston [1st Dist.] 1995, pet. ref'd). The summary in that case read: "On June 29, 1991 the Defendant had sexual contact with [J.C.] and also exposed his genitals to her while she was at the Defendant's home visiting the Defendant's daughter." Id. In Gay, the court found that the defendant did not receive a sufficient written summary of the outcry statement the state intended to offer because it only stated that the defendant had "kissed and touched" the complainant. It did not state that the defendant had "bothered" her, made her touch him, or threatened her. 981 S.W.2d at 866. The note the State provided to Davidson for the summary requirement reads as follows: I fellt bad and glen timted me to do all the stuff that we do glen sayed that it is all ok. He trid to kiss me. I do not like glen. glen is stupped. At first he sayed it is all all rite. Then we done it. But I did not lik it. I thaut it was deskusting. He dug his finger up my tete hole. He said that he alwas wanted a girl like me. than he said he done it to his doders, he shoed me some pitchers of his doders. he even said kay was to fat to even see her tete. I said no she is not he argued over it. than you made me tell you all about it and I cryed than you and glen fot about it. finesh. A.W.'s note does describe some instances of sexual abuse and says that A.W. told her mother "all about it," suggesting that the instances mentioned in the letter were within the content of the outcry statement A.W. made to her mother. Even so, there were only two phrases describing the alleged abuse. The first, "Then we done it," was no more than a general allusion to sexual abuse. Within context, "Then we done it" could refer to the earlier statement, "He trid to kiss me," or to the later statement, "He dug his finger up my tete hole," to the act of intercourse, which is commonly referred to by such wording, or to another undescribed event. The second, "He dug his finger up my tete hole," was insufficient to put the defendant on notice as to the content and scope of the outcry statement or the testimony the State intended to introduce regarding the outcry statement, which at the time Davidson objected included that Davidson had touched A.W.'s private part, made her touch his, and had had oral sex, all of which are essential facts that were relayed in the outcry statement. Therefore, the court erred in admitting the hearsay testimony over Davidson's objection, because the summary provided insufficient notice for admitting such testimony under the hearsay exception created by the statute. When a nonconstitutional error is made during the course of a trial, it will be disregarded as harmless error if the error did not affect the substantial rights of the appellant. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). An appellant's substantial rights are implicated "when the error had a substantial and injurious effect or influence in determining the jury's verdict." Id. We consider these factors in assessing the harmfulness of the error: the source of the error, its nature, the extent the error was emphasized, potential collateral implications, the weight a juror would place on the error, and the possible repetition of the error by the state if declared harmless. Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989); Biggs, 921 S.W.2d at 285. The notice requirement of Article 38.072 is to prevent a defendant from being surprised at trial about a victim's outcry statements. In determining if a failure to comply with Article 38.072, § 2(b)'s notice requirement is harmless error, appellate courts have looked at whether the defendant was actually surprised by the outcry evidence presented by the state and whether the defendant was prejudiced by a lack of notice. Gabriel v. State, 973 S.W.2d 715, 719 (Tex. App.-Waco 1998, no pet.). The nature of the error was the improper admission of hearsay evidence over objection, and Davidson had the opportunity to cross-examine the declarant. While a jury is generally likely to place more weight on the testimony of the victim than on the testimony of the outcry witness, when there are no other corroborating witnesses and the outcry witness is the mother of the victim and the outcry statement is detailed, it is difficult to say that the jury would not place great weight on the outcry witness's testimony. Additionally, the State did not emphasize the hearsay testimony in closing arguments, mentioning it only to say: "She told her mother. She told the authorities, and now she has told you." However, the State did emphasize the outcry testimony by introducing it to the jury first, placing it in a position to influence the jury from the beginning of the trial. Further, the pieces of testimony that the court erred in admitting into evidence were not statements made by the declarant regarding the circumstances around the indicted offense, but were statements describing acts of indecency with a child other than those alleged in the indictment. Finally, there is no evidence in the record that Davidson had actual notice of the content of the outcry witness's testimony, as there was in both Norris and Biggs. In Biggs, the prosecution told the trial court that the state's files contained the outcry witness's statement to the police. Biggs, 921 S.W.2d at 285. The court in Biggs also considered the defendant's failure to claim surprise or ask for a continuance. Id. Davidson never explicitly claimed to be surprised and did not ask for a continuance, but he did object that the testimony was not in the summary. Davidson objected to only part of the outcry testimony. After the objection was overruled, Walraven went into detail about the outcry statement made by A.W., adding that Davidson had made her look at "dirty" magazines, that A.W. had seen "gooey stuff" come out of Davidson's penis "a bunch of times," that this happened "all the time," and repeating that Davidson had had oral sex with A.W. Davidson did not renew his objection, and he had not requested a running objection; therefore, Davidson did not preserve error as to this further testimony. See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Hitt v. State, 53 S.W.3d 697 (Tex. App.-Austin 2001, pet. ref'd). A.W.'s testimony corroborated Walraven's testimony, except for the mention of oral sex, which Davidson waived when he failed to object to it the second time it was mentioned. Based on a review of these factors, we cannot say that the court's error in admitting the outcry witness's objected-to testimony, which was beyond the scope of the summary, had a substantial and injurious effect or influence on the jury's verdict. Therefore, the error was harmless. This point of error is overruled. Finally, Davidson contends that based on the time, content, and circumstances of the purported outcry, there were no indicia of reliability, and the trial court erred in admitting the testimony. The State suggests that Davidson's objections were not sufficient to preserve this issue for appeal. While Davidson did not make a general hearsay objection or use the term reliable, his objections that the testimony was not spontaneous, was coerced by the mother, and was outside the scope of the summary were sufficient to put the court on notice that he was objecting, in part, to the unreliability of the outcry statement. Davidson did not challenge the reliability of the outcry statement during the hearing held outside the presence of the jury. At the time of Davidson's objection to the reliability of the statement, Walraven had testified to the circumstances surrounding the outcry statement. The State had laid the predicate of reliability, and the burden was on Davidson to demonstrate that the statement was unreliable. By not requesting that the court hold a hearing outside the presence of the jury to determine the issue of reliability, Davidson waived that requirement. By overruling Davidson's objection regarding reliability, the court demonstrated its finding that it found the statement was reliable considering the circumstances in which it was made. The court's decision that the statement was reliable is reviewed for abuse of discretion. Reed, 974 S.W.2d at 841. The determination of whether the outcry testimony is reliable must be made on a case-by-case basis. Indicia of reliability that the trial court may consider include (1) whether the child victim testifies at trial and admits making the out-of-court statement, (2) whether the child understands the need to tell the truth and has the ability to observe, recollect, and narrate, (3) whether other evidence corroborates the statement, (4) whether the child made the statement spontaneously in his own terminology or whether evidence exists of prior prompting or manipulation by adults, (5) whether the child's statement is clear and unambiguous and rises to the needed level of certainty, (6) whether the statement is consistent with other evidence, (7) whether the statement describes an event that a child of the victim's age could not be expected to fabricate, (8) whether the child behaves abnormally after the contact, (9) whether the child has a motive to fabricate the statement, (10) whether the child expects punishment because of reporting the conduct, and (11) whether the accused had the opportunity to commit the offense. Norris, 788 S.W.2d at 71, citing Buckley v. State, 758 S.W.2d 343-44 (Tex. App.-Texarkana 1988, no pet.), aff'd, 786 S.W.2d 357 (Tex. Crim. App. 1990). Walraven's testimony indicated that the outcry statement was not made spontaneously and that Walraven prompted and encouraged A.W. to tell Walraven what secret she was keeping with Davidson. However, it did not show that Walraven prompted A.W. as to the substance of the outcry statement. There was no evidence that A.W. had any motivation to accuse Davidson of a crime. Additionally, Walraven's use of the phrase "oral sex" may have been Walraven's wording summarizing what her daughter had described. There is no evidence that the outcry statement was not made in A.W.'s own terminology without manipulation or prompting by Walraven as to its substance. The circumstances suggested that A.W. was afraid to tell her mother what had happened, perhaps fearing punishment. Finally, Walraven's earlier testimony regarding Davidson's role as babysitter had established that Davidson would have had the opportunity to commit the offenses involved in the outcry testimony. Thus, given the information that was before the court at the time the court made the ruling, the record does not show that the court abused its discretion in finding that there were sufficient indica of reliability regarding the time, content, and circumstances of the statement for the statement to be admissible. This point of error is overruled. The judgment of the trial court is affirmed. Ben Z. Grant Justice Date Submitted: March 12, 2002 Date Decided: June 4, 2002 Publish

NUMBER 13-00-230-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ LEE MANUEL GOMEZ, Appellant, v. THE STATE OF TEXAS, Appellee. ___________________________________________________________________ On appeal from the 138th District Court of Cameron County, Texas. ____________________________________________________________________ O P I N I O N Before Justices Yanez, Chavez, and Kennedy(1) Opinion by Justice Kennedy Appellant was convicted upon his plea of guilty to the felony offense of burglary of a habitation enhanced by one previous conviction. The appellate attorney herein has detailed the steps taken by the trial court to assure that the plea was taken and the judgment and sentence entered in accordance with the law. She has concluded in her brief that this appeal is wholly frivolous. Anders v. California, 386 U.S. 738 (1967). The brief meets the requirements of Anders as it presents a professional evaluation of why there are no arguable grounds for advancing an appeal. See Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); Lindsey v. State, 902 S.W.2d 9, 11 (Tex. App. ­ Corpus Christi 1995). Appellate counsel has also stated in her brief that she has mailed a copy of her brief to appellant, together with a letter informing appellant of his right to examine the appellate record for the purpose of filing a pro se brief. A copy of the letter is enclosed with the brief. No pro se brief has been filed. In Penson v. Ohio, 488 U.S. 75 (1988), the Supreme Court discussed the responsibilities of an appellate court upon receiving a "frivolous appeal" brief. The court stated: "Once the appellate court receives this brief, it must then, itself, conduct a full examination of all the proceedings to decide whether the case is wholly frivolous." We have done this and we conclude that this appeal is wholly frivolous. We AFFIRM the judgment of the trial court. Appellate counsel has also filed a motion to withdraw as counsel which is hereby granted. NOAH KENNEDY Retired Justice Do not publish. Tex. R. App. P. 47.3(b). Opinion delivered and filed this the 21st day of December, 2000. 1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).

41 So.3d 128 (2010) In re AMENDMENTS TO THE FLORIDA RULES OF JUDICIAL ADMINISTRATION—RULE 2.236. No. SC10-241. Supreme Court of Florida. July 1, 2010. Judge Lisa Davidson, Chair, Florida Judicial Administration Committee, Eighteenth Judicial Circuit, Viera, FL, Judith L. Kreeger, Chair, Florida Courts Technology Commission, Eleventh Judicial Circuit, Miami, FL and Laura Rush, Staff, Florida Courts Technology Commission, Office of the State Courts Administrator, Tallahassee, FL, for Petitioner. Kenneth A. Kent, Executive Director, Florida Association of Court Clerks and Comptrollers, Tallahassee, FL, Responding with comments. PER CURIAM. The Florida Courts Technology Commission (FCTC or Commission) has filed a petition asking the Court to adopt a new Rule of Judicial Administration that establishes the FCTC as a standing Supreme Court commission.[1] We have jurisdiction[2] and adopt the new rule. After the FCTC filed its petition, we published the proposed new rule for comment. The Florida Association of Court Clerks and Comptrollers (FACC) filed a comment, to which the FCTC filed a response. After considering the petition, the FACC's comment, and the FCTC's response, we adopt new Rule of Judicial Administration 2.236, Florida Courts Technology Commission, with modifications discussed below. New Rule 2.236 New rule 2.236 formally establishes the FCTC as a standing Court commission with clearly defined responsibilities and authority. It places the FCTC on a status equal to that of other standing judicial branch commissions established by rule.[3] More importantly, unlike the current practice of establishing and charging the FCTC by successive administrative order issued every two years by the incoming *129 chief justice,[4] establishing the FCTC by rule will stabilize the Commission's responsibilities, authority, and stature in the judicial branch. As the court system moves from a system that depends on paper records to a system that relies on digital information and the use of technology in our courts expands, it is imperative that there is a permanent judicial branch commission to oversee and monitor the development, implementation, and use of technology in the trial and appellate courts, and to assist in the enforcement of the technology standards and requirements adopted by this Court. The judicial branch long-range strategic plan recognizes the value of information technology to improve court access and operations,[5] and this Court has recognized issues that accompany the transition to a system that relies on digital information.[6] The State's recent revenue shortfalls highlight the need for carefully developed technology policies and priorities for the judicial branch and for a mechanism to implement and enforce those policies and priorities. Moreover, in the advent of electronic filing of court documents and implementation of a statewide electronic filing portal, the need for a standing Court commission equipped to provide consistent oversight and direction cannot be overstated. See In re Electronic Access to the Courts (Statewide Standards), Fla. Admin. Order No. AOSC09-30 (July 1, 2009); In re Electronic Filing Committee, Fla. Admin. Order No. AOSC09-50 (Nov. 25, 2009). FCTC Responsibilities and Authority New rule 2.236 charges the FCTC with broad responsibility for overseeing, managing, and directing the development and use of technology within the judicial branch under the direction of the Court.[7] Subdivision (b) sets forth these responsibilities. The rule ensures that the FCTC will develop all technology policies and standards for the trial and appellate courts and will review all applications for new court technology systems and modifications to existing systems to ensure compliance with standards adopted by the Court. The rule also gives the Commission authority to enforce the technology policies, standards, and requirements adopted by the Court, by requiring the termination or modification of, or by imposing conditions on, a program or system application that is not in compliance. Under subdivision (b)(4), the Commission will direct and establish priorities for *130 the work of all judicial branch technology committees. We have modified the subdivision to make clear that the Commission must review and approve recommendations made by any court committee that concerns judicial branch technology matters or otherwise implicates court technology policy. We also have added a new subdivision (g) to the rule to formally establish the Appellate Court Technology Committee (ACTC or Committee) as a standing committee of the FCTC[8] and to formally recognize the responsibilities of that vital committee. The new subdivision clarifies that ACTC recommendations that implicate court technology policy must be reviewed and approved by the Commission, and the Commission will report those recommendations and the action it takes on them to the Court. Significantly, the subdivision provides a vehicle for the Committee to support or oppose FCTC action on its recommendations. Operational Procedures, Reports, and Court Action Subdivision (c) of the rule requires the FCTC to establish operational procedures necessary to carry out its responsibilities, subject to final approval by the Court. For example, subdivision (c)(2) requires the Commission to establish a method for monitoring the development of new court technology projects. This would include such projects as the ongoing Manatee County pilot program for providing electronic access to court records. We have modified subdivision (c)(7) and added subdivision (c)(8) to clarify that the Commission can establish both workgroups to assist with projects of limited duration and more formal subcommittees to work on long-term projects that will require substantial effort. The work of the existing Electronic Filing Committee, which also is currently created by administrative order,[9] is an example of a long-term technology project that would justify the appointment of a more formal subcommittee. Therefore, consistent with new subdivision (c)(8), we direct the FCTC to establish the Electronic Filing Committee as a formal subcommittee of the Commission. As directed by separate administrative order,[10] the Commission established the Subcommittee on Access to Court Records (Access Subcommittee) for the limited purpose of advancing rule amendments implementing recommendations of the Committee on Privacy and Court Records.[11] The Access Subcommittee's charge is an example of the type of limited, short-term work that, under new subdivision (c)(7), would be conducted by a workgroup of the Commission. Accordingly, we direct the Commission to continue the Access Subcommittee as a workgroup of the Commission until its work is complete. *131 Under subdivision (f), the FCTC is required to annually report its recommendations to the Court. We have added the requirement that the report include ACTC recommendations that implicate court technology policy. As noted above, the ACTC will have the ability to submit a companion report on those recommendations. Subdivision (d), as modified, makes clear that the Chief Justice and the Court have wide latitude to adopt or reject, in whole or in part, refer back, or take alternative action on the FCTC recommendations or decisions. Membership Subdivision (e) of the rule outlines the membership and organization of the Commission. The membership of the Commission is expanded from the current 17 members to 25 members, which will be appointed by the Chief Justice after consultation with the Court. The membership will include both institutional users of court technology, such as judges, court administrators, court technology officers, and trial and appellate clerks of court, as well as non-court personnel, including members of The Florida Bar and members of the public at large.[12] All members must represent the interests of the public and state courts generally rather than the separate interests of any particular district, circuit, county, division, or other organization. However, we have modified subdivision (e)(2) to add an additional clerk of court to the membership, for a total of four clerks of court. Allowing for the appointment of an additional trial court clerk should ensure that small, medium, and large counties will be represented on the Commission. In adopting the new rule, we considered the comment filed by the FACC. The FACC's stated concern is with the composition of a permanent body that would be created by the Legislature to oversee and monitor the development, management, and implementation of the integrated computer system referred to in section 29.008(1)(f)(2), Florida Statutes (2009). See Technology Review Workgroup, Plan for Identifying and Recommending Options for Implementing the Integrated Computer System for the State Court System (2010). The FACC urges that the composition of such a governance body must ensure that all justice system partners, including state attorneys, public defenders, and guardians ad litem, as well as courts and clerks of court, have a role in the governance structure. We appreciate the FACC's concern that all justice system partners have a forum to address technology issues that may impact them. But the focus of the Court's concern here and the present need in the judicial branch is for a permanent body to assist with the governance and oversight of technology relating to case processing and case and records management, including access to court records. The FCTC's responsibility, under the new rule, will be to advise the Court on technology issues impacting the judicial branch and to oversee the development and use of technology in our trial and appellate courts. To that end, the FCTC's membership appropriately includes district, circuit, and county court judges, clerks of court, court administrators, and court technology officers, as well as Florida Bar members and members of the public. *132 The FCTC's focus will continue to be on the development of technology in our courts. However, to the extent participation and input from other justice system partners is warranted, the new rule provides for that participation and input. For example, subdivision (b)(14)(C) of the new rule specifically requires the Commission to address technology issues raised by the courts' justice system partners. Subdivision (c)(1) requires the FCTC to establish a method for ensuring input on judicial branch technology issues from all interested constituencies in the state. And under subdivisions (c)(7) and (c)(8), the Commission must establish procedures for appointing workgroups and subcommittees that may include non-commission members when non-member participation is warranted. Therefore, justice system partners not represented on the Commission will have a vehicle to bring technology issues that may impact them to the Commission and the Commission will have established procedures for seeking valuable input and active participation in the development of court technology. Accordingly, we adopt new Rule of Judicial Administration 2.236 as reflected in the appendix to this opinion. The new rule shall become effective immediately upon the release of this opinion. It is so ordered. CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur. APPENDIX RULE 2.236. FLORIDA COURTS TECHNOLOGY COMMISSION (a) Purpose. The purpose of this rule is to establish a Florida Courts Technology Commission with responsibility for overseeing, managing, and directing the development and use of technology within the judicial branch under the direction of the supreme court as specified in this rule. For the purpose of this rule, the term "judicial branch" does not include The Florida Bar, the Florida Board of Bar Examiners, or the Judicial Qualifications Commission. (b) Responsibilities. The Florida Courts Technology Commission is charged with specific responsibility to: (1) make recommendations to the supreme court on all matters of technology policy impacting the judicial branch to allow the supreme court to establish technology policy in the branch; (2) make recommendations to the supreme court regarding policies for public access to electronic court records; (3) make recommendations to the supreme court about the relative priorities of various technology projects within the judicial branch so that the supreme court can establish priorities. The commission should coordinate with the Trial Court Budget Commission and District Court of Appeal Budget Commission to secure funds for allocation of those priorities; (4) direct and establish priorities for the work of all technology committees in the judicial branch, including the Appellate Court Technology Committee, and review and approve recommendations made by any court committee concerning technology matters or otherwise implicating court technology policy. (5) establish, periodically review, and update technical standards for technology used and to be used in the judicial branch to receive, manage, maintain, use, secure, and distribute court records by electronic means, consistent with the technology policies established by the supreme court. These standards shall be coordinated with the strategic plans of the judicial branch, *133 rules of procedure, applicable law, and directions from the supreme court, and shall incorporate input from the public, clerks of court, supreme court committees and commissions, and other groups involved in the application of current technology to the judicial branch; (6) create procedures whereby courts and clerks and other applicable entities can apply for approval of new systems, or modifications to existing systems, that involve the application of technology to the receipt, management, maintenance, use, securing, and distribution of court records within the judicial branch, and between the public and the judicial branch; (7) evaluate all such applications to determine whether they comply with the technology policies established by the supreme court and the procedures and standards created pursuant to this rule, and approve those applications deemed to be effective and found to be in compliance; (8) develop and maintain security policies that must be utilized to ensure the integrity and availability of court technology systems and related data; (9) ensure principles of accessibility are met for all court technology projects, with consideration and application of the requirements of the Americans with Disabilities Act of 1990 and any other applicable state or federal disability laws; (10) ensure that the technology utilized in the judicial branch is capable of required integration; (11) periodically review and evaluate all approved technology in the judicial branch to determine its adherence to current supreme court technology policies and standards; (12) review annual and periodic reports on the status of court technology systems and proposals for technology improvements and innovation throughout the judicial branch; (13) recommend statutory and rule changes or additions relating to court technology and the receipt, maintenance, management, use, securing, and distribution of court records by electronic means; (14) identify technology issues that require attention in the judicial branch upon: (A) referral from the chief justice; (B) referral from the supreme court; or (C) identification by the Florida Courts Technology Commission on its own initiative based on recommendations of the public, commission members, judges, justice system partners, The Florida Bar, clerks of court, the Florida Legislature (either informally or through the passage of legislation), the Governor, the cabinet, or executive branch agencies; and (15) coordinate proposed amendments to rules of court procedure and judicial administration necessary to effectuate the commission's charge with appropriate Florida Bar rules committees. If a program, system, or application is found not to comply with the policies established by the supreme court or the standards and procedures established by the commission, the commission may require that it be terminated or modified or subject to such conditions as the commission deems appropriate. (c) Operational Procedures. The Florida Courts Technology Commission shall establish operating procedures necessary to carry out its responsibilities as outlined in subdivision (b), subject to final approval by the supreme court. These procedures shall include: *134 (1) a method for ensuring input from all interested constituencies in the state of Florida; (2) a method for monitoring the development of new court technology projects, reviewing reports on new technology projects, and reviewing the annual reports; (3) a method whereby courts and clerks and other applicable entities can apply for approval of new technology systems or applications, or modifications to existing systems or applications, that affect the receipt, management, maintenance, use, securing, and distribution of court records; (4) a system to evaluate all applications for new or modified technology systems to determine whether they comply with the policies and technical standards established by the supreme court and the procedures created pursuant to this rule, and are otherwise appropriate to implement in the judicial branch; (5) a process for making decisions on all applications for new or modified technology systems and communicating those decisions to interested parties. If an application is found to comply with technology policies and standards, the commission may approve the application and its written approval shall authorize the applicant to proceed. For all applications that are not approved, the commission shall assist the applicant in remedying any deficiencies that the commission identifies; (6) a method to monitor all technology programs, systems, and applications used in the judicial branch to ensure that such programs, systems, and applications are operating in accordance with the technology policies established by the supreme court and technical standards established by the commission. The commission may ask any operator of a program, system, or application to appear before it for examination into whether the program, system, or application complies with technology policies and standards; (7) a process to conduct the limited, short-term work of the commission through work groups that it may constitute from time to time. Work groups may make recommendations to the commission as a whole. The chair of the commission may appoint non-commission members to serve on any work group; and (8) a process to conduct substantial work of the commission requiring long-term commitment through subcommittees. Subcommittees may make recommendations to the commission as a whole. The chair of the commission may appoint non-commission members to serve on any subcommittee. (d) Action by Supreme Court or Chief Justice on Recommendations of or Decisions by Florida Courts Technology Commission. The supreme court or chief justice, as appropriate, may take any of the following actions on recommendations or decisions made by the Florida Courts Technology Commission: (1) Adopt the recommendation or decision of the commission in whole or in part, with or without conditions. (2) Refer specific issues or questions back to the commission for further study or alternative recommendations. (3) Reject the recommendation or decision in whole or in part. (4) Take alternative action. (e) Membership and Organization. (1) The Florida Courts Technology Commission shall be composed of 25 voting members appointed by the chief justice after consultation with the court. All members shall represent the interests of the public and of Florida courts generally rather than the separate interests of any *135 particular district, circuit, county, division, or other organization. The membership shall include members who have experience in different divisions of courts, in court operations, and in using technology in court for case processing, management, and administrative purposes, and shall provide geographic, racial, ethnic, gender, and other diversity. (2) The membership shall include 2 district court judges, 5 circuit court judges (1 of whom must be a chief judge), 2 county court judges, 3 court administrators, 3 court technology officers, 4 clerks of court (1 of whom must be a clerk of an appellate court), 4 members of The Florida Bar (1 of whom must be a member of the Board of Governors of The Florida Bar), and 2 members of the public at large. (3) The members of the commission who are judicial officers, court technology officers, and court administrators must constitute a majority of the commission and must constitute a majority of any quorum at all meetings of the commission. (4) A supreme court justice shall be appointed by the chief justice to serve as supreme court liaison to the commission. (5) Each member will be initially appointed for a 1-, 2-, or 3-year term, with the terms staggered to ensure continuity and experience on the commission and for three year terms thereafter. Retention and reappointment of each member will be at the discretion of the chief justice. (6) The chief justice shall appoint 1 member to serve as chair for a two-year term. (f) Schedule of Reports. The Florida Courts Technology Commission shall prepare an annual report of its activities, which shall include its recommendations for changes or additions to the technology policies or standards of Florida courts, its recommendations for setting or changing priorities among the programs within the responsibility of the commission to assist with budget resources available, its recommendations for changes to rules, statutes, or regulations that affect technology in Florida courts and the work of the commission. The report also shall include recommendations of the Appellate Court Technology Committee that implicate court technology policy and the action taken on those recommendations by the commission. This report shall be submitted to the supreme court on April 1 of each year. (g) Appellate Court Technology Committee. (1) Purpose. The purpose of this subdivision is to establish the Appellate Court Technology Committee as a standing committee of the Florida Courts Technology Commission responsible for providing technical guidance and consultation to the commission regarding information systems development and operational policies and procedures relating to automation in the district courts of appeal. (2) Responsibilities. The Appellate Court Technology Committee is charged with specific responsibility to: (A) coordinate with and provide advice to the Florida Courts Technology Commission regarding the development of standards and policies for implementing new technologies, system security, public access to district court information, and system support; (B) develop, recommend, and implement policy and procedures consistent with the overall policy of the supreme court relating to technology issues affecting the district courts of appeal; (C) recommend and coordinate the purchase and upgrade of hardware and software in relation to the district courts' office automation systems and networks; *136 (D) oversee and direct expenditures of designated state court system trust funds for technology needs in the district courts; (E) promote orientation and education programs on technology and its effective utilization in the district court environment; (F) ensure principles of accessibility are met for all court technology projects, with consideration and application of the requirements of the Americans with Disabilities Act of 1990 and any other applicable state or federal disability laws; (G) propose amendments to rules of court procedure and judicial administration necessary to effectuate the committee's charge, after coordination with appropriate Florida Bar rules committees; and (H) identify budget issues and funding sources and coordinate with the District Court of Appeal Budget Commission on recommendations requiring additional funding or resources for implementation in the district courts of appeal. (3) Membership and Terms. (A) The chief justice will select the chair of the committee from among the judges of the district courts, with input from the chief judges. (B) The chief judges of the remaining district courts will designate a representative from each of their courts to serve as member of the committee. (C) The chair and members will serve 3-year terms. Retention and reappointment of the chair will be at the discretion of the chief justice. Retention and reappointment of the representative from each district court will be at the discretion of the district court chief judge. (4) Commission Approval and Reporting of Policy Recommendations. Committee recommendations that implicate court technology policy must be reviewed and approved by the commission. The commission will report the committee's policy recommendations and the action taken on them by the commission to the supreme court. The committee may submit to the court a companion report on its recommendations, supporting or opposing the action taken by the commission. (h) Staff Support and Funding. The Office of the State Courts Administrator shall provide primary staff support to the Florida Courts Technology Commission and the Appellate Court Technology Committee. Adequate staffing and resources shall be made available by the Office of the State Courts Administrator to ensure that the commission and committee are able to fulfill their responsibilities under this rule. NOTES [1] Prior to filing the proposal with Court, the Commission submitted its proposal to the Rules of Judicial Administration Committee, which supports the new rule in concept. [2] See art. V, § 2(a), Fla. Const; Fla. R. Jud. Admin. 2.140(g). [3] See, e.g., Fla. R. Jud. Admin. 2.230 (Trial Court Budget Commission); Fla. R. Jud. Admin. 2.235 (District Court of Appeal Budget Commission). [4] See, e.g., In re Florida Courts Technology Commission, Fla. Admin. Order No. AOSC09-23 (June 1, 2009); In re Florida Courts Technology Commission, Fla. Admin. Order No. AOSC07-59 (Nov. 19, 2007); In re Florida Courts Technology Commission, Fla. Admin. Order No. AOSC05-92 (Dec. 30, 2005); In re Florida Courts Technology Commission, Fla. Admin. Order No. AOSC03-35 (Aug. 26, 2003); In re Florida Courts Technology Commission, Fla. Admin. Order No. AOSC01-29 (June 18, 2001). [5] See Florida Supreme Court Task Force on Judicial Branch Planning, The Long-Range Strategic Plan for the Florida Judicial Branch (2009-2015) at 10 (2009). [6] See, e.g., In re Amendments to Fla. Rule of Judicial Admin. 2.420 & Fla. Rules of Appellate Procedure, 31 So.3d 756 (Fla.2010) (recognizing that enacting a procedure for protecting confidential records is a necessary prerequisite to the Court's ongoing effort to provide the public with electronic access to court records); In re Implementation of Report and Recommendations of the Committee on Privacy and Court Records, Fla. Admin. Order No. AOSC06-20 (June 30, 2006). [7] Due to budget cuts sustained over the past few years, fewer staff are available to support the work of the FCTC under this rule, which may result in limitations on the ability of the Commission to carry out its responsibilities, unless additional resources can be obtained from the Legislature. [8] Like the FCTC, the ACTC currently is established by administrative order issued by the Chief Justice. See In re Appellate Court Technology Committee, Fla. Admin. Order No. AOSC08-82 (Sept. 23, 2008). [9] See In re Electronic Filing Committee, Fla. Admin. Order No. AOSC09-50 (Nov. 25, 2009). [10] See In re Florida Courts Technology Commission, Subcommittee on Access to Court Records, Fla. Admin. Order No. AOSC09-03 (Jan. 27, 2009). [11] See In re Amendments to Fla. Rule of Judicial Admin. 2.420 & Fla. Rules of Appellate Procedure, 31 So.3d 756 (adopting procedures designed to protect confidential information in court records); In re Implementation of Comm. on Privacy & Court Records Recommendations, No. SC08-2443 (Fla. petition filed Dec. 22, 2008) (proposing rule amendments to minimize the inclusion of unnecessary personal information in documents filed with the court). [12] Under subdivision (e)(2) the membership will include: two district court judges; five circuit court judges, including one chief judge; two county court judges; three court administrators; three court technology officers; four clerks of court, including one appellate court clerk; four Florida Bar members, including one Board of Governors member; and two members of the public at large.

Citation Nr: 1602922 Decision Date: 01/29/16 Archive Date: 02/05/16 DOCKET NO. 09-14 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), to include bipolar II disorder, depression, and anxiety. REPRESENTATION The Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Amanda Radke, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served honorably on active duty from October 1974 to October 1977. This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, which in pertinent part denied service connection for an acquired psychiatric disability. The Board previously remanded this appeal in July 2011 and January 2014. In an April 2015 decision, the Board granted service connection for PTSD, and remanded the issue of service connection for an acquired psychiatric disability other than PTSD. The issue of service connection for an acquired psychiatric disability other than PTSD is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Service Connection for an Acquired Psychiatric Disability, other than PTSD In April 2015, the Board remanded the appeal to obtain a VA medical opinion regarding whether any acquired psychiatric disorder other than PTSD had its onset in service or is otherwise causally or etiologically related to the Veteran's military service, and whether any acquired psychiatric disorder other than PTSD is etiologically related to the service-connected PTSD. In the May 2015 VA medical opinion, the VA examiner opined that each psychiatric disability less likely than not had its onset during military service or is etiologically related to service because there is no evidence to suggest a relationship and it would require resorting to mere speculation to make the conclusion. The Board noted that the record showed diagnoses of bipolar disorder, anxiety and depression. The examiner did not provide an opinion regarding whether any psychiatric disability is caused by or aggravated by the service-connected PTSD. When VA undertakes to examine a veteran, VA is obligated to ensure that the examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124. Without an adequate examination, the Board lacks the evidence necessary to adjudicate the Veteran's claim. See Bowling v. Principi, 5 Vet. App. 1, 12 (2001); 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Additionally, a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. The Board finds the above opinion inadequate as it does not provide sufficient rationale for the conclusion that that the psychiatric disorder is not etiologically related to service, as the VA examiner later claims that making an opinion that is it related to service would be speculative. Furthermore, the VA examiner did not address whether any psychiatric disability other than PTSD is secondary to the service-connected PTSD. Accordingly, the issue of service connection for a psychiatric disorder other than PTSD is REMANDED for the following action: 1. Schedule a VA examination with another qualified examiner to obtain an opinion as to the nature and etiology of the claimed acquired psychiatric disorders. The VA examiner should diagnose all Axis I psychiatric disorders other than PTSD and then, based upon a review of all the record (including service treatment records, post-service treatment records, history of the Veteran, statements from the Veteran and family), should offer the following opinion with supporting rationale with respect to each diagnosed disability: Is it at least as likely as not (50 percent probability or greater) that each identified psychiatric disorder was incurred in or caused by active service, to include the Veteran's statements of in-service stressors? Is it at least as likely as not (50 percent probability or greater) that each identified psychiatric disorder was caused by the service-connected PTSD? Is it at least as likely as not (50 percent probability or greater) that each identified psychiatric disability was aggravated by the service-connected PTSD? 2. Then readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and the representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).

40 S.W.3d 426 (2000) STATE of Tennessee v. John C. GARRISON. Supreme Court of Tennessee, at Knoxville. November 22, 2000. *428 Michael E. Moore, Solicitor General, Michael J. Fahey, II, Assistant Attorney General, James Michael Taylor, District Attorney General, and James W. Pope, III, Assistant District Attorney General, for the appellant, State of Tennessee. Gregory P. Isaacs, Knoxville, TN, for the appellee, John Clark Garrison. *427 OPINION BIRCH, J., delivered the opinion of the court, in which ANDERSON, C.J., DROWOTA, HOLDER, JJ., and JOHN K. BYERS, S.J., joined. The defendant, John C. Garrison, was convicted by a jury of solicitation to commit first degree murder. In this appeal, he raises two issues: (1) whether trial counsel's failure to communicate a plea bargain offer from the State is per se prejudicial to the extent necessary to satisfy the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); and (2) whether the trial court committed reversible error when it failed to instruct the jury that the "request," as used in the statutory definition of the offense of solicitation, must be intentional. After a thorough consideration of the record and a full review of the authorities, we conclude that trial counsel's failure to communicate a plea bargain offer does not demonstrate, alone, prejudice sufficient to satisfy the second prong of Strickland. We conclude also that the trial court's omission of certain required language from the jury instruction constitutes harmless error. The judgment of the Court of Criminal Appeals is, therefore, reversed and the case is dismissed. I. Facts and Procedural History As a factual prelude to our discussion of the case under submission, John C. Garrison, the defendant, pleaded guilty and was convicted of two counts of theft over $10,000.[1] He was sentenced to concurrent terms of eight years in the Department of Correction. Garrison was irate that he had not received probation. Incarcerated during the pendency of the appeal of the eight-year sentence, he discussed his case with fellow inmates. He specifically mentioned the "unavailability" of one of the witnesses who had testified against him and the withdrawal of his plea of guilty. He intimated to them that were the two above-mentioned events to occur, there would be insufficient evidence to convict him of theft.[2] These discussions included *429 references to the possibility of procuring this witness's murder. During the course of these discussions, Garrison engaged in separate discussions with prison officials. He told them that he had been approached by other inmates with offers to arrange the murder of the witness. Also during this period of intrigue, and unbeknownst to Garrison, some of the discussions were recorded. One taping was done by an agent of the Tennessee Bureau of Investigation posing as a "killer for hire." The other taping was accomplished by an inmate informant. The evidence preserved on the tapes tended to establish that Garrison indeed solicited the murder of the witness. Garrison was indicted for solicitation to commit first degree murder,[3] and the trial was set for May 15, 1995. He believed he would be acquitted and retained Thomas N. DePersio, Esquire. DePersio's absence from his office for the full month of March and a week in April 1995 (apparently because of "depression"), his missed appointments, and his unanswered telephone calls led Garrison to suspect that DePersio had not properly investigated the case. Garrison asked him directly about his readiness for trial. DePersio assured him that he was ready. At no point before the completion of the proof did DePersio reveal that the State had offered a plea agreement of a ten year sentence as a Range I, standard offender to be served consecutively to the theft sentences. At trial for solicitation to commit murder, Garrison testified that he had engaged in pretense when he had discussed hiring a killer with the informant and with the agent. As his reason for the pretense, he said that he did not want to engender the suspicions of the inmates while he was gathering information to assist officials in apprehending the would-be murderers. The jury rejected this testimony and convicted Garrison of solicitation to commit first degree murder. He was sentenced as a Range II, multiple offender to sixteen years imprisonment to be served consecutively to the theft sentences. II. Analysis A. Ineffective Assistance of Counsel Prior to trial, DePersio approached the assistant district attorney general and asked if settlement was possible. The assistant district attorney general responded with a sentencing offer of Range I, ten years, consecutive to certain Knox County sentences. The case, however, proceeded to trial, and following conviction, the trial court imposed a sentence of sixteen years—six years greater than the State's pre-trial offer. It is clear that DePersio failed to communicate this offer to Garrison before trial. In fact, at the hearing on the motion for new trial, an affidavit by DePersio was filed stating the following: Shortly before trial of this cause, I spoke with Assistant District Attorney Pope ... concerning a potential plea agreement in this case. Assistant District Attorney Pope communicated to me a plea offer of 10 years Range I, standard, if Mr. Garrison pled to all counts of the indictment. Although I met with Mr. Garrison prior to the trial of this cause, I never related to him the offer given to me by Assistant District Attorney Pope. Mr. Garrison never learned of the State's offer until after the trial of the matter had been concluded. DePersio testified at the hearing on the motion for new trial that after he had *430 informed Garrison of the offer, Garrison stated that he would not have accepted it. DePersio also testified that he did not believe his failure to inform Garrison of the offer fell below the standard of competence required of attorneys because Garrison had clearly and consistently maintained the need to go to trial to avoid a prolonged incarceration. He testified that he was confident Garrison would not have accepted the offer. In overruling Garrison's motion for a new trial, the trial court observed: With regard to the failure to communicate the State's plea offer, this Court finds that the Defendant had communicated to his attorney early on and throughout his discussions that he would not negotiate a plea. The Court would further note that this particular Defendant was quite familiar with the plea bargaining process, having entered into many pleas over the preceding decade, including four felony pleas.... It should be noted that there is no reason to believe nor proof presented that this Defendant would have accepted the ten (10) year sentence offered by the State a few days before trial. Thus, by implication, the trial court found that the offer as described by DePersio had indeed been made and that DePersio had failed to relate it to Garrison. As expressed above, the trial court ruled that there was no reason to believe that Garrison would have accepted the offer. It is by reason of this finding that the trial court concluded that Garrison had failed to demonstrate prejudice. Thus, the trial court rejected the claim of ineffective assistance of counsel. The Sixth Amendment to the United States Constitution and Article I, § 9 of the Tennessee Constitution guarantee criminal defendants the right to representation by counsel. State v. Burns, 6 S.W.3d 453, 461 (Tenn.1999). "[T]he right to such representation encompasses the right to `reasonably effective' assistance, that is, within the range of competence demanded of attorneys in criminal cases." Id. (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2065, 80 L.Ed.2d at 693). A defendant is not entitled to redress for a violation of that right, however, unless the substandard performance of the attorney negatively affected the ultimate judgment. Strickland, 466 U.S. at 691-92, 104 S.Ct. at 2067-68, 80 L.Ed.2d at 696. In Strickland, the United States Supreme Court adopted a two-prong test for determining whether an ineffective assistance of counsel claim merits relief: (1) the defendant must show that counsel's performance was deficient because the "representation fell below an objective standard of reasonableness," and (2) 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."[4] 466 U.S. at 687-88, 694, 104 S.Ct. at 2064-65, 2068, 80 L.Ed.2d at 693-94, 698. The legal premise that counsel's failure to relate a plea offer to a defendant renders counsel's representation deficient[5]*431 was established by this Court in Harris v. State, 875 S.W.2d 662 (Tenn.1994). Therefore, because the State does not contest the finding implicitly made by the trial court and expressly approved by the Court of Criminal Appeals that DePersio failed to communicate the plea offer to Garrison, we find that Strickland's first prong is satisfied, and we focus on the second prong. As to the second prong of the analysis, which requires a finding of prejudice, Harris is not dispositive. Under Strickland's second prong, a petitioner must demonstrate that counsel's omission caused prejudice to his or her cause. Typically, the petitioner must show that counsel's errors were so serious as to deprive the petitioner of a fair trial, a trial whose results are reliable. Id.; Henley v. State, 960 S.W.2d 572, 579-80 (Tenn.1997). In cases where counsel did not convey a plea bargain offer to a defendant, however, the fair trial standard described above is not applicable. This inapplicability is obvious—the defendant may have received a fair trial, yet may have been prevented, by below-standard conduct of counsel, from avoiding trial altogether. Thus, a fair trial provides no remedy for counsel's pre-trial failures in this regard. In lieu of the "fair trial" test for prejudice arising out of claims of ineffective assistance in the plea stage, the United States Supreme Court has established a different standard. When a petitioner asserts that he or she entered a plea as a result of ineffective assistance, he or she 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." Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). In the context of a petitioner who seeks to reinstate (rather than withdraw) a plea offer, the petitioner must show that there is a reasonable probability that he or she would have accepted the plea had it been properly communicated to him or her. Such a "reasonable probability" is defined as a "probability sufficient to undermine confidence in the outcome" of the proceedings. Henley, 960 S.W.2d at 579 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698); see also Goad, 938 S.W.2d at 370. In Harris, trial counsel failed to communicate to the defendant the offer made by the State. 875 S.W.2d at 663. The defendant went to trial ignorant of the State's offer and was convicted. He was sentenced to a prison term far in excess of the uncommunicated plea offer. Id. The State, conceding deficient representation, contended that no prejudice was shown because the record established that the trial judge would not have accepted the plea bargain if submitted. Id. at 664. In Harris, we affirmed the finding of deficient representation and held that the defendant's ignorance of the plea offer so undermined confidence in the outcome of the prosecution as to demonstrate sufficient prejudice to satisfy the second prong of Strickland. Id. at 665-66. In the case under submission, however, the record includes testimony that when Garrison learned of the offer during jury deliberations, he indicated that he would not have accepted it, and the trial court apparently accredited that testimony. Thus, there is *432 no reasonable probability that DePersio's failure to convey the State's offer affected the outcome of the plea process. Under such facts, this Court cannot find that the prejudice prong has been satisfied, despite DePersio's initial failure to communicate the offer. Accordingly, the Court of Criminal Appeals's judgment remanding the case for the resumption of the plea negotiations is reversed. B. Jury Instructions Under the United States and Tennessee Constitutions, a defendant has a constitutional right to trial by jury. U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...."); Tenn. Const. Art. I, § 6 ("[T]he right of trial by jury shall remain inviolate, and no religious or political test shall ever be required as a qualification for jurors."). In Tennessee, this right dictates that all issues of fact be tried and determined by twelve jurors. See State v. Bobo, 814 S.W.2d 353, 356 (Tenn.1991); Willard v. State, 174 Tenn. 642, 130 S.W.2d 99 (Tenn.1939). Thus, it follows that a defendant has a right to a correct and complete charge of the law, so that each issue of fact raised by the evidence will be submitted to the jury on proper instructions. See State v. Teel, 793 S.W.2d 236, 249 (Tenn.1990). Garrison was indicted for solicitation to commit first degree murder. By statute: Whoever, by means of oral, written or electronic communication, directly or through another, intentionally commands, requests or hires another to commit a criminal offense, or attempts to command, request or hire another to commit a criminal offense, with the intent that the criminal offense be committed, is guilty of the offense of solicitation. Tenn.Code Ann. § 39-12-102 (1997) (emphasis added). The trial court elided the jury instruction by omitting the statutory language which appears above in bold type.[6] As elided, the instruction given to the jury was as follows: That the Defendant ... requested another to commit the offense of first degree murder ... with the intent that the offense of first degree murder be committed. Relying on State v. Lee,[7] the Court of Criminal Appeals construed the statute defining solicitation to require that for any solicitation charge, whether it be by "command, request or hire," the jury must find both an intent that a criminal offense be committed by another and an intentional communication of that intent to another. It found that the jury charge omitted an instruction that the request itself be intentional, an essential element of the offense. The intermediate appellate court found the error particularly egregious in view of the defendant's theory that his "request" was not serious and held that the error required a new trial. We agree with the intermediate appellate court that the clear language of the statute evinces a legislative intent to require both an intent to solicit and an intent that the crime solicited be committed.[8]*433 This conclusion is supported by the sentencing commission comments, which state that under this section, "the defendant must intentionally try to enlist another in criminal activity and must intend that the offense be committed." Tenn.Code Ann. § 39-12-102, sentencing comm'n cmts. (1997). This interpretation also furthers the purpose of a "solicitation" statute, which is to punish those who sincerely enlist others in criminal deeds. Id. Having found that Garrison's rights were violated because the trial court's charge omitted an essential element of the offense, the next question is whether the error requires a reversal of the conviction. The Tennessee Rules of Appellate Procedure provide that a final judgment "shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process." Tenn. R.App. P. 36. The history of this "harmless error doctrine" and its general application to constitutional errors has been thoroughly documented by this Court. See e.g., Momon v. State, 18 S.W.3d 152 (Tenn.1999); State v. Williams, 977 S.W.2d 101, 104 (Tenn.1998). Of note for purposes of this case is the established principle that "a very limited class of errors have been found to be `structural,' and subject to automatic reversal."[9]Momon v. State, 18 S.W.3d at 152. At issue is whether the trial court's error in omitting an essential element of an offense from the jury charge is structural. *434 Recently, in Neder v. United States, the United States Supreme Court addressed this issue under the United States Constitution and determined that such omissions are not structural and thus are subject to harmless error analysis. 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). The Court stated: [A] jury instruction that omits an element of the offense ... differs markedly from the constitutional violations we have found to defy harmless-error review. Those cases, we have explained, contain a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." Such errors "infect the entire trial process" and necessarily render a trial fundamentally unfair. Put another way, these errors deprive defendants of "basic protections" without which "a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence ... and no criminal punishment may be regarded as fundamentally fair." Unlike such defects as the complete deprivation of counsel or trial before a biased judge, an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. Id. at 8-9, 119 S.Ct. 1827 (citations omitted). Key to the Supreme Court's conclusion that harmless error analysis was appropriate was its observation that "Neder was tried before an impartial judge, under the correct standard of proof and with the assistance of counsel; [and] a fairly selected, impartial jury was instructed to consider all of the evidence and argument in respect to Neder's defense ..." Id. at 9, 119 S.Ct. 1827. Our Court has applied a similar analysis when interpreting the Tennessee Constitution. In State v. Teel, a defendant convicted of felony murder asserted that the trial court's failure to instruct the jury on the definition of rape—the felony supporting the felony murder conviction—constituted reversible error. 793 S.W.2d 236, 249 (Tenn.1990). Although we noted at that time that "[t]he law is unsettled as to whether harmless error analysis is available when a trial court fails to instruct on an essential element of an offense," we concluded that harmless error analysis does apply to the failure to define a separate felony that is an essential element of the felony with which the defendant is charged. Id. On the other hand, in State v. Bobo, we concluded that the trial court's decision to substitute a juror with an alternate after the alternate jurors had been discharged, the case had been submitted, and deliberations had begun, without instructions to the jury to begin deliberations anew, was a "[defect] in the structure of the trial mechanism and thus [defies] analysis by harmless error standards." 814 S.W.2d 353, 356-58 (Tenn.1991). In this case, unlike Bobo, the integrity of the jury as a fact-finding body was not disturbed. Rather, as in Neder and Teel, an impartial jury was required to make its findings pursuant to imperfect instructions by the trial court. We do not find this type of error to be a defect in the structure of the trial mechanism that would "necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence." Thus, we hold that harmless error analysis is appropriate when evaluating omissions of an essential element of an offense from the jury charge. Applying that analysis in this case, we find that the trial court's error was harmless beyond a reasonable doubt. The Court of Criminal Appeals found the error to be reversible in light of Garrison's *435 defense that he was not sincere when he requested that the witness be murdered. The court found that the question whether Garrison intentionally engaged in solicitation was an issue fundamental to his defense, and the trial court's failure to instruct the jury on this intent element thus undermined the reliability of the jury's verdict. However, the decision of the Court of Criminal Appeals misconstrues the statute's two-pronged intent requirement. Garrison's defense actually focuses upon the second prong, the intent that the crime solicited actually be committed. By contending that he engaged in the conversations as a pretext, Garrison was in essence asserting that although he requested that the witness be murdered, he never intended that the murder actually be committed. Garrison never argued that he lacked the requisite intent to engage in a conversation with the undercover agent, and so the first intent requirement, the intent to solicit, effectively has been conceded. Although the second intent requirement, the intent that the crime actually be committed, was contested at trial, the jury found against Garrison on this point. Because the omitted intent requirement was not contested at trial and essentially has been conceded by Garrison, we find that the trial court's failure to instruct on the first intent requirement had no impact on the jury's verdict. Therefore, the error was harmless beyond a reasonable doubt, and the judgment of conviction must be affirmed. III. Conclusion As to trial counsel's failure to inform the defendant of the plea offer made by the State, we agree with the Court of Criminal Appeals that such conduct satisfied the first prong of Strickland. We do not conclude, however, that such failure, alone, demonstrates prejudice to the extent necessary to satisfy the second (prejudice) prong of Strickland. Accordingly, we hold that the defendant has not proven ineffective assistance of counsel under the requirements of Strickland. With regard to the issue concerning the jury instructions, we conclude that the trial court's omission of the statutory language constitutes harmless error. Thus, the judgment of the Court of Criminal Appeals is reversed, and the case is dismissed. Costs are taxed to John C. Garrison. NOTES [1] Garrison was accused of having embezzled money from his business partners. [2] Apparently, Garrison expected to receive a new trial. [3] Tenn.Code Ann. § 39-12-102 (1997). [4] It is the defendant's burden to establish both prongs of the test by clear and convincing evidence. Burns, 6 S.W.3d at 461; see also Goad v. State, 938 S.W.2d 363, 370 (Tenn.1996). [5] As stated in the Standards for Criminal Justice of the American Bar Association: Because plea discussions are usually held without the accused being present, the lawyer has the duty to communicate fully to the client the substance of the discussions.... [T]he client should be given sufficient information to participate intelligently in the decision whether to accept or reject a plea proposal. It is important that the accused be informed both of the existence and the content of proposals made by the prosecutor; the accused, not the lawyer, has the right to decide whether to accept or reject a prosecution proposal.... ABA Standards for Criminal Justice: Prosecution Function and Defense Function, std. 4-6.2 commentary (3d ed.1993). [6] The trial court omitted this language because it found that Garrison never paid the initial $500 fee that had been agreed upon for the alleged murder-for-hire, and thus there was no completed contract of hire between Garrison and the Tennessee Bureau of Investigation agent. [7] 618 S.W.2d 320, 323-24 (Tenn.Crim.App.1981). [8] We find the language of the statute to be unambiguous. The foundation of statutory construction is to ascertain and give effect to the intention and purpose of the legislature. Worrall v. Kroger Co., 545 S.W.2d 736 (Tenn.1977). This legislative intent or purpose is to be ascertained primarily from the natural and ordinary meaning of the language used, without forced or subtle construction that would limit or extend the meaning of the language. "Where the language contained within the four corners of a statute is plain, clear, and unambiguous and the enactment is within legislative competency, `the duty of the courts is simple and obvious, namely, to say sic lex scripta, and obey it.'" Carson Creek Vacation Resorts, Inc. v. State, Dept. of Revenue, 865 S.W.2d 1, 2 (Tenn.1993) (quoting Miller v. Childress, 21 Tenn. (2 Hum.) 320, 321-22 (1841)). [9] the strong interests that support application of the harmless error doctrine, the United States Supreme Court and this Court have consistently held that some errors defy harmless error analysis and require reversal. The cases in which the United States Supreme Court and this Court have refused to apply the harmless error doctrine involve errors that are "structural defects in the constitution of the trial mechanism." These errors have an impact upon "[t]he entire conduct of the trial from beginning to end." Stated another way, "these errors deprive defendants of `basic protections' without which `a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence ... and no criminal punishment may be regarded as fundamentally fair.'" Momon v. State, 18 S.W.3d at 165 (Tenn.1999) (citations omitted). The United States Supreme Court has noted that structural error analysis is appropriate only in a "very limited class of cases," typically where the error has compromised the integrity of the trial process. See Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (complete denial of the assistance of counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (denial of self-representation at trial); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (denial of public trial); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction)).

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE September 27, 2011 Session ASATA D. LOWE v. JAMES FORTNER, WARDEN Appeal from the Circuit Court for Blount County No. C-18295 David R. Duggan, Judge No. E2011-00048-CCA-R3-HC - Filed March 30, 2012 The Petitioner, Asata D. Lowe, was convicted by a Blount County jury of two counts of first degree premeditated murder, two counts of felony murder in the perpetration of a robbery, two counts of felony murder in the perpetration of a theft, one count of especially aggravated robbery, and one count of theft. Lowe subsequently filed a petition for a writ of habeas corpus in the Blount County Circuit Court, which was dismissed after a hearing. On appeal, Lowe argues that the judgments are void because numerous constitutional errors deprived the trial court of authority to try and sentence him. He asserts that his right to a fair trial was violated by the State’s failure to disclose evidence and the trial court’s failure to instruct the jury properly, that his Fourth Amendment rights were violated by the seizure and admission at trial of evidence, that his right to the effective assistance of counsel was violated by his counsel’s performance at trial, and that his right against double jeopardy and due process rights were violated by multiplicitous indictments. Upon review, we affirm the judgment of the habeas court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and N ORMA M CG EE O GLE, J., joined. Andy Long, Maryville, Tennessee, for the Petitioner-Appellant, Asata Lowe. Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Michael L. Flynn, District Attorney General; and Rocky Young, Assistant District Attorney General, for the Appellee, State of Tennessee. OPINION  Background. Following trial, the court merged the felony murder convictions with the first degree premeditated murder convictions. It also merged the theft conviction with the especially aggravated robbery conviction. Lowe received two concurrent life sentences without the possibility of parole for his murder convictions. For especially aggravated robbery, he received a sentence of twenty-five years, to be served consecutively to the life sentences. Lowe argued on direct appeal, among other things, that (1) the trial court failed to instruct the jury on lesser included offenses, (2) the trial court erred in admitting an ammunition magazine into evidence, (3) his convictions for especially aggravated robbery and theft violated his right against double jeopardy, and (4) the indictment was constitutionally defective. State v. Asata Lowe, No. E2000-01591-CCA-R3-CD, 2002 WL 31051631, at *1 (Tenn. Crim. App., at Knoxville, Sept. 16, 2002), perm. app. denied (Tenn. Feb. 3, 2003). This court affirmed the judgment of the trial court. Id. Lowe also filed a petition for post-conviction relief claiming that newly discovered evidence of flaws in an expert’s trial testimony and analysis of bullet lead entitled him to relief, that the State violated the mandate of Brady v. Maryland in failing to turn over a witness’s bloody shorts and to disclose a deal it reached with a witness and that his trial counsel rendered ineffective assistance of counsel. Asata Lowe v. State, No. E2006-02028-CCA-MR3-PC, 2008 WL 631169, at *1 (Tenn. Crim. App., at Knoxville, Mar. 10, 2008), perm. app. denied (Tenn. Aug. 25, 2008). The post-conviction court denied relief, and this court affirmed the post- conviction court’s judgment on appeal. Id. In Lowe’s first petition for writ of habeas corpus, he argued that the judgments of conviction were void based on the ineffective assistance of his trial counsel, “other alleged errors at trial,” and because the statutes proscribing first degree murder and especially aggravated robbery were unconstitutional as a violation of his right to commit such acts. Asata D. Lowe v. State, No. M2009-00444-CCA-R3-HC, 2010 WL 143781, at *1 (Tenn. Crim. App., at Nashville, Jan. 13, 2010). The habeas court summarily dismissed the petition, and this court affirmed the habeas court’s judgment because Lowe “fail[ed] to assert a cognizable claim for which habeas corpus relief may be granted.” Id. Lowe filed the instant petition for writ of habeas corpus and was appointed counsel. After a hearing, the habeas court dismissed the petition, and this timely appeal followed. Analysis. On appeal, Lowe argues that “he is being illegally restrained of his liberty due to the fact that the trial court lacked the authority to convict and sentence him due to the violations of [his] constitutional rights that occurred at the trial of this cause.” Specifically, he alleges that (1) Brady violations committed by the State deprived him of his constitutional right to a fair trial, (2) the trial court’s failure to instruct the jury on lesser included offenses -2- deprived him of his constitutional right to a fair trial, (3) the seizure and subsequent admission at trial of an ammunition magazine deprived him of his Fourth Amendment rights, (4) his counsel’s performance at trial deprived him of his constitutional right to the effective assistance of counsel, and (5) multiplicitous indictments deprived him of his constitutional right against double jeopardy and his due process rights.1 The State responds that the habeas court properly dismissed Lowe’s petition. We agree with the State. “The determination of whether habeas corpus relief should be granted is a question of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000)). Therefore, our review of the habeas corpus court’s decision is de novo. Hart, 21 S.W.3d at 903. A prisoner is guaranteed the right to habeas corpus relief under Article I, section 15 of the Tennessee Constitution. See also T.C.A. §§ 29-21-101 to -130. However, the grounds upon which a writ of habeas corpus may be issued are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). “Habeas corpus relief is available in Tennessee only when ‘it appears upon the face of the judgment or the record of the proceedings upon which the judgment is rendered’ that a convicting court was without jurisdiction or authority to sentence a defendant, or that a defendant’s sentence of imprisonment or other restraint has expired.” Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993) (quoting State v. Galloway, 45 Tenn. 326, 337 (1868)). “[T]he purpose of a habeas corpus petition is to contest void and not merely voidable judgments.” Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). “A void judgment is one in which the judgment is facially invalid because the court lacked jurisdiction or authority to render the judgment or because the defendant’s sentence has expired.” Taylor, 995 S.W.2d at 83 (citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998); Archer, 851 S.W.2d at 161-64). However, as the Tennessee Supreme Court stated in Hickman v. State: [A] voidable judgment is facially valid and requires the introduction of proof beyond the face of the record or judgment to establish its invalidity. Thus, in all cases where a petitioner must introduce proof beyond the record to establish the invalidity of his conviction, then that conviction by definition is merely voidable, and a Tennessee court cannot issue the writ of habeas corpus under such circumstances. 1 Lowe raised a number of additional claims before the habeas court. Those claims not raised on appeal, however, are waived. -3- Hickman v. State, 153 S.W.3d 16, 24 (Tenn. 2004) (internal citations, quotations, and emphasis omitted); see also Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007). Moreover, it is the petitioner’s burden to demonstrate, by a preponderance of the evidence, that the judgment is void or that the confinement is illegal. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). If this burden is met, the petitioner is entitled to immediate release. State v. Warren, 740 S.W.2d 427, 428 (Tenn. Crim. App. 1986) (citing Ussery v. Avery, 432 S.W.2d 656, 658 (Tenn. 1968)). Here, the habeas court properly dismissed the petition because it failed to state a cognizable claim for relief. An alleged failure to disclose evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), is not a proper basis for a habeas corpus petition. Ronald Eugene Gilmore v. Kenneth Locke, Warden, No. M2005-01235-CCA-R3-HC, 2006 WL 1097493, at *3 (Tenn. Crim. App., at Nashville, Mar. 30, 2006). Nor is a trial court’s failure to instruct a jury concerning lesser included offenses cognizable in a petition for a writ of habeas corpus. “Although the failure to instruct on appropriate lesser included offenses is indeed an error of constitutional magnitude, omission of instructions on lesser included offenses renders the conviction voidable rather than void.” Mathis T. Vaughn v. James Worthington, Warden, No. E2007-00808-CCA-R3-HC, 2008 WL 58956, at *2 (Tenn. Crim. App., at Knoxville, Jan. 4, 2008) (internal citations omitted); see also Kevin O. Hooks v. Steven Dotson, Warden, No. W2009-02630-CCA-R3-HC, 2010 WL 2787694, at *2 (Tenn. Crim. App., at Jackson, July 15, 2010) (holding that a claim based on jury instructions is not cognizable in habeas corpus proceedings). Similarly, claims of Fourth Amendment violations do not result in void judgments and are not cognizable under habeas corpus review. See Archer, 851 S.W.2d at 160 n.2 (citing Stone v. Powell, 428 U.S. 465 (1976)); Ortega Wiltz v. Howard Carlton, Warden, No. E2010-02091-CCA-R3-HC, 2011 WL 2410337, at *2 (Tenn. Crim. App, at Knoxville, June 10, 2011) (“[A]n allegation that evidence was unlawfully obtained in violation of the Fourth Amendment would merely render such judgments voidable, not void.”). Claims of ineffective assistance of counsel likewise are inappropriate for habeas corpus review. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994) (“When a prisoner contends that he was denied the constitutional right to the effective assistance of counsel, the judgment is voidable, not void . . . .”). Finally, a challenge to the indictments based on their multiplicitous nature could result only in a voidable judgment and is not cognizable in a habeas corpus proceeding. See Anthony Bowen v. Howard Carlton, Warden, No. E2007-01845-CCA-R3-HC, 2008 WL 450630, at *3 (Tenn. Crim. App., at Knoxville, Feb. 20, 2008) (citing Gary Lynn Vernon v. Jim Dickman, Warden, No. M2003-02268-CCA-R3-HC, 2004 WL 1778480, at *2 (Tenn. Crim. App., at Nashville, Aug. 9, 2004)), perm. app. denied (Tenn. May 5, 2008). -4-  Additionally, we note that several of the claims Lowe raises in the current petition were previously decided in earlier proceedings. See Asata Lowe, 2002 WL 31051631, at *14-17 (holding that trial court’s failure to charge lesser included offenses was harmless error); Asata Lowe, 2008 WL 631169, at *23-26, 27-30 (denying claim for post-conviction relief based on alleged violation of Brady v. Maryland and ineffective assistance of counsel). The Tennessee Supreme Court has held that pursuant to the law of the case doctrine, an appellate court may not consider issues that have been previously determined on appeal. Memphis Publ’g Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn. 1998) (“[U]nder the law of the case doctrine, an appellate court’s decision on an issue of law is binding in later trials and appeals of the same case if the facts on the second trial or appeal are substantially the same as the facts in the first trial or appeal.”). Even if these claims were cognizable under a petition for writ of habeas corpus, the law of the case doctrine would therefore preclude our review of the issues Lowe previously raised on appeal. Because Lowe included the entire record of his case, including the post-conviction hearing transcript, as an exhibit to the current habeas petition, he argues that the errors, and therefore the lack of the trial court’s authority, are apparent “upon the face of the judgment or the record of the proceedings upon which the judgment is rendered.” Archer, 851 S.W.2d at 164. This argument is misplaced. Habeas review does not encompass records of later proceedings, such as post-conviction hearings, that serve to challenge the judgment by developing facts not in the record of the trial proceedings. See State v. Ritchie, 20 S.W.3d 624 (Tenn. 2000) (limiting habeas review to the face of the judgment and the “original trial record”). Furthermore, the writ of habeas corpus in Tennessee has long been considered not to apply to general claims of error and broad collateral attacks such as those Lowe raises here. See Archer, 851 S.W.2d at 161-64 (discussing the history of the application of habeas corpus in Tennessee and the development of post-conviction procedures to provide for a collateral attack on convictions that were properly denied under narrower habeas proceedings); Potts, 833 S.W.2d at 62 (contrasting habeas corpus and post-conviction relief). Lowe has not established that his judgment is void or his sentence has expired. Accordingly, the habeas court’s dismissal of the petition for a writ of habeas corpus relief was proper. CONCLUSION We affirm the dismissal of the petition for writ of habeas corpus. ______________________________ CAMILLE R. McMULLEN, JUDGE -5- 

This opinion is subject to revision before final publication in the Pacific Reporter 2018 UT 6 IN THE SUPREME COURT OF THE STATE OF UTAH IN THE MATTER OF THE DISCIPLINE OF RICHARD LAJEUNESSE, #7408 OFFICE OF PROFESSIONAL CONDUCT, Appellant, v. RICHARD LAJEUNESSE, Appellee. No. 20160264 Filed February 16, 2018 On Direct Appeal Third District, Salt Lake The Honorable Andrew H. Stone No. 130905706 Attorneys: Barbara L. Townsend, Salt Lake City, for appellant Elizabeth A. Bowman, Salt Lake City, for appellee Heidi E. C. Leithead, Salt Lake City, for amicus curiae, Workers Compensation Fund ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUDGE MORTENSEN, and JUDGE HAGEN joined. Having recused himself, JUSTICE PEARCE does not participate herein; COURT OF APPEALS JUDGE DAVID N. MORTENSEN sat. Due to her retirement, JUSTICE DURHAM did not participate herein; COURT OF APPEALS JUDGE DIANA HAGEN sat. JUSTICE PETERSEN became a member of the Court on November 17, 2017, after oral argument in this matter, and accordingly did not participate.  IN RE DISCIPLINE OF LAJEUNESSE Opinion of the Court ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court: ¶1 This is an appeal in an attorney discipline proceeding involving Richard LaJeunesse. LaJeunesse has been licensed to practice law in Utah since 1996. From 2001 through 2012, he was the Presiding Administrative Law Judge (ALJ) and Director of the Adjudication Division of the Utah Labor Commission. In that capacity he adjudicated workers’ compensation disputes between occupationally injured employees and their employers or insurance carriers. He also oversaw the work of other ALJs. ¶2 This case arises out of a policy adopted by LaJeunesse in his work as Presiding ALJ and Director of the Adjudication Division. The policy concerned ALJs’ treatment of medical panel reports submitted under Utah Code section 34A-2-601(2). That provision requires an appointed medical panel to make “a report in writing to the administrative law judge in a form prescribed by the Division of Adjudication.” UTAH CODE § 34A-2-601(2)(b)(i). It also directs the ALJ to “promptly distribute full copies” of that report to all parties and their attorneys. Id. § 34A-2-601(2)(d)(i). LaJeunesse interpreted this statute to leave room for an ALJ to reject reports submitted by medical panels and to request changes to the form and verbiage in a report—without submitting the rejected report to the parties or their attorneys. Applying this policy, another ALJ working under LaJeunesse’s supervision (Debbie Hann) rejected reports she deemed noncompliant and requested medical panels to submit replacement reports. In those instances she did not provide a copy of the rejected report to the parties or to their counsel. LaJeunesse knew of three of these instances. And he personally participated in rejecting a medical panel report and requesting a new report in one instance. ¶3 A party in one of these cases discovered that a medical panel report had been rejected without being distributed to the parties. An audit and investigation ensued. The Utah Labor Commission ultimately concluded that the policy adopted by LaJeunesse ran afoul of explicit and implicit mandates of the Workers’ Compensation Act, including the requirement that ALJs “promptly distribute full copies” of medical panel reports to parties and their attorneys. Id. It also faulted LaJeunesse for embracing a policy that allowed ALJs to destroy medical panel reports without informing the parties of the existence of such reports or of the nature and extent of proposed changes to them. Thus, the Commission repudiated the policy adopted by LaJeunesse, instructing ALJs that they could no longer withhold medical panel reports. And the 2  Cite as: 2018 UT 6 Opinion of the Court Commission ultimately terminated LaJeunesse for his role in adopting and implementing a contrary policy. ¶4 LaJeunesse was then subjected to a bar complaint. After an initial investigation by the Office of Professional Conduct (OPC) a Notice of Informal Complaint was issued against LaJeunesse. The complaint charged LaJeunesse with violating rule 8.4(d) of the Utah Rules of Professional Conduct by engaging in “conduct that is prejudicial to the administration of justice.” ¶5 That charge was heard by a screening panel of the Ethics and Discipline Committee, which found probable cause to conclude that LaJeunesse had violated rule 8.4(d). A petition was subsequently filed by the OPC in the Third District Court. The case was heard by Judge Andrew Stone. Judge Stone concluded that LaJeunesse had not engaged in conduct prejudicial to the administration of justice. He held that LaJeunesse had a sound legal basis for the policy he had adopted or, alternatively, that a lawyer exercising quasi-judicial power (as an ALJ) cannot be found in violation of rule 8.4(d) merely for adopting a reasonable interpretation of a statutory scheme that is ultimately shown to be incorrect. ¶6 We affirm on this latter ground. We conclude that a lawyer cannot be charged with conduct prejudicial to the administration of justice for adopting a good faith but mistaken interpretation of a law that governs the lawyer’s performance of quasi-judicial authority. Cf. In re Worthen, 926 P.2d 853, 870 (Utah 1996) (adopting a similar standard for assessing judicial misconduct). I ¶7 LaJeunesse’s case was adjudicated in a five-day bench trial in February 2016. At the close of the trial Judge Stone entered extensive factual findings. We summarize the background and findings in detail below with quotations from the district court record. A ¶8 ALJs hear contested claims for workers’ compensation and may appoint a medical panel to advise them regarding the contested medical issues in the case. The medical panels are considered “adjuncts” to the ALJ at the commission level. But “[t]he final responsibility of making the decision as to the issues in such a proceeding is given to the Commission,” and the medical panel may not take over this responsibility of the Commission. IGA Food Fair v. 3  IN RE DISCIPLINE OF LAJEUNESSE Opinion of the Court Martin, 584 P.2d 828, 830 (Utah 1978) (citation omitted), abandoned on other grounds by Allen v. Indus. Comm’n, 729 P.2d 15 (Utah 1986). ¶9 Before referring a case to a medical panel, the ALJ makes interim findings resolving any factual disputes. The medical panel is bound by those findings; it is left only to resolve any outstanding medical issues. The ALJ, on the other hand, is not required to accept the medical panel’s conclusions if “substantial conflicting evidence in the case supports a contrary finding.” UTAH CODE § 34A-2-601(2)(e)(ii). ¶10 By statute, the medical panel is to make “a report in writing to the administrative law judge in a form prescribed by the Division of Adjudication” and “additional findings as the administrative law judge may require.” Id. § 34A-2-601(2)(b). The “administrative law judge shall promptly distribute full copies of a report submitted to the administrative law judge” to all relevant parties and their attorneys. Id. § 34A-2-601(2)(d)(i). The parties then have 20 days to file “a written objection to the report.” Id. § 34A-2-601(2)(d)(ii). If no written objection is made within the prescribed period, then “the report is considered admitted in evidence.” Id. § 34A-2-601(2)(d)(iii). ¶11 In 2011 and 2012, there were numerous complaints about the quality of medical reports provided by medical panels to ALJs. Common complaints went to concerns that medical panels assumed facts beyond or contrary to the ALJ’s interim findings, or that opinions were “phrased in terms of percentages instead of legally required conclusions.” ¶12 In January 2012, LaJeunesse and another ALJ, Hann, discussed whether the statute permitted an ALJ to reject a report and request changes to its form in order to comply with the legal requirements applicable to medical reports. LaJeunesse reached the conclusion that such a determination lay within the ALJ’s discretion and agreed with ALJ Hann that she could do so. After permitting ALJ Hann to reject medical reports without notifying the parties, LaJeunesse also personally rejected and requested new medical reports in one instance. These actions gave rise to the case before us. B ¶13 The Commission and the district court both determined that LaJeunesse “had a good faith belief that his statutory interpretation permitting the return of a signed report to a medical panel for technical revision was correct.” No written policy of the Commission expressly forbade returning the medical report to the medical panel. And, given the role of the medical panel as an ALJ’s 4  Cite as: 2018 UT 6 Opinion of the Court adjunct, the district court found that the statute implicitly permits the ALJ to seek further assistance prior to deeming the report final. The district court also concluded that LaJeunesse’s only purpose in permitting the return of the medical reports was to correct errors of law or phrasing contained in the reports and to train the physicians who had prepared them. ¶14 The district court went on to assess the question whether ex parte contacts between the ALJ and the medical panel required notice to the parties. It found the Utah Code of Judicial Conduct to be instructive. Rule 2.9 of that code prohibits most ex parte communications. One exception to the rule allows: [a] judge [to] consult with court staff and court officials whose functions are to aid the judge in carrying out the judge’s adjudicative responsibilities, or with other judges, provided the judge makes reasonable efforts to avoid receiving factual information that is not part of the record and does not abrogate the responsibility to personally decide the matter. UTAH CODE OF JUD. CONDUCT r. 2.9(A)(3). Because the medical panel is recruited, appointed, and paid by the labor commission to advise the ALJ, the district court found medical panels to be akin to a “court official[] whose functions are to aid the judge in carrying out the judge’s adjudicative responsibilities” under rule 2.9 of the Utah Code of Judicial Conduct. The district court also cited the less formal nature of the administrative process in determining that ALJs can have ex parte contact with persons specifically employed to provide them expertise. For these reasons the district court concluded that there was no existing statute or policy requiring parties to be informed of contacts between the ALJ and the medical panel. ¶15 The district court also concluded that LaJeunesse’s “failure to disclose [the communications between him and the medical panels] in . . . specific cases does not rise to the level of conduct prejudicial to the administration of justice.” In the district court’s view, “the specific changes in the cases known of by [LaJeunesse] were not substantive and the parties were not deprived of a meaningful opportunity to contest them—indeed, there was no evidence that any of the requested changes to the panel reports were inappropriate or altered the panel’s medical conclusions.” In any event, the district court held that “reasonable minds can differ as to whether such communications involving technical corrections to the medical report are necessarily improper, or must be disclosed to the parties.” 5  IN RE DISCIPLINE OF LAJEUNESSE Opinion of the Court ¶16 The “OPC argue[d] that [LaJeunesse’s] authorization and participation in the return of medical reports to medical panels without notice to the parties constituted conduct, and that it resulted in delay and increased costs.” In the OPC’s view, this was sufficient for an ethical violation under rule 8.4 of the Utah Rules of Professional Conduct. ¶17 The district court rejected this interpretation of rule 8.4. It noted that “[a]ttorneys and judges interpret laws all the time.” “On any given day,” the district court noted, “the Court is confronted by multiple cases involving competing interpretations of law”—and “at least one side is generally wrong.” “Attorneys and judges take actions or advise others to take actions based on those interpretations.” And “often, such an interpretation (it matters not whether it is right or wrong, under the OPC’s argument here requiring only conduct) causes delay or increased expense.” ¶18 The district court relied on In re Worthen, 926 P.2d 853 (Utah 1996)—an opinion of this court interpreting similar language in the Utah Constitution concerning judicial discipline. In re Worthen rejects the proposition that judges may be subject to the disciplinary process for committing a legal error. Id. at 869. It states the following: The offenses that subject a judge to discipline should be defined in such a way as to minimize the potential for overlap between the judicial conduct machinery and the appeal process. For it is worth emphasis that a judge has not behaved improperly simply because he has committed an error. As we noted earlier, the entire appellate process is in place because it is expected that judges will err occasionally, at least in the eyes of the appellate courts. This does not mean that they are not functioning properly as judges, only that they are human beings functioning within a human institution where different people can see things differently. The [disciplinary] process cannot legitimately have as a purpose the punishment of those who commit legal error; rather, it must concern itself only with those who behave outside the ethical norms set for judges, and the constitution and implementing statutes and rules must be so construed. Id. at 868–69. The district court determined that the “OPC’s proposed reading of 8.4 goes too far.” In focusing only on an attorney’s “‘conduct’ and its asserted effect on the administration of justice,” 6  Cite as: 2018 UT 6 Opinion of the Court the court noted that the “OPC fails to account for legal error, which itself is part of the administration of justice.” “Ordinary error or differences of opinion,” in the court’s view, “are not prejudicial to the administration of justice.” “[T]hey are something we expect on the way to truth.” ¶19 The district court went on to find that the phrase “conduct prejudicial to the administration of justice” implies some breach of ethical canons. In support of that conclusion, the district court cited the comments to rule 8.4. It noted that comment 2 limits those offenses that “a lawyer should be professionally answerable for,” including “violence, dishonesty, breach of trust or serious interference with the administration of justice.” UTAH RULES OF PROF’L CONDUCT r. 8.4 cmt. 2. The district court also again relied on this court’s analysis in In re Worthen, in which we explained the following: [T]he first clause employs the term “conduct” rather than the term “misconduct” as used in the first ground for judicial discipline, which could, on its face, suggest that the act or acts covered by this ground could be other than a breach of the ethical norms governing judges. However, concerns about limiting the Commission’s jurisdiction to matters of misconduct, not legal error, as well as concerns about vagueness and adequate notice, lead us to conclude that the term should carry the same definition we gave to “misconduct,” i.e., both grounds require “unjudicial conduct,” which we have defined as a breach of the ethical canons contained in the Code of Judicial Conduct. 926 P.2d at 870 (emphasis added). ¶20 The district court also continued the analogy to the Utah Code of Judicial Conduct: [Al]though Rule 8.4 is entitled “Misconduct” and uses that term in other parts of the Rule, Section 8.4(d) refers to just “conduct.” As in Worthen, this on its face supports [the] OPC’s argument here. But for the same reasons articulated in Worthen, the Court concludes that Rule 8.4(d) cannot be read to put stricter limits on advocacy than those imposed by existing norms. Certainly, an objectively reasonable position taken in good faith by an ALJ in fulfillment of his or her duties cannot support a claim that the conduct taken as a 7  IN RE DISCIPLINE OF LAJEUNESSE Opinion of the Court result in a violation of Rule 8.4(d). The line to be drawn here needs to permit and even encourage acceptable legal advocacy including, in this case, administration of an agency’s quasi-judicial process. For that reason, the line to be drawn defining where a Rule 8.4(d) [violation] begins should provide some daylight between reasonable interpretations of law on the one hand and ethical violations on the other. ¶21 Finally, the district court found that LaJeunesse had not violated rule 8.4(d): As found above, none of [LaJeunesse’s] actions involved any morally questionable motive. This is not a repeated pattern of independent violations but a single change in interpretation affecting five cases. The Court has concluded that the actions were either legally permitted or at least did not violate express statute or policy. More importantly, whether or not the actions were legally correct or even advisable, they were taken pursuant to objectively reasonable legal interpretations. No violation of Rule 8.4(d) has been shown. ¶22 The district court dismissed the petition against LaJeunesse on the above grounds. The OPC then filed this appeal. ¶23 Our review in attorney discipline matters is sui generis. We afford some deference to the district court’s findings. See In re Discipline of Barrett, 2017 UT 10, ¶ 11, 391 P.3d 1031. But we reserve a degree of discretion to override the district court’s findings where we find them unsupported in the record and also to draw our own inferences from those facts that may differ from the inferences drawn by the district court. Id. We have rooted this standard in the fact that this court bears the responsibility for attorney discipline under the Utah Constitution. In re Discipline of Ince, 957 P.2d 1233, 1236 (Utah 1998) (citing UTAH CONST. art. VIII, § 4). II ¶24 The OPC’s opening brief on appeal begins with a detailed statement of facts. And it proceeds to an argument that LaJeunesse’s conduct was prejudicial to the administration of justice. The OPC’s argument proceeds essentially in four steps: (1) the policy adopted by LaJeunesse runs counter to the language and structure of the Workers’ Compensation Act, Utah Code section 34A-2-601(2); (2) application of that policy interfered with the administration of justice by depriving parties and their counsel of the opportunity to review 8  Cite as: 2018 UT 6 Opinion of the Court and respond to proposed changes to a medical panel’s report; (3) attorneys in other jurisdictions have been found to have engaged in conduct prejudicial to the administration of justice when they gave false or misleading testimony or destroyed documents with evidentiary value1; and (4) the district court’s dismissal of the charge against LaJeunesse was based only on LaJeunesse’s self-serving testimony that the policy in question was based on a good faith interpretation of the statute, and LaJeunesse’s state of mind should only have been a factor in deciding on an appropriate sanction—not in deciding whether he violated the Utah Rules of Professional Conduct in the first place. ¶25 LaJeunesse challenges the OPC’s brief as insufficient. He asks us to strike the brief for its failure to follow several of the dictates of rule 24 of the Utah Rules of Appellate Procedure. He notes, specifically, that the brief fails to append the district court’s decision to its brief, see UTAH R. APP. P. 24(a)(12)(B) (mandating that the addendum include the “order, judgment, opinion, or decision under review”); fails to cite the record to show where its arguments were preserved below, see id. 24(a)(5)(B) (requiring “citation to the record showing that [an] issue was preserved for review”); and fails to identify specific findings or conclusions of the district court that the OPC is challenging on appeal or to marshal evidence or legal authority in support of arguments for reversal of such findings or conclusions, see id. 24(a)(8) (requiring appellant to “explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal”). In sum, in LaJeunesse’s view, the “OPC barely acknowledges the [district] court’s ruling in its brief, arguing as if this Court were in de novo proceedings.” And for that reason LaJeunesse says that we “need not reach the merits of [the] OPC’s argument,” but may simply affirm after striking or disregarding the OPC’s brief. ¶26 These points are well taken. The OPC has failed to carry its burden as the appellant in a number of respects, and we may affirm on that basis. That said, we feel compelled to offer some points of our own analysis of the questions presented. We do so because the OPC has not utterly failed to address the district court’s decision—it _____________________________________________________________ 1 See Attorney Grievance Comm’n v. White, 731 A.2d 447, 457 (Md. 1999); Disciplinary Counsel v. Robinson, 933 N.E.2d 1095, 1097 (Ohio 2010). 9  IN RE DISCIPLINE OF LAJEUNESSE Opinion of the Court identifies some elements of the decision it is challenging on appeal— and because the responsibility to oversee the attorney discipline process is ours under the Utah Constitution. See UTAH CONST. art. VIII, § 4. With this in mind, we offer our own endorsement of the central basis for Judge Stone’s careful decision while noting a minor caveat. A ¶27 As the appellant it is the OPC’s burden to identify the grounds for the district court’s decision that it is challenging on appeal. The OPC must also persuade us, “with reasoned analysis supported by citations to legal authority and the record, why” it “should prevail on appeal.” UTAH R. APP. P. 24(a)(8). That burden stands despite our recent decisions limiting or at least clarifying the extent of the “marshaling” duty set forth in our case law. See, e.g., State v. Nielsen, 2014 UT 10, ¶ 41, 326 P.3d 645. ¶28 Nielsen repudiates the “procedural default” notion of a requirement of marshaling. Id. ¶¶ 37, 41. But it also reinforces the longstanding notion that a party challenging a lower court decision “will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal” and respond to evidence or authority that could sustain the decision under review. Id. ¶ 42. And the OPC has failed to do just that. ¶29 The problem with the OPC’s brief begins with its failure to append or recite the findings and conclusions entered by the district court. This case was decided on an extensive record after a five-day bench trial. Yet the OPC’s statement of the factual and procedural background of the case makes only the barest mention of the district court’s analysis. The OPC notes that the court entered findings and conclusions on March 16, 2016. But the bare mention of that fact is all that is provided. The OPC brief nowhere recites any of the extensive findings or conclusions that we set forth above. See supra ¶¶ 8–22. ¶30 This problem is also reflected in the argument section of the OPC’s brief. There the OPC makes no mention of most of the crucial elements of Judge Stone’s ruling. As noted above, the OPC’s argument is mostly about the legal propriety and practical effect of LaJeunesse’s policy for ALJs’ treatment of medical panel reports— the assertion that this policy does not conform to the requirements of the Workers’ Compensation Act and the argument that it prejudices the administration of justice by depriving parties and their counsel with the opportunity to respond to proposed changes to a medical panel report. 10  Cite as: 2018 UT 6 Opinion of the Court ¶31 These tenets of the OPC’s position ignore crucial elements of Judge Stone’s analysis. Nowhere does the OPC address Judge Stone’s assertion that a determination of an ALJ’s “conduct prejudicial to the administration of justice” must leave room for a judge to make a good faith mistake that might be reversed on appeal, or his conclusion that LaJeunesse did not violate rule 8.4(d) because his policy for treating medical panel reports was “an objectively reasonable position taken in good faith by an ALJ in fulfillment of his . . . duties.” Tellingly, the OPC fails even to cite our opinion in In re Worthen, 926 P.2d 853 (Utah 1996)—a decision that is a central basis for Judge Stone’s decision. Thus, the OPC offers no basis for reversal of the district court’s decision. ¶32 This alone is a basis for affirmance. The appellant bears the burden of identifying grounds for reversal of the decision of the court (or administrative agency) being reviewed on appeal. See Utah Physicians for a Healthy Env’t v. Exec. Dir. of the Utah Dep’t of Envtl. Quality, 2016 UT 49, ¶ 20, 391 P.3d 148 (affirming on the basis of appellant’s failure to identify and challenge portions of the decision being reviewed on appeal). If the appellant fails to acknowledge the lower court’s decision—or to identify specific grounds for challenging it—we may affirm without reaching the merits of the question presented. See id. ¶33 We could affirm Judge Stone’s decision on this basis. Several of the central tenets of Judge Stone’s findings and conclusions, as noted, are nowhere addressed in the OPC’s brief. And we could therefore allow the district court’s decision to stand without reaching the merits. B ¶34 We also agree with the bulk of Judge Stone’s analysis— with one caveat. We begin with the caveat and then outline our extensive points of agreement. ¶35 Judge Stone appears to endorse (at least in part) the statutory basis advanced by LaJeunesse in support of the medical panel policy that he adopted. The apparent endorsement is reflected in related aspects of Judge Stone’s findings: (1) his rejection of the OPC’s view that “clarification requests” by an ALJ to a medical panel report are permitted under the Workers’ Compensation Act “only after an original report is mailed to the parties”—a view that in Judge Stone’s opinion “has no more support in the statutory language than the reading advanced by LaJeunesse allowing a report to be returned to the medical panel before distribution to the 11  IN RE DISCIPLINE OF LAJEUNESSE Opinion of the Court parties”; (2) his conclusion that the Workers’ Compensation Act “implicitly permits the ALJ to seek further assistance” before treating a report received from a medical panel as final and “mailing it to the interested parties”; and (3) his conclusion that “no existing statute or policy . . . prohibited communications between a medical panel and ALJs concerning a case under review” or “required the parties to be informed of such contacts.” ¶36 The OPC devotes substantial attention to these conclusions in its brief. In arguments echoed by an amicus, Workers Compensation Fund, the OPC seeks to establish that the district court’s view of an ALJ’s discretion in the treatment of a medical panel report is undermined by the terms of the Workers’ Compensation Act. ¶37 We take no position on this question. Thus, the caveat in our decision affirming Judge Stone’s careful findings and conclusions is simply to note that we need not and thus do not offer our own independent analysis of the question whether the policy adopted by LaJeunesse is consistent with the terms and conditions of the Workers’ Compensation Act. ¶38 We leave that question unanswered because we find it unnecessary to the disposition of this attorney discipline case. And we find it unnecessary because we agree with the central tenets of Judge Stone’s analysis of the operative standard under rule 8.4(d) of the Utah Rules of Professional Conduct. ¶39 The threshold question is the standard of “conduct prejudicial to the administration of justice” as applied to the lawyer’s role of advising or opining on unresolved questions of law. Lawyers are often called upon to chime in on such questions. As Judge Stone noted, “[a]ttorneys and judges [often] take actions or advise others to take actions based on” the view they take on disputed questions of law. A trial judge, for example, may face “multiple cases” each day “involving competing interpretations of law.” “[A]t least one side is generally wrong.” And our legal system could not function if the side whose view is rejected is in jeopardy of a professional misconduct charge on that basis alone. ¶40 As Judge Stone noted, our decision in In re Worthen is instructive. There we considered the question whether a trial judge is susceptible to discipline for “conduct prejudicial to the administration of justice” where he makes a legal error subject to reversal on appeal. In re Worthen, 926 P.2d at 874. We answered that question in the negative. See id. (concluding that “mere errors of 12  Cite as: 2018 UT 6 Opinion of the Court law . . . should ordinarily be dealt with through the appeals process”). We noted that the operative disciplinary standard speaks in terms of “‘conduct’ rather than . . . ‘misconduct’”—a term that appears elsewhere in the code (as with regard to criminal acts). Id. at 870. And we acknowledged that the bare reference to conduct “could, on its face, suggest that the act or acts covered by this ground could be other than a breach of the ethical norms governing judges.” Id. Yet we rejected that interpretation. We held instead that “conduct prejudicial to the administration of justice” as applied to a judge requires proof of “‘unjudicial conduct,’ which we defined as a breach of the ethical canons contained in the Code of Judicial Conduct.” Id. And we therefore concluded that a judge cannot be charged with conduct prejudicial to the administration of justice merely for committing “legal error.” Id. Instead, we held that this standard as applied to judges “must concern itself only with those who behave outside the ethical norms set for judges.” Id. at 869. ¶41 Judge Stone also turned to the comments to rule 8.4. Those comments, as he indicated, explain that not even all forms of criminal misconduct reflect adversely on the fitness to practice law. “Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that that indicate lack of those characteristics relevant to law practice.” UTAH RULES OF PROF’L CONDUCT r. 8.4 cmt. 2. The dividing line, traditionally, has been “drawn in terms of offenses involving ‘moral turpitude.’” Id. Thus, “[o]ffenses involving violence, dishonesty, breach of trust or serious interference with the administration of justice” are chargeable under rule 8.4. Id. But other offenses may subject a lawyer only to personal (as opposed to professional) accountability. ¶42 Judge Stone took the above into account in establishing the standard of “conduct prejudicial to the administration of justice” that applies in this case. “[F]or the same reasons articulated in Worthen,” Judge Stone “conclude[d] that Rule 8.4(d) cannot be read to put stricter limits on advocacy than those imposed by existing norms.” Thus, he held that “an objectively reasonable position taken in good faith by an ALJ in fulfillment of his or her duties cannot support a claim that the conduct taken as a result is in violation of Rule 8.4(d).” “The line to be drawn . . . needs to permit and even encourage acceptable legal advocacy including, in this case, administration of an agency’s quasi-judicial process.” ¶43 We agree with these premises of Judge Stone’s decision and affirm on this basis. Lawyers and judges are often called upon to 13  IN RE DISCIPLINE OF LAJEUNESSE Opinion of the Court opine on open questions of law. When they do so in good faith they cannot be charged with a violation of rule 8.4(d) just because their interpretation is ultimately rejected as a matter of law. And we agree with Judge Stone that the policy adopted by LaJeunesse was adopted in good faith. ¶44 We may ultimately agree with the OPC that the better view of the Workers’ Compensation Act is one that would call for an open and transparent use of medical panel reports by ALJs. But the Workers’ Compensation Act nowhere expressly forecloses the approach endorsed by LaJeunesse. And we see no reason to conclude that LaJeunesse made anything other than a good faith mistake in interpreting the law. That conclusion is sufficient to sustain the dismissal of the charge against him. ¶45 The OPC has not meaningfully refuted these premises. Much of its briefing is aimed at challenging the statutory basis for LaJeunesse’s policy—at establishing that the better view of the Workers’ Compensation Act is one that would require a transparent, open use of medical panel reports and foreclose the review process endorsed by LaJeunesse. This argument is insufficient for reasons set forth above. ¶46 The cases cited by the OPC— Attorney Grievance Commission v. White, 731 A.2d 447, 457 (Md. 1999) and Disciplinary Counsel v. Robinson, 933 N.E.2d 1095, 1097 (Ohio 2010)—are distinguishable. We endorse the view set forth in these cases. We agree that an attorney who tampers with evidence or gives false or misleading testimony has engaged in conduct prejudicial to the administration of justice. But these cases do not undermine the standard we establish here. They simply hold that rule 8.4(d) is violated by an attorney’s acts in contravention of established rules and norms governing the judicial process. See White, 731 A.2d at 457 (holding that presenting perjured testimony is a violation of rule 8.4 and noting that perjury is a crime); Robinson, 933 N.E.2d at 1097 (holding that tampering with evidence is a violation of rule 8.4 and noting that evidence tampering is a crime and violates other established rules). ¶47 An attorney who tampers with evidence or presents false testimony is not exercising good faith legal judgment. He is engaged in misconduct. That cannot be said of LaJeunesse. At most he made a good faith misjudgment of the effect of the Workers’ Compensation Act on the ALJ’s use of medical panel reports. And that is 14  Cite as: 2018 UT 6 Opinion of the Court insufficient to sustain a claim for conduct prejudicial to the administration of justice under rule 8.4(d). III ¶48 We can understand the OPC’s motivation in pursuing this case. The policy adopted by LaJeunesse seems to have interfered with the transparent operation of the system of adjudicating workers’ compensation disputes. It may have deprived parties and their counsel of the opportunity to object to proposed changes to medical panel reports. And the policy in question may ultimately be incompatible with the terms and conditions of the Workers’ Compensation Act—or at least with best practices thereunder. That is not enough to sustain a charge of conduct prejudicial to the administration of justice under our rules of professional conduct, however. We affirm the dismissal of the charge against LaJeunesse because we conclude that the policy in question was adopted in a good faith attempt to interpret the law. 15 

In the United States Court of Appeals For the Seventh Circuit ____________ No. 07-1092 C ARLOS K. W ILLIAMS, Petitioner-Appellee, v. E DWIN G. B USS, Respondent-Appellant. ____________ Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:05cv0134 AS—Allen Sharp, Judge. ____________ A RGUED JANUARY 9, 2008—D ECIDED A UGUST 14, 2008 ____________ Before W OOD , SYKES, and T INDER, Circuit Judges. W OOD , Circuit Judge. Carlos K. Williams was sentenced to 55 years in prison for the murder of Amondo Nelson. Williams filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, claiming that his trial counsel was ineffective, and the district court granted his petition. We find that the claim was procedurally defaulted, and no cause and prejudice has been shown to excuse the default; we therefore vacate the district court’s judgment and remand for denial of the petition. 2 No. 07-1092 On May 5, 1999, a dispute between Amondo Nelson and Ramar Daniels—Williams’s brother—escalated into a confrontation involving gunshots. Witnesses saw Williams and Daniels both shoot Nelson through the windows of a car in which Nelson was sitting. On the first morning of his trial, Williams’s lawyer was notified of a surprise witness: Norman Richardson, who had been standing behind the car when the confronta- tion took place. (Daniels was tried and convicted sepa- rately.) Counsel immediately realized that he had repre- sented Richardson on a separate matter and was still owed fees from that representation. Counsel alerted the court to the potential conflict of interest, indicating that he felt there would be no problem, even with cross-exami- nation. In turn, the court discussed the matter with Wil- liams. Williams said that he understood what was going on, that he had “no problem,” and that he wanted to go to trial on schedule. He was ultimately convicted and sen- tenced to 55 years in prison. On direct appeal, he ques- tioned only the sufficiency of the evidence. The Supreme Court of Indiana affirmed his conviction on June 28, 2001. His state petition for post-conviction relief, first filed on December 12, 2001, did not proceed smoothly. The state public defender withdrew its representation of Williams on August 9, 2002, leaving Williams to continue pro se. While this was going on, Williams was found to be mentally disabled by the Social Security Administra- tion (by letter dated December 3, 2002, with a finding that his disability dated back to 1988). This letter appar- ently was not filed with the court. Based on the record No. 07-1092 3 before it, on June 3, 2003, the trial court denied post- conviction relief, stating that Williams “has presented no evidence . . . that he was ever declared mentally handi- capped.” At this point, matters became more complicated. Wil- liams filed a notice of appeal and later, on October 21, 2003, a brief, but he did not file the required appendix. This rendered his submission nonconforming according to the rules of the court. The state court of appeals gave Williams 30 days to cure the filing defects in his petition, starting the clock on February 26, 2004. He did nothing within the permitted time, leading the State to file a motion to dismiss for lack of compliance with the order on May 17, 81 days after the court’s order issued. The state court finally dismissed the petition with prejudice for failure to prosecute on June 1, 2004, Day 96. Williams did not file for transfer to the Supreme Court of Indiana. Instead, he turned to federal court and filed a petition for a writ of habeas corpus, signing it on March 29, 2005, with an official filing date of April 18. The State argues that Williams’s petition was untimely. A prisoner has one year to file a petition for a writ of habeas corpus, starting (as pertinent here) from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Williams’s direct review concluded and his conviction became final on September 26, 2001. The time during which a “properly filed application for State post-conviction or other collat- eral review” is pending, however, is not counted against 4 No. 07-1092 the federal period of limitation. 28 U.S.C. § 2244(d)(2). Williams filed for state relief 77 days into his one-year clock. As the State sees it, the appellate court dismissed Wil- liams’s cause on June 1, restarting the clock with 288 days left. His one-year clock would expire on March 16, 2005, which would make his filing 13 days late. Williams con- tends that the case was still pending during the 30-day period when he was entitled to file for transfer to the Supreme Court of Indiana, and it did not become final (thereby restarting the one-year clock) until July 1. If he is right, then his limitations period did not end until April 15, 2005, and his petition was timely. The district court thought that it could avoid deciding whose account was correct by holding that Williams’s time for filing his federal petition was equitably tolled. We have not, however, ruled whether or not equitable tolling should be available at all in a § 2254 context. Johnson v. Chandler, 224 F. App’x 515, 519 (7th Cir. 2007); Williams v. Sims, 390 F.3d 958, 963-64 (7th Cir. 2004); Modrowski v. Mote, 322 F.3d 965, 967 n.12 (7th Cir. 2003) (reserving the issue explicitly). Equitable tolling requires “extraordinary circumstances far beyond the litigant’s control . . . .” United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (denying equitable tolling when counsel’s father passed away weeks before deadline). “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Here, the district court criticized the grounds on No. 07-1092 5 which Williams requested equitable relief (calling the letter from the Social Security Administration “a very slender reed to bottom equitable tolling”), but granted it anyway, seemingly because Williams was appearing pro se and he was only 13 days late. Williams v. Davis, 2006 U.S. Dist. LEXIS 29360 at *4-5 (Apr. 28, 2006, N.D. Ind.). Espe- cially when the very availability of equitable tolling for habeas corpus petitioners is dubious in this circuit, this reasoning is insufficient under the high Pace standard. The district court should have proceeded to consider the timing problem directly. Although the State argues that our decision in Fernandez v. Sternes, 227 F.3d 977 (7th Cir. 2000), governs this situa- tion by mandating that the tolling period ends at the earlier date if no petition for further review is filed, a closer look at Fernandez shows that it does not go that far. In fact, we explicitly set that question aside in Fernandez. Id. at 980 (“It is unnecessary to decide, and we therefore reserve, the question whether time provided for filing a petition or appeal to a higher court is treated as time during which an application is pending, if the time expires without a filing.”). Here, too, we can reserve further consideration of the intricacies of the timing rules. The one-year time limit is not jurisdictional. Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1997). Williams cannot prevail for an equally compelling reason: his ineffective assistance claim was procedurally defaulted. The State asserts that he never presented this claim to the state courts, and Williams does not indicate otherwise. Even if it had been presented on the merits in 6 No. 07-1092 the petition before the appellate court (and if we assumed that the defective petition was good enough for this purpose), Williams did not file for transfer to the Supreme Court of Indiana once his petition was dismissed with prejudice. This was not a step that he was entitled to omit, even for a post-conviction petition and even if review (as it usually is at that level) is discretionary. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). Williams tacitly acknowledges this in his briefs before this court. He offers two reasons why the state court of appeals should have forgiven his nonconforming filings, and (we assume generously) that support a finding of good cause for the procedural default. See Dretke v. Haley, 541 U.S. 386, 388 (2004), and Wainwright v. Sykes, 433 U.S. 72, 87 (1977). But good cause alone is not enough (even if we were inclined to find it on this record): before we can overlook a procedural default, we must find both cause and prejudice, and Williams never demonstrates the latter. See Haley, 541 U.S. at 388 (grounding the cause- and-prejudice requirement in considerations of “finality, comity, and the orderly administration of justice”); Wain- wright, 433 U.S. at 85 (discussing the incorporation of the cause-and-prejudice standard into federal habeas corpus law). In any event, we are not persuaded that Williams was able to demonstrate good cause to excuse his procedural default. Williams asserts that he did not have proper access to the prison law library through no fault of his own. This court examines claims of cause based on lack of access to a library on a case-by-case basis. See, e.g., O’Donnell v. Davis, 115 F. App’x 869, 871-72 (7th Cir. No. 07-1092 7 2004). Williams does not explain why the lack of access to the library hindered his case: the deficiencies indicated by the state appeals court were clerical, not substantive, and may well have been curable without access to the library. Notably, Williams explained this problem to the state court in his letter of June 1, 2004, and the state court allowed him 30 extra days in which to file proper documents. Even afterward, Williams failed to file for transfer, with no explanation of why he was still hampered by lack of access to the law library. On this record, Wil- liams cannot rely on lack of access to the library to sup- port cause for his procedural default. Williams also suggests that his mental incapacity pro- vides cause, but once again the record does not support him. This court has held that “borderline mental retarda- tion” diagnosed by a neuropsychologist does not con- stitute cause. Harris v. McAdory, 334 F.3d 665, 668-69 (7th Cir. 2003) (finding that such a condition was not suffi- ciently external to the petitioner to support cause for default); see also Murray v. Carrier, 477 U.S. 478, 488 (1986) (“[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show . . . some objective factor external to the defense[.]”). In Williams’s case, the diagnosis came from the Social Security Adminis- tration rather than a neuropsychologist, which only weakens his argument for cause: the Harris court re- jected the neuropsychologist’s opinion in part because it was conclusory. See Harris, 334 F.3d at 669. The same criticism applies to the form letter from the SSA. The district court reached the merits of the petition without discussing the procedural default. Williams, 2006 8 No. 07-1092 U.S. Dist. LEXIS 29360 at *5. It should not have done so, because an unexcused procedural default ends the case. See, e.g., Daniel v. Knight, 476 F.3d 426, 435 (7th Cir. 2007). Williams procedurally defaulted his ineffective assistance claim by failing to present it fully to the state courts. He has not shown the type of cause that would excuse this defect, nor has he made any argument demon- strating prejudice. In light of his procedural default, we therefore V ACATE the district court’s judgment granting the writ and R EMAND with directions to deny the petition. 8-14-08 

TDCJ Offender Details Page 1 of 2 l CQ § , l.:)>CQ 03 TDCJ Home, m nev e;*§es»tea Seea‘¢atz ~».¢.‘l.'w TexA,s DF._PA,RT,M§N:E oi,= caimmAi;.. J,usT.,l.¢;:E_' 'Offender lnformation Detai|s SlD Number: 03549132 TDCJ Number: - 00502710 Name: MCKELVEY,CLARENCE JR Race: B Gender: l\ll DOB: 1966-06-20, Maximum Sentence Date: 2087-05-27 Current Faci|ity: M- Projected Release Date: 2687-05-27 Paro|e E|igibi|ity Date: 2007-05-29 Offender Visitation E|igib|e: N_Q The offender is temporarily ineligible for visitation. Please call the offender's unit for any additional information The visitation information is updated once daily during Weekdays and multiple times per day on visitation days. SPEC|AL lNFORMATlON FOR SCHEDULED RELEASE: scheduled Re|ease Date: Offender is not scheduled for release at this time. scheduled Re|ease Type: 4 Wi|l be determined when release date is scheduled scheduled Re|ease Loeatiom Wi|| be determined when release date is scheduled Pa’ro|e:Review lnformatlon 4Offense History: Offense County ' l http://offender.tdcj .texas.gov/OffenderSearch/offenderDetail.action?sid=03 549132 _ 6/3 0/2015

[Cite as State v. Herrin, 2017-Ohio-685.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY STATE OF OHIO, : CASE NOS. CA2016-08-160 Plaintiff-Appellee, : CA2016-08-161 CA2016-08-162 : - vs - DECISION : 2/27/2017 MARIO TYRONE HERRIN, : Defendant-Appellant. : CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2014-10-1631 Michael T. Gmoser, Butler County Prosecuting Attorney, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee Charles M. Conliff, P.O. Box 18424, Fairfield, Ohio 45018-0424, for defendant-appellant Per Curiam. {¶ 1} This cause came on to be considered upon a notice of appeal, the transcript of the docket and journal entries, the transcript of proceedings and original papers from the Butler County Court of Common Pleas, and upon a brief filed by appellant's counsel. {¶ 2} Counsel for appellant, Mario Tyrone Herrin, has filed a brief with this court pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), which (1) indicates that a careful review of the record from the proceedings below fails to disclose any errors by the  Butler CA2016-08-160 CA2016-08-161 CA2016-08-162 trial court prejudicial to the rights of appellant upon which an assignment of error may be predicated; (2) lists seven potential errors "that might arguably support the appeal," Anders at 744, 87 S.Ct. at 1400; (3) requests that this court review the record independently to determine whether the proceedings are free from prejudicial error and without infringement of appellant's constitutional rights; (4) requests permission to withdraw as counsel for appellant on the basis that the appeal is wholly frivolous; and (5) certifies that a copy of both the brief and motion to withdraw have been served upon appellant. {¶ 3} Having allowed appellant sufficient time to respond, and no response having been received we have accordingly examined the record and find no error prejudicial to appellant's rights in the proceedings in the trial court. The motion of counsel for appellant requesting to withdraw as counsel is granted, and this appeal is dismissed for the reason that it is wholly frivolous. HENDRICKSON, P.J., PIPER and M. POWELL, JJ., concur. -2- 

286 F.3d 661 Robert N. WERWINSKI, Jr.; Elizabeth C. Werwinski; Jean C. Cook; Donna Coffey; Joseph Coffey; Joan McIlhenny; Doris E. Zaharchuk; James Dunlap, on behalf of themselves and all others similarly situated,v.FORD MOTOR COMPANY, Jean C. Cook, Donna Coffey, Joseph Coffey, Joan McIlhenny, Doris E. Zaharchuk and James Dunlap, on behalf of themselves and all others similarly situated, Appellants. No. 00-4323. United States Court of Appeals, Third Circuit. Argued January 15, 2002. April 15, 2002. COPYRIGHT MATERIAL OMITTED Joseph C. Kohn, Martin J. D'Urso (argued), David J. Cohen, Diana Liberto, Hilary Cohen, Kohn, Swift & Graf, P.C., Philadelphia, PA, for Appellants. Lynn E. Parseghian, Brian C. Anderson, Martha Dye, Srikanth Srinivasan (argued), O'Melveny & Myers, LLP, Washington, DC, Robert Toland, II, Campbell, Campbell, Edwards & Conroy, Wayne, PA, for Appellee. Hugh F. Young, Jr., Product Liability Advisory Council, Inc., Reston, VA, Christopher Scott D'Angelo, Janelle E. Fulton Montgomery, McCracken, Walker & Rhoads, Philadelphia, PA, for Amicus Curiae Product Liability Council, Inc. Before SCIRICA, GREENBERG, and BRIGHT,* Circuit Judges. OPINION OF THE COURT GREENBERG, Circuit Judge. 1 This appeal arises out of a putative class action against Ford Motor Company relating to two allegedly defective components in the transmissions installed in Ford vehicles during the 1990-1995 model years. Asserting that Ford knew about the defective parts since at least 1991, appellants sued for breach of express warranty, breach of implied warranty, fraudulent concealment, and violations of Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), Pa. Stat. Ann. tit. 73, §§ 201-1 et seq. (West 1993). The district court, after denying appellants' motion to remand the case to the state court in which they had originated it, granted Ford's motion for judgment on the pleadings as to all of appellants' claims. For the reasons set forth below, we will affirm the district court's orders. I. BACKGROUND A. Factual History 2 Eight plaintiffs who bought or leased Ford automobiles manufactured between 1991 and 1995, six of whom appeal, 3 filed the complaint in this case alleging that the transmissions in their vehicles contained two defective parts: (1) aluminum (rather than steel) forward clutch pistons ("FCPs") that crack prematurely, and (2) inadequately lubricated planetary gears ("RPGs"). Appellants assert that both defects can cause transmission failures, including "sudden acceleration, delayed forward or reverse engagement, sudden shifts into reverse, and a total loss of acceleration or forward movement." Br. of Appellants at 5. According to the complaint, each of the appellants experienced transmission failure and incurred substantial repair costs before his or her automobile had reached 80,000 miles.1 3 Appellants assert that Ford's Technical Service Bulletins demonstrate that the company has known about the FCP defects since at least 1991. They maintain that Ford redesigned the FCPs twice before finally deciding in 1994 to manufacture them with steel instead of aluminum. Appellants similarly allege that Ford has been aware of the RPGs' lubrication defect since at least 1990. Even after redesigning the RPGs in 1990 and 1992, however, Ford has been unable to correct the lubrication problem. Despite its awareness of these malfunctioning components, Ford never warned the overwhelming majority of car owners about the transmission defects. According to appellants, Ford not only concealed this material information from consumers as it continued to market and sell automobiles with defective transmissions, but it addressed the problem by cutting its 6-year/60,000 mile power train warranty for its 1991 models to a 3-year/36,000 mile warranty for its 1992 models. B. Procedural History 4 On January 20, 2000, appellants filed their putative class action in the Philadelphia County Court of Common Pleas. Ford promptly removed the case to the district court on the basis of diversity of citizenship following which appellants moved to remand the case, arguing that the amount-in-controversy jurisdictional threshold exceeding $75,000 had not been satisfied. On April 11, 2000, the district court denied appellants' motion for remand and thus retained jurisdiction over the case. In its order, the district court first indicated that Pennsylvania courts "have found that the amount in controversy in a suit under the UTPCPL is the purchase price of the car." Werwinski v. Ford Motor Co., No. Civ. A. 00-943, 2000 WL 375260, at *3 (E.D.Pa. Apr.11, 2000). Finding that a jury reasonably could conclude that appellants were entitled to recover the purchase price of their automobiles to make them whole, the court started with a base of $15,000 in damages. See id. After trebling the compensatory damages to $45,000 pursuant to the UTPCPL, the court next determined that reasonable attorney's fees could range between $5,000 and $10,000, thus pushing the amount to over $50,000. See id. Finally, recognizing that the UTPCPL provides courts with discretionary authority to impose punitive damages, the district court concluded that "[b]ased on Plaintiffs' allegations, a reasonable jury could award punitive damages that would easily place the amount in controversy above $75,000." Id. at *4.2 5 On May 24, 2000, Ford filed a motion for judgment on the pleadings. After the motion was briefed fully, the district court entered an order granting the motion with respect to the claims of all parties except the Werwinskis' claim for breach of express warranty. Of concern on this appeal, the district court dismissed the fraudulent concealment and UTPCPL claims under the economic loss doctrine because "recovery in tort is barred in product liability actions between commercial enterprises where the only damage alleged is to the product itself, even if the defect posed a potential risk of injury." Werwinski v. Ford Motor Co., No. Civ. A. 00-943, 2000 WL 1201576, at *4 (E.D.Pa. Aug.15, 2000). In coming to this conclusion, the district court determined that the economic loss doctrine is not limited to transactions between commercial enterprises, but extends to transactions between manufacturers and individual consumers as well. See id. at *5. Furthermore, the district court predicted that the Supreme Court of Pennsylvania would conclude that the economic loss doctrine applies to claims for intentional fraud in addition to claims for negligence, strict liability, and negligent misrepresentation. See id. Finally, the district court observed that Pennsylvania's two-year statute of limitations for common law fraud actions barred the fraud claims of several appellants. See id. at *6 n. 5. 6 Eventually, the Werwinskis settled their case with Ford and dismissed all of their claims with prejudice.3 On December 12, 2000, the district court entered final judgment for Ford. Three days later, appellants filed a timely notice of appeal challenging both the district court's order denying remand and its order disposing of the case on the merits. II. JURISDICTION AND STANDARD OF REVIEW A. Jurisdiction 7 The district court exercised removal jurisdiction over this putative class action based upon diversity of the parties. See 28 U.S.C. §§ 1332(a)(1), 1441(b). The district court entered final judgment in the case on December 12, 2000, and appellants filed a timely notice of appeal, and thus we have appellate jurisdiction pursuant to 28 U.S.C. § 1291. B. Standard of Review 8 We exercise plenary review over the district court's order denying appellants' motion for remand, see Lazorko v. Pa. Hosp., 237 F.3d 242, 247 (3d Cir.2000), cert. denied, 533 U.S. 930, 121 S.Ct. 2552, 150 L.Ed.2d 719 (2001), and its order granting Ford's motion for judgment on the pleadings, see Churchill v. Star Enters., 183 F.3d 184, 189 (3d Cir.1999). III. DISCUSSION 9 Appellants raise several issues on appeal. First, they contend that the district court erred in denying their motion to remand because the amount-in-controversy requirement for diversity jurisdiction had not been met for any of their claims. Second, they argue that the district court erroneously applied the economic loss doctrine to their fraudulent concealment and UTPCPL claims. Finally, appellants submit that the district court erred in ruling that the Pennsylvania statute of limitations barred certain of their fraudulent concealment claims. See infra note 9. A. Amount in Controversy 10 A district court has subject matter jurisdiction over state law claims if there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000 for each plaintiff. See 28 U.S.C. § 1332. Appellants argue that the district court should not have exercised removal jurisdiction because the $75,000 threshold has not been satisfied. In particular, they contend that the court erred when calculating the amounts in controversy by taking into account the purchase price of their vehicles, rather than just the repair costs for their transmissions. 11 A district court's determination as to the amount in controversy must be based on the "plaintiff's complaint at the time the petition for removal was filed." Steel Valley Auth. v. Union Switch Div., 809 F.2d 1006, 1010 (3d Cir.1987). The court must measure the amount "not ... by the low end of an open-ended claim, but rather by a reasonable reading of the value of the rights being litigated." Angus v. Shiley Inc., 989 F.2d 142, 146 (3d Cir.1993). However, "claims of several plaintiffs, if they are separate and distinct, cannot be aggregated for purposes of determining the amount in controversy." Meritcare Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214, 218 (3d Cir.1999) (internal quotation marks omitted). See also Zahn v. Int'l Paper Co., 414 U.S. 291, 301, 94 S.Ct. 505, 512, 38 L.Ed.2d 511 (1973). Only claims, whether related or unrelated, of a single plaintiff against a single defendant may be aggregated. See Snyder v. Harris, 394 U.S. 332, 335, 89 S.Ct. 1053, 1056, 22 L.Ed.2d 319 (1969).4 12 Appellants first argue that the amount in controversy for each plaintiff does not even approach $75,000 because their complaint requests compensatory damages for only the costs of repairing or replacing the defective transmissions, which range from $848 to $2,434. See Br. of Appellants at 12. Appellants' erroneous assertion that their complaint does not claim damages based on the purchase price of the automobiles is belied, however, by their complaint's "Prayer for Relief," which plainly seeks recovery for, inter alia, "compensatory damages" and "all or part of the sums [appellants] paid to purchase or lease [their] automobiles." Pls.' Compl. at 19-20 (App. 54a-55a). The "Prayer for Relief" also demands "that defendant disgorge, for the benefit of the class, its ill-gotten profits received from the sale or lease of the subject vehicles and/or make full restitution to the Named Plaintiffs and the other members of the Class." Id. at 20 (App. 55a). Although appellants indicated in their motion to remand that they were seeking only repair costs and that "individual claims for compensatory damages[] will rarely exceed $2,000, and will not exceed $3,000," Pls.' Mot. for Remand ¶ 3 (App. 112a), the amount in controversy must be calculated based on a "reasonable reading" of the complaint, and a plaintiff's stipulation subsequent to removal as to the amount in controversy or the types of relief sought is of "no legal significance" to the court's determination. See Angus, 989 F.2d at 145. Consequently, the district court properly found that the complaint did not restrict appellants' recovery to only the cost of repairing the defective transmissions, and therefore, a jury reasonably could conclude that appellants should be awarded the purchase price of their cars to make them whole. 13 Appellants assert that the district court based its holding on a "jaundiced reading" of their complaint because the only injuries pled or specific sums listed in the complaint relate to the repair and replacement costs of the defective transmission parts. See Reply Br. of Appellants at 6. They note that the complaint makes no reference to the value of their automobiles or how much they paid for them. See id. at 7. Appellants insist that the district court's reading of the complaint essentially requires them to state explicitly that they were seeking only repair costs and were not seeking refunds for the purchase price of the automobiles. See id. at 8. They submit that requiring them to plead with "such redundancy" violates Fed.R.Civ.P. 8(a). Id. 14 If the "Prayer for Relief" in their complaint did not request an order declaring Ford "financially responsible ... for all or part of the sums [appellants] paid to purchase or lease [their] automobiles" or demand that Ford disgorge "its ill-gotten profits received from the sale or lease of the subject vehicles," then we might say that appellants' argument has some merit. Nevertheless, because of these provisions, the complaint clearly leaves the door open for them later to demand reimbursement for the purchase price of the cars. And because the district court must base its amount-in-controversy determination on what a jury reasonably could award appellants, it cannot be said that the court erred in concluding on the basis of the complaint that a jury could decide that appellants are entitled to refunds for the purchase price of their cars.5 15 Appellants next contend that the district court's amount-in-controversy calculation was flawed inasmuch as litigants are not permitted to recover the purchase price of their vehicles under the UTPCPL. Appellants argue that the four cases6 cited by the district court to support its conclusion that the purchase price of a vehicle is recoverable under the UTPCPL are inapposite because the courts in those cases calculated the amount in controversy under Pennsylvania's "Lemon Law," Pa. Stat. Ann. tit. 73, §§ 1951-63 (West 1993), not the UTPCPL. The Lemon Law provides, in relevant part, that: 16 If the manufacturer fails to repair or correct a nonconformity after a reasonable number of attempts, the manufacturer shall, at the option of the purchaser, replace the motor vehicle with a comparable motor vehicle of equal value or accept return of the vehicle from the purchaser and refund to the purchaser the full purchase price, including all collateral charges, less a reasonable allowance for the purchaser's use of the vehicle.... 17 Id. at 1955 (emphasis added). Appellants submit that the UTPCPL, unlike the Lemon Law, does not specify that compensatory damages should be based on the purchase price of the vehicle and, therefore, the measure of damages in this case should be based on the cost of repairing or replacing the defective parts. 18 Appellants' argument fails for two reasons. First, although the UTPCPL does not specifically identify the vehicle's purchase price as the appropriate measure for compensatory damages, it likewise does not indicate that repair costs should be the sole measure for damages. The UTPCPL provides instead that a plaintiff can recover "actual damages," which the court may treble at its discretion, as well as "such additional relief [the court] deems necessary or proper." Pa. Stat. Ann. tit. 73, § 201-9.2. Therefore, notwithstanding appellants' position to the contrary, the UTPCPL does not preclude a jury from awarding them damages based on the purchase price of their vehicles. 19 Second, appellants' argument is based on flawed interpretations of the opinions that the district court cited in support of its conclusion that a vehicle's purchase price is the correct measure of compensatory damages under the UTPCPL. Despite what appellants argue in their briefs, the plaintiffs in Palan v. Ford Motor Co., Civ. A. No. 95-1445, 1995 WL 476240 (E.D.Pa. Aug.8, 1995), Adams v. General Motors Corp., Civ. A. No. 89-7653, 1990 WL 18850 (E.D.Pa. Feb. 26, 1990), and Pavese v. General Motors Corp., No. Civ. A. 97-3688, 1998 WL 57761 (E.D.Pa. Feb.11, 1998), specifically sought recovery under the UTPCPL, and the courts calculated the amount in controversy under the UTPCPL, notwithstanding the fact that the plaintiffs also stated claims under the Lemon Law. 20 For instance, the district court in Palan explicitly stated that "as to plaintiff's Consumer Protection Law claim, the actual amount in controversy is three times the purchase price." See Palan, 1995 WL 476240, at *2. Furthermore, the district court in Adams concluded that, even leaving aside the Lemon Law claim, the UTPCPL claim itself exceeded the amount-in-controversy threshold insofar as the statute permitted the court to treble plaintiff's base request of $22,027.84 in damages, which represented the purchase price of the automobile. See Adams, 1990 WL 18850, at *2. Finally, the district court in Pavese had no choice but to calculate the amount in controversy under the UTPCPL after it held that the plaintiff failed to state a claim under the Lemon Law because she was leasing the vehicle and lessees are not permitted to sue under the Lemon Law. See Pavese, 1998 WL 577761, at *2-3. General Motors argued that the plaintiff's actual damages under the UTPCPL could not exceed the total lease payments she had made at the time she filed her complaint ($16,637.48), whereas the plaintiff asserted that she was entitled to recover the full purchase price of the car ($33,505). The district court side-stepped the issue, however, by concluding that the amount-in-controversy threshold could be met by trebling the amount of plaintiff's total lease payments ($16,637.48).7 21 Palan, Adams, and Pavese are consistent with two other decisions from the Eastern District of Pennsylvania recognizing a vehicle's purchase price as the appropriate measure of damages for automobile defect claims under the UTPCPL. In Levin v. American Honda Motor Co., Civ. A. No. 94-5380, 1994 WL 719856, at *3 (E.D.Pa. Dec.21, 1994), the plaintiff sued under, inter alia, the Lemon Law and the UTPCPL, but the district court calculated the amount in controversy under the UTPCPL after dismissing the Lemon Law claim for failure to exhaust alternative remedies under the statute. In retaining jurisdiction over the case, the court concluded that "[t]he actual damages in this case would be the total purchase price less a reasonable allowance for the use of the vehicle." Id. 22 In McLaughlin v. Volkswagen of America, Inc., No. Civ. A. 00-3295, 2000 WL 1793071, at *1 (E.D.Pa. Dec.6, 2000), the plaintiff sued Volkswagen for fraud and fraudulent misrepresentation, negligent misrepresentation, breach of contract, and violations of the UTPCPL, alleging that her car contained a defective fuel level sensor. The district court determined that the baseline for damages under the UTPCPL was the car's purchase price ($50,000), not its reduction in value. See id. at *2. The court explained: 23 Where an alleged defect relates to a discreet [sic], modular, or incidental part of the vehicle (such as the tires, windshield wipers or stereo), it is unreasonable to use the purchase price as a baseline for measuring the amount in controversy. In such cases, the better measure of damages is the replacement cost of the part in question. However, where an alleged defect relates to an integrated system that is necessary to the safe operation of the vehicle (such as the engine or transmission), it is reasonable to assume that the baseline for damages is the purchase price of the car. 24 Id. at *3. 25 Unable to reconcile their position with these authorities, appellants urge us to follow Waggoner Equipment Co. v. Ford Motor Co., No. 00-CV-0168-MJR (S.D.Ill. Nov. 6, 2000), and Jorgenson v. Ford Motor Co., No. CV-99-355 CAS (Ex), Minute Order (C.D. Ca. Mar. 30, 1999). Although these cases are factually similar in that the district courts remanded similar suits against Ford seeking recovery for the same faulty transmissions involved here, these two decisions from outside this circuit are unavailing for two reasons. First, the courts based their decisions on different state consumer protection statutes, so they provide little insight on whether a court should use the vehicle's purchase price as the baseline for determining the amount in controversy in a suit involving a Pennsylvania UTPCPL claim. Second, the cases are readily distinguishable on critical facts. For example, the plaintiff's complaint in Waggoner expressly stated that the amount sought by each plaintiff did not exceed $75,000. Thus, instead of arguing that the amount in controversy should be based on compensatory damages, Ford urged the court to consider the cost of a provision in the complaint requiring the company to "create from scratch a massive owner identification, notification and transmission repair program," which Ford insisted would exceed $75,000. Similarly, in Jorgenson, Ford did not assert that compensatory and punitive damages for each plaintiff would exceed $75,000, but instead argued that the plaintiffs' claims for injunctive relief met the amount-in-controversy requirement. In both cases, the district courts concluded that the equitable relief sought did not satisfy the jurisdictional threshold and, therefore, remanded the cases. 26 Appellants do not provide a convincing argument to support their assertion that damages under the UTPCPL necessarily should be confined to the cost of repairing or replacing the defective transmissions and should not take into account the purchase price of the automobiles. Moreover, their complaint specifically seeks "all or part of the sums [appellants] paid to purchase or lease [their] automobiles." Pls.' Compl. at 19-20 (App. 54a-55a). Furthermore, the text of the UTPCPL allowing plaintiffs to recover "actual damages" for violations of the statute in no way precludes recovery for the purchase price of the vehicles. We also point out that appellants misconstrue three of the four cases cited by the district court, for these decisions plainly calculated the amount in controversy under the UTPCPL by using the purchase price of the vehicle, not the repair costs, as the baseline for damages. Finally, the only cases appellants present in support of their position are based on statutes from other states and easily are distinguished on critical facts. Overall, we are satisfied that the district court correctly held that the $75,000 threshold was exceeded for each of the appellants' claims. Therefore, we will affirm the district court's order denying appellants' motion for remand. B. Economic Loss Doctrine 27 Appellants contend that the district court erred in applying the economic loss doctrine to their fraudulent concealment and UTPCPL claims because (1) the doctrine applies only to transactions between commercial entities, not to transactions involving individual consumers, and (2) the doctrine does not bar actions for intentional fraud. The Supreme Court of Pennsylvania has not addressed either question, and inasmuch as Pennsylvania substantive law is controlling here, we must predict how the court would rule by "giving `proper regard' to the relevant rulings of other courts of the state." Robertson v. Allied Signal, Inc., 914 F.2d 360, 378 (3d Cir.1990). "In the absence of guidance from the state's highest court, we are to consider decisions of the state's intermediate appellate courts for assistance in predicting how the state's highest court would rule." Gares v. Willingboro Twp., 90 F.3d 720, 725 (3d Cir.1996). See also U.S. Underwriters Ins. Co. v. Liberty Mut. Ins. Co., 80 F.3d 90, 93 (3d Cir.1996) ("The rulings of intermediate appellate courts must be accorded significant weight and should not be disregarded absent persuasive indication that the highest court would rule otherwise."). 28 The economic loss doctrine "prohibits plaintiffs from recovering in tort economic losses to which their entitlement flows only from a contract." Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 618 (3d Cir.1995). The Supreme Court adopted the doctrine in an admiralty products liability case, holding that "a manufacturer in a commercial context has no duty under either negligence or strict-liability theory to prevent a product from injuring itself." East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 871, 106 S.Ct. 2295, 2302, 90 L.Ed.2d 865 (1986). Though it recognized the need for products liability law to protect consumers from dangerous products, the Court expressed concern that if products liability remedies "were to progress too far, contract law would drown in a sea of tort." Id. at 866, 106 S.Ct. at 2300. 29 Drawing a distinction between tort and contract law, the Court observed that the need for a remedy in tort is reduced when the only injury is to the product itself and "the product has not met the customer's expectations, or, in other words, that the customer has received `insufficient product value.'" Id. at 872, 106 S.Ct. at 2302. The Court explained that in such a situation express and implied warranties under contract law are best suited to compensate for a loss in product value. Not only would allowing an action to lie in tort impose substantial costs on society, but relying on contract law permits parties to negotiate the terms of the manufacturer's liability. See id. at 872-73, 106 S.Ct. at 2302-03. In exchange for allowing the manufacturer to restrict its liability, the purchaser can bargain for a lower price. Id. at 873, 106 S.Ct. at 2303. Accordingly, the Court saw "no reason to intrude into the parties' allocation of the risk." Id. 30 Although the Supreme Court of Pennsylvania has not ruled on the viability of the economic loss doctrine, an en banc panel of the Pennsylvania Superior Court adopted the doctrine largely as set forth in East River. In REM Coal Co. v. Clark Equipment Co., 386 Pa.Super. 401, 563 A.2d 128, 134 (1989), the court held that "negligence and strict liability theories do not apply in an action between commercial enterprises involving a product that malfunctions where the only resulting damage is to the product itself." Following the Supreme Court's reasoning in East River, the court stated that "contract theories such as breach of warranty are specifically aimed at and perfectly suited to providing complete redress in cases involving ... economic losses." Id. at 129. The court further explained that "such losses are based upon and flow from the purchaser's loss of the benefit of his bargain and his disappointed expectations as to the product he purchased. Thus, the harm sought to be redressed is precisely that which a warranty action does redress." Id. The court concluded that limiting a plaintiff to contract remedies was necessary because "[t]o impose tort liability in addition would certainly erode the important distinctions between tort and contractual theories, including their differing objectives." Id. at 411, 563 A.2d 128. 1. Commercial Entities 31 Appellants contend that the district court's dismissal of their claims under the economic loss doctrine was improper because the doctrine applies only to transactions between commercial enterprises. Ford maintains that the district court's holding not only was correct, but was consistent with Pennsylvania state court decisions recognizing that the economic loss doctrine extends to transactions involving individual consumers. 32 Appellants first argue that the district court's holding is inconsistent with the seminal opinions on the economic loss doctrine because these decisions specifically speak of transactions between commercial entities. See East River, 476 U.S. at 871, 106 S.Ct. at 2302 ("manufacturer in a commercial relationship"); Duquesne Light, 66 F.3d at 620 ("sophisticated business entities"); REM Coal, 563 A.2d at 134 ("commercial enterprises"); Indus. Unif. Rental Co., Inc. v. Int'l Harvester Co., 317 Pa.Super. 65, 463 A.2d 1085, 1093 (1983) ("commercial enterprises"). Appellants' argument is unavailing, however, for although the courts in these cases limited their discussions to the circumstances presented therein — namely to transactions that happened to arise between two businesses — these opinions do not indicate that the doctrine should not be applied to transactions involving noncommercial entities. Moreover, appellants do not offer authority specifically holding that the economic loss doctrine should not apply to transactions between manufacturers and noncommercial consumers. 33 In light of the Supreme Court of Pennsylvania's silence on the issue, the district court relied on the Pennsylvania Superior Court's decision in Jones v. General Motors Corp., 428 Pa.Super. 544, 631 A.2d 665 (1993), to predict how the Supreme Court of Pennsylvania would resolve the matter. As in this case, the plaintiffs in Jones were individual consumers suing an automobile manufacturer for defective components in their vehicle, which in Jones caused a fire that destroyed their truck. See id. at 665. The superior court applied the economic loss doctrine to the plaintiffs' strict liability claim, holding that "we find that the rationale behind REM Coal is equally applicable to disputes involving claims brought by individuals." Id. at 666. The court explained that "[r]egardless of whether a consumer is a commercial entity or an individual, a manufacturer's warranty as to the quality of its product is a bargained for condition of sale, the effect of which must not be undermined." Id. 34 Appellants urge us to disregard Jones because "it was a panel decision that cannot, by law, overrule the `commercial entity' requirement of REM Coal, an en banc decision." Br. of Appellants at 22 (citing Larthey v. Bland, 367 Pa.Super. 67, 532 A.2d 456, 459 (1987)). The superior court's decision in Jones, however, did not "overrule" REM Coal in any manner: as explained above, the REM Coal court addressed the legal issue in the context of the facts of that particular case and never explicitly stated that the doctrine should not be applied to disputes between manufacturers and noncommercial parties. Even more importantly, appellants misinterpret REM Coal as including a "commercial entity" requirement, for the court specifically reserved on whether the doctrine applies only to commercial enterprises. See REM Coal, 563 A.2d at 134 n. 4 ("Since the case sub judice involves a dispute between commercial enterprises, as did East River and Aloe Coal, we need not and do not decide any questions regarding disputes between non-commercial parties."). 35 Appellants' position that we should ignore Jones is at odds with our responsibility to give "significant weight" to state appellate court decisions that may provide insight into how the state supreme court would settle the issue. U.S. Underwriters, 80 F.3d at 93. Moreover, as Ford points out, Jones is not the only Pennsylvania decision applying the economic loss doctrine to commercial and noncommercial purchasers alike. See, e.g., Fasig v. Security-Conn. Life Ins. Co., 41 Pa. D. & C. 4th 494, 502-03 (Ct. Com. Pl. 1999); Buck v. Ford Motor Co., No. AR 97-6895, Pittsburgh Legal J., March 1999, at 83 (Ct. Com. Pl. of Allegheny County, Pa. Oct. 14, 1998). Therefore, even if courts rarely have cited Jones since it was issued eight years ago, the decision is still more predictive of how the Supreme Court of Pennsylvania would rule than the lack of cases presented by appellants in support of their position. Accordingly, as it was required to do, the district court correctly gave "proper regard" to Jones in predicting that the Supreme Court of Pennsylvania would hold that the economic loss doctrine extends to individual consumers. 36 Appellants also criticize Jones as being "inconsistent with the purpose and rationale of the doctrine." Br. of Appellants at 22-23. They argue that East River and REM Coal applied the doctrine to contractual relationships between commercial entities because the sophisticated business enterprises in those cases not only understood the risks involved in negotiating the terms of the manufacturer's liability, but also possessed comparable bargaining power that enabled them to enter into fair, arms-length agreements. See id. at 17-18. Appellants insist that the underlying conditions present in East River and REM Coal do not exist in transactions between ordinary consumers and large corporations. See id. at 18. They explain that in commercial relationships between consumers and car manufacturers, the consumers lack bargaining power and are effectively powerless in negotiating the terms of a car's warranty. See id. Thus, to the extent that appellants were unable to enter into "informed, arms-length negotiations" with Ford over the terms of their warranties, appellants contend that the district court should not have applied the economic loss doctrine to their fraud and statutory claims. 37 Although car purchasers — whether ordinary consumers or businesses — may be unable to negotiate the specific details of their automobile warranties, or may be able to select among only limited options, purchasers certainly do not lack bargaining power. Purchasers have the freedom to chose a less expensive car with a limited warranty or a more expensive car with a longer-term warranty, and they often have the option of buying an extended warranty. Moreover, purchasers may select among cars of various manufacturers and consider the differences in warranties in making their choice. Indeed, manufacturers may and do advertise the advantage of their own warranties. And as the Supreme Court stated in East River, "[w]hile giving recognition to the manufacturer's bargain, warranty law sufficiently protects the purchaser by allowing it to obtain the benefit of its bargain. The expectation damages available in warranty for purely economic loss give a plaintiff the full benefit of its bargain by compensating for foregone business opportunities." East River, 476 U.S. at 873, 106 S.Ct. at 2303 (internal citation omitted). 38 Furthermore, appellants' proposal to differentiate between ordinary consumers and commercial entities would prove to be difficult to apply in practice. First, as alluded to above, businesses purchasing automobiles — or any mass-produced product, for that matter — may have no greater ability to negotiate the specific terms of a warranty than ordinary consumers. Second, a plaintiff's sophistication cannot be assumed simply because it is a business or corporation as distinguished from an individual consumer. Finally, if courts seek to avoid such baseless assumptions by engaging in case-by-case, fact-intensive inquires to determine the plaintiff's level of sophistication, they will be drawn into the type of "difficult line-drawing process that can only yield inconsistent results." REM Coal, 563 A.2d at 132-33. 39 At bottom, not only do Pennsylvania state court decisions indicate that the Supreme Court of Pennsylvania likely would apply the economic loss doctrine to transactions involving ordinary consumers, but drawing a distinction between commercial and noncommercial plaintiffs would be entirely impracticable. Therefore, we conclude that the district court properly held that the doctrine applies to transactions between manufacturers and ordinary consumers. 2. Intentional Fraud Exception 40 Appellants next challenge the district court's order on the grounds that it improperly applied the economic loss doctrine to their fraudulent concealment and UTPCPL claims, as they contend that pertinent Pennsylvania state court decisions and federal district court opinions interpreting Pennsylvania law do not support its holding. Ford argues, however, that the district court, after reviewing persuasive case law from other jurisdictions, correctly predicted that the Supreme Court of Pennsylvania would resist creating an exception for intentional fraud actions. 41 Before examining decisions from other jurisdictions addressing whether the economic loss doctrine bars claims of intentional fraud, the district court first found a split in authority among Pennsylvania federal district courts on the issue. Appellants maintain, however, that there is no such split arguing that the three decisions arising out of the Eastern District of Pennsylvania that the court cited in support of its finding are distinguishable. Appellants explain that Factory Market, Inc. v. Schuller International, Inc., 987 F.Supp. 387, 395, 397 (E.D.Pa.1997), and Sun Co., Inc. v. Badger Design & Constructors, Inc., 939 F.Supp. 365, 370, 374 (E.D.Pa.1996), involved negligent misrepresentation claims, not intentional fraud claims. In addition, they argue that the passage in Sneberger v. BTI Americas, Inc., No. Civ. A. 98-932, 1998 WL 826992, at *8 (E.D.Pa. Nov.30, 1998), stating that fraud and negligent misrepresentation actions are barred by the economic loss doctrine was dicta supported by only one case, Eagle Traffic Control v. Addco, 882 F.Supp. 417 (E.D.Pa.1995), which itself was a negligent misrepresentation case. 42 Appellants contend that, inasmuch as there is not a split in authority among district courts interpreting Pennsylvania law, the district court erred in relying on authority from other jurisdictions in predicting how the Supreme Court of Pennsylvania would decide the issue. Appellants submit that the district court should have followed the holdings of the other federal district courts in Pennsylvania to have addressed the specific issue raised in this case — namely, whether claims for intentional fraud, as distinguished from negligent misrepresentation, are barred by the economic loss doctrine. See Peerless Wall & Window Coverings, Inc. v. Synchronics, Inc., 85 F.Supp.2d 519, 535 (W.D.Pa.2000); KNK Med.-Dental Specialities, Ltd. v. Tamex Corp., Nos. Civ. A. 99-3409, Civ. A. 99-5265, 2000 WL 1470665, at *5 (E.D.Pa. Sept.28, 2000); Polymer Dynamics, Inc. v. Bayer Corp., No. Civ. A. 99-4040, 2000 WL 1146622, at *7 n. 5 (E.D.Pa. Aug.14, 2000); Montgomery County v. Microvote Corp., No. Civ. A. 97-6331, 2000 WL 134708, at *7 (E.D.Pa. Feb.3, 2000); N. Am. Roofing & Sheet Metal Co., Inc. v. Bldg. & Constr. Trades Council of Phila. & Vicinity, AFL-CIO, No. Civ. A. 99-2050, 2000 WL 230214, at *7 (E.D.Pa. Feb.29, 2000); Sunquest Info. Sys., Inc. v. Dean Witter Reynolds, Inc., 40 F.Supp.2d 644, 658 (W.D.Pa.1999); Auger v. Stouffer Corp., No. 93-2529, 1993 WL 364622, at *5 (E.D.Pa. Aug.31, 1993); Palco Linings, Inc. v. Pavex, Inc., 755 F.Supp. 1269, 1271 (M.D.Pa.1990). 43 In the face of appellants' string of district court decisions, Ford first notes that the district court opinions are not binding on this court, for we must give only Pennsylvania state court decisions "proper regard." Ford then goes on to argue that all of these cases are unavailing because they can be traced back to Palco Linings, 755 F.Supp. at 1271, which is not based on a Pennsylvania state court decision, but on the Illinois Supreme Court opinion in Moorman Manufacturing Co. v. National Tank Co., 91 Ill.2d 69, 61 Ill.Dec. 746, 435 N.E.2d 443 (1982). See Peerless Wall, 85 F.Supp.2d at 535; KNK Med., 2000 WL 1470665, at *5; Polymer Dynamics, 2000 WL 1146622, at *7 n. 5; Montgomery County, 2000 WL 134708, at *7; N. Am. Roofing, 2000 WL 230214, at *7; Sunquest, 40 F.Supp.2d at 658; Auger, 1993 WL 364622, at *5. 44 Ford also points out that the district courts in KNK Medical, Polymer Dynamics, and Montgomery County — like the district court in this case — explicitly recognized that there was a split in authority on the issue. Moreover, as Ford asserts, the three decisions lend questionable support to appellants' argument in favor of an intentional fraud exception. For instance, KNK Medical is unavailing because the court permitted the fraud claim only after concluding that it was "sufficiently distinct from [the] contract claims." KNK Med., 2000 WL 1470665, at *6. Polymer Dynamics is not controlling because the court explicitly declined to resolve the question after noting that the defendant did not raise the doctrine as a defense. See Polymer Dynamics, 2000 WL 1146622, at *7 n. 5. Finally, Montgomery County is unreliable because the court emphatically stated that "the economic loss doctrine bars the County's recovery for both negligent and intentional misrepresentation," but then inexplicably reversed course and permitted the plaintiff's intentional misrepresentation claim, perhaps out of an abundance of caution in light of the apparent split in authority. Montgomery County, 2000 WL 134708, at *7. 45 We are satisfied from our review of the case law Ford and appellants cite that the law in Pennsylvania with respect to the application of the economic loss doctrine to intentional fraud actions remains unsettled, and the district court opinions interpreting Pennsylvania law on the point provide little guidance. As already noted, the Supreme Court of Pennsylvania and the other Pennsylvania appellate courts have not resolved the issue in a published opinion. The Pennsylvania federal district court cases appellants and Ford cite are of limited help, for not only is there an apparent split among them, but these opinions address the issue in a very conclusory fashion without providing any explanation why the Supreme Court of Pennsylvania would rule in a particular way. Moreover, as Ford points out, these district court prognostications do not control our prediction of how the Supreme Court of Pennsylvania would settle the issue. 46 Having determined that the federal and state decisions interpreting Pennsylvania law shed little light on the question at issue, we next look outside the jurisdiction for persuasive authority on the subject. See Hughes v. Long, 242 F.3d 121, 128 (3d Cir.2001) ("In predicting how a matter would be decided under state law we examine: (1) what the Pennsylvania Supreme Court has said in related areas; (2) the decisional law of the Pennsylvania intermediate courts; (3) federal appeals and district court cases interpreting state law; and (4) decisions from other jurisdictions that have discussed the issues we face here."). 47 We start with the three opinions interpreting Florida, Wisconsin, and Minnesota law that the district court cited in its order. See Hoseline, Inc. v. U.S.A. Diversified Prods., Inc., 40 F.3d 1198, 1200 (11th Cir.1994); Cooper Power Sys., Inc. v. Union Carbide Chem. & Plastics Co., Inc., 123 F.3d 675, 682 (7th Cir.1997); Nelson Distrib., Inc. v. Stewart Warner Indus. Balancers, a Div. of Stewart Warner Corp., 808 F.Supp. 684, 688 (D.Minn.1992). Appellants assert that these opinions are irrelevant, insisting that we should disregard them because they "bear no relation to this consumer fraud action." Br. of Appellants at 26 n. 9. Aside from referring to the opinions as "out-of-court decisions," however, appellants fail to explain why the opinions are inapposite. Instead, they simply comment that the opinions underscore their argument that we already have rejected that the economic loss doctrine is limited to disputes between commercial enterprises. Notwithstanding appellants' position, these opinions squarely support the district court's holding, as they undeniably recognize that the economic loss doctrine bars tort recovery for intentional fraud claims. Nevertheless, we find that the opinions are short on explanation and therefore provide little insight into how the Supreme Court of Pennsylvania might resolve the matter. 48 Appellants urge us to adopt the position appellants advance because it represents the majority rule. In a footnote in their reply brief, they cite 23 cases from other federal and state jurisdictions recognizing some type of fraud exception to the economic loss doctrine. See Br. of Appellants at 10-12 n. 6. After reviewing the opinions cited in both parties' briefs and conducting our own independent research, we find most persuasive the well-developed federal and state case law interpreting Michigan and Wisconsin law regarding the economic loss doctrine. We particularly are influenced by an emerging trend in these and other jurisdictions "recogniz[ing] a limited exception to the economic loss doctrine for fraud claims, but only where the claims at issue arise independent[ly] of the underlying contract." Raytheon Co. v. McGraw-Edison Co., Inc., 979 F.Supp. 858, 870 (E.D.Wis.1997). 49 The leading case is Huron Tool & Engineering Co. v. Precision Consulting Services, Inc., 209 Mich.App. 365, 532 N.W.2d 541, 545 (1995), in which a Michigan state appellate court recognized an exception for fraud-in-the-inducement claims, but only if the fraud is "extraneous to the contract," not "interwoven with the breach of contract." The court acknowledged that "[f]raud in the inducement presents a special situation where parties to a contract negotiate freely — which normally would constitute grounds for invoking the economic loss doctrine — but where in fact the ability of one party to negotiate fair terms and make an informed decision is undermined by the other party's fraudulent behavior." Id. The court limited the exception for fraud-in-the-inducement claims, however, stating that "where the only misrepresentation by the dishonest party concerns the quality or character of the goods sold, the other party is still free to negotiate warranty and other terms to account for possible defects in the goods." Id. Accordingly, the court held that the "plaintiff may pursue a claim for fraud in the inducement extraneous to the alleged breach of contract." Id. at 546. 50 Huron's impact extends beyond Michigan. The Court of Appeals for the Seventh Circuit relied on Huron when it determined that there was no basis for treating an intentional misrepresentation claim differently from a negligent misrepresentation claim under Wisconsin law. See Cooper Power, 123 F.3d at 682. Explaining that the plaintiff 24 was free to extract an express warranty from the manufacturer to remedy any misrepresentation, whether intentional or innocent, the court reasoned that intentional "[m]isrepresentations... that ultimately concern the quality of the products sold[] are properly remedied through claims for breach of warranty." Id. The Huron limitation also influenced the Court of Appeals for the Eighth Circuit when it concluded that "[a] fraud claim independent of the contract is actionable, but it must be based upon a misrepresentation that was outside of or collateral to the contract, such as many claims of fraudulent misrepresentation." AKA Distrib. Co. v. Whirlpool Corp., 137 F.3d 1083, 1086 (8th Cir.1998). Finally, the Florida Supreme Court explicitly embraced Huron's distinction "between fraud extraneous to the contract and fraud interwoven with the breach of contract" when it held that "[w]here a contract exists, a tort action will lie for either intentional or negligent acts considered to be independent from acts that breached the contract." HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So.2d 1238, 1239-40 (Fla.1996). 51 This approach is not without its critics, however, as at least one district court in the Eastern District of Wisconsin has challenged the Huron limitation on several grounds. See Budgetel Inns, Inc. v. Micros Sys., Inc., 8 F.Supp.2d 1137 (E.D.Wis. 1998) (Budgetel I); Budgetel Inns, Inc. v. Micros Sys., Inc., 34 F.Supp.2d 720 (E.D.Wis.1999) (Budgetel II). That court presented three reasons to support its prediction that the Wisconsin Supreme Court would reject Huron and conclude that fraud-in-the-inducement claims as a rule are not barred by the economic loss doctrine. First, it surmised that the practical effect of the Huron limitation would be the complete elimination of the fraud-in-the-inducement exception because fraudulent inducement cases always involve misrepresentations concerning the quality or characteristics of the subject matter of the underlying contract. See Budgetel I, 8 F.Supp. at 1146. See also Black's Law Dictionary at 661 (6th ed.1990) (defining "fraud in the inducement" as "[m]isrepresentation as to the terms, quality or other aspects of a contractual relation ... that leads a person to agree to enter into the transaction with a false impression or understanding of the risks, duties or obligations she has undertaken"). Second, the court stated that fraudulent inducement claims are, in reality, always independent of the contract insofar as the fraudulent inducement must occur before the formation of the contract. See Budgetel I, 8 F.Supp.2d at 1147. Third, the court found that the Huron limitation conflicted with the underlying policies of the economic loss doctrine inasmuch as intentional misrepresentations impede parties from freely allocating economic risk between them. See id. at 1148. 52 Only eight months after the court decided Budgetel II, another district court in the Eastern District of Wisconsin upheld the Huron limitation and, in so doing, responded to each of the criticisms of Huron in the Budgetel opinions. See Rich Prod. Corp. v. Kemutec, Inc., 66 F.Supp.2d 937, 977-80 (E.D.Wis.1999). First, the court rejected the notion that the limitation rendered the fraud-in-the-inducement exception a nullity, maintaining that "[i]t is not difficult to conceive of several scenarios giving rise to claims for fraud in the inducement that survive a challenge under Huron." See id. at 979. The court explained: 53 For example, a company might falsely misrepresent its financial condition, or the level of its insurance coverage, in order to induce another company to enter into a contract. Such considerations, while they may be relevant when considering who[m] to do business with, do not concern the underlying subject matter of the contract or a party's performance thereunder. Another example is representations regarding organizational form and status. A company may represent itself as a non-profit, charitable organization in order to induce another company to do business on terms more favorable than would otherwise be the case. Or someone doing business as a corporation may represent themselves as a sole proprietorship or partnership, inducing another party to do business thinking they have recourse against personal assets should a dispute develop. Such representations have nothing to do with the subject matter of the underlying contracts or the offending party's performance thereunder, yet they may inflict damages upon the party that relies on them when deciding whether or not to do business. The Huron limitation may set the bar high, but it is not the death knell of fraud in the inducement claims between contracting parties. 54 Id. 55 Second, the Rich Products court stated that if fraudulent inducement claims are exempted from the economic loss doctrine because, as Budgetel asserted, they always arise independently of a contract, then the economic loss doctrine would be rendered a nullity, and tort law would swallow contract law. The court explained that if "all claims for fraud in the inducement are extraneous or independent of the contract because they occur `prior to the formation of the contract itself,' ... every breach of warranty claim would be turned into a tort by a simple affidavit stating, in effect, that the warranty was spoken before it was written." Id. (internal citation omitted). The court also warned that "written disclaimers of warranties could be voided after the fact by the same affidavit, so long as the oral representations preceded the contract," thus causing chaos and uncertainty in commercial transactions. Id. 56 Third, the Rich Products court rejected the Budgetel court's concerns that the Huron limitation conflicts with the underlying purpose of the economic loss doctrine by allowing intentional misrepresentations to hamper the bargaining process and prevent the free allocation of economic risk by the parties. It explicated that "[w]arranties of merchantability and fitness for a particular purpose are common hedges against the carelessness or outright dishonesty of a party's representations regarding the subject matter of a contract." Id. at 980. 57 The district court in this case seems to have followed the Huron line of cases when it found "more persuasive the reasoning of courts that do bar fraud claims that are intertwined with contract claims and the resulting loss has been economic." Werwinski, 2000 WL 1201576, at *5 (emphasis added). Indeed, because appellants' fraudulent concealment claims relate to "the quality or character of the goods sold," the claims clearly are "intertwined" with, and not "extraneous" to, their breach of warranty claims. Huron, 532 N.W.2d at 545. Appellants' fraud claims are "undergirded by factual allegations identical to those supporting their breach of contract counts." Pub. Serv. Enter. Group, Inc. v. Phila. Elec. Co., 722 F.Supp. 184, 201 (D.N.J.1989). Moreover, the alleged fraudulent concealment "did not cause harm to the plaintiffs distinct from those caused by the breach of contract; and the mere fact that disclosure of certain facts to plaintiffs may have allowed them to take corrective action does not change the result." Id. 58 In addition to exploring persuasive authority from other jurisdictions, we also examine the justifications presented by the parties in support of their competing positions. Ford argues that appellants have failed to articulate any rationale for carving out an exception for intentional fraud actions when the alleged misrepresentation relates to the quality or properties of the subject matter of the underlying contract. See Br. of Appellee at 28. In particular, Ford submits that neither appellants nor any of the opinions they cite provide any justification for treating intentional fraud actions differently from negligent misrepresentation actions, which both parties agree the economic loss doctrine bars under Pennsylvania state case law. Ford explains that from the perspective of a buyer, "intentional (fraudulent) and innocent (negligent) misrepresentations have the same effect," and a buyer can insure against both types of harms through express warranties and statutory warranties. Id. at 30. As Ford opines, "just as the purchaser can protect itself in the contractual language against the other party's innocent, though wrong representations, so too can it protect itself — by means of warranty — against the other party's intentionally wrong representations about a product's performance or durability." Id. (internal citations and internal quotation marks omitted). 59 The essence of appellants' rationale for an intentional fraud exception is that applying the economic loss doctrine to such claims would not serve the doctrine's purpose of preventing tort law from reallocating risks between parties who fairly have negotiated an arms-length contract. First, appellants maintain that a transaction has not been negotiated fairly — and therefore does not allocate risk fairly — if one party has made intentional false misrepresentations to the other. Second, appellants explain that "a party making an intentional misrepresentation is in a better position to assess the true risks associated with a contract and therefore should bear the risk of liability for a fraud claim." Amico v. Radius Communications, Inc., No. 1793, slip op. at 7 (Pa.Com.Pl. Jan. 9, 2001) (attached as Exhibit B to Reply Brief of Appellants). Finally, appellants submit that parties to a contract should not have to anticipate possible intentional misrepresentations by the other party when negotiating the allocation of risk between the parties: 60 Although it makes sense to allow parties to allocate the risk of mistakes or accidents that lead to economic losses, it does not make sense to extend the [economic loss] doctrine to intentional acts taken by one party to subvert the purposes of the contract. Although theoretically parties could include contractual provisions discussing the allocation of responsibility when one party intentionally lies or misleads the other, it would not be conducive to amicable commercial relations to require parties to include such clauses in contracts. Expressing such a basic lack of trust in the other party would be likely to sour a deal from the start. 61 A party to a contract cannot rationally calculate the possibility that the other party will deliberately misrepresent terms critical to that contract. Public policy is better served by leaving the possibility of an intentional tort suit hanging over the head of a party considering outright fraud.... 62 First Republic Bank v. Brand, No. 147, slip op. at 13 (Pa.Com.Pl. Dec. 19, 2000) (quoting Stoughton Trailers, Inc. v. Henkel Corp., 965 F.Supp. 1227, 1236 (W.D.Wis. 1997)) (attached as Exhibit C to Reply Brief of Appellants). 63 Both parties provide plausible explanations for their respective positions. On the one hand, appellants' policy justifications for creating an intentional fraud exception are somewhat persuasive, as it makes sense to provide parties 29 who have been victims of another party's intentionally fraudulent behavior special protections under tort law in order to deter such behavior. On the other hand, appellants are unable to explain why contract remedies are inadequate to provide redress when the alleged misrepresentation relates to the quality or characteristics of the goods sold. As Ford points out, the mental state of the wrongdoer is irrelevant from the buyer's perspective: a plaintiff suffers the same harm — i.e., economic losses — regardless of whether the misrepresentation is innocent, negligent, or intentional. Moreover, express warranties and state warranty statutes can provide for compensation to be awarded for these economic losses, regardless of whether the misrepresentation is innocent, negligent, or intentional. Thus, the need to provide a plaintiff additional tort remedies is diminished greatly when (1) the plaintiff can be made whole under contract law, and (2) allowing additional tort remedies will impose additional costs on society. As we have stated previously, "when loss of the benefit of a bargain is the plaintiff's sole loss, ... the undesirable consequences of affording a tort remedy in addition to a contract-based recovery [are] sufficient to outweigh the limited interest of the plaintiff in having relief beyond that provided by warranty claims." Duquesne Light, 66 F.3d at 618-19 (internal quotations omitted). 64 Furthermore, the district court based its prediction as to how the Supreme Court of Pennsylvania would resolve the issue on sound deductive reasoning. The district court applied the economic loss doctrine to the fraudulent concealment claims after recognizing the willingness of Pennsylvania courts to restrict intentional tort claims that overlap with contract claims. In particular, the district court cited the "gist of the action" doctrine8 as evidence of the Pennsylvania courts' penchant for dismissing fraud claims that simply restate breach of contract claims. In the absence of any pertinent Pennsylvania case law on the subject, the district court aptly predicted that the Supreme Court of Pennsylvania would apply the economic loss doctrine to intentional fraud cases by drawing an analogy from Pennsylvania's acceptance of the "gist of the action" doctrine. Such a conclusion is congruent with our past recognition that Pennsylvania state courts have exhibited a "lack of hospitality to tort liability for purely economic loss." Aloe Coal Co. v. Clark Equip. Co., 816 F.2d 110, 119 (3d Cir.1987). See also Pub. Serv. Enter. Group, Inc., 722 F.Supp. at 193 (recognizing "that Pennsylvania law is hostile to the recovery of economic losses in tort"). 65 Finally, even if we were torn between two competing yet sensible interpretations of Pennsylvania law and did not find the district court's deductive reasoning to be persuasive, we should opt for the interpretation that restricts liability, rather than expands it, until the Supreme Court of Pennsylvania decides differently. See City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415, 421 (3d Cir.2002); Home Valu, Inc. v. Pep Boys, 213 F.3d 960, 965 (7th Cir.2000) ("Where, as in this case, we are faced with two equally plausible interpretations of state law, we generally choose the narrower interpretation which restricts liability, rather than a more expansive interpretation which creates substantially more liability." (internal quotation marks omitted)). The economic loss doctrine is designed to place a check on limitless liability for manufacturers and establish clear boundaries between tort and contract law. Carving out an exception for intentional fraud would eliminate that check on liability and blur the boundaries between the two areas of law, thus exposing manufacturers to substantially greater liability. In light of these realities, we select the path that limits liability by rejecting appellants' request for an intentional fraud exception. 66 Based on these reasons, we believe the district court correctly applied the economic loss doctrine to appellants' fraudulent concealment claims. Therefore, we will affirm the district court's order with respect to appellants' common law fraudulent concealment claims. 3. Statutory Fraud Claims 67 Appellants next argue that the district court erred in applying the economic loss doctrine to their fraud claims under the UTPCPL. Ford responds that the district court was correct when it ruled that there "does not seem to be an[y] reason for treating a common law fraudulent concealment claim differently from a statutory claim under a consumer protection statute." Werwinski, 2000 WL 1201576, at *5 (citing Weather Shield Mfg., Inc. v. PPG Indus., Inc., 1998 WL 469913, at *5 (W.D.Wis. June 11, 1998)). 68 Appellants attack the district court's conclusion by attempting to distinguish the case on which the district court relied. Appellants explain that the plaintiff in Weather Shield was a business that would be barred from bringing a claim under the Pennsylvania UTPCPL, which only applies to products purchased for "personal, family or household purposes." Pa. Stat. Ann. tit. 73, § 202-9.2(a). Appellants do not explain how this fact materially diminishes the persuasiveness of Weather Shield on the issue of whether statutory fraud claims should be treated the same way as common law fraud claims under the economic loss doctrine. 69 Notwithstanding appellants' attempt to distinguish the case, Weather Shield provides persuasive authority for applying the economic loss doctrine to statutory misrepresentation claims. As the district court in Weather Shield explicates, "exempting [statutory fraud] claims from the effects of the economic loss doctrine would virtually nullify the doctrine since [the statute] is broad enough to encompass nearly every misrepresentation claim in the commercial sales context, and claims arising from product failure can readily be recast as misrepresentation claims." Weather Shield, 1998 WL 469913, at *6. Ford also offers in support of its position Flagg Energy Development Corp. v. General Motors Corp., 244 Conn. 126, 709 A.2d 1075, 1088 (1998), in which the Connecticut Supreme Court held that the economic loss rule barred plaintiffs' claims under the Connecticut Unfair Trade Practices Act because the claims "depend[ed] upon the allegations of fact that are identical to those asserted in their [contract] claims." 70 In light of the persuasive authority treating common law and statutory fraud claims similarly under the economic loss doctrine, and appellants' inability to proffer contrary authority, we do not believe that the district court erred in applying the doctrine to appellants' UTPCPL claims. Inasmuch as the same policy justifications for applying the doctrine to appellants' common law intentional fraud claims support the doctrine's application to appellants' UTPCPL claims, we will affirm the district court's order with respect to these statutory claims.9 IV. CONCLUSION 71 For the foregoing reasons, we will affirm the orders entered by the district court on April 11, 2000, and December 12, 2000. Notes: * The Honorable Myron H. Bright, Senior Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation 1 Jean Cook's 1991 Mercury Sable experienced transmission failure at 44,500 miles; Donna and Joseph Coffey's 1995 Ford Winstar experienced transmission problems at 50,000 miles; Joan McIlhenny's 1990 Ford Taurus had to have its transmission overhauled at 73,159 miles; Daria Zaharchuk's 1993 Ford Taurus experienced transmission failure at 48,779 miles; and James Dunlap's 1995 Ford Winstar had to have its transmission overhauled at 65,000 milesSee Pls.' Compl. ¶¶ 33-37 (App. 43a-45a). 2 Having concluded that the compensatory and punitive damages could exceed the amount-in-controversy threshold, the court deemed it unnecessary to consider the value of the injunctive relief sought by appellantsSee id. 3 Consequently, the Werwinskis are not parties to this appeal, even though their names remain in the caption as a procedural formalitySee Br. of Appellants at 4 n. 2. 4 Appellants allege in their complaint that their claims exceed $50,000 in value,see Pls.' Compl. ¶ 42 (App. 46a), but they insist that they included this allegation to avoid the case being referred to Pennsylvania's mandatory arbitration program. See Br. of Appellants at 12. The district court considered this allegation to be a concession by appellants that the amount in controversy was at least $50,000 and that they were seeking more than merely $2,000-$3,000 in repair costs for each plaintiff. See Werwinski, 2000 WL 375260, at *3. Appellants explain that they reached the $50,000 figure by aggregating their damages, which they assert is allowed to pass the state mandatory arbitration threshold but is not permitted to pass the federal amount in controversy threshold. See Br. of Appellants at 12. The district court rejected appellants' explanation, concluding for itself that the local rules governing the mandatory arbitration program do not permit aggregation. See Werwinski, 2000 WL 375260, at *3. We need not resolve this issue, however, for even if the district court was correct, appellants' alleged admission that the amount in controversy exceeded $50,000 would not in itself satisfy the $75,000 threshold. 5 Appellants assert that the district court used the purchase price of the vehicles instead of the repair costs even after acknowledging that the parties agreed the complaint sought reimbursement for the cost of transmission repairSee Br. of Appellants at 13. Appellants misrepresent the district court's statement, however, for the court simply observed that "[t]he parties seem to agree that the Complaint could be read as asking for the cost of repairing the damage[d] transmissions." Werwinski, 2000 WL 375260, at *2 (emphasis added). The district court went on to explain that Ford nevertheless argued that additional costs pushed the amount above $75,000. See id. Despite the impression appellants are trying to leave with this court through their characterization of the district court's ruling, the parties never agreed that the repair costs (not the purchase price) were the appropriate starting point for assessing the amount in controversy. 6 These four cases are:Pavese v. General Motors Corp., No. Civ. A. 973688, 1998 WL 57761 (E.D.Pa. Feb.11, 1998); Palan v. Ford Motor Co., Civ. A. No. 95-1445, 1995 WL 476240 (E.D.Pa. Aug.8, 1995); Voorhees v. General Motors Corp., Civ. A. No. 90-295, 1990 WL 29650 (E.D.Pa. Mar.16, 1990); Adams v. General Motors Corp., Civ. A. No. 89-7653, 1990 WL 19950 (E.D.Pa. Feb. 26, 1990). 7 Appellants are correct that one of the four opinions cited by the district court does not squarely support its holding. InVoorhees v. General Motors Corp., Civ. A. No. 90-295, 1990 WL 29650, at *2 (E.D.Pa. Mar. 16, 1990), the district court first explained that the "actual damages for violation of the Lemon Law will be the total purchase price of the truck," and it then trebled the damages under the UTPCPL because a violation of the Lemon Law is also a violation of the UTPCPL. Thus, by intertwining the Lemon Law and the UTPCPL in its analysis of the amount in controversy, the court skirted the question of whether actual damages under the UTPCPL should be measured by the purchase price of the car. 8 AsPhico Insurance Co. v. Presbyterian Medical Services Corp., 444 Pa.Super. 221, 663 A.2d 753, 757 (1995), articulated, the "gist of the action" doctrine bars plaintiffs from bringing a tort claim that merely replicates a claim for breach of an underlying contract. Appellants spend several pages of their opening brief challenging the district court's conclusion with respect to the "gist of the action" doctrine. Appellants misinterpret the district court's opinion, however, as relying on the "gist of the action" doctrine as an alternate basis for dismissing appellants' fraud claims. As Ford correctly points out, the district "court merely cited that rule by analogy as an indication of the Pennsylvania Supreme Court's likely leanings if presented with this issue in the context of the analogous economic loss doctrine." Br. of Appellee at 28-29 n. 11. 9 In a footnote at the end of its decision, the district court concluded that the Pennsylvania two-year statute of limitations barred the Coffeys' and Daria Zaharchuk's common law fraud claimsSee Werwinski, 2000 WL 1201576, at *6 n. 5. The court decided that appellants' claims arose when they began experiencing problems with their transmissions, explaining that "a fraud claim arises when the plaintiff knew or should have known through the exercise of reasonable diligence of the injury stemming from the alleged fraud." Id. Accordingly, the court determined that the fraud claims of any plaintiffs who experienced transmission problems before January 21, 1998 (two years before the filing of the complaint) were time barred. Appellants contend that the district court's ruling was erroneous because the discovery rule tolled the limitations period until they learned that a latent defect was causing their transmission problems. Appellants insist that when their cars failed, they did not know and had no reason to suspect that the transmission contained latent defects or that Ford knew about the defects and fraudulently concealed them from Ford automobile owners. Consequently, they argue that the statute of limitations did not begin to run on their fraudulent concealment claims until they discovered Ford's fraudulent behavior. Having determined that the economic loss doctrine bars the fraudulent concealment claims, we need not resolve this matter.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 96-6280 JOAN E. MARCOTT, Plaintiff - Appellant, versus BUREAU OF PRISONS; UNITED STATES PAROLE COM- MISSION; VIC LOY, Warden Alderson Camp; DONALD CRUMP, Case Manager, Defendants - Appellees. Appeal from the United States District Court for the Southern Dis- trict of West Virginia, at Bluefield. David A. Faber, District Judge. (CA-94-271-1) Submitted: July 23, 1996 Decided: July 31, 1996 Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges. Affirmed by unpublished per curiam opinion. Joan E. Marcott, Appellant Pro Se. Rebecca A. Betts, United States Attorney, Michael Lee Keller, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Appellant appeals from the district court's order denying relief on her 28 U.S.C. § 2241 (1988) petition. We have reviewed the record and the district court's opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court. Marcott v. Bureau of Prisons , No. CA-94-271-1 (S.D.W. Va. Jan. 11, 1996). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2 

Case: 17-10110 Document: 00514277062 Page: 1 Date Filed: 12/18/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-10110 FILED Summary Calendar December 18, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, v. DANIEL MORIN, Defendant–Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 4:16-CR-129-1 Before JOLLY, OWEN, and HAYNES, Circuit Judges. PER CURIAM: * Daniel Morin pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and was sentenced to 70 months of imprisonment and three years of supervised release. He argues that the district court plainly erred in determining that his Texas aggravated robbery conviction is a crime of violence for purposes of imposing the base offense level in U.S.S.G. § 2K2.1(a)(3). He argues that Texas robbery is not a * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  Case: 17-10110 Document: 00514277062 Page: 2 Date Filed: 12/18/2017 No. 17-10110 crime of violence because it lacks the requisite element of the use of force. However, he concedes that this court has already held that Texas robbery is a crime of violence because it meets the generic definition of the enumerated crime-of-violence offense of robbery, and he raises his argument to preserve it for further review. Morin’s argument is foreclosed by United States v. Santiesteban- Hernandez, 469 F.3d 376, 380-81 (5th Cir. 2006), overruled on other grounds by United States v. Rodriguez, 711 F.3d 541, 547-63 (5th Cir. 2013) (en banc), in which we held that robbery in violation of Texas Penal Code § 29.02 meets the generic definition of the enumerated crime-of-violence offense of robbery. See also United States v. Sanchez-Lopez, 493 F. App’x 557, 558 (5th Cir. 2012). Accordingly, the Government’s motion for summary affirmance is GRANTED, the Government’s alternative motion for an extension of time to file a brief is DENIED, and the judgment of the district court is AFFIRMED. 2 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 99-1805 JOSEPH P. PNIEWSKI, SR., Plaintiff - Appellant, versus STATE OF WEST VIRGINIA; DEPARTMENT OF HUMAN RESOURCES; JENIFER PLYMALE; KELLY HARDIN; DEBRA CAMPBELL; DELPHINE WOLFE; WAYNE COUNTY, WV; ROBERT G. CHAFIN, Judge; WAYNE COUNTY PROSECUTOR’S OFFICE; DARRELL PRATT; THOMAS PLYMALE; VELVET BLAKELY, Defendants - Appellees. Appeal from the United States District Court for the Southern Dis- trict of West Virginia, at Huntington. Robert J. Staker, Senior District Judge. (CA-98-1174-3) Submitted: September 9, 1999 Decided: September 14, 1999 Before ERVIN, WILKINS, and HAMILTON, Circuit Judges. Affirmed by unpublished per curiam opinion. Joseph P. Pniewski, Sr., Appellant Pro Se. Charles R. Bailey, Lisa Jeanette Bray, SHUMAN, ANNAND, BAILEY, WYANT & EARLES, Charleston, West Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Joseph Pniewski appeals the district court’s order denying his motions to amend his complaint, correct his proposed amended com- plaint, and appoint counsel, and dismissing his complaint filed under 42 U.S.C.A. § 1983 (West Supp. 1999), 42 U.S.C. § 1985 (1994), and the West Virginia Governmental Tort Claims and Insur- ance Reform Act (W. Va. Code §§ 29-12A-1 to -18 (Repl. Vol. 1999)). We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court. See Pniewski v. West Virginia, No. CA-98- 1174-3 (S.D.W. Va. May 14, 1999). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2 

533 F.Supp.2d 1137 (2008) Brenda HELMERICHS, Plaintiff, v. John E. POTTER, Postmaster General United States Postal Service, Defendant. No. 06-2189-JAR. United States District Court, D. Kansas. February 12, 2008. *1138 *1139 *1140 James L. Wisler, Wisler Law Offices, Lawrence, KS, for Plaintiff. *1141 Connie R. Dearmond, Office of United States Attorney, Wichita, KS, for Defendant. MEMORANDUM AND ORDER JULIE A. ROBINSON, District Judge. Plaintiff Brenda Helmerichs alleges that defendant John E. Potter, Postmaster General of the United States Postal Service ("USPS"), discriminated against her based on her gender and retaliated against her for reporting the alleged discrimination, both in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. This matter comes before the Court on defendant's Motion to Dismiss for Lack of Jurisdiction, or, in the Alternative, for Summary Judgment (Doc. 35). For the reasons explained in detail below, the Court denies defendant's motion to dismiss as moot and grants defendant's motion for summary judgment. I. Summary Judgment Standard Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law."[1] In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.[2] A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim."[3] An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way."[4] The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.[5] In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim.[6] Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."[7] The nonmoving party may not simply rest upon its pleadings to satisfy its burden.[8] Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant."[9] To accomplish this, the facts "must be identified by reference to an affidavit, a *1142 deposition transcript, or a specific exhibit incorporated therein."[10] Rule 56(e) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence.[11] The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.[12] Finally, summary judgment is not a "disfavored procedural shortcut"; on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."[13] In responding to a motion for summary judgment, "a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial."[14] II. Statement of Uncontroverted Facts The following facts are either uncontroverted, stipulated to, or taken in the light most favorable to plaintiff. In the summer of 2004, plaintiff, who is female, was employed with the USPS as a Postmaster EAS, level 13, in Waterville, Kansas. She was promoted to that position in 2001 by Samuel Gonzales, her supervisor. Gonzales held the position of Manager Post Office Operations, EAS 23, Tour 2, at the Topeka, Kansas, Main Office. There are several different levels of Postmaster positions within the USPS. Classification is determined by the size of the area covered and the volume of mail handled at each location. Each level or EAS rating number that is assigned to a Postmaster position reflects the difficulty f that particular position. Individual Postmaster positions that are, assigned the same EAS number are considered lateral positions because the duties, responsibilities, benefits, and level of pay are substantially similar. Thus, an EAS-13 Postmaster position in one office would be quite similar to an EAS-13 Postmaster position in another office. On or about June 2, 2004, the USPS issued a Vacancy Announcement for another Postmaster EAS level 13 position in Odell, Nebraska (the "Odell Position"). Eight candidates applied for the Odell Position, including plaintiff. Since both the Waterville and Odell Positions were level 13 positions, the duties, responsibilities, benefits, and level of pay offered in the two positions were substantially similar. Plaintiff concedes that she was not applying for a higher position. A review committee recommended four out of the eight applicants for an interview. All four candidates, including plaintiff, were female. Meanwhile, on June 3, 2004, plaintiff interviewed with Gonzales for the position of Postmaster at the Baileyville office, which is a level 11 office. Although the Baileyville position was at a lower level, plaintiff told Gonzales that she was applying because it was a shorter commute and, because of her health problems, would reduce the stress of driving to work. Plaintiff informed Gonzales at that time that she was also applying for the Odell Position, as the deadline to apply would close before she knew if she got the job at Baileyville. Plaintiff did not get the Baileyville position. *1143 In July 2004, Gonzales called plaintiff about a letter that had been returned. Gonzales told plaintiff that they had discussed this before and he had told her not to send any mail back. Plaintiff disputed that she had sent any mail back, then called the customer to investigate the Matter. Plaintiff then called Gonzales to report that the reason the letter had been returned was because the forwarding order had expired. Gonzales became upset with plaintiff and told her that people in Waterville perceived her as "a mean and awful person, and that the only way she could change that perception was to kill them with kindness." Plaintiff responded that she would do that. James Nelson, Manager Post Office Operations for the 683-684 zip code area, was based in Lincoln, Nebraska, and was assigned to conduct the interviews and to act as the selecting officer for the Odell Position. As stated in the Vacancy Announcement, a job requirement for the Odell Position is to maintain good "customer and community relations." As Postmaster, the applicant was expected to be able to establish and maintain effective work relationships with clients and customers. In addition to the foregoing requirements, Nelson based his selection decision on merit, including which applicant had the best knowledge, skills, and abilities. He also based his decision on his knowledge of the applicant's work performance. If he was selecting for a position in a work area outside his own and was unfamiliar with an applicant, he would call that applicant's supervisor for input. In the course of evaluating the applicants for the Odell Position, Nelson called Gonzales and asked for his recommendation about plaintiff. Gonzales responded that he could not give plaintiff a positive recommendation. He told Nelson that plaintiff had problems dealing with customers in the past and he could not recommend her for the Odell Position until she successfully handled the problems in her own office. During the interview process, Nelson noted that applicant Alice, Phillips provided a better analysis of questions related to finance and customer relations than the other applicants. Phillips also had better human relation and analytical skills. Plaintiff did not answer the finance and customer relations questions or analyze the financial reports as well as Phillips. And, she did not receive a favorable recommendation from Gonzales in the area of customer service. Nelson ultimately selected Phillips for the Odell Position. Nelson testified that plaintiffs gender was not a factor in his decision to select Phillips, a female, over plaintiff, who is also female. Nelson stated that his receipt of a negative recommendation from Gonzales regarding plaintiffs communication with customers was a factor, but not the only factor, in her nonselection. In the past, Nelson has decided against both male and female applicants, at least in part, based upon the recommendation from their supervisors. After plaintiffs nonselection for the Odell Position she continued to hold a level 13 Postmaster position at Waterville, Kansas, and received the same pay and benefits. She continued to perform the same duties, and held the same responsibilities that she had before applying for the Odell Position. On September 17, 2004, Nelson told plaintiff that she did not get the Odell job because. Gonzales said she had "issues" in Waterville. On September 20, 2004, plaintiff asked Gonzales why she did not get the Baileyville position. Gonzales told plaintiff that she sounded upset and plaintiff responded that she wanted to talk about the job in Baileyville before she talked about why she was upset. Gonzales told her she *1144 was being disrespectful, and that she did not get the job in Baileyville because she was not as energetic as the person he chose, that he chose the person who answered his questions the best, and that he did not feel like he could give plaintiff the job when she was already having problems with addressing in Waterville. Plaintiff then confronted Gonzales about his negative recommendation, asking why he had "blackballed" her. Gonzales confirmed that he told Nelson that plaintiff had issues in Waterville and that he could not recommend her for the Odell Position. He explained to plaintiff that he gave a negative recommendation because he had received previous complaints from customers indicating that plaintiff was "brash." Plaintiff argued with Gonzales and disputed the specifics he relayed about issues with customers and other Postmasters. When plaintiff asked Gonzales about the calls and letters from people who said she was doing a good job, he told her he had never received any. Gonzales told plaintiff that if he received one more call from a customer in Waterville, he was going to bring a disciplinary action against her. Gonzales testified that he did not make the comments to Nelson or plaintiff due to plaintiffs gender. Gonzales never subjected plaintiff to discipline during her tenure at the Waterville office. Plaintiff admits that as Postmaster of the Waterville, Kansas Post Office, she had confrontations with customers prior to her interview for the Odell Position. Plaintiff admits that she was short, or "brash" with other another Postmaster regarding endorsements, and that she apologized to other Postmasters for being brash. Plaintiff also admits that she apologized to Gonzales for being brash to customers, by an email sent to him on or about September 24, 2004. Plaintiff admits that she does not know of any applicants for the Odell Position to whom Gonzales gave a good recommendation and that Gonzales never disciplined her for the way she treated customers. Plaintiffs employment file indicates that for at least the last seven years, plaintiff has not been subjected to any disciplinary actions. On or about November 22, 2004, plaintiff filed an Equal Employment Opportunity ("EEO") Complaint alleging that she received a negative employment reference from Gonzales, due to her gender, when she applied for the Odell Position. This is the only EEO Complaint filed by plaintiff. In support, plaintiff attached an affidavit setting forth her version of the events leading up to the filing of her charge. Plaintiff attaches the same affidavit, as well as a subsequent EEO investigative affidavit, as exhibits in support of her response to defendant's motion for summary judgment. As part of processing plaintiffs EEO Complaint, an EEO investigator sent an "Acceptance of Complaint" to plaintiff on or about January 18, 2005. The "Acceptance of Complaint" indicated that the scope of investigation would include the following issue: "On September 20, 2004, you became aware that you did not get a good recommendation from your Manager when you applied for the Odell, NE Postmaster position, resulting in your non-selection for the position." It also indicated that, the basis of discrimination was "Sex (Female)." The Acceptance of Complaint also indicated "that if plaintiff disagreed with the defined issue, she must provide sufficient reasons to substantiate her objections, in writing, within: seven (7) calendar days of receipt of the letter. Plaintiff did not respond to the Acceptance of Complaint regarding the scope of the issue and investigations because "the information was complete and did not warrant a response per the instructions." *1145 After an investigative report was issued, the USPS moved for Decision Without a Hearing. On or about March 7, 2006, the EEOC issued its Decision in plaintiffs case. The decision framed the issue presented as "Whether Complainant was discriminated against on the basis of sex (female) when on September 20, 2004, she became aware that she did not get a good recommendation from her manager when she applied for the Odell, NE, Postmaster position, resulting in her non-selection for the position." The EEOC ruled that plaintiff had failed to make a prima facie case of discrimination and that the USPS had articulated a legitimate nondiscriminatory reason for its decision. The EEOC specifically found that plaintiff had admitted the accuracy of the USPS's stated reason. On or about June 4, 2005, plaintiff applied for another level 13 position to become Postmaster at Diller, Nebraska. After plaintiff notified Gonzales that she had applied for the Diller position, Gonzales provided Kerry Kowalski, the selecting officer, with a favorable recommendation regarding plaintiff. Gonzales sent an email to Kowalski that stated: Kerry: Brenda has shared that she would like to move closer to home because of her illness. When Jim Nelson was the MPOO, he called and asked for a recommendation. In all honesty, I couldn't give her a good recommendation because of concerns in her office. (She was trying to implement correct addressing with customers and was moving too quick for the community). Since that time she has made an effort and I couldn't stand in her way to move on. I have not had any issues in her office in over a year and would give her a favorable recommendation. Plaintiff was selected to fill the Diller Position, and on or about July 23, 2005, she assumed Postmaster duties at that location, where she continues to be employed to date. III. Discussion A. Exhaustion Defendant asserts that the Court lacks jurisdiction over several of plaintiffs claims because she has not exhausted administrative remedies.[15] Specifically, defendant contends that in her Complaint, plaintiff adds allegations of retaliation to the previously asserted gender discrimination claim and asserts claims concerning (1) disciplinary actions; (2) disparate treatment; (3) lost promotions; and (4) general deterioration of the terms, conditions and privileges of plaintiffs employment.[16] Defendant urges the Court to dismiss all but the disparate treatment claim relating to plaintiffs nonselection for the Odell Position, as she failed to exhaust the other claims in her EEO Complaint. In the Tenth Circuit, exhaustion of administrative remedies is a jurisdictional prerequisite to suit.[17] The first step to exhaustion is the filing of a charge of discrimination with the EEOC.[18] The second step is to determine the scope of the allegations raised in the EEOC charge because "[a] plaintiffs claim in federal *1146 court is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC."[19] Charges filed with the EEOC are liberally construed to determine whether administrative remedies have been exhausted as to a particular claim.[20] The Tenth Circuit recently emphasized, however, that our inquiry is limited to the scope of the administrative investigation that can reasonably be expected to follow from the discriminatory acts alleged in the administrative charge. In other words, the charge must contain facts concerning the discriminatory and retaliatory actions underlying each claim; this follows from the rule that "each discrete incident" of alleged discrimination or retaliation "constitutes its own `unlawful employment practice' for which administrative remedies must be exhausted."[21] Although plaintiffs Complaint appears to have adopted the broad description of facts included in her EEO Complaint, the Pretrial Order lists two specific and discrete theories of recovery: (1) defendant took adverse job actions against plaintiff in violation of Title VII by discriminating against her based on her gender; and (2) defendant retaliated against plaintiff for filing charges of sex discrimination against defendant through the EEO.[22] Plaintiff frames the elements of her disparate treatment claim as whether she was denied the appointment to the Odell Position based on her status as a female.[23] The pretrial order is the controlling document for trial.[24] Although the Tenth Circuit has recognized that a pretrial order "should be liberally construed to cover any of the legal or factual theories that might be embraced by its language," it has also found, upon a "careful reading of [that] court's cases reviewing trial courts' construction of pretrial orders," that "a district court may more strictly construe a pretrial order when that order has been refined over time, properly drawn, and drafted with substantial specificity."[25] Claims not included in the pretrial order are waived.[26] While plaintiffs factual assertions about "de facto" disciplinary actions, lost promotions and general deterioration of the terms, conditions and privileges of her employment are intertwined with her specific claim that she suffered an adverse employment action by not being selected for the Odell Position, they are not presented as discrete incidents of discrimination brought as independent claims against defendant. The Pretrial Order states one disparate treatment claim relating to the Odell Position. It does not set forth a claim regarding the denial of the appointment to the Baileyville position, for an adverse employment action in the form of disciplinary action, or for hostile work environment. Thus, the Court need not decide if plaintiff has exhausted claims that are not before it. Moreover, plaintiff has now withdrawn her claim for retaliation.[27]*1147 Accordingly, defendant's motion to dismiss for failure to exhaust is denied as, Moot. B. Disparate Treatment As set forth in the Pretrial Order, plaintiff alleges that she was not selected for the Odell Position because of the negative recommendation given by her supervisor due to her gender. For purposes of summary judgment, the Court applies the familiar McDonnell Douglas burden-shifting framework.[28] Under this framework, the plaintiff must first establish a prima facie case of prohibited employment action. If the plaintiff does so, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action. If the employer satisfies this burden, summary judgment is warranted unless the employee can show there is, a genuine issue of material fact as to, whether the proffered reasons are pretextual.[29] 1. Prima Facie Case To succeed on a Title VII claim, plaintiff must show that: (1) she belongs to a protected class; (2) she suffered an adverse employment action; and (3) the adverse employment action occurred under circumstances that give rise to an inference of discrimination.[30] Defendant argues that plaintiff fails to satisfy the second and third prongs regarding her claim. The Court discusses each in turn. Adverse Employment Action Defendant argues that plaintiffs claim fails because she has failed to demonstrate that she was subjected to an adverse employment action.[31] The Tenth Circuit recently reaffirmed that an adverse employment action includes "a significant change in employment status, such as hiring; firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits."[32] The Circuit continues to liberally define the term "adverse employment action" and takes a case-by-case *1148 approach.[33] An adverse employment action is not limited to such actions to monetary losses in the form of wages or benefits.[34] Moreover, an adverse employment action may also encompass "those acts that carry a `significant risk of humiliation, damage to reputation, and a concomitant harm to future employment prospects.'"[35] An adverse employment action does not include "`a mere inconvenience or an alteration of job responsibilities.'"[36] "Instead, to constitute an adverse action, the employer's conduct must be `materially adverse' to the employee's status."[37] Plaintiff argues that Gonzales's failure to recommend her for the Odell Position constitutes an adverse employment action. Plaintiff asserts that the transfer from Waterville to the Odell Position would have shortened her commute, saved her transportation expenses and caused less stress.[38] As such, plaintiff contends that she would have benefited from the admittedly lateral move, even though it did not include a direct change in her level or compensation. Plaintiff states that from her point of view as an employee, travel expense and time and stress of travel are considerations to take into account when making decisions regarding an employee's employment status. Defendant argues that plaintiff's position requires this Court to apply a subjective rather than objective standard in its analysis, contrary to the holding in Sanchez v. Denver Public Schools.[39] In Sanchez, the plaintiff was reassigned to a lateral teaching position and later denied a transfer to a lateral position that she viewed as more positive to her personal situation. The Tenth Circuit found neither the reassignment nor the denial of transfer to be an adverse employment action, but instead a mere inconvenience or alteration of job responsibilities.[40] The court noted that "[i]f a transfer is truly lateral and involves no significant changes in an employee's conditions of employment, the fact that the employee views the transfer either positively or negatively does not of itself render the denial or receipt of the transfer adverse employment action."[41] Unlike the plaintiff in Sanchez, plaintiff in this case was not selected for the lateral Odell Position based, at least in part, on a negative recommendation from her supervisor. Here, plaintiff claims that Gonzales's decision not to recommend her for the Odell Position was motivated by gender discrimination. It is this decision that forms the adverse action required.[42]*1149 Because plaintiffs nonselection was based on the negative recommendation given by Gonzales, the Court concludes that she has made a showing, sufficient to withstand summary judgment, that she suffered an adverse employment action when she received the negative recommendation.[43] Inference of Gender Discrimination Plaintiff contends that because she took the initiative to correct a problem about a returned letter, Gonzales felt like she was challenging him. Defendant argues that plaintiff cannot make out the third prong of her prima facie case because she Cannot show that she was treated less favorably than her male counterparts. Contrary to defendant's assertion, the third element of a prima facie case does not require comparison with a person outside the protected class.[44] Instead, the Court finds that the issue of whether plaintiff was treated differently from similarly-situated employees is more appropriately analyzed in the pretext stage of the McDonnell Douglas burden-shifting test.[45] The burden of establishing a case of disparate treatment is not onerous. Thus, for purposes of the instant motion, the Court assumes that plaintiff has satisfied her prima fade case. 2. Legitimate Nondiscriminatory Reason Defendant asserts that Nelson did not select plaintiff for the Odell Position based on merit and that the negative recommendation from Gonzales was only one factor in his decision. Defendant further asserts that Gonzales's decision not to give plaintiff a positive recommendation was based on previous complaints about the manner in which plaintiff treated customers. Defendant has met its burden to articulate facially nondiscriminatory reasons for the adverse employment action. 3. Pretext Under the third step of the McDonnell Douglas framework, the burden shifts back to plaintiff to show that defendant's stated reasons are merely a pretext to hide gender discrimination.[46] Defendant asserts that it is entitled to summary judgment because plaintiff has produced no evidence from which a jury could conclude that the real reason for plaintiffs non-selection for the Odell Position was gender. The relevant issue is not whether the stated reasons for discrimination were wise, fair or correct, but whether defendant honestly believed in those reasons and acted in good faith.[47] In examining the issue, a court must "look to the *1150 facts as they appear to the person making the decision" regarding the adverse action.[48] It is not the court's role to second guess an employer's business judgment.[49] A plaintiff can show pretext by pointing to "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence."[50] While this burden is not onerous . . . it is also not empty or perfunctory.[51] A plaintiff typically makes a showing of pretext in one of three ways: (1) evidence that defendant's stated reason for the adverse employment action was false, i.e. unworthy of belief; (2) evidence that defendant acted contrary to a written company policy prescribing the action to be taken under the circumstances; or (3) evidence that defendant acted contrary to an unwritten policy or contrary to company practice when making the adverse employment decision affecting plaintiff.[52] In addition, in the context of a discrimination case, evidence of pretext may include whether plaintiff was treated differently from similarly-situated employees.[53] Plaintiff asserts that she has shown pretext because Gonzales falsely told Nelson that she had "issues" in Waterville about customer relations. Plaintiff argues that unless defendant can show the "issues" were true statements, then it follows that the reasons for not selecting plaintiff for the Odell Position were pretextual. Gonzales told plaintiff that he gave her a negative recommendation because he had received previous complaints from customers indicating she was "brash." While plaintiff admitted that she did in fact have such confrontations, she adamantly denies that she continued to have "issues" at Waterville at the time Gonzales made his negative recommendation to Nelson. While plaintiff may disagree with Gonzales's statement, the question is not whether the reasons for his negative recommendation to Nelson were correct, but whether he honestly believed in those reasons and acted in good faith.[54] Plaintiff has provided no admissible evidence, other than her subjective beliefs, that proves Gonzales acted otherwise. Plaintiff's affidavit suggests multiple reasons why Gonzales would lie to Nelson, including plaintiffs gender. Absent specific supporting facts for plaintiffs opinion, however, no reasonable jury could conclude that gender was a motivating factor in Gonzales's negative recommendation. Plaintiff cannot overcome a motion for summary judgment by simply stating that Gonzales is a liar without specific facts on which a reasonable jury could draw such a conclusion.[55] Plaintiff also asserts that she has presented evidence that Gonzales had an "established pattern of treating assertive females unfavorably, ultimately resulting in a move of location for him after it was determined that a hostile work environment existed at his former post." As, explained above, Rule 56 requires that plaintiff set forth specific facts showing a genuine issue for trial. Plaintiff cannot satisfy this standard by her conclusory *1151 opinion that Gonzales had a problem with women.[56] Plaintiff has not provided specific facts — such as the total number Of male and female employees at the Waterville or Topeka postoffice where Gonzales was supervisor, the specifics of the "hostile work environment" at his former post and whether Gonzales gave male employees favorable treatment — which are necessary for a jury to draw any inference from Gonzales's treatment of plaintiff.[57] Plaintiffs conclusory opinion of the underlying reason for Gonzales's conduct is unsupported. Finally, the Court notes that plaintiffs claim of pretext is belied by events that occurred after plaintiff applied for the Odell Position. After she was not selected for the Odell Position, plaintiff applied for another position in Diller, Nebraska. Gonzales provided the selecting officer for that position with a favorable recommendation regarding plaintiff, noting the improvement in her performance and in her relations with her customers. Based on this record, no reasonable jury could find that defendant's stated reasons for the negative recommendation for the Odell Position are a pretext for gender discrimination. Accordingly, the Court grants defendant's motion for summary judgment on this claim. IT IS THEREFORE ORDERED BY THE COURT that defendant's motion for summary judgment (Doc. 35) is GRANTED; defendant's motion to dismiss for failure to exhaust is DENIED as moot. IT IS SO ORDERED. NOTES [1] Fed.R.Civ.P. 56(c). [2] Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir.2002). [3] Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998)). [4] Adler, 144 F.3d at 670 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). [5] Spaulding, 279 F.3d at 904 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). [6] Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000) (citing Adler, 144 F.3d at 671). [7] Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Spaulding, 279 F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). [8] Anderson, 477 U.S. at 256, 106 S.Ct. 2505; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir.2001). [9] Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197-98 (10th Cir.2000) (quoting Adler, 144 F.3d at 671). [10] Adams, 233 F.3d at 1246. [11] Fed.R.Civ.P. 56(e). [12] Id.; Argo v. Blue Cross and Blue Shield of Kansas, Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (citation omitted). [13] Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1). [14] Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). [15] Although defendant's previous motion to dismiss was granted to the extent plaintiff's allegations are unrelated to her EEO Complaint and denied to the extent her allegations arise out of her EEO Complaint, the Court was unable to make more specific findings due to plaintiff's omission of any statement of facts in her Complaint (Doc. 19). [16] Complaint, Doc. 1 at 2. [17] Jones v. U.P.S., Inc., 502 F.3d 1176, 1183 (10th Cir.2007) (citing MacKenzie v. City & County of Denver, 414 F.3d 1266, 1274 (10th Cir.2005)). [18] Id. (citing Jones v. Runyon, 91 F.3d 1398, 1399 n. 1 (10th Cir.1996)). [19] Id. (citing MacKenzie, 414 F.3d at 1274). [20] Id. [21] Id. (quoting Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir.2003)) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)). [22] Pretrial Order, Doc. 34 at 6-7. [23] Id. at 7. [24] Fed.R.Civ.P. 16(a); Expertise Inc. v. Aetna Fin. Co., 810 F.2d 968, 973 (10th Cir.1987). [25] Koch v. Koch Indus., 203 F.3d 1202, 1220-21 (10th Cir.2000) (internal citation omitted). [26] Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir.2002). [27] Plaintiff's Response, Doc. 39 at 16. [28] See Etsitty v. Utah Transit Auth., 502 F.34 1215, 1220 (10th Cir.2007) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). [29] Id. (citations and quotations omitted). [30] Hysten v. Burlington N. & Santa Fe Ry., 296 F.3d 1177, 1181 (10th Cir.2002). Defendant argues that plaintiff must prove under the third prong that she was treated differently from similarly-situated male employees to satisfy her prima facie case, citing Trujillo v. Univ. of Colo., Health Sciences Ctr., 157 F.3d 1211, 1215 (10th Cir.1998). Ordinarily, the third part of the prima facie test will be satisfied by proof that the employer treated similarly situated employees more favorably. Hysten, 296 F.3d at 1181. The Tenth Circuit stressed in that case, however, that "courts must be sensitive to the myriad of ways such an inference can be created," and that while evidence of more favorable treatment of similarly situated employees can give rise to an inference of gender discrimination to satisfy the third part of the prima facie burden, it is not, in fact an element of a prima facie case. Id. at 1182; see also Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1229 (10th Cir.2000). [31] The Supreme Court most recently addressed the contours of adverse employment actions in Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). In that case, the Court applied a more lenient standard in analyzing the anti-retaliation provisions of Title VII. Piercy v. Maketa, 480 F.3d 1192, 1203 n. 12 (10th Cir.2007). The Supreme Court, however, made clear that the substantive discrimination provisions of Title VII are limited "to [adverse] actions that affect employment or alter the conditions of the workplace." Id. at 1203. Thus, while Burlington Northern modified the retaliation standards for adverse actions, it had no similar effect on the Tenth Circuit's discrimination jurisprudence. Id. [32] Piercy v. Maketa, 480 F.3d 1192, 1203 (10th Cir.2007) (citing Hillig v. Rumsfeld, 381 F.3d 1028, 1032-33 (10th Cir.2004)), (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). [33] Id. at 1203 (citing Sanchez v. Denver Pub. Schs., 164 F.3d 527, 533 (10th Cir.1998)). [34] Annett v. Univ. of Kan., 371 F.3d 1233, 1239 (10th Cir.2004) (citing Sanchez, 164 F.3d at 532). [35] Hillig, 381 F.3d at 1032 (quoting Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir.I996)). [36] Medina v. Income Support Div., N.M., 413 F.3d 1131, 1136 (10th Cir.2005) (quoting Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 857 (10th Cir.2000)). [37] Id. (quoting Sanchez, 164 F.3d at 533). [38] Although plaintiff has asserted that she suffers from multiple sclerosis, she does not base her claim of discrimination on any alleged disability. [39] 164 F.3d 527, 532-33 (10th Cir.1998). [40] Id. at 532. [41] Id. at 532 n. 5 (citing Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1449-50 (11th Cir. 1998) (collecting cases)). [42] See Hillig v. Rumsfeld, 381 F.3d 1028, 1034 (10th Cir.2004) (holding that an employee did not need to prove that she would have received prospective job but for employer's negative references in order to establish an adverse employment action); Dirusso v. Aspen School Dist. No. 1, 123 Fed.Appx. 826, 832 (10th Cir.2004). [43] In her response, plaintiff also claims that her confrontation with Gonzales on September 20, 2004, amounted to "de facto" disciplinary actions that adversely impacted her ability to obtain other Postmaster positions with defendant. Plaintiff asserts that since Gonzales "lied about her" to Nelson she has been adversely affected in her attempts to gain other Postmaster positions. While the truth of Gonzales's reasons stated in his negative recommendation to Nelson may certainly be relevant to the issue of pretext, there is no evidence that plaintiff sought or was unable to gain other positions with the USPS. In fact, as discussed infra, Part III. B.3, Gonzales gave plaintiff a positive recommendation for the Diller Postmaster position that she presently holds. [44] See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1229 (10th Cir.2000). [45] Id. at 1229 n. 8 (explaining that such evidence can be used as part of a prima facie case, but is not required, and is also appropriately used in assessing whether a plaintiff has shown that the defendant's justification for the discharge was pretextual). [46] Id. at 1230. [47] Stover v. Martinez, 382 F.3d 1064, 1076 (10th Cir.2004). [48] Kendrick, 220 F.3d at 1231. [49] Stover, 382 F.3d at 1076. [50] Morgan v. Han, Inc., 108 F.3d 1319, 1323 (10th Cir.1997) (quotations omitted). [51] Id. at 1323-24. [52] Kendrick, 220 F.3d at 1230. [53] See Watts v. City of Norman, 270 F.3d 1288, 1293 (10th Cir.2001); EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1194 n. 6 (10th Cir.2000). [54] Stover, 382 F.3d at 1076. [55] See Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1143 (10th Cir.2005). [56] Id. [57] Id. Defendant also points out that plaintiff cannot explain how Nelson could have been motivated by discriminatory animus by not selecting plaintiff, when he chose Phillips, who is also female.

257 Pa. Superior Ct. 110 (1978) 390 A.2d 271 Robert T. ARNOLD and Barbara A. Arnold, his wife, v. William J. BORBONUS, Catherine C. Borbonus, Texas Eastern Transmission Corporation, a Delaware Corporation, v. William RAMALEY, trading and doing business as Ramaley Brothers, and Michael Bove, t/d/b/a Bove Engineering Company. Appeal of TEXAS EASTERN TRANSMISSION CORPORATION. Superior Court of Pennsylvania. Argued April 12, 1978. Decided July 12, 1978. *111 John David Rhodes, Pittsburgh, with him Thomson, Rhodes & Grigsby, Pittsburgh, for appellant, Texas Eastern Transmission Corp. Rabe F. Marsh, III, Greensburg, with him B. Patrick Costello, Greensburg, for appellee, William Ramaley, t/d/b/a Ramaley Brothers. Before JACOBS, President Judge, and HOFFMAN, CERCONE, PRICE, VAN der VOORT, SPAETH and HESTER, JJ. HOFFMAN, Judge: Appellant contends that the lower court erred in sustaining appellee's preliminary objections in the nature of a demurrer to its third party complaint. We affirm. On October 29, 1976, plaintiffs filed a complaint in trespass in the Westmoreland County Court of Common Pleas to recover for injuries suffered and damages incurred in an employment related accident. In the complaint, plaintiff, Robert Arnold, averred that on February 16, 1976, as an employee of appellee, Ramaley Brothers, he was performing excavation work on land owned and developed by defendants, Catherine and William Borbonus. While excavating a *112 foundation for a house, plaintiff's heavy equipment struck and punctured a subterranean pipeline containing liquid propane under high pressure and low temperature. The pipeline was owned by defendant-appellant, Texas Eastern Transmission Corporation. The puncture caused an explosion the force of which threw plaintiff from his machine and caused severe injuries.[1] Appellant joined appellee as an additional defendant.[2] According to the third party complaint, appellee, plaintiff's employer, was negligent in failing to ascertain the exact location of the pipeline before the commencement of the excavation work. Consequently, appellant asserted that if and to the extent that it may be adjudged liable to plaintiffs, the court should give appellant credit in an amount equal to the total of workmen's compensation benefits paid by appellee pursuant to the Pennsylvania Workmen's Compensation Act.[3] Appellee filed preliminary objections in the nature of a demurrer in which it stated that § 303(b) of the Workmen's Compensation Act[4] barred appellant's third party complaint. On October 4, 1977, the lower court sustained appellee's *113 preliminary objections and dismissed appellee from the action. The court predicated its order on the 1974 amendments to § 303(b) of the Workmen's Compensation Act which, according to the court, granted the "employer immunity from suit and bar[red] its joinder as an Additional Defendant in this action." This appeal followed. Appellant contends that § 303(b) of the Workmen's Compensation Act does not bar the joinder of the plaintiff's employer as an additional defendant. Specifically, appellant contends that joinder of the employer is not barred to determine the employer's entitlement to subrogation to the rights of the employee against a third party.[5] Section 303(b), as amended in 1974, provides: "In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action." In Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977), our Court considered and rejected the identical contention. After reviewing the legislative history of the 1974 amendment to § 303(b), we concluded that "the intention of the [1974] amendments to Section 303 was to grant the employer total immunity from third-party action. . . . By this amendment the Legislature made the Pennsylvania Workmen's Compensation Act a complete substitute for, not *114 a supplement to, common law tort actions." supra, 247 Pa.Super. at 368, 372 A.2d at 871.[6] In his Concurring Opinion in Hefferin, Judge VAN der VOORT addressed appellant's specific contention that joinder of the employer is not barred by § 303(b) if the joinder is intended to adjudicate the employer's subrogation rights: "The amending Act creates many questions which it ignores, the most obvious of which questions are as follows: "In the event judgment goes against the third party defendant, does he have a right of set-off or recoupment for the amount of compensation paid or to be paid to the injured plaintiff? . . . "Does the employer have a right of subrogation against the third party, and if so, how is this to be determined? Since the employer can no longer be joined under the provisions of the Act, not only questions of procedure will arise, but also questions of collateral estoppel. Despite the shortcomings, I believe it is the intention of the Legislature to preclude the joining of the employer by an alleged third party tortfeasor." supra at 370, 372 A.2d at 872. We agree that the 1974 amendment to § 303(b) manifests a broad legislative intent to bar the joinder of an employer as an additional defendant.[7] Therefore, we conclude that the lower court properly sustained appellee's preliminary objections. Order affirmed. SPAETH, J., files a concurring and dissenting opinion. PRICE, Judge, dissenting: See his Dissenting Opinion in Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977). He also wishes to *115 note that in many respects he concurs in the comments made by Judge SPAETH in his Concurring and Dissenting Opinion. He certainly agrees that reargument would be a highly desirable result so that the court may weigh, based on new briefs, the problems posed by Judge SPAETH. SPAETH, Judge, concurring and dissenting: In Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977), allocatur refused, this court held that a recent amendment to the Workmen's Compensation Act, Act of Dec. 5, 1974, P.L. 782, No. 263, § 6, 77 P.S. § 481(b), prevented an employer from being joined as additional defendant in a suit by its employee against a third party. In his concurring opinion Judge VAN der VOORT noted that this decision left a number of questions unanswered, among them: In the event judgment goes against the third party defendant, does he have a right of set-off or recoupment for the amount of compensation paid or to be paid to the injured plaintiff? 247 Pa.Super. at 370, 372 A.2d at 872. The present case raises exactly this question. It is not strictly accurate to say, as the majority opinion does, that in Hefferin "our Court considered and rejected the identical contention," Majority Opinion at 272, for in Hefferin the question was simply whether the employer could be joined as an additional defendant for whatever purpose. (It is true that the result sought by the appellants in both cases — a judgment reduced by the amount of workmen's compensation — might be the same.) Whether or not the cases are identical, however, the result in Hefferin was simply announced, not explained.[1] As I have thought more about Judge VAN der VOORT's question, I have concluded that we should try to explain our result in Hefferin, that is, say why it is a sensible result, and one that the Legislature evidently intended. At the moment *116 I am unable to offer such an explanation. I shall try to explain this inability by asking the reader to consider three hypothetical cases. Case No. 1: An employee is injured at the worksite. The employer is not at fault; the fault is totally that of a third party tortfeasor. In this case, Hefferin works no injustice. The employee may sue the third party and get a full recovery. In the meantime he may have received workmen's compensation payments from the employer, but the employer will be subrogated to the employee's rights up to the amount of the compensation payments, and therefore will be able to recoup the payments out of the judgment against the third party tortfeasor. Stark v. Posh Construction Co., 192 Pa.Super. 409, 416, 162 A.2d 9, 12 (1960); Workmen's Compensation Act, supra, 77 P.S. § 671. (Hefferin specifically holds that § 481(b) did not change the employer's right of subrogation.) This result is just, because the party who caused the injury bears the full burden; the employee is "made whole," but does not recover more than what he requires to be made whole; and the employer, innocent of negligence, in the end pays nothing. Case No. 2: The same worksite injury, but this time the employer is totally at fault. Again, Hefferin works no injustice. The employee receives workmen's compensation payments from the employer. If the employee sues the third party, the third party will be found not liable. (This is the ideal outcome; I shall discuss the less ideal outcome in footnote 3, infra.) Thus, the third party, innocent of negligence, pays nothing; the employee is made whole to the extent that the Workmen's Compensation Act allows; and to the same extent the party who caused the injury, the employer, will pay. (The amount the employer pays may not be enough to make the employee whole, but the "bargain" of the Workmen's Compensation Act is that the employee, in return for getting an assured recovery of some sort, regardless of fault, is limited to a maximum recovery, while the employer, in return for being assured of only having to pay a certain limited amount, must pay that *117 amount regardless of fault. See Socha v. Metz, 385 Pa. 632, 637, 123 A.2d 837, 839 (1956).) Case No. 3: The same worksite injury, but the employer and third party are equally negligent.[2] Here, it seems to me, Hefferin does work injustice. Under prior practice, if the employee received workmen's compensation payments and then sued the third party in negligence, the third party could join the employer as an additional defendant to protect his right of contribution. By shifting some of the burden to the employer, the third party reduced his own judgment accordingly. If found liable, however, the employer would be liable only to the amount of workmen's compensation, and if the compensation were already paid, the judgment would as to the employer be considered satisfied. Elston v. Industrial Lift Truck Co., 420 Pa. 97, 216 A.2d 318 (1966); Brown Equipment Rental Corp. v. Dickey, 397 Pa. 454, 155 A.2d 836 (1959); Maio v. Fahs, 339 Pa. 180, 14 A.2d 105 (1940). Since the employer had been found liable, he could not recover his workmen's compensation payments out of the judgment against the third party tortfeasor. See Stark v. Posh Construction Co., supra. Since Hefferin, however, the employer may not be joined as an additional defendant. The result is that one of two equally negligent tortfeasors — the third party — bears the entire burden of the judgment. Since the employer is not — cannot be — a party to the suit, the third party cannot get contribution from the employer commensurate with the employer's fault. The employee, on the other hand, may have the opportunity to recover twice: once by the full judgment against the third party, and once through workmen's compensation; for if the employer comes against the employee for subrogation, the employee may defend on the ground that the employer was at fault and is thus disabled from getting reimbursed through subrogation. If the employee fails, or is not permitted to prove the employer's *118 fault, the employer will recoup the workmen's compensation payments and thus in the end pay nothing — despite having been at fault. Either outcome — a double recovery for the employee, or a negligent employer who pays nothing — represents an injustice; additionally, the third party is forced to bear the full burden of the judgment when he was only partially at fault.[3] As one commentator, Donald J. Farage, Esquire, has remarked: Surely, this must be the only area of the law wherein a culpable defendant not only is immune from suit [as in the sovereign immunity situation] but also has the affirmative right via the vehicle of subrogation to be made whole for loss suffered as a result of his own fault. Pennsylvania Bar Institute, 1978 Semi-annual Survey of Significant Developments in the Law 702 (Spring, 1978). I find it almost impossible to believe that the Legislature could have intended such a result.[4] Yet the language of *119 § 481(b) is difficult to interpret otherwise, as Judge VAN der VOORT observed in his concurring opinion in Hefferin. Judge PRICE's dissents in Hefferin and in the present case offer an appealing alternative, but one that cannot be reached except in the teeth of § 481(b) — or so at least it seems to me. In these circumstances I believe that the very least we should do is to urge the Legislature to reconsider § 481(b). I also believe, however, that we should do more than that, which is why I have entitled this opinion a concurring and dissenting opinion. Rather than decide the case now, we should set it down for reargument with instructions to counsel to address the problem of the injustice that § 481(b) works, if Hefferin stands. It may be that an issue of constitutional dimensions is involved, and I should expect counsel to consider that.[5] Two United States District Courts have indeed considered the constitutionality of § 481(b), and have upheld it. In *120 Adamik v. Pullman Standard, 439 F.Supp. 784 (W.D.Pa. 1977), the court upheld § 481(b) against a challenge based on federal equal protection; the court did not specifically decide the constitutionality under art. I, sect. 11, of the Pennsylvania Constitution, noting instead that such a decision was more appropriately left to the appellate courts of this state. However, the court indicated that Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975), under which the no-fault automobile insurance law was held constitutional, supported constitutionality. (Incidentally, the court did not reach an argument, like appellant's, for a credit against the judgment.) In Albrecht v. Pneuco Machinery Co., 448 F.Supp. 851 (E.D.Pa. 1978), the court found that § 481(b) did not violate the fourteenth amendment's equal protection and due process clauses. Whether we should reach the same result is, of course, an open question. In addition, these cases centered mainly on the propriety of the Legislature's desire to protect the employer from liability to third parties, but they did not discuss the propriety of assessing the full cost of this public policy decision against the third party, who is forced to pay for the negligence of another. (It is undisputed that, whatever the procedure, the employer's maximum liability should be the workmen's compensation maximum.) Finally, if reargument is ordered, I should hope that amici curiae would file briefs. NOTES [1] In Count II of the complaint, Barbara Arnold, a co-plaintiff, averred that as the result of the injuries to her husband, she had been "deprived" of [his] support, services, assistance and companionship." [2] Further, defendants, William and Barbara Borbonus, joined Michael Bove, d/b/a Bove Engineering Company, as an additional defendant. According to the third party complaint, William Borbonus engaged Bove to prepare plans and drawings which would indicate the location of the underground pipeline owned by appellant. The Borbonuses also alleged that Bove's negligent misrepresentation of the location of the pipeline was the cause of plaintiff's injuries. Consequently, the Borbonuses averred that Bove was either solely liable to the plaintiffs, liable over to the Borbonuses for all sums recovered from them by the plaintiffs, or jointly liable with the Borbonuses who would be entitled to indemnity and/or contribution in the amount recovered by the plaintiffs. [3] Act of June 2, 1915, P.L. 736, art. 1, § 101 et seq., as amended; 77 P.S. § 101, et seq. [4] The Workmen's Compensation Act, supra; 77 P.S. § 481(b). [5] See The Workmen's Compensation Act, supra; 77 P.S. § 671. Chamberlain v. Carborundum Co., 485 F.2d 31 (3d Cir., 1973); Stark v. Posh Construction Co., 192 Pa.Super. 409, 162 A.2d 9 (1960). [6] The scope of § 303(b) also forecloses appellant's reliance upon Pa.R.C.P. 2252(b) as authorization for the joinder of appellee as an additional defendant. [7] We add, as we did in Hefferin, that the foregoing statutory preclusion does not alter the employer's right to subrogation in an appropriate case and forum. [1] Since we cannot know the Supreme Court's reasons for denying allocatur in Hefferin no significance may be read into its action. [2] I have characterized the negligence as "equal" for the sake of simplicity. Obviously, the fault might be more that of one or the other party, in any proportion. [3] In Case No. 2, where the third party is innocent of negligence but is sued nonetheless, it is possible that the third party will refute the allegation of negligence without having the employer, the real tortfeasor, in court as an additional defendant. However, in this case Hefferin still prevents the third party from offering the jury the real negligent party in person, thereby creating the risk that the jury will find against the third party more as a matter of sympathy for the employee than as a matter of evidence. [4] As an alternative, appellant here asks that he be allowed to join the employer only for the purpose of establishing that the employer was at fault and therefore has no right of subrogation; this established, appellant would then argue that he should get a credit against his judgment for the amount that the employee got from workmen's compensation, which the employer cannot now recover from the employee. Another (more sensible?) result, which would both comport with the purposes of the Workmen's Compensation Act and allocate the liability fairly, would be this: where the employer and a third party are equally negligent, the third party pays only his half of the judgment and the employer pays up to the compensation maximum in fulfillment of his half of the judgment. Thus, no one bears more than his fair share of the liability judgment; to the extent that the employer bears less than his share, and the employee thereby gets less than his due, this is what the Act contemplated in the "bargain" between the employee and employer, the one getting an assured recovery, the other getting a fixed limit on liability. It is unjust to make the third party fill the gap between what the employee gets and what he needs to be made whole, for the third party was not part of the bargain; he gained nothing from it. [5] In referring to the possible existence of an issue of constitutional dimensions, I am aware of the Supreme Court's admonition in Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975), that we are not to consider constitutional issues sua sponte. The danger of such consideration, however, is that a decision will be made without the benefit of arguments for and against constitutionality having been submitted by the parties, who are the one most concerned with the outcome. This danger would be avoided by the procedure I propose. I submit that it is demeaning to a court to decide a case of great public importance, like this one, in which the court believes a constitutional issue may be involved, as though no constitutional issue were involved, simply because at the first argument the constitutional issue was not raised. Indeed, in Adamik v. Pullman Standard, 439 F.Supp. 784 (W.D.Pa. 1977), the appellant argued that because the constitutionality of § 481(b) under the Pennsylvania constitution was not discussed in Hefferin, it was still an open question. It was in a tone of incredulity that the District Court said: What [appellant] is asking us to say in this case is that notwithstanding the clear language of Hefferin v. Stempkowski, supra, by the Superior Court whose decision was left untouched by the Pennsylvania Supreme Court, nevertheless these courts overlooked the unconstitutionality of this legislation. 439 F.Supp. at 786.

                                                             11th Court of Appeals                                                                   Eastland, Texas                                                              Memorandum Opinion   Willie Berry, Jr. Appellant Vs.                   No. 11-02-00357-CV B Appeal Janie Cockrell Appellee   Appellant has filed in this court a motion to voluntarily dismiss his appeal.  The motion is granted, and the appeal is dismissed.  TEX.R.APP.P. 42.1.   PER CURIAM   January 16, 2003 Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.

498 F.Supp.2d 614 (2007) Dennis URLAUB, Susan McKeon Steinmann, and Paul Ames individually and as Officers of the South Country Peace Group, Charlotte Koons, and Michelle Santantonio, individually and as members of the South Country Peace Group, and the South Country Peace Group, Plaintiff(s), v. The INCORPORATED VILLAGE OF BELLPORT, and Frank C. Trotta, Phil Gallo, Robert H. Lyons, III, John N. Orlando and Sherry Binnington (being the Mayor and the Trustees of the Incorporated Village of Bellport), Roger Terrel (the Bellport Village Clerk), and Marilyn Reich (a Clerk in Bellport's Offices), Defendant(s). No. 06CV5227 (SJF)(WDW). United States District Court, E.D. New York. July 27, 2007. *615 Alan Polsky, Bohemia, NY, Stanley Martin Gewanter, Melville, NY, for Plaintiff(s). Michael Anthony Miranda, Steven C. Stern, Miranda Sokoloff Sambursky Slone Verveniotis LLP, Mineola, NY, for Defendant(s). OPINION & ORDER FEUERSTEIN, District Judge. I. Introduction Plaintiffs seek a preliminary injunction ordering defendant The Incorporated Village of Bellport (the Village) to issue a parade permit for August 6, 2007, without requiring an insurance bond or the promise to indemnify the Village for any damages or injury that may result from the parade. II. Plaintiffs' Motion A. Background 1. Factual Background For approximately twenty (20) years members of plaintiff South Country Peace *616 Group ("SCPG") and others have held a candlelight "World Peace Vigil" parade on or about each August 6th. Approximately twenty-five (25) participants proceeded south on the public vehicular roadways of Bellport, beginning at a cemetery in the northerly portion of Bellport and ending some nine tenths (9/10th) of a mile later at the Village's Marina, located at the southernmost part of the Village. The purpose of the parade is to protest war and the use of weapons of mass destruction. Until 2006, permits and/or licenses to march were obtained from the Village. On or about July 21, 2006, plaintiff Dennis Urlaub obtained a parade permit application from defendant Marilyn Reich, a Village employee, which, unlike previous applications, indicated that applicants were to provide the Village with proof of insurance and execute an agreement indemnifying the Village for ". . . any and all claims for damages or injury to persons or property that may be occasioned by, or arise from, the use of such facilities." Plaintiffs claim in their complaint that they attempted to obtain liability insurance coverage but were unable to do so, and "even were it to be available the premium for its issuance would be so high that they would be unable to afford to pay it." (Compl. ¶ 22). In early August 2006 plaintiffs advised the Village Board of Trustees (the Board) that they were unable to obtain such coverage and asked for a waiver of the insurance requirement. They did, however, execute the indemnification agreement. The Board declined to waive the insurance requirement, but suggested that plaintiffs march on the sidewalks adjacent to their originally proposed route, for which a permit would not be required. Alternatively, the Village suggested that plaintiffs secure a sponsor willing to undertake the insurance obligations. On August 6, 2006, having failed to provide the required insurance or secure a sponsor, plaintiffs proceeded to march on the sidewalks along their originally planned route. This action was commenced in September 2006 challenging the insurance and indemnification requirements on the Village's parade permit application. On May 16, 2007, plaintiffs filed an application for a permit to march on August 6, 2007. On July 16, 2007, the Board denied the application unless plaintiffs obtained a liability insurance policy and executed the indemnification clause as limited to the amount of liability insurance or secured a sponsor. Alternatively, the Board suggested that the parade proceed along the sidewalks as in 2006. In either event, the Board waived the "resident only" restriction at the Village Marina to accommodate plaintiffs. (See, Minutes of July 16, 2007 Special Village Board Meeting, Defendants' Exhibit F). 2. Procedural Background The complaint alleges four (4) causes of action. The first cause of action challenges the insurance requirement as an unconstitutional prior restraint on free speech which "gives the Village clerk unbridled and unrestricted powers," (Compl. ¶ 31); the second cause of action challenges the denial of the 2006 application as a denial of plaintiffs' First Amendment right of free speech; and the third cause of action challenges the Village's "acts, policies and procedures" as violative of Section 8 of the New York State Constitution, (Compl. ¶ 35). The fourth cause of action, alleging a violation of the New York States Public Officers' Law, was withdrawn by plaintiffs who concede that the insurance requirement was neither an amendment to the Village Code nor promulgated in violation of the New York State Public Officers' Law. *617 The parties met with the Court on several occasions over the ensuing year in an effort to resolve the issues raised by the complaint. On each occasion defendants' counsel detailed the efforts expended by the Village to accommodate plaintiffs: alternate routes for the 2007 parade which would not require a permit; alternative sources for the insurance security; and establishing that a five hundred dollar ($500.00) premium would secure the insurance. Plaintiffs' counsel, on the other hand, made no constructive efforts to secure alternative means by which plaintiffs could achieve their stated goal; stymied all efforts by the Village to settle this matter by refusing to consider alternatives to the route; and insisted on additional concessions from the Village each time a preliminary agreement was reached. For example, plaintiffs' counsel (1) insisted, without substantiation, that his clients were unable to pay any fees and that they were entitled to "nominal" unspecified "compensatory" damages because they had been required to walk on the Village sidewalks instead of in the roadway in 2006; (2) demanded unspecified legal fees which he declined to limit or substantiate in any way despite the early stage of the litigation; (3) refused to permit his clients to sign the very same indemnification clause which they had executed in 2006; and (4) demanded that the Village enter into a consent order changing its permit procedures in accord with a stipulation that had been reached by his co-counsel Alan Polsky in an unrelated and dissimilar case with a large town on Long Island's east end. On May 29, 2007, the Village advised the Court and plaintiffs that the Village had contacted the local Methodist church which was willing to sponsor plaintiffs' parade, provide the necessary insurance and execute the indemnification clause of the application. The Court suggested that the parties meet with Reverend Rasmussen, the pastor of the church, to ascertain whether the church would consider future sponsorship as well. Plaintiffs' counsel sent an e-mail to defendants' counsel stating that he would meet with the Reverend and the Village counsel, but adding that additional concessions from the Village would be necessary to settle the matter. (Defendant's Ex. G). On June 29, 2007, plaintiffs' counsel advised the Court that he had taken it upon himself to advise Reverend Rasmussen "of the dire consequences that could befall his Church," including "loss of all its land and the Church built thereupon," (Reply Affirmation of Stanley M. Gewanter [Gewanter Aff.], p. 6), if the church were found responsible to indemnify the Village for damages in excess of the liability policy which the church had agreed to provide[1]. As a result of this conversation, the church withdrew its offer to sponsor the parade. (Rasmussen Letter of June 29, 2007). Although the Village subsequently agreed to limit the indemnification agreement to the extent of the insurance coverage which the church had agreed to provide, the church board declined to reconsider the withdrawal of its sponsorship. Plaintiffs' application for pendente lite relief followed. Defendant has cross-moved for sanctions pursuant to 28 U.S.C. § 1927. B. THE LAW "The principles of First Amendment are not to be treated as a promise that everyone with opinions or beliefs to express may gather around him at any public place and at any time a group for discussion or instruction. It is a nonsequitur *618 to say that First Amendment rights may not be regulated because they hold a preferred position in the hierarchy of the constitutional guarantees of the incidents of freedom. This Court has never so held and indeed has definitely indicated the contrary. It has indicated approval of reasonable nondiscriminatory regulation by governmental authority that preserves peace, order and tranquility without deprivation of the First Amendment guarantees of free speech, press and the exercise of religion." Poulos v. State of New Hamshire, 345 U.S. 395, 405, 73 S.Ct. 760, 97 L.Ed. 1105. Plaintiffs contend that the insurance and indemnification requirements of the Village application are prior restraints on their First Amendment rights on their face and as applied to them. "The essence of prior restraints are that they give public officials the power to deny use of a forum in advance of actual expression. * * * A regulation may constitute a prior restraint even if it is not content-based. * * * Further, prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. * * *. The conclusion that a regulation constitutes a prior restraint, however, is not dispositive of its constitutional validity. Although there is a heavy presumption against the validity of a prior restraint, the Court has recognized that government, in order to regulate competing uses of public forums, may impose a permit requirement on those wishing to hold a march, parade, or rally. * * In particular, content-neutral time, place, and manner restrictions are permitted so long as they are narrowly tailored to serve a significant governmental interest, * * * leave open ample alternatives for communication, and do not delegate overly broad licensing discretion to government officials." Beal v. Stern, 184 F.3d 117, 124 (2d Cir. 1999) (internal quotation marks and citations omitted). Plaintiffs seek a preliminary injunction ordering the Village to permit them to march in the Village roadways without proof of insurance coverage or execution of the permit application's indemnification provision. "[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (emphasis in original). "Any party seeking a preliminary injunction `must demonstrate that it will suffer irreparable harm in the absence of the requested relief.' Latino Officers Ass'n v. Safir, 170 F.3d 167, 171 (2d Cir.1999)." "[W]hen, as here, the moving party seeks a preliminary injunction that will affect government action taken in the public interest pursuant to a statutory or regulatory scheme, the injunction should be granted only if the moving party meets the more rigorous likelihood-of-success standard.' Wright v. Giuliani, 230 F.3d 543, 547 (2d Cir.2000) (internal quotation marks omitted): see also Beal v. Stern, 184 F.3d 117, 122-23 (2d Cir.1999). That is, plaintiffs `must establish a clear or substantial likelihood of success on the merits.' Tunick v. Safir, 209 F.3d 67, 70 (2d Cir.2000)." Sussman v. Crawford, 488 F.3d 136, 139-140 (2d Cir.2007). 1. Likelihood of Success on the Merits "Just as there are two classifications of statutes for First Amendment free *619 speech purposes, there are two ways to challenge a statute on First Amendment free speech grounds. A `facial challenge' to a statute considers only the text of the statute itself, not its application to the particular circumstances of an individual. Art `as-applied challenge,' on the other hand, requires an analysis of the facts of a particular case to determine whether the application of a statute, even one constitutional on its face, deprived the individual to whom it was applied of a protected right." Field Day, LLC v. County of Suffolk, 463 F.3d 167, 174-175 (2d Cir.2006) (internal quotation marks and citations omitted). a. Facial Unconstitutionality Plaintiffs contend that the insurance requirement is facially unconstitutional because it gives the Village Clerk unbridled discretion to reject an application. "At the heart of our First Amendment jurisprudence lies the concern that if the government were able to impose content-based burdens on speech, it could effectively drive certain ideas or viewpoints from the marketplace. * * *. As a safeguard against government censorship, we consider regulations of speech based on its content to be presumptively invalid, * * *, upholding such regulation: only if they withstand strict scrutiny. On the other hand, we apply `intermediate scrutiny' to regulations of expressive activity that are not based on content. Content-neutral regulations may limit the time, place, or manner of expression-whether oral, written, or symbolized by conduct-even in a public forum, so long as the restrictions are reasonable, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the information. * * * In this `intermediate scrutiny' context, by narrowly tailored to serve a significant governmental interest, * * *, we do not mean to imply that a regulation must be the least restrictive or least intrusive means of achieving the stated governmental interest, * * *. Rather, the narrow tailoring requirement is satisfied so long as the * * * content-neutral regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation. (emphasis in the original). * * *. A content-neutral `time, place or manner' restriction will be considered narrowly tailored unless a substantial portion of the burden on speech does not serve to advance its goals. * * *. Government regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech. * * *. Provided that a regulation serves purposes unrelated to the content of expression, it will be deemed content-neutral, even if it has an incidental effect on some speakers or messages but not others. * * *. Regulations that target only the potentially harmful secondary effects of speech are therefore content-neutral and trigger intermediate, rather than strict, scrutiny. * * *." Mastrovincenzo v. City of New York, 435 F.3d 78, 97-98 (2d Cir.2006) (internal quotations, citations and footnote omitted). A requirement of liability insurance is not per se unconstitutional because "the state has a legitimate interest in protecting itself from liability for injuries associated with the use of its property." Eastern Connecticut Citizens Action Group v. Powers, 723 F.2d 1050, 1056 (2d Cir.1983). See also Rock Against Racism v. Ward, 636 F.Supp. 178, 180(S.D.N.Y.1986). The part of the application to which plaintiffs object states in relevant part: *620 "Guidelines for submission of application are as follows: 1. Review the enclosed _________ (sic) Municipality Policy on Use of Village Facilities. 2. Review the Insurance Requirements for using Municipal Facilities, and forward to your insurance carrier for issuance of required certificates. NOTE: The Municipal Board reserves the right to require alternative liability limits when applicable. * * * * * * The undersigned, an officer of the Organization requesting use of the Municipalities [sic] facilities, or the individual requesting use of the Municipalities [sic] facilities, guarantees observance of all regulations governing use of facilities of the Municipality, payment of any charges incurred and states that the organization agrees to indemnify and save harmless the Municipality and the Municipal Board against any and all claims for damages or injury to persons or property that may be occasioned by, or arise from, the use of such facilities. (emphasis supplied). * * * * * * No one will be allowed to use municipal facilities with out [sic] the Application, a copy of the Insurance Certificate, and the fee returned to the Municipality. Insurance Requirements for Use of Facilities Organization: An organization using the facilities must comply with Municipality Use of Facility Standards. It is suggested that the organization maintain at a minimum the following, giving evidence of same to the Municipality in the form of a Certificate of Insurance, copy of the General Liability Declarations Page and copy of the Additional Insured Endorsement and provide 30 days notice of cancellation, non-renewal or material change. New York State licensed carrier is preferred; any non-licensed carriers will be accepted at the Municipalities [sic] discretion. The insurance carrier must have an AM Best Rating of at least A-IX. Workers Compensation and NYS Disability is required for any organization that have [sic] employees that will be working on the premises . . ." (emphasis added). * * * * * * II. UMBRELLA LIABILITY — Recommended Coverage Umbrella Form or Excess following form of primary General Liability and Automobile Liability Suggested Limit $2,000,000 Additional Insured Municipality and all appointed and elected officials, employees and volunteers III. WORKERS COMPENSATION AND NYS DISABILITY Statutory coverage is required if the Organization has employees that will be working on the premises. Individual/Resident: The Individual shall provide a copy of their Homeowners or Apartment/renter's Policy Declarations Page — minimum liability limit of $100,000. Policy shall not exclude the off-premises activities of the insured. *The Municipal Board reserves the right to require alternative liability limits when applicable." Plaintiffs have failed to demonstrate the clear likelihood of success on the merits of their facial challenge to the insurance and indemnification provisions of the Village's permit application. *621 First, as plaintiffs have now conceded, the "Insurance Requirements for Use of Facilities" section of the application was not promulgated by the Village, but was placed in the application at the behest of the Village Insurer, which has advised the Village that if it does not secure "risk transfer" coverage, the Village will be liable for additional premiums which it would be required to pass on to its residents in the form of additional property assessments. (Affidavit of Nicholas Salerno in Opposition to Motion for Preliminary Injunction dated July 19, 2007 [Salerno Aff. ]). In addition, the Village would face the possible loss of the present and most cost-effective insurance plan for the Village. (Id.). Moreover, and contrary to plaintiffs' claim, the Village Clerk does not grant or deny permit applications; rather they are submitted to the Village Board and determined by the Board of Trustees, which is bound by its Code to make permit determinations based only upon considerations of traffic circulation and public safety. (Bellport Village Code § 17-121(c)). The insurance and indemnification provisions are relevant to the legitimate government concerns regarding traffic circulation and public safety, and without reference to the purpose of any proposed event. Moreover, content-neutral concerns for the public fisc are, as well, appropriate governmental considerations. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1056 (9th Cir.2006). Second, it should be noted that the insurance requirements listed in the application are, in fact, precatory. The only mandatory requirement is that the organization comply with the Village's "Use of Facility Standards." To this requirement, plaintiffs apparently have no objection. The following section of the application, to which plaintiffs do object, only makes suggestions as to what amount is recommended for Commercial General Liability, Umbrella Liability and Workers' Compensation and Disability insurance and appears to be directed to commercial organizations which seek permission to stage commercial events. The following section of the application, which refers to Individual/Resident applicants and which also could arguably include plaintiffs, requires only the presentation of the Declarations Page of a homeowner/renter insurance policy in the amount of one hundred thousand dollars ($100,000.00) which does not exclude off-premises activities of an insured. Neither party addresses this clause which is a specific, narrowly tailored requirement, content-neutral and does not provide for the exercise of any discretion by any official based upon an events purpose or message. To the extent that the provision below this section, marked with an asterisk, states: "*The Municipal Board reserves the right to require alternative liability limits when applicable," it is unclear whether this applies to the individual/resident applicant or the commercial organization. However, assuming, without deciding, that it applies to both, the only argument that could be raised in opposition would be that it might permit waiver for favored groups or individuals.[2] In any event, as stated in Thomas v. Chicago Park District, 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002): "That is certainly not the intent of the ordinance, which * * * has [been] reasonably interpreted to permit overlooking *622 only those inadequacies that, under the circumstances, do no harm to the policies furthered by the application requirements. * * *. Granting waivers to favored speakers (or, more precisely, denying them to disfavored speakers) would of course be unconstitutional, but we think that this abuse must be dealt with if and when a pattern of unlawful favoritism appears, rather than by insisting upon a degree of rigidity that is found in few legal arrangements . . . On balance, * * * the permissive nature of the ordinance furthers, rather than constricts, free speech." Id. at 325, 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783.[3] Plaintiffs also object to the application's indemnification clause which is clearly content-neutral and is required of all applicants. Without commenting upon plaintiffs' counsel's creativity[4], suffice it to say that similar content-neutral and narrowly tailored indemnification provisions which seek to protect the general populace from liability for injuries or damages occurring at events orchestrated and executed by particular groups or individuals have been routinely upheld, providing that an applicant's proven indigency is a consideration in the provision's application. See, e.g. Thomas, 227 F.3d 921 (7th Cir.2000), aff'd, 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783; Santa Monica Food Not Bombs, 450 F.3d at 1056; Van Arnam v. General Services Administration, 332 F.Supp.2d 376 (D.Mass.2004). Thus, plaintiffs have failed to demonstrate that the insurance and/or indemnification provisions of the Village application "delegate overly broad licensing discretion to a government official," Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 130, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992), or are otherwise content specific. Since these narrowly tailored requirements are content-neutral, in furtherance of legitimate governmental goals, and do not provide for discretionary application based upon an event's purpose or message, and since the Village's implementation demonstrates its efforts to provide ample alternative means for communication, plaintiffs have failed to demonstrate a likelihood of success on the merits of their challenge to the facial constitutionality of the insurance and indemnification provisions. b. Applied Unconstitutionality Plaintiffs contend that the Village permit application provisions requiring insurance and indemnification are unconstitutional as applied to them because SCPG does not maintain an insurance policy and is financially unable to comply with the application provisions. The Village has provided plaintiffs with an insurance broker who can secure the necessary coverage for a five hundred dollar ($500.00) premium. (See Affidavit of Nicholas Salerno in Opposition to Motion for Preliminary Injunction [Salerno Aff.]; Declaration of Steven C. Stern in Opposition to Motion for Preliminary Injunction [Stern Decl.] ¶ 7). Although plaintiffs contend that they are financially unable to *623 meet even this reduced premium requirement, the evidence is to the contrary. The affidavit of Paul Ames, treasurer of SCPG, and in camera inspection of the recent bank records of SCPG, indicate the availability of funds to cover the insurance premium as well as a documented ability to raise funds for different projects and purposes. Nevertheless, Mr. Ames contends ". . . we have yet to pay all of our organizational dues, which we pay as they are presented and approved by the Board. Also, we are now preparing for a mailing related to our World Peace Vigil event . . . and will need to conduct at least one more mailing this year for our annual meeting and fund raiser. Other fund-raising events are also possible. . . . Even if we could afford to pay for insurance this year (estimated at $750-$1500 by [unspecified] industry standards) doing so would severely restrict our ability to continue our ability (sic) to continue our educational mission. . . ." (Ames Affidavit) (emphasis added). Aside from the failure of Mr. Ames to support his claims with specific details (other than the demonstrated ability of SCPG to raise funds in excess of eleven thousand dollars ($11,000.00)), his affidavit undoubtedly expresses the plight of every nonprofit organization: insufficient resources to fund every organizational desire or goal. However, neither the affidavit of Mr. Ames or any other evidence proffered by plaintiffs substantiates their claim of indigency which might warrant a waiver of the application's financial security requirements. See e.g. Van Arnam, 332 F.Supp.2d at 376. Nor does Mr. Ames address the unrefuted claim by defendants that the insurance requirement can be satisfied by a five hundred dollar ($500.00) premium payment. In addition, neither Mr. Ames nor any other plaintiff has explained why they are unwilling or unable to proffer a homeowner/renter policy or to execute the indemnification provision which was executed previously by SCPG or pay the $500.00 premium and execute the hold harmless clause which the Village has agreed to limit to the insurance coverage which can be purchased for the reduced premium payment. (See Minutes of Special Village Board Meeting, July 16, 2007, defendant's Ex. F). Since plaintiffs have not shown that the insurance and indemnification provision of the application are unconstitutional as applied to them, they have failed to demonstrate the clear likelihood that they will succeed upon the merits of this claim. 2. Irreparable Injury Courts have held, without elaboration, that the mere allegation of denial of a First Amendment right is sufficient to satisfy the requirement of irreparable injury on an application for a preliminary injunction insofar as it is a facial challenge to constitutionality. See Tunick, 209 F.3d at 70; Santa Monica Food Not Bombs, 450 F.3d 1022. However, as the Second Circuit noted in Beal, 184 F.3d 117, the conclusion that freedom of expression is actually threatened involves an examination of the merits of a particular case. An examination of plaintiffs' claim of unconstitutionality of the insurance and indemnification provisions of the Village permit application as applied indicates that they have failed to meet this prong of their application for a preliminary injunction as well. The only requirements that plaintiffs must fulfill in order to receive the permit to parade in the vehicular roadway is the payment of the five hundred dollar ($500.00) premium for insurance and the execution of the indemnification clause which the Village has limited in application to the amount of insurance which plaintiffs are required to purchase. Thus, the only *624 injury which plaintiffs can arguably suffer is the five hundred dollar ($500.00) expenditure, which can be reimbursed to them by the Village if the plaintiffs do in fact ultimately succeed on their claim. On the other hand, and even though it need not be considered here, it is noted that the equities favor the Village, which could suffer the severe and possibly irrevocable and irreparable injury of loss of its present and most cost-effective insurance coverage, for which plaintiffs, should the Village ultimately prevail, could offer no solution. Plaintiffs also claim that the offer by the Village to repeat last year's parade route on the Village sidewalks (without requiring a permit) will "seriously diminish" the "exposure and impact of our protest/march parade" and place plaintiffs "in a position of personal peril." (See Ames Affidavit dated July 2, 2007). Aside from the obvious unlikelihood that it is riskier to walk on a sidewalk than in a vehicular roadway, the videographed evidence of the sidewalk parade route which plaintiffs followed in 2006 does not support plaintiffs' claim of dangerousness. (See Defendants' Ex. D). Moreover, the 2006 application which was completed by plaintiffs indicates a recognition of the liability concerns for which the Village requires coverage.[5] Further recognition of the dangerousness of the proposed roadway route vis-a-vis the sidewalk is evidenced by plaintiffs' counsel's threat of excess liability responsibility which caused the Church to withdraw its previously proffered sponsorship. Finally, plaintiffs have failed to demonstrate how their message would be diminished or diluted by being required to walk on the sidewalk or how it would otherwise constitute irreparable injury. See, e.g. Bronx Household of Faith v. Board of Education of City of New York, 331 F.3d 342, 350 (2d Cir.2003) (holding that in instances where a plaintiff alleges injury from a rule or regulation that may only potentially affect speech, the plaintiff must articulate a specific present objective harm or a threat of specific future harm). "The theoretical possibility of a chilling effect" on plaintiffs' speech in this case is "too conjectural and insufficient to establish irreparable harm." Id. (citing Latino Officers Ass'n v. Safir, 170 F.3d 167, 171 (2d Cir.1999)). Based upon the foregoing, plaintiffs have failed to demonstrate that they would suffer irreparable injury based upon a denial of their application for a preliminary injunction. III. Defendants' Cross Motion Defendants cross motion for sanctions pursuant to 28 U.S.C. § 1927 will be held in abeyance pending the ultimate determination of this action. IV. Conclusion For the reasons set forth herein, plaintiffs' motion for a preliminary injunction is denied and defendants' cross motion for sanctions is held in abeyance pending the ultimate determination of this action. SO ORDERED. NOTES [1] I will not consider at this point the possible ethical implications of counsel's action or the potential impact of his conduct on his continued representation of his named clients. [2] Plaintiffs have not only failed to raise this argument, but have actively sought a waiver in their own favor. [3] The Village nonetheless, exercised that very discretion in plaintiff's favor offering, in lieu of the proof of insurance, the payment of five hundred dollars ($500.00). [4] Although the Third Circuit, in Nationalist Movement v. City of York, 481 F.3d 178 (3d Cir.2007) upholds an indemnification clause almost identical to the one contained in the Village of Bellport application, counsel "quotes" a statement by the court which criticizes a reimbursement provision and substitutes the word "indemnification" for "reimbursement." (See Gewanter affidavit, ¶ 3.) [5] In a letter by Paul Ames dated July 16, 2006, he states, in pertinent part: "We are requesting police/code enforcement escort to minimize traffic confusion and safety hazards. * * * Your participation would be most welcome as escort from the Police or Village helps immensely to minimize dangerous encounters with impatient motorists. Suffolk Police and/or Bellport Village Code Enforcement presence will facilitate our use of the southbound land of the street (Station Road crossing Main Street to Bellport Lane) in a safe and efficient manner." (Defendants' Ex. C) (emphasis added).

17 F.3d 1487 305 U.S.App.D.C. 134 BELLSOUTH CORPORATION, Bellsouth Enterprises, Inc., andMobile Communications Corporation of America, Petitioners,v.FEDERAL COMMUNICATIONS COMMISSION, Respondent.FREEMAN ENGINEERING ASSOCIATES, INC., Petitioner,v.FEDERAL COMMUNICATIONS COMMISSION, Respondent.FREEMAN ENGINEERING ASSOCIATES, INC., Appellant,v.FEDERAL COMMUNICATIONS COMMISSION, Appellee. Nos. 93-1518, 93-1519 and 93-1520. United States Court of Appeals,District of Columbia Circuit. March 15, 1994. Appeal from an Order of the Federal Communications Commission. Harold Mordkofsky and Robert M. Jackson, Washington, DC, for petitioner/appellant Freeman Engineering Associates, Inc. John E. Ingle, Deputy Associate General Counsel, Federal Communications Commission, Washington, DC, for respondent/appellee. Before SILBERMAN, BUCKLEY, and GINSBURG, Circuit Judges. Opinion for the Court filed by Circuit Judge GINSBURG. GINSBURG, Circuit Judge: 1 Freeman Engineering Associates, Inc., a disappointed applicant for a pioneer's preference in a Federal Communications Commission licensing proceeding, both appealed from and petitioned for review of an FCC order granting Mobile Telecommunications Technologies Corporation (Mtel) a pioneer's preference for a variety of two-way services in a single 50 Khz channel. We consolidated those two cases with a petition filed by Bellsouth Corporation, and as explained below, we now dismiss both Freeman's appeal and its petition as incurably premature. I. Background 2 Freeman Engineering Associates, Inc. sought a pioneer's preference with the FCC for the provision of communications services to hearing impaired subscribers in the 930-931 MHz band in the New Orleans and Baton Rouge, Louisiana markets. The FCC denied that request in the same order in which it granted a pioneer's preference to Mtel. See Amendment of the Commission's Rules to Establish New Narrowband Personal Communications Services, First Report and Order, Gen. Docket No. 93-329, 8 FCC Rcd. 7162 (released July 23, 1993). 3 Freeman simultaneously asked the FCC to reconsider the decision denying it a pioneer's preference and asked this court to review the FCC's decision granting a pioneer's preference to Mtel. The FCC now moves for dismissal of Freeman's appeal and petition in this court on the ground that they are premature because Freeman's request for reconsideration is pending before the agency. II. Analysis 4 The FCC's motion to dismiss Freeman's cases is based upon our decision in United Transportation Union v. ICC, 871 F.2d 1114, 1116 (D.C.Cir.1989), in which we held that a party's filing a petition for reconsideration before an agency "render[s] the underlying agency action nonfinal (and hence unreviewable) with respect to th[at] party." In opposition Freeman argues that although its requests for FCC reconsideration and for judicial review arise from the same agency order, the petition for reconsideration does not deprive this court of jurisdiction because the grant of a preference to Mtel and the denial of a preference to Freeman are "separate adjudications." Freeman's petition for reconsideration, that is, "does not encompass the 'challenged action' ... which is the subject matter of the proceedings in this Court." More simply put, Freeman does not think that it should have to wait to get judicial review merely because the FCC chose to resolve in one order two independent requests for preferential treatment. 5 Freeman's attempt to place its cases outside the rule against simultaneous judicial review and agency reconsideration is initially attractive but ultimately unavailing. Even a modicum of concern for judicial economy militates strongly against concurrent review in this recurring situation. See Outland v. CAB, 284 F.2d 224, 227-28 (D.C.Cir.1960) ("When the party elects to seek a rehearing there is always a possibility that the order complained of will be modified in a way which renders judicial review unnecessary."). Indeed this case is the very model of an invitation to waste judicial resources: if the FCC were upon reconsideration to grant Freeman the pioneer's preference it seeks, then Freeman would have no, or a substantially diminished, interest in appealing the FCC's grant of a preference to Mtel. 6 As the FCC explained in the order that Freeman seeks to challenge, a license applicant that is granted a pioneer's preference "will be placed on a pioneer's preference track, not subject to competing applications, and if otherwise qualified will receive a license. Other applicants will compete for remaining licenses in the normal licensing process." 8 FCC Rcd. at 7172. As we understand that, if the FCC were upon reconsideration to grant Freeman a pioneer's preference, and both Mtel and Freeman are otherwise qualified (and there are allocations enough to accommodate two pioneers), then both applications will be granted. Mtel's application for a license would no longer have a competitive advantage over Freeman's in the scramble for a scarce resource, and Freeman would have no interest in (and perhaps no standing to pursue) judicial review of the grant to Mtel. 7 It is widely accepted that "finality with respect to agency action is a party-based concept." See United Transportation Union, 871 F.2d at 1118 (quoting West Penn Power Co. v. EPA, 860 F.2d 581, 586 (3d Cir.1988)); Wade v. FCC, 986 F.2d 1433 (D.C.Cir.1993); Winter v. ICC, 851 F.2d 1056, 1062 (8th Cir.1988). Therefore, a party that stays before an agency to seek reconsideration of an order cannot at the same time appear before a court to seek review of that same order, any more than the party could literally be in two places at the same time. Or from another perspective, an agency action cannot be considered nonfinal for one purpose and final for another. See United Transportation Union, 871 F.2d at 1117-1118; West Penn Power, 860 F.2d at 585; Winter, 851 F.2d at 1062. Thus, once a party petitions the agency for reconsideration of an order or any part thereof, the entire order is rendered nonfinal as to that party. The alternative presents too great a risk of wasting judicial resources without creating any significant benefit. 8 Freeman also argues that if it were to wait for the FCC to act upon its petition for rehearing before seeking review of the FCC's grant of a pioneer's preference to Mtel, then its petition for review would be dismissed as untimely as to the Mtel issue. Not so. For, as we have said, Freeman's petition for reconsideration in part rendered the agency order nonfinal in its entirety (as to Freeman). When the agency acts upon the petition for reconsideration, Freeman may timely seek judicial review of any part of its final order. III. Conclusion 9 Because Freeman's petition for reconsideration of the FCC's order denying Freeman a pioneer's preference is currently pending before the agency, its appeal from and petition for review in this court of the same order insofar as it grants a pioneer's preference to Mtel are incurably premature. Freeman's appeal and petition, therefore, are 10 Dismissed.

This opinion is uncorrected and subject to revision before publication in the New York Reports. ----------------------------------------------------------------- No. 53 In the Matter of City of New York, et al., Appellants, v. New York State Nurses Association, et al., Respondents. Devin Slack, for appellants. Abigail R. Levy, for respondents Board of Collective Bargaining of City of New York et al. Joseph J. Vitale, for respondents New York State Nurses Association et al. New York State Public Employment Relations Board; Municipal Labor Committee, amici curiae. WILSON, J.: New York State Nurses Association (NYSNA, or the Union) filed an improper practice petition with the Board of Collective Bargaining of the City of New York (the Board), alleging that it had a right to information, under New York City Collective - 1 -  - 2 - No. 53 Bargaining Law (NYCCBL) § 12-306 (c) (4), in connection with disciplinary proceedings brought against two nurses employed by the City's Human Resources Administration (HRA). We agree with the Appellate Division that the City was required to furnish the information specified by the Board. NYSNA represents more than 8,000 registered nurses, only 29 of whom are employed by HRA. In 2009, two Union members employed by HRA were served disciplinary charges alleging that they had falsified their time records. HRA also sent notices to the nurses, outlining the steps of the disciplinary process. Step 1 of the process was an informal conference, at the conclusion of which, if applicable, the conference holder would recommend a penalty. If the charges were sustained at Step 1, each nurse would have the option of proceeding under Civil Service Law § 75 or following the procedures agreed upon in the collective bargaining agreement (CBA). If the nurse chose the latter option, she would next attend a Step 2, "Grievance Hearing" before an HRA hearing officer. The notice instructed the nurses to "bring to the [h]earing all relevant documentation in support of your appeal." The Union then requested information from HRA, for the purposes of representing the employees in their disciplinary proceedings, and assessing compliance with the CBA. The Union sought relevant policies and the HRA Code of Conduct, information on time-keeping, patient treatment records for the relevant - 2 -  - 3 - No. 53 dates, witness statements, and a written statement detailing how the nurses violated the HRA Code of Conduct. The Union also requested to question the witnesses who gave statements and the nurses' supervisors. The City refused to provide any of the requested information or witnesses. There is no dispute that a consistent practice exists whereby the Union has sought and received such information from the New York City Health and Hospitals Corporation (HHC), which employs the vast majority of the 8,000 union members covered by the same CBA that covers the 29 nurses employed by HRA. In 2010, after the Step 1 conference resulted in a recommendation to terminate the nurses' employment, the Union filed its improper practice petition, alleging that HRA's failure to provide the requested information violated NYCCBL § 12-306 (a) (1) and (4). The Board, with two members dissenting, ruled that it was an improper practice for the City to refuse to respond to certain of the information requests, finding that § 12-306 (c) (4) extends to information "relevant to and reasonably necessary to the administration of the parties' agreements, such as processing grievances" (NYSNA, 4 OCB2d 20, 10 [BCB 2011] [internal citations omitted], available at http://www.ocb-nyc.org/uploads/2015/06/4-OCB2d-20-BCB-2011-k6g.pd f). The Board found that the Union was not, however, entitled to witness statements or a written explanation regarding the violation or the opportunity to question the identified witnesses - 3 -  - 4 - No. 53 or supervisors, because § 12-306 (c) (4) is limited to information "normally maintained in the regular course of business." The City then initiated this CPLR article 78 proceeding in Supreme Court to challenge the Board's determination. Supreme Court granted the City's petition and annulled the determination, concluding that the Board improperly extended the right to obtain information for grievances pursuant to contract administration to disciplinary proceedings, noting that the agreement does not explicitly require the City to provide information in disciplinary proceedings. The Appellate Division unanimously reversed, holding that the Board's decision, which was entitled to "substantial deference," had a rational basis (130 AD3d 28, 30 [1st Dept 2015]). The Appellate Division granted the City leave to appeal on a certified question of whether its order was properly made. NYCCBL provides that it is improper practice for a public employer "to refuse to bargain collectively in good faith on matters within the scope of collective bargaining with certified or designated representatives of its public employees" (NYCCBL § 12-306 [a] [4]). The law further requires both employers and unions "to furnish to the other party, upon request, data normally maintained in the regular course of business, reasonably available and necessary for full and proper discussion, understanding and negotiation of subjects within the - 4 -  - 5 - No. 53 scope of collective bargaining" (id. § 12-306 [c] [4]). The Board held that section 12-306 (c) (4) extended to information "relevant to and reasonably necessary for the administration of the parties' agreements, such as processing grievances, and/or for collective negotiations on mandatory subjects of bargaining," citing several decisions of PERB, the Board's analogue for state employees (4 OCB2d 20, 9-10). As noted by the Board, PERB "has consistently upheld the right of a union to seek information for contract administration in the context of disciplinary grievances" (id. at 10). The City contends that the NYCCBL "does not create a freestanding information right," but requires employers and unions to exchange data that is necessary to collective bargaining only. In its petition, the City acknowledges its statutory duty to provide information "under the rubric of contract administration and under this section of the NYCCBL" and that "grievances . . . are matters of contract administration."1 The Appellate Division also noted, "Significantly, the City and HRA do not dispute the Board's precedent holding that the duty to furnish information already applied to 'contract administration' and 'grievances' (including potential grievances)" (130 AD3d at 34). The City argues that grievances are entirely distinct from 1 The City has also conceded that duty in other proceedings (see e.g. District Council 37, 6 OCB2d 2, 11 [BCB 2013], available at http://www.ocb-nyc.org/pdf/6%20OCB2d%202%20(BCB%202013).pdf). - 5 -  - 6 - No. 53 disciplinary proceedings, and therefore that the information obligations required for grievances do not apply to disciplinary proceedings. The City notes that if the Union had wanted the right to obtain information related to disciplinary proceedings, and not just grievances, it should have bargained for that to be included in the CBA. In fact, the Union has bargained for and accomplished just that. Article VI, section 1.D. of the CBA defines "grievance" to include: "a claimed wrongful disciplinary action taken against an employee." Thus, by defining "grievance" to include disciplinary action, the CBA, has, as a matter of contract, incorporated as to disciplinary actions the information requirements applicable to grievances. The City urges that "disciplinary action" in the CBA should be limited to the final action against an employee, such as suspension or termination, rather than defined to include all actions related to the disciplinary process. The City cites Matter of Kilduff v Rochester City School District in support of its argument, in which we referred to a 30-day suspension as a "disciplinary action" (24 NY3d 505, 507 [2014]). However, Kilduff contains no suggestion, much less a holding, that "disciplinary action" is limited to the final disposition. "Disciplinary action" may encompass a range of procedures and the results of such procedures. When the Union filed its improper practice petition, both nurses had been charged, and the - 6 -  - 7 - No. 53 conclusion of Step 1 of the disciplinary process was a recommendation of termination. Further, even were we to accept the City's argument, the CBA also defines "grievance" to include a "claimed violation, misinterpretation or misapplication of the rules and regulations, written policy or orders of the Employer applicable to the agency which employs the grievant affecting terms and conditions of employment." Here, the "claimed violation" occurred no later than the commencement of the disciplinary proceedings. Matter of Pfau v Public Employment Relations Board, on which the City relies, is consistent with the Board's ruling here (69 AD3d 1080 [3d Dept 2010]). In Pfau, the Appellate Division held that the Unified Court System had no obligation to provide information to employees subject to disciplinary proceedings. Pfau's holding rested on three propositions: (1) "[The Unified Court System] had taken a consistent approach [and refused] disclosure demands for over 20 years, spanning the life of several collective bargaining agreements"; (2) neither the Rules of the Chief Judge nor the collective bargaining agreement contained any right to disclosure in disciplinary proceedings; and (3) the supposed "general rule that there is no right to disclosure in disciplinary proceedings" (id. at 1082-1083). Here, the first two factors are not present. It is undisputed that the consistent, longstanding position of HHC -- which employs 8,000 union members as compared to the 29 employed by HRA - 7 -  - 8 - No. 53 -- has been to provide disclosure in disciplinary proceedings. Moreover, unlike the circumstances in Pfau, the CBA, by defining "grievance" to include disciplinary actions, when coupled with HRA's agreement that it is required to provide information for grievances, is not silent on the question of disclosure for disciplinary proceedings. Finally, the City argues that disciplinary proceedings are meant to be resolved on an expedited timeline, and that the requirement to respond to burdensome information demands would bog down that process and eliminate its effectiveness. However, the great majority of nurses covered by this CBA are employed by agencies that have historically provided such information for disciplinary proceedings, and neither the record nor counsel could identify any undesirable effects that have actually occurred as a result of the provision of that information. Accordingly, the order of the Appellate Division should be affirmed, without costs, and the certified question answered in the affirmative. - 8 - Matter of City of New York v New York State Nurses Association No. 53 GARCIA, J.(dissenting): The majority believes that the City has conceded that the statutory discovery obligation contained in NYCCBL § 12-306 (c) (4) extends to "grievances" (majority op at 5). The majority then concludes that, because the parties' collective bargaining agreement defines "grievance" to include "disciplinary action taken against an employee," the City's discovery obligation necessarily extends to disciplinary actions (majority op at 6). I disagree with both propositions, and therefore I respectfully dissent.1 I. Initially, I question the majority's premise that the City has "acknowledge[d]" that its statutory duty under NYCCBL § 12-306 (c) (4) extends to "grievances" -- a word found nowhere in the text of the statute (majority op at 5). While the City has 1 The parties disagree regarding whether a deferential or de novo standard of review applies. Viewed as a matter of "pure statutory construction" subject to "de novo" review (Matter of New York City Tr. Auth. v New York State Pub. Empl. Relations Bd., 8 NY2d 226, 231 [2007]), I believe the plain language of NYCCBL § 12-306 (c) (4) compels reversal in this case. I would, however, reach the same result under either standard. Notably, the majority is silent as to whether a deferential standard of review applies. - 1 -  - 2 - No. 53 recognized that the Board has found that § 12-306 (c) (4) applies to "information relevant to and reasonably necessary for the administration of the parties' agreements, such as processing grievances" -- an interpretation this Court has never affirmed -- the City does not concede that the Board's determination is correct. To the contrary, the City calls into question the Board's "contract administration framework," noting that it "lacks grounding in any statutory text" and that it "is not free from doubt." Moreover, even if § 12-306 (c) (4) applies to certain "grievances," the CBA's definition of "grievance" is irrelevant to our analysis. The parties do not dispute that the CBA does not provide for the discovery right that NYSNA now seeks. Rather, NYSNA contends that the source of its discovery right is statutory -- namely, NYCCBL § 12-306 (c) (4). Contrary to the majority's holding, the scope and meaning of that statutory right is not determined with reference to the parties' private agreement. Like most statutes, NYCCBL § 12-306 (c) (4) is broadly applicable; it governs multiple collective bargaining agreements, not just NYSNA's. The meaning of § 12-306 (c) (4) does not -- and cannot -- vary based on the particular agreement at issue, or the precise terms that the parties "bargained for" (majority op at 6). The terms of the CBA therefore have no place - 2 -  - 3 - No. 53 in our statutory interpretation analysis.2 Nor did the Board believe that the parties' CBA somehow gave rise to a discovery right "as a matter of contract" (majority op at 6). To the contrary, the Board determined that the CBA "does not explicitly obligate the parties to provide requested information in conjunction with a disciplinary process" (emphasis added). The Board instead held that NYCCBL § 12-306 (c) (4) contains a "statutory duty" -- independent of the CBA -- that "applies to requests made in the context of disciplinary grievances." II. A plain reading of the statute confirms that it was not intended to apply to the instant discovery requests. In relevant part, NYCCBL § 12-306 (c) provides: "Good faith bargaining. The duty of a public employer and certified or designated employee organization to bargain collectively in good faith shall include the obligation: (4) to furnish to the other party, upon request, data normally maintained in the regular course of business, reasonably available and necessary for full and proper discussion, understanding and negotiation of 2 The majority also states that the City has conceded "in other proceedings" that its statutory duty extends to "grievances" (majority op at 5 n 2). But the 2013 Board decision cited by the majority postdates the parties' 2008 CBA. The parties therefore could not have "incorporated" into the CBA an understanding, based on Board precedent, that § 12-306 (c) (4) applies to grievances, nor could they have "bargained for" the application of that discovery right to disciplinary actions (majority op at 6). - 3 -  - 4 - No. 53 subjects within the scope of collective bargaining" (NYCCBL § 12-306 [c] [4]). The statute falls within Chapter 3 of Title 12 of the New York City Administrative Code -- a chapter entitled, "Collective Bargaining." Subsection (c) -- the provision defining "[g]ood faith bargaining" -- sets forth those rights and obligations attendant to the collective bargaining process. The five subdivisions of NYCCBL § 12-306 (c), then, are designed to specify the component obligations that comprise a public employer's statutory duty to "bargain collectively in good faith" (NYCCBL § 12-306 [c]). To that end, § 12-306 (c) (4) requires the exchange of "data" that is "necessary" to facilitate the bargaining process. Put another way, § 12-306 (c) (4) applies to discovery in connection with the formation and negotiation of a collective bargaining agreement, as distinguished from its implementation.3 3 The four other subdivisions of § 12-306 (c) similarly specify component obligations of a public employer's statutory duty to "bargain collectively in good faith," and plainly aim to facilitate the bargaining process: subdivision (1) requires employers "to approach the negotiations with a sincere resolve to reach an agreement"; subdivision (2) requires employers "to be represented at the negotiations by duly authorized representatives prepared to discuss and negotiate on all matters within the scope of collective bargaining"; subdivision (3) requires employers "to meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays"; and subdivision (5) states that, "if an agreement is reached," the employer must "execute upon request a written document embodying the agreed terms, and to take such steps as are necessary to implement the agreement" (NYCCBL § 12- 306 [c] [1]-[3], [5]). - 4 -  - 5 - No. 53 Here, NYSNA does not seek discovery that is relevant to, or "necessary for," the collective bargaining process (NYCCBL § 12-306 [c] [4]). The requested discovery does not, for instance, pertain to the employee discipline process which, the City agrees, is a mandatory subject of collective bargaining. Rather, NYSNA seeks discovery in connection with two particular employee disciplinary proceedings being resolved pursuant to an already-bargained-for procedure set forth in the CBA. NYSNA's discovery requests pertain only to the substance of the underlying dispute -- the propriety of two employee terminations for falsifying time records -- and therefore do not implicate matters to be negotiated or embodied in a collective bargaining agreement. The majority's conclusion to the contrary is also "in serious disaccord with one of the settled objectives of employee discipline" -- to "promptly resolve allegations of employee misconduct" (Matter of Pfau v Public Employment Relations Board, 69 AD3d 1080, 1082-1083 [3d Dept 2010]). Indeed, this objective is embodied in the parties' CBA, which contemplates a swift and efficient dispute resolution process. For instance, the CBA imposes narrow time limitations on each step of the disciplinary grievance procedure, culminating in an "expedited arbitration process" that "allow[s] for the prompt adjudication of grievances." The CBA does not contemplate discovery until the parties reach arbitration -- the fourth stage of the grievance - 5 - process. Any earlier right to discovery is notably absent from the agreement. III. Nothing in the text of NYCCBL § 12-306 (c) (4) suggests that the statute itself confers the discovery right that NYSNA seeks. In order to reach its conclusion that discovery is required, the majority (1) adopts the view that the statute covers "grievances" -- a term found nowhere in the text, and (2) concludes that the City therefore "bargained" away a discovery right by including disciplinary actions in the CBA's definition of a "grievance" (majority op at 5-6). Our rules of statutory construction do not support that analysis. Nor did the Board adopt that reasoning. NYSNA bargained for a detailed and comprehensive dispute resolution procedure outlined with specificity in the CBA -- a process reflective of the parties' intent to resolve employee grievances efficiently and expediently. If NYSNA desires a broader discovery right -- or any other procedural protection -- in connection with employee disciplinary proceedings, it is free to bargain for that right through the collective bargaining process. I dissent, and would reverse the order of the Appellate Division, which dismissed the City's article 78 proceeding challenging the Board's decision. - 6 -  - 7 - No. 53 * * * * * * * * * * * * * * * * * Order affirmed, without costs, and certified question answered in the affirmative. Opinion by Judge Wilson. Chief Judge DiFiore and Judges Rivera, Stein and Fahey concur. Judge Garcia dissents in an opinion. Decided June 8, 2017 - 7 - 

FILED NOT FOR PUBLICATION JAN 27 2014 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BALBIR SINGH, No. 10-70403 Petitioner, Agency No. A074-395-223 v. MEMORANDUM* ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 14, 2014** San Francisco, California Before: GRABER and NGUYEN, Circuit Judges, and DEARIE, Senior District Judge.*** * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). *** The Honorable Raymond J. Dearie, Senior District Judge for the U.S. District Court for the Eastern District of New York, sitting by designation.  Balbir Singh, a native of India, petitions for review of an order issued by the Board of Immigration Appeals (“BIA”) denying as untimely his motion to reopen deportation proceedings. We previously denied Singh’s petition to review a BIA order affirming the immigration judge’s denial of Singh’s applications for asylum, withholding of deportation, and relief under the Convention Against Torture on the basis of an adverse credibility determination. See Singh v. Gonzales, 202 F. App’x 188, 189 (9th Cir. 2006). We now deny Singh’s petition to review the BIA’s denial of the motion to reopen. “‘We review for abuse of discretion the BIA’s denial of a motion to reopen.’” Feng Gui Lin v. Holder, 588 F.3d 981, 984 (9th Cir. 2009) (quoting He v. Gonzales, 501 F.3d 1128, 1130 (9th Cir. 2007)). Furthermore, “[w]e review the BIA’s determination of purely legal questions de novo, and review its factual findings for substantial evidence.” Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). Although Singh was placed in deportation proceedings prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, his motion is nevertheless subject to the time and numeric limitations set forth at 8 C.F.R. § 1003.2(c)(2). Singh filed his motion to reopen on June 29, 2009, more than two years past the 90-day regulatory time limitation. The motion was 2 therefore untimely, unless Singh could establish the applicability of the exception for changed country circumstances set forth at 8 C.F.R. § 1003.2(c)(3)(ii). The BIA did not abuse its discretion in determining that Singh failed to do so. The immigration judge originally denied Singh’s application because he found Singh’s testimony that Punjabi police persecuted him for suspected “association with individuals in a militant organization” not credible. See Singh, 202 F. App’x at 189. We concluded that substantial evidence supported that adverse credibility determination. Id. Consequently, Singh’s evidence of purportedly worsening conditions for persons suspected of Sikh militancy is not “material.” See Toufighi v. Mukasey, 538 F.3d 988, 996-97 (9th Cir. 2008) (upholding denial of motion to reopen based on evidence of worsening conditions for religious converts where the petitioner had not established that he had truly converted). In addition, the BIA did not abuse its discretion when it concluded that Singh’s evidence failed to establish that the treatment of suspected Sikh militants has worsened since his application was originally denied in 2003. Although the BIA’s written opinion was certainly terse, the BIA need only “‘announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.’” Najmabadi, 597 F.3d at 990 (quoting Lopez v. Ashcroft, 366 F.3d 799, 807 n.6 (9th Cir. 2004)). Singh’s evidence was not 3 “qualitatively different” from the evidence that he had submitted in support of his application. See Id. at 987. The evidence in both instances consisted of reports demonstrating abuse by Indian authorities, and the evidence submitted in support of the motion to reopen did not show that “circumstances have changed sufficiently that a petitioner who previously did not have a legitimate claim for asylum now has a well-founded fear of future persecution.” Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004). Finally, because the BIA did not abuse its discretion in rejecting the motion as untimely, it was under no obligation to consider Singh’s request for an adjustment of status. See Ekimian v. INS, 303 F.3d 1153, 1156 (9th Cir. 2002) (applying 90-day time limitation to motion to reopen seeking adjustment of status). PETITION FOR REVIEW DENIED. 4 

FILED NOT FOR PUBLICATION MAR 15 2013 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 12-30145 Plaintiff - Appellee, DC No. 4:11 cr-0075 SEH v. MEMORANDUM * HUGH CLARENCE RIDGLEY, Defendant - Appellant. Appeal from the United States District Court for the District of Montana Sam E. Haddon, District Judge, Presiding Submitted March 7, 2013 ** Portland, Oregon Before: TASHIMA, CLIFTON, and BEA, Circuit Judges. Hugh Ridgley was charged, under the Hobbs Act, with the robberies of two pizza deliverymen. 18 U.S.C. § 1951(a). He appeals his conviction on both * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C). counts, arguing that: (1) the interstate commerce jury instruction was defective; and (2) there was insufficient evidence to support the convictions. We affirm. 1. Ridgley takes issue with the following jury instruction: “To establish that commerce was affected, the proof may only show a de minimus, that is, a slight effect or a probable or potential impact on interstate commerce.” We have repeatedly approved the standard described by this instruction. See, e.g., United States v. Atcheson, 94 F.3d 1237, 1244 (9th Cir. 1996) (rejecting a jury instruction challenge because “the Government need only prove that [defendant’s] actions had a probable or potential effect on interstate commerce to support his conviction under the Hobbs Act”). Moreover, this standard has been approved in prosecutions for both substantive and inchoate offenses. See United States v. Boyd, 480 F.3d 1178, 1178 (9th Cir. 2007) (per curiam) (upholding a Hobbs Act conviction because the completed robbery of a business “potentially impacted interstate commerce”). Accordingly, there was no instructional error. 2. There was also sufficient evidence to sustain the convictions for both counts. “In reviewing sufficiency of the evidence claims, we view the evidence in the light most favorable to the prosecution and determine whether any rational jury could have found Defendant[] guilty of each element of the crime beyond a reasonable doubt.” United States v. Ruiz, 462 F.3d 1082, 1088 (9th Cir. 2006). -2- “Robbery of an interstate business . . . typically constitutes sufficient evidence to satisfy the Hobbs Act’s interstate commerce element.” United States v. Rodriguez, 360 F.3d 949, 955 (9th Cir. 2004).1 The evidence showed that the two pizza restaurants were engaged in interstate commerce because their supplies and ingredients came from out of state. The evidence also showed that the stolen money belonged to the restaurants, not to the individual victims. Accordingly, a rational jury could have found Ridgley guilty on both robbery counts. AFFIRMED. 1 We reject Ridgley’s contention that the heightened test for robbery of individuals should apply. See, e.g., United States v. Lynch, 437 F.3d 902, 909 (9th Cir. 2006) (en banc) (per curiam). This was not a case where the victims happened to be employees of an interstate business; instead, they were acting within the scope of their employment at the time of the respective crimes, and the stolen cash belonged to their respective employers. -3- 

FILED NOT FOR PUBLICATION SEP 23 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 10-10278 Plaintiff - Appellee, D.C. No. 2:09-cr-00088-WBS-1 v. MEMORANDUM * FRANCISCO MORALES-RODRIGUEZ, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of California William B. Shubb, Senior District Judge, Presiding Submitted August 29, 2011 ** San Francisco, California Before: FISHER and RAWLINSON, Circuit Judges, and WRIGHT, District Judge.*** Francisco Morales-Rodriguez was indicted on 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 * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Otis D. Wright II, United States District Judge for the Central District of California, sitting by designation. possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). He argues that the district court improperly rejected his guilty plea even though it met all the requirements of Federal Rule of Criminal Procedure 11. See In re Vasquez-Ramirez, 443 F.3d 692, 695-96 (9th Cir. 2006) (“[A] court must accept an unconditional guilty plea, so long as the Rule 11(b) requirements are met.”). Because we cannot discern the basis for the district court’s rejection of the plea, we vacate the plea rejection and remand with instructions that the court hold a new plea hearing where the court either accepts Morales-Rodriguez’s guilty plea or more clearly articulates the basis for rejecting it. See United States v. Mancinas- Flores, 588 F.3d 677, 681-86 (9th Cir. 2009). We emphasize that the district court judge is not obligated to accept the guilty plea if no factual basis for the plea is established during the new plea hearing. In that event, the jury’s verdict may be reinstated. At a pretrial status conference, Morales-Rodriguez’s counsel advised the district court that Morales-Rodriguez was prepared to plead guilty, and the government indicated that if he did, it would not object to a sentence reduction for acceptance of responsibility. During the plea colloquy, Morales-Rodriguez said “yes” when the district court asked whether the prosecutor’s recitation of the facts providing the basis for the guilty plea was correct, and when asked whether he was 2 pleading guilty voluntarily and not due to any threats, promises or coercion. In response to some of the district court’s follow-up questions, however, Morales- Rodriguez gave equivocal answers suggesting that although he wanted to plead guilty, he believed he was innocent. The district court refused to accept his guilty plea, stating “I don’t accept guilty pleas from innocent people.” Just before trial began, Morales-Rodriguez’s counsel again asked the court to let him plead guilty, and the court again refused. Morales-Rodriguez was tried and convicted, and sentenced to 151 months. By itself, a defendant’s statement that he is not actually guilty “does not suggest either that the plea was involuntary or that it lacked a factual basis.” Id. at 685. The error was not harmless, because it is possible that the district court would have given Morales-Rodriguez the benefit of the acceptance of responsibility reduction, although we do not suggest that the district court was required to do so. “We are not telepaths, and we decline the invitation to guess what the district court would have done;” “[w]e will instead ask the person who knows the answer, the sentencing judge.” United States v. Hector, 577 F.3d 1099, 1103 (9th Cir. 2009) (internal quotation marks omitted). VACATED and REMANDED. 3 

92 F.3d 1196 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. Robert Lee MILLER, Jr., Plaintiff-Appellant,v.Larry JONES and Ray C. Elliott, Defendants-Appellees. No. 96-6077. United States Court of Appeals, Tenth Circuit. July 29, 1996. Before TACHA, BALDOCK, and BRISCOE, Circuit Judges. 1 ORDER AND JUDGMENT* 2 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. 3 Robert Lee Miller, Jr., appearing pro se, filed this 42 U.S.C. § 1983 action, alleging he was being unconstitutionally confined in the Oklahoma County jail. Miller appeals the district court's dismissal of the action. We affirm. 4 Miller was convicted of two counts of first degree murder, two counts of first degree rape, two counts of first degree burglary, and one count of attempted first degree burglary in May 1988, and was sentenced to two death sentences and cumulative prison sentences of 725 years. On February 24, 1995, the Oklahoma Court of Criminal Appeals granted a joint application filed by the prosecution and the defense to reverse the convictions based upon newly discovered evidence obtained through DNA testing, and the case was remanded to the state district court for new trial. 5 While awaiting the new trial, Miller filed this action, naming as defendants the District Court of Oklahoma County, the State of Oklahoma, the Assistant District Attorney for Oklahoma County, and a Special District Judge for Oklahoma County. Miller alleged his right to speedy trial and his due process rights had been violated and stated he "would like to have the case dismissed against [him], and to be granted [his] freedom once again, also any other remedies [he] might be entitled to under the law." R I Doc. 2 at 5. Defendants moved to dismiss and the magistrate judge issued written findings and recommended dismissal. The magistrate noted that a petition for writ of habeas corpus, rather than a § 1983 action, was the appropriate method for seeking relief from illegal confinement, and that Miller must first exhaust his state court remedies before seeking habeas relief in federal court. The magistrate further found Miller would not be entitled to any monetary relief until such time as it was determined he had been unconstitutionally confined. The magistrate also found the defendant assistant district attorney was entitled to prosecutorial immunity from § 1983 claims and the defendant special judge was entitled to absolute immunity from such claims. The district court adopted the magistrate's findings and dismissed the action. 6 Having reviewed the entire record, we fully agree with the findings of the district court. To the extent Miller challenged the constitutionality of his confinement, he must exhaust his state court remedies and then pursue relief in a petition for writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Insofar as the suit seeks recovery of monetary damages against the named defendants, it is properly characterized as a § 1983 suit. However, in Heck v. Humphrey, 114 S.Ct. 2364, 2372 (1994), the Supreme Court held that in order to recover damages for allegedly unconstitutional conviction or imprisonment, a § 1983 plaintiff must prove the conviction or imprisonment had been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus. Because Miller has failed to make any of these showings, his claim for monetary damages must be dismissed. Finally, both of the individual defendants named are immune from suit under § 1983. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (state district judges are absolutely immune from liability in civil rights suits seeking monetary damages for actions taken in their judicial capacities); DiCesare v. Stuart, 12 F.3d 973, 977 (10th Cir.1993) (prosecutor enjoys absolute immunity for actions taken during judicial proceedings). 7 AFFIRMED. The mandate shall issue forthwith. * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3

408 F.Supp.2d 1055 (2005) In re: WESTERN STATES WHOLESALE NATURAL GAS ANTITRUST LITIGATION, And All Related Cases. Fairhaven Power Company, Plaintiff, v. Encana Corporation, et. al., Defendants. Abelman Art Glass, On Behalf of Itself and All Others Similarly Situated, Plaintiff, v. Encana Corporation et. al., Defendants. Utility Savings & Refund Services, et al., Plaintiffs, v. Reliant Energy Services, Inc., et al., Defendants. No. MDL 1566, Nos. S-1431-PMP PAL, S-05-0243-PMP PAL, S-05-0437-PMP PAL, S-05-0110-PMP PAL. United States District Court, D. Nevada. December 19, 2005. *1056 *1057 Craig C. Corbitt, Zelle Hofmann Voelbel Mason & Gette, LLP, Francis O. Scarpulla, Francis O Scarpulla, Law Office of, San Francisco, CA, J. Bruce Alverson, Alverson Taylor Mortensen, et al, Las Vegas, Josef D. Cooper, Cooper & Kirkham, PC, Michael P. Lehmann, Furth Firm, LLP, San Francisco, CA, Nathan Reinmiller, Alverson Taylor Mortensen, et al, Las Vegas, William T. Needham, Janssen Malloy Needham, et al, Eureka, CA, for Fairhaven Power Co., Plaintiff. William H. Johnson, Hogan & Hartson, Washington, DC, John L. Hendricks, Akin Gump Strauss Hauer & Feld, Dallas, TX, Heather R. Skinazi, Sidley Austin Brown & Wood, LLP, Joshua D. Lichtman, Fulbright & Jaworski, Los Angeles, CA, Joel B. Kleinman, Dickstein, Shapiro, Morin & Oshinsky, Washington, DC, Michael J. Kass, Pillsbury Winthrop, Diane E. Pritchard, Morrison & Foerster, San Francisco, CA, Robert A. Sacks, Sullivan & Cromwell, Los Angeles, CA, Mark R. Robeck, Baker Botts, LLP, Houston, TX, Richard P. Levy, Gibson Dunn & Crutcher, Alan Z. Yudkowsky, Stroock Stroock & Lavan, Los Angeles, CA, Stanley J. Panikowski, DLA Piper Rudnick Gray Cary U.S. LLP, San Diego, CA, David T. Peterson, Morgan Lewis & Bockius LLP, Los Angeles, CA, for AEP Energy Services, Inc., American Electric Power Service Corporation, Centerpoint Energy Inc., CMS Energy Corporation, Coral Energy Resources, LP, Duke Energy Corporation, Duke Energy Trading & Marketing, LLC, Dynegy Holding Co., Inc., El Paso Corporation, Encana Corporation, Reliant Energy Services, Reliant Resources, Inc, Sempra Energy Corp., Sempra Energy Trading Corp., WD Energy Services, Inc., West Coast Power LLC, Williams Companies, Inc., Xcel Energy Inc., Defendants. ORDER PRO, Chief Judge. I. BACKGROUND This case arises out of the 2000-2001 California energy crisis. During that time, the California energy and natural gas markets became mutually dysfunctional, and, feeding off each other spiraled into a state-wide energy crisis. Amendments to Blanket Sales Certificates, 68 Fed.Reg. 66323, 66325 (Nov. 17, 2003) (to be codified at 18 C.F.R. § 284.288) ("Order 644"). The Federal Energy Regulatory Commission ("FERC") undertook a fact finding investigation of the market crisis in which it concluded, "[S]pot gas prices rose to extraordinary levels, facilitating the unprecedented price increase in the electricity market." Id. FERC concluded the dysfunctions in the natural gas market stemmed from efforts to manipulate price indices compiled by private trade publications, including reporting of false data and wash trading.[1] *1058 Plaintiff Fairhaven Power Company ("Fairhaven") is a California state corporation, with its principal place of business in California. (Am. Compl. at 4.) Fairhaven purchased natural gas in California for the purpose of consumption, not resale. (Id.) Plaintiff Abelman Art Glass ("Abelman") is a sole proprietorship, for its principal place of business in California. (Id.) Abelman purchased natural gas in California with the purpose of consumption, not resale. (Id.) Plaintiff Utility Savings & Refund Services, LLP ("Utility Savings") is a power cooperative located in California. (Id.) Utility Savings purchased natural gas for the purpose of consumption, not resale. (Id. at 4-5.) Consumers of wholesale natural gas that buy gas for consumption, and not for resale, are typically referred to as "end-run users." Plaintiffs filed suit against Defendants seeking to recover damages on behalf of natural gas rate payers. In the Amended Complaint, Plaintiffs claim Defendants violated the Sherman Act, 14 U.S.C. § 1, the Cartwright Act, and California Unfair Competition Laws, Cal. Bus. & Prof.Code § 17200. (Am.Compl.) Plaintiffs allege Defendants engaged in false reporting of natural gas prices, participated in wash trades, including Enron Online ("EOL") facilitated wash trades, entered into illegal netting agreements,[2] and conspired to not compete in natural gas markets. (Id.) Additionally, Plaintiffs allege the El Paso Defendants entered into an illegal netting agreement engineered to "churn," or artificially raise, natural gas prices. (Id. at 31.) Plaintiffs further allege the El Paso Defendants met at a hotel in Phoenix and agreed to not compete with regard to two separate pipeline projects. (Id. at 43-44.) The Multi District Litigation Panel transferred these cases to this Court for coordinated and consolidated proceedings. (CV-S-05-1110, Doc. # 11; CV-S-05-0243, Doc. # 40; CV-S-05-0437, Doc. # 7.) Plaintiffs request relief for claims one through five as follows: H. Awarding treble the amount of actual damages determined to have been sustained by Plaintiffs and the Class as a result of the conduct of Defendants complained of herein as provided by law, and that judgment be entered against each Defendant for the amount so determined; I. Awarding to Plaintiffs and the Class statutory damages, punitive or exemplary damages, attorneys' fees, costs and disbursements; J. Awarding to Plaintiffs and the Class pre- and post-judgment interest to the extent allowed by the law; K. Awarding to Plaintiffs and the Class equitable relief, including a judicial determination of the rights and responsibilities of the parties in all practicable injunctive relief; L. Awarding to Plaintiffs and the Class equitable relief including restitution and/or disgorgement of all revenues, earnings, profits, compensation and benefits which may have unjustly enriched *1059 Defendants as a result of their wrongful conduct; M. Order that a constructive trust be imposed on the assets of all Defendants and the proceeds from the sale of any of those assets; and O. Awarding to Plaintiffs and the Class costs of suit and such other and further relief as the Court may deem just and proper under the circumstances. (Am. Compl. at 67-68.) Plaintiffs' sixth claim for relief alleges the El Paso Defendants and Sempra Defendants violated section 1 of the Sherman Act. (Id. at 64-65.) In Plaintiffs' seventh claim for relief Plaintiffs allege the El Paso Defendants violated section 1 of the Sherman Act. (Id. at 65-66.) Plaintiffs request relief for claims six and seven as follows: P. Determining and declaring that this action may be maintained as a class action on behalf of the Class; Q. Determining and declaring that Defendants have engaged in unlawful contracts, combinations, and/or conspiracies constituting an unreasonable restraint of trade in violation of Section 1 of the Sherman Act; R. Determining and declaring that each of the Defendants, their successors, assigns, subsidiaries, and transferees, and their respective officers, directors, agents, and employees, and all other persons acting or claiming to act on behalf of them or in concert with them, be perpetually enjoined and restrained from in any manner, directly or indirectly, continuing, maintaining, or renewing the combinations and conspiracies alleged herein; S. Awarding treble the amount of actual damages determined to have been sustained by Plaintiffs and the Class as a result of the conduct of Defendants complained of herein as provided by law, and that judgment be entered against each Defendant for the amount so determined; T. Awarding to Plaintiffs and the Class pre- and post-judgment interest to the extent allowed by law; U. Awarding to Plaintiffs and the Class their attorneys' fees; and V. Awarding to Plaintiffs and the Class costs of suit and such other and further relief as the Court may deem just and proper under the circumstances. (Id. at 68.) II. DEFENDANTS' MOTION TO DISMISS Defendants[3] move this Court to dismiss Plaintiffs' first through fifth claim for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).[4] Defendants *1060 argue that the filed rate doctrine bars Plaintiffs' claims, or alternatively the claims are preempted by federal jurisdiction. Defendants argue the filed rate doctrine bars Plaintiffs' claims because Plaintiffs' damages and injunctive relief sought would require the Court to determine what a reasonable rate would have been absent Defendants' alleged misconduct, a regulatory task which Congress specifically delegated to FERC. Additionally, Defendants argue Plaintiffs' claims should be dismissed on the basis of federal preemption. Defendants argue that Plaintiffs' state claims relate to the field of wholesale sales and transportation of natural gas, an area exclusively occupied by federal law under the Natural Gas Act ("NGA"). Plaintiffs respond that the filed rate doctrine is inapplicable and does not bar Plaintiffs' claims. Plaintiffs argue that as end-run users, their purchase of natural gas is explicitly outside FERC's jurisdiction under the NGA, and therefore federal law does not pre-empt their claims nor does the filed rate doctrine bar their claims. Moreover, Plaintiffs argue that their damages calculation does not require the Court to assume a hypothetical rate for natural gas, and therefore the filed rate doctrine does not bar their damages calculation. Also before this Court are the El Paso Defendants' Motion to Dismiss Plaintiffs' Claims Six and Seven (# Doc. # 207), and Defendants Sempra Energy ("Sempra"), Southern California Gas Company ("SoCal Gas") and San Diego Gas and Electricity Company's ("San Diego") Motion to Dismiss Plaintiffs' Claims Six and Seven (Doc. # 208). In both motions, Defendants argue the filed rate doctrine bars Plaintiffs' claims six and seven. As with claims one through five, Defendants argue that Plaintiffs' damages would require the Court to assume a hypothetical reasonable rate, an area of regulation within FERC's exclusive jurisdiction. Plaintiffs respond that the filed rate doctrine does not bar their claims because they are end-run users. Additionally, Plaintiffs argue their damage calculation would not require the Court to assume a hypothetical rate, and therefore the filed rate doctrine is inapplicable. III. LEGAL STANDARD In considering a motion to dismiss, "all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party." Wyler Summit Partnership v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir.1998) (citation omitted). However, the *1061 Court does not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations in the plaintiff's complaint. See Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.1994). There is a strong presumption against dismissing an action for failure to state a claim. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir.1997) (citation omitted). The issue is not whether Plaintiff ultimately will prevail, but whether he may offer evidence in support of his claims. See id. at 249 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). Consequently, the Court may not grant a motion to dismiss for failure to state a claim "unless it appears beyond doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also, Hicks v. Small, 69 F.3d 967, 969 (9th Cir.1995). The liberal rules of notice pleading set forth in the Federal Rules of Civil Procedure do not require a plaintiff to set out in detail the facts supporting his claim. See Yamaguchi v. United States Dep't of the Air Farce, 109 F.3d 1475, 1481 (9th Cir.1997) (quoting Conley v. Gibson, 355 U.S. at 47, 78 S.Ct. 99). All the Rules require is a "short and plain statement" that adequately gives the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Id. (citations and internal quotations omitted). Therefore, a plaintiff merely must plead sufficiently to "establish a basis for judgment against the defendant." Id. (citation omitted). Further, a claim is sufficient if it shows that the plaintiff is entitled to any relief which the court can grant, even if the complaint asserts the wrong legal theory or asks for improper relief. See United States v. Howell, 318 F.2d 162, 166 (9th Cir.1963). IV. DISCUSSION A. Background of Natural Gas Regulation Under the Natural Gas Act ("NGA"), 15 U.S.C. §§ 717 et seq., FERC has the power to regulate "prices pipelines paid at the wellhead and the prices which pipelines could charge at the end-point." Id. (citing Assoc. Gas Distrib v. FERC, 824 F.2d 981, 993-94 (D.C.Cir.1987.)) The NGA, however did not extend to state-regulated monopoly arrangements to local customers. As the Supreme Court explained in General Motors Corporation v. Tracy, Congress did not intend to regulate all natural gas sales, with the NGA's passage: When federal regulation of the natural gas industry finally began in 1938, Congress, too, clearly recognized the value of such state-regulated monopoly arrangements for the sale and distribution of natural gas directly to local consumers. Thus, § 1(b) of the NGA, 15 U.S.C. § 717(b), explicitly exempted "local distribution of natural gas" from federal regulation, even as the NGA authorized the Federal Power Commission (FPC) to begin regulating interstate pipelines. Congress's purpose in enacting the NGA was to fill the regulatory void created by the Court's earlier decisions prohibiting States from regulating interstate transportation and sales for resale of natural gas, while at the same time leaving undisturbed the recognized power of the States to regulate all in-state gas sales directly to consumers. Thus, the NGA "was drawn with meticulous regard for the continued exercise of state power, not to handicap or dilute it in any way;" "the scheme was one of cooperative action between federal and state agencies" to "protect consumers against exploitation at the hands of natural gas companies;" and "Congress" action . . . was an unequivocal recognition of the vital interests *1062 of the states and their people, consumers and industry alike, in the regulation of rates and service. . . . 519 U.S. 278, 291-92, 117 S.Ct. 811, 136 L.Ed.2d 761 (1997) (citing Panhandle Eastern Pipe Line Co. v. Pub. Serv. Comm'n of Ind., 332 U.S. 507, 516-522, 68 S.Ct. 190, 92 L.Ed. 128 (1947)). Congress began deregulating the natural gas industry with the passage of the Natural Gas Policy Act ("NGPA"), 15 U.S.C. § 3301-3432. The NGPA deregulated natural gas well-head[5] prices, and notably, first sales of natural gas. 15 U.S.C. § 3431(a); Order 644, 68 Fed.Reg. 66323. FERC explained the deregulation of first sales in Order 644: Under the NGPA, first sales of natural gas are defined as any sale to an interstate or intrastate pipeline, LDC ["local distribution company"] or retail customer, or any sale in the chain of transactions prior to a sale to an interstate or intrastate pipeline or LDC or retail customer. Once such a sale is executed and the gas is in the possession of a pipeline, LDC, or retail customer, the chain is broken, and no subsequent sale, whether the sale is by the pipeline, or LDC, or by a subsequent purchaser of gas that has passed through the hands of a pipeline or LDC, can qualify under the general rule as a first sale of natural gas.[6] Id. Following the NGPA's passage, FERC issued Order 436. Tenneco Gas, 969, F.2d at 1193; Regulation of Natural Gas Pipelines After Partial Wellhead Decontrol, 50 Fed.Reg. 42408 (codified at 18 C.F.R. pt. 2, 157, 250, 284, 375, 381) ("Order 436"). In Order 436, FERC made several significant changes in the regulation of natural gas. FERC modified pipeline rate structures to permit the pipelines to recover the cost of their service. Additionally, FERC issued a clear statement of discrimination forbidding pipelines to discriminate between basis cost regarding their own gas and gas owned by other shippers. Finally FERC required pipelines to sell their capacity on a first-come, first-serve basis to any shipper, once that pipeline had received authorization from FERC to conduct open-access transportation. Tenneco Gas, 969 F.2d at 1193-94. One of the principal devices FERC chose to carry out the open access program is the blanket transportation program. Order 436, 50 Fed.Reg. at 42410. *1063 Under the blanket transportation program, a pipeline is authorized, under FERC's authority conferred by section 7 of the NGA, to transport natural gas on a generic basis and need not return to FERC time and again when it desires to alter some of its services. Id. However, should a pipeline choose to avail itself of this "blanket" permission to provide transportation services, it must agree to establish itself as an open access carrier. Id. In 1992, FERC culminated the deregulation of the natural gas market with FERC Order 636, "which required all interstate pipelines to `unbundle' their transportation services from their own natural gas sales and to provide common carriage service to buyers from other sources that wished to ship gas." Tracy, 519 U.S. at 284, 117 S.Ct. 811; Order 636, 57 Fed.Reg. 13267. Order 636 "issue[d] blanket sales certificates to pipelines so that they [could] offer unbundled firm and interruptible sales services at market-based rates." Order 636, 57 Fed.Reg. at 13270. In Order 636, FERC stated: [T]he Commission believes that all segments of the natural gas industry are unduly disadvantaged by the current regulatory structure of the industry. The Commission must, therefore act under NGA section 5 to determine the just and reasonable, "rule, regulation, practice (and) contract(s)" to be "observed and in force." Id. at 13277 (quoting NGA, 15 U.S.C). Thus, at the time of the alleged misconduct at issue in this suit, the natural gas industry was largely deregulated. Final Report on Price Manipulation in W. Markets: Fact-Finding Investigation of Potential Manipulation of Electric and Natural Gas Prices, Docket No. PA02-2-00, II-61 (Mar.2003). As this Court has previously noted, "[f]rom the time of the deregulation of the natural gas industry until after the California energy crisis, FERC regulation did not provide or enforce explicit guidelines or prohibitions regarding any of the conduct alleged in the Complaints." In re: W. States Wholesale Natural Gas Antitrust Litig., 368 F.Supp.2d 1110 (D.Nev.2005) (citing Price Manipulation in W. Markets, Docket No. PA02-2-000 at ES-6). However, although deregulated, FERC retained the right under the NGA to determine whether rates in the natural gas market were just and reasonable. Order 636, 57 Fed.Reg. at 13277; NGA, 15 U.S.C. § 717. B. Claims 1 through 5 Defendants move this Court to dismiss Plaintiffs' first through fifth claims for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Defendants argue two alternative theories bar Plaintiffs' claims. First, Defendants argue the filed rate doctrine bars Plaintiffs' claims. Defendants claim that the monetary damages and injunctive relief Plaintiffs seek in this case would require the Court to speculate upon what rates would have been charged in the natural gas market absent the Defendants' alleged misconduct, thereby usurping a power Congress specifically delegated to FERC under the NGA. Defendants further argue that Plaintiffs' status as end-run users does not affect the filed rate doctrine. Defendants argue that even if the transactions in which Plaintiffs engaged were not within FERC's jurisdiction, the relief requested would require the Court to consider the reasonableness of interstate transportation rates, therefore intruding on FERC's jurisdiction. Alternatively, Defendants contend that Plaintiffs' state law claims are barred by the doctrine of field preemption. Defendants insist that Congress intended FERC to occupy the entire regulatory field of natural gas, and therefore Plaintiffs' state law claims are barred as a matter of law. *1064 Plaintiffs respond that neither the filed rate doctrine, nor the theory of field preemption bar Plaintiffs' claims one through five. First, Plaintiffs argue that as end-run users of natural gas, the filed rate doctrine does not bar their claims. Specifically, Plaintiffs contend that FERC does not regulate first sales, including sales to end users, and therefore the rates which Plaintiffs challenge are not within FERC's jurisdiction and the filed rate doctrine does not apply. However, Plaintiffs maintain that if the first sale exclusion is inapplicable, the filed rate doctrine still does not bar their claims because FERC did not have the power to regulate the natural gas industry at the time of the alleged misconduct. Additionally, Plaintiffs argue that even if FERC had the power to regulate the natural gas industry, it chose not to. Therefore, the rates were not filed with FERC and the filed rate doctrine does not apply. Finally, Plaintiffs argue that as a matter of policy, FERC's failure to regulate Defendants' alleged misconduct compels the application of state-based anti-trust laws. Plaintiffs further contend that as masters of their complaint, they have established that they do not intend to prove damages by assuming hypothetical rates contrary to rates approved or authorized by FERC. Specifically, Plaintiffs state: Plaintiffs are the masters of their own damage theories, and their unequivocal disclaimer of reliance on any hypothetical just or reasonable rate neutralizes the Court's key concern in Western States III. Consistently with the market-based pricing system prescribed by the federal natural gas statutes, Plaintiffs will establish that the prices defendants would have charged in the absence of their collusive conduct would have been lower than those actually charged. (Pls.' Opp'n at 31.) Plaintiffs argue that the proposed calculation would not require the Court to determine a just and reasonable rate per se, but rather, "[t]he trier of fact will only be asked to consider what prices would have resulted in a competitive market untainted by collusion." (Id.) The NGA charges FERC with the statutory authority of ensuring all rates charged for the interstate sale of natural gas be just and reasonable. Section 717c(a) of the NGA provides: All rates and charges made, demanded, or received by any natural-gas company for or in connection with the transportation or sale of natural gas subject to the jurisdiction of the Commission, and all rules and regulations affecting or pertaining to such rates or charges, shall be just and reasonable, and any such rate or charge that is not just and reasonable is declared to be unlawful. 15 U.S.C. § 717c(a). In interpreting the scope of FERC's power under the NGA, the Supreme Court has held that, "[t]he authority to decide whether the rates are reasonable is vested by § 4 of the Act solely in the Commission." Ark. La. Gas Co. v. Hall, 453 U.S. 571, 573, 101 S.Ct. 2925, 69 L.Ed.2d 856 (1981) (citing FPC v. Hope Natural Gas Co., 320 U.S. 591, 611, 64 S.Ct. 281, 88 L.Ed. 333 (1944)). "The `filed rate doctrine' prohibits a federally regulated seller of natural gas from charging rates higher than those filed with the Federal Energy Regulatory Commission pursuant to the Natural Gas Act. . . ." Ark. La. Gas Co., 453 U.S. at 573, 101 S.Ct. 2925. Underlying the filed rate doctrine, "which forbids a regulated entity to charge rates for its services other than those properly filed with the appropriate federal regulatory authority," are two basic principles. First, "no court may substitute its own judgment on reasonableness for the judgment of the Commission." Id. at 576, 101 S.Ct. 2925 (citing FPC, 320 U.S. at 611, 64 S.Ct. 281). Second, the *1065 authority to decide whether rates are reasonable is vested solely in FERC. Id. (citing FPC, 320 U.S. at 611, 64 S.Ct. 281). "In sum, the Act bars a regulated seller of natural gas from collecting a rate other than the one filed with the Commission and prevents the Commission itself from imposing a rate increase for gas already sold." Id. at 578, 101 S.Ct. 2925. The filed rate doctrine extends to the retroactive award of damages under state law. Id. at 580, 101 S.Ct. 2925. As the Supreme Court held in Ark. La. Gas Co.: Congress here has granted exclusive authority over rate regulation to the Commission. In so doing, Congress withheld the authority to grant retroactive rate increases or to permit collection of a rate other than the one on filed. Id. The United States Court of Appeals for the Ninth Circuit has noted that "[t]he doctrine applies to rates charged by railroads, natural gas companies, and other interstate operators over whom federal agencies have exclusive power to set rates." Transmission Agency of N. Cal. v. Sierra Pac. Power Co., 295 F.3d 918, 929 (9th Cir.2002). The filed rate doctrine applies both to federal antitrust actions and to state law causes of action relating to rates established by federal agencies. To permit recovery under state law would allow a state court (or a federal court applying state law) to undermine the authority of a federal agency and would impermissibly contravene the Supremacy Clause. County of Stanislaus v. Pac. Gas and Elec. Co., 114 F.3d 858, 863 (9th Cir.1997) (citing Ark. La. Gas, 453 U.S. at 580, 101 S.Ct. 2925). In Stanislaus, the plaintiffs, consumers of natural gas, sued the defendant, a public utility company, based on three types of antitrust claims: price fixing, market preclusion, and state antitrust claims. Id. The Ninth Circuit held that because FERC reviewed the price set between the plaintiffs and the defendant, the filed rate doctrine barred all claims in the case. Id. Specifically, the filed rate doctrine barred the calculation of damages because the Court would have to decide what the rate would have been absent the alleged misconduct. Id. [A] claim for damages based on a filed rate would be too speculative, because it: "would require a showing that a hypothetical lower rate should and would have been adopted by [FERC]. Whether or not the agency would have actually approved a different rate was a question best left to the agency itself, rather than the courts." Id. (quoting Cost Mgmt. Servs. v. Wash. Natural Gas Co., 99 F.3d 937, 944 (9th Cir.1996)). In In re: Western States Wholesale Natural Gas Antitrust Litigation, 368 F.Supp.2d 1110 (D.Nev.2005), this Court recently addressed in another context the factual and legal background giving rise to this case. In that case, Plaintiff Texas-Ohio Energy Inc. ("Texas-Ohio") was a Texas corporation who "purchased natural gas in and/or for resale in California." Although Texas-Ohio was not itself an end-run purchaser of natural gas, it purported to represent both end-run and wholesale natural gas purchasers. Texas-Ohio brought Sherman Act and unfair competition claims against gas suppliers, based on alleged price manipulation, of which much the same behavior is alleged in the current matter. Id. at 1113. This Court held that the filed rate doctrine barred Plaintiffs' claims. Id. at 1116. Specifically, [t]he determination of damages as requested by Texas-Ohio would require this Court to speculate upon what rates would have been charged in the natural gas market absent Defendants' alleged misconduct by assuming a hypothetical *1066 rate in violation of the filed rate doctrine. Id. This Court did not, however, address the central issue presented by this case: whether the filed rate doctrine bars the claims of both wholesale gas purchasers and end-run users of natural gas. In Texas-Ohio, this Court declined to address whether the filed rate doctrine would bar end-run consumers' claims because in Texas-Ohio, the named plaintiff was not an end-run user, but rather purported to represent a class which would include end-run users. The class in that case had not yet been certified. As a result, this Court declined to decide a question not before it, as doing so would amount to rendering an impermissible advisory opinion. In re MacNeil, 907 F.2d 903, 904 (9th Cir.1990). Whether the filed rate doctrine bars the claims of end-run users of natural gas appears to be a question of first impression in the Ninth Circuit. Indeed, a review of relevant case law indicates that no federal appellate court has addressed the specific issue now before this Court. The only court in the Ninth Circuit to address this particular issue is the United States District Court for the Eastern District of California in the recent decision of E & J Gallo Winery v. EnCana Energy Services, 2005 WL 2435900 (E.D.Cal. Sept. 30, 2005). In Gallo, the plaintiffs, consumers of natural gas, sued the defendants alleging that they engaged in anti-competitive behavior in the natural gas market in violation of state and federal law. Id. The defendants moved the Court to dismiss the plaintiffs' claims under Federal Rule of Civil Procedure 12(b)(6), arguing that either the plaintiffs' claims were preempted or that the filed rate doctrine barred the plaintiffs' claims. Id. at *3. The Eastern District of California held that the filed rate doctrine did not bar the plaintiffs' claims nor were the plaintiffs' claims preempted by federal law, and therefore the court denied the defendants' motion to dismiss. The court held that the case law involving the filed rate doctrine compelled a "three-step inquiry to determine whether the filed rate doctrine applies in a give case. . . ." Id. at *14. The three-step inquiry suggested by the Eastern District is as follows: First, the court must determine whether the action directly challenges the fairness of a rate paid or a tariff that has been filed. The second inquiry is whether the sales that are the subject of the action are jurisdictional; that is, whether the sales were wholesale sales in interstate commerce. If the first and second questions are answered affirmatively, the inquiry is essentially complete since only minimal exercise of regulatory control is sufficient to place the transaction within exclusive FERC jurisdiction. However, if the sale giving rise to the action is not jurisdictional; that is, it is a retail or intrastate sale, then the court must make a third inquiry to determine if the retail rate paid is pegged specifically to a rate or tariff that was filed with FERC and was either prospectively or retrospectively approved by FERC such that the court, in order to grant relief, must make a determination of the fairness of a wholesale rate or tariff. Id. (internal citations omitted). The court went on to explain the third part of the test, stating that it "focuses on the limited extent of FERC's jurisdiction over rate-setting." Id. (citing Carnation Co. v. Pac. Westbound Conference, 383 U.S. 213, 383 U.S. 932, 86 S.Ct. 781, 15 L.Ed.2d 709 (1966)). The filed rate doctrine will not apply where the defendant wishing to invoke the doctrine in the context of a dispute arising out of non-jurisdictional sales of *1067 natural gas cannot point with some precision to some rate or tariff that has been filed by FERC that is directly implicated by the plaintiffs' claim for relief. Id. at *15. Gallo's rationale is under-scored by the courts' comments with regard federal preemption and the filed rate doctrine: Since the filed rate doctrine applies to state law actions as federal preemption under the Supremacy Clause, invocation of preemption where the issue is whether a plaintiffs' claims interfere with FERC-determined tariffs or rates, is a mere repetition of the filed rate doctrine argument. Id. at *10. The Court in Gallo considered the central issue as "the extent of FERC's jurisdiction with respect to retail sales of natural gas." Id. at *20 (emphasis in original). According to the Gallo Court, "the validity of Defendants' argument turns on Defendants' contention that it does not matter that the sales to Gallo were retail sales and that the rates charged, although retail rates, cannot be examined for fairness without necessarily making prohibited inquiries into rates that are wholly within FERC jurisdiction." Id. at *17. Because the first sales at the center of the complaint were not within FERC's jurisdiction, the Gallo court held the filed rate doctrine inapplicable. Id. at *18. Specifically, the court stated, "[i]n this court's opinion, the difference between the legal status of the retail purchaser and the wholesale purchaser in their relationship to FERC oversight makes all the difference with respect to the filed rate doctrine." Id. at *22. The Gallo court found persuasive the plaintiffs' arguments that to prove damages, it would not be necessary to determine what rates would have been in the wholesale gas market. Id. at *21. The Court held that to determine damages, it would be compelled to observe the privately maintained, privately published, for profit indices, none of which are regulated by FERC in a deregulated market context, and therefore doing so does not violate the filed rate doctrine. Id. Plaintiffs urge this Court to follow Gallo in the present matter as well as in reconsidering this Court's Texas-Ohio order. The damages Plaintiffs seek require the Court to make a determination as to what a just and reasonable rate would have been in the wholesale natural gas market, thereby usurping a function Congress has explicitly assigned to FERC. See Ark. La. Gas Co., 453 U.S. at 582, 101 S.Ct. 2925; Texas-Ohio, 368 F.Supp.2d at 1116. In Ark. La. Gas Co., the Supreme Court stated that it would "undermine the congressional scheme of uniform rate regulation to allow a state court to award as damages a rate never filed with the Commission and thus never found to be reasonable within the meaning of the Act." 453 U.S. at 579, 101 S.Ct. 2925. The same is true in this case. Although the transactional rates at issue are for the first sales of natural gas, and thus outside of FERC's jurisdiction, the misconduct alleged in Plaintiffs' amended complaint centers on misconduct in the wholesale gas market which is within FERC's exclusive jurisdiction. Plaintiffs' damage calculation would require the Court to consider what the alleged misconduct's effect was on rates in the wholesale natural gas market, an action specifically prohibited under the filed rate doctrine. Plaintiffs nevertheless argue the filed rate doctrine does not apply in this case because (1) FERC has no jurisdiction over end run sales, (2) FERC did not regulate the natural gas industry during the relevant time, (3) the differences between the natural gas and electricity markets distinguishes *1068 this case from Ninth Circuit authority applying the filed rate doctrine, and (4) the filed rate doctrine does not apply to market based rates. First, Plaintiffs argue that FERC does not regulate first sales of natural gas, including sales to end users such as Plaintiffs, and therefore the filed rate doctrine does not bar their claims. Plaintiffs urge this Court to follow Gallo in this regard, wherein the court held that where FERC does not have jurisdiction over rates, the filed rate doctrine is inapplicable. Gallo, 2005 WL 2435900 at *15. Plaintiffs further state that this Court's opinion in Texas-Ohio was "premised on the applicability of the FERC regulation over the transactions in question." (Id. at 4.) Defendants respond that the filed rate doctrine applies to wholesale gas transactions and first sale transaction alike, as long as the damage calculation requires the court to determine rates governed by FERC. The United States Court of Appeals for the Ninth Circuit has not predicated its application of the filed rate doctrine upon FERC's jurisdiction over the transaction at issue. The critical factor in the filed rate doctrine's application is the nature of the damages the plaintiff sought. For example, in Transmission Agency of Northern California v. Sierra Pacific Power Company, the plaintiff alleged breach of contract, tort, and property claims. 295 F.3d 918, 922 (9th Cir.2002) ("TANC"). The Ninth Circuit held that the filed rate doctrine barred the plaintiffs claims because the damage calculations would require the court to "assume how FERC would allocate access to interstate transmission capacity . . ." thereby usurping FERC's delegated jurisdiction. Id. at 931. That the filed rate doctrine's application left the plaintiffs claims unredressed did not affect the outcome because "[a]lthough this resolution may leave TANC's state law claims unredressed, such a circumstance is not an unlikely result of preemption." Id. at 931-32 (citing Ark. La. Gas Co. v. Hall, 453 U.S. at 579, 101 S.Ct. 2925). In Public Utility District No. 1 of Grays Harbor County Washington v. IDACORP, Inc. the Ninth Circuit held that the filed rate doctrine barred the plaintiffs breach of contract claims. 379 F.3d 641, 650-51 (9th Cir.2004). Specifically, the Ninth Circuit held that "[t]he relief sought by [plaintiff] would require the court to set damages by assuming a hypothetical rate, the `fair value' in violation of the filed rate doctrine." Id. (citing TANC, 295 F.3d at 933). Likewise, in Public Utility District Number 1 of Snohomish County v. Dynegy Power Marketing, Inc., the Ninth Circuit held that the filed rate doctrine barred the plaintiff's state law based antitrust and consumer protection laws because the claims would require the Court to determine what electricity rates would have been in a competitive market absent the alleged misconduct. 384 F.3d 756, 761 (9th Cir.2004). The Ninth Circuit went on to state that "[t]his is the same determination as the `fair price' determination that we held was barred by preemption principles in Grays Harbor." Id. In TANC, Snohomish, and Grays Harbor, the Ninth Circuit did not predicate the application of the filed rate doctrine on whether FERC had jurisdiction over the transaction at issue in the claims, but whether the relief the plaintiff sought required the Court to question rates or allocations within FERC's exclusive jurisdiction. Whether the filed rate doctrine is applicable here depends not on whether FERC has jurisdiction over first sales, which it does not, but whether the damages Plaintiffs seek require the Court to determine whether rates on the interstate gas market were reasonable. Plaintiffs must show damages for each of their claims one *1069 through five. See McGlinchy v. Shell Chem. Co., 845 F.2d 802, 811 (9th Cir.1988) (Sherman Act); Quelimane Co., Inc. v. Stewart Title Guar. Co., 19 Cal.4th 26, 77 Cal.Rptr.2d 709, 960 P.2d 513, 525 (1998) (California Unfair Competition Laws); Otworth v. S. Pac. Transp. Co., 166 Cal. App.3d 452, 212 Cal.Rptr. 743 (1985) (unjust enrichment). Plaintiffs also seek restitution (claim 4) and the imposition of a constructive trust (claim 5). With regard to injury and damages, Plaintiffs allege that they "were deprived of the benefits of freely set, competitive prices for natural gas." (Compl. at 60.) Specifying damages, Plaintiffs state: Defendants unlawful conduct was the proximate cause of the artificial inflation of prices in the market for natural gas. On information and belief, such effect on the market price for natural gas was necessary, intended and foreseeable to Defendants when they acted unlawfully. As a direct and proximate result of Defendants' unlawful conduct, Plaintiffs and the Class suffered damages and were injured in their business and property by purchasing natural gas at artificially high prices. Id. at 61. The unlawful conduct alleged by Plaintiffs include: a. raising, fixing, stabilizing, and maintaining the price of natural in California; b. engaging in wash trades in order to cause the price of natural gas to increase; c. reporting false prices to the natural gas indices; and d. discussing, exchanging, and decided among themselves, and acting in agreement to raise the price of natural gas sold in the State of California. Id. at 61-62. The alleged anti-competitive behavior includes, "fixing prices on the spot market for natural gas, engaging in wash trades, false reporting to privately-owned price indices, netting, swaps, and churning." Id. at 17. The nature of the damages sought would require this Court to determine the just and reasonable price of natural gas absent the alleged misconduct which forms the basis of Plaintiffs' Complaint, and therefore would be a violation of the filed rate doctrine. Plaintiffs further argue that even if the first sales exception is inapplicable, FERC did not regulate the natural gas industry at the time of the alleged misconduct, and therefore the filed rate doctrine does not apply. Defendants respond that in a market-based system FERC retained its duty to assure that rates in the market are just and reasonable under the NGA, and therefore the filed rate doctrine bars Plaintiffs' claims. This Court already has rejected Plaintiffs' argument. See Texas-Ohio, 368 F.Supp.2d at 1116-17. Relying on Grays Harbor, this Court held in Texas-Ohio that the filed rate doctrine applies to the natural gas market, despite the move to market based rates, because FERC retained the exclusive authority to determine whether wholesale natural gas rates are just and reasonable. Id. at 1117. Plaintiffs' next argument that Grays Harbor and its progeny are distinguishable from the present case because that particular line of cases deals with the electricity market, and not the natural gas market. Plaintiffs maintain that in the electricity market, unlike the natural gas market, FERC retained significant control of the market thereby justifying federal preemption of state laws. Plaintiffs cite to this Court's prior order, In re Western States Wholesale Natural Gas Antitrust Litigation, 346 F.Supp.2d 1123 (D.Nev. 2004), for the proposition that the differences between the natural gas market and the electricity market make the recent Ninth Circuit decisions inapplicable to the present case. Plaintiffs argue that the *1070 Gallo court correctly held that the deregulation of the natural gas market renders the filed rate doctrine inapplicable. Gallo 2005 WL 2435900 at *21. Gallo concludes that because FERC did not set, approve, or regulate the rates published in the private indices, relying on those rates to calculate damages would not be an impermissible exercise in violation of the filed rate doctrine. Id. This Court previously has recognized the distinct differences between the natural gas market and the electricity market. See In re W. States Wholesale Gas Antitrust Litig., 346 F.Supp.2d at 1139. Deregulation in the electricity market occurred in a substantially different manner from the deregulation of the natural gas market, although the deregulated structure of both markets proved vulnerable to price fluctuation spawning the 2000 energy crisis. Prior to the energy crisis that began in 2000, California restructured the generation, transmission, sale, and distribution of electricity to shift from a regulatory system to a market driven system of energy sales. Snohomish, 384 F.3d at 758-59. The result of the restructuring was the passage of Assembly Bill 1890 by the California legislature. Id. at 758. Bill 1890 provided for the creation of two non-governmental corporations, the Independent System Operator ("ISO") and the California Power Exchange ("PX"). Id. Both the ISO and the PX are organized under California law, but are governed by FERC. Id. FERC did not govern the natural gas market with a similar structure prior to the 2000 energy crisis. FERC, Final Report on Price Manipulation in W. Markets: Fact-Finding Investigation of Potential Manipulation of Elec. and Natural Gas Prices, Docket No. PA02-2-00, II-61 (Mar.2003). The deregulation of the natural gas industry, which began with the passage of the NGPA, and culminated with the promulgation of FERC Order 636, resulted in the complete unbundling of transportation and natural gas, the issuance of blanket sales certificates to pipelines, and the total deregulation of first sales of natural gas. Order 636, 57 Fed.Reg. at 13270. As this Court explained in In re Western States Wholesale Gas Antitrust Litigation, "[f]rom the time of the deregulation of the natural gas industry until after the California energy crisis, FERC regulation did not provide or enforce explicit guidelines or prohibitions regarding any of the conduct alleged in the Complaints." 346 F.Supp.2d at 1139 (citing Price Manipulation in W. Markets, Docket No. PA02-2-000 at ES-6 ("Reliant's churning did not violate the blanket certificate under which it sold gas because Section 284.402 of the regulations contains no explicit guidelines or prohibitions.")). These differences do not compel a different result in this case. Although the electricity and natural gas markets were subject to significantly different regulatory structures, at all relevant times FERC retained the statutory authority to ensure that all rates charged be just and reasonable in both markets. See 15 U.S.C. § 717c(a); 16 U.S.C. § 824e(a). In In re Western States Wholesale Gas Antitrust Litigation, this Court considered whether the NGA vests the federal courts with exclusive jurisdiction over lawsuits involving the natural gas industry, thereby justifying removal to federal court. 346 F.Supp.2d at 1126. This Court concluded that it did not have original jurisdiction under the NGA, and therefore there was no basis for removal. Id. at 1130-31. This Court further held that in enacting the NGA, Congress did not intend to preempt all state action, and therefore remand was appropriate. Id. at 1133. As the Court explained, it did not consider the filed rate doctrine: *1071 Unlike the doctrine of complete preemption, which may serve as a basis for federal jurisdiction, field preemption does not provide a federal cause of action sufficient to support removal. Even if the field preemption, conflict preemption, or the filed rate doctrine may be a central defense to this action, as federal defenses they are insufficient to support removal jurisdiction. Id. at 1137 (citing Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987)) (internal citations omitted). Although this Court previously found FERC did not exercise its jurisdiction to establish complete or conflict preemption, that holding does not preclude the application of the filed rate doctrine. As in Grays Harbor, Snohomish, and Texas-Ohio, the damages Plaintiffs seek require the Court to make a determination as to what a just or reasonable rate would have been in the wholesale natural gas market, thereby usurping a function that Congress explicitly has assigned to FERC. See Texas-Ohio, 368 F.Supp.2d at 1116; Ark. La. Gas Co., 453 U.S. at 582, 101 S.Ct. 2925. Plaintiffs' claims one through five are based on allegations that Defendants manipulated the wholesale gas market through a series of alleged misconduct including wash trades, churning actions, and manipulation of private price indices. (Am.Compl.) Even if the rates are filed on private indices, the Court still would have to determine which rate filed on the private index is a just and reasonable rate in the wholesale natural gas market, an action reserved for FERC under the NGA. See 15 U.S.C. § 717c(a); see also Grays Harbor, 379 F.3d at 651; Ark. La. Gas Co., 453 U.S. at 579, 101 S.Ct. 2925. Furthermore, a review of Ninth Circuit case law indicates that Plaintiffs' assertion that a rate may determined using a market-based damage analysis without violating the filed rate doctrine is incorrect. A component of the rates at issue are wholesale natural gas rates. To measure damages, the Court would be required to assess the corrosive effects of the alleged misconduct in the wholesale natural gas market, and consider what a just and reasonable rate would have been absent those corrosive effects-actions specifically prohibited by the filed rate doctrine. Even if it is market-based analysis, it is a market wholly within FERC's jurisdiction with regard to rate determination. At the most basic level, The Court would be required to consider what is and what is not a just rate, thereby usurping a delegated FERC function. Finally, this Court has already rejected Plaintiffs' argument that the filed rate doctrine applies only when a filed rate exists: The essential purpose of the filed rate doctrine is to protect the jurisdiction of a regulatory body that Congress has designated to determine whether rates charged, such as those in the natural gas market, are just and reasonable. Under the Natural Gas Act, FERC retains statutory authority over wholesale natural gas prices and therefore the filed rate doctrine applies even though FERC, in exercising its authority, chose to move toward a market-based system. Texas-Ohio, 368 F.Supp.2d at 1116. As the Ninth Circuit Court of Appeals stated in Grays Harbor, "while market-based rates may not have historically been the type of rate envisioned by the filed rate doctrine, we conclude that they do not fall outside the purview of the doctrine." 379 F.3d at 651. Thus, Grays Harbor and its progeny demonstrate the filed rate doctrine applies to market-based rates. For these reasons, this Court will grant Defendants's motion to dismiss Plaintiffs' claims for violation of the Sherman Act (claim 1), violation of the Cartwright Act (claim 2), violation of the California Business *1072 & Professions Code (claim 3), unjust enrichment (claim 4), and a constructive trust (claim 5). C. Claims 6 and 7 Claim six of Plaintiffs' Amended Complaint alleges the El Paso Defendants and the Sempra Defendants entered into a conspiracy in the late 1990s to restrict natural gas pipeline capacity, thereby artificially inflating natural gas prices. (Am. Compl. at 42-43.) Specifically, Plaintiffs allege that senior executives representing the El Paso and Sempra Defendants met in a hotel room in Phoenix, Arizona on September 26, 1996, at which time they allegedly agreed to not compete in the natural gas market. (Id. at 43-44.) Plaintiffs allege that Defendants agreed to not build competitive pipelines, and to not oppose potentially anti-competitive mergers. (Id. at 44-45.) Plaintiffs claim that these action violated section 1 of the Sherman Act. (Id. at 64-65.) Plaintiffs' seventh claim for relief alleges the El Paso Defendants violated section 1 of the Sherman Act. (Id. at 65-66.) Specifically, Plaintiffs allege Defendants entered into a bid-rigging scheme to reduce competition in the natural gas market. Plaintiffs request relief for claims six and seven as follows: P. Determining and declaring that this action may be maintained as a class action on behalf of the Class; Q. Determining and declaring that Defendants have engaged in unlawful contracts, combinations, and/or conspiracies constituting an unreasonable restraint of trade in violation of Section 1 of the Sherman Act; R. Determining and declaring that each of the Defendants, their successors, assigns, subsidiaries, and transferees, and their respective officers, directors, agents, and employees, and all other persons acting or claiming to act on behalf of them or in concert with them, be perpetually enjoined and restrained from in any manner, directly or indirectly, continuing, maintaining, or renewing the combinations and conspiracies alleged herein; S. Awarding treble the amount of actual damages determined to have been sustained by Plaintiffs and the Class as a result of the conduct of Defendants complained of herein as provided by law, and that judgment be entered against each Defendant for the amount so determined; T. Awarding to Plaintiffs and the Class pre- and post-judgement interest to the extent allowed by law; U. Awarding to Plaintiffs and the Class their attorneys' fees; and V. Awarding to Plaintiffs and the Class costs of suit and such other and further relief as the Court may deem just and proper under the circumstances. (Am. Compl. at 68.) Defendants move this Court to grant summary judgment as to Plaintiffs' sixth and seventh claims. As with Plaintiffs' claims one through five, Defendants argue that the filed rate doctrine bars Plaintiffs' claims, or alternatively, federal law preempts Plaintiffs' claims. Specifically, the El Paso Defendants argue that although Plaintiffs' claims are based on conduct different from that plead in claims one through five, the filed rate doctrine also bars these claims. Specifically, Defendants argue the filed rate doctrine's application is dependant not upon the type of conduct alleged, but on the nature of the damages sought. Defendants thus argue the filed rate doctrine bars Plaintiffs' sixth and seventh claims, because they would require the Court to determine what rates in the wholesale natural gas market would have been absent Defendants' alleged misconduct. *1073 Plaintiffs' respond that the filed rate doctrine does not bar Plaintiffs' claims, nor does federal law preempt Plaintiffs' claims. Plaintiffs do not dispute they would have to do the same damage calculation for claims six and seven as they would for claims one through five. In their briefing, Plaintiffs, treat all seven claims as if they should be analyzed the same with regard to the filed rate doctrine. With regard to Plaintiffs' sixth claim, Plaintiffs allege that, "[t]he activities set forth above cause injury to Plaintiffs and the members of the Class by reducing the supply of natural gas and causing prices to be higher than such prices would have been in the absence of those activities." (Am. Compl. at 65.) With regard to Plaintiffs' seventh claim, Plaintiffs allege the Defendants alleged misconduct has "caused injury to Plaintiffs and the members of the Class by eliminating price competition for natural gas and causing the prices to be higher than such prices would have been in the absence of those activities." (Id. at 66.) Although Plaintiffs claims six and seven are predicated on different conduct than Plaintiffs' claims one through five, Plaintiffs again seek damages, that would require this Court to ascertain what the rate of natural gas would have been absent Defendants' alleged misconduct, an action explicitly reserved for FERC by Congress. Therefore, the Court's analysis with respect to Plaintiffs' claims one through five applies with equal force to Plaintiffs' sixth and seventh claims, and the filed rate doctrine bars both claims. V. CONCLUSION IT IS THEREFORE ORDERED that Defendants' Motion to Dismiss the First Through Fifth Claims for Relief and Memorandum in Support of Motion to Dismiss (Doc. # 206) is hereby GRANTED, and Judgment is hereby entered in favor of Defendants and against Plaintiffs. IT IS FURTHER ORDERED that the El Paso Defendants' (1) Joinder in Other Defendants' Motion to Dismiss Second Consolidated Amended Class Action Complaint and (2) Motion to Dismiss Sixth and Seventh Claims for Relief (Doc. # 207) and Defendants San Diego Gas and Electric Company, Sempra Energy, and Southern California Gas Company's (1) Joinder in Other Defendants' Motion to Dismiss Second Consolidated Amended Class Action Complaint and (2) Motion to Dismiss Sixth and Seventh Claims for Relief (Doc. # 208) are hereby GRANTED and Judgment is hereby entered in favor of Defendants and against Plaintiffs. NOTES [1] "A `wash trade' is a prearranged pair of trades of the same good between parties, resulting in no net change in ownership. It creates an illusion of a more liquid and active market and it helps bolster false trading revenue figures." Federal Energy Regulatory Commission, Commission Revoked Enron's Market-Based Rate Authority, Blanket Gas Certificates Terminated, (June 25, 2003), at http://www.ferc.gov/ press-ro om/pr-archives/2003/ 2003-2/06-25-03_enron.pdf. [2] The term "netting agreements" refers to an agreement between parties to report the sale price of a particular transaction as a whole, averaging the lowest prices and the highest prices, thus creating an appearance of an overall higher market price in natural gas. See FERC, Final Report on Price Manipulation in W. Markets: Fact-Finding Investigation of Potential Manipulation of Electric and Natural Gas Prices, No. PA02-2-00, II-7 (Mar.2003). [3] Duke Energy Trading and Marketing, L.L.C.; Duke Energy North America, L.L.C.; Aquila Merchant Services, Inc.; Centerpoint; CMS Energy Resources Management Company; Coral Energy Resources L.P.; Dynegy Holding Co.; Dynegy Marketing & Trade; Dynegy Power Marketing; EnCana Corporation; WD Energy; Reliant Energy Services, Inc.; Reliant Energy, Inc.; Sempra Energy Trading Corp.; The Williams Companies, Inc.; Williams Power Company, Inc.; Xcel Energy, Inc.; and e prime, inc. [4] Presently before this Court is Defendants' Motion to Dismiss the First Through Fifth Claims for Relief and Memorandum in Support of Motion to Dismiss (Doc. # 206) filed on July 22, 2005. Defendants El Paso Corporation, El Paso Tennessee Pipeline Company, El Paso Merchant-Gas, L.P., El Paso-Marketing, L.P., El Paso Merchant Energy Holding Company, El Paso Natural Gas Company, Mojave Pipeline Company, El Paso Mojave Pipeline Company, Mojave Pipeline Operating Company, and EPNG Mojave, Inc. ("the El Paso Defendants") filed El Paso Defendants' (1) Joinder in Other Defendants' Motion to Dismiss Second Consolidated Amended Class Action Complaint and (2) Motion to Dismiss Sixth and Seventh Claims for Relief (Doc. # 207) on July 22, 2005. Defendants San Diego Gas and Electric Company, Sempra Energy, and Southern California Gas Company filed (1) Joinder in Other Defendants' Motion to Dismiss Second Consolidated Amended Class Action Complaint and (2) Motion to Dismiss Sixth and Seventh Claims for Relief (Doc. # 208) on July 22, 2005. Plaintiffs filed a Consolidated Memorandum in Opposition to: (1) Defendant's Motion to Dismiss the First Through Fifth Claims for Relief; (2) Sempra Defendants' Joinder and Separate Motion to Dismiss the Sixth and Seventh Claims for Relief; and (3) El Paso Defendants' Joinder and Separate Motion to Dismiss the Sixth and Seventh Claims for Relief (Doc. # 214) ("Pls.' Opp'n") on August 16, 2005. Plaintiffs also filed an Addendum (Doc. # 220) ("Addendum") on August 19, 2005. Defendants filed Defendants' Reply Memorandum in Support of the Rule 12 Motion to Dismiss Fairhaven, Utility Service and Abelman Glass (Doc. # 223) on September 2, 2005, to which Defendants Sempra Energy, Southern California Gas Company, and San Diego Gas and Electricity Company filed a Joinder and Reply in Support of Motion to Dismiss Sixth Claim for Relief (Doc. # 224) on August 31, 2005. The El Paso Defendants' filed (1) Joinder in Other Defendants' Reply in Support of Motion to Dismiss Second Consolidated Amended Class action Complaint and (2) Reply in Support of Motion to Dismiss Sixth and Seventh Claims for Relief (Doc. # 225) on September 2, 2005. [5] "Wellhead sales" are defined as any sale of natural gas involving the actual transfer of the gas from seller to buyer, where the gas is at any stage of its movement from wellhead to ultimate consumption, and where the object of the sale is the eventual resale of the gas for public consumption. 73 A.L.R. Fed. 804 n. 12. [6] The NGPA defines a "first sale" as follows: (21) First Sale (A) General rule The term "first sale" means any sale of any volume of natural gas — (I) to any interstate pipeline or intrastate pipeline; (ii) to any local distribution company; (iii) to any person for use by such person; (iv) which precedes any sale described in clauses (I), (ii), or (iii); and (v) which precedes or follows any sale described in clauses (I), (ii), (iii), or (iv) and is defined by the Commission as a first sale in order to prevent circumvention of any maximum lawful price established under this chapter. (B) Certain sales not included Clauses (I), (ii), (iii), or (iv) of subparagraph (A) shall not include the sale of any volume of natural gas by any interstate pipeline, intrastate pipeline, or local distribution company, or any affiliate thereof, unless such sale is attributable to volumes of natural gas produced by such interstate pipeline, intrastate pipeline, or local distribution company, or any affiliate thereof. 15 U.S.C. § 3416(21).

233 F.Supp. 368 (1962) HOME MUTUAL FIRE INSURANCE CO. v. William J. and Mary E. HOSFELT and Dorothy Lessor. Civ. No. 8402. United States District Court D. Connecticut. April 30, 1962. *369 Gordon, Muir & Fitzgerald, William P. Aspell, Hartford, Conn., for plaintiff. Steele & Maxwell, Hartford, Conn., for defendants Wm. J. Hosfelt and Mary E. Hosfelt. Schatz, Weinstein & Seltzer, Hartford, Conn., for defendant Dorothy Lessor. BLUMENFELD, District Judge. The diversity of citizenship between the parties and the requisite jurisdictional amount in controversy to invest this court with jurisdiction under 28 U.S.C. § 1337, both exist to permit consideration of this case within the provisions of the Declaratory Judgment Act, 28 U.S.C. § 2201. In this action for a declaration of non-liability, under an Owners, Landlords and Tenants Liability Policy which provides insurance protection against liability imposed upon the named insureds having an interest in certain premises, the parties have filed a stipulation of facts which incorporates, by reference, a policy [OLT — 60771] of insurance issued on January 9, 1959 by the plaintiff company to the defendants William J. and Mary E. Hosfelt, covering their liability as owners of a two-family house in West Hartford, Connecticut. The other party defendant is Dorothy Lessor, of West Hartford, Connecticut. Dorothy Lessor has brought an action in the state court seeking damages for personal injuries alleged to have been sustained on May 13, 1959 as the result of an accident caused by plaster falling from the ceiling of the bedroom in the upstairs apartment, which she occupied as the tenant in this two-family house. The problem arises because the Hosfelts sold this house to the Maffuccis on April 30, 1959, apparently subject to the tenancy of Dorothy Lessor. (The Maffuccis have not appeared in this action and are not parties to the stipulation.) On April 30, 1959, the insurance policy was cancelled, effective as of that date, and thereafter unearned premiums in the amount of $45.64 were returned to the Hosfelts by the company. The Hosfelts seek the protection afforded by the policy, since Dorothy Lessor alleges in one count of her state court action that they were negligent in that they knew of the dangerous and defective condition of the ceiling which fell, and neither took steps to correct it nor warned their vendees, the Maffuccis, about it, knowing that she would continue to tenant the apartment. After calling attention to what they regard as the pertinent portions of the contract: "COVERAGE A — Bodily Injury Liability: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * sustained by any person, caused by accident and arising out of the hazards hereinafter defined. "DEFINITION OF HAZARDS "Division 1 — Premises — Operations: The ownership, maintenance or use of the premises, and all operations necessary or incidental thereto. "VII. POLICY PERIOD, Territory: This policy applies only to accidents which occur during the policy period within the United States of America, its territories or possessions, or Canada." they contend that there is a gap in the protection afforded, since "No portion of the policy covers the exact situation where liability arises during the policy period and injury occurs afterward * * *370 there is an ambiguity * * * which must * * * be resolved in favor of the insured." But another provision in the policy specifically makes a bridge available for that period of risk which the defendants argue is necessarily unprotectable because of Clause VII's limitation of coverage to accidents which occur during the policy period. Clause VI reads: "ALIENATED PREMISES; Such insurance as is afforded by this policy under Division 1 of the Definition of Hazards applies to premises alienated by the named insured, if the accident occurs after the named insured has relinquished possession thereof to others. This insuring agreement does not apply to premises constructed for sale by the named insured or over which the named insured has any right of control." With Clause VI present, the question is no longer whether the Hosfelts had an insurable interest after they sold the property which could have been protected, but whether they were entitled to the protection which was obtainable in spite of the cancellation of the policy and their receipt of the return of the unearned premiums before any liability to Dorothy Lessor accrued. This leads to the next question. The defendants argue that because the loosening of the plaster before it fell took place while they were still owners of the premises, "accident" should be defined as embracing the whole process of loosening and falling, and the Hosfelts are, therefore, "insured for so much of the `accident' as thus defined as took place prior to April 30, 1959." On any non-technical reading of the language "This policy applies only to accidents which occur during the policy period", the word "accident" means "accident". An accident has been defined repeatedly as "an `unlooked-for mishap or an untoward event or condition not expected'." St. John v. U. Piccolo & Co., Inc., 128 Conn. 608, 611, 25 A.2d 54 [cases cited]; Galluzzo v. The State, 111 Conn. 188, 193, 149 A. 778. That an accident may be definitely located as to time when and place where, makes its use most appropriate as the single test to determine whether liability under the policy arises within its specified period. To stretch the scope of "accident" backward in time to reach the date of the earliest beginning of any prior event which might be regarded as having a causal relation to the unlooked-for mishap would introduce ambiguity where none now exists. All insurance, whether effective so long as premiums are paid, as in health and life policies, or for a fixed period, as in fire policies, begins and ends at some point of time. While it is arguable that the liability of an insurer should attach at the time of the negligent act, the proper rule seems to be that the liability accrues when the cause of action arises. Tulare County Power Co. v. Pacific Surety Co., 43 Cal.App. 315, 185 P. 399; Export S. S. Corporation v. American Ins. Co., 3 Cir., 106 F.2d 9. It might be more desirable for an insured to have protection which indemnifies him against all liability arising from causative forces which come into being while the policy is in force, regardless of when the event which initiates liability occurs, rather than insurance which protects him from liability which accrues only within the term of the policy. This purpose can easily be carried out by a proper wording of the policy; but the wording in the policy under consideration here does not permit such a construction. The injuries which gave rise to a claim for damages against the Hosfelts were caused by an "accident" which occurred after the policy had been terminated. The policy does not apply to that claim. Judgment may be entered for the plaintiff against the defendants William J. and Mary E. Hosfelt and Dorothy Lessor, in accordance with its prayer for relief in the "WHEREFORE Clauses 1 and 2".

660 F.3d 557 (2011) Donna Marie FARRIS, Plaintiff, Appellant, v. Eric K. SHINSEKI, Secretary, Department of Veterans Affairs, Defendant, Appellee. No. 11-1080. United States Court of Appeals, First Circuit. Heard July 29, 2011. Decided November 10, 2011. *559 Jeffrey Neil Young, with whom Benjamin K. Grant and Carol J. Garvan were on brief, for appellant. *560 Evan J. Roth, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee. Before TORRUELLA and THOMPSON, Circuit Judges, and SARIS,[*] District Judge. THOMPSON, Circuit Judge. Plaintiff Donna Marie Farris ("Farris") challenges the district court's order granting summary judgment for her former employer, the Department of Veterans Affairs ("VA"). Finding no valid reason to apply an equitable exception, the district court dismissed Farris's disability discrimination complaint due to her concession that she failed to timely file a formal complaint with the Equal Employment Opportunity Commission ("EEOC"). We find that the district court did not abuse its discretion by declining to toll the limitations period and therefore affirm. I. Background We recount the facts in the light most favorable to the nonmovant, Farris. See Franceschi v. U.S. Dept. of Veterans Affairs, 514 F.3d 81, 83 (1st Cir.2008). Farris was hired by the VA as a Primary Care and Emergency Department Clinical Social Worker and POW Coordinator at its medical center in Togus, Maine on November 13, 2007.[1] Within eight months, the VA formally recognized Farris for her excellent job performance—once for an "Above and Beyond Attitude and Excellence in Customer Service" and once for providing extra assistance during a staffing shortage. On September 22, 2008, Farris suffered a work-related injury to her neck and right shoulder that resulted in a one-month absence from work. During her absence, Farris was ordered by her supervisor, James Hammond ("Hammond"), and Togus Human Resources Manager, Terry Gagne ("Gagne"), to see Bonnie Ayotte ("Ayotte"), an occupational nurse for the VA. While examining Farris, Ayotte inquired about her medical history. In addition to a pre-existing back injury, Farris informed Ayotte that she suffered from myasthenia gravis—a potentially life threatening autoimmune disorder—and scleroderma—a chronic connective tissue disease. Periodically, the latter two afflictions caused Farris to suffer from "difficulty eating, swallowing, chewing, gagging, choking, spitting up blood, and weight loss; numbness and burning in [her] feet and calves . . . tearing in [her] left eye . . . and blood in [her] stomach." Nonetheless, these symptoms did not prevent Farris from performing her job satisfactorily. Less than a month after the injury, around October 6, 2008, Farris contacted Gagne about returning to work. During this conversation, Farris informed Gagne that she was feeling better, yet he began to inquire about Farris's myasthenia gravis. Before their conversation was over, Gagne had requested the results of a Magnetic Resonance Imaging test that had been performed on Farris's throat in relation to the disorder. Approximately two weeks after their phone conversation, Gagne requested that Farris come to the VA to fill out paperwork related to a mileage reimbursement. Farris reported to work that day and, to her surprise, was directed to attend a *561 meeting with Gagne and Jeff Saren ("Saren"), a private investigator, among others. At the meeting, Saren confronted Farris with a surveillance video showing Farris, who alleged she suffered a work-related neck and shoulder injury, lifting her son's hockey bag. Saren immediately accused Farris of committing fraud. At Hammond's urging and with her physician's permission, Farris returned to work on October 22, 2008—two days later. On October 31, 2008, approximately one week after Farris returned to work, the VA placed her on administrative leave and notified her that her employment would terminate on November 12, 2008. According to the VA, the reason for the termination was that the "circumstances surrounding [Farris's] recent absence from work" caused the VA "to lose confidence in [her] ability to satisfactorily perform the duties of [her] position," because she had been "less than candid concerning [her] medical condition." Soon thereafter, Farris filed an informal complaint of disability discrimination with the VA's Equal Employment Opportunity ("EEO") counselor. She also sought redress through various other agencies.[2] Subsequently, Farris and the VA agreed to participate in mediation, but this effort proved unsuccessful. By a letter dated December 17, 2008, the VA's Office of Resolution Management ("ORM") notified Farris that it was unable to resolve her complaint and explicitly advised her that she had fifteen days from the letter's receipt to file a formal complaint with the EEOC.[3] Farris received the letter on December 18, 2008, making the fifteen-day deadline January 2, 2009. She immediately forwarded the letter to her attorney, Stephanie Mills ("Attorney Mills"), who received it on December 19, 2008. Farris also made a phone call to Attorney Mills and received an e-mail response assuring her that the complaint would be timely filed. Farris followed up with Attorney Mills on December 26, 2008 and according to Farris, was assured by a legal secretary that "Ms. Mills was aware of the need to timely file the formal complaint and was working on it." Attorney Mills was well aware of the fifteen-day timeline; nevertheless, she failed to file Farris's formal EEOC complaint until January 13, 2009—eleven days late. Accompanying the complaint was a letter from Attorney Mills acknowledging *562 the tardiness of the complaint and offering an explanation. She expressed her mistaken belief that she had in fact filed the formal complaint on January 2, 2009, stated that her office had been closed for the holidays for eight days during the fifteen-day filing period, and admitted that the complaint must have been "overlooked" in the midst of the "holiday rush." On February 18, 2009, the EEOC advised Farris that it had denied the complaint as untimely. Attorney Mills received the denial letter on February 23, 2009 and appealed it the same day. On June 22, 2009, an EEO Regional Officer rejected the appeal. Farris sought reconsideration on July 20, 2009, but was again denied. Thereafter, Farris filed a complaint in district court alleging disability discrimination. Her complaint alleged violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act, 29 U.S.C. § 701 et seq. The VA[4] moved to dismiss the complaint or, in the alternative, for summary judgment because Farris had failed to timely file her EEOC formal complaint. Farris opposed the motion, arguing that her belated filing should be equitably excused. The district court granted the VA's motion for summary judgment on January 11, 2011. This appeal followed. II. DISCUSSION A. Standard of Review As a general matter, we review an order granting summary judgment de novo. See Franceschi, 514 F.3d at 84. However, on appeal from summary judgment, as in other circumstances, we review the district court's ruling rejecting the application of equitable doctrines such as tolling for abuse of discretion, "always mindful of the `highly deferential' nature of our oversight." Abraham v. Woods Hole Oceanographic Inst., 553 F.3d 114, 119-20 (1st Cir.2009) (quoting Mr. I. v. Me. Sch. Admin. Dist. No. 55, 480 F.3d 1, 23 (1st Cir.2007)) (reviewing the district court's refusal to equitably toll the statute of limitations in a Title VII case for abuse of discretion); see also Vera v. McHugh, 622 F.3d 17, 30 (1st Cir.2010). B. The Legal Principle of Exhaustion The ADA prohibits discrimination against an otherwise qualified individual based on disability. 42 U.S.C. § 12112(a); Calero-Cerezo v. U.S. Dept. of Justice, 355 F.3d 6, 19 (1st Cir.2004). Claims of employment discrimination arising under the ADA are subject to the same remedies and procedures as those under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); 42 U.S.C. § 12117(a) ("ADA"). Under Title VII, a federal employee must exhaust her administrative remedies before initiating a complaint of discrimination in federal court. See 42 U.S.C. § 2000e-16(c). The same is true for claims under the ADA.[5]See Roman-Martinez v. Runyon, 100 F.3d 213, 216 (1st Cir.1996). *563 Because administrative exhaustion "is a condition to the waiver of sovereign immunity," it "must be strictly construed." Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 94, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). Consequently, failure to comply with an agency's applicable time limit may expose the plaintiff's federal law suit to dismissal, Cano v. United States Postal Serv., 755 F.2d 221, 223 (1st Cir.1985) (per curiam), subject to narrowly applied equitable doctrines such as tolling or estoppel. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Irwin, 498 U.S. at 93-96, 111 S.Ct. 453; Vera, 622 F.3d at 29-30. Only in "exceptional circumstances" will these equitable principles extend the statute of limitations. Vistamar, Inc. v. Fagundo-Fagundo, 430 F.3d 66, 71 (1st Cir.2005) (citation and internal quotation marks omitted). Furthermore, the heavy burden to prove entitlement to equitable relief lies with the complainant. See Rivera-Gomez v. de Castro, 900 F.2d 1, 3 (1st Cir.1990). C. Equitable Tolling Before delving too far, we note that both Farris and the VA make much to do, unnecessarily, over the distinction between the equitable doctrines of estoppel and tolling. Our review of the record makes clear that Farris's argument on appeal is one of tolling. Similarly, though the district court may have mistakenly referred to "estoppel" on a few occasions within its order, it is more than obvious that the court was analyzing Farris's claim based on principles of tolling. With this minor quibble addressed, we turn now to the law. The Supreme Court has held that Title VII time limits are not jurisdictional and may be subject to equitable tolling just like private suits. Irwin, 498 U.S. at 93-96, 111 S.Ct. 453. As the district court stated, "although the failure to comply with required time periods ordinarily shuts the courthouse door to the Title VII complainant, the would-be plaintiff can unlock it in exceptional circumstances, where the plaintiff can demonstrate [entitlement to] equitable tolling." Specifically, equitable tolling is appropriate when a plaintiff shows that "circumstances beyond his or her control precluded a timely filing." Abraham, 553 F.3d at 119. However, a plaintiff generally cannot avail herself of the doctrine if she is responsible for the procedural flaw that prompted dismissal of her claim; in other words, equitable tolling will not "rescue a plaintiff from his or her lack of diligence." Id.; see also Irwin, 498 U.S. at 96, 111 S.Ct. 453. Moreover, we interpret the doctrine of equitable tolling quite narrowly, particularly in suits against the government. See Benitez-Pons v. Com. of Puerto Rico, 136 F.3d 54, 61 (1st Cir.1998). In Baldwin County Welcome Center v. Brown, the Supreme Court set out four circumstances in which equitable tolling may grant a Title VII (and, by extension, an ADA) plaintiff relief: (1) the plaintiff "received inadequate notice" of the statute of limitations; (2) "a motion for appointment of counsel is pending and equity would justify tolling the statutory period until the motion is acted upon;" (3) "the court [has] led the plaintiff to believe that she has done everything required of her," or (4) "affirmative misconduct on the part of a defendant lulled the plaintiff into inaction." 466 U.S. 147, 151, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984); Rys v. U.S. Postal Serv., 886 F.2d 443, 446 (1st Cir.1989). In Irwin, the Supreme Court stated that situations where a plaintiff "has actively pursued his judicial remedies by filing a defective pleading during the statutory period," *564 may also warrant tolling. 498 U.S. at 96, 111 S.Ct. 453. In this circuit, when a plaintiff asserts that Baldwin County or Irwin-like factors excuse her tardy filing and justify tolling the statute of limitations, we generally apply a five-factor analysis and consider the following: "(1) lack of actual notice of the filing requirement; (2) lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the defendant; and (5) a plaintiff's reasonableness in remaining ignorant of the filing requirement." Mercado v. Ritz-Carlton San Juan Hotel, Spa & Casino, 410 F.3d 41, 48 (1st Cir.2005) (citation and internal quotation marks omitted). Additionally, although absence of prejudice is considered, it is not "an independent basis" for tolling. Baldwin County, 466 U.S. at 152, 104 S.Ct. 1723. Though this framework provides guidance, it is not exhaustive; rather, we adhere to the notion that "it is in the nature of equity to entertain case-specific factors that may counsel in favor of tolling." Kale v. Combined Ins. Co. of America, 861 F.2d 746, 753 n. 9 (1st Cir.1988). Farris concedes that she failed to timely file a formal complaint with the EEOC. Nonetheless, it is her contention that the district court erred when it refused to toll the fifteen-day limitations period to save her belated filing. We disagree. First, we must address Farris's misplaced reliance on Perry v. Wolaver, 506 F.3d 48 (1st Cir.2007) and the "excusable neglect rubric" discussed therein. Id. at 56 n. 10. In Perry, a civil case not involving administrative remedies, we excused the defendants' late response to a motion for summary judgment because the defendants (1) had not missed any previous deadlines, (2) had responded promptly when they were made aware of their error, (3) had not shown any bad faith or intent to delay, and (4) had shown that late filing would not cause prejudice to the plaintiff. Id. According to Farris, application of these factors to her case illustrates "that the District Court's mechanical application of the 15-day time limit here unfairly [] prejudiced [her] and was legal error." Farris's argument misses the mark. As the district court properly observed, "[t]he Perry standards for evaluating excusable neglect in a civil case pending before the Court are not consistent with the Baldwin County standards for evaluating whether a Title VII claimant has satisfied her burden of proving a claim of equitable [tolling due to] her failure to meet administrative deadlines." We agree and find Farris's reliance on Perry, in the face of the well-known Baldwin County and Irwin framework, puzzling. With that settled, the analysis of this case under the applicable framework is straightforward. As the district court properly stated, none of the circumstances set out in Baldwin County that could provide an independent basis for tolling are present in Farris's case. To the contrary, Farris and her attorney both received adequate notice of the fifteen-day limitation period; no motion for appointment of counsel was pending; the court did not lead Farris to believe she had done everything required; and no affirmative misconduct by the VA had lulled Farris into inaction. Similarly, the facts here fail to fit within the Irwin framework: Farris did not file a defective pleading during the fifteen-day time frame. Lastly, under this court's five-factor analysis, Farris had both actual and constructive notice, and she was not reasonably ignorant. Refusing to throw in the towel, Farris persists with the following arguments: (1) "the filing of a formal complaint with the OSC, which defers to the EEOC, placed the VA on notice of her claim," (2) *565 "the mistake was her lawyer's," (3) "dismissal with prejudice is an extreme sanction," and (4) the "holiday rush" justified her late filing.[6] It is axiomatic that "equitable tolling do[es] not extend to what is at best a garden variety claim of excusable neglect," Irwin, 498 U.S. at 96, 111 S.Ct. 453, yet that is exactly what Farris proffers. First, Farris's argument that the VA was put on notice of her claim because she had filed a formal complaint with the OSC is completely unpersuasive. We firmly agree with the district court that Farris's "pursuit of other remedies with other agencies does not justify her failure to comply with EEOC procedure." Second, although Attorney Mills was ultimately responsible for making sure the formal complaint was timely filed, "[u]nder our system of representative litigation, each party is deemed bound by the acts of his lawyer-agent." Id. at 92, 111 S.Ct. 453 (internal quotation marks omitted); see also Kelley v. Nat'l Labor Relations Bd., 79 F.3d 1238, 1249 (1st Cir.1996) (stating that "courts generally impute constructive knowledge of filing and service requirements to plaintiffs who. . . consult with an attorney"). Third, under the doctrine of administrative exhaustion, dismissal with prejudice can be the appropriate consequence for failure to comply with the applicable administrative time frame. See Cano, 755 F.2d at 223 ("Since we hold that tolling is not justified in this instance, Cano's failure to file her charge of discrimination within the required time period bars relief in the district court."). Finally, the contention that the belated filing was justified because the fifteen-day time period fell during the holidays is, to say the least, highly unconvincing. As the district court stated, "[t]he holiday period between Christmas and New Year's Day is a readily anticipated annual affair and legal deadlines invariably continue to fall due." We agree. Consequently, Farris has failed to satisfy her burden of showing "exceptional circumstances" that would warrant tolling. III. CONCLUSION For the reasons set forth above, the district court did not abuse its discretion by refusing to equitably toll the fifteen-day filing deadline in order to save Farris's tardy EEOC filing. Because Farris concedes that her complaint was filed late and time-barred absent tolling, the district court's grant of summary judgment for the VA was proper. We affirm. NOTES [*] Of the District of Massachusetts, sitting by designation. [1] Though the district court states that Farris began her employment in September 2008, both parties agree that Farris commenced her employment with the VA on or about November 13, 2007. [2] These agencies include the Department of Veterans Affairs Office of Resolution Management ("ORM"), the Office of Special Counsel ("OSC"), the Office of Special Appeals ("OSA"), the Merit Systems Protection Board ("MSPB"), and the Office of Workers' Compensation Programs ("OWCP"). [3] The letter stated in relevant part: • "If you decide to file a formal complaint, you have 15 calendar days from receipt of this notice in which to do so." • "If you decide to file a formal complaint, you must do so WITHIN FIFTEEN CALENDAR DAYS OF RECEIPT OF THIS NOTICE." • "Please note that the 15-calendar day time frame will not be extended due to your need to seek my assistance in completing this form." • "WHEN TO FILE: Your formal complaint must be filed within 15 calendar days of the date you received the `Notice of Right to File a Discrimination Complaint' (NRTF) from your EEO Counselor. If you do not meet this time limit, you must explain why you waited more than 15 calendar days to file. These time limits may be extended under certain circumstances; however, they will NOT be waived and your complaint will NOT be investigated unless you explain your untimeliness and the explanation is acceptable in accordance with EEOC, CFR § 1614(c)., [sic]. Use an additional sheet of paper, if necessary. If you have evidence which supports your explanation, please attach it to this complaint." (emphasis in original.) [4] The named defendant in this case is Eric K. Shinseki in his official capacity as Secretary for the Department of Veterans Affairs. Throughout the opinion, when referencing the defendant, we simply refer to the VA. [5] Farris's complaint also alleges a violation of the Rehabilitation Act. While our precedent states that a claim brought under the Act does not require exhaustion, see Prescott v. Higgins, 538 F.3d 32, 44 (1st Cir.2008), we need not discuss this issue as it was never raised before the district court, nor briefed or argued before us. Consequently, it is deemed waived on appeal. See In re Mercurio, 402 F.3d 62, 64 n. 1 (1st Cir.2005) ("[T]his issue was not argued by the parties before either the bankruptcy or district courts, nor briefed or argued before us, and is thus deemed waived."). [6] Farris presents seven different arguments, but because three of them are based on her reliance on Perry, we will not discuss them. Those arguments are as follows: (1) she was diligent in her pursuit of multiple avenues of relief and had complied with all other deadlines, (2) she had complied with the standards set forth in Perry, and (3) the VA was not prejudiced due to the belated filing.

245 F.Supp.2d 1335 (2003) NSK LTD. and NSK Corporation; NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation, NTN Bower Corporation and NTN Corporation; Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A., Plaintiffs and Defendant-Intervenors, v. UNITED STATES, Defendant, and The Timken Company, Defendant-Intervenor and Plaintiff. SLIP OP. 03-05. Court No. 00-04-00141. United States Court of International Trade. January 9, 2003. *1338 Lipstein, Jaffe & Lawson, L.L.P., Washington, DC (Robert A. Lipstein, Matthew P. Jaffe, Grace W. Lawson and Joseph A. Konizeski) for NSK.[1] Barnes, Richardson & Colburn, Chicago, IL (Donald J. Unger, Kazumune V. Kano, David G. Forgue and Beata Kolosa) for NTN. Sidley Austin Brown & Wood LLP, Washington, DC (Neil R. Ellis, Niall P. Meagher, Lawrence R. Walders, Neil C. Pratt, Leigh Fraiser and Jennifer Haworth McCandless) for Koyo. Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Velta A. Melnbrencis, Assistant Director, Michele D. Lynch, Kenneth J. Guido and Richard P. Schroeder); John F. Koeppen, Office of the Chief Counsel for Import Administration, United States Department of Commerce, for the United States, of counsel. Stewart and Stewart, Washington, DC (Terence P. Stewart, William A. Fennell, Geert De Prest, Patrick J. McDonough, Marta M. Prado and David S. Johanson) for Timken. OPINION TSOUCALAS, Senior Judge. Plaintiffs and defendant intervenors, NSK Ltd. and NSK Corporation (collectively "NSK"), NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation, NTN Bower Corporation and NTN Corporation (collectively "NTN"), and Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. (collectively "Koyo"), move pursuant to USCIT R. 56.2 for judgment upon the agency record challenging various aspects of the United States Department of Commerce, International Trade Administration's ("Commerce") final determination, entitled Final Results of Antidumping Duty Administrative Reviews and Revocation in Part of Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan ("Final Results"), 65 Fed.Reg. 11, 767 (Mar. 6, 2000). Defendant-intervenor and plaintiff, The Timken Company ("Timken"), also moves pursuant to USCIT R. 56.2 for judgment upon the agency record challenging certain determinations of Commerce's Final Results. Specifically, NSK contends that Commerce unlawfully: (1) used affiliated cost data for purposes other than calculating cost of production and constructed value to (a) run its model-match methodology under 19 U.S.C. § 1677(16), (b) calculate the difmer adjustment under 19 U.S.C. § 1677b(a)(6), and (c) calculate NSK's reported United States inventory carrying costs; and (2) conducted a duty absorption inquiry under 19 U.S.C. § 1675(a)(4) for outstanding 1976 and 1987 antidumping duty orders. NTN contends that Commerce unlawfully: (1) conducted a duty absorption inquiry under 19 U.S.C. § 1675(a)(4) for outstanding 1976 and 1987 antidumping duty orders; (2) used affiliated supplier's cost of production for inputs when it was higher than the transfer price; (3) denied a pricebased level of trade adjustment when *1339 matching constructed export price sales to sales of the foreign like product; (4) rejected NTN's reported level of trade selling expenses and reallocated NTN's United States indirect selling expenses without regard to level of trade; (5) used Commerce's 99.5% arm's length test to compare NTN's home market selling prices to those of NTN's affiliated and unaffiliated parties; (6) included certain NTN sales that were allegedly outside the ordinary course of trade in the dumping margin and constructed value profit calculations; (7) strictly relied upon the sum-of-deviations methodology for the model match analysis; and (8) added an amount to NTN's selling expenses that was allegedly incurred in financing cash deposits for antidumping duties. Koyo contends that Commerce unlawfully: (1) conducted a duty absorption inquiry under 19 U.S.C. § 1675(a)(4) for outstanding 1976 and 1987 antidumping duty orders; (2) applied adverse facts available to Koyo's further manufactured tapered roller bearings; and (3) used Koyo's entered value to establish the assessment rate under 19 C.F.R. § 351.212(b) (1998). Timken contends that Commerce unlawfully: (1) applied adverse facts available to Koyo's entered values; and (2) permitted NTN to exclude certain expenses attributable to non-scope merchandise from its reported United States selling expenses. BACKGROUND The administrative review at issue involves the period of review ("POR") covering October 1, 1997, through September 30, 1998.[2] Commerce published the preliminary results of the subject reviews on October 1, 1999. See Preliminary Results of Antidumping Duty Administrative Reviews and Intent to Revoke in-Part of Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan, ("Preliminary Results") 64 Fed.Reg. 53,323. Commerce published the Final Results at issue on March 6, 2000. See 65 Fed.Reg. 11,767. JURISDICTION The Court has jurisdiction over this matter pursuant to 19 U.S.C. § 1516a(a) (2000) and 28 U.S.C. § 1581(c) (2000). STANDARD OF REVIEW In reviewing a challenge to Commerce's final determination in an antidumping administrative review, the Court will uphold Commerce's determination unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law...." 19 U.S.C. § 1516a(b)(1)(B)(i) (1994). I. Substantial Evidence Test Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Substantial evidence "is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620, 86 *1340 S.Ct. 1018, 16 L.Ed.2d 131 (1966) (citations omitted). Moreover, "[t]he court may not substitute its judgment for that of the [agency] when the choice is `between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.'" American Spring Wire Corp. v. United States, 8 CIT 20, 22, 590 F.Supp. 1273, 1276 (1984) (quoting Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 22-23 (1st Cir.1983) (quoting, in turn, Universal Camera, 340 U.S. at 488, 71 S.Ct. 456)). II. Chevron Two-Step Analysis To determine whether Commerce's interpretation and application of the antidumping statute is "in accordance with law," the Court must undertake the twostep analysis prescribed by Chevron U.S.A Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under the first step, the Court reviews Commerce's construction of a statutory provision to determine whether "Congress has directly spoken to the precise question at issue." Id. at 842, 104 S.Ct. 2778. "To ascertain whether Congress had an intention on the precise question at issue, [the Court] employ[s] the `traditional tools of statutory construction.'" Timex V.I., Inc. v. United States, 157 F.3d 879, 882 (Fed.Cir.1998) (citing Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778). "The first and foremost `tool' to be used is the statute's text, giving it its plain meaning. Because a statute's text is Congress' final expression of its intent, if the text answers the question, that is the end of the matter." Id. (citations omitted). Beyond the statute's text, the tools of statutory construction "include the statute's structure, canons of statutory construction, and legislative history." Id. (citations omitted). But see Floral Trade Council v. United States, 23 CIT 20, 22 n. 6, 41 F.Supp.2d 319, 323 n. 6 (1999) (noting that "[n]to all rules of statutory construction rise to the level of a canon, however") (citation omitted). If, after employing the first prong of Chevron, the Court determines that the statute is silent or ambiguous with respect to the specific issue, the question for the Court becomes whether Commerce's construction of the statute is permissible. See Chevron, 467 U.S. at 843, 104 S.Ct. 2778. Essentially, this is an inquiry into the reasonableness of Commerce's interpretation. See Fujitsu Gen. Ltd. v. United States, 88 F.3d 1034, 1038 (Fed.Cir.1996). Provided Commerce has acted rationally, the Court may not substitute its judgment for the agency's. See Koyo Seiko Co. v. United States, 36 F.3d 1565, 1570 (Fed.Cir.1994) (holding that "a court must defer to an agency's reasonable interpretation of a statute even if the court might have preferred another"); see also IPSCO, Inc. v. United States, 965 F.2d 1056, 1061 (Fed. Cir.1992). The "[C]ourt will sustain the determination if it is reasonable and supported by the record as a whole, including whatever fairly detracts from the substantiality of the evidence." Negev Phosphates, Ltd. v. United States, 12 CIT 1074, 1077, 699 F.Supp. 938, 942 (1988) (citations omitted). In determining whether Commerce's interpretation is reasonable, the Court considers the following non-exclusive list of factors: the express terms of the provisions at issue, the objectives of those provisions and the objectives of the antidumping scheme as a whole. See Mitsubishi Heavy Indus, v. United States, 22 CIT 541, 545, 15 F.Supp.2d 807, 813 (1998). DISCUSSION I. Commerce's AH Purpose Use of Affiliated Supplier Costs for Inputs Obtained from NSK's Affiliated Supplier A. Statutory Background Normal value ("NV") of subject merchandise is defined as "the price at which *1341 the foreign like product is [] sold ... for consumption in the exporting country...." 19 U.S.C. § 1677b(1)(B)(i)(1994). If Commerce determines that the foreign like product is sold at a price less than the foreign like product's cost of production ("COP"), and that the conditions listed in 19 U.S.C. § 1677b(b)(1)(A)-(B) are present, Commerce may disregard such below-cost sales in its calculation of NV. See 19 U.S.C. § 1677b(b)(1) (1994). Commerce calculates the COP of the foreign like product by adding "the cost of materials and of fabrication or other processing... employed in producing the foreign like product ... [with] an amount for selling, general, and administrative expenses... [and] all other expenses incidental to placing the foreign like product in ... shipment." 19 U.S.C. § 1677b(b)(3)(A)-(C) (1994). Section 1677b(f) articulates "special rules" for the calculation of COP and constructed value ("CV") and permits Commerce to disregard an affiliated party transaction when "the amount representing [the transaction or transfer price] does not fairly reflect the amount usually reflected in sales of merchandise under consideration in the market under consideration," that is, an arms-length or market price. 19 U.S.C. § 1677b(f)(2) (1994). If such "a transaction is disregarded ... and no other transactions are available for consideration," Commerce shall value the cost of an affiliated party input "based on the information available as to what the amount would have been if the transaction had occurred between persons who are not affiliated," that is, based on arm's-length or market value. Id. Section 1677b(f)(3)'s "major input rule" states that Commerce may calculate the value of the major input on the basis of the data available regarding COP, if such COP exceeds the market value of the input calculated under § 1677b(f)(2). See 19 U.S.C. § 1677b(f)(3) (1994). Commerce, however, may rely on the data available only if: (1) a transaction between affiliated parties involves the production by one of such parties of a "major input" to the merchandise produced by the other and, in addition, (2) Commerce has "reasonable grounds to believe or suspect" that the amount reported as the value of such input is below the COP. See 19 U.S.C. § 1677b(f)(3). For purposes of § 1677b(f)(3), regulation 19 C.F.R. § 351.407(b) (1998) provides that Commerce will value a major input supplied by an affiliated party based on the highest of (1) the actual transfer price for the input; (2) the market value of the input; or (3) the COP of the input. See also Mannesmannrohen-Werke AG v. United States, 23 CIT 826, 837, 77 F.Supp.2d 1302, 1312 (1999) (holding that 19 U.S.C. §§ 1677b(f)(2) and (3), as well as the legislative history of the major input rule, support Commerce's decision to use the highest of transfer price, COP, or market value to value the major inputs that the producer purchased from the affiliated supplier). Accordingly, paragraphs (2) and (3) of 19 U.S.C. § 1677b(f) authorize Commerce, in calculating COP and CV, to: (1) disregard a transaction between affiliated parties if, in the case of any element of value that is required to be considered, the amount representing that element does not fairly reflect the amount usually reflected in sales of merchandise under consideration in the market under consideration; and (2) determine the value of the major input on the basis of the information available regarding COP if Commerce has "reasonable grounds to believe or suspect" that an amount represented as the value of the input is less than its COP. See Timken Co. v. United States, 21 CIT 1313, 1327-28, 989 F.Supp. 234, 246 (1997) (holding that Commerce may disregard transfer price for inputs purchased from related suppliers pursuant to 19 U.S.C. § 1677b(e)(2) *1342 (1988), the predecessor to 19 U.S.C. § 1677b(f)(2), if the transfer price or any element of value does not reflect its normal value) (citing NSK Ltd. v. United States, 19 CIT 1319, 1323-26, 910 F.Supp. 663, 668-70 (1995), aff'd, 119 F.3d 16, 1997 WL 398765 (Fed.Cir.1997)). B. Factual Background During the POR at issue, Commerce, "pursuant to 19 U.S.C. § 1677b(f), ... requested NSK to submit affiliated supplier cost data for inputs [NSK] obtained from [NSK's] affiliated supplier." Mem. U.S. Opp. Pis.' Mots. J. Agency R. ("Def.'s Mem.") at 72. Commerce used the affiliated supplier cost data to calculate NSK's COP and CV, and to recalculate NSK's model-match methodology, difmer adjustment and inventory carrying costs. See id. Explaining its methodology, Commerce stated in its Issues and Decision Memorandum[3] ("Issues & Decision Mem.") compiled as an appendix to the Final Results, that: in accordance with [19 U.S.C. § 1677b(f), Commerce] recalculated NSK's reported TRB-specific COP and CV to reflect the COP of an affiliated party input if the transfer price NSK reported for that input was less than the COP for that input. [Commerce notes that] COP and CV [are composed] of several components.... The adjustment [Commerce] made for NSK's affiliated party inputs is actually an adjustment to its reported material costs. Because material costs are a component of the cost of manufacture (COM) and COM is a component of COP and CV, when [Commerce] adjusted NSK's reported material costs, [Commerce] not only recalculated its COP and CV, but [Commerce] ... recalculated variable [VCOM] and total [TCOM] components of COP and CV as well. Issues & Decision Mem. at 31. Therefore, as a result, Commerce resorted to using affiliated supplier cost data for purposes other than calculating COP and CV and explained: [Commerce] does not rely on a [NSK's] reported costs solely for the calculation of COP and CV. Rather, [Commerce] employ[s] cost information in a variety of other aspects of [Commerce's] margin calculations. For example, when determining the commercial comparability of the foreign like product in accordance with section [1677(16)] ..., it has been [Commerce's] long-standing practice to rely on the product-specific VCOMs and TCOMs ... for [United States] and home[ ]market merchandise. Likewise, when calculating a difmer adjustment to NV in accordance with section [1677b(a)(6)] ..., it has been [Commerce's] consistent policy to calculate the adjustment as the difference between the product-specific VCOMs ... for the [United States] and home[ ]market merchandise compared.... Furthermore, [Commerce] ha[s] permitted [NSK] to calculate [its] reported [invenory *1343 carrying costs] on the basis of TCOM. Id. C. Contentions of the Parties NSK asserts that the plain language and legislative history of 19 U.S.C. § 1677b(f) restricts Commerce's use of affiliated supplier cost data in that "Commerce may substitute ... affiliated supplier cost data[ ] for affiliated supplier price data," that is, transfer prices between affiliates, only "for purposes of subsections (b) and (e)" of § 1677b(f). Mem. P. & A. Supp. Mot. J. Agency R. ("NSK's Mem.") at 6 (quoting 19 U.S.C. § 1677b(f)). In particular, NSK argues that Commerce violated the law when it used NSK's affiliated supplier cost data to: (1) run its model-match methodology under 19 U.S.C. § 1677(16); (2) calculate the difmer adjustment under 19 U.S.C. § 1677b(a)(6); and (3) calculate NSK's reported United States inventory carrying costs. See NSK's Mem. at 3, 6-12; Reply Mem. NSK Supp. NSK's Mot. J. Agency R. ("NSK's Reply") at 2-5. NSK also argues that, pursuant to Ad Hoc Comm. of AZ-NM-TX-FL Producers of Gray Portland Cement v. United States, 13 F.3d 398, 401 (Fed.Cir.1994), the Court must presume [that 19 U.S.C. § 1677b(f)] means that Commerce may use data gathered pursuant to subsection [§ 1677b(f)] for calculations involving subsections [§§ 1677b(b) and (e)] only. ... That other sections of the statute—specifically subsections [1677(16), 1677b(a)(6), 1677a(d) ]—are silent about [whether] the use of affiliated supplier cost data does not nullify the precise language of subsection [1677b(f)]. NSK's Mem. at 7 (emphasis added) (citations omitted). According to NSK, a "statute is passed as a whole ... and is animated by one general purpose and intent.... [E]ach part or section should be construed in connection with every other part or section so as to produce a harmonious whole." Id. at 7-8 (citation and parenthetical omitted). Consequently, the 19 U.S.C. § 1677b(f) restriction on the use of affiliated supplier cost data applies to all of the provisions of the antidumping law that is, especially, 19 U.S.C. § 1677(16), 1677b(a)(6) and 1677a(d). See id. at 8. In a footnote, NSK further states that by naming 19 U.S.C. § 1677b(f) "[s]pecial rules for calculation of cost of production and for calculation of constructed value," Congress expressed its intent that affiliated supplier cost data only be used to calculate COP and CV. See id. at 7 n. 2. NSK also makes reference to Commerce's prior methodology of restricting its use of affiliated supplier data to the calculation of CV. See id. at 9. Therefore, NSK requests that Commerce "rerun the model-match methodology, and recalculate the difmer adjustment and [United States] inventory carrying costs, without regard to affiliated supplier cost data collected pursuant to subsections" 19 U.S.C. § 1677b(f)(2) and § 1677b(f)(3). Id. at 10. Commerce alleges that 19 U.S.C. § 1677b(f) does not restrict the use of affiliated supplier cost data to calculating COP and CV since Commerce requires cost data for other purposes.[4] See Def.'s *1344 Mem. at 69-75. Commerce argues that 19 U.S.C. §§ 1677(16), 1677b(a)(6)[5] and 1677a(d) do not prohibit Commerce from using affiliated supplier cost data. See id. at 73. Moreover, Commerce alleges that §§ 1677(16), 1677b(a)(6) and 1677a(d) grant Commerce discretion. See id. at 69-75. In particular, Commerce points out that [section 1677(16)] does not specify a particular methodology for determining appropriate matches. Rather, the statute implicitly delegates the selection of an appropriate methodology to [Commerce]. Likewise, section [1677b(a)(6) ] grants [Commerce] the same discretion to determine a suitable method to calculate a difmer adjustment and does not restrict our selection of an appropriate methodology to any particular approach. In addition, with respect to [Commerce's] recalculation of NSK's [United States inventory carrying costs], section [1677a(d)] only specifies what adjustments are to be made to determine [constructed export price] and does not provide details regarding the precise calculations for each particular adjustment. Issues & Decision Mem. at 32. [I]f [Commerce] determined] a component of a respondent's COP and CV to be distortive for one aspect of [Commerce's] analysis, it would be illogical and unreasonable not to make the same determination with respect to those other aspects of [Commerce's] margin calculations where [Commerce] relied on the identical cost data. To do so would not only produce distortive results, but would be contrary to [Commerce's] mandate to administer the dumping law as accurately as possible. Id. at 31. Commerce further argues that the plain language of § 1677b(f) does not prohibit the use of affiliated supplier cost data for purposes other than the calculation of COP and CV. See Def.'s Mem. at 73. In sum, Commerce maintains that the use of affiliated supplier cost data is not restricted only to the calculation of COP and CV. Rather, Commerce asserts that Commerce has been afforded discretion to use cost data for other purposes. See id. at 73-75. Timken generally agrees with Commerce's arguments and states that Congressional intent directs Commerce to use the most "accurate cost data" to determine CV and COP. See The Timken Co.'s Resp. R. 56.2 Mots. J. Agency R. of NTN, Koyo, & NSK ("Timken's Resp.") at 7. Accordingly, Timken maintains that it is not against such intent to use the same information to implement other statutory provisions. See id. Timken asserts that Commerce "must administer the dumping laws as accurately as possible ... [and the] use [of] inaccurate data (unadjusted to account for inaccuracies attributable to relatedparty transfers)" clearly counters Congressional intent. Id. (emphasis added). D. Analysis The issue presented by NSK is whether Commerce can use affiliated supplier cost data obtained pursuant to 19 U.S.C. § 1677b(f) for purposes other than the calculation of COP and CV. In particular, the Court must determine whether Commerce's use of affiliated supplier cost data to: (1) run its model-match methodology under 19 U.S.C. § 1677(16); (2) calculate *1345 the difmer adjustment under 19 U.S.C. § 1677b(a)(6); and (3) calculate NSK's reported United States inventory carrying costs was in accordance with law. In NTN Bearing Corp. of Am. v. United States, 26 CIT ___, ___, 186 F.Supp.2d 1257, 1302-04 (2002) ("NTN 2002"), this Court upheld Commerce's use of affiliated supplier cost data for purposes other than the calculation of COP and CV. Specifically, the Court held that the "statute, read as a whole, does not show Congressional intent to restrict the use of affiliated supplier cost data solely to COP and CV calculations and in effect, tie the hands of Commerce while parties could distort dumping margins with impunity." NTN 2002, 26 CIT at ___, 186 F.Supp.2d at 1303. Since Commerce's methodology to use NSK's affiliated supplier cost data for purposes other than the calculation of COP and CV and the parties arguments are practically identical to those presented in NTN 2002, the Court adheres to its reasoning in its prior holding. The plain language of 19 U.S.C. § 1677b(f) neither restricts Commerce from using affiliated supplier cost data for purposes other than the calculation of COP or CV, nor does it indicate Congress's intent that Commerce be prohibited from using such data to calculate accurate dumping margins. See id. at ___, 186 F.Supp.2d at 1303. Accordingly, this Court finds that Commerce's use of NSK's affiliated cost data for purposes other than the calculation of COP and CV was reasonable and in accordance with law. II. Commerce's Duty Absorption Inquiry for a Transition Order A. Background Title 19, United States Code, § 1675(a)(4) (1994) provides that during an administrative review initiated two or four years after the publication of an antidumping duty order, Commerce, at the request of a domestic interested party, "shall determine whether antidumping duties have been absorbed by a foreign producer or exporter subject to the order if the subject merchandise is sold in the United States through an importer who is affiliated with such foreign producer or exporter." Section 1675(a)(4) further provides that Commerce shall notify the International Trade Commission ("ITC") of its findings regarding such duty absorption for the ITC to consider conducting a five-year ("sunset") review under 19 U.S.C. § 1675(c) (1994), and the ITC will take such findings into account in determining whether material injury is likely to continue or recur if an order were revoked under § 1675(c). See 19 U.S.C. § 1675a(a)(1)(D) (1994). On December 15, 1998, Timken requested Commerce to conduct a duty absorption inquiry pursuant to 19 U.S.C. § 1675(a)(4) with respect to NSK, NTN and Koyo to ascertain whether antidumping duties had been absorbed during the POR at issue. See Issues & Decision Mem. at 2. In the Final Results, Commerce determined that duty absorption had occurred for the POR. See Final Results, 65 Fed.Reg. at 11,768. In asserting authority to conduct a duty absorption inquiry under § 1675(a)(4), Commerce first explained that for "transition orders," as defined in 19 U.S.C. § 1675(c)(6)(C) (antidumping duty orders, inter alia, orders issued on or after January 1, 1995), regulation 19 C.F.R. § 351.213(j) (1998) provides that Commerce "will make a duty-absorption determination, if requested, for any administrative review initiated in 1996 or 1998." Issues & Decision Mem. at 2. Commerce concluded that: (1) because the antidumping duty orders on tapered roller bearings ("TRBs") in this case have been in effect since 1976 and 1987, the orders are transitional pursuant to 19 *1346 U.S.C. § 1675(c)(6)(C); and (2) since these reviews were initiated in 1998, Commerce had the authority to make duty absorption inquiries for the administrative reviews of the 1976 and 1987 antidumping duty orders. See id. at 4. B. Contentions of the Parties NSK, NTN and Koyo contend that Commerce lacked statutory authority under 19 U.S.C. § 1675(a)(4) to conduct a duty absorption inquiry for the POR of the outstanding 1976 and 1987 antidumping duty orders. See NSK's Mem. at 4, 10-15; NSK's Reply at 5-8; PI. NTN's Mot. & Mem. Supp. J. Agency R. ("NTN's Mem.") at 13-14; Mem. P. & A. Supp. Mot. Pis. Koyo J. Agency R. ("Koyo's Mem.") at 8-14; Reply Br. Pis. Koyo Supp. Mot. J. Agency R. ("Koyo's Reply") at 2-7. Commerce argues that these reviews fall within its statutory authority because they involve transition orders. See Issues & Decision Mem. at 2; Def.'s Mem. at 10-14; NSK's Mem. at 4; NTN's Mem. at 13; Koyo's Mem. at 8. Specifically, Commerce argues that it: (1) properly construed 19 U.S.C. §§ 1675(a)(4) and (c) as authorizing it to make a duty absorption inquiry for antidumping duty orders that were issued and published prior to January 1, 1995; and (2) devised and applied a reasonable methodology for determining duty absorption. See Def.'s Mem. at 19-22. Commerce also urges the Court to reconsider its holding in SKF USA Inc. v. United States, 24 CIT ___, 94 F.Supp.2d 1351 (2000). See id. at 14-19. Timken supports Commerce's contentions but offers no substantive explanation of its position and instead refers to its arguments raised in SKF USA Inc., 24 CIT ___, 94 F.Supp.2d 1351. See Timken's Resp. at 5-6; see also Koyo's Reply at 6 n. 6. C. Analysis In SKF USA Inc., 24 CIT ___, 94 F.Supp.2d 1351, this Court determined that Commerce lacked statutory authority under 19 U.S.C. § 1675(a)(4) to conduct a duty absorption inquiry for antidumping duty orders issued prior to the January 1, 1995 effective date of the URAA. See id. at ___, 94 F.Supp.2d at 1357-59; see also NTN Bearing Corp. v. United States, 295 F.3d 1263 (Fed.Cir.2002). The Court noted that Congress expressly prescribed in the URAA that § 1675(a)(4) "must be applied prospectively on or after January 1, 1995 for 19 U.S.C. § 1675 reviews." SKF USA Inc., 24 CIT at ___, 94 F.Supp.2d at 1359 (citing § 291 of the URAA). Because Commerce's duty absorption inquiry, its methodology and the parties' arguments are practically identical to those presented in SKF USA Inc., the Court adheres to its reasoning in SKF USA Inc. The statutory scheme clearly provides that the inquiry must occur in the second or fourth administrative review after the publication of the antidumping duty order, not in any other review, and upon the request of a domestic interested party. Accordingly, the Court finds that Commerce did not have statutory authority to undertake a duty absorption investigation for the antidumping duty orders in dispute here. The Court remands this case to Commerce with instructions to annul all findings and conclusions made pursuant to the duty absorption inquiry conducted for the subject review in accordance with this opinion. III. Commerce's Use of Affiliated Supplier's Cost of Production for Inputs When the Cost Was Higher than the Transfer Price for NTN A. Background During the POR at issue, Commerce used the higher of the transfer price or actual cost in calculating COP and CV in situations involving inputs that NTN had obtained from affiliated producers. See Issues & Decision Mem. at 28-29; see also *1347 NTN's Mem. at 15; PI. NTN's Reply Def. & Def.-Intervenor's Feb. 16, 2001 Mem. Opposing Pls.' Mot. J. Agency R. ("NTN's Reply") at 7. Commerce explained its decision as follows: Section [1677b(f)(2) of title 19 U.S.C] directs [Commerce] to disregard transactions between affiliated parties if such transactions do not fairly reflect amounts usually reflected in sales of merchandise under consideration in the market under consideration. Further,... [C.F.R. §§ ] 351.407(a) and (b) of [Commerce's] regulations set[ ] forth certain rules that are common to the calculation of CV and COP. This section states that for the purpose of [§ 1677b(f)(3), ... Commerce] will determine the value of a major input purchased from an affiliated person based on the higher of: 1) the price paid by the exporter or producer to the affiliated person for the major input; 2) the amount usually reflected in sales of the major input in the market under consideration; or 3) the cost to the affiliated person of producing the major input. [Commerce adds that it has] relied on this methodology in [other reviews[6] and that the] ... methodology has been upheld by the Court in Mannesmannrohen-Werke [AG] v. United States, [23 CIT 826, 77 F.Supp.2d 1302]. Issues & Decision Mem. at 29. In the case at bar, Commerce requested that NTN provide a list of inputs used to produce the subject merchandise and to identify those inputs that were provided to NTN by its affiliated suppliers. See Def.'s Mem. at 30. NTN provided Commerce with exhibits and indicated that it used transfer price in computing COP and CV. See id. at 30-31. In calculating COP and CV, Commerce adhered to its past methodology and used the higher of transfer price or the actual cost for NTN's affiliated party inputs. See Issues & Decision Mem. at 29. B. Contentions of the Parties NTN alleges that Commerce erroneously used the affiliated supplier's COP for inputs when it was higher than the transfer price. See NTN's Mem. at 3, 15-16; NTN's Reply at 16-18. Specifically, NTN maintains that Commerce misapplied the major input rule described in 19 U.S.C. § 1677b(f)(3) (1994), and that Commerce failed to point to any reasonable grounds on which Commerce based its belief that NTN's reported COP of affiliated parties was below the actual COP. See NTN's Mem. at 15-16. According to NTN, a plain language reading of 19 U.S.C. § 1677b(f) makes clear that "the automatic recalculation of reported COP and CV data contemplated in 19 C.F.R. § 351.407 is not contemplated in the statute itself." Id. at 16 (distinguishing Mannesmannrohen-Werke AG, 23 CIT 826, 77 F.Supp.2d 1382). NTN requests that if this Court *1348 should sustain Commerce's methodology as reasonable and in accordance with law, the Court then remands this issue to Commerce to rectify the ministerial error committed in calculating "a variable ... to account for the difference between transfer price and actual cost." Issues & Decision Mem. at 28; see NTN's Mem. at 17-18; NTN's Reply at 9. Commerce contends that it acted in accordance with the statutory mandate and applied the provision reasonably under the circumstances. See Def.'s Mem. at 29-31. Timken supports Commerce's position and adds that "commercial reality" dictates that sales below cost are usually not at market prices. See Timken's Resp. at 17. According to Timken, "home market sales of merchandise used to determine normal values which are below cost are by statute `outside the ordinary course of trade.'" Id. (citation omitted). C. Analysis The issue presented by NTN is whether Commerce has statutory authority to use the higher of the transfer price or actual cost in calculating COP and CV in situations involving inputs that NTN had obtained from affiliated producers. In NSK Ltd. v. United States, 26 CIT ___, 217 F.Supp.2d 1291 (2002) ("NSK 2002"), this Court affirmed Commerce's decision to use NTN's affiliated supplier's COP for major inputs when COP was higher than the transfer price. The Court reasoned that 19 U.S.C. § 1677b(b)(3)(A)[7] is to be read in conjunction with the Special Rules cited in §§ 1677b(f)(2) and (3) that authorize Commerce, in calculating COP and CV, to: (1) disregard a transaction between affiliated persons if the amount representing an element does not fairly depict the amount usually reflected in sales of merchandise under consideration in the market under consideration; and (2) determine the value of the major input on the basis of the information available regarding COP if Commerce has reasonable grounds to believe or suspect that an amount represented as the value of the input is less than the COP of the input. In determining whether transaction prices between affiliated persons fairly reflect the market, this Court acknowledged that Commerce's practice has been to compare the transaction prices with market prices charged by unrelated parties. Commerce's practice was later reduced to writing in 19 C.F.R. § 351.407 (1998), a regulation which implements 19 U.S.C. § 1677b(f). Commenting on the regulation, Commerce stated that it believes that the appropriate standard for determining whether input prices are at arm's length is its normal practice of comparing actual affiliated party prices to or from unaffiliated parties. This practice is the most reasonable and objective basis for testing the arm's length nature of input sales between affiliated parties, and is consistent with [19 U.S.C. § 1677b(f)(2)]. Def.'s Mem. at 27 n. 6 (citation omitted). Pursuant to the major input rule contained in 19 U.S.C. § 1677b(f)(3), in calculating COP or CV, Commerce values a major input purchased from an affiliated supplier using the highest of the following: (1) the transfer price between the affiliated parties; (2) the market price between unaffiliated parties; and (3) the affiliated supplier's COP for the major input, since, in Commerce's view, the affiliation between the respondent and its suppliers *1349 "creates the potential for the companies to act in a manner that is other than arm's length" and gives Commerce reason to analyze the transfer prices for major inputs. Def.'s Mem. at 28 (citing Final Results of Antidumping Duty and Administrative Review of Silicomanganese From Brazil, 62 Fed.Reg. 37,869, 37,871-72 (July 15, 1997)). In addition, if Commerce disregards sales that failed the below-cost sales test pursuant to 19 U.S.C. § 1677b(b)(1) in the prior review with respect to merchandise of the respondent being reviewed, Commerce has "reasonable grounds to believe or suspect" that sales under consideration might have been made at prices below the COP. See 19 U.S.C. § 1677b(b)(2)(A)(ii) (1994). Commerce disregarded sales that failed its cost test under 19 U.S.C. § 1677b(b) during the previous review with respect to NTN's merchandise. See Def.'s Mem. at 29. For this reason, Commerce concluded that it had reasonable grounds to believe or suspect that sales of the foreign like product under consideration may have been made at prices below the COP. See 19 U.S.C. § 1677b(b)(2)(A)(ii). Therefore, Commerce initiated a COP investigation of sales by NTN in the home market. See Preliminary Results, 64 Fed.Reg. at 53,-327; see also Def.'s Mem. at 30. As part of its investigation, Commerce distributed a questionnaire, which, in pertinent part, requested NTN to provide COP and CV information. See Def.'s Mem. at 30. Specifically, Commerce requested NTN to: (1) list all inputs used to produce the merchandise under review; (2) identify those inputs that NTN received from affiliated persons; (3) provide the per unit transfer price charged for the input by the affiliated producer; (4) provide the COP incurred by the affiliated person in producing the major input; and (5) specify the basis used by NTN to value each major input for purposes of computing the submitted COP and CV amounts. See id. In response, NTN referred Commerce to a number of NTN's exhibits and stated, among other things, that transfer price was used in computing COP and CV. See Def.'s Mem. Ex. 1 (proprietary version). NTN also indicated that it used the transfer price for computing COP and CV. See id. at 31. Therefore, consistent with its interpretation of 19 U.S.C. §§ 1677f(2) and (3), Commerce used the higher of the transfer price or the actual cost in calculating COP and CV in the situations where NTN used parts purchased from affiliated persons. See id. While NTN argues that there is no record evidence that the affiliated party inputs did not "reflect the amount usually reflected in [the] sales of ... merchandise... under consideration" and that the statute makes no reference to cost, NTN's Mem. at 16 (relying on 19 U.S.C. § 1677b(f)(2)), the Court holds that Commerce acted reasonably and in accordance with 19 U.S.C. § 1677b(f)(3) when it chose to determine the value of a major input on the basis of the information available regarding COP. See NSK 2002, 26 CIT at ___, 217 F.Supp.2d at 1320-22; see also SKF USA Inc. v. United States, 24 CIT ___, ___ 116 F.Supp.2d 1257, 1261-68 (2000). NTN argues that even if Commerce was correct in adjusting NTN's COP and CV for affiliated party inputs, Commerce committed a ministerial error in the calculation of this adjustment in that Commerce's methodology failed to capture NTN's actual cost accurately. See NTN's Mem. at 17. According to NTN, Commerce's methodology erred by making an adjustment for the difference between transfer price and supplier's actual cost, rather than between supplier's actual cost and NTN's actual cost. See Issues & Decision Mem. at 28; NTN's Mem. at 17; Def.'s Mem at 34; see *1350 also NTN's Reply at 9. Commerce notes that NTN calculated variances by comparing its standard costs to its actual costs which are, for all inputs it purchased from all suppliers, based on the transfer prices from each supplier. As a result, the affiliate's costs ... are based on transfer prices. Therefore, NTN's reported actual costs are not an accurate basis on which to calculate COP and CV. Thus, it was appropriate to use the supplier's actual cost, and also to make an adjustment for the difference between the supplier's actual cost and the transfer price when the supplier's actual cost was higher than the transfer price. Issues & Decision Mem. at 29-30 (emphasis added). Commerce further asserts that the "variances" to which NTN refers are based upon the transfer price of affiliated suppliers, and not the actual cost of the input to affiliated suppliers. Accordingly, the Court agrees that NTN's reported actual costs cannot be an accurate basis upon which to calculate COP and CV. It is not the role of this Court to determine what methodology Commerce should or should not use in its determination, but instead to decide whether Commerce's chosen methodology is reasonable. "[Commerce] is given discretion in its choice of methodology as long as the chosen methodology is reasonable and [Commerce's] conclusions are supported by substantial evidence in the record." Federal-Mogul Corp. v. United States, 18 CIT 785, 807-08, 862 F.Supp. 384, 405 (1994) (citing Ceramica Regiomontana, S.A v. United States, 10 CIT 399, 404-05, 636 F.Supp. 961, 966 (1986), aff'd, 810 F.2d 1137 (Fed. Cir.1987)); see also Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 936 (Fed.Cir.1984) (stating that "[the Court's] role is limited to deciding whether [Commerce's] decision is `unsupported by substantial evidence on the record, or otherwise not in accordance with law* "). After careful examination of the record of this case and NTN's assertion that Commerce's methodology is distortive, this Court sustains Commerce's methodology in using NTN's supplier's actual cost. IV. Commerce's Denial of a Price-Based Level of Trade Adjustment A. Contentions of the Parties NTN contends that Commerce improperly denied a price-based level of trade ("LOT") adjustment when matching constructed export price ("CEP") sales to sales of the foreign like product,[8] citing Borden Inc. v. United States, 22 CIT 233, 4 F.Supp.2d 1221 (1998), as support. See NTN's Mem. at 18-21. See generally Borden, 22 CIT 233, 4 F.Supp.2d 1221, rev'd, 2001 WL 312232 (Fed.Cir. Mar.12, 2001). In particular, NTN argues, inter alia, that Commerce incorrectly determined NTN's CEP LOT because Commerce failed to use the sale to the first unaffiliated purchaser in the United States to determine NTN's CEP LOT. See Issues & Decision Mem. at 35; NTN's Mem. at 19-21. NTN requests that the Court remand the LOT issue to Commerce to grant NTN a price-based LOT adjustment when its CEP LOT is different from the LOT of the comparison foreign like product. See NTN's Mem. at 21. Commerce, in turn, argues that it properly determined the LOT for NTN's CEP sales based upon the CEP. See Def.'s Mem. at 35-36. Commerce used the CEP price to determine the LOT of CEP sales, and found that NTN had "no home market level of trade equivalent to the CEP level *1351 of trade because there were significant differences between the selling activities associated with the CEP and those associated with each of the home market [LOTs]." Id. at 35; see also NTN's Mem. App. 5 at 6-7. Commerce points out that CEP is defined in 19 U.S.C. § 1677a(b) (1994) as the price at which the subject merchandise is first sold in the United States by a seller affiliated with the producer to an unaffiliated purchaser, as adjusted under §§ 1677a(c) and (d). See Def.'s Mem. at 39. According to Commerce, the adjusted CEP price is to be compared to prices in the home market based on the same LOT whenever it is practicable; when it is not practicable and the LOT difference affects price comparability, Commerce considers making a LOT adjustment. See id. at 39^0. Commerce makes a CEP offset when Commerce is not able to quantify price differences between the CEP LOT and the LOT of the comparison sales, and if NV is established at a more advanced state of distribution than the CEP LOT. See id. at 41. Commerce claims that it applied its usual methodology to determine CEP LOT and determined that NTN's LOT and home market LOT were not equivalent. See id. at 43. According to Commerce, "in order to calculate a[LOT] adjustment, the CEP [LOT] must exist in the home market." Id. Since there was a difference between NTN's LOT and home market CEP LOT, Commerce "could not determine a [LOT] adjustment based upon NTN's home market sales of merchandise under review." Id.; Issues & Decision Mem. at 36. Alternatively, Commerce calculated "NV at the same [LOT] as the [United States] sale to the unaffiliated customer and, when comparisons were to sales at a different [LOT], made a CEP offset...." Def.'s Mem. at 43 (citing NTN's Mem.App. 5 at 6-7). Commerce contends that NTN provided no further information to establish a basis for calculating a LOT adjustment. See id. Timken generally agrees with Commerce's positions and adds that the Court should uphold Commerce's methodology since NTN admits that "transfer price was used in computing COP and CV" in its answer to Commerce's questionnaire. Timken's Resp. at 17 (referring to Def.'s Mem. Ex. 1 at 64). B. Analysis In Micron Tech., Inc. v. United States, 243 F.3d 1301 (Fed.Cir.2001), the Court of Appeals for the Federal Circuit ("CAFC") held that the plain text of the antidumping statute and the Statement of Administrative Action ("SAA")[9] require Commerce to deduct the expenses enumerated under 19 U.S.C. § 1677a(d) before making the LOT comparison.[10] The court examined 19 U.S.C. § 1677b(a)(1)(B)(i) (1994), which provides that Commerce must establish NV "to the extent practicable, at the same *1352 level of trade as the export price or [CEP]," and 19 U.S.C. § 1677a(b),' which defines CEP as "the price at which the subject merchandise is first sold (or agreed to be sold) in the United States ... as adjusted under subsections (c) and (d) of this section." (emphasis added). The court concluded that "[r]ead together, these two provisions show that Commerce is required to deduct the subsection (d) expenses from the starting price in the United States before making the level of trade comparison...." Micron, 243 F.3d at 1315. The court further stated that this conclusion is mandated by the SAA, which states that " `to the extent practicable, [Commerce should] establish normal value based on home market (or third country) sales at the same level of trade as the constructed export price or the starting price for the export price.'" Id. (citing SAA at 829) (emphasis in original). In its reply brief, NTN acknowledges the Micron decision but asserts that the CAFC's interpretation of the relevant subsections under 19 U.S.C. § 1677b (1994) conflicts with the URAA, "which requires [Commerce] to make a LOT adjustment if the difference in the level of trade affects price comparability, based on a pattern of consistent price differences." NTN's Reply at 7 (citations omitted). Despite this opposition, this Court adheres to its reasoning in NTN 2002, 26 CIT at ___, 186 F.Supp.2d at 1265-66, and finds that Commerce properly made § 1677a(d) adjustments to NTN's starting price in order to arrive at CEP and make its LOT determination. The Court also finds that Commerce's decision to deny NTN a LOT adjustment is supported by substantial evidence. Section 1677b(a)(7)(A) permits Commerce to make a LOT adjustment "if the difference in level of trade ... involves the performance of different selling activities[ ] and ... is demonstrated to affect price comparability, based on a pattern of consistent price differences between sales at different levels of trade in the country in which normal value is determined." 19 U.S.C. § 1677b(a)(7)(A). Yet, Commerce does not make a LOT adjustment when the record at issue does not provide adequate evidence to support such an adjustment. See Issues & Decision Mem. at 35. For this POR, Commerce examined the record and concluded that NTN's home market LOT was not equivalent to its CEP LOT. See id. Furthermore, "Commerce had no other information that provided an appropriate basis for determining a[LOT] adjustment." Def.'s Mem. at 43. See generally SAA at 830. "As a result, because the record [failed] to establish that there [wa]s any pattern of consistent price differences between the relevant LOTs, [Commerce] did not make a LOT adjustment for NTN when [Commerce] matched a CEP sale to a sale of the foreign like product at a different LOT." Issues & Decision Mem. at 35. Accordingly, the Court finds that Commerce acted within the directive of the statute in denying NTN the LOT adjustment and instead, granting a CEP offset. See 19 U.S.C. § 1677b(a)(7). V. Commerce's Reallocation of NTN's United States Indirect Selling Expenses Without Regard to Levels of Trade A. Background In the Final Results, 65 Fed.Reg. at 11,767, Commerce calculated NTN's United States and home market selling expenses without regard to LOT. See Issues & Decision Mem. at 36-38. NTN argued that Commerce should have relied on NTN's reported United States and home market selling expenses based on LOT instead of reallocating these selling expenses without regard to LOT. See id. at 36. Furthermore, NTN claims that Commerce's rejection of NTN's reported LOT *1353 selling expenses "contradicts the evidence on the record in this review [since Commerce concluded] in the [P]reliminary [R]esults ... that different LOTs existed in both the [United States] and home markets for sales of subject merchandise." Id. at 36-37. NTN also points to data [11] it supplied Commerce in response to Commerce's questionnaire illustrating that United States original equipment manufacturer ("OEM") sales incurred higher selling expenses than both past market and distributor sales, and that distributor sales incurred higher selling expenses than post market sales. See id. at 37. "NTN states that home market expenses also can be identified by LOT and argues that [Commerce's] reallocation [of NTN's United States indirect selling expenses] without regard to LOT is distortive." Id. Timken, in turn, contends that the evidence on the record supports Commerce's reallocation of NTN's home market and United States indirect selling expenses without regard to LOT. See id. Timken asserts that NTN has not adequately shown that its allocations accurately reflect the manner in which NTN incurs expenses for its sales, and thus Commerce should not alter its methodology of reallocating NTN's home market and United States selling expenses without regard to LOT. See id. Commerce generally agrees with Timken. See Issues & Decision Mem. at 37-38. Commerce responded that for a majority of the expenses under this POR, it determined that NTN's methodology for allocating its selling expenses based on LOTs did not bear any relationship to the manner in which NTN incurred these United States and home market selling expenses and its methodology led to distorted allocations. See id. at 37. Commerce asserts that in Timken Co. v. United States, 20 CIT 645, 653, 930 F.Supp. 621, 628-29 (1996), Commerce was to accept "NTN's LOT-specific allocations and per-unit LOT expense adjustment amounts only if NTN's expenses demonstrably varied according to LOT." Id. Acting in accordance with Timken Co., Commerce in its remand results did not allow NTN's LOT-specific allocations "due to the lack of quantitative and narrative evidence on the record demonstrating that the expenses in question demonstrably varied according to LOT...." Issues & Decision Mem. at 38. Commerce argues that after careful review of the administrative record for this POR, it finds that "in most instances no evidence exists demonstrating that NTN's home market and [United States] expenses allocated by LOT actually varied according to LOT." Id. Commerce further concluded that the data provided by NTN in its response to Commerce's questionnaire indicates that NTN incurred certain United States packing material and packing labor expenses when selling to only one United States's LOT. See id.; see also Def.'s Mem. at 45 n. 12. After reviewing NTN's response to its questionnaire, Commerce found that NTN clearly indicates that "certain of NTN's packing expenses individually differed by LOT." Issues & Decision Mem. at 38. Because these expenses were unique to a single LOT, NTN 1) allocated each total expense amount solely to this LOT[;] 2) calculated a single allocation ratio for this LOT[;] and 3) applied this ratio only to [United States] sales at this LOT.... Therefore, for [the Preliminary Results, 64 Fed.Reg. 53,323, Commerce] applied [Commerce's] recalculated ratios for certain of NTN's [United States] packing and [United States] labor expenses only for sales to the one LOT for which these expenses were incurred. *1354 Id After further review, Commerce also concluded that NTN's United States packing labor and material expenses varied with regard to LOT. See id. According to specific data[12] provided by NTN, Commerce points out that NTN's different methods of packing depend upon LOT. See id. Commerce states that since NTN has provided no further record evidence that home market expenses were incurred differently depending on LOT, Commerce properly accepted only NTN's allocation of home market packing expenses according to LOT. See id. B. Contentions of the Parties NTN contends that Commerce's decision to reallocate NTN's selling expenses violates Commerce's mandate to administer the antidumping laws. See NTN's Mem. at 24-27. NTN states that Commerce is in error primarily because: (1) "the expenses in question varied across [LOTs] in keeping with the requirements of [Timken Co., 20 CIT 645, 930 F.Supp. 621; (2)] NTN's methodology was previously accepted by [Commerce] and has not changed[; and (3) ] the effect of reallocating these expenses is to void [Commerce's] LOT determination...." Id. at 24 (citations omitted). Moreover, NTN argues that Commerce erred in basing its decision to reallocate NTN's reported expenses on the conclusion that the expense methodology NTN employed "bore no relationship to the manner in which the expense[s were] incurred." Id. According to NTN, sufficient record evidence exists for Commerce to find that NTN's indirect and home market selling expenses varied with regard to LOT.[13]See id. at 24-25. Citing to Bowe-Passat v. United States, 17 CIT 335, 340 (1993), NTN argues that Commerce's reallocation of NTN's United States indirect selling expenses without regard to LOT is contrary to Commerce's statutory role of administering the antidumping law to the most accurate extent possible. See id. at 27. Commerce responds that no sufficient record evidence exists illustrating that all of NTN's United States selling expenses and home market selling expenses varied demonstrably with regard to LOT. See Def.'s Mem. at 45-6. Commerce refers to the holdings in NTN Bearing Corp. of Am. v. United States, 23 CIT 486, 83 F.Supp.2d 1281 (1999) and NTN Bearing Corp. of Am. v. United States, 19 CIT 1221, 905 F.Supp. 1083 (1995) and asserts that this Court uphold Commerce's reallocation of NTN's United States and home market indirect selling expenses without regard to LOTs. See id. at 46. Timken generally supports Commerce's arguments and argues that the record evidence supports Commerce's decision to reject NTN's allocation of United States and home market indirect selling expenses. See Timken's Resp. at 18 (citing Issues & Decision Mem. at 37-38). Furthermore, Timken contends that it has been Commerce's practice to reject NTN's methodology for reporting selling expenses in various reviews. See id. (citing Final Results of Antidumping Duty Administrative Reviews of Tapered Roller Bearings and Parts Thereof, Finished and Unfinished From Japan, and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan, 63 Fed.Reg. 63,860 (Nov. 17, 1998), and Final Results of Antidumping Duty Administrative Reviews of Tapered Roller *1355 Bearings and Parts Thereof, Finished and Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan, 63 Fed.Reg. 2558 (Jan. 15,1998).) NTN replies to Commerce and Timken's assertions by stating that neither has brought forth any substantial legal argument that supports Commerce's decision to adjust NTN's sales for selling expenses without regard to LOT. See NTN's Reply at 9-10. NTN also proposes that Commerce failed to address the record in this POR, and asserts that precedent makes clear that "the record for each administrative review is separate from, and independent of, each previous administrative review." Id. at 10 (citing NSK Ltd. v. United States, 16 CIT 275, 277, 788 F.Supp. 1228, 1229 (1992), in turn citing Beker Indus. Corp. v. United States, 7 CIT 199, 585 F.Supp. 663 (1984)).[14] C. Analysis The Court agrees with Commerce that NTN failed to provide adequate evidence illustrating that all of NTN's United States selling expenses and home market selling expenses varied demonstrably with regard to LOT. In making its final determination, Commerce followed the standard set by this Court in Timken Co., 20 CIT at 651-53, 930 F.Supp. at 627-29 that Commerce is to deny a LOT adjustment if Commerce finds that expenses did not vary according to LOT. In the case at bar, NTN purports to show that it incurred different selling expenses at different trade levels by pointing to specific exhibits included in its proprietary memorandum. See NTN's Mem. at 25 (proprietary version). After a review of the record, Commerce concluded that the questionnaire responses that NTN provided for some of its United States packing and material expenses indicate that such expenses were incurred in connection with only one United States LOT. See Issues & Decision Mem. at 38. In the Preliminary Results, 64 Fed.Reg. 53,323,[15] Commerce accordingly "recalculated ratios for certain of NTN's [United States] packing and ... labor expenses only for sales to the one LOT for which these expenses were incurred." Issues & Decision Mem. at 38 (emphasis added); see Prelim. Analysis Mem. at 7-8. Commerce further determined that although NTN's exhibits "clearly demonstrate that different methods of packing are required depending upon LOT," NTN provides no evidence that illustrates that all of NTN's selling expenses were incurred differently with regard to LOT. Issues & Decision Mem. at 38; see Prelim. Analysis Mem. at 7-8. Accordingly, in the Final Results, 65 Fed. Reg. 11,767, Commerce only accepted NTN's allocation of home market packing expenses according to LOT. See Issues & Decision Mem. at 38. In NTN 2002, 26 CIT at ___, 186 F.Supp.2d at 1268, this Court made clear that NTN has the burden before Commerce *1356 to establish its entitlement to a LOT adjustment. NTN's failure to provide the requisite evidence with regard to selling expenses, other than NTN's home market packing expenses, compels the Court to conclude that it has not met its burden of demonstrating that Commerce's denial of the LOT adjustment was not supported by substantial evidence and was not in accordance with law. See NSK Ltd. v. United States, 21 CIT 617, 635-36, 969 F.Supp. 34, 55 (1997), aff'd, NSK Ltd. v. Koyo Seiko Co., Ltd., 190 F.3d 1321, 1330 (Fed.Cir.1999). For the reasons stated above, the Court sustains Commerce's methodology. VI. Commerce's Exclusion of Certain Home Market Sales to Affiliated Parties From the Normal Value Calculation A. Background During the POR, Commerce determined whether NTN's affiliated party sales should be used for purposes of calculating NV by employing its standard arm's-length test. See Def.'s Mem. at 47. Specifically, Commerce compared NTN's home market selling prices to NTN's affiliated and unaffiliated parties by using Commerce's 99.5% arm's-length test in which Commerce computes the weighted average price of all sales to each affiliated party by part number and the weighted average price of all sales of each part number to unaffiliated parties.... [F]or every part number sold to both unaffiliated and affiliated parties, the program calculates, for each related party, ratios of the affiliated and unaffiliated weighted average prices; these ratios are then weight-averaged to obtain the average of all part numbers sold to each related party ... [Commerce] only eliminates sales to a particular affiliated party from the calculation of NV when the average of all of these comparisons for that affiliate is less than 99.5 percent. Issues & Decision Mem. at 39. B. Contentions of the Parties NTN contends that Commerce erred in applying the arm's-length test because Commerce "compare[d] the weighted average price for unrelated sales [to the price] for individual related sales, and [failed to] consider other important factors such as quantity or payment terms of specific sales." NTN's Mem. at 28. NTN further argues that no statutory precedent establishes Commerce's ability to measure arms-length transactions by such a test. See id. To illustrate its contention, NTN provides a hypothetical example attempting to demonstrate that Commerce's arm's-length test is distortive. See id. at 28-29. Alternatively, NTN suggests that Commerce lower the threshold from 99.5 to 95 percent to ensure that the results "truly reflect the range of prices in [NTN's] transactions." Id. at 29. NTN further asserts that Commerce incorporate additional factors, such as quantity or payment terms of specific sales, in the application of its test. See id. at 29-30; NTN's Reply at 12. In response, Commerce cites to 19 U.S.C. § 1677b(a)(5) (1994) highlighting the following: If the foreign like product is sold or, in the absence of sales, offered for sale through an affiliated party, the prices at which the foreign like product is sold (or offered for sale) by such affiliated party may be used in determining normal value. Def.'s Mem. at 48 (emphasis in original). Relying on this statutory language, Commerce then argues that it has been granted broad discretion to devise and follow "its own methodology for determining when to use affiliated-party prices in determining *1357 NV as was [allotted for] under the prior law." Id. at 48-49 (citing 19 U.S.C. § 1677b(a)(3) (1988) and 19 C.F.R. § 353.45(a) (1996)). Commerce also cites to several decisions that have upheld Commerce's test as reasonable, including NTN Bearing Corp., 23 CIT at 486, 83 F.Supp.2d at 1281, NSK Ltd., 21 CIT at 635-36, 969 F.Supp. at 54, NTN Bearing Corp., 19 CIT at 1240-41, 905 F.Supp. at 1099-1100, and Usinor Sacilor v. United States, 18 CIT 1155, 1157-58, 872 F.Supp. 1000, 1004 (1994). Timken supports Commerce's contentions. See Timken's Resp. at 19-20. C. Analysis The Court disagrees with NTN that Commerce's arm's-length test is unreasonable. Under the applicable statute, 19 U.S.C. § 1677b(a)(5), Commerce is granted considerable discretion in deciding whether to include affiliated party sales when calculating NV. See Usinor, 18 CIT at 1158, 872 F.Supp. at 1004. This Court has repeatedly upheld Commerce's arm'slength test on the basis that respondents' have failed to present "record evidence tending to show that ... Commerce's test was unreasonable." NTN Bearing Corp., 19 CIT at 1241, 905 F.Supp. at 1100; see Torrington Co. v. United States, 21 CIT 251, 261, 960 F.Supp. 339, 348 (1997) (stating that the respondent "must do more than indicate a possible correlation between price and quantity" to support its argument that Commerce should consider quantity in Commerce's arm's-length test); NSK Ltd., 190 F.3d at 1328 (affirming the judgment of the CIT that Commerce's arm's-length methodology was reasonable given respondent's mere reference to a hypothetical and lack of record evidence that Commerce's methodology was unreasonable). Additionally, NTN's argument that Commerce reduce its arm's-length test threshold to 95% in order to yield a more accurate range of NTN's transaction prices fails to prove that Commerce's current test is in fact unreasonable. This Court has also repeatedly rejected NTN's argument that Commerce consider additional factors, such as quantity and payment terms of specific sales in its determination of whether sales prices to affiliated and unaffiliated parties are comparable. NTN has failed to point to sufficient record evidence that would persuade the Court to depart from its prior holdings in NTN 2002, 26 CIT at ___, 186 F.Supp.2d at 1287-88, NTN Bearing Corp. v. United States, 24 CIT at ___, 104 F.Supp.2d at 148, and NTN Bearing Corp., 19 CIT at 1241, 905 F.Supp. at 1099 (disagreeing "with NTN that Commerce's arm[`]slength test is flawed because Commerce did not take into account certain factors proposed by NTN"). Accordingly, the Court upholds Commerce's application of the arm's-length test to exclude certain home market sales to affiliated parties from the NV calculation as reasonable, in accordance with law and supported by substantial evidence. VII. Commerce's Inclusion of Certain NTN Sales Allegedly Outside the Ordinary Course of Trade A. Background The pertinent section of the United States Code states that NV be based on "the price at which the foreign like product is first sold ... in the ordinary course of trade." 19 U.S.C. § 1677b(a)(1)(B)(i). Section 1677b(e)(2)(A) provides that CV be calculated in part, by using "amounts incurred and realized by the ... producer [under] review ... in connection with the production and sale of a foreign like product in the ordinary course of trade, for consumption in the foreign country...." 19 U.S.C. § 1677b(e)(2)(A) (1994). The term "ordinary course of trade" is defined by 19 U.S.C. § 1677(15) as *1358 the conditions and practices which, for a reasonable time prior to the exportation of the subject merchandise, have been normal in the trade under consideration with respect to merchandise of the same class or kind. [Commerce] shall consider [sales disregarded under § 1677b(b)(1) and transactions disregarded under § 1677b(f)(2)], among others, to be outside the ordinary course of trade.... 19 U.S.C. § 1677(15) (1994) (emphasis added). Sections 1677b(b)(1) and 1677b(f)(2) respectively deal with below-cost sales and affiliated parties and were not involved in the determination at issue. Although § 1677b(b)(1)'s sales below COP and § 1677b(f)(2)'s affiliated party transactions are specifically designated as outside the ordinary course of trade, the "among others" language of § 1677(15) clearly indicates that other types of sales could be excluded as being outside the ordinary course of trade. In particular, the SAA states that aside from 19 U.S.C. §§ 1677b(b)(1) and f(2): Commerce may consider other types of sales or transactions to be outside the ordinary course of trade when such sales or transactions have characteristics that are not ordinary as compared to sales or transactions generally made in the same market. Examples of such sales or transactions include merchandise produced according to unusual product specifications[or] merchandise sold at aberrational prices. ..... [Section 1677(15) ] does not establish an exhaustive list, but [Commerce is given discretion to] interpret section 1677(15) in a manner which will avoid basing [NV] on sales which are extraordinary for the market in question, particularly when the use of such sales would lead to irrational or unrepresentative results. SAA at 834 (emphasis added). The court in Koenig & Bauer-Albert AG v. United States ("Koenig"), 22 CIT 574, 589, 15 F.Supp.2d 834, 850 (1998), vacated on other grounds, Koenig & Bauer-Albert AG v. United States, 259 F.3d 1341 (Fed.Cir. 2001), articulated that "Commerce has the discretion to decide under what circumstances highly profitable sales would be considered to be outside the ordinary course of trade," but also recognized that Commerce can not "impose this requirement arbitrarily." B. Contentions of the Parties NTN claims that Commerce improperly included certain NTN sales that were allegedly outside the ordinary course of trade in Commerce's dumping margin and CV profit calculations. See NTN's Mem. at 30-33. In NTN's attempt to show that Commerce erred in including certain sales in its calculations, NTN provided Commerce with what it claims to be specific record evidence indicating that NTN's high profit sales were in fact outside the ordinary course of trade. See id. at 31-32; see also NTN's Mem. Apps. 7 & 8. But see Issues & Decision Mem. at 44. Commerce, in turn, argues that the evidence provided by NTN fails to demonstrate that such sales were, in fact, outside the ordinary course of trade. See Def.'s Mem. at 57. Accordingly, Commerce contends that it properly included such sales in its calculations and that its decision is supported by record evidence and in tune with its statutory requirements. See id. at 55-61. Timken adds that NTN "bears the burden of proving that home market sales are not in the ordinary course of trade ... [and that] NTN has failed to make such a demonstration regarding either its `sample' sales or its alleged `high profit' sales." Timken's Resp. at 20-21. *1359 C. Analysis 1. Commerce's Inclusion of Certain NTN Sales Allegedly Outside the Ordinary Course of Trade In Commerce's Margin Calculation The issue before the Court is whether Commerce reasonably included certain sample sales and sales with high profit levels in NTN's home market sales database in its dumping margin, instead of determining that such sales were outside the ordinary course of trade, and accordingly excluding them. In the Issues & Decision Mem., Commerce laid out its practice concerning the exclusion of certain sales from the margin calculation when such sales, in fact, fall outside the ordinary course of trade. Commerce states that it has examined the record with respect to NTN's alleged home market sample sales to determine if these sales qualify for such an exclusion. In its original questionnaire response, NTN only states that "samples are provided to customers for the purpose of allowing the customer to determine whether a particular product is suited to the customer's needs" and that "the purpose ... would not be the same as those purchased in the normal course of trade...." In its ... supplemental response, NTN did not provide additional information to demonstrate clearly that its alleged sample sales are outside the ordinary course of trade. The mere fact that a respondent identified sales as samples does not necessarily render such sales outside the ordinary course of trade[.] ... For these reasons, [Commerce] disagree[s] with NTN that its home market sample sales should be excluded from [the] margin calculations.... Issues & Decision Mem. at 44 (emphasis added). Commerce also stated that NTN failed to provide any further evidence illustrating that any of NTN's "high profit" sales were actually outside the ordinary course of trade. See id. According to Commerce, just because NTN has instances of high profits is not dispositive of the fact that the sales relating to such were actually outside the ordinary course of trade. See id. In its questionnaire to NTN, Commerce stated that the burden of proof is on [NTN] to demonstrate, through narrative explanation of the circumstances surrounding such sales and supporting documentation or other evidence, that sales claimed to be outside the ordinary course of trade are in fact outside the ordinary course of trade. [Commerce] will not consider only one factor in isolation (i.e., the fact that certain sales are labeled as samples, or that a transaction involved small quantities or high prices) as sufficient proof that a sale is not in the ordinary course of trade. Def.'s Mem. Ex. 2 (proprietary version); Def.'s Mem. at 57-58; see also Nachi-Fujikoshi Corp. v. United States, 16 CIT 606, 608, 798 F.Supp. 716, 718 (1992). Nevertheless, NTN argues that it has provided Commerce with sufficient record evidence and points to a number of exhibits in its memorandum referring to zero-priced sample data[16] and explanations of NTN's instances of high profit sales. See NTN's Mem. at 31. NTN also cites CEMEX, S.A. v. United States, 133 F.3d 897 (Fed. Cir.1998) in support of its argument that Commerce should exclude sales with abnormally high profit levels. See id. at 32. *1360 The Court disagrees with NTN that Commerce should exclude such sales from its margin calculation. Although the CAFC sustained Commerce's determination that certain home market sales were outside the ordinary course of trade, CEMEX, 133 F.3d at 901, the court noted that for that review, Commerce had examined factors additional to profit. In the case at bar, NTN supports its contentions with evidence regarding only one factor, namely profit. See NTN's Mem. at 31 (listing NTN's exhibits referring to profit). According to the court in CEMEX, 133 F.3d at 900, Commerce must evaluate not just "one factor taken in isolation but rather... all the circumstances particular to the sales in question." Furthermore, this Court previously held that a lack of showing that the transactions at issue possessed some unique and unusual characteristic that make them unrepresentative of the home market allot Commerce the discretion to include such transactions in NTN's home market database. See NSK 2002, 26 CIT at ___, 217 F.Supp.2d at 1315 (analogizing NTN Bearing Corp., 19 CIT at 1229, 905 F.Supp. at 1091). In both its Issues & Decision Mem. and Def.'s Mem., Commerce makes clear that NTN failed to meet its burden of proof regarding evidence of NTN's sample sales and sales with high profit that NTN claims were outside the ordinary course of trade. Therefore, this Court sustains Commerce's decision to include such sales in its margin calculation. 2. Commerce's Inclusion of Certain NTN Sales Allegedly Outside the Ordinary Course of Trade In Commerce's CV Profit Calculation NTN raises the related argument that since NTN's sample sales and sales with abnormally high profits are outside the ordinary course of trade, they should also be excluded from Commerce's CV calculation. See NTN's Mem. at 32-33. In response, Commerce states that NTN provided no evidence which demonstrated that the profit amounts realized on the sales [ ] claimed to be outside the ordinary course of trade are particularly, much less abnormally, high. NTN has selected an arbitrary profit margin which it defines as "high," but it provides no evidence or analysis which suggests that the profit margin it chose is in any way unusual. To the contrary, there are enough of these claimed "high profit" sales in NTN's home[ ]market database that it is apparent that these sales are not unusual but, rather, occur typically within NTN's normal course of trade. Issues & Decision Mem. at 44. As acknowledged in Koenig, 22 CIT at 589, 15 F.Supp.2d at 850, Commerce is granted discretion to consider under what circumstances high profit sales are actually outside the ordinary course of trade. See Mitsubishi Heavy Indus, v. United States, 22 CIT 541, 568, 15 F.Supp.2d 807, 830 (1998); see also Notice of Final Determination of Sales Less Than Fair Value: Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled From Germany, 61 Fed. Reg. 38,166, 38,178 (July 23, 1996); Notice of Final Determination of Sales at Less Than Fair Value: Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, From Japan, 61 Fed.Reg. 38,139 (July 23, 1996). In the review at issue, Commerce refused to exclude certain NTN sample and high profit sales from its CV calculation because NTN failed to show that such sales were outside the ordinary course of trade due to "unique and unusual characteristics related to the sale[s] in question which make [them] unrepresentative of the home market." Issues & Decision Mem. *1361 at 44. Commerce acknowledged that such sales should be excluded only if circumstances existed that would lead Commerce to the conclusion that such sales, were in fact, made outside the ordinary course of trade. See id. A lack of evidence provided by NTN that would enable Commere to reach such a conclusion makes it reasonable for Commerce to include such sales in the CV profit calculation. See NTN Bearing Corp., 19 CIT at 1229, 905 F.Supp. at 1091. Accordingly, this Court upholds Commerce's decision to include such sales in its CV profit calculation. VIII. Commerce's Strict Reliance Upon the Sum-of-Deviations Methodology for its Model Match Analysis A. Background During this review, Commerce relied upon the "sum-of-deviations" ("SUMDEV") methodology to determine NTN's similar home market models of the merchandise under review as potential matches to the United States models. See Def.'s Mem. at 61-62; NTN's Mem. at 33-34; NTN's Reply at 15. The SUMDEV methodology uses five physical criteria, namely, inside diameter, outside diameter, width, load rating and Y2 factor, along with a twenty percent difmer test when determining which TRB models are most similar to the United States model. See Issues & Decision Mem. at 46; Def.'s Mem. at 61-62 & n. 19; see also Koyo Seiko Co. v. United States, 66 F.3d 1204, 1207 (Fed.Cir.1995) (explaining the different criteria). When determining appropriate product comparisons for United States sales, Commerce first tries to match United States TRB models to identical models sold in NTN's home market. See Issues & Decision Mem. at 46. When an identical model was not available, Commerce applied the SUMDEV methodology. See id. Section 1677(16) of Title 19 of the United States Code defines the term "foreign like product" as merchandise in the first of the following categories in respect of which a determination... can be satisfactorily made: (A) The subject merchandise and other merchandise which is identical in physical characteristics with, and was produced in the same country by the same person as, that merchandise. (B) Merchandise— (i) produced in the same country and by the same person as the subject merchandise, (ii) like that merchandise in component material or materials and in the purposes for which used, and (iii) approximately equal in commercial value to that merchandise. (C) Merchandise— (i) produced in the same country and by the same person and of the same general class or kind as the merchandise which is the subject of the investigation, (ii) like that merchandise in the purposes for which used, and (iii) which the administering authority determines may reasonably be compared with that merchandise. 19 U.S.C. § 1677(16) (1994). The CAFC stated in Koyo Seiko Co., 66 F.3d at 1209, that "Congress has implicitly delegated authority to Commerce to determine and apply a model-match methodology necessary to yield `such or similar' merchandise under [19 U.S.C. § 1677(16)]. This Congressional delegation of authority empowers Commerce to choose the manner in which `such or similar' merchandise shall be selected. Chevron applies...." B. Contentions of the Parties NTN argues that Commerce's practice of exclusively "ranking" similar merchandise on the basis of the SUMDEV methodology does not allow Commerce to determine *1362 the most similar matches because the test fails to account for the cost deviation among the TRB models themselves. See Issues & Decision Mem. at 45; NTN's Mem. at 34. Specifically, NTN contends that "[t]he exclusive use of the [SUMDEV] methodology to rank similar models creates the possibility that [United States] sales will be matched to sales with a relatively low [SUMDEV] total, but a very high difmer total, while another sale may have a very similar, but higher, [SUMDEV] total, but a much lower difmer total." NTN's Mem. at 34; see also Issues & Decision Mem. at 45. NTN uses a hypothetical example to attempt to show that Commerce's SUMDEV methodology is prima facie distortive. See NTN's Mem. at 34-35. NTN concludes by citing to Bowe-Passat, 17 CIT at 340, as support of its contention that Commerce should be ordered to modify the SUMDEV methodology "to account for cost deviation among models [in order for Commerce] to fulfill [its] statutory mandate...." NTN's Mem. at 34. NTN suggests that Commerce be ordered to alter its methodology by using the "cost variances not only to determine commercial comparability for purposes of [19 U.S.C. § 1677(16)(B),] but also to select most similar home market TRB models." Issues & Decision Mem. at 47. Commerce asserts that 19 U.S.C. § 1677(16) provides general guidance in selecting the products sold in the foreign market to be compared to United States merchandise. See Issues & Decision Mem. at 46. The statute first directs Commerce to find home market merchandise with identical qualities to those sold in the United States and, if unavailable, to search for merchandise that would satisfy §§ 1677(16)(B) and (C). See id. at 47. To satisfy such statutory requirements, Commerce eliminates, as possible matches, those models for which the variable cost of manufacturing differences exceed 20 percent of the total cost of manufacturing of the United States model. See id. Therefore, Commerce contends that Commerce's SUMDEV methodology is both a reasonable application of its discretion to determine what constitutes similar merchandise for the purpose of calculating NV, and is supported by the law. See id. C. Analysis In Koyo Seiko Co., 66 F.3d at 1209, the CAFC held that "Congress has implicitly delegated authority to Commerce to determine and apply a modelmatch methodology necessary to yield `such or similar' merchandise under [19 U.S.C. § 1677(16)]. This Congressional delegation of authority empowers Commerce to choose the manner in which `such or similar' merchandise shall be selected. Chevron applies in such a situation." (Citations omitted). In the case at bar, Commerce explained that the selection of similar merchandise is based on a product's physical characteristics and not differences in cost. Furthermore, [Commerce's] matching methodology satisfies NTN's apparent concerns that dissimilar merchandise may be compared because it precludes the pairing of models whose cost deviation exceeds 20 percent and provides for a difmer adjustment to NV if nonidentical TRB models are matched.... Regarding NTN's suggestion that [Commerce] place a cap on the [SUMDEV] model-match methodology, [Commerce explains] that the [CAFC] has considered [Commerce's] [SUMDEV] methodology to be reasonable.... Issues & Decision Mem. at 47. The Court agrees that Commerce is not required to adopt the particular matching methodology advanced by NTN, see Koyo Seiko Co., 66 F.3d at 1209; Timken Co. v. United States, 10 CIT 86, 98, 630 F.Supp. *1363 1327, 1338 (1986); NTN Bearing Corp. of Am. v. United States, 18 CIT 555, 559 (1994), and finds that Commerce's decision to apply its SUMDEV methodology is reasonable and in accordance with law. See Peer Bearing Co. v. United States, 25 CIT ___, ___, 182 F.Supp.2d 1285, 1305 (2001) (pointing out that "[i]n the absence of a statutory mandate to the contrary, Commerce's actions must be upheld as long as they are reasonable'") (quoting Timken Co. v. United States, 23 CIT 509, 516, 59 F.Supp.2d 1371, 1377 (1999)); see also Chevron, 467 U.S. at 844-45, 104 S.Ct. 2778. The Court also agrees with Commerce that NTN has failed to demonstrate that Commerce's use of its SUMDEV methodology is, in any way, distortive. NTN merely supplies the Court with a hypothetical example suggesting that Commerce's "exclusive use of the [SUMDEV] methodology to rank similar models creates the possibility that [United States] sales will be matched to sales with a relatively low [SUMDEV] total, but a very high difmer total, while another sale may have a very similar, but higher, [SUMDEV] total, but a much lower difmer total." NTN's Mem. at 34. Such a suggestion is not sufficient evidence to prove that Commerce's methodology is in any way distortive or an unreasonable interpretation of Commerce's discretion to "determine and apply a model-match methodology necessary to yield `such or similar' merchandise under [19 U.S.C. § 1677(16) ]." Koyo Seiko Co., 66 F.3d at 1209. IX. Commerce's Treatment of Indirect Selling Expenses for Interest Alleged to Have Been Incurred by NTN in Financing Cash Deposits for Antidumping Duties A. Background During the review at issue, Commerce added an amount that it classified as interest on cash deposits to NTN's United States indirect selling expenses calculation. See NTN's Mem.App. 5 at 17 (proprietary version). Commerce states that "[w]ith respect to the proper handling of the amount for interest on cash deposits,... NTN has [previously] indicated that the amount in question represents interest payments on the financing of cash deposits for antidumping duties. Thus, for these [Final Results, 65 Fed.Reg. 11,767, Commerce] ha[s] made no changes to the manner in which [it] recalculated NTN's [United States indirect selling expenses]." Issues & Decision Mem. at 50. B. Contentions of the Parties NTN contends that Commerce improperly added a certain amount to Commerce's calculations of NTN's selling expenses that was allegedly incurred in financing cash deposits for antidumping duties. See NTN's Mem. at 34-35. NTN claims that since that amount did not equal the figure reported to Commerce by NTN, compare NTN's Mem. App 7 at 1 (illustrating worksheet 3 of NTN's questionnaire response to Commerce) (proprietary version) with id. App. 5 at 17 (illustrating attachment II of Commerce's calculation of NTN's United States selling expenses) (proprietary version), Commerce should remove the added amount from its calculation since it "effectively penalizes NTN in this amount...." NTN's Mem. at 35. NTN adds that this particular adjustment is unlike those in previous reviews and, therefore, considers Commerce's response to NTN's contentions unresponsive. See NTN's Reply at 16. Commerce responds that its decision is reasonable and in accordance with law. "While antidumping duties and cash deposits have never been considered expenses deductible from [United *1364 States] price," Commerce asserts that "interest expenses incurred in connection with selling activities in the [United States] are deductible from [the United States] price." Def.'s Mem. at 67. Accordingly, Commerce allowed an adjustment to indirect selling expenses with regard to those expenses that Commerce determined to be non-selling expenses. See id. Timken supports Commerce's contentions and charges NTN with improperly calculating its expense figures. See Timken Resp. at 22 (proprietary version). C. Analysis Section 1677a(d)(1) of Title 19 provides for a CEP adjustment of certain expenses incurred by affiliated sellers in selling the subject merchandise in the United States. The statute, however, does not precisely identify what such expenses are. See generally 19 U.S.C. § 1677a(d)(1) (1994); Koyo Seiko Co. v. United States, 26 CIT ___, ___, 186 F.Supp.2d 1332, 1349-50 (2002) (highlighting previous reviews that Commerce has dealt with such expenses). For some period of time, Commerce's practice was to deem financing interest of cash deposits as a selling expense and, therefore, Commerce allowed respondents that incurred such expenses to deduct the interest from indirect selling expenses prior to the deduction of such indirect selling expenses from the CEP. See Final Results of Antidumping Duty Administrative Reviews of Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Singapore, and the United Kingdom, 62 Fed.Reg.2081, 2104-05 (Jan. 15, 1997). However, at a later point, Commerce reexamined this practice and the policies underlying it. Specifically, Commerce observed that [t]he statute does not contain a precise definition of what constitutes a selling expense. Instead, Congress gave [Commerce] discretion in this area. It is a matter of policy whether [Commerce] considers] there to be any financing expenses associated with cash deposits. [Commerce] recognize[s] that [Commerce] ha[s], to a limited extent, removed such expenses from indirect selling expenses for such financing expenses in past reviews.... However, [Commerce] ha[s] reconsidered [Commerce's] position on this matter and ha[s] now concluded that this practice is inappropriate. Final Results of Antidumping Duty Administrative Reviews of Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore, Sweden and the United Kingdom, 62 Fed.Reg. 54,043, 54,079 (Oct. 17, 1997). This Court has held that Commerce has the discretion to alter its policy, so long as Commerce presents a reasonable rationale for its departure from the previous practice, see NSK 2002, 26 CIT at ___, 217 F.Supp.2d at 1307-09 (relying on Chevron, 467 U.S. at 843, 104 S.Ct. 2778, Timken Co. v. United States, 22 CIT 621, 628, 16 F.Supp.2d 1102, 1106 (1998)), and accordingly has upheld Commerce's decision to deny an adjustment to NTN's United States indirect selling expenses for interest allegedly incurred by NTN in financing cash deposits for antidumping duties. See NSK 2002, 26 CIT at ___, 217 F.Supp.2d at 1309. In the case at bar, NTN claims that, unlike Commerce's practice in past reviews, Commerce added an amount for interest incurred financing cash deposits to its selling expense calculation that did not coincide with the figure provided by NTN to Commerce in its questionnaire response. See NTN's Reply at 16. The crux of NTN's complaint is that Commerce *1365 failed to address this issue in its response and that Timken misunderstood the data provided by NTN. See id. at 16-17. The Court, however, does not find these arguments persuasive. Commerce states that NTN has indicated [in its case brief] that the amount in question represents interest payments on the financing of cash deposits for antidumping duties. Thus, for these [Final Results, 65 Fed. Reg. 11,767, Commerce] ha[s] made no changes to the manner in which [Commerce] recalculated NTN [United States indirect selling expenses]. Issues & Decision Mem. at 50 (emphasis added). Accordingly, the Court will adhere to its reasoning in NSK 2002, 26 CIT at ___, 217 F.Supp.2d at 1309, and sustain Commerce's decision to deny an adjustment to NTN's United States indirect selling expenses for interest allegedly incurred by NTN in financing cash deposits for antidumping duties. X. Commerce's Application of Adverse Facts Available to Koyo's Sales of Further-Manufactured Merchandise and Entered Values (Koyo and Timken) A. Statutory Background An antidumping duty is imposed upon imported merchandise when: (1) Commerce determines such merchandise is being dumped, that is, sold or likely to be sold in the United States at less than fair value; and (2) the International Trade Commission determines that an industry in the United States is materially injured or is threatened with material injury. See 19 U.S.C. §§ 1673, 1677(34) (1994). To determine whether there is dumping, Commerce compares the price of the imported merchandise in the United States to the NV for the same or similar merchandise in the home market. See 19 U.S.C. § 1677b (1994). The price in the United States is calculated using either an EP or CEP. See 19 U.S.C. §§ 1677a(a), (b); see also, SAA at 822 (1994) (Commerce will classify the price of a United States sales transaction as a CEP "[i]f, before or after the time of importation, the first sale to an unaffiliated person is made by (or for the account of) the producer or exporter or by a seller in the United States who is affiliated with the producer or exporter"); Koenig & Bauer-Albert AG v. United States, 22 CIT at 589-593, 15 F.Supp.2d at 850-852 (discussing when to apply EP or CEP methodology). Commerce must reduce the price used to establish CEP by any of the following amounts associated with economic activities occurring in the United States: (1) commissions paid in "selling the subject merchandise in the United States"; (2) direct selling expenses, that is, "expenses that result from, and bear a direct relationship to, the sale, such as credit expenses, guarantees and warranties"; (3) "any selling expenses that the seller pays on behalf of the purchaser" (assumptions); (4) indirect selling expenses, that is, any selling expenses not deducted under any of the first three categories of deductions; (5) certain expenses resulting from further manufacture or assembly (including additional material and labor) performed on the merchandise after its importation into the United States; and (6) profit allocated to the expenses described in categories (1) through (5). 19 U.S.C. § 1677a(d)(1)-(3); see SAA at 823-24. Commerce calculates the expenses resulting from further manufacture or assembly using one of two statutory methods. See 19 U.S.C. §§ 1677a(d), (e). The first method provides that Commerce shall reduce "the price used to establish [CEP by] ... the cost of any further manufacture or assembly (including additional material and labor), except in [certain] circumstances." 19 U.S.C. § 1677a(d)(2). When the first method does not apply, *1366 Commerce applies a special rule for merchandise with value added after importation ("Special Rule"). See 19 U.S.C. § 1677a(e) (1994). The Special Rule provides that: [w]here the subject merchandise is imported by a person affiliated with the exporter or producer, and the value added in the United States by the affiliated person is likely to exceed substantially the value of the subject merchandise, [Commerce] shall determine the [CEP] for such merchandise by using one of the following prices if there is a sufficient quantity of sales to provide a reasonable basis for comparison and [Commerce] determines that the use of such sales is appropriate: (1) The price of identical subject merchandise sold by the exporter or producer to an unaffiliated person. (2) The price of other subject merchandise sold by the exporter or producer to an unaffiliated person. If there is not a sufficient quantity of sales to provide a reasonable basis for comparison under paragraph (1) or (2), or [Commerce] determines that neither of the prices described in such paragraphs is appropriate, then the [CEP] may be determined on any other reasonable basis. 19 U.S.C. § 1677a(e). B. Factual Background On February 18, 1999, Koyo requested that Commerce apply the Special Rule pursuant to 19 U.S.C. § 1677a(e) for certain of Koyo's imported bearings and bearing parts further manufactured in the United States prior to being sold to an unaffiliated customer. See Koyo's Mem. Ex. A. Moreover, Koyo requested that Commerce exempt it from completing Section E of Commerce's questionnaire that required Koyo to report sales and cost data information for its further manufactured sales. See id. Ex. A at 2. Commerce notified Koyo on March 11, 1999, that based on certain information provided by Koyo, Commerce determined that Koyo is required to provide additional information regarding its sales of further manufactured bearings, and mandated that Koyo respond to Section E of Commerce's questionnaire. See id. Ex. B. Koyo declined to provide this additional information. See id. Ex. F. Commerce explained that the record does not lead [Commerce] to conclude that the use of either of the two alternative methods described in [1677a(e)(1) and (2)] with respect to Koyo's further-manufactured [subject] merchandise is appropriate. As noted in [the Preliminary Results, 64 Fed. Reg. 53,323,] the finished merchandise sold by Koyo to the first unrelated [United States] customer was still in the same class or kind as merchandise within the scope of the TRB order and finding (i.e., imported TRB components were processed into TRBs). As a result, the calculation of the precise amount of value added for Koyo's further-manufactured sales would not be nearly as burdensome as it would be for ... [ ]other respondents] who imported TRBs for incorporation in automobiles and transmission assemblies. Furthermore, in prior reviews [Commerce] ha[s] calculated margins for Koyo's further-processed sales and has extensive experience with and knowledge of Koyo's further-manufactured sales and the calculation of the value added in the United States with respect to these sales. In addition, the record clearly indicates that Koyo's further-manufactured [United States] sales represented a large portion of its total [United States] sales during the POR. Furthermore, A-588-604 margins [Commerce] ha[s] calculated for Koyo for determinations in past reviews in which further-manufactured sales were included in [Commerce's] databases have been *1367 significantly higher than margins [Commerce] ha[s] calculated in past reviews of Koyo in the A-588-604 case in which there were no further-manufactured sales in [Commerce's] analysis. This indicates that, in this particular case, the margins on further-manufactured sales are not necessarily equivalent to the margins on non-further-manufactured sales. Thus, the standard methodology would likely yield more accurate results in this case. Consideration of this difference in past Koyo margins in which further-manufactured sales were included in [Commerce's] analysis cannot be overlooked in [Commerce's] evaluation of the additional accuracy [Commerce] would likely gain by using the standard methodology in this case. Therefore, for all of the above reasons, in this case [Commerce] ha[s] determined that the relatively small reduction of burden on [Commerce] that would result from resorting to either of the two proxy methods under the [S]pecial [R]ule would be outweighed by the potential distortion and losses in accuracy as a consequence of their use. Accordingly, for this case [Commerce] ha[s] rejected the use of either of the two proxies as inappropriate and ha[s] sought to calculate the CEP for Koyo's further manufactured sales using another reasonable basis. Issues & Decision Mem. at 12. As another reasonable method, Commerce chose its standard methodology under 19 U.S.C. § 1677a(d)(2) to calculate the CEP of Koyo's further-manufactured merchandise and found that this methodology was not burdensome and "presented a higher probability of accurate results than using margins calculated for non-further manufactured sales." Def.'s Mem. at 78 (citing Issues & Decision Mem. at 13-14). Koyo objected to the use of Commerce's standard methodology for calculating the CEP of its further-manufactured TRB merchandise and suggests that instead of evaluating whether the margins for finished over-4-inch A-588-604 bearings were an appropriate surrogate for A-588-604 further-manufactured merchandise, [Commerce] could have used the margins it calculated for finished A-588-054 bearings as a proxy for that A-588-604 merchandise which was further processed into under-4-inch bearings, and the margins calculated for the finished A-588-604 bearings as a proxy for that A-588-604 merchandise which was further processed into over-4-inch bearings. Issues & Decision Mem. at 13. Commerce responded that [w]hile Koyo's proposal would be less burdensome than the use of the standard methodology, the record clearly indicates that the use of the standard methodology for Koyo would yield more accurate results: [Commerce] believe[s] that the gains in accuracy [Commerce] would achieve would outweigh any burden resulting from the use of the standard calculation. Koyo suggests an alternative method for grouping its nonfurther-manufactured sales such that the division of merchandise subject to the TRB order and finding would be breached. Not only has [Commerce] never before breached the division between orders in any aspect of [Commerce's] analysis or calculations, but Koyo has provided no evidence that its alternative would yield results more accurate than [Commerce's] standard methodology. The record contains no compelling reasons for [Commerce] to abandon [Commerce's] long-standing policy of treating orders as separate proceedings. Rather, the record supports [Commerce's] continued use of the standard methodology as a reasonable basis for calculating the CEP for Koyo's further-manufactured merchandise. *1368 Id. at 13-14. Since Koyo failed to comply with Commerce's request that Koyo complete Section E of Commerce's questionnaire, Commerce applied, as adverse facts available, "the highest rate ever calculated for Koyo in any previous review of the TRBs at issue[, ... and applied this] rate... to the total entered value of Koyo's further-manufactured sales" to calculate the CEP of Koyo's further-manufactured merchandise. Def.'s Mem. at 82-83. C. Contentions of the Parties 1. Koyo's Contentions Koyo contends that it submitted certain information to Commerce illustrating that the "value added in the United States to imported TRB parts exceeded substantially the value of those parts, and that [such information] satisfied the prerequisites for the application of the statutory `special rule,' 19 U.S.C. § 1677a(e)...." Koyo's Mem. at 14. Accordingly, Commerce should have calculated Koyo's CEP of further processed merchandise sales by implementing a methodology other than what Commerce uses in its standard analysis. See id. at 15, 19. Koyo asserts that "Congress' use of the word `shall' in the first paragraph of section 1677a(e)[17] demonstrates that [Commerce] is not given discretion [regarding its] use [of] the `special rule,' but is directed to do so whenever [Commerce] finds that the value added in the United States is likely to exceed substantially the value of the imported components." Id. at 19. Koyo also argues that Commerce's mandate that Koyo submit a full Section E response to Commerce's questionnaire "ignored the clear language" of 19 U.S.C. § 1677a(e) directing Commerce to calculate CEP of further processed merchandise sales on a "more reasonable" and "less burdensome" manner. See id. 19-20. According to Koyo, the case at bar concerns the issue of whether Commerce acted reasonably and within its statutory limits by applying the Special Rule, as provided for in 19 U.S.C. § 1677a(e), in addition to relying on its standard further-manufacturing methodology, provided for in 19 U.S.C. § 1677a(d)(2) (1994), and requesting from Koyo a Section E response. See id. at 20-22. Koyo asserts that 19 U.S.C. §§ 1677a(d) and 1677a(e) are mutually exclusive and, as such, Commerce may not employ its standard analysis as an "other reasonable basis" under § 1677a(e). See id. at 22. In other words, when the Special Rule applies, Commerce "is foreclosed from deducting the cost of further manufacture^ TRBs]... and must rely on an alternative basis to calculate the margins on further processed merchandise." Koyo's Resp. at 15. Koyo further argues that the facts in the record fail to support Commerce's justifications for applying the standard analysis under the Special Rule, but rather that Commerce's conclusion is based on a "false premise ... that the differences between the margins of further processed and non-further processed merchandise in past reviews are indicative of the results in the current review." Koyo's Mem. at 23. Although Koyo recognizes that Commerce may use knowledge it has developed from prior reviews regarding some *1369 aspects of Koyo's participation in the antidumping process, there has been no administrative review for Koyo in which the record reflects data on Koyo's further processed TRBs since 1993/94. Id. at 23. Koyo proposed to Commerce an alternative methodology on which to calculate the dumping margins in this POR, which Koyo claims Commerce "erroneously rejected." See id. at 24-27. Koyo also raises issue with Commerce's "confusion" regarding the formula Commerce is to apply in determining the relative accuracy of the standard methodology. Koyo cites to various pages of the Issues & Decision Mem. claiming that Commerce fails to consistently apply the appropriate test measuring the relative "accuracy" of Commerce's standard methodology versus the implementation of an alternative methodology. See id. at 27-28. 2. Commerce's Contentions Commerce contends that Congress has granted to Commerce broad discretion in determining when the use of "any other reasonable basis" under 19 U.S.C. § 1677a(e) is appropriate. Def.'s Mem. at 79-82. Commerce maintains that "[n]either the statute nor the SAA prohibits Commerce from using the more burdensome standard [19 U.S.C. § 1677a](d)(2) methodology as an alternative reasonable method where the agency finds that neither alternative under [§ 1677a](e)(1) or (e)(2) is appropriate." Id. at 81. In this case, Commerce determined that the record does not lead [Commerce] to conclude that the use of either of the two alternative methods described in [§§ 1677a(e)(1) and (2)] with respect to Koyo's further-manufactured merchandise is appropriate. As noted in [Commerce's Preliminary Results, 64 Fed. Reg. 53,323,] the finished merchandise sold by Koyo to the first unrelated [United States] customer was still in the same class or kind as merchandise within the scope of the TRB order and finding (i.e., imported TRB components were processed into TRBs). As a result, the calculation of the precise amount of value added for Koyo's further-manufactured sales would not be nearly as burdensome as it would be for ... another respondent who imported TRBs for incorporation in automobiles and transmission assemblies. Furthermore, in prior reviews Commerce ha[s] calculated margins for Koyo's further-processed sales and ha[s] extensive experience with and knowledge of Koyo's further-manufactured sales and the calculation of the value added in the United States with respect to these sales. In addition, the record clearly indicates that Koyo's further-manufactured [United States] sales represented a large portion of its total [United States] sales during the POR. Furthermore, A-588-604 margins [Commerce] ha[s] calculated for Koyo for determinations in past reviews in which further-manufactured sales were included in [Commerce's] databases have been significantly higher than margins [Commerce] ha[s] calculated in past reviews of Koyo in the A-588-604 case in which there were no further-manufactured sales in our analysis. This indicates that, in this particular case, the margins on further-manufactured sales are not necessarily equivalent to the margins on non-further-manufactured sales. Thus, the standard methodology would likely yield more accurate results in this case. Consideration of this difference in past Koyo margins in which further-manufactured sales were included in [Commerce's] analysis cannot be overlooked in [Commerce's] evaluation of the additional accuracy [Commerce] would likely gain by using the standard methodology in this case. Therefore, for all of the above reasons, in this case [Commerce] ha[s] determined that the relatively *1370 small reduction of burden on [Commerce] that would result from resorting to either of the two proxy methods under the special rule would be outweighed by the potential distortion and losses in accuracy as a consequence of their use. Accordingly, for this case [Commerce has] rejected the use of either of the two proxies as inappropriate and ha[s] sought to calculate the CEP for Koyo's further manufactured sales using another reasonable basis. Issues & Decision Mem. at 12. Although Commerce agrees that Koyo's proposed methodology would be less burdensome than Commerce's standard methodology under § 1677a(d)(2), Commerce contends that "... the record clearly indicates that the use of the standard methodology for Koyo would yield more accurate results...." Issues & Decision Mem. at 13-14; Def.'s Mem. at 80. Commerce cites the CAFC's decision in Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1191 (Fed.Cir.1990), recognizing that the purpose behind the antidumping statute is to ensure that Commerce calculates the dumping margins as accurately as possible. See Def.'s Mem. at 80-81. Although Commerce does not dispute that the underlying purposes of the Special Rule is to ensure that Commerce avoid certain complexities involved in implementing the standard methodology set forth in 19 U.S.C. § 1677a(d)(2), Commerce has determined that in the case at bar, achieving accuracy is to outweigh the goal of reducing the burden associated with implementing the standard analysis. See id. at 82. According to Commerce, it acted within its statutory authority and the Court can not "weigh the wisdom of Commerce's legitimate policy choices." Id. Commerce also contends that it acted in accordance with 19 U.S.C. § 1677e when it used the adverse facts available margin rate to calculate the CEP of Koyo's further-manufactured merchandise. See id. In particular, Commerce argues that, since Koyo failed to act to the best of its ability by refusing to respond to the particular section of Commerce's questionnaire, Commerce properly selected the adverse facts available margin rate and applied it to the total entered value of Koyo's further-manufactured merchandise. See id. 82-83. Contrary to Timken's argument that Commerce should have applied facts available to Koyo's total sales value of the furthermanufactured sales rather than to the entered value of Koyo's sales, Commerce maintains that it "is not required by the statute to select a method that is `the most' or `more' reasonably adverse." Id. at 83. In sum, Commerce argues that it has adhered to the statutory language in "choosing the highest margin ever calculated for Koyo in the reviews ... at issues." Id. Commerce contends that it had the discretion to choose the sources and facts upon which Commerce will depend upon to support an adverse interest "when a respondent has been determined to be uncooperative." Id. at 84. According to Commerce, "[t]he adverse facts available rate selected ... in this case represents an increase over past practice; yet, the application of that rate to entered value is consistent with past practice [as well]." Id. at 86; see also id. at 87. Commerce maintains that its application of the adverse facts available rate to the entered value rather than Koyo's sales values of further-manufactured TRBs is consistent with Commerce's practice in determining assessment rates. See id. at 87 (explaining Commerce's calculation of assessment rates under 19 C.F.R. § 351.212(b)). Finally, Commerce argues that adherence to Timken's suggestion that Commerce apply an adverse facts available rate to the total sales value would result in punitive results for Koyo. See id. *1371 3. Timken's Contentions> Timken agrees with Commerce's resort to its standard methodology under 19 U.S.C. § 1677a(d)(2) as an alternative reasonable method and argues that Commerce has broad discretion as when to use "any other reasonable basis" under § 1677a(e). See Timken's Resp. at 8-12. Moreover, Timken maintains that the reason Commerce has not conducted a recent determination on Koyo's further manufactured merchandise is because Koyo has consistently refused to supply Commerce with the necessary information to conduct such a review. See id. at 10. According to Timken, Commerce correctly relied on adverse facts available and reasonably determined that Koyo's further-manufactured TRBs were likely dumped at greater rates than its "fully manufactured" merchandise. See id. Timken further argues that since the United States Customs Service does not maintain CEPs for merchandise imported by related parties, but rather has only entered values, Koyo's proposed methodology would lead to irrational results. See id. at 12. Timken, however, disagrees with Commerce's application of the adverse facts available margin to Koyo's entered value and argues that Commerce should have applied its facts available rate to Koyo's sales value rather than Koyo's entered value. See Timken's Mem. Supp. Mot. J. Agency R. Pursuant R. 56.2 ("Timken's Mem.") at 8-14. Timken contends that Commerce's application of the adverse facts available margin to Koyo's entered value was unlawful because: (1) transfer prices are not reliable, see id. at 11, 15-18; and (2) Commerce "rewarded Koyo's refusal to supply requested information by applying the `facts available' rate to Koyo's entered value, rather than to its sales value, for further-processed merchandise, which resulted in a lower dumping margin for Koyo." Id. at 14. D. Analysis The first issue before the Court is whether Commerce's use of its standard methodology pursuant to § 1677a(d)(2) constitutes another "reasonable basis" under § 1677a(e). To determine whether Commerce's interpretation and application of the antidumping statute is in accordance with law, the Court must undertake the two-step analysis prescribed by Chevron, 467 U.S. 837, 104 S.Ct. 2778. Under the first step, the Court reviews Commerce's construction of a statutory provision to determine whether "Congress has directly spoken to the precise question at issue." Chevron, 467 U.S. at 842, 104 S.Ct. 2778. "To ascertain whether Congress had an intention on the precise question at issue, [the Court] employ[s] the `traditional tools of statutory construction.'" Timex V.I., 157 F.3d at 882 (citing Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778). "The first and foremost `tool' to be used is the statute's text, giving it its plain meaning.... Because a statute's text is Congress's final expression of its intent, if the text answers the question, that is the end of the matter." Id. (citations omitted). The end clause of 19 U.S.C. § 1677a(e) clearly provides Commerce with a great deal of discretion in adjusting CEP for the cost of further manufacture and assembly. See 19 U.S.C. § 1677a(e). Under § 1677a(e), when the value added to subject merchandise in the United States is likely to substantially exceed the value of the merchandise, Commerce must use specified surrogate prices if two conditions are met. See id. The first condition in the preamble of § 1677a(e) that there be "a sufficient quantity of sales to provide a reasonable basis for comparison," is not at issue here. Id. The second condition in the preamble of § 1677a(e) requires Commerce to "determine[ ] that the use of such sales is appropriate." Id. Thus, Commerce *1372 is not forced to use the surrogate prices if it determines that their use is not "appropriate." See id. According to the end clause of § 1677a(e), Commerce is permitted to determine CEP "on any other reasonable basis." Id. Commerce, therefore, may determine the method by which to calculate CEP, when it finds that the use of the surrogate prices is not appropriate. This holds true even if Commerce finds that the value added in the United States "is likely to exceed substantially the value of the subject merchandise...." 19 U.S.C. § 1677a(e). Thus, even if Commerce finds that Koyo's added value substantially exceeds the value of the merchandise, Commerce still has the discretion to refuse to apply the Special Rule. In the case at bar, Commerce determined that the record does not lead [Commerce] to conclude that the use of either of the two alternative methods described in [§§ 1677a(e)(1) and (2)] with respect to Koyo's further-manufactured merchandise is appropriate. As noted in [Commerce's Preliminary Results, 64 Fed. Reg. 53,323,] the finished merchandise sold by Koyo to the first unrelated [United States] customer was still in the same class or kind as merchandise within the scope of the TRB order and finding i.e., imported TRB components were processed into TRBs). As a result, the calculation of the precise amount of value added for Koyo's further-manufactured sales would not be nearly as burdensome as it would be for ... another respondent who imported TRBs for incorporation in automobiles and transmission assemblies. Furthermore, in prior reviews Commerce ha[s] calculated margins for Koyo's further-processed sales and ha[s] extensive experience with and knowledge of Koyo's further-manufactured sales and the calculation of the value added in the United States with respect to these sales. In addition, the record clearly indicates that Koyo's further-manufactured [United States] sales represented a large portion of its total [United States] sales during the POR. Furthermore, A-588-604 margins [Commerce] ha[s] calculated for Koyo for determinations in past reviews in which further-manufactured sales were included in [Commerce's] databases have been significantly higher than margins [Commerce] ha[s] calculated in past reviews of Koyo in the A-588-604 case in which there were no further-manufactured sales in our analysis. This indicates that, in this particular case, the margins on further-manufactured sales are not necessarily equivalent to the margins on non-further-manufactured sales. Thus, the standard methodology would likely yield more accurate results in this case. Issues & Decision Mem. at 12. The Court finds that Commerce acted within the discretion afforded to it by § 1677a(e) in refusing to apply the Special Rule to Koyo in this review. The Court will not require Commerce to use the Special Rule when it finds the use of the Special Rule inappropriate, since the imposition of such a requirement would be contrary to § 1677a(e). Therefore, since Commerce found that neither alternative under §§ 1677a(e)(1) or (e)(2) were appropriate, Commerce's resort to its standard methodology under § 1677a(d)(2) as an alternative reasonable method is affirmed.[18] *1373 Next, the Court must determine whether Commerce's application of the adverse facts available margin rate to Koyo's entered value in order to calculate the CEP of Koyo's further-manufactured merchandise was in accordance with law. The antidumping statute mandates that Commerce use "facts otherwise available" if "necessary information is not available on the record" of an antidumping proceeding. 19 U.S.C. § 1677e(a)(1). In addition, Commerce may use facts available where an interested party or any other person: (1) withholds information that has been requested by Commerce; (2) fails to provide the requested information by the requested date or in the form and manner requested, subject to 19 U.S.C. §§ 1677m(c)(1), (e) (1994); (3) significantly impedes an antidumping proceeding; and (4) provides information that cannot be verified as provided in 19 U.S.C. § 1677m(i). See id. § 1677e(a)(2)(A)-(D). Section 1677e(a) provides, however, that the use of facts available shall be subject to the limitations set forth in 19 U.S.C. § 1677m(d). Once Commerce determines that use of facts available is warranted, § 1677e(b) permits Commerce to apply an "adverse inference" if it can find that "an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information." Such an inference may permit Commerce to rely on information derived from the petition, the final determination, a previous review or any other information placed on the record. See 19 U.S.C. § 1677e(c) (1994). When Commerce relies on information other than "information obtained in the course of [the] investigation or review, [Commerce] shall, to the extent practicable, corroborate that information from independent sources that are reasonably at [its] disposal." Id. In order to find that a party "has failed to cooperate by not acting to the best of its ability," it is not sufficient for Commerce to merely assert this legal standard as its conclusion or repeat its finding concerning the need for facts available. See Ferro Union, Inc. v. United States, 23 CIT 178, 197, 44 F.Supp.2d 1310, 1329 (1999) ("Once Commerce has determined under 19 U.S.C. § 1677e(a) that it may resort to facts available, it must make additional findings prior to applying 19 U.S.C. § 1677e(b) and drawing an adverse inference."). Rather, Commerce must clearly articulate: (1) "why it concluded that a party failed to comply to the best of its ability prior to applying adverse facts," and (2) "why the absence of this information is of significance to the progress of [its] investigation." Ferro Union, 23 CIT at 200, 44 F.Supp.2d at 1331. The Court finds that Commerce's decision to apply adverse facts available was in accordance with law. When Commerce chose to use its standard methodology under § 1677a(d)(2) to calculate the CEP of Koyo's further-manufactured merchandise, Commerce requested that Koyo provide Commerce with responses to the particular section of the questionnaire. In particular, on March 11, 1999, Commerce requested that Koyo provide a response to the specific section of the questionnaire by April 5, 1999. See Koyo's Mem. Ex. B. On April 5, 1999, Koyo responded by letter to Commerce stating that "[b]ecause Koyo believes that it qualifies for application of the `special' rule in 19 U.S.C. § 1677a(e), and has little confidence that it will receive even-handed treatment from [Commerce] in the calculation of the fair value of TRBs further-processed from imported forgings," Koyo declines to submit the Section E response. Koyo's Mem. Ex. F. As a result of Koyo's refusal to provide responses to the particular section and *1374 thereby, failure to act to the best of its ability, Commerce selected "as adverse facts available to Koyo's further-manufactured merchandise the highest rate ever calculated for Koyo in any segment of the A-588-604 proceeding (41.04 percent)." Issues & Decision Mem. at 14. Consequently, Commerce's decision to apply the adverse facts available rate to Koyo's entered value to calculate the CEP of Koyo's further-manufactured merchandise was also in accordance with law. The Court also finds that Timken's argument that Commerce should have applied the adverse facts available rate to Koyo's sales value is without merit. As Commerce correctly argues, "[i]n choosing among the facts available, [Commerce] is not required by the statute to select a method that is `the most' or `more reasonably adverse.' " Issues & Decision Mem. at 17. Rather, this Court affirms Commerce's application of the adverse facts available rate to Koyo's entered value since Commerce's methodology was reasonable. Accordingly, the Court sustains Commerce's resort to its standard methodology under § 1677a(d)(2) and its application of the adverse facts available rate to Koyo's entered value to determine the CEP of Koyo's further-manufactured merchandise. XI. Commerce's Methodology for Calculating Koyo's Assessment Rate for Antidumping Duties A. Background In the subject review, Commerce, following its usual practice in ascertaining cash deposit rates and assessment rates, stated that "[t]he cash deposit rate has been determined on the basis of the selling price to the first unaffiliated [United States] customer. For appraisement purposes, where information is available, [Commerce] will use the entered value of the merchandise to determine the assessment rate." Final Results, 65 Fed.Reg. at 11,769. Any of Commerce's findings concerning assessment rates and cash deposit rates are subject to 19 U.S.C. § 1675(a)(1)(B) (1994) which provides that Commerce shall "review, and determine (in accordance with [§ 1675(a) ](2)), the amount of any antidumping duty...." Section 1675(a)(2) further states that the dumping margin "shall be the basis for the assessment of... antidumping duties on entries of merchandise...." 19 U.S.C. § 1675(a)(2)(C). The dumping margin (equal to the amount of antidumping duty owed) is the amount by which NV exceeds the EP or CEP on the subject merchandise sold during the POR.[19]See 19 U.S.C. § 1677(35) (1994). Normal value is the comparable price for a product like the imported merchandise when first sold (generally, to unaffiliated parties) "for consumption in the exporting country, in the usual commercial quantities and in the ordinary course of trade and, to the extent practicable, at the same level of trade as the export price or constructed export price." 19 U.S.C. § 1677b(a)(1)(B)(i) (1994). The export price means the "price at which the subject merchandise is first sold... by the producer or exporter of the subject merchandise outside of the United States to an unaffiliated purchaser," while the constructed export price is the "price at which the subject merchandise is first sold ... in the United States ... [by] producer or exporter ... to a purchaser *1375 not affiliated with the producer or exporter...." 19 U.S.C. § 1677a(a), (b) (1994). Cash deposit is a provisional remedy. When Commerce directs Customs to suspend liquidation upon a preliminary determination of dumping, the importer must make a cash deposit of estimated antidumping duties with Customs or post a bond or other security. See 19 U.S.C. § 1675(a)(2)(B)(iii). Commerce orders the posting of a cash deposit in an amount equal to the estimated average amount by which the foreign market value exceeds the United States price, that is, the dumping margin. See 19 U.S.C. § 1673b(d)(1)(B) (1994); see also 19 U.S.C. § 1673e(b) (applying similar calculation for Commerce's final determination). Commerce then calculates the cash deposit rate by dividing " `the aggregate dumping margins by the aggregated United States prices.'" National Steel Corp. v. United States, 20 CIT 743, 746, 929 F.Supp. 1577, 1581 (1996) (citing 19 C.F.R. § 353.2(f)(2) (1993)); accord 19 U.S.C. § 1677(35)(B) (stating that " `weighted average dumping margin' is the percentage determined by dividing the aggregate dumping margins... by the aggregate export prices ..."). Commerce interprets the term "United States price" as the sale price after Commerce has made all adjustments as provided for by law. See National Steel, 20 CIT at 746, 929 F.Supp. at 1581 (citing 19 C.F.R. § 353.41(d)(iii) (1993)). When an antidumping duty is imposed upon imported merchandise, Commerce calculates an assessment rate for each importer by dividing the dumping margin for the subject merchandise by the entered value of such merchandise for normal Customs purposes. See 19 C.F.R. § 351.212(b) (1998). In promulgating 19 C.F.R. § 351.212(b), Commerce reasoned as follows: [Section] 351.212(b)(1) deal[s] with the method that [Commerce] will use to assess antidumping duties upon completion of a review.... [Commerce] provided that it normally will calculate an "assessment rate" for each importer by dividing the absolute dumping margin found ... by the entered value.... [The rule] merely codified an assessment method that [Commerce] has come to use more and more frequently in recent years. Historically, [Commerce] (and, before it, the Department of the Treasury) used the so-called "master list" (entry-by-entry) assessment method. Under the master list method, [Commerce] would list the appropriate amount of duties to assess for each entry of subject merchandise separately in its instructions to the Customs Service. However, in recent years, the master list method has fallen into disuse for two principal reasons. First, in most cases, respondents have not been able to link specific entries to specific sales, particularly in CEP situations in which there is a delay between the importation of merchandise and its resale to an unaffiliated customer[ ]. Absent an ability to link entries to sales, [Commerce] cannot apply the master list method. Second, even when respondents are able to link entries to sales, there are practical difficulties in creating and using a master list if the number of entries covered by a review is large. Preparing a master list that covers hundreds or thousands of entries is a time-consuming process, and one that is prone to errors by [Commerce] and/or Customs Service staff.... Antidumping Duties; Countervailing Duties, 62 Fed.Reg. 27,296, 27,314 (May 19,1997). B. Contentions of the Parties 1. Koyo's Contentions Koyo asserts that Commerce unlawfully calculated the antidumping duty assessment *1376 rate under 19 C.F.R. § 351.212(b) because Commerce used the entered value for the subject merchandise as the denominator in the formula. See Koyo's Mem. at 34-38. Koyo alleges that because 19 U.S.C. § 1675(a)(2) requires that the dumping margin be calculated as the difference between NV and CEP, and since NV and CEP are both price-based concepts, the logic of the statute necessitates that the denominator used in the formula must also be a price-based concept, specifically, sales value. See id. at 36. Koyo, therefore, concludes that Commerce's use of entered value instead of sales value as the denominator is unreasonable. See id. at 37-38. Koyo recognizes this Court's earlier decision in Koyo Seiko Co. v. United States ("Koyo 2001"), 110 F.Supp.2d 934 (2000), aff'd, 258 F.3d 1340 (Fed.Cir.2001), sustaining Commerce's methodology for calculating the assessment rate, but argues that Koyo's arguments in the case at bar differ since in Koyo's CEP transactions, the entered value is based on transactions between the foreign exporter and its single United State's affiliate. Koyo adds that "[t]he antidumping statute generally does not focus on transactions between affiliated parties ... which is why, in a CEP situation, the statute provides that the [United States] price is to be based on the transaction between the [United States]... affiliate and the first unaffiliated purchaser ____" Koyo's Mem. at 37. According to Koyo, Commerce's stated reason for using the entered value would apply only if Koyo's subject merchandise were imported by multiple parties, and if Commerce had included the entered value from those multiple parties in the denominator of its assessment rate. See id. Koyo claims that, in the case at bar, all of Koyo's merchandise was imported by one United States affiliate, and the entered value used to calculate the assessment rate consisted solely of the entered value of the subject merchandise reported by the single United States affiliate. See id. 2. Commerce's Contentions Commerce contends that the calculation of the assessment rate pursuant to 19 C.F.R. § 351.212(b) by dividing the dumping margin by the entered value of the subject merchandise was reasonable and in accordance with law. See Def.'s Mem. at 88-93. In response to Koyo's contention that the court in Koyo 2001 fails to properly address the issue that the denominator in Commerce's formula must parallel the numerator, Commerce cites to Torrington Co. v. United States, 44 F.3d 1572, 1578 (Fed.Cir.1995). The court in Torrington Co., 44 F.3d at 1578, held that 19 U.S.C. § 1675(a) does not "specify a particular divisor when calculating either assessment rates or cash deposit rates." According to Commerce, the "dumping margin or the amount by which the normal value exceeded the export price or [CEP], serves as the basis for the assessment of antidumping duties." Defs Mem. at 90. Commerce further argues CEP is "calculated to be, as closely as possible, a price corresponding to an export price between non-affiliated exporters and importers." Id. (citing SAA at 812). Commerce also addresses the argument regarding the importation of Koyo's merchandise by only one United States affiliate. According to Commerce, "it ha[s] other valid motives for adopting entered values as the denominator, for example, administrative ease, accuracy, promptness and efficiency." Id. at 91 (citation omitted). Furthermore, Commerce argues that "it would be unreasonable, if not anomalous, for Commerce to devise an assessment rate formula for importers enjoying exclusivity with manufacturers different *1377 from the formula applied to all other importers...." Id. Timken generally supports Commerce and points out that, contrary to Koyo's claim, there is binding precedent by the CAFC recognizing Commerce's discretion to use different calculations to determine a duty deposit and assessment rate. Timken's Resp. at 11 (citing Torrington Co., 44 F.3d at 1576,1581). C. Analysis In Koyo 2001, 110 F.Supp.2d at 934, this Court determined and the CAFC affirmed Commerce's methodology for calculating the assessment rate, that is, using the entered value of Koyo's imported merchandise in the assessment rate formula rather than sales value. The Court noted that neither 19 U.S.C. §§ 1675(a)(1)(B) and (a)(2) "nor its legislative history provided] an `unambiguously express intent' with regards to the" issue of whether Commerce could use entered value rather than sales value in its calculation of the assessment rate. Koyo 2001, 110 F.Supp.2d at 940. The Court is unpersuaded by Koyo's argument that its contentions in the case at bar differ from those presented in Koyo 2001, 110 F.Supp.2d at 939. Accordingly, the Court adheres to its reasoning in Koyo 2001 and, therefore, affirms Commerce's methodology of calculating the assessment rate as reasonable and in accordance with law. XII. Commerce's Allowance of NTN to Exclude Non-Scope Merchandise From NTN's United States Selling Expenses (Timken) A. Background In the underlying review, NTN excluded certain expenses attributable to non-scope merchandise from its reported United States indirect selling expenses. See Issues & Decision Mem. at 23-24; Def.'s Mem. at 93. In particular, [b]ecause certain of NTN's [United States] expenses were incurred solely for non-scope merchandise, NTN first removed all such expenses from its pool of [United States] expenses.... The remaining expenses, which NTN could not specifically link to either scope or non-scope merchandise, were then allocated to scope and non-scope merchandise. Def s Mem. at 95; see Issues & Decision Mem. at 23. In accepting NTN's methodology of reporting its United States indirect selling expenses, Commerce: (1) verified NTN's United States expenses finding no discrepancies; and (2) stated that it has found NTN's methodology to be reasonable in past TRB and antifriction bearings cases. See Defs Mem. at 95. Commerce also explained how it eliminated the possibility of distortion in NTN's methodology when [Commerce] calculated a ratio of sales of scope merchandise to all sales.... Commerce then adjusted NTN's reported final indirect selling expense by adding or subtracting various expenses to arrive at a final indirect selling expense. Next, Commerce multiplied that total expense by the ratio of scope-to-total products. Def.'s Mem. at 96 (referencing Def.'s Mem. Ex. 3 (proprietary version) and Prelim. Analysis Mem.). B. Contentions of the Parties Timken argues that Commerce improperly permitted NTN to exclude certain expenses attributable to non-scope merchandise from its reported United States indirect selling expenses. See Timken's Mem. at 19; Reply Br. Timken ("Timken's Reply") at 6-8; Issues & Decision Mem. at 23-24. In particular, Timken asserts that NTN failed to meet its burden by not *1378 providing Commerce with full and affirmative documentation that would lead Commerce to reasonably conclude that NTN was entitled to an adjustment to its United States selling expenses. See Timken's Mem. at 24. According to Timken, the record is filled with "confused, contradictory, and apparently illogical statements" regarding certain NTN United States expenses and, therefore, Commerce's decision to allow an adjustment was unsupported by substantial record evidence. See id. at 24-28. Timken claims that Commerce erred by accepting NTN's unproven claim and requests that the Court "reject Commerce's summary acceptance of NTN's unjustified claim and order that... Commerce include [the expenses in question] in the pool of [NTN's] indirect selling expenses...." Id. at 28. Timken also contends that even if the Court finds that NTN had demonstrated that such excluded expenses were incurred for out-of-scope merchandise, NTN's methodology "double-allocates expenses to non-scope merchandise" and, therefore, should be rejected. Id. Commerce responds that 19 U.S.C. § 1677a(d), "as amended by the URAA, continues to be silent on the question of allocation methods." Def.'s Mem. at 93-94. Commerce maintains that it found no discrepancies during its verification of NTN's United States expenses and eliminated the possibility of distortion in NTN's methodology when [Commerce] calculated a ratio of sales of scope merchandise to all sales.... Commerce then adjusted NTN's reported final indirect selling expense by adding or subtracting various expenses to arrive at a final indirect selling expense. Next, Commerce multiplied that total expense by the ratio of scope-to-total products. Def.'s Mem. at 96 (referencing Def.'s Mem. Ex. 3 (proprietary version and Prelim. Analysis Mem.)) Pointing out that NTN's allocation methodology was reasonable and not distortive, Commerce asserts that the Court should uphold NTN's reported allocation for United States indirect selling expenses. See id. at 96-97. NTN generally agrees with Commerce and argues that Timken has fundamentally misunderstood NTN's reported data regarding NTN's United States indirect selling expenses. See NTN's Resp. Mem. Timken's Nov. 20, 2000 Mem. Supp. R. 56.2 Mot. J. Agency R. ("NTN's Resp.") at 2. According to NTN, Commerce's decision to accept NTN's "reported pool of allocated expenses for [United States] indirect selling expenses is reasonable, and in accordance with law, and Timken's arguments are misguided and confused." Id. NTN claims that the record clearly shows that the expenses excluded from NTN's pool of allocated expenses were for merchandise outside the scope of Commerce's order. See id. NTN also asserts that its methodology ensures accuracy and avoids double allocation of expenses. See id. at 2-4 C. Analysis The Court upholds Commerce's decision to allow NTN to exclude from its United States selling expenses certain expenses attributable to non-scope merchandise since it is in accordance with law. The Court notes that 19 U.S.C. § 1677a(d) is silent on the question of allocation methods and, thus, grants Commerce considerable discretion. Under 19 C.F.R. § 351.401(g)(1998), Commerce "may consider allocated expenses and price adjustments when transaction-specific reporting is not feasible, provided [Commerce] is satisfied that the allocation method used does not cause inaccuracies or distortions." In addition, pursuant to 19 C.F.R. § 351.401(g)(4), Commerce "will not reject an allocation method solely because the method includes expenses incurred, or *1379 price adjustments made, with respect to sales of merchandise that does not constitute subject merchandise or a foreign like product (whichever is applicable.)" Based on a careful examination of the record and on the regulatory language of 19 C.F.R. §§ 351.401(g) and (g)(4) that grants Commerce considerable discretion in choosing allocation methods, the Court sustains Commerce's decision to accept NTN's United States selling expenses as reasonable, supported by substantial evidence and in accordance with law. See Skidmore v. Swift & Co., 323 U.S. 134, 139-40, 65 S.Ct. 161, 89 L.Ed. 124 (1944). CONCLUSION This case is remanded to Commerce to annul all findings and conclusions made pursuant to the duty absorption inquiry conducted for the subject review in accordance with this opinion. All other issues are affirmed. NOTES [1] On June 5, 2000, this Court granted NSK's Consent Motion for Intervention but NSK has not filed any briefs in its capacity as a defendant-intervenor in this action. [2] Since the administrative review at issue was initiated after December 31, 1994, the applicable law is the antidumping statute as amended by the Uruguay Round Agreements Act ("URAA"), Pub.L. No. 103-465, 108 Stat. 4809 (1994) (effective January 1, 1995). See Torrington Co. v. United States, 68 F.3d 1347, 1352 (Fed.Cir.1995) (citing URAA § 291(a)(2), (b) (noting effective date of URAA amendments)). [3] The full title of this document is Final Results of Antidumping Duty Administrative Reviews and Revocation in Part of Issues and Decision Memorandum for the 1997-1998 Administrative Reviews of Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan (generally accessible on the internet at http://ia.ita.doc.gov/frn/summary/japan/XX-XXXX-X.txt). Although the parties have included excerpts from this document as attachments to their memoranda to support their claims, the Court, in the interest of clarity, will refer to this document as Issues & Decision Mem. and match pagination to the printed documents provided by each party. [4] In Commerce's Issues & Decision Mem., Commerce explains how material costs are a component of VCOM and TCOM which in turn, are both components of COP and CV. See Issues & Decision Mem. at 31. Therefore, when Commerce adjusted NSK's reported material costs, it not only calculated COP and CV, but also recalculated VCOM and TCOM. See id. In turn, since Commerce relies upon VCOM and/or TCOM in running its modelmatch methodology, calculating the difmer adjustment and inventory carrying costs, Commerce asserts that its use of affiliated supplier cost data for purposes other than the calculation of COP and CV was reasonable and in accordance with law. See id. at 31-32. [5] The Court assumes that Commerce is referring to 19 U.S.C. § 1677b(a)(6) (1994) and not 19 U.S.C. § 1677a(a)(6) (1994). [6] In particular, Commerce refers to its methodology in Final Results of Antidumping Duty Administrative Reviews of Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Sweden, and the United Kingdom, 64 Fed.Reg. 35,-590, 35,612 (July 1, 1999), Notice of Final Determination of Sales at Less Than Fair Value of Stainless Steel Round Wire from Taiwan, 64 Fed.Reg. 17,336 (Apr. 9, 1999), Final Results of Antidumping Duty Administrative Reviews of Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan, 63 Fed. Reg. 63,860, 63,868 (Nov. 17, 1998), and Final Results of Antidumping Duty Administrative Reviews of Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan, 63 Fed. Reg. 2558, 2573 (Jan. 15, 1998). [7] Section 1677b(b)(3)(A) sets out that Commerce shall calculate COP by adding: (1) the cost of materials and of fabrication; and (2) an amount for selling, general, and administrative expenses; and (3) the cost of all expenses incidental to placing a foreign like product in condition ready for transit. [8] For a complete discussion of background information and the statutory provisions at issue, the reader is referred to this Court's decision in NTN Bearing Corp. of Am. v. United States, 24 CIT ___, ___, 104 F.Supp.2d 110, 125-128 (2000). [9] The SAA represents "an authoritative expression by the Administration concerning its views regarding the interpretation and application of the Uruguay Round agreements." H.R. Doc. 103-316, at 656 (1994), reprinted in 1994 U.S.C.C.A.N. 4040. "It is the expectation of the Congress that future Administrations will observe and apply the interpretations and commitments set out in this Statement." Id.; see also 19 U.S.C. § 3512(d) (1994) ("The statement of administrative action approved by the Congress ... shall be regarded as an authoritative expression by the United States concerning the interpretation and application of the Uruguay Round Agreements and this Act in any judicial proceeding in which a question arises concerning such interpretation or application"). [10] The CAFC's decision effectively overturned the Court of International Trade's determination with respect to this issue in Borden, 22 CIT 233, 4 F.Supp.2d 1221, a case discussed by the parties in the instant matter. [11] Specifically, NTN refers to Exhibit C-7 of its February 11, 1999 response to Commerce's questionnaire. See Issues & Decision Mem. at 37. [12] Specifically, Commerce refers to exhibits B-6 and pages A-9 and A-15 of NTN's February 9, 1999 response to Commerce's questionnaire. See Issues & Decision Mem. at 38. [13] NTN points to various exhibits provided to Commerce in response to Commerce's questionnaire regarding NTN's selling expenses among varied LOTs. See NTN's Mem. at 25 (proprietary version). [14] The Court disagrees with NTN's assertion that Commerce failed to articulate any legal argument that supports Commerce's methodology in the POR at issue, and refers NTN to Commerce's comments in the Issues & Decision Mem. and Prelim. Analysis Mem., see infra note 15, which adequately explain why Commerce reallocated all of NTN's selling expenses with exception to NTN's home market packing expenses. See Issues & Decision Mem. at 37-38. [15] Commerce explained its preliminary methodology for the POR at issue in Analysis Memorandum for Preliminary Results of the 1997-98 Review-NTN Corporation of Antidumping Duty Order on Tapered Roller Bearings and Parts Thereof From Japan ("Prelim. Analysis Mem." ). See NTN's Mem.App. 5 (proprietary version). [16] Commerce has excluded NTN's home market zero-price sample sales from its determination, and therefore the Court refuses to consider any argument or evidence pertaining to such. See Issues & Decision Mem. at 44 n. 91. See generally NTN's Mem. at 31. [17] The pertinent section reads that Commerce... shall determine the constructed export price for [subject merchandise that is imported by an affiliated exporter and the value added in the United States is likely to substantially exceed the subject merchandise's value] by using one of the following prices[:] ... (1) [t]he price of identical subject merchandise sold by the exporter ... to an unaffiliated person [; or] (2) [t]he price of other subject merchandise sold by the exporter ... to an unaffiliated person. 19 U.S.C. § 1677a(e). [18] Although Koyo proposes alternative methodologies, the Court's "duty is not to weigh the wisdom of, or to resolve any struggle between, competing views of the public interest, but rather to respect legitimate policy choices made by the agency in interpreting and applying the statute." Suramerica de Aleaciones Laminadas, C.A. v. United States, 966 F.2d 660, 665 (Fed.Cir.1992). [19] Because Koyo had only CEP sales during the POR, Koyo's arguments address only the calculation of the assessment rate for CEP sales. See Koyo's Reply at 22 n. 10. However, for the purpose of our analysis, the outcome would be identical if Koyo had both EP and CEP or only EP sales during the POR.

429 F.2d 248 Willie A. HARRIS and Anita Harris, Appellants,v.The POTOMAC EDISON COMPANY, a body corporate, Appellee.Willie A. HARRIS and Anita Harris, Appellees,v.The POTOMAC EDISON COMPANY, a body corporate, Appellant. Nos. 14074, 14075. United States Court of Appeals, Fourth Circuit. Argued June 4, 1970.Decided July 10, 1970. Gerald Herz, Washington, D.C. (Philip J. Lesser, I. Irwin Bolotin, and Lesser & Lesser, Washington, D.C., on brief), for Willie A. Harris and Anita Harris. Herbert F. Murray, Baltimore, Md. (Michael A. Pretl and Smith, Somerville & Case, Baltimore, Md., on brief), for The Potomac Edison Co. Before HAYNSWORTH, Chief Judge, BRYAN, Circuit Judge, and WIDENER, District Judge. PER CURIAM: 1 For the reasons stated by the District Court we accept its finding that the plaintiff was contributorily negligent when he came in contact with the hot, electric power line. There is an adequate basis in the record for the finding, so that its acceptance is compelled. F.R.Civ.P. Rule 52. 2 Accordingly, entry of judgment for the defendant was appropriate. 3 Affirmed.

202 F.2d 537 HARRIS et al.v.SABINE TRANSP. CO., Inc.THE AUGUSTUS B. HARRIS. No. 14013. United States Court of Appeals Fifth Circuit. February 27, 1953. Rehearing Denied April 15, 1953. Selim B. Lemle, Lemle & Kelleher, New Orleans, La., proctors for John J. Harris, d/b/a Augustus B. Harris & Son, and Globe Indemnity Co., appellants. Edwin H. Grace, John D., M. A. & Edwin H. Grace, New Orleans, La., proctors for Sabine Transp. Co., Inc., appellee. Before BORAH, RUSSELL and STRUM, Circuit Judges. BORAH, Circuit Judge. 1 This is a case in admiralty arising out of a collision which occurred in the Gulf Intracoastal Waterway at about 8:00 p. m. on the night of February 4, 1947, when the tug Admiral was in collision with and was sunk by the tow of an overtaking tug, the Augustus B. Harris. 2 Sabine Transportation Company, Inc., the owner of the Admiral, filed a libel against the tug Augustus B. Harris in the United States District Court for the Eastern District of Louisiana, following which John J. Harris, doing business as Augustus B. Harris & Son, filed his claim as owner of the tug Augustus B. Harris and executed a release bond with Globe Indemnity Company as surety. The cause came on for hearing and after consideration of the pleadings and proofs the District Court made appropriate findings and entered its final decree holding the Harris solely at fault for the collision and fixing libelant's damages in the amount of $21,210.59, with interest and costs. From this final decree the claimant and surety have appealed. 3 The errors assigned relate principally to the fact findings of the district court and appellants insist that since these findings were based solely on deposition testimony the hearing on appeal is de novo and we should make such decree as ought to have been made. This we shall do. 4 The collision occurred in a straight reach of the Intracoastal Waterway at a point approximately 232 miles west of the locks at Harvey, Louisiana. The waterway at and near the point of collision runs approximately east and west and has a channel width of 125 feet and a depth of 12 feet. Some 600 to 700 feet west of the point of collision, and approximately at milepost 232, the waterway bends gradually to the south. On the evening of the day in question, the Admiral, a 160 horsepower diesel tug, was proceeding west on the waterway at a speed of about 5 miles per hour over the ground pushing in the order named the lead barge STCO No. 109, 150 feet long, 37 foot beam, and the barge STCO No. 121, 137 feet long, 40 foot beam, which were loaded with crude oil. The night was clear and moonlit, the wind north, and a strong following tide was running 2½ to 3 miles per hour in a westerly direction. The barges had a loaded freeboard of 13 inches and the length of the entire flotilla was 334.8 feet. Prior to the collision, Elfrey Bell, a deckhand, was in the pilot house at the wheel of the Admiral and the master and the one other crew member were below asleep. On that same evening the Harris, towing astern on a fifteen foot hawser and bridle, and in the order named, the light barges RBC No. 1, 175 feet long, 40 foot beam; D-70, 180 feet long, 36 foot beam; and Harris No. 6, 150 feet long, 35 foot beam, was proceeding west overtaking the Admiral. The Harris had been moving at or near her full speed of 7 to 8 miles per hour but upon approaching milepost 231 she was slowed to half speed, thereby reducing her speed over the ground to 5 or 5½ miles per hour. Upon reducing speed, the Harris moved her tow close to the right or north bank to allow the overtaking towboat White Castle to pass on her port side. It was at this time that Adams, the master of the Harris, first observed the Admiral about a mile ahead near the north bank. 5 After the White Castle had cleared the Harris, Adams ordered that the engine of the Harris be again placed at full speed ahead. Shortly thereafter Crampes, the Harris' engineer, came on deck and saw the Admiral and her tow parallel to and near the north bank and observed the White Castle as she passed the Admiral's flotilla. At this time the Harris was between one-quarter mile and one-half mile behind the Admiral and the latter vessel was then about midway between mileposts 231 and 232. The White Castle had previously exchanged passing signals with the Admiral and after negotiating the passage without incident the Admiral moved over to the middle of the channel. She was navigating there and was approaching the bend which begins near milepost 232 when her helmsman, Bell, first became aware that his tug and tow were being overhauled by the Harris. Bell immediately directed his vessel's course to starboard to get out of the middle of the channel and in this maneuver came over too far and the lead barge struck the right bank. The flotilla's forward motion was stopped and the wheel of the Admiral was immediately put hard over left to keep her stern from swinging to port. A danger signal of four blasts was blown shortly thereafter and the engine speed was increased to the maximum to hold the Admiral in the proper channel. The Harris prior to these occurrences having reduced her speed to half speed continued ahead and in attempting to pass, the forward starboard corner of her lead barge struck the after starboard quarter of the Admiral. The barge slid over the stern of the Admiral and rode up over the top of the engineroom house, sinking the tug which went down stern first almost immediately. The 175 foot lead barge came to rest with her bow on the south bank and the stern of the Admiral was submerged thereunder amidship. 6 It is immaterial here and we need not and do not decide whether the Inland Rules or the Western River Rules are controlling for in either instance the rule places the burden on the overtaking vessel to keep out of the way of the overtaken vessel.1 The Harris under either rule was required to blow a two blast signal prior to attempting to pass the Admiral to port and the Admiral, if she did not think it safe for the Harris to pass at that point, was required to signify the same immediately by giving several short and rapid blasts of the whistle, not less than four.2 Accordingly, our inquiry is whether the rules were so violated by either vessel as to fasten statutory fault upon the offender and subject her to the burden of showing not merely that such fault might not have been one of the causes of the collision, or that it probably was not, but that it could not have been. The Pennsylvania, 19 Wall. 125, 86 U.S. 125, 22 L.Ed. 148; Coyle Lines, Inc. v. United States, 5 Cir., 195 F. 2d 737. However, it is to be recognized that neither vessel is to be condemned for fault which was remote and could not have contributed to the collision. Socony-Vacuum Oil Co., Inc. v. Smith, 5 Cir., 179 F.2d 672. 7 The testimony of the crews of the two vessels respecting the exchange of whistle signals is in irreconcilable conflict. In our view, the question as to whether proper whistle signals were exchanged is important only if the failure to give the signal required by law could have been a contributing cause of the disaster. We think it plain that the Admiral was not misled and further, that she did not deceive the Harris, for as soon as her helmsman became aware of the Harris' presence, he endeavored to facilitate the passing by steering his flotilla from mid-channel toward the starboard side of the fairway. Nor did the Admiral thereafter embarrass the overtaking vessel by failing to blow a danger signal immediately after her lead barge struck the bank, for we are in no doubt that the collision would nevertheless have occurred as the Harris was then attempting to pass, was not in position to do so, and could not have stopped her tow in any event. 8 In the narrow channel where the collision occurred the Admiral was required to keep to the starboard side of the center of the fairway if it was safe and practicable for her to do so. She is not to be condemned for a change of course which was consistent with this obligation. Her fault, if any, in striking the bank assumes importance only if she actually blocked the channel. The Admiral was struck and sunk in mid-channel, the same relative position she had occupied throughout the period in question and there was at all times available to the Harris sufficient free channel for her to have passed in safety had she been prudently navigated. The most that can be said on this record is that the Harris has merely raised a doubt as to the fault of the Admiral and her contribution to the injury. In the absence of clear and convincing evidence, this doubt should be resolved in favor of the Admiral, where, as here, the fault of the Harris was obvious and inexcusable. Socony-Vacuum Oil Co., Inc. v. Smith, supra. 9 The Harris did not comply with the rule of the road which requires that every vessel overtaking any other vessel shall keep out of the way of the overtaken vessel and she is to be excused only on a showing not merely that her fault might not have been one of the causes of the collision but that it could not have been. The Pennsylvania, supra. Such a showing has not been made. There is evidence in this record which fully supports the conclusion that the Harris was rapidly overhauling the Admiral; was near the north bank or in mid-channel and possibly as close as 500 feet astern of the overtaken tug and tow when she began her attempted passage and that it was impossible at that time for the overtaking vessel to have passed. This testimony is most persuasive for it is not reasonable to assume that with a strong following tide underfoot the Harris could have accomplished this maneuver in the limited time and space available to her. The physical facts show that the lead barge of the Harris' tow struck the starboard after quarter of the Admiral and it is obvious that the collision could not have occurred in this manner if the lead barge was not at the moment of impact moving from the starboard side of mid-channel to port. The Harris was required to keep her tow under control and straight behind her. The R. J. Moran, 2 Cir., 299 F. 500; The Ashbourne, 2 Cir., 181 F. 815. This she did not do. We think the Harris' failure to keep well clear of the Admiral's tow not only throughout the approach but during the actual passing was the sole and direct cause of the collision. The Harris should have slowed down and kept at a safe distance, whipped her tow in line, and waited until the Admiral had completed her maneuver of lining up her tow parallel with the right hand bank, before attempting to pass. Charles Warner Co. v. Independent Pier Co., 278 U.S. 85, 49 S.Ct. 45, 73 L.Ed. 195; Socony-Vacuum Oil Co., Inc. v. Smith, supra. Had these precautions been taken, the collision doubtlessly would not have occurred. The Admiral was not responsible for the Harris' maneuver and had the right to assume that the Harris would be navigated with due care. We agree with the District Court that the Harris was wholly to blame and that the Admiral was free from fault. 10 Appellants concede, in the event of a holding that the Harris is solely at fault, that the quantum of damages fixed by the court below is correct except for the allowance of interest which they claim should be withheld because of the inordinate delay in bringing the case to trial. We think it plain from this record that the delay complained of was not attributable to the appellee and that the District Court rightfully followed the general rule in allowing interest from the date of the collision. Managua Nav. Co. v. Aktieselskabet Borgestad, 5 Cir., 7 F.2d 990, 993. We find nothing in this case to justify an exception to the general rule. 11 The decree of the District Court is affirmed with costs. 12 Affirmed. Notes: 1 Inland Rules, 33 U.S.C.A. § 209, Art. 24; Western River Rules, 33 U.S.C.A. § 347, Rule 22 2 Inland Rules, 33 U.S.C.A. § 203, Art. 18, Rule VIII; Pilot Rule VIII for Western Rivers, established by the Board of United States Supervising Inspectors, Steamboat Inspection Service under the authority of R.S. 4412, 46 U.S.C.A. § 381

Case: 15-30647 Document: 00513492004 Page: 1 Date Filed: 05/04/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 15-30647 United States Court of Appeals Fifth Circuit FILED In re: JOSEPH NICHOLAS MOLE, May 4, 2016 Lyle W. Cayce Appellant Clerk Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:11-MC-966 Before BARKSDALE, CLEMENT, and HAYNES, Circuit Judges. PER CURIAM: Attorney Joseph Mole appeals the disciplinary sanction imposed by the en banc court of the Eastern District of Louisiana. The questions presented are whether the en banc court adhered to its own rules and procedures; whether it provided adequate due process; whether its factual findings are supported by the evidence; and whether its chosen sanction was appropriate. Finding no reversible error, we AFFIRM. I. Mole represented Lifemark Hospitals in a lawsuit against Liljeberg Enterprises. 1 Then-judge Thomas Porteous presided. Six weeks before the case went to trial, the Liljeberg parties retained Leonard Levenson and Jacob 1 The facts and procedural history of the case are recounted in In re Liljeberg Enterprises, Inc., 304 F.3d 410 (5th Cir. 2002). This appeal is not concerned with the facts of that case, but with Mole’s professional conduct during the case.  Case: 15-30647 Document: 00513492004 Page: 2 Date Filed: 05/04/2016 No. 15-30647 Amato as counsel. Levenson and Amato were widely known to be close friends of Porteous. Mole filed a motion to recuse Porteous based on the appearance of impropriety created by the enrollment of his close friends as counsel for Liljeberg. Porteous denied the motion. Mole then filed a writ of mandamus with this court, which denied it. Lifemark was concerned that the presence of Levenson and Amato would create an unfair advantage for Liljeberg, so—according to Mole—it insisted that he locate an attorney familiar with Porteous to join the case and help gain equal access to Porteous. Mole eventually identified and hired Don Gardner, a close friend of Porteous. Gardner had no useful experience in the type of litigation pending, and by his own admission, he was hired because Lifemark “wanted to have a pretty face . . . someone who knew the judge.” Mole drafted a letter agreement between Lifemark and Gardner setting out the terms of Gardner’s compensation. The agreement included an initial retainer fee of $100,000 and—most significantly—an additional $100,000 severance fee “in the event that Judge Porteous withdraws or if the case settles prior to trial.” 2 Porteous did not withdraw, and the case proceeded to a bench trial. Porteous took the case under submission and issued his opinion nearly three years later, overwhelmingly in favor of Liljeberg, and overwhelmingly reversed on appeal by this court. 310 F.3d at 469. This court later issued an Order and Public Reprimand against Porteous “for conduct that included violations of ‘several criminal statutes and ethical canons’ while presiding over the Liljeberg litigation, including his denial of Lifemark’s motion to recuse.” The same misconduct also led to Porteous’s impeachment by Congress in 2010. Mole and Gardner both testified before the Senate about the circumstances of Gardner’s 2An earlier draft of the agreement proposed an initial retainer fee of $50,000 and a severance fee of $150,000. 2  Case: 15-30647 Document: 00513492004 Page: 3 Date Filed: 05/04/2016 No. 15-30647 retention by Lifemark. After Porteous’s impeachment, two district judges in the Eastern District of Louisiana filed a disciplinary complaint against attorneys Levenson, Amato, Mole, and Gardner for committing acts “to improperly influence [Porteous] to achieve results that were prejudicial to the administration of justice, including receiving either favorable treatment for their respective clients or a prompt voluntary recusal,” in violation of Rules 8.4(d), (e), and (f) of the Louisiana Rules of Professional Conduct. 3 The Eastern District proceeded under its own Rules for Lawyer Disciplinary Enforcement. 4 First, under Rule 4, the court referred the complaint to the Lawyer Disciplinary Committee. The Committee recommended that the court conduct a hearing. Under Rule 7, the matter was randomly allotted to Judge Helen G. Berrigan to conduct a hearing. After conducting the hearing, Judge Berrigan issued her findings and recommendations to the en banc court. Judge Berrigan found that Mole “diligently represented his client at all times in a manner that is a credit to the profession,” and that any misconduct by Mole was, “at most, ‘negligent’ and time-barred” under the disciplinary rules of the Louisiana Supreme Court. Judge Berrigan recommended that the charges against Mole be dismissed. The en banc court disagreed. It found that “the clear and convincing evidence introduced at the Senate hearing and before this Court establishes Mr. Mole selected and recommended Mr. Gardner to represent Lifemark because of Mr. Gardner’s close friendship with Porteous and with the intent to get Porteous recused,” and that “the clear and convincing evidence establishes 3 Under Rule 1.2 of the United States District Court for the Eastern District of Louisiana Rules for Lawyer Disciplinary Enforcement, “[t]he Louisiana Rules of Professional Conduct of the Supreme Court of the State of Louisiana (‘Rules of Professional Conduct’) apply to all lawyers admitted to practice before this court.” 4 These rules were amended on December 1, 2015. The rules referenced and quoted throughout this opinion are those that were in effect during Mole’s disciplinary proceedings. 3  Case: 15-30647 Document: 00513492004 Page: 4 Date Filed: 05/04/2016 No. 15-30647 the [$100,000] severance fee in the letter agreement was intended to provide an incentive for Mr. Gardner to achieve this result.” The en banc court found that Mole’s conduct violated Rules 8.4(d) and (e) of the Louisiana Rules for Professional Conduct and suspended him from practice before the court for one year, with six months deferred. This appeal followed. II. “Sanctions imposed against an attorney by a district court are reviewed for abuse of discretion.” United States v. Brown, 72 F.3d 25, 28 (5th Cir. 1995). The district court “abuses its discretion when its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Chaves v. M/V Medina Star, 47 F.3d 153, 156 (5th Cir. 1995). Whether an attorney’s conduct is subject to sanction under a specific rule of professional responsibility is a legal issue which this court reviews de novo. Brown, 72 F.3d at 28. III. Mole first argues that the Eastern District’s rules for disciplinary enforcement do not allow the en banc court to perform a de novo review of the record or to make its own findings. Instead, he contends it is bound by the findings of the allotted judge. Mole’s argument is based on his own interpretation of the district court’s disciplinary rules, and he does not cite any supporting precedent. Mole contends that because the rules do not explicitly state that the en banc court conducts a de novo review, it is not authorized to do so. Mole’s rationale is that an independent review by the en banc court would “render meaningless the three years of litigation, discovery, motion practice, briefing and trial that led to Judge Berrigan’s findings.” The court’s disciplinary committee, as appellee, counters that the rules reserve disciplinary authority to the en banc court, rather than to the allotted judge, 4  Case: 15-30647 Document: 00513492004 Page: 5 Date Filed: 05/04/2016 No. 15-30647 and that Mole’s construction would transform the allotted judge into the final decision maker. “When a court undertakes to sanction an attorney for violating court rules, it is incumbent upon the sanctioning court to observe scrupulously its own rules of disciplinary procedure.” In re Thalheim, 853 F.2d 383, 390 (5th Cir. 1988). We apply “basic principle[s] of statutory construction” to the district court’s disciplinary rules. Id. at 387. Rule 2 of the Eastern District’s Rules for Lawyer Disciplinary Enforcement states that “[t]he court en banc may impose discipline upon a lawyer authorized to practice before this court if it finds clear and convincing evidence that . . . [t]he lawyer has committed ‘misconduct’ as defined in the Louisiana Rules of Professional Conduct.” Rule 7.4 states that “[a]t the conclusion of all necessary proceedings, the [allotted] judge must submit written findings and recommendations to the court en banc for determination of the disciplinary sanctions, if any, to be imposed.” Rule 7.5 states that “[a]fter consideration of the allotted judge’s findings and recommendations, the court en banc must enter an order either dismissing the complaint or imposing appropriate discipline.” Here, the allotted judge recommended dismissal of the complaint against Mole, but the en banc court disagreed and imposed discipline based on professional misconduct. The en banc court stated that “[a]lthough Judge Berrigan held the evidentiary hearing in this matter, these Findings are based on an independent review of the entire record, including the transcript of the evidentiary hearing, the transcript of the testimony before the Senate, the memoranda of counsel, and the applicable law.” The en banc court thus interpreted its own rules to allow it to conduct an independent review of the record and render its own decision. “When the tribunal which has promulgated a rule has interpreted and applied the rule which it has written, it is hardly for an outside person to say that the author of the rule has misinterpreted it.” 5  Case: 15-30647 Document: 00513492004 Page: 6 Date Filed: 05/04/2016 No. 15-30647 In re Adams, 734 F.2d 1094, 1102 (5th Cir. 1984) (quoting Lance, Inc. v. Dewco Servs., Inc., 422 F.2d 778, 783 (9th Cir. 1970)). “We may reverse only where we are convinced that the district court has misconstrued its own rules.” Id. at 1102. The en banc court’s interpretation is the most rational and logical interpretation available. Rule 2 reserves the power and authority to impose discipline to the en banc court. Rules 7.4 and 7.5 state that the allotted judge’s findings and recommendations need only be considered by the en banc court, and that the en banc court determines the sanctions and orders their imposition. If the allotted judge’s disciplinary findings and recommendations were binding on the en banc court, then the en banc court would serve no useful purpose, and the rules would state instead that the allotted judge was empowered to render the final disciplinary decision. Indeed, because the en banc court reserves the authority to impose discipline, its role is analogous to that of the Louisiana Supreme Court. As the Louisiana Supreme Court noted in In re Nelson, 146 So. 3d 176, 187 (La.), reh’g denied (July 1, 2014), “[b]ar disciplinary matters fall within the original jurisdiction of this court. Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence.” (citation omitted). The court went on to state that “we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board.” Id. Under the same rationale, the Eastern District en banc court is free to conduct an independent review without being bound by the findings and recommendations of the allotted judge. Because Rule 2 reserves disciplinary authority to the en banc court, and because nothing in the rules requires the en banc court to adhere or defer to the findings and recommendations of the allotted judge, we find no error. 6  Case: 15-30647 Document: 00513492004 Page: 7 Date Filed: 05/04/2016 No. 15-30647 Mole next argues that the en banc court is a “reviewing court” under Federal Rule of Civil Procedure 52(a)(6) and is therefore precluded from conducting a de novo review of the evidence. 5 Mole offers no authority to support his claim that the en banc court, in a disciplinary proceeding, is a reviewing court under Rule 52(a)(6). But “[t]he text of Rule 52(a)(6) limits the rule to instances in which a ‘reviewing court’ is considering the findings of a ‘trial court.’” Stoffels ex rel. SBC Tel. Concession Plan v. SBC Commc’ns, Inc., 677 F.3d 720, 727 (5th Cir. 2012). Here, Rule 7.5 of the disciplinary procedures states that “[a]fter consideration of the allotted judge’s findings and recommendations, the court en banc must enter an order either dismissing the complaint or imposing appropriate discipline.” (emphasis added). As the en banc court correctly noted, “[t]he orders of the court in disciplinary matters are the orders of the en banc court.” Because Rule 52(a)(6) is inapplicable here, Mole’s argument fails. Mole also argues that the en banc court’s factual findings are not supported by clear and convincing evidence. Mole’s primary theory is that the $100,000 severance fee was not “an attempt to secure the recusal of Porteous and that instead the severance fee was to pay Mr. Gardner enough to ‘buy him out of the case’ in the event Porteous was no longer the judge because Mr. Gardner’s services would no longer be needed.” In essence, Mole claims that Gardner’s role was to provide insight into Porteous’s temperament and thought processes, a role that would be useful only so long as Porteous remained on the case. In support, Mole cites excerpts from his own testimony before the Senate 5 “Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” Fed. R. Civ. P. 52(a)(6). 7  Case: 15-30647 Document: 00513492004 Page: 8 Date Filed: 05/04/2016 No. 15-30647 and before Judge Berrigan; Gardner’s testimony before the Senate; and the testimony of other witnesses before Judge Berrigan. In the context of attorney disciplinary proceedings, we have defined the “clear and convincing” evidentiary standard as that weight of proof which “produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts” of the case. In re Medrano, 956 F.2d 101, 102 (5th Cir. 1992) (quoting Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 285 n.11 (1990)). We review the district court’s factual findings for clear error. See Brown, 72 F.3d at 28 (noting that a district court abuses its discretion by imposing sanctions on the basis of a “clearly erroneous assessment of the evidence”). 6 To satisfy the clear error test, the district court’s findings must be “plausible in light of the record as a whole.” United States v. Reasor, 541 F.3d 366, 369 (5th Cir. 2008). “A factual finding is clearly erroneous only if, viewing the evidence in light of the record as a whole, we are left with the definite and firm conviction that a mistake has been committed.” Waste Mgmt. of Wash., Inc. v. Kattler, 776 F.3d 336, 339 (5th Cir. 2015) (internal quotation marks omitted). The en banc court found that Mole hired Gardner to prompt Porteous’s recusal after reviewing testimonial evidence derived from both the Senate hearings and Mole’s own disciplinary hearing before Judge Berrigan, as well as documentary evidence such as the retention letter between Mole and 6 Cf. Crowe v. Smith, 261 F.3d 558, 564–65 (5th Cir. 2001) (conducting de novo review of the record where district court failed to make a finding on critical factual issue); Medrano, 956 F.2d at 102 (conducting de novo review of the record where district court incorrectly applied preponderance of evidence standard). 8  Case: 15-30647 Document: 00513492004 Page: 9 Date Filed: 05/04/2016 No. 15-30647 Gardner. The en banc court found the “testimony that the terms of the letter agreement were not drafted in an attempt to secure the recusal of Porteous to be incredible.” The en banc court highlighted Mole’s testimony before the Senate, where Mole admitted that “getting the judge to recuse himself would be the only way to get a fair outcome”; “getting Judge Porteous to recuse himself was a priority with [him], and one of the things [he] hoped Mr. Gardner’s presence in the case . . . would accomplish”; and that he “certainly considered that maybe if [Gardner] got involved . . . Porteous didn’t have a legal responsibility to recuse himself because of that but that he might.” The en banc court also noted that it “did consider evidence presented at the [hearing before Judge Berrigan], but also gave weight to the sworn testimony before the Senate . . . . given at a time when the witnesses had no personal stake in the outcome.” The en banc court thus concluded that, “[t]aken as a whole, the evidence provided clear and convincing evidence that Mr. Mole’s intent was to prompt former Judge Porteous’s recusal.” Based on all of the above, the en banc court’s conclusion is plausible. First, Mole’s Senate testimony contains numerous admissions regarding his hope that the retention of Gardner might prompt a recusal. Second, the $100,000 severance fee in the retention letter incentivizes the prospect of a recusal. 7 Although Mole claims that the severance fee was merely intended to “buy out” Gardner, the evidence shows that Gardner never requested such a provision in the agreement. Mole also acknowledged that if Porteous had recused himself immediately upon Gardner’s enrollment, Gardner would have received the full $200,000 payment for enrollment and severance, despite not doing any work. This shows that the severance fee was unrelated to any labor 7 Although the severance fee would also be paid in the event of a settlement, Mole acknowledged before Judge Berrigan that the litigation was unlikely to settle and that “recusal would be the most obvious reason for a judge to withdraw from a case.” 9  Case: 15-30647 Document: 00513492004 Page: 10 Date Filed: 05/04/2016 No. 15-30647 Gardner may have performed on the case or any opportunity cost he may have incurred in time away from his own practice. It is therefore plausible that the purpose of the severance fee was to prompt a recusal. Finally, even if we find Mole’s version credible, “[i]f the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Brumfield v. Cain, 808 F.3d 1041, 1057 (5th Cir. 2015) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573–74 (1985)). And “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574. Because the en banc court’s determination that Mole hired Gardner to obtain Porteous’s recusal is plausible in light of the record as a whole, we cannot set aside that finding. Mole also argues that he did not engage in misconduct in violation of the Louisiana Rules of Professional Conduct. Mole does not cite any authority in support of his argument. Rather, he simply states in his brief that “nothing [he] did with respect to Gardner had any effect on Porteous’ handling or ‘administration’ of the Liljeberg case.” We review de novo whether factually established misconduct is subject to sanctions. In re Sealed Appellant, 194 F.3d 666, 670 (5th Cir. 1999). Thus, we must determine whether the en banc court’s factual findings establish a violation of Rules 8.4(d) and (e) of the Louisiana Rules of Professional Conduct. 8 8 Louisiana Rule of Professional Conduct 8.4. states: It is professional misconduct for a lawyer to . . . (d) Engage in conduct that is prejudicial to the administration of justice; (e) State or imply an ability to influence improperly a judge, judicial officer, governmental agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; 10  Case: 15-30647 Document: 00513492004 Page: 11 Date Filed: 05/04/2016 No. 15-30647 We have previously held that “a lawyer may not enter a case for the primary purpose of forcing the presiding judge’s recusal.” McCuin v. Tex. Power & Light Co., 714 F.2d 1255, 1265 (5th Cir. 1983). “A lawyer’s acceptance of employment solely or primarily for the purpose of disqualifying a judge creates the impression that . . . the lawyer is available for sheer manipulation of the judicial system. . . . To tolerate such gamesmanship would tarnish the concept of impartial justice.” Id. 9 Mole did not personally accept employment to disqualify Porteous but instead employed another attorney to achieve the same purpose. A common sense application of McCuin shows that this is improper: If a lawyer may not enter a case to force the presiding judge’s recusal, then it would be irrational to argue that a lawyer could simply hire another lawyer to force the recusal. Thus, we conclude that the action of hiring an attorney to motivate a recusal is prejudicial to the administration of justice and implies an ability to improperly influence a judge in violation of Louisiana Rules of Professional Conduct 8.4(d) and (e). Mole next argues that he was “effectively twice deprived of his right to be heard.” Mole contends that the hearing he appeared in before Judge Berrigan was “rendered meaningless” because the en banc court did not adopt her findings and recommendations. Mole also contends that the en banc court engaged in independent fact-finding without notifying him or giving him a .... 9 In McCuin, we discussed the lawyer’s conduct in the context of the ABA Code of Professional Responsibility. See 714 F.2d at 1264–65 (“[F]ederal courts have ordered lawyers disqualified in situations involving conduct proscribed by the Code.”) The disciplinary rules of Canon 1 forbid a lawyer from engaging in “conduct that is prejudicial to the administration of justice” and the disciplinary rules of Canon 9 forbid a lawyer from implying “that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official.” These rules are almost identical to Louisiana Rules of Professional Conduct 8.4(d) and (e). 11  Case: 15-30647 Document: 00513492004 Page: 12 Date Filed: 05/04/2016 No. 15-30647 chance to participate. Yet the en banc court’s “independent fact-finding” was nothing more than its review of the same record collected by the allotted judge. As with his earlier arguments, Mole does not cite any supporting legal authority. Instead, he simply presumes that he should be entitled to appear twice—once before the allotted judge, and once again before the en banc court. The law does not support this position. “Disbarment or suspension proceedings are adversarial and quasi- criminal in nature. As such, an attorney is entitled to procedural due process which includes notice and an opportunity to be heard in disbarment or suspension proceedings.” Dailey v. Vought Aircraft Co., 141 F.3d 224, 229 (5th Cir. 1998) (citations omitted). Due process in this context is less than that required by “full criminal procedure” and our precedent “emphatically dismisses such extensive procedural hoop-jumping for the far less serious disciplinary sanctions of suspension and reprimand.” Crowe v. Smith, 151 F.3d 217, 230 (5th Cir. 1998). Here, the en banc court followed its own disciplinary procedures according to its Rules for Lawyer Disciplinary Enforcement. Mole received advance notice of the charges against him and had an opportunity to present a defense and to call witnesses before the allotted judge. Mole’s argument rests on his presumption that the allotted judge and the en banc court are two separate, independent tribunals. But under Rule 7 of the district court’s disciplinary procedures, the allotted judge fulfills a preliminary role by conducting a hearing and then delivering the record of that hearing, along with findings and recommendations, to the en banc court, which is the actual tribunal. Thus, Mole’s appearance before the allotted judge satisfied his right to be heard before the en banc court, which then reviewed the entire record, including the earlier hearing. His appearance was not “meaningless” because the en banc court reviewed and considered his defense; it simply rejected it. 12  Case: 15-30647 Document: 00513492004 Page: 13 Date Filed: 05/04/2016 No. 15-30647 Furthermore, Mole’s demand to appear before both the allotted judge and the en banc court actually would render the allotted judge’s hearing meaningless because it would require the en banc court to conduct its own evidentiary hearing, with Mole present, before it could impose discipline. Such an approach would result in the very type of “procedural hoop-jumping” that we have previously rejected. Id. Because Mole had both notice and an opportunity to be heard before being disciplined, we find that Mole received adequate due process. Mole also argues that any disciplinary action against him has prescribed under Louisiana law because the alleged misconduct occurred more than sixteen years ago and his actions were, at worst, negligent. Section 31 of Louisiana Supreme Court Rule XIX states that “[a] disciplinary complaint, or the initiation of a disciplinary investigation with regard to allegations of attorney misconduct, where the mental element is merely negligence, shall be subject to a prescriptive period of ten years from the date of the alleged offense.” The rule is thus inapplicable where the misconduct is intentional rather than negligent. See In re Trahant, 108 So. 3d 67, 75 (La. 2012). In arguing that his actions were unintentional, Mole resurrects a familiar theme—he states that the evidence is insufficient to support such a finding. Here, the en banc court found that Mole’s actions were intentional—a factual finding subject to clear error review. See Sealed Appellant, 194 F.3d at 670. Because the en banc court’s factual finding of intentional conduct is not clearly erroneous, prescription does not apply. Mole argues, in the alternative, that any sanction against him should be limited to a private admonition. As before, Mole claims that the en banc court’s conclusion that he hired Gardner to secure Porteous’s recusal is not supported by clear and convincing evidence. He offers no other argument to explain how the en banc court abused its discretion in imposing a suspension based on its 13  Case: 15-30647 Document: 00513492004 Page: 14 Date Filed: 05/04/2016 No. 15-30647 earlier factual findings. Having already held that the en banc court’s factual findings are not clearly erroneous, we must now consider whether the sanction imposed is appropriate under the established facts. “A district court’s imposition of a particular sanction is reviewed for an abuse of discretion.” Id. “The question before us is not whether we would [impose the same sanction] but, rather, whether the district court abused its discretion in doing so.” Id. at 673. “For direction on similar inquiries, the Louisiana Supreme Court has looked to the ABA’s Standards for Imposing Lawyer Sanctions.” Id. (citing In re Quaid, 646 So. 2d 343, 350–51 (La. 1994)). Here, the en banc court considered the ABA standards in detail, accounting for both aggravating and mitigating factors. Applying the facts of the case to the applicable standards, the en banc court imposed a one-year suspension with six months deferred. Because the en banc court considered and applied the ABA standards before imposing discipline, and because the sanction imposed is consistent with Louisiana precedent, 10 we hold that the en banc court did not abuse its discretion in imposing its chosen sanction. IV. For the reasons described above, the en banc court’s disciplinary order is AFFIRMED. 10See, e.g., In re Bolton, 820 So. 2d 548, 553–54 (La. 2002) (imposing one-year suspension, with six months deferred, where attorney’s negligent ex parte communications with judge created an appearance of impropriety). Here, the district court found that Mole’s actions were intentional—a higher level of culpability than that of the respondent in Bolton. 14 

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TED P. HUGHES, DOCKET NUMBER Appellant, DA-831M-14-0483-I-1 v. OFFICE OF PERSONNEL DATE: March 17, 2015 MANAGEMENT, Agency. THIS FINAL ORDER IS NO NPRECEDENTIAL 1 Ted P. Hughes, Haughton, Louisiana, pro se. Karla W. Yeakle, Washington, D.C., for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the reconsideration decision of the Office of Personnel Management (OPM) denying his request to waive the overpayment of his retirement annuity. Generally, we grant petitions such as this one only when: the initial decision 1 A nonprecedential order is one that the Board has determined does not add sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).  2 contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. See Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, and based on the following points and authorities, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). ¶2 The appellant retired from federal service under the Civil Service Retirement System (CSRS) on July 13, 1998. Initial Appeal File (IAF), Tab 5 at 33-34. After his spouse’s death, he remarried on June 30, 2012. Id. at 24-25, 31-32. On August 12, 2012, he sent to OPM a letter informing the agency of his remarriage and his intention to provide a survivor annuity for his new spouse. IAF, Tab 3, Subtab 1 at 1. He also requested post-retirement election forms. Id. When he did not receive a response, he sent another letter to OPM reiterating his request for election forms. Id. at 2. OPM sent a letter to the appellant requesting a copy of his marriage certificate. Id. at 4. He provided the requested marriage certificate and again requested post-retirement election forms. Id. at 3; IAF, Tab 5 at 24-25. OPM notified the appellant that his initial request for survivor benefits was received on August 15, 2012, so his election for a survivor benefit and the reduction to provide for the benefit was effective on April 1, 2013. IAF, Tab 3, Subtab 1 at 5-6. OPM also sent him a survivor annuity election for a spouse form. See id. at 6. The appellant submitted the survivor annuity election form and elected the maximum possible survivor annuity for his spouse. Id. at 9.  3 ¶3 In an initial decision, OPM approved the appellant’s application to elect a reduced annuity to provide a survivor annuity benefit for his spouse. Id. at 7-8. OPM found that his retirement annuity should have been reduced effective April 1, 2013, but was not until March 1, 2014, so his annuity was overpaid by $6,140. Id. at 7. OPM also informed him that it would begin withholding the overpayment from his annuity. Id. The appellant requested reconsideration of the initial decision, arguing that the overpayment was not his fault because he made three requests for election forms, but did not receive them until February 7, 2014. Id. at 10-11. OPM affirmed its initial decision and set the collection schedule to 61 monthly installments of $100, with a final installment of $40. Id. at 12-14. The appellant appealed OPM’s reconsideration decision to the Board without requesting a hearing. IAF, Tab 1. ¶4 In an initial decision based on the written record, the administrative judge affirmed OPM’s reconsideration decision. IAF, Tab 12, Initial Decision (ID) at 1, 8. The administrative judge found that OPM proved the existence of the $6,140 overpayment. ID at 4-6. The administrative judge also found that the appellant did not prove by substantial evidence that he is entitled to a waiver of the overpayment. ID at 6-7. Finally, the administrative judge found that the appellant is not entitled to an adjustment of the payment schedule. ID at 7-8. ¶5 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. OPM has filed a response in opposition. PFR File, Tab 4. The appellant has filed a reply to OPM’s response. PFR File, Tab 5. ¶6 In his petition for review, the appellant does not dispute the administrative judge’s findings regarding the existence and amount of the overpayment, or the set payment schedule. See ID at 4-8. Instead, he contends that he is entitled to a waiver of the overpayment because he is without fault in creating it and recovery would be against equity and good conscience. PFR File, Tab 1 at 2-5, Tab 5 at 1-4; see 5 U.S.C. § 8346(b); Carroll v. Office of Personnel Management, 114 M.S.P.R. 310, ¶ 11 (2010); 5 C.F.R. § 831.1401. The administrative judge  4 recognized that OPM conceded that the appellant is without fault in creating the overpayment. ID at 6. Thus, the only issue on review is whether the appellant proved by substantial evidence 2 that recovery of the overpayment would be against equity and good conscience. Recovery is against equity and good conscience when: (1) it would cause financial hardship; (2) the annuitant can show that, because of the overpayment, he relinquished a valuable right or changed positions for the worse; or (3) recovery could be unconscionable under the circumstances. Carroll, 114 M.S.P.R. 310, ¶ 11; 5 C.F.R. § 831.1403(a). ¶7 The appellant argues that under OPM’s policy guidelines, the fact that OPM’s administrative errors caused the overpayment demonstrates the unconscionability of recovering the overpayment. PFR File, Tab 1 at 2-5, Tab 5 at 1-4. Specifically, the appellant cites to the May 1995 version of OPM’s Policy Guidelines on the Disposition of Overpayments under the Civil Service Retirement System and the Federal Employees’ Retirement System, Section (I)(C)(3)(a), to argue that recovery would be against equity and good conscience because “[t]he overpayments were caused solely by an OPM (or other Government agency) administrative error.” PFR File, Tab 1 at 4-5, 11-14, Tab 5 at 2-4, 9-12; see IAF, Tab 5 at 35-69. However, this section pertains to blanket waivers, which are defined as when “[a] group of overpayment debts may be waived en masse under certain circumstances.” IAF, Tab 5 at 41; see id. at 45-46. Because the appellant does not allege that he is a part of a group of overpayment recipients, this section of OPM’s policy guidelines do not apply to him. See IAF, Tab 5 at 45-46. 2 An appellant bears the burden of proving by substantial evidence that he is eligible for a waiver of the collection of an overpayment of retirement annuity benefits. Taylor v. Office of Personnel Management, 87 M.S.P.R. 214, ¶ 17 (2000); 5 C.F.R. § 831.1407(b). Substantial evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, m ight accept as adequate to support a conclusion, even though other reasonable people might disagree. 5 C.F.R. § 1201.56(c)(1). It is a lower standard than preponderant evidence. I d.  5 ¶8 The appellant further asserts that recovery would be unconscionable because he has been “dealing with OPM on this matter since August 12, 2012, almost two and one half years.” PFR File, Tab 5 at 4. Although the unconscionability of collection is a basis to waive recovery of an overpayment, it is a high standard that will only be granted under exceptional circumstances. Taylor, 87 M.S.P.R. 214, ¶ 18. Those circumstances may include, but are not limited to, cases where: (1) there has been an exceptionally lengthy delay by OPM in adjusting an annuity; (2) OPM failed to respond within a reasonable length of time to an annuitant’s inquiries regarding an overpayment; (3) OPM failed to act expeditiously to adjust an annuity in the face of specific notice; and/or (4) where OPM is otherwise grossly negligent in handling the case. Id. The Board has previously held that a nearly 2-year delay between the date an appellant first became eligible to receive social security benefits and the date that OPM adjusted his civil service annuity to reflect that eligibility did not establish unconscionable circumstances warranting a waiver under 5 C.F.R. § 831.1403(a)(3). See, e.g., Harris v. Office of Personnel Management, 43 M.S.P.R. 387, 390, aff’d, 907 F.2d 158 (Fed. Cir. 1990) (Table). In this case, the appellant similarly faced a 1 year and 7 month delay between his August 12, 2012 request for post-retirement election forms and March 1, 2014, the date OPM started reducing his annuity to provide for the survivor benefit. See IAF, Tab 3, Subtab 1 at 1, 7-8, 12-14. Accordingly, we find that the appellant did not face an exceptionally lengthy delay demonstrating unconscionable circumstances warranting a waiver. ¶9 In conclusion, we find that the appellant has not provided a reason to disturb the administrative judge’s decision affirming OPM’s denial of the appellant’s request to waive the overpayment of his annuity. 3 3 The appellant’s claim that OPM’s pleadings on review do not comply with the Board’s criteria because they are not signed and dated lacks merit. See PFR File, Tab 5 at 1. The agency representative registered as an e-filer and the Board’s regulations state that  6 NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of this final decision by the United States Court of Appeals for the Federal Circuit. You must submit your request to the court at the following address: United States Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, DC 20439 The court must receive your request for review no later than 60 calendar days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 2012). If you choose to file, be very careful to file on time. The court has held that normally it does not have the authority to waive this statutory deadline and that filings that do not comply with the deadline must be dismissed. See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). If you need further information about your right to appeal this decision to court, you should refer to the federal law that gives you this right. It is found in Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27, 2012). You may read this law as well as other sections of the United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. Additional information is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, and 11. If you are interested in securing pro bono representation for your court appeal, you may visit our website at http://www.mspb.gov/probono for a list of electronic documents submitted through the Board’s online e-Appeal system are deemed to be signed, if required by a Board regu lation, and have the same filing date as the date of electronic submission. 5 C.F.R. §§ 1201.14(k), 1201.14(m)(1). Additionally, the Board’s regulations do not require certificates of service to be signed. 5 C.F.R. § 1201.26(b)(2).  7 attorneys who have expressed interest in providing pro bono representation for Merit Systems Protection Board appellants before the court. The Merit Systems Protection Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. FOR THE BOARD: ______________________________ William D. Spencer Clerk of the Board Washington, D.C. 

5 F.Supp.2d 212 (1998) Ronnie COLE, Petitioner, v. Robert KUHLMANN, Superintendent of Sullivan Correctional Facility, Respondent. No. 97 CIV. 3029 (JSR)(HAP). United States District Court, S.D. New York. May 28, 1998. *213 Ronnie Cole, Auburn, NY, pro se. Robert F. Petrone, Asst. Dist. Atty., Bronx D.A.'s Office, Bronx, NY, for Respondent. MEMORANDUM ORDER RAKOFF, District Judge. On April 13, 1997, petitioner, acting pro se, filed the instant petition, pursuant to 28 U.S.C. § 2254, seeking to vacate his convictions of two counts of robbery in the first degree and one count of criminal possession of stolen property in the third degree. Respondent moved to dismiss the petition as time-barred by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1). On December 22, 1997, the Honorable Henry Pitman, United States Magistrate Judge, issued a Report and Recommendation, recommending that respondent's motion be denied. On January 12, 1998, respondent filed Objections to the Report and Recommendation. For the reasons discussed below, the Court sustains respondent's objections and grants respondent's motion to dismiss the petition. The AEDPA, which took effect on April 24, 1996, provides a one year statute of limitations for habeas corpus petitions, commencing from "the date on which the judgment [of conviction] became final by the conclusion of direct review or the expiration of the time for seeking such review" or from certain other dates not here applicable. 28 U.S.C. § 2244(d)(1). If the AEDPA were retroactive, the instant petition would clearly be barred by this limitation, regardless of whether the date on which the one-year period would have begun in petitioner's case were, as the Magistrate Judge found, August 23, 1994, or, as respondent argues, May 25, 1994. However, the AEDPA's limitations period does not apply retroactively. Reyes v. Keane, 90 F.3d 676 (2d Cir.1996). Instead, the Court of Appeals held in Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir.1997) that a prisoner whose one-year filing date terminated prior to the effective date of the AEDPA should be given a "reasonable time" after the effective date to file his petition. Here, petitioner waited until April 13, 1997—354 days after the effective date of the AEDPA — to file his petition, a patently unreasonable period of delay unless there is further justification for the delay. See Rashid v. Khulmann, 991 F.Supp. 254, 257-58 (S.D.N.Y.1998)(citing cases). Petitioner's justification is that on June 11, 1996 he applied for similar collateral relief in the state court and this relief was not denied until January 31, 1997. The Magistrate Judge apparently believed that this intervening time should be excluded from the 354-day period by virtue of the provision of the AEDPA that excludes from the calculation of the one-year statute of limitations any "time during which a properly filed application for State post-conviction or other collateral review...is pending." 28 U.S.C. § 2244(d)(2). If this were the Magistrate Judge's view, it was erroneous. Because this case is governed, not by the AEDPA *214 but by Peterson, the tolling provisions applicable to the one-year statute of limitations are no more binding than the one-year statute itself. See Brown v. Kelly, 97 Civ. 3861(JES)(SEG)(S.D.N.Y., Report and Recommendation, December 31, 1997). There is, however, support for the proposition that even under Peterson the period when a state collateral attack is sub judice should be subtracted in determining whether or not any delay in filing the federal petition is "reasonable," on the ground that, pursuant to 28 U.S.C. § 2244(b), a petitioner is first required to exhaust his state collateral remedies before seeking federal relief. See Newton v. Strack, 1997 WL 752348 (E.D.N.Y. Oct.15, 1997); Batts v. Artuz, 1997 WL 642322 (E.D.N.Y. Sept.5, 1997). But while this may constitute a justification of sorts for delaying the filing of a federal petition, it renders such delay reasonable only if the delay in seeking the state collateral relief was not itself unreasonable. Here, the opportunity for direct review (state and federal) of petitioner's conviction expired, at latest, on August 23, 1994. For almost two years thereafter, petitioner sought neither state nor federal collateral relief — even though his subsequent collateral claims, both state and federal, are grounded entirely on matters arising at his original trial in 1990 and do not invoke any subsequent changes of law. Only in June, 1996, did he decide to bring his first application for collateral relief. In such circumstances, it would be unreasonable to permit petitioner to take advantage of his inordinate delay in seeking state collateral relief to excuse his otherwise unreasonable delay in seeking federal collateral relief. Accordingly, respondent's objection is sustained and his motion to dismiss the petition as untimely is granted. Clerk to enter judgment. SO ORDERED.

FILED NOT FOR PUBLICATION JUN 16 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT CUNWU DONG, No. 07-71514 Petitioner, Agency No. A096-357-191 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 7, 2011 Pasadena, California Before: BEEZER, TROTT, and RYMER, Circuit Judges. Cunwu Dong, a native and citizen of China, appeals a decision by the Board of Immigration Appeals denying his application for asylum, withholding of removal to China, and protection under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252 and deny the petition. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.  Dong testified that the Chinese police, while interrogating him, forced him to stand on broken glass with his hands pressed on the nearby wall. The interrogators poured water on him, which caused him to lose his concentration, resulting in his feet bleeding. The hospital records he submitted, however, state there were no lacerated wounds on his body. See Singh v. Gonzales, 439 F.3d 1100, 1108 (9th Cir. 2006) (“An inconsistency goes to the heart of a claim if it concerns events central to petitioner’s version of why he was persecuted and fled.”); id. (noting that a single inconsistency is sufficient to support an adverse credibility determination if it relates to the basis for the petitioner’s alleged fear of persecution and goes to the heart of the claim). The adverse credibility determination also is supported by the immigration judge’s (IJ) finding that Dong was vague and evasive, and that his testimony sounded rehearsed. See Paredes-Urrestarazu v. INS, 36 F.3d 801, 819 (9th Cir. 1994) (holding that demeanor findings are entitled to “special deference” and must be credited unless “the record creates such a doubt as to its validity that accepting it would be unreasonable”). In the absence of credible testimony, Dong’s asylum 2 and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).1 Because Dong’s CAT claim is based on the same testimony found not to be credible, and he points to no other evidence the BIA should have considered, substantial evidence also supports the denial of CAT relief. See id. at 1156-57. Finally, Dong argues his due process rights were violated. He cites to several instances in the record of language difficulties, but in each instance, the question or answer was clarified in order to rectify the misunderstanding. See Kotasz v. INS, 31 F.3d 847, 850 n.2 (9th Cir. 1994) (requiring petitioner to show that “a better translation would have made a difference in the outcome of the hearing” (quotation marks omitted)). He also notes the IJ rendered an incomplete decision, because there are a few instances where the IJ’s oral decision is difficult to comprehend due to the lack of a proper transcription. Dong, however, has failed to show any prejudice from the incompleteness. See Colmenar v. INS, 210 F.3d 1 Because Dong’s asylum application was not supported by credible evidence, we need not decide whether the IJ properly found that he had failed to show he timely filed his asylum application. 3 967, 971 (9th Cir. 2000) (requiring a petitioner to show prejudice from any due process violation).2 DENIED. 2 At oral argument, Dong suggested the IJ had imposed herself too much on the proceedings. He never raised this issue before, so we lack jurisdiction to consider it. See Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004). 4 

Filed 10/22/14 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE BLUEBERRY PROPERTIES, LLC, B254259 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BC473469) v. ESTHER KHOE CHOW, Defendant and Appellant. APPEAL from order of the Superior Court of Los Angeles County, Frederick C. Shaller, Judge. Affirmed. Esther Khoe Chow, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent. _____________________  INTRODUCTION Defendant Esther Khoe Chow appeals the trial court’s post-judgment order appointing the clerk of the court as an elisor to execute an escrow agreement on behalf of Chow. Chow had entered into a settlement agreement to sell her property to Plaintiff Blueberry Properties, LLC (Blueberry). When Chow refused to consummate the sale to Blueberry, the court entered judgment pursuant to the terms of the settlement agreement under Code of Civil Procedure section1 664.6, ordering Chow to complete the sale. At Blueberry’s request, the court issued an order appointing an elisor to effect sale of the property. We affirm the trial court’s order because it was proper under section 128, subdivision (a)(4), which empowers the court to compel obedience to its judgments. FACTS AND PROCEDURAL BACKGROUND In June 2011, Chow entered into an agreement to sell her apartment complex located at 1242 Lilac Place, Los Angeles, California. However, Chow refused to complete the sale and returned the money Blueberry had placed in escrow for the property. Blueberry brought the present action for specific performance to enforce the purchase agreement. In July 2012, the parties entered into a settlement, where Chow agreed to sell the property to Blueberry in accordance with the terms of their original purchase agreement. Chow failed to comply with the settlement agreement by withholding her signature from documents necessary to reopen and complete the sale of the property. In April 2013, the trial court entered a judgment pursuant to section 664.6 in favor of Blueberry against Chow, setting forth the terms of their settlement agreement. It stated that “Esther Chow [is] ordered to do all things necessary and to execute all documents necessary to consummate the sale by Defendant, Esther Chow to Plaintiff, BLUEBERRY PROPERTIES, LLC, A California Limited Liability Company of the real property located at 1242 Lilac Place, Los Angeles, California.” The judgment further provided that “Esther Chow shall do all things necessary and execute all documents necessary to 1 All subsequent references are to the Code of Civil Procedure. 2 perform the terms of the Purchase Agreement,” “to perform the terms of all escrow documents previously executed by both parties,” and “to perform the terms of the Settlement Agreement.” Chow subsequently refused to execute escrow documents to complete the sale of the property. Blueberry applied for an order appointing the clerk of the court as an elisor to execute the escrow documents on behalf of Chow, which the trial court granted. Chow now appeals this post-judgment order. DISCUSSION “ ‘Where, as here, the trial court is vested with discretionary powers, we review its ruling for an abuse of discretion. [Citation.]’ ” (In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1286; see Santandrea v. Siltec Corp. (1976) 56 Cal.App.3d 525, 530 [“The exercise of the court’s inherent power to provide for the orderly conduct of the court’s business is a matter vested in the sound legal discretion of the trial court. Such a decision is subject to reversal only where there has been an abuse of that discretion.”] disapproved on another point in Bauguess v. Paine (1978) 22 Cal.3d 626, 639.) “An abuse of discretion occurs only where it is shown that the trial court exceeded the bounds of reason. [Citation.] It is a deferential standard of review that requires us to uphold the trial court’s determination, even if we disagree with it, so long as it is reasonable. [Citation.]” (Stull v. Sparrow (2001) 92 Cal.App.4th 860, 864.) On appeal, Chow asserts that the CEO of Blueberry properties forged a check and committed fraud. It is unclear how this is relevant to the post-judgment order at issue on appeal. Notably, Chow did not pursue an appeal with regard to the court’s section 664.6 judgment made in favor of Blueberry and against Chow, which provided the terms of their settlement agreement. At this point, any appeal as to that judgment would be untimely. We therefore review only the post-judgment order appointing the clerk of the court as an elisor to sign the escrow documents on behalf of Chow, which Chow identifies as the subject of her appeal in her notice of appeal. 3  At issue here is the court’s authority and reasonableness in issuing the order appointing the elisor. As used in the case at bar, consistent with its common legal meaning, an elisor is a person appointed by the court to perform functions like the execution of a deed or document. (Rayan v. Dykeman (1990) 224 Cal.App.3d 1629, 1635, fn. 2 (Rayan).) A court typically appoints an elisor to sign documents on behalf of a recalcitrant party in order to effectuate its judgments or orders, where the party refuses to execute such documents. (See Ibid.) We note that under Code of Civil Procedure section 262.8, “elisor” specifically means a person designated by the court to execute process or orders in an action or proceeding involving the sheriff and/or coroner. The Code of Civil Procedure’s use of the term is not at issue in this case. Courts use elisors in matters like this one to enforce their orders. Under section 128, subdivision (a)(4), “[e]very court shall have the power . . . . [¶] . . . [¶] [t]o compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein.” This statute has codified the principle of “[t]he inherent power of the trial court to exercise reasonable control over litigation before it, as well as the inherent and equitable power to achieve justice and prevent misuse of processes lawfully issued . . . .” (Venice Canals Resident Home Owners Assn. v. Superior Court (1977) 72 Cal.App.3d 675, 679.) Here, Chow entered into a settlement agreement where she agreed to transfer her property to Blueberry. The trial court entered judgment against Chow in accordance with section 664.6, which allows the court to enter judgment pursuant to the terms of a signed settlement agreement. The judgment clearly stated that Chow must execute all documents to complete the sale, including those associated with escrow. Chow thereafter failed to comply with the court’s judgment and the settlement agreement by refusing to execute escrow documents. By appointing the clerk as an elisor to execute the documents on Chow’s behalf, the trial court properly exercised its power under section 128, subdivision (a)(4) to enforce its judgment. 4  In Rayan, supra, 224 Cal.App.3d at p. 1635, the Court of Appeal affirmed the similar appointment of an elisor to sign the plaintiff’s name to all documents necessary for a property transfer. There, the trial court issued an order incorporating a stipulation by the parties that the plaintiff would execute a quitclaim deed to the property transferring title to the defendant, yet the plaintiff refused to sign the documents. Citing section 128, subdivision (a)(4), the Court of Appeal explained that, “[a]s to the appointment of [an] elisor, to compel obedience to its orders the court is authorized to make such an appointment. [Citations.]” (Rayan, at p. 1635, fn. omitted.) Like in Rayan, the trial court here was authorized under section 128, subdivision (a)(4) to appoint an elisor to enforce its judgment. The appointment does not exceed the bounds of reason because the trial court is simply enforcing its valid judgment, which requires Chow to transfer the property to Blueberry. As Chow provides us no valid basis for reversing the order and we conclude that the trial court did not abuse its discretion in issuing the order, we affirm the court’s post-judgment order appointing the clerk of court as an elisor to execute the escrow documents on Chow’s behalf. 5  DISPOSITION The judgment is affirmed. We award no costs on appeal as Respondent Blueberry Properties, LLC failed to appear. CERTIFIED FOR PUBLICATION KITCHING, J. We concur: KLEIN, P. J. EDMON, J.* * Associate Justice of the Court of Appeal, Second Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 6 

54 F.2d 323 (1931) TRUST NO. 5833, SECURITY-FIRST NAT. BANK OF LOS ANGELES v. WELCH, Collector of Internal Revenue. No. 6582. Circuit Court of Appeals, Ninth Circuit. December 7, 1931. Miller, Chevalier, Peeler & Wilson, Melvin D. Wilson, Dana Latham, Gibson, Dunn & Crutcher, and Henry F. Prince, all of Los Angeles, Cal., for appellant. Samuel W. McNabb, U.S. Atty., Ignatius F. Parker, Asst. U.S. Atty., and Alva C. Baird, Asst. U.S. Atty., all of Los Angeles, Cal. (C.M. Charest, Gen. Counsel, Bureau of Internal Revenue, of Washington, D.C., of counsel), for appellee. Before WILBUR and SAWTELLE, Circuit Judges, and JAMES, District Judge. WILBUR, Circuit Judge. This is an appeal from a judgment in favor of the defendant. The facts are stated clearly and briefly by the District Judge in his memorandum opinion, and for that reason we quote therefrom as follows: "This is an action to compel refund of $4,147.93, representing federal income taxes computed at the prevailing corporate rate for the calendar year 1928. The amount sued for was paid under protest by plaintiff, Security First National Bank of Los Angeles, as trustee, to the defendant collector. The sole question for decision is whether the project or enterprise denominated *324 Trust No. 5833, as it is disclosed by the evidence, is an association within the purview of section 701 (a) (2) of the Revenue Act of 1928, 26 USCA § 2701 (a) (2). The pertinent part of that section reads: `the term "corporation" includes associations, joint-stock companies, and insurance companies.' The defendant collector demanded and collected the tax from plaintiffs upon the ground that it was an association as described in the Revenue Act aforesaid. The plaintiffs contend that such ruling was erroneous and illegal, and that the enterprise under consideration is shown by the evidence herein not to be an association within the aforesaid section, but that it is to be considered solely as a fiduciary for income tax purposes. It is admitted that, if the enterprise is properly classified as an `association,' the amount sued for cannot be recovered by plaintiff herein. "The following facts have been established: In October, 1924, one Cotton, a real estate operator in Los Angeles, Cal., in association with other persons, undertook to acquire by purchase a tract of approximately 90 acres of land, to improve the same by laying out streets and other ways, to install sidewalks, water, electricity, and other utilities therein, and to subdivide the tract into city lots and to sell them to the public at a substantial profit. The scheme involved an outlay of capital both for the purchase price of the acreage and also to pay for the improvements and subdivision expenses. The land was owned by the Southern California Edison Company, which agreed to sell it to Cotton and his associates for $810,000. The contemplated improvements amounted to approximately $250,000. A written contract of sale of the tract was accordingly entered into by one Farran acting as the agent of the buyers and promoters, Cotton and his associates, and the Southern California Edison Company, the seller. The agreement provided for the payment of $100,000 in cash and the balance of the purchase price within 90 days of the date of the contract. In order to finance the project, a syndicate of some 40 persons was organized. These persons were invited by Cotton and his associates to subscribe and invest various amounts of money in the undertaking ranging from $1,000 to $15,000 each. The purpose of the syndicate as well as the invitation to join therein was to enable the participants to realize a profit upon their investments in the project. The aggregate amount realized from such subscriptions was $250,000. The contract with the Edison Company was assigned to the Security Trust & Savings Bank, predecessor of one of the plaintiffs herein as trustee. Concurrently, the subscribers of the $250,000 paid their money to said trustee. The Security Trust & Savings Bank, as such, advanced the further sum of $400,000 to the project, and took a first lien upon the assets of the enterprise as its security for payment of such loan with interest. An additional sum of $212,500 was advanced by Cotton and an associate, Bryan, and these two took a second mortgage on the assets of the enterprise as security for the payment of their loan, with interest. The moneys thus obtained in accordance with a written instrument denominated as a declaration of trust, Trust No. 5833, were applied on the purchase price of the 90-acre tract of land. "The declaration of trust under which the project was so launched and carried out is a lengthy document that has been introduced in evidence herein, and that has been carefully considered by the court. I consider it unnecessary to set it forth in extenso. Suffice it to say that it conforms generally to similar instruments common in the realty subdivision activities of Los Angeles, Cal., and is what is popularly known therein as a `real estate subdivision trust.' It was executed by the Security Trust & Savings Bank as trustee, Dean Farran, acting on behalf of Cotton and associates as trustor, and the subscribers or investors of the $250,000 as beneficiaries. It provided a complete, and to some extent a self-executing, scheme for the payment of the purchase price of the property; the payment of the two mortgage loans; the reimbursement of those who had subscribed and invested money therein; the payment of all expenses attendant upon the improvement and subdivision of the tract of land and for the sale of the entire subdivided parcel of real property. It declared that all beneficial interest in the trust is owned by the investors of the $250,000, and that such interest be divided into units of $1,000 each, and that each beneficiary shall be deemed to hold one of such units for each $1,000 that he had paid into the trust or should thereafter pay into it. It provided that, in all dealing with the trustee and the beneficiaries, the trustee shall be bound by the written direction of any three of the board of five beneficiaries termed the `board of syndicate managers,' which board was chosen by the subscribers of the $250,000, and had power to establish the price at which the real property was to be sold by the *325 trustee; to fix the terms of sale; the manner, method, and time of disposition of the proceeds of such sale; the person to whom all money coming into the hands of the trustee under the declaration was to be paid after certain payments rigidly fixed by the declaration of trust had been made; the amount of such payments; to fix the restrictions, covenants, conditions, and reservations under and upon which the property or any part of it shall be sold; the form of deeds and contracts to be executed by the trustee in case of any sales; to fix and determine the manner, method, cost, and improvement of the property; and in all other respects to have the power to bind each and every beneficiary in all dealings with the trustee and with other parties in connection with the subdivision and sale of the property. It provided that no lot is to be sold by the trustee for less than the minimum price thereof fixed by a schedule of minimum prices that was annexed to said declaration and made a part thereof, but, as before stated, it gave to the syndicate managers the power of fixing the prices at which the property of the subdivision might be sold. A real estate firm of Los Angeles was irrevocably constituted the agent of the beneficiaries for the sale of the property for a period of two years from the date of the declaration of trust, but, as just adverted to, the sales agency could sell the real property only upon such price, terms, restrictions, and covenants as were fixed by the board of managers by written direction to the trustee and subject to such conditions. The sales agency could direct the trustee to convey the property with the same force and effect as if such direction had been given by the board of managers' direction. At the expiration of two years, the board of managers were authorized to designate some other agency, if it so desired, for the sale of the trust property. "The trustee is directed to apply the proceeds of sales to the payment of taxes, costs, charges, and expenses, etc.; to the payment of its own services; to the payment of money loaned the project by the bank, by Cotton, and by others, and to the payment to the subscribers to the amount that they had subscribed to the project and certain additional amounts specifically mentioned and designated in the trust instrument, and, in addition, to pay as directed by the board of managers any further amount of money that would be received by them on account of sales of real property of the trust as directed by the board of syndicate managers. "The declaration provided that the beneficiaries agreed that they would subdivide and improve the real property as provided in the trust instrument, and that such work of improvement would be installed and completely and fully paid for within two years of the date of such instrument. "It also provided that the trustee may resign and discharge itself of the trust by a written notice to the board of managers thirty days before such resignation shall take effect, and successor may thereupon be appointed by an instrument in writing executed by the beneficiaries and accepted by the successor trustee. Should the beneficiary fail to make such appointment before the expiration of such thirty-day period, then the trustee may thereupon appoint a temporary successor trustee to fill such vacancy until such successor be appointed by the beneficiaries, and it further provided that any such successor should be vested with all the estates, rights, powers, and duties of its predecessor trustee. It was also stated in the declaration of trust that no sale or transfer of beneficial interests under the trust shall be valid or binding upon the trustee until the instrument making such assignment or transfer shall have been approved by and deposited with the trustee excepting only where such interest may pass or be transferred by a judgment or decree of court, and then only upon proof satisfactory to the trustee of the legality and validity of the procedure in such matters being presented to the trustee. It stated that the legal and equitable title to the real property was vested in the trustee for the purposes of administering the trust, and that no person beneficially interested in the trust has any right, title, interest, or estate in the property covered by the declaration, nor has any person beneficially interested under said declaration of trust any right or power to apply for or secure a dissolution or termination of the trust or partition or division of any of the trust estate; it being further recited that the entire beneficial interest of any and all beneficiaries under the declaration of trust is personal property only consisting of the right to enforce the performance of this trust according to its terms. It was further provided in the declaration that the trust shall continue to and until the sale and disposition in fee of all the property subject to the trust and the disposition of all proceeds thereof in accordance with *326 the terms of said declaration of trust or until the expiration of twenty-five years, whichever event shall happen first. There are other and further provisions in the declaration of trust, but sufficient has already been stated to designate the character of the instrument as well as the classification of the component entities and persons that are described therein. * * * "The evidence shows that the owners of beneficial interest frequently sold the same, and that a legal form was provided for the purposes of sale and transfer, and it appeared that ten units were assigned during the calendar year 1928, and that there were other units assigned by the owners for collateral purposes. It is true that the enterprise sold only one lot during the year 1926, but during that period the sales agency was actively engaged in an effort to dispose of the unsold lots, and that in the period approximately $340,000 was collected on lot sales, interest, etc., and that the total expenses for administration for the same period amounted to approximately $30,000. It is unnecessary to review all of the evidence as to the financial operations of the enterprise. Suffice it to say that it was a very profitable venture, and resulted, not only in the payment in full of all obligations incurred on account of the purchase, improvement, subdivision, and sale of the tract of land, but, in addition, made a handsome profit to all who invested or were interested in the enterprise." The problem to be solved in this litigation is whether or not the appellant is an association within the meaning of the act of Congress above referred to. Section 701 (a) (2) of the Revenue Act of 1928 (26 USCA § 2701 (a) (2). This subdivision of the Revenue Act is a re-enactment without change of language used in the Revenue Acts of 1918, 1921, 1924 and 1926. After the enactment of the Revenue Act of 1918, the Commissioner of Internal Revenue, acting under the authority and direction of said act requiring him to prescribe and publish all needful rules and regulations for the enforcement of the act, adopted articles 1502 and 1504, amended August 31, 1925, of regulation 65 pertaining to the Revenue Act of 1924, articles 1502 to 1504 of regulation 60 pertaining to the Revenue Act of 1926, which are identical with articles 1312 and 1314 adopted under the Revenue Act of 1928. In view of the adoption of these interpretative regulations by the Commissioner, Congress, in the adoption of the Revenue Act of 1928, must be deemed to have considered and adopted the interpretation placed upon the statute by the Commissioner of Internal Revenue, in a matter as indefinite as the definition of "an association." Upon this subject, the Supreme Court, in an opinion written by Justice Butler, in Brewster v. Gage, 280 U.S. 327, 50 S. Ct. 115, 117, 74 L. Ed. 457, stated: "It is the settled rule that the practical interpretation of an ambiguous or doubtful statute that has been acted upon by officials charged with its administration will not be disturbed except for weighty reasons. Logan v. Davis, 233 U.S. 613, 627, 34 S. Ct. 685, 58 L. Ed. 1121; Maryland Casualty Co. v. United States, 251 U. S. 342, 349, 40 S. Ct. 155, 64 L. Ed. 297; Swendig v. Washington Water Power Co., 265 U. S. 322, 331, 44 S. Ct. 496, 68 L. Ed. 1036. * * * "The regulations promulgated under that section are substantially the same as the earlier regulations. Regulations 65, art. 1594; Regulations 69, art. 1594. The substantial re-enactment in later acts of the provision theretofore construed by the Department is persuasive evidence of legislative approval of the regulation. National Lead Co. v. United States, 252 U. S. 140, 146, 40 S. Ct. 237, 64 L. Ed. 496; United States v. Cerecedo Hermanos y Compania, 209 U. S. 337, 339, 28 S. Ct. 532, 52 L. Ed. 821; United States v. G. Falk & Brother, 204 U. S. 143, 152, 27 S. Ct. 191, 51 L. Ed. 411. The subsequent legislation confirmed and carried forward the policy evidenced by the earlier enactments as interpreted in the regulations promulgated under them." The regulations referred to first adopted, in their present form, by the amendment of Regulation 65, August 31, 1925, are as follows: "Art. 1312. Association. Associations and joint-stock companies include associations, common law trusts, and organizations by whatever name known, which act or do business in an organized capacity, whether created under and pursuant to state laws, agreements, declarations of trust, or otherwise, the net income of which, if any, is distributed or distributable among the shareholders on the basis of the capital stock which each holds, or, where there is no capital stock, on the basis of the proportionate share or capital which each has or has vested in the business or property of the organization. A corporation which has *327 ceased to exist in contemplation of law but continues its business in quasi-corporate form is an association or corporation within the meaning of Section 701. "Art. 1314. Association Distinguished from Trust. Where trustees merely hold property for the collection of the income and its distribution among the beneficiaries of the trust, and are not engaged, either by themselves or in connection with the beneficiaries, in the carrying on of any business, and the beneficiaries have no control over the trust, although their consent may be required for the filling of a vacancy among the trustees or for a modification of the terms of the trust, no association exists, and the trust and the beneficiaries thereof will be subject to tax as provided by Section 161-170 and by Articles 861-891. If, however, the beneficiaries have positive control over the trust, whether through the right periodically to elect trustees or otherwise, an association exists within the meaning of Section 701. Even in the absence of any control by the beneficiaries, where the trustees are not restricted to the mere collection of funds and their payment to the beneficiaries, but are associated together with similar or greater powers than the directors in a corporation for the purpose of carrying on some business enterprise, the trust is an association within the meaning of the act." These regulations in the present form are said to be based upon the decision of the Supreme Court in Hecht v. Malley, 265 U. S. 144, 44 S. Ct. 462, 467, 68 L. Ed. 949 (1923) dealing with the Revenue Acts of 1916 and 1918. The court in that case said: "We think that the word `association' as used in the Act clearly includes `Massachusetts Trusts' such as those herein involved, having quasi-corporate organizations under which they are engaged in carrying on business enterprises. What other form of `associations,' if any, it includes, we need not, and do not, determine. * * * "We conclude, therefore, that when the nature of the three trusts here involved is considered, as the petitioners are not merely trustees for collecting funds and paying them over, but are associated together in much the same manner as the directors in a corporation for the purpose of carrying on business enterprises, the trusts are to be deemed associations within the meaning of the Act of 1918; this being true independently of the large measure of control exercised by the beneficiaries in the Hecht and Haymarket Cases, which much exceeds that exercised by the beneficiaries under the Wachusett Trust. We do not believe that it was intended that organizations of this character — described as `associations' by the Massachusetts statutes, and subject to duties and liabilities as such — should be exempt from the excise tax on the privilege of carrying on their business merely because such a slight measure of control may be vested in the beneficiaries that they might be deemed strict trusts within the rule established by the Massachusetts courts." If we accept, as we think we should, the interpretation placed upon the word "association" by the Commissioner of Internal Revenue, inferentially approved and adopted by Congress in subsequent legislation, based upon the decision of the Supreme Court in Hecht v. Malley, supra, it follows that there are two criteria for determining whether or not an organization or combination of individuals is taxable as an association. The first test found in article 1312 is the business test; that is to say, the test as to whether or not the organization formed "to do business in an organized capacity" and for the distribution of the profits among the shareholders in proportion to the investment or shares. The second test, contained in article 1314, is for the purpose of distinguishing an association from a trust, and depends upon the question of whether or not "the beneficiaries have positive control over the trust, whether through the right periodically to elect trustees, or otherwise." It appears from the terms of the trust, as stated in the foregoing excerpts from the memorandum opinion of Judge McCormick, that, while the ordinary business of the trust or association is carried on by agents designated in the trust and appointed by the trustees, the board of managers had at all times effective control of the business, and that the beneficiaries of the trust had the control over the syndicate managers indicated as the test in article 1314; that is, they had the power to select the managers. The language of the declaration of trust in that regard is as follows: "That said Board of Syndicate Managers shall consist at the outset of John T. Cooper, H. H. Cotton, Godfrey Edwards, Otto G. Wildey, and C. C. C. Tatum, and until the Trustee receives a notice in writing, signed by beneficiaries holding at least three-fourths of the entire number of said units of beneficial interest, changing the personnel of said board of syndicate managers, the trustee shall act upon the written direction of any three (3) *328 of said named persons; but from and after receipt by it of such notice in writing notifying it of change in personnel of said board of syndicate managers, it shall act only upon the written directions of any three (3) of the persons comprising said board of syndicate managers as changed by such written notice." It would seem clear that under the terms of the declaration of trust, the syndicate, organized for the purpose of purchasing, subdividing, improving, and selling, a large tract of land, was engaged in doing business for profit, and that the trust was distinguishable from a simple trust by reason of the control exercised over matters of its management and business by the board of managers and beneficiaries. The appellant contends, however, that notwithstanding the existence of such powers they were not actually exercised during the tax year 1928, and that the true test is whether or not such powers were exercised, citing Gardiner v. United States (C. C. A.) 49 F.(2d) 992, 996. The answer to this contention, we think, is found in the statement of facts by the trial court as to the business done in the year 1928. Under these circumstances, it can hardly be said that the powers of the managers or beneficiaries were not exercised during that time. The business of the association was active and was participated in by the agents and managers thereto authorized. The appellant insists that the enterprise of the syndicate here involved was a joint adventure, citing 33 C. J. 841; Peterson v. Nichols, 90 Wash. 398, 156 P. 406; Sander v. Newman, 174 Wis. 321, 181 N. W. 822; Central Trust Co. v. Creel, 184 Ky. 114, 211 S. W. 421; Camp v. U. S., 15 Ct. Cl. 469; Barton v. Wamsley, 194 Iowa, 591, 190 N. W. 18; Discus v. Scherer, 277 Ill. 168, 115 N. E. 161. Of course it is quite immaterial as to whether or not the organization under consideration is a joint adventure within the meaning of that term as defined by the foregoing authorities. The question here is whether or not the organization is an association within the meaning of that term as used by Congress in its revenue laws. Burk-Waggoner Oil Ass'n v. Hopkins, 269 U. S. 110, 46 S. Ct. 48, 70 L. Ed. 183. It is claimed, however, by the appellant that this distinction between a joint adventure and an association has been recognized in the administration of the revenue law, and, to sustain this proposition, appellant cites Appeal of Florida Grocery Co., 1 B. T. A. 412; Appeal of Ernest Woodruff, 4 B. T. A. 842; Alger Melton v. Commissioner, 7 B. T. A. 717; also Article 1317 of Regulations 74, Revenue Act of 1928, as follows: "Joint ownership, joint investment in, and ownership of real and personal property not used in the operation of any trade or business and not covered by any partnership agreement, does not constitute a partnership. Co-owners of oil lands engaged in developing the property through a common agent are not necessarily partners." In E. A. Landreth Co. v. Commissioner, 11 B. T. A. 1, the Board of Tax Appeals held that the agreement under which funds were secured by the owner of an oil lease for the development of property was a joint adventure and not an association. In Myers, Long & Co. v. Commissioner, 14 B. T. A. 460, it was held that persons associating themselves for the development of oil and gas lands without definite organization did not constitute a corporation within the meaning of section 1 of the Revenue Act of 1918 (40 Stat. 1057), and section 2 of the Revenue Acts of 1921 (42 Stat. 227) and 1924 (43 Stat. 253, 26 USCA 1262) but were joint adventurers and must be taxed as individuals. Similar ruling was made in Royal Syndicate v. Commissioner, 20 B. T. A. 255. In Sugg v. Hopkins (C. C. A.) 11 F.(2d) 517, it was held that there was no partnership for the handling of 10,000 sheep jointly owned. In McCausey v. Burnet, 60 App. D. C. 201, 50 F.(2d) 491, a syndicate to purchase bank stock was held to be a joint adventure and not an association. These cases indicate that there are some joint adventures which are not associations within the meaning of the revenue law, but they are far from sustaining the proposition that all joint adventures are not taxable as associations. Every association of individuals, whether a partnership or corporation or syndicate, is in a broad sense a joint adventure, although not strictly such within the meaning of that term as usually employed in text-books and judicial opinions. In determining whether or not a joint adventure is taxable as an association, we must look to the nature of the business and character of the organization to determine whether or not it is taxable. It is claimed by the appellant that the enterprise does not sufficiently resemble a corporation to justify being classed as a corporation. This is a mere restatement of *329 the proposition that the organization under consideration is not an association within the meaning of the statute. We have recently had occasion to consider the question of whether or not a trust created for liquidation of the affairs of a corporation was an association within the meaning of the statute. Commissioner v. Atherton (C. C. A.) 50 F.(2d) 740. Our decision in that case is cited as authority for the proposition that the organization in the case at bar is not taxable, because in legal effect it is a liquidating organization. An examination of the two trusts indicates clearly that there is a very definite distinction in the case at bar; the trust or syndicate or association was organized for the purchase and sale of a tract of land which was to be improved for the purpose of rendering the land salable and augmenting the profits to be derived therefrom. In the trust under consideration in Commissioner v. Atherton, supra, the sole and only purpose of the trust was to convey to these trustees assets which could no longer be profitably held by the public utility corporation in connection with its business as a public utility. Other differences can be readily ascertained by an examination of the decision in that case. Appellant cites in his brief a number of cases in which the Board of Tax Appeals has distinguished between an association and a joint adventure or partnership. We think it unnecessary to consider these cases separately, or determine their applicability to the case at bar. It is sufficient in that regard to call attention to a more recent decision of the Board of Tax Appeals in passing upon the taxability of a California subdivision real estate syndicate similar to that involved here. Sloan v. Commissioner (Prentice Hall Fed. Tax Serv., 1931, p. 1831) 24 B.T.A. 61. The trust was held to be an association taxable under the internal revenue laws, and, in that connection, the Board of Tax Appeals stated: " * * * The courts and this Board have uniformly held that a trust operating a business for profit is an association taxable as a corporation. * * * Up to the date of the declaration of trust, only two, if any, of the beneficiaries herein were owners of any interest in the parcel of land. * * * Everything in the record indicates that the beneficiaries herein entered into a voluntary association for the purpose of acquiring, subdividing, improving and selling Dominguez Harbor Tract No. 2, with the expectation of realizing a profit therefrom." Appellant contends that this latest decision of the Board of Tax Appeals is contrary to the current trend of the decisions of the Board and of the courts. It is sufficient to say that this opinion was deliberately arrived at, and represents the present view of the Board of Tax Appeals upon the exact question here involved. We conclude that the association, or syndicate, organized for the purpose of subdividing the 90 acres of land in question, was an association within the meaning of the Revenue Law of 1928, doing business as such during the year 1928, and taxable as an association. Judgment affirmed.

765 F.2d 154 Youngv.Kemp 84-8408 United States Court of Appeals,Eleventh Circuit. 6/7/85 M.D.Ga., 760 F.2d 1097

724 So.2d 22 (1998) MAYFIELD TRUCKING COMPANY v. Leon NAPIER. 2970440. Court of Civil Appeals of Alabama. June 12, 1998. Rehearing Denied June 26, 1998. Certiorari Denied October 16, 1998. *23 K. Scott Stapp of Manley, Traeger, Perry & Stapp, Demopolis, for appellant. William L. Utsey of Utsey, Christopher, Newton & Utsey, Butler, for appellee. Alabama Supreme Court 1971710. THOMPSON, Judge. Mayfield Trucking Company (the employer) filed a complaint pursuant to Ala.Code 1975, § 25-5-57(a)(4)b., alleging that Leon Napier was no longer permanently and totally disabled and requesting that his workers' compensation benefits be terminated. Following oral proceedings, the trial court determined that the employer had failed to meet its burden of proof and dismissed the complaint. The employer appeals. Section 25-5-57(a)(4)b. provides: "At any time, the employer may petition the court that awarded or approved compensation for permanent total disability to alter, amend or revise the award or approval of the compensation on the ground that as a result of physical or vocational rehabilitation, or otherwise, the disability from which the employee suffers is no longer a permanent total disability and, if the court is so satisfied after a hearing, it shall alter, amend, or revise the award accordingly." The burden of proof is on the employer in an action filed under § 25-5-57(a)(4)b. Cerrock Wire & Cable Co. v. Johnson, 533 So.2d 622 (Ala.Civ.App.1988). The trial court must hear the evidence and reapply the test for permanent total disability in order to determine whether the earlier-determined disability is no longer present. "Permanent total disability" is the inability to perform one's trade and find gainful employment. Mead Paper Co. v. Brizendine, 575 So.2d 571 (Ala.Civ.App.1990). "Total disability" does not mean entire physical disability or absolute helplessness. Genpak Corp. v. Gibson, 534 So.2d 312 (Ala.Civ.App.1988). The sole issue on this appeal is whether the trial court erred in finding that the employer had not carried its burden of proof, showing that Napier was no longer permanently and totally disabled. Napier's injury occurred on October 5, 1992; this case is governed by the amended Workers' Compensation Act, which became effective on May 19, 1992. The amended act provides that, upon review, the trial court's findings of fact will not be reversed if they are supported by substantial evidence. Ala. Code 1975, § 25-5-81(e)(2). Our supreme court has defined the term "substantial evidence," to mean "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), quoted in Ex parte Trinity Industries, Inc., 680 So.2d 262, 268 (Ala.1996). The record reflects that in 1992, Napier sustained a ruptured lumbar disc when he lifted a water cooler at work. Dr. Roger Setzler, an orthopedic surgeon, performed a lumbar' laminectomy on Napier on May 10, 1993. The last time Dr. Setzler examined Napier after the surgery was on July 22, 1994. At that time, Napier was having occasional stiffness in his back and was unable to squat or bend without difficulty. Dr. Setzler released Napier to work on light-duty status, but Napier did not return to work. Napier *24 filed an action seeking workers' compensation disability benefits; Dr. Setzler testified in that action that Napier had suffered a 10% disability. On November 5, 1994, the Circuit Court of Choctaw County entered a judgment finding Napier to be permanently and totally disabled and awarding benefits accordingly. On March 12, 1997, in connection with this action, the employer asked Dr. Setzler to review a surveillance videotape showing Napier's activities on September 6, 1995, and to render an opinion as to whether the activities he watched Napier perform on the videotape would cause him to alter the disability rating he had previously assigned to Napier. The videotape showed Napier performing such strenuous tasks as swinging a bush blade, starting and using a chain saw and a lawn mower, and picking up boards. Napier even picked up a riding lawn mower to examine the blade underneath. The videotape also demonstrated the extent of Napier's agility when it showed him effortlessly leaping to the ground over the side of the bed of a pickup truck and freely squatting, bending, and twisting at the waist with no apparent stiffness or hesitancy. The most dramatic display of Napier's agility was a portion of the videotape in which he was filmed in a squatting position, picking peas for a period of approximately 12 minutes. Based on his review of the videotape, Dr. Setzler revised his prior opinion concerning Napier's physical disability rating and expressed an opinion that Napier no longer suffered from a physical disability. Dr. Setzler did not reexamine Napier before or after revising his opinion. The trial court also reviewed the deposition testimony of Dr. Donald Cook. Dr. Cook had examined Napier and had rendered an opinion in connection with the initial action for workers' compensation benefits. In his testimony in the original action, Dr. Cook expressed the opinion that Napier had a permanent disability of 18% and would be unable to do heavy or repetitive lifting, bending, twisting, kneeling, squatting, or climbing, or walking for long distances. Dr. Cook also reviewed the videotape in the present case and expressed the opinion that the activities he watched Napier perform on the videotape were not inconsistent with the limitations he had previously imposed upon him. Dr. Cook explained that people who suffer from chronic back ailments typically have good days and bad days. He further explained that while Napier might be able to perform a certain strenuous activity for a short time, he did not believe him to be capable of performing it for an extended period, or of repeating the activity the following day. In addition to viewing the videotape, Dr. Cook examined Napier and determined that his original assessment that Napier suffered from an 18% permanent disability was unchanged. The trial court also heard testimony from Napier himself, describing his physical limitations and explaining that he had good days and bad days. John Long, a vocational rehabilitation specialist, also testified. Long stated that Napier no longer suffered from a vocational disability and explained that he had arrived at this conclusion because Dr. Setzler had removed the physical restrictions he had previously placed on Napier. Bill Vinson, a vocational expert testifying on behalf of Napier, expressed the opinion that Napier continued to be permanently and totally vocationally disabled. At the conclusion of the proceeding, the trial court entered an order providing in part as follows: "It is the finding of this Court that, based upon the evidence which the Court finds most credible, that the previous order of this Court should continue undisturbed and that the Defendant/Petitioner's complaint should be denied. In making this finding, the Court notes that the Defendant/complainant surveilled the Plaintiff on six (6) separate occasions, and the only evidence presented is a video of the Plaintiff doing those things described in the narrative above for extremely short periods. The Court further notes that Dr. Setzler has not examined the Plaintiff, but based his entire testimony on viewing the above-described videotape of approximately thirty-seven (37) minutes duration." On review, we note a vast disparity between the original physical restrictions imposed upon Napier in 1994 by both Dr. Cook and Dr. Setzler and the intense activities the *25 videotape shows Napier performing. Although we find the videotaped surveillance presented by the employer to be quite compelling, the supreme court has consistently determined that the applicable standard of review does not allow this court to reweigh the evidence presented to the trial court. Ex parte Alabama Ins. Guar. Ass'n, 667 So.2d 97 (Ala.1995); Ex parte Veazey, 637 So.2d 1348 (Ala.1993); Ex parte Ellenburg, 627 So.2d 398 (Ala.1993). The resolution of conflicting evidence is within the exclusive province of the trial court, and this court is forbidden to invade that province upon review. Id. Instead, we must affirm the judgment of the trial court if it is supported by substantial evidence. Ex parte Trinity Industries, Inc., supra. Further, it is well established that the trial court is in the best position to observe the demeanor and credibility of the employee and other witnesses in a workers' compensation case. Ex parte Alabama Ins. Guar. Ass'n, 667 So.2d at 101. After reviewing all the evidence, we conclude that, although we might have decided this case differently, there is substantial evidence to support the determination of the trial judge. The judgment of the trial court is due to be affirmed. AFFIRMED. ROBERTSON, P.J., and CRAWLEY, J., concur. YATES and MONROE, JJ., concur in the result.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA,  Plaintiff-Appellee, v.  No. 03-4281 BILLY T. JOHNSON, Defendant-Appellant.  UNITED STATES OF AMERICA,  Plaintiff-Appellee, v.  No. 03-4358 DAVIDE HUDSON, Defendant-Appellant.  Appeals from the United States District Court for the Southern District of West Virginia, at Beckley. Robert C. Chambers, District Judge. (CR-02-140) Submitted: April 23, 2004 Decided: May 18, 2004 Before MOTZ, TRAXLER, and KING, Circuit Judges. Affirmed in part, dismissed in part by unpublished per curiam opin- ion. 2 UNITED STATES v. JOHNSON COUNSEL Matthew B. Tully, LAW OFFICE OF MATTHEW B. TULLY, Hunter, New York; Patricia A. Kurelac, KURELAC LAW OFFICES, Moundsville, West Virginia, for Appellants. Charles T. Miller, Acting United States Attorney, Stephanie L. Haines, Assistant United States Attorney, Huntington, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). OPINION PER CURIAM: Billy T. Johnson pled guilty to one count of aiding and abetting in the distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2000) and 18 U.S.C. § 2 (2000). His co-defendant, Davide Hudson, entered a guilty plea to one count of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2000). They timely appeal. Counsel for both Johnson and Hudson have filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), raising several potential issues, but concluding that there are no meritorious issues on appeal. Hudson filed a pro se supplemental brief challenging the district court’s calculation of relevant conduct. Johnson declined to file a pro se supplemental brief. Finding no reversible error, we affirm. In the Anders brief, Johnson contends that the district court erred by refusing to grant him a two-point reduction for being a minor par- ticipant in the conspiracy, pursuant to United States Sentencing Guidelines Manual § 3B1.2 (2002), because he was nothing more than Hudson’s low-level employee. The standard of review for factual determinations, such as whether the appellant’s conduct warrants a minor-role sentencing reduction, is  UNITED STATES v. JOHNSON 3 clear error. United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989). Because Johnson admittedly sold drugs as a member of the conspiracy, we conclude that the district court properly determined that Johnson was not a minor participant in the conspiracy. United States v. Brooks, 957 F.2d 1138, 1149 (4th Cir. 1992). Accordingly, we affirm the district court’s denial of the role reduction. Daughtrey, 874 F.2d at 218. Johnson also contends that the district court erred by denying his request for a downward departure pursuant to USSG § 4A1.3, on the grounds that his criminal history category substantially over- represented the seriousness of his prior record. However, because there is no doubt that the court understood its authority to depart and simply declined to do so, the district court’s refusal to depart below the guideline range is not reviewable on appeal. United States v. Carr, 271 F.3d 172, 176-77 (4th Cir. 2001). Accordingly, we dismiss this portion of the appeal. Hudson contends that because he pleaded guilty to .72 grams of cocaine base, the amount of drugs attributable to him at sentencing is limited to less than five grams of cocaine base under 21 U.S.C. § 841(b)(1)(c) (2000). This argument is essentially an attempt to chal- lenge the sentence under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding that except for fact of prior conviction, any fact increasing penalty beyond statutory maximum must be submitted to jury and proven beyond reasonable doubt). However, Apprendi is inapplicable to this case, as Hudson pleaded guilty, and his twenty- year sentence did not exceed the statutory maximum under § 841(b)(1)(C). In his pro se supplemental brief, Hudson contends that the district court erred in calculating relevant conduct, stating that the drug trans- actions attributed to him were not connected to the crime of convic- tion, and arguing that the testimony at sentencing was unreliable. The district court’s drug quantity determination is reviewed for clear error. United States v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996). In determin- ing relevant conduct, the district court may consider any relevant and reliable evidence before it, including acquitted or uncharged crimes and hearsay. United States v. Bowman, 926 F.2d 380, 381-82 (4th Cir. 1991); United States v. Mullins, 971 F.2d 1138, 1144-46 (4th Cir. 4 UNITED STATES v. JOHNSON 1992); United States v. Williams, 880 F.2d 804, 805 (4th Cir. 1989). The Government has the burden of establishing the amount of drugs used for sentencing calculations by a preponderance of the evidence. United States v. Cook, 76 F.3d 596, 604 (4th Cir. 1996). After careful review of the record, we defer to the district court’s findings that the testimony at sentencing was reliable, and we agree that the Govern- ment proved the disputed relevant conduct by a preponderance of the evidence. Accordingly, we find no reversible error. Fletcher, 74 F.3d at 55. Finally, we decline to consider Hudson’s claim that his counsel’s actions in regards to the calculation of relevant conduct amounted to ineffective assistance because counsel’s ineffectiveness is not conclu- sively shown on the face of the record. United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (noting that ineffective assistance of counsel claims generally should be raised by motion under 28 U.S.C. § 2255). As stated above, the district court correctly deter- mined the relevant conduct attributable to Hudson. Moreover, the inclusion of relevant conduct at sentencing does not violate § 841 or the rule in Apprendi. Thus, Hudson has not shown he was prejudiced by counsel’s actions in these matters. Strickland v. Washington, 466 U.S. 688, 694 (1984). In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We there- fore affirm Johnson’s and Hudson’s convictions and sentences. This court requires that counsel inform their clients, in writing, of their right to petition the Supreme Court of the United States for further review. If a client requests that a petition be filed, but counsel believes that such petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Coun- sel’s motion must state that a copy thereof was served on the client. We dispense with oral argument because the facts and legal conten- tions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED IN PART; DISMISSED IN PART 

674 F.Supp. 462 (1987) James TAYLOR, Petitioner, v. Charles SCULLY, et al., Respondent. No. 86 Civ. 7801 (JES). United States District Court, S.D. New York. December 11, 1987. *463 James Taylor, pro se. Robert Abrams, Atty. Gen. of the State of N.Y., New York City (Tyrone M. Powell, Asst. Atty. Gen., of counsel). MEMORANDUM OPINION AND OPINION SPRIZZO, District Judge: Petitioner was convicted of criminal sale of a controlled substance in the third degree in New York Supreme Court and is presently serving a sentence of four and one-half to nine years. In this action, petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982). Petitioner does not challenge the constitutionality of his conviction in this habeas corpus petition, but contends that the nearly four-year wait before court-appointed counsel perfected his appeal has denied him the right to effective assistance of counsel, and further, that this delay has denied him the right of appeal. This matter was referred to a Magistrate for Report and Recommendation pursuant to 28 U.S.C. § 636(b) (1982). Subsequently, respondent moved to dismiss the petition, alleging that petitioner failed to exhaust all state remedies available to him. The Magistrate agreed and recommended that the petition be dismissed. See Report and Recommendation ("Report") at 1-2. Petitioner has not objected to the Report. For the reasons below, the Court concludes that the petition should be dismissed. Before a federal court may consider a petition for habeas corpus, petitioner must demonstrate that he has exhausted his state remedies. 28 U.S.C. § 2254(b), (c); see Rose v. Lundy, 455 U.S. 509, 515-19, 102 S.Ct. 1198, 1201-04, 71 L.Ed.2d 379 (1982). In New York, when a defendant claims his right to appeal has been frustrated by ineffective assistance of counsel, the "defendant's right and remedy is by a coram nobis petition." People v. Adams, 12 N.Y.2d 417, 420, 240 N.Y.S.2d 155, 157, 190 N.E.2d 529, 531 (1963). Petitioner must, therefore, pursue the state remedial procedure of coram nobis before this court will consider his habeas corpus petition.[1]See Pidgeon v. Attorney General of New York, 655 F.Supp. 333, 335 (S.D.N.Y.1987); Booker v. Kelly, 636 F.Supp. 319, 322 (W.D.N.Y.1986); see also Ralls v. Manson, 503 F.2d 491 (2d Cir.1974). But see Harris v. Kuhlman, 601 F.Supp. 987 (E.D.N.Y. 1985) (habeas petition based on claim of inadequate state appeal process not precluded by exhaustion requirement; no discussion of coram nobis). Although petitioner has recently filed a coram nobis petition in state court, see Letter from Petitioner to the Court (June 19, 1987), there is no indication that any state court has had the opportunity to consider *464 the petition. Petitioner, therefore, has failed to exhaust his state remedies. See Irving v. Reid, 624 F.Supp. 787, 789 (S.D.N.Y.1985). The petition for a writ of habeas corpus is dismissed without prejudice. Petitioner may file a new petition when all state remedies are exhausted. It is SO ORDERED. NOTES [1] The Second Circuit decision in Wheeler v. Kelly, 811 F.2d 133 (2d Cir.1987), is not to the contrary. In Wheeler, as here, petitioner sought a writ of habeas corpus based upon his counsel's delay in perfecting his appeal. The appeal was perfected only after the habeas petition was filed. The petitioner appealed the district court's order granting a conditional writ providing for a retrial unless the Appellate Division decided his appeal within a specified time period. Petitioner argued that the district court's failure to order an unconditional new trial constituted an abuse of discretion. The Second Circuit disagreed and affirmed the district court order. Because the respondent did not appeal or otherwise challenge the petition on the ground that state remedies had not been exhausted, however, the Second Circuit did not consider whether it was necessary for petitioner to file a coram nobis petition before pursuing a writ of habeas corpus.

482 F.Supp. 779 (1980) Phyllis A. BARRETT v. UNITED STATES CUSTOMS SERVICE and the DEPARTMENT OF TREASURY. Civ. A. No. 78-4236. United States District Court, E. D. Louisiana, Section "H". January 18, 1980. Phyllis A. Barrett, in pro. per. Roy F. Blondeau, Jr., Asst. U. S. Atty., New Orleans, La., for defendant. DUPLANTIER, District Judge. Plaintiff brought this action under the Privacy Act, 5 U.S.C. § 552a, seeking certain documents allegedly contained in the files of the U.S. Customs Service. As a result of this suit, the defendant has produced all of the information to which the court has held plaintiff was entitled and which she should have been given prior to suit. Therefore, the suit should be dismissed as moot except as to the attorney fee claim. For the following reasons, plaintiff's motion for an award of attorney fees is hereby denied. On January 2, 1980, when this motion was first presented, the court ruled orally that an award of attorney fees would be appropriate under the criteria set forth in Blue v. Bureau of Prisons, 570 F.2d 529 at 533 (5th Cir. 1978). This ruling was based, inter alia, on the court's finding of fact that defendant had not exercised due diligence in processing plaintiff's request for information, that the resulting delay forced plaintiff to institute this litigation, and that such government action amounted to an arbitrary and unreasonable withholding of the information sought. However, the court did not order an award of fees on that date because two issues remained outstanding: (1) whether a pro se litigant may recover attorney fees under the Privacy Act, 5 U.S.C. § 552a; and (2) the amount of fees to be awarded. The court instructed the parties to file additional memoranda on the issue of a pro se litigant's entitlement to attorney fees. We have not been able to find, nor have the parties called to our attention, any decision of the United States Supreme Court or of the Fifth Circuit Court of Appeals which addresses this issue. Plaintiff relies principally on a line of decisions in the District of Columbia Circuit. See, e. g., Cox v. Dept. of Justice, 195 U.S.App.D.C. 189, 601 F.2d 1 (D.C.Cir. 1979), and cases cited therein. Plaintiff also cites a recent decision by a district court which follows the reasoning of the District of Columbia Circuit, Marschner v. Dept. of State, 470 F.Supp. 196 (D.Conn. 1979). These cases are decided under the Freedom of Information Act, 5 U.S.C. § 552, the language of which is identical to the Privacy Act's provision regarding attorney fees. Defendants rely on Burke v. Dept. of Justice, 432 F.Supp. 251 (D.Kan.1976) affirmed, 559 F.2d 1182 (10th Cir. 1977), a Freedom of Information Act case, and on Hannon v. Security National Bank, 537 F.2d 327 (9th Cir. 1976) a case decided under the Truth in Lending Act. The attorney fees provision of the Privacy Act, 5 U.S.C. § 552a(g)(3)(B), states: The court may assess against the United States reasonable attorney fees and *780 other litigation costs reasonably incurred in any case under this paragraph in which the complainant has substantially prevailed. In the decisions cited by plaintiff, the courts have reasoned as follows: (1) the words "reasonably incurred" do not modify "attorney fees", thus the statute does not explicitly require that attorney fees be "actually incurred;" (2) it is consistent with the purposes of the statute to encourage private enforcement; therefore, it is proper to award attorney fees to a pro se litigant under the statute. We disagree with this latter reasoning. The statute provides for an award of an attorney fee. There is no attorney involved in this case. Nor is there a fee involved. We agree with the court in Hannon v. Security National Bank, supra, that had Congress wished to compensate non-attorneys for the time spent on their own behalf in litigating their claims, it could have and would have done so explicitly. Congress certainly knows how to encourage litigation, pro se and otherwise. Courts should not do so where Congress has not. To read the statute as plaintiff urges is to ignore the statute's clear language.

29 Cal.App.4th 323 (1994) 34 Cal. Rptr.2d 503 THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; STANLEY SAMUEL FEINSTEIN, Real Party in Interest. Docket No. B085370. Court of Appeals of California, Second District, Division Four. October 18, 1994. *326 COUNSEL Gil Garcetti, District Attorney, Brent Riggs and Brentford J. Ferreira, Deputy District Attorneys, for Petitioner. No appearance for Respondent. Philip D. Israels and David W. Pies for Real Party in Interest. OPINION EPSTEIN, Acting P.J. A magistrate purported to reduce two felony charges to misdemeanors because she believed the evidence presented at the preliminary hearing was insufficient to hold the defendant to answer felony charges. Neither offense was a felony-misdemeanor (wobbler) as to which the reduced crime was a misdemeanor. We conclude the magistrate was without power to reduce the offenses to these misdemeanors, and that her doing so amounted to a dismissal of the felony charges. The district attorney brought a Penal Code section 871.5 motion, but the superior court declined to consider it, reasoning that the magistrate's order did not result in a dismissal of charges, a requisite of the motion. We conclude that a dismissal did occur, and hence that the superior court should review the magistrate's order pursuant to Penal Code section 871.5. We therefore shall issue a peremptory writ directing it to do so. We express no opinion on the merits of the dismissal the trial court is to review. *327 FACTUAL AND PROCEDURAL SUMMARY At the felony preliminary hearing, held in May 1994, Vicki D. testified substantially as follows. She is an attorney, and she went to the state building in Van Nuys to appear at a workers' compensation proceeding scheduled to be held in that facility. Once there, she met defendant Stanley Samuel Feinstein (defendant), a workers' compensation judge, in the lobby. Although Ms. D. only knew him slightly, defendant invited her to his chambers for the stated purpose of giving her information about an upcoming seminar. After a brief discussion of the seminar, Ms. D. turned to leave the room. Defendant asked her to close the door, and Ms. D. complied. Defendant then threw himself upon her, slammed her to the wall, and pinned her with the weight of his body. He thrust one hand inside Ms. D.'s blouse, onto her breast, and the other under her skirt and undergarments to fondle her genital area. Ms. D. attempted to push defendant away, but was unable to do so. During the attack, defendant repeatedly attempted to kiss Ms. D. She continued to try to push him away and told him that she had to leave. Finally, he lightened his weight, and Ms. D. was able to extricate herself and run out of the office. In April 1994, a felony complaint was filed against defendant. Count 1 alleged a felony violation of Penal Code section 243.4, subdivision (a), sexual battery by restraint.[1] Count 2 alleged a felony violation of sections 236 and 237, false imprisonment by violence, menace, fraud or deceit. Ms. D. was the only witness at the preliminary hearing. At the conclusion of her testimony, defendant's attorney moved for dismissal on the ground that the evidence did not establish probable cause to hold defendant to answer the felonies charged against him. The defense theory was that the facts did not rise to the level of restraint or violence necessary to constitute a felony, as opposed to misdemeanor battery or false imprisonment. After argument by both sides, the magistrate concluded that the physical restraint requisite for the felonies was not established. The magistrate exhibited some reluctance in coming to this conclusion, but stated that the law required it. She ordered count 1, felony sexual battery, "reduced" to misdemeanor battery under section 242, and purported to strike the felony portion of count 2, leaving that charge as a simple violation of section 236, misdemeanor false imprisonment. She ordered the charges tried in the municipal court. The district attorney moved to reinstate the felony charges in the superior court pursuant to section 871.5. That motion was opposed by the defendant *328 on the ground that the magistrate properly had reduced the charges, that section 871.5 does not lie to review an order of this kind, and that the motion was untimely because defendant already had been arraigned in municipal court on the misdemeanors. The superior court assumed the magistrate exercised her discretion pursuant to section 17, subdivision (b)(5) in reducing the felony charges to misdemeanors. It concluded that section 871.5 allows review by the superior court only of dismissals pursuant to enumerated code sections, and that this authority does not extend to review of an order reducing felony charges to misdemeanors. Based on this, the court concluded that it was without jurisdiction to consider the district attorney's motion, which it then denied. The district attorney petitioned this court to issue a writ of mandate commanding the superior court to vacate its order and to hear the section 871.5 motion on its merits. We issued an alternative writ and a show cause order. DISCUSSION I The superior court concluded the magistrate was acting within her authority to reduce felony charges to misdemeanors pursuant to section 17, subdivision (b)(5). As we shall explain, we disagree. (1) A magistrate's powers at a felony preliminary hearing are purely statutory. (People v. Silverbrand (1990) 220 Cal. App.3d 1621, 1626 [270 Cal. Rptr. 261]; People v. Brandon (1989) 206 Cal. App.3d 1565, 1569 [254 Cal. Rptr. 504].) These limited powers have been summarized in the following terms: "... once a felony complaint has been filed and the defendant arraigned thereon, a magistrate's options are limited by the Penal Code. Thus, the magistrate may: 1) conduct the preliminary examination (Pen. Code, § 806); and 2) hold the defendant to answer for trial in the superior court (Pen. Code, § 872); or 3) discharge the defendant if there is insufficient evidence (Pen. Code, § 871); or 4) if the defendant pleads guilty, certify the defendant to superior court (Pen. Code, § 859a); or 5) if the matter is a `wobbler,' reduce the offense to a misdemeanor (Pen. Code, § 17, subd. (b)(5))."[2] (People v. Municipal Court (White) (1979) 88 Cal. App.3d 206, 213 [151 Cal. Rptr. 861]; see also Ramos v. Superior Court (1982) 32 Cal.3d 26, *329 30 [184 Cal. Rptr. 622, 648 P.2d 589] [discussion of 1980 statute delineating magistrate's power to dismiss].) Under this statutory scheme, a magistrate may only reduce an offense to a misdemeanor if it is a felony-misdemeanor ("wobbler"), which may be prosecuted as either a felony or a misdemeanor. And even then the reduction is permitted only because the Legislature specifically empowered magistrates so to act. The authorization is in section 17, which provides: "(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] ... [¶] (5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint." (2) The first issue, therefore, is whether the reductions in this case were within the scope of the magistrate's authority under section 17, subdivision (b)(5). The complaint charged defendant with two offenses: in count 1, felony sexual battery by restraint, a violation of section 243.4, subdivision (a); and in count 2, felony false imprisonment by violence, menace, fraud or deceit in violation of sections 236 and 237. Section 243.4, subdivision (a) provides: "Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000)." Since this statute provides for either punishment in the county jail or imprisonment in state prison, it is a "wobbler" and the magistrate could have reduced the charge to misdemeanor sexual battery in violation of section 243.4. That is not what the magistrate did. Instead, she purported to reduce the offense to a different crime, simple battery. (§ 242.) That was beyond the power conferred by section 17, subdivision (b)(5). Count 2 of the complaint charged defendant with felony false imprisonment. Section 236 defines the offense: "False imprisonment is the unlawful *330 violation of the personal liberty of another." The punishment is set out in section 237: "False imprisonment is punishable by fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not more than one year, or by both. If such false imprisonment be effected by violence, menace, fraud, or deceit, it shall be punishable by imprisonment in the state prison." False imprisonment is therefore not a wobbler which may be charged as either a misdemeanor or a felony. If the crime is committed by violence, menace, fraud, or deceit, it is a felony, and the court has no discretion to treat it as a misdemeanor. This type of felony has been referred to as a "straight" felony, to distinguish it from a wobbler for purposes of section 17 analysis. (See People v. Mendez (1991) 234 Cal. App.3d 1773, 1779 [286 Cal. Rptr. 216].) In People v. Manning (1982) 133 Cal. App.3d 159 [183 Cal. Rptr. 727] the court reached the same interpretation of section 237, although in a slightly different context. In Manning, the defendant moved to set aside an information charging him with false imprisonment and battery because these counts had not been included in the complaint filed in the municipal court. He argued that he had been denied the right to have a magistrate declare the crimes to be misdemeanors under section 17, subdivision (b)(5). (133 Cal. App.3d at p. 163.) The court did not reach Manning's argument about the false imprisonment charge because it concluded that the punishment for false imprisonment is not discretionary with the trial court. "Thus, the decision whether a defendant is sentenced to local time or to prison is not discretionary with the court but depends on the trier's finding as to whether the crime was `effected by violence, menace, fraud, or deceit.' This finding requires a trial on the merits." (Id. at p. 163, fn. 1; see also People v. Spears (1984) 153 Cal. App.3d 79, 84-85 [199 Cal. Rptr. 922] [follows People v. Manning in concluding trial court lacks discretion to decide whether violation of section 236 is punishable under section 237 as misdemeanor or felony, because punishment depends on whether crime was accomplished by violence, menace, fraud or deceit].) As these cases demonstrate, a magistrate has no power to reduce a straight felony to a misdemeanor. Section 17, subdivision (b) provides no such authority nor is that power found in any other statute. (See People v. Mendez, supra, 234 Cal. App.3d at p. 1779; see also People v. Beebe (1989) 216 Cal. App.3d 927, 931 [265 Cal. Rptr. 242]; People v. Municipal Court (White), supra, 88 Cal. App.3d at pp. 212-213.) It follows that the magistrate acted in excess of her authority in ordering the reduction. *331 II Since the magistrate lacked the power to reduce the charges, what was the effect of her order that purported to do so? As we explain, the order cannot be understood as anything but a dismissal of the felony charges, since that was its effect. Section 871.5 provides: "(a) When an action is dismissed by a magistrate pursuant to Section 859b, 861, 871, 1008, 1381, 1381.5, 1385, 1387, or 1389 of this code or Section 41403 of the Vehicle Code, or a portion thereof is dismissed pursuant to those same sections which may not be charged by information under Section 739, the prosecutor may make a motion in the superior court within 15 days to compel the magistrate to reinstate the complaint or a portion thereof and to reinstate the custodial status of the defendant under the same terms and conditions as when the defendant last appeared before the magistrate. [¶] (b) Notice of motion shall be made to the defendant and the magistrate. The only ground for the motion shall be that, as a matter of law, the magistrate erroneously dismissed the action or a portion thereof." As we have discussed, the superior court concluded that it was without jurisdiction to review the magistrate's order pursuant to section 871.5 because the offenses were reduced, rather than dismissed. The district attorney argues that the magistrate's attempt to reduce count 1 based on insufficiency of the evidence constitutes a dismissal under section 871. The result, he argues, is that the order was within the express purview of section 871.5. As to count 2, the district attorney argues that the magistrate's action in striking the allegation that the false imprisonment was "effected by violence, menace, fraud, or deceit," also amounts to a dismissal of a felony under section 871. We agree with that analysis. The legislative history of the statute is instructive. (3) "Section 871.5 was enacted to decrease the number of refilings of felony complaints when the dismissal by a magistrate was based upon a legal rather than a factual ruling. If the magistrate ruled as a matter of law, the order of dismissal could be reviewed in the superior court on motion by the People on the record of the proceedings before the magistrate; a ruling adverse to the People on this motion could be appealed to the Court of Appeal but if they litigated the motion to decision they were prohibited from refiling the action." (Vlick v. Superior Court (1982) 128 Cal. App.3d 992, 997 [180 Cal. Rptr. 742].) (4) The first issue presented is whether the order of the magistrate constituted a dismissal within the meaning of section 871. The second is *332 whether, absent specific reliance on a statute enumerated in section 871.5 by the magistrate, the superior court had jurisdiction to review the order. We begin by examining the magistrate's order. As we have seen, if the magistrate concludes the evidence is insufficient to hold the defendant for trial in the superior court as charged, he or she must dismiss the complaint pursuant to section 871.[3] (See People v. Municipal Court (White), supra, 88 Cal. App.3d at p. 213.) In People v. Booker (1994) 21 Cal. App.4th 1517 [26 Cal. Rptr.2d 715], the court held that an order declaring charged felony offenses to be misdemeanors was tantamount to a dismissal. In that case, the district attorney filed felony charges for violation of Unemployment Insurance Code section 2101, subdivision (a) against two defendants in unrelated prosecutions. The defendants filed a joint motion requesting the superior court to declare the charges to be misdemeanors rather than felonies. Each defendant had waived preliminary hearing. Neither had sought a determination that the charges were misdemeanors pursuant to section 17, subdivision (b), nor had they demurred to the information, or moved for dismissal pursuant to section 995. The trial court granted the motion to declare the crimes misdemeanors. The Booker court ruled: "The trial court's decrees that the charged offenses must be prosecuted as misdemeanors were tantamount to dismissal of the felony charges against the defendants ... and, accordingly, may be appealed by the People. [Citation.] We further believe that the trial court's orders effectively usurped the charging prerogative of the prosecutor, lacked underlying statutory authority, and must be reversed." (21 Cal. App.4th at p. 1521.) Defendant argues that Booker is distinguishable because the order in that case was not made pursuant to section 17, subdivision (b)(5) following a preliminary hearing. This is so, but it does not distinguish the precedent. The significant issue in both Booker and in this case is the ultimate effect of the order under review. Where the order precludes the prosecutor from proceeding to trial on the felony offenses originally charged, it must be construed as a dismissal within the meaning of section 871. As we have seen, the effect of the magistrate's order as to both counts of the complaint was to preclude the prosecution of defendant on felony charges because the evidence of the felonies was insufficient. We are satisfied that this order constitutes a dismissal within the meaning of section 871. (5) The next issue is whether the order may be reviewed under section 871.5. Defendant argues that it may not be because the magistrate did not *333 expressly invoke one of the statutes enumerated in section 871.5, subdivision (a) as the basis for her ruling. In People v. Dethloff (1992) 9 Cal. App.4th 620 [11 Cal. Rptr.2d 814], we held that a dismissal for insufficiency of evidence is within the purview of section 871, and could be reviewed under section 871.5: "The record before us does not identify the statutory basis upon which the magistrate dismissed the complaint. As respondent moved for dismissal on the ground of insufficiency of the evidence, we construe the order to be pursuant to section 871, which provides for dismissal of a complaint if `there is not sufficient cause to believe the defendant guilty of a public offense....'" (9 Cal. App.4th. at p. 623, fn. 2.) The same is true in this case. The superior court had jurisdiction under section 871.5 to review the magistrate's order because the order effected a dismissal of charges within the meaning of section 871, one of the statutes expressly referenced in section 871.5. Were this not so, the People would have no right to appellate review of a magistrate's order converting a felony charge to a different and lesser crime based on lack of evidence. That result would run directly counter to the legislative purpose in enacting section 871.5. Section 871.5 was added to the Penal Code as a part of legislation enacted in 1980. The statute was a response to the Supreme Court's decision in People v. Peters (1978) 21 Cal.3d 749 [147 Cal. Rptr. 646, 581 P.2d 651], which held that magistrates were not authorized to dismiss a felony in the interests of justice under section 1385. At the time Peters was decided, magistrates were empowered to discharge a defendant, but not to dismiss a felony complaint. The rationale was that only a "court" could exercise the dismissal power of section 1385, and that since magistrates did not act as courts, they could not order the dismissal. (21 Cal.3d at p. 753.) Fearing this resolution would lead to repeated filings against a defendant, the Legislature attempted to address it with corrective legislation in 1978 (Sen. Bill No. 1474). The Governor vetoed the bill because it "`failed to give the prosecutors the same right to appeal the dismissal of a criminal case by a magistrate as prosecutors already possess with respect to the dismissal of such a case by a superior court judge.'" (Vlick v. Superior Court, supra, 128 Cal. App.3d at p. 997.) The Governor's concern was addressed by enactment of section 871.5 in legislation in 1982. Our decision is consistent with the legislative intent that the People are entitled to review under section 871.5 where the action of the magistrate dismisses felony charges on the ground of insufficiency of the evidence as a matter of law. As we have discussed, that was the basis of the magistrate's "reduction" order in this case. This conclusion also is consistent with other cases in which a dismissal as a matter of law for insufficiency of the evidence was found to come within *334 the purview of section 871.5. (See Vlick v. Superior Court, supra, 128 Cal. App.3d at p. 995 [section 871 expressly invoked as basis for dismissal]; People v. Salzman (1982) 131 Cal. App.3d 676, 683 [182 Cal. Rptr. 748] [magistrate granted motion to suppress and dismissed action, section 871 not invoked]; People v. Childs (1991) 226 Cal. App.3d 1397, 1404 [277 Cal. Rptr. 456] [magistrate did not invoke section 871 in stating there was insufficient cause to believe defendant had committed the crime as basis for dismissal of charges, review proper under section 871.5].) The magistrate in our case concluded that the evidence was insufficient to establish probable cause to hold defendant to answer the felony charges. There was no conflict in the evidence since the only evidence was the victim's testimony. It is clear from the record that the magistrate's decision was based on her understanding of the legal requisites of the felony statutes rather than on a credibility judgment about the witness. As such, it was a legal conclusion that the evidence was not sufficient to hold defendant to answer for the felonies charged as she construed them. (See People v. Slaughter (1984) 35 Cal.3d 629, 640, 642-643 [200 Cal. Rptr. 448, 677 P.2d 854]; People v. Estrada (1987) 188 Cal. App.3d 1141, 1147 [233 Cal. Rptr. 754].) The magistrate's order prevented the district attorney from trying the defendant on the felony charges — in effect the complaint was dismissed for insufficiency of the evidence and may be reviewed under section 871.5. Defendant relies upon People v. Hanley (1992) 4 Cal. App.4th 340 [5 Cal. Rptr.2d 643], which concluded that a superior court was without jurisdiction to review a motion to reinstate a complaint under section 871.5. Hanley was charged with driving under the influence (Veh. Code, § 23152, subd. (a)) and with driving with a .08 blood-alcohol level (Veh. Code, § 23152, subd. (b)). The complaint alleged that he had suffered three prior convictions for driving under the influence, making the offenses wobblers which could be prosecuted as either misdemeanors or as felonies. It charged them as felonies. (4 Cal. App.4th at p. 342, fn. 2.) The magistrate granted Hanley's motion to strike one of the three prior convictions, and with only two prior convictions remaining, determined that the offenses charged were misdemeanors as a matter of law. The case was transferred to the municipal court. The Hanley court concluded that the magistrate had acted under Vehicle Code section 41403, rather than section 871.5, in ordering a dismissal. Since the Vehicle Code provision is not among the enumerated provisions in section 871.5, the court concluded that statute did not lie to afford review authority in the superior court. In our case the only statute that lies to effect a dismissal was section 871 which is, of course, one of the statutes listed in section 871.5. *335 III Because the superior court was authorized by section 871.5 to review the magistrate's order purporting to reduce the charged offenses to misdemeanors, but declined to do so under the mistaken belief that it lacked such authority, we must grant the petition for writ of mandate directing that it conduct the review.[4] The district attorney asks that we go further, and direct the superior court to reinstate the felony charges. The trial court has not addressed the merits of the motion to reinstate. We conclude that it is inappropriate for us to do so in the first instance. DISPOSITION Let a peremptory writ of mandate issue directing the superior court to vacate its order denying the district attorney's motion for reinstatement of the charges pursuant to section 871.5 and to review the merits of that motion. Vogel (C.S.), J., and Hastings, J., concurred. On November 15, 1994, the opinion was modified to read as printed above. NOTES [1] All further statutory references are to the Penal Code unless otherwise indicated. [2] In 1991, sections 859a and 1462 were amended (Stats. 1991, ch. 613, §§ 6 and 8) to authorize a magistrate to certify felony guilty pleas to the municipal court, and to give the municipal court jurisdiction to sentence on the plea, except in capital cases. This amendment is not relevant to the issue presented here, but is mentioned to make clear that the foregoing enumeration of a magistrate's powers is not, under current law, exhaustive. [3] Section 871 provides in pertinent part: "If, after hearing the proofs, it appears either that no public offense has been committed or that there is not sufficient cause to believe the defendant guilty of a public offense, the magistrate shall order the complaint dismissed and the defendant to be discharged, ..." [4] The district attorney also argues that the superior court could have treated the section 871.5 motion as a petition for writ of mandate, and should have granted relief on that basis. For purpose of our review, it is sufficient to say that the superior court was not asked to treat the motion as a petition for mandate, and that neither defendant nor the court addressed that theory in the superior court proceedings. We decline to review it. It is therefore unnecessary to discuss defendant's argument that mandate does not lie to compel action beyond the superior court's jurisdiction.

869 F.Supp. 800 (1994) CHIRON CORP., Plaintiff, v. ADVANCED CHEMTECH, INC. and SynPep Corp., Defendants. Civ. No. 94-20582 SW. United States District Court, N.D. California. November 10, 1994. Lynn Pasahow, McCutchen Doyle Brown & Enersen, San Francisco, CA, for Chiron Corp. Greg C. Johnson, Pillsbury Madison & Sutro, San Jose, CA, for Advanced Chemtech, Inc. ORDER GRANTING IN PART AND DENYING IN PART ADVANCED CHEMTECH'S MOTION TO SEVER AND TO DISMISS, STAY OR TRANSFER SPENCER WILLIAMS, District Judge. Plaintiff Chiron Corp. brought this action against Advanced ChemTech, Inc. and SynPep Corp. alleging that both defendants infringed its United States Letters Patent No. 5,182,366 ("the '366 patent") relating to the *801 synthesis of peptide libraries and its United States Letters Patent No. 5,266,634 ("the '684 patent") relating to peptide mixtures. Defendant Advanced ChemTech moves to sever and to dismiss, stay or transfer. For the reasons expressed below, Chiron's claims against Advanced ChemTech are DISMISSED WITHOUT PREJUDICE and are ordered TRANSFERRED to the United States District Court for the Western District of Kentucky. BACKGROUND Plaintiff Chiron Corp., is a biotechnology company headquartered in Emeryville, California. Chiron owns two patents on tools used to conduct biotechnology research relating to chains of amino acids. One of the patents encompasses certain mixtures of amino acid chains, known as "peptide libraries." The other patent protects a simple process used to create predetermined peptide libraries. On August 11, 1994, Advanced ChemTech filed an action against Chiron in the United States District Court for the Western District of Kentucky ("Kentucky action") seeking (1) a declaratory judgment that Chiron's '366 patent is invalid and (2) damages arising out of various business torts Chiron is alleged to have committed. On August 24, 1994, Chiron filed this action against Advanced ChemTech and SynPep, alleging that both companies are infringing the '366 patent and the '684 patent. Subsequently, Advanced ChemTech amended its complaint in the Kentucky action to include a request for a declaratory judgment that it has not infringed Chiron's '684 patent. Advanced ChemTech filed an answer and counterclaim relating to the two patents in this action on October 4, 1994. DISCUSSION According to Advanced ChemTech, this action should be dismissed, transferred or stayed because Chiron improperly joined SynPep and the Kentucky action was filed first. In response, Chiron argues that the dispute should be adjudicated in this district because (1) Advanced ChemTech improperly filed the Kentucky action; (2) this action promotes judicial and litigant economy; and (3) precluding this action is contrary to the interests of justice. Chiron contends that Advanced ChemTech improperly filed the Kentucky action in that it did not have a "reasonable apprehension" that Chiron would bring an infringement action against it. A plaintiff seeking declaratory relief must establish that there is an actual controversy present that is ripe for adjudication. Shell Oil Co. v. Amoco Corp., 970 F.2d 885, 887 (Fed.Cir.1992). To satisfy this burden, the plaintiff must establish that it has a reasonable apprehension of being sued. Id. Whether a declaratory judgment plaintiff has a reasonable apprehension of being sued is evaluated objectively and, in the absence of express charges of infringement, the court is to examine the totality of the circumstances. Id. Chiron's reliance on the reasonable apprehension doctrine is misplaced. The reasonable apprehension doctrine is used to test whether a court has subject matter jurisdiction. See Indium Corp. of America v. Semi-Alloys, Inc., 781 F.2d 879, 883 (Fed. Cir.1985) ("reasonable apprehension, like other jurisdictional prerequisites, must exist at the time the suit is filed), cert. denied, 479 U.S. 820, 107 S.Ct. 84, 93 L.Ed.2d 37 (1986). By raising the reasonable apprehension doctrine here, Chiron is implicitly asking this Court to determine whether the United States District Court for the Western District of Kentucky has jurisdiction to adjudicate Advanced ChemTech's declaratory relief action. It is not this Court's province to determine whether jurisdiction as to Advanced ChemTech's declaratory relief action is proper in the Western District of Kentucky. Each court has jurisdiction to determine its own jurisdiction, United States v. Mine Workers of America, 330 U.S. 258, 292 n. 57, 67 S.Ct. 677, 695 n. 57, 91 L.Ed. 884 (1947), but not the jurisdiction of others. Chiron also argues that this action should proceed because it will fully resolve all of its claims without unnecessary duplication and because this forum is closer to the witnesses who will testify. Generally, claims should be adjudicated in the forum of the *802 first-filed action, unless interests of justice and convenience dictate otherwise. Genentech, Inc. v. Eli Lilly and Co., 998 F.2d 931, 937-938 (Fed.Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1126, 127 L.Ed.2d 434. In making this determination, a court may consider the convenience and availability of witnesses, whether or not the court has jurisdiction over the necessary or desirable parties and the extent to which the litigation may be comprehensively resolved. Id. at 938. Absent a "sound reason" for a change in forum, however, the first-filed action takes precedence over the later-filed action. Id. Chiron has not presented sufficient grounds to have its action against Advanced ChemTech proceed here. First, Chiron offers no evidence demonstrating that this district is the superior forum in terms of jurisdiction over the necessary or desirable parties. Second, it will be inconvenient for certain witnesses no matter where the action proceeds. While Chiron's witnesses are concentrated in this area, Advanced ChemTech's witnesses principally reside on the East Coast. Under these circumstances, requiring the action to proceed here would do nothing more than shift the expense and inconvenience to Advanced ChemTech, making a transfer inappropriate. Magnavox Co. v. APF Electronics, Inc., 496 F.Supp. 29, 34 (N.D.Ill.1980). Moreover, ruling in favor of Chiron based on this factor would render the general rule meaningless. It is also unclear whether allowing the action to proceed here will be more efficient, particularly given questions Advanced ChemTech has raised about Chiron's claims against SynPep. According to Advanced ChemTech, Chiron joined SynPep in this action solely to have its disputes with Advanced ChemTech resolved here rather than in Kentucky. Advanced ChemTech's claim is well-founded. Although Chiron contends that Advanced ChemTech and SynPep are infringing both the '366 patent and the '684 patent, Chiron's counterclaim in the Kentucky action relates solely to Advanced ChemTech's infringement of the '366 patent. This suggests that Chiron's infringement claim relating to the '684 patent arises from SynPep's conduct, not activities engaged in by Advanced ChemTech. Furthermore, Chiron has recently advised SynPep that it is willing to dismiss its claims against SynPep in exchange for SynPep's admission that Chiron's patent is valid and agreement that SynPep will not sell peptide libraries in the future. Saneii Decl., ¶ 2. Chiron has demanded no monetary consideration. Id. This development suggests that Chiron is not seriously considering litigating its claims against SynPep. Finally, Chiron notes that it advised Advanced ChemTech as to possible infringement and attempted to negotiate a solution before Advanced ChemTech filed its declaratory relief action. Citing Davox Corp. v. Digital Systems Int'l, Inc., 846 F.Supp. 144, 148 (D.Mass.1993), Bausch & Lomb Inc. v. Alcide Corp., 684 F.Supp. 1155, 1160 (W.D.N.Y.1987); and Columbia Pictures Indus., Inc. v. Schneider, 435 F.Supp. 742, 747 (S.D.N.Y.1977), aff'd 573 F.2d 1288 (2d Cir. 1978), Chiron argues that Advanced ChemTech should not be permitted to take advantage of Chiron's decision to notify Advanced ChemTech of its potentially infringing activity and its attempt to settle the dispute before filing suit. The Court agrees that it is inappropriate to reward a declaratory judgment plaintiff who races to the courthouse when the patentee has engaged in good faith settlement negotiations. However, indiscriminately applying the holdings of these cases would run afoul of the first-filed rule, which governs forum choice whether or not the first-filed action is a declaratory relief action. Genentech, 998 F.2d at 937. In particular, Chiron's test would trump the first-filed rule whenever the patentee gave the alleged infringer notice of the claim, short-circuiting the alleged infringer's right to seek declaratory relief in the forum of his or her choice. In light of this conflict, a patentee's attempt to settle should be a factor that is considered along with the others that are a part of the first-filed rule balancing test. In this case, Chiron's attempt to settle the action before filing suit does not weigh against Advanced ChemTech. The record indicates that both companies negotiated in good faith and even discussed future business arrangements before Advanced ChemTech filed the Kentucky action. See Green *803 Decl., ¶ 7. There is nothing to suggest that Advanced ChemTech raced to file in the Western District of Kentucky to preempt Chiron from filing an action here. CONCLUSION In light of the foregoing, Advanced ChemTech's motion to sever and to dismiss, stay or transfer is GRANTED IN PART and DENIED IN PART. Chiron's claims against Advanced ChemTech are DISMISSED WITHOUT PREJUDICE and are ORDERED TRANSFERRED to the United States District Court for the Western District of Kentucky. Accordingly, Advanced ChemTech's motion to stay Chiron's action is DENIED as moot. IT IS SO ORDERED.

516 F.Supp.2d 841 (2007) SUDAMAX INDUSTRIA E COMERCIO DE CIGARROS, LTDA, et al., Plaintiffs v. BUTTES & ASHES, INC., et al., Defendants v. Tantus Tobacco, LLC, Defendant/Third Party Plaintiff v. YTC US, LLC, Third Party Defendant. Civil Action No. 1:05CV-60-M. United States District Court, W.D. Kentucky, Bowling Green Division. September 26, 2007. *842 *843 Alex L. Scutchfield, J. Clarke Keller, Stites & Harbison, PLLC, Lexington, KY, Edward M. Joffe, Joelle H. Hervic, Sandler, Travis & Rosenberg, PA, Miami, FL, for Plaintiffs. Michael M. Hirri, Michael Merrick, R. Kenyon Meyer, Dinsmore & Shohl LLP, Melinda T. Sunderland, Morgan & Pottinger, PSC, Louisville, KY, Robert L. Bertram, Bertram & Wilson, Jamestown, KY, Scott White, Morgan & Pottinger, PSC, Lexington, KY, for Defendants and Defendant/Third Party Plaintiff. Thomas W. Miller, Michael Joseph Cox, Miller, Griffin & Marks PSC, Lexington, KY, for Third Party Defendant. MEMORANDUM OPINION AND ORDER JOSEPH IL MCKINLEY, JR., District Judge. This matter is before the Court on a motion by Defendants, Buttes & Ashes, Inc., Pilot Importing, LLC, and Brian Cooper, to dismiss the claims against them pursuant to Fed.R.Civ.P. 9(b) and Fed. R.Civ.P. 12(b)(6) [DN 95]. Fully briefed, this matter is ripe for decision. STANDARD OF REVIEW Because both parties have presented substantial matters outside of the pleadings, the Court shall treat the motion to dismiss as one for summary judgment and dispose of the motion as provided in Fed.R.Civ.P. 56. See Fed.R.Civ.P. 12(b)(6); Shelby County Health Care Corp. v. Southern Council of Industrial Workers Health and Welfare Trust Fund 203 F.3d 926, 931 (6th Cir.2000). In order to grant a motion for summary judgment, the Court must find that the pleadings, together with the depositions, interrogatories and affidavits, establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The moving party bears the initial burden of specifying the basis for its motion and of identifying that portion of the record which demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, *844 91 L.Ed.2d 265 (1986). Once the moving party satisfies this burden, the nonmoving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The inquiry under Fed.R.Civ.P. 56(c) is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. 2505 (1986). See also Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989). Although the Court must review the evidence in the light most favorable to the nonmoving party, the non-moving party is required to 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). The Rule requires the non-moving party to present "specific facts showing there is a genuine issue for trial." Fed. R.Civ.P. 56(e) (emphasis added). Moreover, "[t]he mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106 S.Ct. 2505. It is against this standard that the Court reviews the following facts. BACKGROUND Plaintiffs, Sudamax Industria e Cornercio de Cigarros, LTDA, et al. ("Sudamax"), brought suit alleging numerous claims against Defendants, Tantus Tobacco, Buttes & Ashes, Pilot Importing, and Brian Cooper. Sudamax is a Brazilian corporation. David Young is a shareholder and the President of Sudamax. Brian Cooper is an individual and general partner of Tantus Tobacco. The record reflects that Cooper, on behalf of Tantus, and David Young, on behalf of Sudamax, entered into an oral contract in the fall of 2002 for Sudamax to manufacture Berkley brand cigarettes for Tantus to distribute to retail sellers. To secure the contract with Sudamax, Tantus agreed to make the necessary escrow payments owed by Sudamax under the 1998 Master Settlement Agreement. Tantus and Sudamax also agreed that the escrow refunds would be returned to Tantus. For reasons already discussed in the Court's previous opinions, the relationship between Tantus and Sudamax failed. Sudamax subsequently filed this action asserting the following causes of action: permanent injunction requiring Defendants to make escrow payments (Count I); permanent injunction preventing Tantus from selling Berkley or Berley brand cigarettes (Count II); breach of fiduciary duty (Count III); breach of contract for failure to make escrow payments (Count IV); action for the price under KRS § 355.2-709 (Count V); action on open account (Count VI); constructive fraud (Count WI); and fraud and conspiracy to defraud (Count VIII). Plaintiffs agreed to voluntarily dismiss Counts II, VII, and VIII against all of the Defendants [DN 118]. The Court granted summary judgment in favor of Sudamax and against Tantus on the liability portion of the claim for breach of contract for failure to make escrow payments (Count IV) [DN 139]. The Court granted summary judgment in favor of Defendants on the breach of fiduciary duty claim (Count III). [DN 139]. Defendants, Brian Cooper, Buttes & Ashes, and Pilot Importing (collectively "Defendants"), filed this motion for summary judgment arguing that they should be dismissed from all causes of action in the complaint because (1) there is no evidence to show that Buttes & Ashes or Pilot Importing were parties to the oral contract between Sudamax and Tantus; *845 (2) there is no evidence to show that Brian Cooper acted in his individual capacity in the negotiations with Sudamax or during the period in`which Tantus purchased product from Sudamax; and (3) the facts do not warrant piercing the corporate veil of Tantus. Defendants arguments shall be addressed in turn. DISCUSSION A. Breach of Contract Counts I, IV, V, and VI of the Complaint set forth various causes of action against not only Tantus, but Cooper, Buttes & Ashes, and Pilot Importing, based on an underlying theory of breach of contract. Counts I and IV assert a claim for an injunction and for breach of contract for failure to make escrow payments. Counts V and VI assert claims for the price of the cigarettes under KRS § 355.2-709 and for payment of the open account. Buttes & Ashes, Pilot Importing, and Cooper argue that these contractual claims should be dismissed because they are not parties to the contract for the sale of Berkley brand cigarettes. To recover in any action based on breach of contract under Kentucky law, the party seeking to recover must "show the existence and the breach of a contractually imposed duty." Lenning v. Commercial Union Ins. Co., 260 F.3d. 574, 581 (6th Cir.2001); Strong v. Louisville & Nashville R. Co., 240 Ky. 781, 43 S.W.2d 11, 13 (1931). The elements of a breach of contract are: (1) the existence of a valid contract; (2) breach of the contract; and (3) damages or loss to plaintiff. A contract is only binding upon the parties to a contract. Additionally, "Kentucky law insulates agents from liability for acts done within the scope of [their] agency on behalf of a disclosed principal." Summit Petroleum Corp. of Indiana v. Ingersoll-Rand Financial Corp., 909 F.2d 862, 868 (6th Cir.1990)(internal citations omitted). In the present case, the Court finds that Sudamax failed to set forth sufficient evidence to establish the existence of a valid contract between Plaintiffs and Buttes & Ashes, Pilot Importing, and/or Brian Cooper. The evidence reflects that the Defendants were not parties to the oral contract between Sudamax and Tantus. The deposition testimony of' David Young, President and shareholder of Sudamax, reflects that the oral contract at issue here was negotiated by Young on behalf of Sudamax and Cooper on behalf of Tantus in the Fall of 2002. Specifically, Mr. Young testified as follows: Q: Let me go back just briefly before we get much more into the production issues. When did, I'd asked you about the role between Samurai and Sudamax, and I told you I'd come back to it and now I want to come back to it and understand. The agreement that you had reached, you were basically negotiating for Sudamax and Mr. Cooper was negotiating for Tantus, correct? A: Correct. Q: When Sudamax and Tantus reached their agreement in 2002, when did Samurai enter the picture? A: I think after we make the agreement, the verbal agreement, then we started. (David Young Deposition, June 20, 2005, at 74.) Additionally, in July of 2004, Mr. Rubene Genehr, a consultant to Sudamax, sent Tantus an e-mail with a letter drafted by one of Sudamax's lawyers for execution by Mr. Cooper on behalf of Tantus. It appears from the record that Sudamax prepared the letter for Tantus to send back to Sudamax in an effort to convince one of Sudamax's vendors to be more attentive to deadlines. Based upon the evidence in the record, it is clear that Buttes & Ashes and Pilot *846 Importing are not parties to the oral contract. Furthermore, even though Cooper as President of Tantus negotiated with Sudamax to form the oral contract in dispute in this action, his role as agent in those negotiations does not subject him to liability. As noted above, an agent is not personally liable for acts performed within the scope of his agency on behalf of a disclosed principal. Summit Petroleum, 909 F.2d at 868. Young testified that in the formation of this oral contract he negotiated on behalf of Sudamax and Cooper was negotiating for Tantus. (Young Deposition at 73.) Plaintiffs argue that summary judgment is not appropriate at this time. Plaintiffs maintain that since the contract between the parties was a verbal one, the Defendants do not have any evidence to attest to the fact that they were not parties to this agreement. Sudamax appears to attempt to shift the burden of proof in this case. Defendants offered the testimony of the President of Sudamax, David Young, to establish that the only contracting parties were Sudamax and Tantus. Contrary to Plaintiffs' argument, at this stage of the litigation, it is incumbent on the Plaintiffs to come forward with affirmative evidence demonstrating summary judgment would be inappropriate. Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. In challenging the motion for summary judgment, Plaintiffs rely on the declaration of Rubin Genehr, a financial and business consultant to Sudamax. Genehr avers that all the negotiations between Plaintiffs and Brian Cooper "intended to consummate a relationship whereby Plaintiffs would manufacture Brazilian-made cigarettes for the benefit of Brian Cooper occurred between Plaintiffs and Mr. Cooper personally and did not initially involve any particular corporate entity owned by Brian Cooper." (Ruben Genehr Declaration, March 9, 2007, at ¶ 5.) Based upon this statement, Plaintiffs argue that Sudamax negotiated with Brian Cooper and never agreed to contract with any other legal entity; and as a result, genuine issues of material fact exists concerning which Defendants are liable to Plaintiffs. The Court finds that the Genehr declaration is not sufficient to support a contract claim against Cooper individually or any of the other Defendants. Genehr's deposition testimony demonstrates that he lacked the personal knowledge necessary to attest to the formation of the contract. Genehr testified at his deposition that Sudamax first became involved in discussions with Tantus in September of 2002. (Rubene Genehr Deposition, September 26, 2006, at 44.)[1] Mr. Genehr further testified that he did not become involved in the Sudamax/Tantus business relationship until early 2003. (Genehr Dep. at 45.) Therefore, the only evidence in the record regarding the actual parties to the contract is the deposition testimony of Mr. Young and Mr. Cooper. For these reasons, the Court concludes that Buttes & Ashes, Pilot Importing, and *847 Brian Cooper were not parties to the oral contract. B. Piercing the Corporate Veil Plaintiffs also argue that Brian Cooper, Buttes & Ashes, and Pilot Importing should be held liable for their dealings with Sudamax under the alter ego theory of "piercing the corporate veil." Plaintiffs contend that Cooper owns, either partially or wholly, a number of business entities that are so intertwined as to permit this Court to pierce the corporate veil. Plaintiffs maintain that Brian Cooper's corporations are in such a web that Plaintiffs were unaware with which corporation they were contracting. Defendants argue that piercing the corporate veil is not appropriate in this case. First, Defendants maintain that Sudamax cannot seek to pierce the corporate veil because it did not include such a claim in its complaint. Second, Defendants argue that even if the Court overlooks the deficiencies in Sudamax's pleadings, the facts do not support the application of veil-piercing in the present case. 1. Failure to Plead A theory of liability that the corporate veil should be pierced must be plead in the complaint. Morgan v. O'Neil, 652 S.W.2d 83, 85 (Ky.1983); Natural Resources and Environmental Protection Cabinet v. Williams, 768 S.W.2d 47, 50-51 (Ky.1989)("`A shareholder may be liable for a corporate debt either by "piercing the corporate veil" or by statutory authorization' "; a complaint which alleges neither is fatally defective); Zetter v. Griffith Aviation, Inc., 2006 WL 1117678, *8 (E.D.Ky. April 25, 2006); First National Bank of Louisville v. Lustig, 809 F.Supp. 444, 446 (E.D.La.1992)(interpreting Kentucky law); Baseball at Trotwood, LLC v. Dayton Professional Baseball Club, 2003 WL 25566103 (S.D.Ohio Sept.2, 2003)(discussing Kentucky law). See also Scarbrough v. Perez, 870 F.2d 1079, 1084 (6th Cir.1989). Plaintiffs failed to allege in the complaint that the corporate veil of Tantus should be pierced in order to find Cooper, Buttes & Ashes, and Pilot Importing liable for Tantus's breach of contract. Assuming it could be inferred from the factual pleadings in the complaint that Plaintiffs sought to pierce the corporate veil of Tantus, the Court will examine whether the Plaintiffs have raised a genuine issue of material fact with respect to its veil piercing claim. 2. Piercing the Corporate Veil Courts are generally reluctant to disregard the corporate entity. Holsclaw v. Kenilworth Ins. Co., 644 S.W.2d 353 (Ky.App.1982); United States v. WRW Corp., 778 F.Supp. 919, 923 (E.D.Ky.1991). The corporate veil should not be pierced unless there is (1) "such a unity of ownership and interest" that the separate personalities of the corporation and its owner cease to exist, and (2) "the facts are such that an adherence to the normal attributes . . . of separate corporate existence would sanction a fraud or promote injustice." White v. Winchester Land Development Corp., 584 S.W.2d 56, 61-62 (Ky.App.1979). See also 1 William M. Fletcher, Fletcher Cyclopedia of the Law of Private Corporations, § 41.30 (perm. ed. rev.vol.1990). "[T]he first element focuses on the relationship between the corporation and the owners or other corporate actors, while the second element concerns the relationship between the corporation and the plaintiff." Thomas v. Brooks, 2007 WL 1378510, *3 (Ky.App. May 11, 2007). In deciding whether to pierce the veil, courts have identified several factors bearing on the first element: "(1) undercapitalization; (2) a failure to observe the formalities of corporate existence; (3) nonpayment or overpayment of dividends; (4) a siphoning off *848 of funds by the dominant shareholder(s); and (5) the majority shareholders having guaranteed corporate liabilities in their individual capacities." White, 584 S.W.2d at 62. "No single factor is dispositive, and generally several must be present to justify piercing." Thomas, 2007 WL 1378510, *3. Plaintiffs retained Howard Schneider, a certified public accountant, "to determine if Brian Cooper's use of his various entities is a sham such that the court may pierce the corporate veil and award judgment against all relevant business entities as well as Mr. Cooper individually." (Howard J. Schneider Declaration at ¶ 2.) Schneider states that he examined the financial records and tax returns for Brian Cooper and the following legal entities in which Cooper owns an interest: Tantus Tobacco, Russell County Holdings, Potentia Tobacco Group, Pilot Importing, Direct Delivery, and Buttes & Ashes. Schneider refers to these companies as the "Cooper Group." Schneider notes that Brian Cooper's partners include Kenneth Catron, Jorge Rodriguez, and Charles Webb, Schneider states that "[i]n 2005 Tantus paid its affiliates $1,690,634 and received from these affiliates $1,608,460." (Schneider Declaration at ¶ 5,) Based on this figure, Schneider opines that "[h]ecause each of the affiliated companies are owned and controlled by the Cooper Group, these financial activities are a clear indication that Brian Cooper and his affiliated entities are alter egos." (Id.) To support this argument, Schneider points to two entities through which he claims that Tantus is hiding assets, Progress Machinery and Russell County Holdings. Russell County Holdings owns the facility used by Tantus. Progress Machinery owns the machinery used and leased by Tantus. According to Schneider, Tantus loaned to its partners $325,723.67 to purchase the equipment now owned by Progress Machinery and leased by Tantus. Schneider opines that based upon this information "[t]his`shifting' of money is clearly suspect and clearly reason to believe the intent was to deceptively filter funds throughout a variety of corporate entities all for the sole and exclusive benefit of the partners who in all cases were identical for all such corporate [entities]." (Schneider Declaration at ¶ 6.) The Court finds that application of a veil piercing theory in the present case is difficult in light of the parties the Plaintiffs have sued. In arguing that veil piercing of Tantus is warranted, Plaintiffs' expert points to two entities, Progress Machinery & Russell County Holdings, through which he claims that Tantus is hiding assets. However, these two entities have not even been named as defendants. Instead, Plaintiffs assert liability against Buttes & Ashes and Pilot Importing which are two companies for which Schneider has no information suggesting they are alter egos of Tantus, except a common ownership by Cooper. Similarity of ownership is insufficient evidence by itself to conclude that Buttes & Ashes and Pilot Importing are the alter egos of Tantus. Poyner v. Lear Siegler, Inc., 542 F.2d 955, 958 (6th Cir. 1976). Notwithstanding, with respect to the first element, the Court finds that the evidence, even taken in light most favorable to Sudamax, does not establish the "separateness" of Tantus and Cooper, Buttes & Ashes, or Pilot Importing has ceased. The record reflects that Tantus is an active Kentucky limited liability corporation in good standing with the Kentucky Secretary of State. The company observes standard corporate formalities. The company maintains bank accounts in its own name; files corporate taxes; and files financial statements as required by law which were reviewed by Plaintiffs' expert. *849 Similarly, Buttes & Ashes, is an active Kentucky corporation in good standing with the Kentucky Secretary of State. Buttes & Ashes owns and operates several retail stores in which it sells tobacco products. Buttes & Ashes maintains bank accounts in its own name and files tax returns. Pilot Importing is a limited liability company in good standing with the Kentucky Secretary of State. It is not currently being operated and has no open bank accounts. Cooper testified that it did not file any joint tax returns. Further, Tantus disclosed all business transactions between it and its related entities. In fact, Plaintiffs' expert was able to track the flow of money between the related entities. There is no evidence that Brian Cooper commingled personal funds with corporate funds. Likewise, there is no evidence that others pay or guarantee debts of Tantus. Furthermore, while Sudamax argues that Tantus is undercapitalized and insolvent, Plaintiffs fail to present any evidence to support this argument. Sudamax contends that "Tantus now claims an inability to pay its creditors as set forth in this current litigation." (Response at 7.) Contrary to Plaintiffs' argument, Tantus does not defend the current breach of contract action on the basis that it has insufficient funds to meet its obligations under the oral contract. Rather, Tantus simply disputes the amount that may be owed due to Sudamax's alleged breach of the contract in question. Even if Sudamax had produced evidence demonstrating a genuine issue of fact on the first element, Plaintiffs failed to set forth sufficient allegations of fraud to establish the second element. The Court finds that adherence to the treatment of Tantus as a separate entity would not "sanction a fraud or promote injustice" in this case. White, 584 S.W.2d at 62. "[T]he corporate veil may not be pierced without a showing of fraud or injustice separate and apart from the corporation's failure to pay its debt." Scarbrough v. Perez, 870 F.2d 1079, 1084 (6th Cir.1989). Plaintiffs have failed to make a showing of fraud in this case. In fact, Plaintiffs abandoned all fraud claims asserted against Tantus in the complaint. In the present case, Plaintiffs have merely shown a failure on the part of Tantus to pay its debt. See also Southeast Texas Inns, Inc. v. Prime Hospitality Corp., 462 F.3d 666, 679 (6th Cir.2006)(citing 1 William M. Fletcher, Fletcher Cyclopedia of the Law Private Corporations, § 41.85). Because there are not sufficient allegations of fraud, there is no basis for Tantus's corporate veil to be pierced. For the reasons set forth above, the Court finds that piercing the corporate veil of Tantus is not appropriate. CONCLUSION Given that Buttes & Ashes, Pilot Importing, and Brian Cooper were not parties to the oral contract, given Kentucky's rule that the corporate veil should only be pierced "reluctantly and cautiously," and finding no genuine issues of material fact, IT IS HEREBY ORDERED that the motion for summary judgment by Defendants, Buttes & Ashes, Pilot Importing, and Brian Cooper, [DN 95] is GRANTED. NOTES [1] Defendants argue that Genehr's recent declaration is contrary to his 2006 deposition testimony and should not be considered by the Court. Genehr testified at his deposition that: Q: With that as a marker do you recall when Sudamax first became involved in discussions with Tantus? A: I'd say it was around September, 2002. (Genehr Deposition at 44). The Defendants' reliance on this specific portion of Genehr's deposition testimony is somewhat misplaced. During Genehr's deposition, Mr. Scott White instructed Mr. Genehr that "[w]hen I refer to Tantus I mean all of the Cooper entities like Tantus, Buttes and Ashes, Pilot, Alliance and Brian Cooper." (Genehr Dep. at 18.) Therefore, with respect to who was the contracting entities, Mr. Genehr's deposition does not shed any fight on this matter whatsoever.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs February 19, 2015 THOMAS EUGENE LESTER v. STATE OF TENNESSEE Appeal from the Criminal Court for Hamilton County No. 288339 Don W. Poole, Judge No. E2014-01625-CCA-R3-PC – Filed March 31, 2015 The Petitioner, Thomas Eugene Lester, appeals as of right from the Hamilton County Criminal Court’s denial of his petition for post-conviction relief. In this appeal, the Petitioner contends that he received the ineffective assistance of counsel and that his guilty plea was unknowingly and involuntarily entered because he was suffering from an untreated medical condition at the time he entered his plea. Discerning no error, we affirm the judgment of the post-conviction court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined. James W. Clement, III, Chattanooga, Tennessee, for the Appellant, Thomas Eugene Lester. Herbert H. Slatery, III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Neal Pinkston, District Attorney General; and Bates W. Bryan, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee. OPINION FACTUAL BACKGROUND1 On January 14, 2013, the Petitioner pled guilty to theft of property valued at $1,000 or more in case number 284721 and was sentenced to “supervised probation for a 1 Initially, we note that the Petitioner has not included documentation of the trial court proceedings for his underlying charges in the record. Therefore, our understanding of the underlying charges is gleaned from the transcript of the guilty plea submission hearing, which was made an exhibit to the post-conviction hearing, the post-conviction court’s orders, and the testimony from the post-conviction hearing. term of three years, for removal from which the [P]etitioner could petition the [c]ourt after successful completion of one year.” Thereafter, the Petitioner was charged in case number 287087 with a violation of the Motor Vehicle Habitual Offenders Act (“the MVHOA”). Around the same time, he was also charged with aggravated assault.2 At the guilty plea submission hearing on May 6, 2013, the prosecutor stated that the Petitioner was conceding that he violated his probation in case number 284721 and that he would “be released on the time that he’s served and the balance of the sentence will be on supervised probation.” The State clarified that the length of the probation was three years. With respect to case number 287087, the Petitioner entered a plea of guilty to violation of the MVHOA and agreed to a one-year sentence, suspended to unsupervised probation, to run consecutive to case number 284721. The State explained that the basis for the probation violation was an aggravated assault that “was dismissed down in general sessions court just recently.” The MVHOA violation stemmed from the Petitioner’s driving a motor vehicle on November 27, 2012, in Hamilton County. When asked for his driver’s license, the Petitioner was unable to produce one and was subsequently taken into custody. The Petitioner had been declared a habitual motor vehicle offender in May 1999. The trial court engaged the Petitioner in a plea colloquoy, explaining that he was pleading guilty and detailing the rights he was waiving by entering a plea. The Petitioner said that he understood the charges he was facing as well as the relevant maximum and minimum sentences. When asked whether he understood that he had the right to plead not guilty and proceed to trial, the Petitioner responded, “I do understand that, sir, but there’s another side to the problem here, sir, and I just - - I understand.” The court continued to question the Petitioner, and he agreed that he understood his rights. The court asked the Petitioner whether he had signed the petition to enter a plea of guilty, and the Petitioner responded affirmatively. The Petitioner agreed that he either read the petition himself or had someone read it to him. He indicated that he understood the contents of the petition and the consequences of entering a guilty plea. The trial court asked the Petitioner whether anyone had threatened him in any way or promised him anything other than the plea deal, and the Petitioner responded, “Yes, sir.” The trial court asked the Petitioner what he had been promised, and the Petitioner answered, “Nothing, no, no, sir.” The trial court inquired further, asking the Petitioner 2 The exact timing of the aggravated assault charge is not apparent from the record. The case number assigned to the aggravated assault is also unclear. -2- whether he was listening to the court’s questions. The Petitioner indicated that he was listening and agreed that that the factual account provided by the prosecutor was true. The trial court accepted the Petitioner’s guilty plea for driving while being a habitual motor vehicle offender and sentenced him to one year as a Range I, standard offender. The sentence was suspended to time served with the remainder to be served on unsupervised probation for one year. The court asked the Petitioner whether he heard “the agreement that [the prosecutor] announced in the other case, that you’re going to be on supervised probation for a period of three years and then this sentence will run consecutive to that one?” The Petitioner indicated that was his understanding of the agreement. On May 10, 2013, the Petitioner filed two pro se post-conviction petitions. The first petition alleged that he was induced to plead guilty to violating the MVHOA because he was refused medical treatment while in jail. The second petition alleged that he had not received the plea deal that he was promised for his probation revocation. On June 4, 2014, the post-conviction court entered an order addressing both petitions. With respect to the Petitioner’s probation revocation in case number 284721, the trial court determined that the Petitioner failed to state a colorable claim and summarily dismissed the issue. The court cited to Young v. State, 101 S.W.3d 430, 432 (Tenn. Crim. App. 2002), noting that “claims arising from the revocation of probation are not cognizable in post-conviction proceedings.” For the violation of the MVHOA in case number 287087, the post-conviction court concluded that the petition stated a colorable claim. Thereafter, the Petitioner was appointed counsel and an amended petition for post-conviction relief was filed. In his amended petition, the Petitioner alleged that his trial counsel was ineffective for failing to advise him that the guilty plea submission hearing could be continued and medical treatment for his “severe ailments” ordered. The Petitioner averred that he was suffering from a urinary blockage at the time of his guilty plea and had not received proper medical attention while incarcerated. The Petitioner contended that he was “unduly coerced” into accepting the plea offer so that he could be released from custody and seek medical treatment. A post-conviction hearing was held on June 25, 2014. Trial counsel testified that in May 2013 he was appointed to represent the Petitioner on a probation violation and violation of the MVHOA. He remembered that the Petitioner “had some medical issues involving . . . his . . . urinary tract.” Trial counsel discussed this medical issue with the Petitioner and told the Petitioner that he would notify the nurse at the jail about the problem, which he did. According to trial counsel, the jail responded that it “would look -3- into that,” which trial counsel characterized as a “general response . . . that [he] usually get[s].” Trial counsel recalled talking to the Petitioner in the holding cell before his guilty plea submission hearing. Counsel relayed the State’s offer to the Petitioner, but “[the Petitioner] was annoyed, he didn’t like the offer.” Counsel explained that if the Petitioner accepted the offer, “he would be out that day.” However, trial counsel told the Petitioner that the decision whether to accept the offer rested with the Petitioner and that if he did not accept the deal, they could “have a hearing.” The Petitioner told trial counsel that he wanted to have the hearing right then, but trial counsel told him that it would have to be scheduled for a later date so that trial counsel could arrange for witnesses. Trial counsel told the Petitioner that they could “handle the probation violation then and . . . set the other one for trial.” The Petitioner was “upset about that” and told trial counsel that he was “having a hard time” and wanted to plead. Trial counsel assured the Petitioner that if he wanted to wait and go to trial, he would call the nurse again and “look into [his medical condition] if it’s really an issue.” Trial counsel testified that when the Petitioner said he was “having a hard time,” he understood that the Petitioner was referring to his psoriasis. According to trial counsel, the Petitioner eventually decided to take the plea, saying, “I just want to get this over with, I want to get out.” Trial counsel testified that he could not say whether the Petitioner’s medical condition was the “impetus for him taking the plea.” He explained that many of his clients “just want out” and that he told the Petitioner that there was medical staff at the jail that could help him if he chose not to take the plea deal. Trial counsel said that he advised the Petitioner to do “what he wanted to do.” According to trial counsel, he informed the Petitioner that he would “try to get [a hearing] as soon as possible.” On cross-examination, trial counsel testified that the Petitioner pled as a Range I offender, although, to the best of his recollection, the Petitioner actually qualified as a Range III offender. Trial counsel recalled that the Petitioner received one year of unsupervised probation for the MVHOA violation. Trial counsel testified that after reviewing the underlying facts, he believed the Petitioner was guilty of violating the MVHOA, and he remembered advising the Petitioner that the State’s offer was “a good deal.” The Petitioner testified that he had “a real bad case of psorias[i]s,” which he described as a skin condition that can also affect his ability to urinate. He testified that he was currently suffering from psoriasis and that he was having the same issue when he entered his guilty plea in May 2013. The Petitioner usually treated the psoriasis with -4- daily medications as well as a shot every two months. According to the Petitioner, when he takes his medication he does not suffer from the symptoms associated with his illness. The Petitioner testified that he was currently back in custody and did not have access to the proper medication and that when he asked for it, “they” gave him “some other cream for it.” He testified that his regular medication had not been delivered to jail personnel because he did not “have no one [sic] to do that.” The Petitioner clarified that he was currently receiving a topical cream that was not effective and that although he put in a request to see a doctor, he had not seen one in the four months he had been in custody. He testified that prior to the guilty plea submission hearing, he was not receiving proper medical care for his psoriasis. According to the Petitioner, he was given a topical cream at the jail. The Petitioner testified that his normal medication, which was effective, was an ointment and that “a cream and an ointment [are] different, very different.” The Petitioner testified that he could not read very well and that trial counsel did not go over the petition to plead guilty with him. He acknowledged that he signed the petition to plead guilty and that he understood he was pleading guilty. He also agreed that the trial court went over the guilty plea with him during the guilty plea submission hearing. The Petitioner testified that he attempted to raise his medical issue at the guilty plea submission hearing when he told the trial court that “there’s another side to the problem.” According to the Petitioner, trial counsel advised him that if he did not take the plea, he would not be released from jail that day. The Petitioner testified that he took the plea deal and was able to immediately see his doctor and receive effective treatment for his condition. His condition improved, and he was able to continue to take his medication regularly until he went back into custody. The Petitioner testified that his medical condition rendered his guilty plea to the violation of the MVHOA involuntary. He further testified that he was facing a probation violation, that he knew he had a right to a hearing on the matter, and that he took the deal because he would be released from jail that day and could seek medical treatment. On cross-examination, the Petitioner admitted that he had a lengthy arrest record and that he had been through the “plea process” many times. He recalled that at the guilty plea submission hearing in the present case, he hesitated when the trial court asked him whether he felt threatened because he “wanted to say something else.” The Petitioner testified that he felt threatened “[t]o take something or stay in jail when I couldn’t use the bathroom.” -5-  Denise Cowings testified that the Petitioner was “like a brother to her” and that he resided with her when not in custody. She testified that the Petitioner took regular medication for his psoriasis and that the medication was at her house. According to Ms. Cowings, she had not been able to get in touch with the Petitioner since he had been in custody and did not know whether the jail would allow the Petitioner to receive an “outside medication.” The Petitioner was recalled to the stand, and the trial court asked him to clarify whether he had an aggravated assault case pending in May 2013. The Petitioner testified that he “came back to your court to handle the driving situation,” and the court told the Petitioner that it “couldn’t let [him] leave because [he] had a warrant downstairs for aggravated assault.” He was then taken into custody. The Petitioner testified that the charges were later dismissed in sessions court after the person who made the assault allegations recanted his story. Nevertheless, the guilty plea submission hearing followed, and the Petitioner admitted to violating his probation and also to violating the MVHOA. His three-year probationary sentence was then changed from “one-year active to three years active,” and he received an additional year of unsupervised probation for violating the MVHOA. The Petitioner asserted that he did not understand that the probation revocation would result in three years of supervised probation, and he wanted to go “back to square one” and try his cases. The post-conviction court issued a written order denying the Petitioner post- conviction relief. The court accredited trial counsel’s testimony that he advised the Petitioner about the availability of a hearing on another day and that trial counsel assured the Petitioner that he would request medical treatment for the Petitioner. The court found no deficiency in counsel’s performance. The court again concluded that the Petitioner’s claims with respect to his probation revocation were not cognizable in a post-conviction proceeding. The post-conviction court further concluded that the Petitioner’s plea was knowing and voluntary, relying on the following factual findings: the Petitioner’s extensive criminal record and familiarity with the plea process; trial counsel’s competence; the Petitioner’s awareness of the charges and consequences of the pleas; and the Petitioner’s decision to not bring up his medical condition during the guilty plea submission hearing. The court specifically found that the Petitioner did not explain why he did not accept trial counsel’s offer to obtain appropriate medical treatment and also noted that the Petitioner had not provided any evidence of a request for specific treatments or a rejection of such request. The court concluded that “the [P]etitioner was aware of the options available to him and the plea on the new charge was his voluntary and intelligent choice among those options.” -6-  ANALYSIS First, we note that to the extent the Petitioner challenges the revocation of his probation, the trial court properly determined that such a claim is not cognizable in a post-conviction proceeding. See Young, 101 S.W.3d at 433 (holding that “the Tennessee Post-Conviction Procedures Act does not permit the filing of a petition under its provisions to attack collaterally the validity of a proceeding to revoke the suspension of sentence and/or probation”). Therefore, we need only consider the validity of the Petitioner’s guilty plea with respect to his violation of the MVHOA. I. Standard of Review In a post-conviction proceeding, the burden is on the Petitioner to prove his grounds for relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). On appeal, we are bound by the trial court’s findings of fact unless we conclude that the evidence in the record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). Additionally, “questions concerning the credibility of the witnesses, the weight and value to be given their testimony, and the factual issues raised by the evidence are to be resolved” by the post-conviction court. Id. Because they relate to mixed questions of law and fact, we review the trial court’s conclusions as to whether counsel’s performance was deficient and whether that deficiency was prejudicial under a de novo standard with no presumption of correctness. Id. at 457. II. Ineffective Assistance of Counsel On appeal, the Petitioner first contends that trial counsel was ineffective for allowing him to accept a plea deal when trial counsel knew that the Petitioner was suffering from a medical condition that was causing him pain. He asserts that he would not have accepted the plea deal but for his medical condition and that trial counsel’s failure to obtain a continuance deprived him of the opportunity to litigate his claims. The State responds that the trial court properly concluded that trial counsel was effective and appropriately advised the Petitioner that he could challenge the charges at a later hearing and that trial counsel would speak with jail officials about getting the Petitioner proper medical treatment. Under the Sixth Amendment to the United States Constitution, when a claim of ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing that counsel’s performance falls below a reasonable standard is not enough; rather, the petitioner must also show that but for the -7- substandard performance, “the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. The Strickland standard has been applied to the right to counsel under article I, section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989). In the context of a guilty plea, the effective assistance of counsel is relevant only to the extent that it affects the voluntariness of the plea. Therefore, to satisfy the second prong of Strickland, the 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.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997). The trial court concluded that the Petitioner did not suffer from deficient representation. The evidence presented at the post-convictoin hearing reflects that trial counsel discussed the plea agreement with the Petitioner and explained that if he chose not to accept the deal, he could receive a hearing on the matter. The Petitioner complained about medical issues and expressed reservations about extending his time in jail. Trial counsel assured the Petitioner that if he chose to decline the plea deal and proceed with the charges, counsel would contact the jail nurse again about the medical care that the Petitioner needed while in jail. The Petitioner responded that he wanted to get it over with and accept the deal. The evidence does not preponderate against the trial court’s conclusion that the Petitioner received effective assistance of counsel. This issue is without merit. III. Involuntary and Unknowing Guilty Plea Next, the Petitioner contends that his untreated medical condition rendered his guilty plea unknowing and involuntary. The State responds that the Petitioner was fully apprised of his rights and knew he had the option to refuse the plea deal with counsel’s assurances that his medical condition would be treated. The State further responds that the Petitioner has not supported his contention with medical records that would substantiate the basis of his claim. When analyzing the voluntariness of a guilty plea, we look to the federal standard announced in Boykin v. Alabama, 395 U.S. 238 (1969), and the state standard set forth in State v. Mackey, 553 S.W.2d 337 (Tenn. 1977). State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). In Boykin, the United States Supreme Court held that there must be an affirmative showing in the trial court that a guilty plea was voluntarily and knowingly given before it can be accepted. 395 U.S. at 242. Similarly, in Mackey the Tennessee Supreme Court required an affirmative showing of a voluntary and knowledgeable guilty plea, namely, that the defendant has been made aware of the significant consequences of such a plea. Pettus, 986 S.W.2d at 542. A plea is not “voluntary” if it results from -8- ignorance, misunderstanding, coercion, inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial court must determine if the guilty plea is “knowing” by questioning the defendant to make sure he or she fully understands the plea and its consequences. Pettus, 986 S.W.2d at 542; Blankenship, 858 S.W.2d at 904. Because the plea must represent a voluntary and intelligent choice among the alternatives available to the defendant, the trial court may look at a number of circumstantial factors in making this determination. Blankenship, 858 S.W.2d at 904. These factors include: (1) the defendant’s relative intelligence; (2) his familiarity with criminal proceedings; (3) whether he was represented by competent counsel and had the opportunity to confer with counsel about alternatives; (4) the advice of counsel and the court about the charges against him and the penalty to be imposed; and (5) the defendant’s reasons for pleading guilty, including the desire to avoid a greater penalty in a jury trial. Id. at 904-05. At the guilty plea submission hearing, the Petitioner indicated that he understood the charges against him and the details of his guilty plea. Although at one point he did say, “there’s another side to the problem,” he failed to elaborate and never mentioned that he was suffering from a medical condition that affected his decision-making abilities. At the post-conviction hearing, trial counsel testified that prior to the guilty plea submission hearing, he advised the Petitioner that the hearing could be postponed and that the decision to plead was entirely up to the Petitioner. Trial counsel also reassured the Petitioner that he would receive appropriate medical care if he remained in custody. The Petitioner acknowledged that he had a lengthy arrest record and was familiar with the plea process. We note that the Petitioner has failed to present any medical records or testimony, other than his own bare assertions, in support of his claim that his psoriasis rendered his plea unknowing or involuntary. Ordinarily, a petitioner should provide medical records or medical testimony when relying on a medical condition to assert that a plea was not entered voluntarily or knowingly. See Darrell Wayne Bumpas v. State, No. M2010- 00222-CCA-R3-PC, 2010 WL 5140673, at *8 (Tenn. Crim. App. Dec. 14, 2010) (concluding that the petitioner’s “bare allegations, unsupported by medical testimony, about the use of psychiatric drugs was insufficient to support a claim that his guilty plea was not knowingly and voluntarily entered”). Although in Bumpas the petitioner asserted that his pleas were unknowingly and involuntarily entered because he had not received medication for a mental health condition, the same reasoning supports a similar requirement for claims that a physical medical condition rendered a plea unknowing or involuntary. The post-conviction court found that the Petitioner understood what he was pleading guilty to and knew that if he did not wish to plead guilty, he could come back to -9- court at a later date. The post-conviction court noted that the Petitioner failed to present any evidence that he made requests for specific medical treatments or that such requests were denied. Furthermore, the court noted that the Petitioner offered no explanation as to why he refused counsel’s offer to help the Petitioner get proper medical treatment if he chose not to accept the deal. The post-conviction court concluded that the Petitioner’s plea was entered voluntarily and knowingly and the evidence does not preponderate against this conclusion. The Petitioner’s claim is without merit. CONCLUSION Based on the foregoing and the record as a whole, we affirm the judgment of the post-conviction court. _________________________________ D. KELLY THOMAS, JR., JUDGE -10- 

35 So.3d 17 (2008) GEORGE E. WATTS, JR., AND KATHRYN S. WATTS v. KIMBRELL HOMES, INC., ET AL. No. 2060992. Court of Civil Appeals of Alabama. November 7, 2008. Decision of the Alabama Court of Civil Appeal Without Published Opinion Affirmed.

Order Michigan Supreme Court Lansing, Michigan March 25, 2015 Robert P. Young, Jr., Chief Justice 148811 Stephen J. Markman Mary Beth Kelly Brian K. Zahra Bridget M. McCormack David F. Viviano MILDRED FERN CONLEY, Richard H. Bernstein, Plaintiff-Appellant, Justices v SC: 148811 COA: 310971 Wayne CC: 11-001429-NI CHARTER TOWNSHIP OF BROWNSTOWN, Defendant-Appellee, and EDWARD JOSEPH MOISE, Defendant. _________________________________________/ By order of July 29, 2014, the application for leave to appeal the January 16, 2014 judgment of the Court of Appeals was held in abeyance pending the decisions in Hunter v Sisco (Docket No. 147335) and Hannay v Dep’t of Transportation (Docket No. 146763). On order of the Court, the cases having been decided on December 19, 2014, ___Mich ___ (2014), the application is again considered. In light of these decisions, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals, and we REMAND this case to the Wayne Circuit Court for further proceedings not inconsistent with this order. I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. March 25, 2015 p0318 Clerk 

Case: 11-30270 Document: 00511618762 Page: 1 Date Filed: 09/30/2011 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED September 30, 2011 No. 11-30270 Lyle W. Cayce Summary Calendar Clerk SPSL OPOBO LIBERIA, INCORPORATED, Plaintiff–Appellee v. MARINE WORLDWIDE SERVICES, INCORPORATED, Defendant–Appellant SPSL OPOBO LIBERIA, INCORPORATED, Plaintiff–Appellee v. AAA HOLDINGS, L.L.C., Defendant–Appellee Appeal from the United States District Court for the Eastern District of Lousiana USDC No. 2:07-CV-03355  Case: 11-30270 Document: 00511618762 Page: 2 Date Filed: 09/30/2011 No. 11-30270 Before REAVLEY, SMITH, and PRADO, Circuit Judges. PER CURIAM:* Marine Worldwide Services (“MWS”) appeals the district court’s denial of its motions for summary judgment and motion for release of the Mid-River IV (also known as the SPSL OPOBO, the “barge”), and the district court’s grant of the AAA Holdings’ (“AAA”) motion for release of the barge. Because we find that MWS was not entitled to judgment as a matter of law and that AAA was entitled to the barge, we AFFIRM the district court’s rulings. I. FACTUAL AND PROCEDURAL BACKGROUND This case involves a three-party dispute as to the rightful ownership of the barge between SPSL OPOBO Liberia, Inc. (“SOLI”), MWS, and AAA. The facts relevant for the present appeal begin while a lawsuit between SOLI and MWS is pending, in which SOLI claimed that MWS had exercised unlawful ownership of the barge. In June 2008, while the litigation between SOLI and MWS was pending, MWS, through its owner–agent, Ray Groot, sold the barge to AAA for $1.3 million. During the course of the sale neither Groot nor the broker he used, Alan Moore, disclosed to AAA that SOLI had a pending ownership claim over the barge. After AAA had paid $700,000 toward the purchase of the barge, it demanded title documentation from MWS. MWS provided AAA with a No Lien Certificate, but this was not to AAA’s satisfaction; in turn, AAA made a second demand for title documentation, which MWS failed to provide. AAA stopped making payments at that point. In June 2009, SOLI and MWS reached a tentative settlement in their case over the ownership of the barge, which would have required MWS to surrender the barge to SOLI. MWS could not do so because it had sold the barge to AAA. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. 2  Case: 11-30270 Document: 00511618762 Page: 3 Date Filed: 09/30/2011 No. 11-30270 SOLI then brought suit against AAA, claiming that SOLI was the true owner. AAA then filed against MWS, Groot, and Moore for fraud and breach of the sales contract. The barge was seized and the cases were consolidated. Discovery proceeded, but because of SOLI’s failure to produce a corporate deponent based on AAA’s request, the district court dismissed SOLI’s claims to the barge for failure to comply.1 AAA filed a motion for immediate release of the barge after the district court’s dismissal of SOLI’s claims. MWS then filed separate motions for summary judgment against SOLI and AAA and a motion for immediate release of the barge. Ruling on all four of the motions at once, the district court denied MWS’s motions and granted AAA’s motion to release. MWS appealed. II. JURISDICTION AND STANDARD OF REVIEW Though we generally lack jurisdiction to review denials of summary judgement, Pac. Union Conference of Seventh-Day Adventists v. Marshall, 434 U.S. 1305, 1306 (1977), we have jurisdiction under 28 U.S.C. § 1292(b) in this case because the district court certified these orders as final pursuant to Federal Rule of Civil Procedure 54(b).” Linton v. Shell Oil, Co., 563 F.3d 556 (5th Cir. 2009). We review the district court’s findings of fact under a “clearly erroneous” standard, United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948), and legal conclusions under a de novo standard. United States v. Mississippi Valley Generating Co., 364 U.S. 520, 564 (1961). III. DISCUSSION MWS raises three grounds for appeal. First, it asserts that the district court committed error by failing to find facts as required by Federal Rule of Civil Procedure 52(a). Second, in the district court’s denial of summary judgment to MWS, that the district court failed procedurally by not accounting for facts 1 The order dismissing SOLI’s claims is pending on appeal to this court. SPSL OPOBO Liberia, Inc. v. Marine Worldwide Servs., No. 10-31082 (5th Cir.). 3  Case: 11-30270 Document: 00511618762 Page: 4 Date Filed: 09/30/2011 No. 11-30270 raised by MWS. And third, the district court erred substantively in granting AAA’s motion for release and denying its motion for summary judgment. A. Failure to Find Facts MWS cites Federal Rule of Civil Procedure 52(a) and Golf City v. Wilson Sporting Goods, 555 F.2d 426 (5th Cir 1977), for the proposition that the district court was required to find facts specifically in this case. While Rule 52(a)(1) mandates that “[i]n an action tried . . . without a jury . . . , the court must find the facts specially,” Subpart 3 of Rule 52(a) states that this requirement is “not required . . . when ruling on a motion under Rule 12 or 56 or, unless these rules provide otherwise, on any other motion.” FED. R. CIV. P. 52(a)(1), (3). This is not an appeal from a bench trial but rather an appeal of a denial of summary judgment and other motions. Therefore, this ground is meritless. B. Denial of Summary Judgment and Grant of AAA’s Motion for Release MWS attacks the district court for failing to account for allegedly disputed facts regarding the ownership of the barge. The facts that MWS raises in its brief as creating a dispute are either ones discussed by the district court or do not relate to the case. It is well-known that “only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and here, the facts raised by MWS did not go to issues material to this case. MWS is thus left with its objection to the district court’s grant of AAA’s motion for release. While it is unclear whether the district court intended the denial of MWS’s summary judgment motion and the grant of AAA’s release motion to be a grant of summary judgment to AAA, such a course would have been authorized under our caselaw so long as the district court complied with Rule 56(f)’s notice requirements. See McCarty v. United States, 929 F.2d 1085, 4  Case: 11-30270 Document: 00511618762 Page: 5 Date Filed: 09/30/2011 No. 11-30270 1088 (5th Cir. 1991) (“If one party moves for summary judgment, the court sua sponte may grant summary judgment for the nonmoving party provided all of the procedural safeguards of Rule 56 are followed.” (citation omitted)). Even if this is not what the district court intended to do, the district court neither erred in denying MWS summary judgment nor erred in granting AAA’s motion for release. For MWS to have prevailed on its motion for summary judgment it must demonstrate that was entitled to a judgment as a matter of law, FED. R. CIV. P. 56(a)—something it cannot do because AAA was entitled to judgment as a matter of law. When the district court granted AAA’s motion, all of SOLI’s claims to the barge had been dismissed.2 The district court was only left with AAA’s claim against MWS, and the district court granted relief to AAA based on the June 10, 2008 agreement and MWS being a bad faith seller. Under Louisiana law, “[o]wnership is transferred between the parties as soon as there is agreement on the thing and the price is fixed, even though the thing sold is not yet delivered nor the price paid.” LA. CIV. CODE ANN. art 2456 (2010). The June 10, 2008 agreement was clear as to both subject and price and therefore, obligated MWS’s delivery of the barge to AAA. Id. art. 2475. Based on these provisions, the district court was right to deny MWS’s summary judgment motion and grant release of the barge to AAA. Additionally, AAA was entitled to title of the barge, vis-à-vis MWS, because MWS was a bad faith seller under Louisiana Civil Code Article 2545. SOLI’s claim to the barge at the time of MWS’s sale to AAA constituted a defect under Article 2545, see Lake Forest, Inc. v. Bon Marche Homes, Inc., 410 So. 2d 362, 364 (La. Ct. App. – 4th Cir. 2 As the district court dismissed SOLI’s claims, SOLI could not claim title to the barge. In this appeal, SOLI urges reversal and remand because it feels that it has a claim to the barge. We do not have the appeal concerning the dismissal of SOLI’s claims before us, and therefore, we cannot reverse based on SOLI’s urging of its claims. In light of this AAA’s motion to dismiss SOLI’s cross-appeal is denied as moot. 5  Case: 11-30270 Document: 00511618762 Page: 6 Date Filed: 09/30/2011 No. 11-30270 1982), such that MWS’s failure to disclose SOLI’s claim, when MWS knew about it, rendered MWS a bad faith seller. Osborne v. Ladner, 691 So. 2d 1245, 1253 (La. Ct. App. – 1st Cir. 1997). IV. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s denials of MWS’s motions for summary judgment and release and the grant of AAA’s motion to release. AFFIRMED. 6 

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN JUDGMENT RENDERED APRIL 19, 2016 NO. 03-15-00822-CR Bobbie Gutierrez, Appellant v. The State of Texas, Appellee APPEAL FROM THE 274TH DISTRICT COURT OF HAYS COUNTY BEFORE JUSTICES PURYEAR, GOODWIN, AND FIELD DISMISSED ON APPELLANT’S MOTION -- OPINION BY JUSTICE GOODWIN This is an appeal from the judgment of conviction entered by the trial court. Appellant has filed a motion to dismiss the appeal. Therefore, the Court grants the motion, allows appellant to withdraw her notice of appeal, and dismisses the appeal. Because appellant is indigent and unable to pay costs, no adjudication of costs is made. 

Order Michigan Supreme Court Lansing, Michigan January 25, 2008 Clifford W. Taylor, Chief Justice Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan 133394 Robert P. Young, Jr. 133396 Stephen J. Markman, 133400-133406 & (74) Justices DAIMLERCHRYSLER CORPORATION, Petitioner-Appellee, v SC: 133394 COA: 267565 Oakland CC: 05-064732-AA STATE TAX COMMISSION and DEPARTMENT OF ENVIRONMENTAL QUALITY, Respondents-Appellees, and CITY OF AUBURN HILLS, Respondent-Appellant. ______________________________________ FORD MOTOR COMPANY, Petitioner-Appellee, v SC: 133396 COA: 262500 Wayne CC: 04-430612-AA, STATE TAX COMMISSION and 04-430613-AA, 04-430614-AA DEPARTMENT OF ENVIRONMENTAL QUALITY, Respondents-Appellees, and CITY OF DEARBORN, Intervening Respondent-Appellant. _______________________________________ FORD MOTOR COMPANY, Petitioner-Appellee, v SC: 133400-02 COA: 262487, 262488, 262500 Wayne CC: 04-430612-AA, STATE TAX COMMISSION and 04-430613-AA, 04-430614-AA  2 DEPARTMENT OF ENVIRONMENTAL QUALITY, Respondents-Appellants, and CITY OF DEARBORN, Intervening Respondent-Appellee. _______________________________________ DETROIT DIESEL CORPORATION, Petitioner-Appellee, Cross-Appellant, v SC: 133403 COA: 263188 Wayne CC: 04-430915-AA STATE TAX COMMISSION and DEPARTMENT OF ENVIRONMENTAL QUALITY, Respondents-Appellants, Cross-Appellees, and CHARTER TOWNSHIP OF REDFORD, Intervening Respondent-Appellee, Cross-Appellee. _______________________________________ FORD MOTOR COMPANY, Petitioner-Appellee, v SC: 133404 COA: 264154 Wayne CC: 05-507760-AA STATE TAX COMMISSION and DEPARTMENT OF ENVIRONMENTAL QUALITY, Respondents-Appellants. _______________________________________ DAIMLERCHRYSLER CORPORATION, Petitioner-Appellee, v SC: 133405 COA: 265686 Washtenaw CC: 2005-000250-AA STATE TAX COMMISSION and DEPARTMENT OF ENVIRONMENTAL QUALITY, Respondents-Appellants, and TOWNSHIP OF SYLVAN, Respondent-Appellee. _______________________________________  3 DAIMLERCHRYSLER CORPORATION, Petitioner-Appellee, v SC: 133406 COA: 267565 Oakland CC: 05-064732-AA STATE TAX COMMISSION and DEPARTMENT OF ENVIRONMENTAL QUALITY, Respondents-Appellants, and CITY OF AUBURN HILLS, Respondent-Appellee. _______________________________________ On order of the Chief Justice, the joint motion for extension of the time for filing by appellants and cross-appellants and for a corresponding extension for appellees and cross-appellees is considered and it is GRANTED. I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. January 25, 2008 _________________________________________ Clerk 

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before COOK, GALLAGHER, and HAIGHT Appellate Military Judges UNITED STATES, Appellee v. Staff Sergeant DANIEL H. GASKINS United States Army, Appellant ARMY 20080132 United States Army Southern European Task Force (trial) United States Army Fires Center of Excellence and Fort Sill (rehearing) Timothy Grammell and Gregg Marchessault, Military Judges (trial) Kirsten V. Brunson, Military Judge (rehearing) Lieutenant Colonel Harrold J. McCracken, Staff Judge Advocate (pretrial) Colonel Harrold J. McCracken, Staff Judge Advocate (recommendation) Major Sean T. McGarry, Acting Staff Judge Advocate (addendum) Colonel Jeffery D. Pederson, Staff Judge A dvocate (recommendation on rehearing) For Appellant: Captain E. Patrick Gilman, JA; William E. Cassara, Esquire (on brief). For Appellee: Lieutenant Colonel Amber J. Roach, JA; Captain Chad M. Fisher, JA (on brief). 22 July 2013 --------------------------------------------------- SUMMARY DISPOSITION ON REMAND --------------------------------------------------- Per Curiam: A panel of officers and enlisted members sitting as a general court -martial convicted appellant, contrary to his pleas, of carnal knowledge, indecent acts with a child, and indecent assault, in violation of Articles 120 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 934 (2006) [hereinafter UCMJ]. 1 The convening 1 All three of appellant’s crimes, “carnal knowledge” in violation of Article 120, UCMJ, “Indecent acts or liberties with a child” in violation of Article 134, UCMJ, and “Indecent assault” in violation of Article 134, UCMJ, occurred prior to (continued . . .) GASKINS—ARMY 20080132 authority approved the adjudged sentence of a dishonorable discharge, confinement for twelve years, forfeiture of all pay and allowances, and reduction to the grade of E-1. On 27 August 2010, this court sitting en banc issued a decision ordering a limited hearing pursuant to United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967). United States v. Gaskins, 69 M.J. 569, 573 (Army Ct. Crim. App. 2010) (en banc). Appellant filed a writ of prohibition with the Court of Appeals for the Armed Forces (CAAF) and, before the DuBay hearing could be conducted, our superior court granted appellant’s writ, holding that a DuBay hearing was inappropriate in this case. Gaskins v. Hoffman, 69 M.J. 452 (C.A.A.F. 2010) (summ. disp.). Thereafter, we again considered appellant’s case en banc, this time affirming the findings but setting aside the sentence and returning the record of trial to The Judge Advocate General for remand to the same or a different convening authority for a rehearing on the sentence. United States v. Gaskins, ARMY 20080132, 2011 WL 498371 (Army Ct. Crim. App. 10 Feb. 2011) (en banc) (summ. disp.). On 18 October 2011, a sentence rehearing was completed. A military judge sitting as a general court-martial sentenced appellant to a dishonorable discharge, confinement for nine years, forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening authority approved the sentence as adjudged at the rehearing. On 12 July 2012, sitting en banc for the third time, this court issued a summary disposition affirming the sentence following the rehearing and again affirming the findings. United States v. Gaskins, ARMY 20080132, 2012 WL 2887988 (Army Ct. Crim. App. 12 July 2012) (en banc) (summ. disp.). In that decision, we noted that the specifications of both Charge II and The Additional Charge failed to allege the terminal elements of Article 134, UCMJ. However, we held that appellant waived his right to challenge the sufficiency of the se Article 134, UCMJ, specifications by not raising this issue at the sentence rehearing. Our superior court disagreed. On 23 May 2013, CAAF affirmed our decision as to Charge I, but reversed as to Charge II, and affirmed only so much of The (. . . continued) 1 October 2007, the effective date of the amendment to the UCMJ and the Manual for Courts-Martial which deleted and replaced these offenses with those listed in the amended Article 120, UCMJ, 10 U.S.C. § 920 (2006 & Supp. I 2007) . See National Defense Authorization Act for Fiscal Year 2006, Pub.L. No. 109 -163, § 552, 119 Stat. 3136, 3256–63 (2006); Manual for Courts-Martial, United States (2005 ed.), pt. IV, ¶¶ 63, 87, deleted by Exec. Order No. 13447, 72 Fed. Reg. 56179 (Sep. 28, 2007). Article 120, UCMJ, has since been amended again. See 10 U.S.C. § 920 (2012). 2 GASKINS—ARMY 20080132 Additional Charge that extended to findings of guilty to the lesser-included offense of assault consummated by a battery. United States v. Gaskins, 72 M.J. 225, 236 (C.A.A.F. 2013). CAAF returned the record of trial to The Judge Advocate General of the Army for remand to this court for reassessment of the sentence in light of its action on the findings. Id. Consequently, appellant’s case is once again before this court. LAW AND DISCUSSION We must now consider the impact of our superior court’s action on the findings and determine whether we can appropriately reassess appellant’s sentence. In order to reassess a sentence at our level, we must be confident that, absent any error, “the sentence would have been at least of a certain magnitude.” United States v. Sales, 22 M.J. 305, 307 (C.M.A. 1986). We are unable to reliably reassess a sentence in cases where there is a “dramatic change in the ‘penalty landscape.’” United States v. Riley, 58 M.J. 305, 312 (C.A.A.F. 2003). A reassessed sentence must be purged of prejudicial error. Sales, 22 M.J. at 307–08. In addition, because the error in this case is of a constitutional magnitude, we “must be satisfied beyond a reasonable doubt that reassessment cured the error.” United States v. Doss, 57 M.J. 182, 185 (C.A.A.F. 2002) (citing Sales, 22 M.J. at 307). Finally, we must only affirm a sentence that is “appropriate,” as required by Article 66(c), UCMJ. In this case, the sentencing landscape has changed somewhat due to our superior court’s dismissal of Charge I and affirmance of a lesser-included offense for The Additional Charge. However, the resultant decrease in the maximum sentence to confinement, from twenty-five years 2 to twenty years and six months, does not amount to a “dramatic change in the penalty landscape .” After carefully considering the entire record and the principl es of Sales and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring opinion in Moffeit, we conclude that we can confidently reassess appellant’s sentence without returning this case for another sentence rehearing. 2 At appellant’s original court-martial, the military judge ruled the indecent acts offense and the carnal knowledge offense were unreasonably multiplied and merged the offenses for the purpose of sentencing, calculating the maximum sentence to confinement to be twenty-five years. In his ruling, the military judge used the term “multiplicious for sentencing.” We note this case was decided before United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2013), where our superior court clarified that “there is only one form of multiplicity . . . if an offense is multiplicious for sentencing it must necessarily be multiplicious for findings as well.” Consequently, we will consider the military judge’s ruling as one finding an unreasonable multiplication of charges for sentencing. In an apparent recognition of this ruling, the military judge at appellant’s sentence rehearing also calculated the maximum sentence to confinement to be twenty-five years. 3 GASKINS—ARMY 20080132 Upon reassessment, we find a six -month reduction in appellant’s sentence to confinement cures the error and is appropriate in this case. First, the facts underlying both of the charges set aside—the indecent acts charge (Charge II) and the indecent assault charge (The Additional Charge) —would still have been before the sentencing authority. The facts underlying the indecent acts charge were inexorably linked to appellant’s crime of carnal knowledge ; in fact, the indecent acts specification was merged with the carnal knowledge specification for sentencing. As for the indecent assault, our superior court affirmed the lesser -included offense of assault consummated by a battery, which would have allowed for presentation of the facts supporting the original indecent assault charge. Second, appellant remains convicted of carnal knowledge with a child under the age of sixteen years, the most egregious of his crimes. Finally, appellant chose to be sentenced at his rehearing by a military judge, which contributes to our certainty beyond a reasonable doubt that reduction of appellant’s sentence to confinement by six months purges his case of prejudicial error. In light of the foregoing, we are certain that appellant would have received a sentence on the remaining charges of no less than a dishonorable discharge, confinement for eight years and six months, forfeiture of all pay and allowances, and reduction to the grade of E -1. We find such a sentence is correct in law and fact and, based on the entire record, should be approved. CONCLUSION Reassessing the sentence on the basis of the entire record, this court affirms only so much of the sentence as provides for a dishonorable discharge, confinement for eight years and six months, forfeiture of all pay and allowances, and reduction to the grade of E-1. All rights, privileges, and property, of which appellant has been deprived by virtue of that portion of the sentence set aside by this decision, are ordered restored. See UCMJ arts. 58b(c) and 75(a). FOR FOR THE THE COURT: COURT: MALCOLM H. H. SQUIRES, SQUIRES, JR. JR. MALCOLM Clerk of Clerk of Court Court 4 

KRIMBILL v. TALARICO Skip to Main Content Accessibility Statement Help Contact Us e-payments Careers Home Courts Decisions Programs News Legal Research Court Records Quick Links OSCN Found Document:KRIMBILL v. TALARICO Previous Case Top Of Index This Point in Index Citationize Next Case Print Only KRIMBILL v. TALARICO2018 OK CIV APP 37417 P.3d 1240Case Number: 114777Decided: 10/27/2017Mandate Issued: 05/09/2018DIVISION IVTHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IV Cite as: 2018 OK CIV APP 37, 417 P.3d 1240 H. MICHAEL KRIMBILL, Plaintiff/Appellee, v. LOUIS C. TALARICO, III, an individual; and LCT CAPITAL LLC, a Delaware Limited Liability Company, Defendants/Appellants. APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE LINDA G. MORRISSEY, TRIAL JUDGE AFFIRMED John J. Carwile, Clayton J. Chamberlain, MCDONALD, MCCANN, METCALF & CARWILE, L.L.P., Tulsa, Oklahoma, for Plaintiff/Appellee Joel L. Wohlgemuth, Ryan A. Ray, NORMAN WOHLGEMUTH CHANDLER JETER BARNETT & RAY, P.C., Tulsa, Oklahoma, for Defendants/Appellants P. THOMAS THORNBRUGH, VICE-CHIEF JUDGE: ¶1 Defendants/Appellants, Louis Talarico, III (Talarico), and LCT Capital, LLC (LCT)(collectively, Defendants or Talarico Defendants), appeal from the trial court's order denying their motion to dismiss the petition of Plaintiff/Appellee H. Michael Krimbill (Krimbill), pursuant to the Oklahoma Citizens Participation Act, 12 O.S. Supp. 2014 §§ 1430 through 1440 (OCPA or the Act). For the reasons discussed below, we affirm. BACKGROUND ¶2 The parties are involved in protracted litigation in the state of Delaware, where LCT has filed claims of breach of contract, unjust enrichment, and fraudulent misrepresentation against Oklahoma-based, publicly traded NGL Energy Partners, LP, and its general partner, NGL Energy Holdings, LLC (collectively, NGL), resulting from a transaction known as the "TransMontaigne acquisition." In October 2015, Talarico sent the following email to James Kneale, the head of NGL's audit committee: From: Lou Talarico Sent: Thursday, October 8, 2015 1:51 PM To: jimckneale@gmail.com Subject: NGL Litigation Attachments: Amended Complaint (as filed, 9-29-15).pdf Jim, I am contacting you regarding a complaint that LCT Capital has filed against NGL Energy Holdings and NGL Energy Partners regarding fees due in connection with the TransMontaigne transaction. An amendment to the original complaint was filed on September 29 and is attached for your review. Given the materiality of the claim as well as the nature of the events detailed in the complaint, I thought it important that the audit committee and board of directors be aware of the complaint. We believe the misrepresentations made to LCT Capital, as detailed in the Complaint, are illustrative of broader, more systemic issues at the company under Mike's leadership -- issues that have affected the accuracy of NGL's public filings and Mike's public statements about the business. We are available to discuss the complaint or other issues with you and the audit committee or the board at your convenience. Regards, Lou Talarico LCT Capital, LLC ¶3 On October 16, 2015, Krimbill filed a petition in Tulsa County District Court alleging the email had libeled him personally. On October 30, 2015, Defendants moved to dismiss Krimbill's petition with prejudice, pursuant to, inter alia, the OCPA. On February 26, 2016, the district court denied this motion. Defendants now appeal. STANDARD OF REVIEW ¶4 There is no established appellate standard of review in this case.1 It is clear that the OCPA provides a new summary process/dismissal procedure in certain cases, however, and that, traditionally, Oklahoma appellate courts have reviewed decisions pursuant to such procedures by a de novo standard. The OCPA also requires dismissal if a plaintiff fails to show a prima facie case, and is hence similar to a motion for directed verdict. Directed verdict challenges also are reviewed de novo. Finally, Texas, which has an almost identical act, has adopted a de novo standard of review.2 Hence, we find a de novo standard indicated by existing precedent and persuasive authority, and we adopt that standard here. ANALYSIS ¶5 Oklahoma's Act, which became effective in 2014,3 mirrors that of the Texas Citizens' Participation Act (TCPA or Texas Act), enacted in 2011 under the title, "Actions Involving the Exercise of Certain Constitutional Rights," Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001 through 27.011. The Texas Act has been the subject of numerous decisions by the Texas courts,4 which we may look to as persuasive authority in resolving this matter. See, e.g., In re Fletcher's Estate, 1957 OK 7, ¶ 25, 308 P.2d 304 (general rule, with some exceptions, is that a statute adopted by Oklahoma from another state which at the time of adoption has been construed by the highest court of the first state, is presumed adopted as so construed; however, if decisions by the highest court of the other state occurred after adoption of the statute in Oklahoma, such decisions are persuasive only). I. "ANTI-SLAPP" ACTS ¶6 The legislature enacted the OCPA "to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of [persons] to file meritorious lawsuits for demonstrable injury." 12 O.S. Supp. 2014 § 1430. A. The Purpose of "Anti-SLAPP" Acts ¶7 The legislation is an example of "anti-SLAPP" (Strategic Lawsuit Against Public Participation) legislation, the purpose of which is to curb "lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." Cal. Civ. Proc. Code § 425.16(a). Anti-SLAPP legislation appears to be the result of an increasing tendency by parties with substantial resources to file meritless lawsuits against legitimate critics, with the intent to silence those critics by burdening them with the time, stress, and cost of a legal action. To carry out this purpose, anti-SLAPP acts typically provide an accelerated dismissal procedure, available immediately after a suit is filed in order to weed out meritless suits early in the litigation process. ¶8 Anti-SLAPP acts may be generally characterized as "narrow" or "broad." See Shannon Hartzler, Protecting Informed Public Participation: Anti-SLAPP Law and the Media Defendant, 41 Val. U.L. Rev. 1235, 1236 (2007). A narrow act protects only certain speech made in limited circumstances, often when the speech is discussing a political or municipal issue.5 The acts of Texas, Oklahoma and California are, by comparison, "broad" acts, directed at protecting a wide spectrum of First Amendment speech, with limited exceptions.6 B. The OCPA Procedure ¶9 In an OCPA proceeding, the initial burden is on the defendant seeking dismissal to show that the plaintiff's claim "is based on, relates to, or is in response to the [defendant's] exercise of the right of free speech, the right to petition, or the right of association." 12 O.S. Supp. 2014 § 1434(B). The burden then shifts to the plaintiff to show "by clear and specific evidence a prima facie case for each essential element of the claim in question." Id., § 1434(C). If § 1434(C) is satisfied, the burden shifts back to the defendant to show "by a preponderance of the evidence" a defense to the plaintiff's claims. Id., § 1434(D). If the plaintiff's prima facie case fails, or the defendant shows a defense by a preponderance of the evidence, the suit is dismissed. ¶10 The three basic issues thus presented by the text of the Act, and by this appeal, are (1) whether the defendant has shown the plaintiff's action is based on, relates to, or is in response to the defendant's exercise of rights protected by the Act; (2) whether the plaintiff has demonstrated a prima facie case; and (3) if so, whether the defendant shown a "valid defense by a preponderance of the evidence." II. INTERPRETING THE OCPA ¶11 Interpreting the OCPA requires balancing the unusual judgment/dismissal provisions of § 1434 against two other OCPA provisions, §§ 1430 and 1440. The tension between these sections is immediately evident. ¶12 Section 1434(C) appears to introduce a new evidentiary standard of "clear and specific evidence" that has no prior history in Oklahoma. Section 1434(D) appears to allow a court to dismiss a case with prejudice based on the judge's weighing of the evidence on the merits of the case. Read in isolation, § 1434 appears to provide for a summary form of bench trial on the merits before a defendant has answered. ¶13 However, OCPA § 1440 provides that the Act "shall not abrogate or lessen any other defense, remedy, immunity or privilege available under other constitutional, statutory, case or common law or rule provisions," and § 1430 states the legislative purpose of the OCPA is to weed out meritless suits while protecting "the rights of a person to file meritorious lawsuits for demonstrable injury." Tension between the § 1434 procedure and the Act's statements of legislative intent is inescapable, and requires the resolution of several issues in a manner giving effect to legislative intent before we can analyze the facts in this case. The first such issue is the requirement that a plaintiff establish "a prima facie case for each essential element of the claim in question" by "clear and specific evidence." III. THE "PRIMA FACIE CASE" AND "CLEAR AND SPECIFIC EVIDENCE" ¶14 Once a defendant has shown that the Act applies, the burden shifts to the plaintiff to show "by clear and specific evidence" the requirements of § 1434(C). The Act does not define "clear and specific evidence," and that phrase has not previously appeared in published Oklahoma appellate case law. A. Prima Facie Case Under the Act ¶15 Oklahoma jurisprudence does define prima facie case. See, e.g., Hill v. State, 1983 OK CR 161, ¶ 3, 672 P.2d 308, quoting Black's Law Dictionary, 4th Rev. Ed., 1968, and defining "prima facie case" as, "Such as will suffice until contradicted and overcome by other evidence. A case which has proceeded upon sufficient proof to that stage where it will support finding if evidence to contrary is disregarded." Because the Legislature would not have stated two contradictory standards in the same sentence, we presume that its definition of "clear and specific evidence" in § 1434(C) is in harmony with the established standard for prima facie case. ¶16 The Texas courts have recognized this issue, and reached the same conclusion regarding the TCPA. In In re Lipsky, 460 S.W.3d 579 (Tex. 2015), the Texas Supreme Court noted: The statute . . . requires not only "clear and specific evidence" but also a "prima facie case." In contrast to "clear and specific evidence," a "prima facie case" has a traditional legal meaning. It refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted. Id. at 590. ¶17 We find such reasoning consistent with Oklahoma law. We hold that, even though the Oklahoma Act initially demands more information about a plaintiff's underlying claim by requiring a showing of a prima facie case, "the Act does not impose an elevated evidentiary standard or categorically reject circumstantial evidence." Id. at 591. B. What Evidence Should the Court Consider while Examining for a Prima Facie Case? ¶18 Defendants argue that, in determining whether a prima facie case has been shown, the court may not consider the pleadings. We disagree. ¶19 The OCPA is clear that a district court "shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." 12 O.S. Supp. 2014 § 1435. In contrast, the minimal requirements of notice pleading do not mandate that a petition state sufficient facts to establish a prima facie case, but only an allegation of general facts supporting the elements of a cause of action. Hence, a petition, if pled to the minimum standard of notice pleading, may not provide sufficient "clear and specific evidence" for purposes of the OCPA. Nevertheless, the Act clearly contemplates that the pleadings may be considered.7 IV. "VALID DEFENSES" SHOWN BY A "PREPONDERANCE OF THE EVIDENCE" ¶20 One of the most unique features of the Act is the structure of § 1434(D), which allows dismissal if "valid defenses" are shown by a "preponderance of the evidence" even if a prima face case has been established. This section appears to provide for a pre-answer bench trial on the merits. Such a procedure would be unprecedented in Oklahoma law. ¶21 The Legislature stated in § 1440 of the Act that it did not intend to "abrogate or lessen any other defense, remedy, immunity or privilege available under other constitutional, statutory, case or common law or rule provisions." Unless we interpret the Act as transforming any action at law that may be subject to the OCPA -- and there are likely many affected actions8 -- into a case that would allow the trial judge to decide disputed questions of material fact in a dismissal procedure, § 1434(D) must be more narrowly construed. Accordingly, for the following reasons, we find that disputed questions of material fact cannot be resolved in an OCPA dismissal proceeding. A. Violation of § 1440 of the Act ¶22 As noted above, OCPA § 1440 is clear that the Legislature intended any remedy afforded by the Act to be limited in its effect on other remedies and defenses. However, if read literally, § 1434(D) provides for a pre-answer bench trial on the merits of a claim by providing that a judge may dismiss an action if a movant establishes each element of a valid defense by a preponderance of the evidence. ¶23 The existence of a prima facie case inherently establishes the existence of disputed questions of fact, in that it shows "sufficient proof to that stage where it will support findings if evidence to contrary is disregarded." In all other actions where the burden of proof is by a preponderance of the evidence, once a plaintiff shows a prima facie case, summary judgment is available only on issues of law. If read literally, however, § 1434 would allow dismissal based on the trial court's view of the weight of the evidence. As such, the Act would make dismissal far easier to achieve than summary judgment for defendants who may be protected by the Act. Such a result is entirely incompatible with the clear directive of § 1440. ¶24 The Court in In re Lipsky noted that the Texas Act should "not impose a higher burden of proof than that required of the plaintiff at trial." 460 S.W.3d at 591. We find this principle sound, and adopt it here. Since disputes of fact on the required elements of a tort prevent summary judgment, those same disputed facts cannot warrant dismissal under the OCPA. B. Right to Jury Trial ¶25 In addition to rejecting a literal interpretation of § 1434(D) that would allow a judge to decide disputed facts traditionally reserved for a jury, we note that a literal interpretation also implicates constitutional safeguards regarding the right to jury trial. Oklahoma law previously has allowed judges to act as triers of fact in equitable cases, but has reserved this function to the jury in cases at law unless a jury is waived. Read literally, § 1434(D) would require a judge to act as the finder of fact in some cases at law that are subject to jury trial. Such an interpretation would impact the right to jury trial for the benefit of certain types of defendants, which also violates the directive of § 1440. C. "Special law" Pursuant to Oklahoma Constitution, art. 5, § 46 ¶26 A literal interpretation of § 1434(D) also could render the OCPA a special law prohibited by the Oklahoma Constitution, art. 5, § 46. That provision states: The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law . . . Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings. ¶27 "The terms of art. 5, § 46 command that court procedure be symmetrical and apply equally across the board for an entire class of similarly situated persons or things." Zeier v. Zimmer, Inc., 2006 OK 98, ¶ 13, 152 P.3d 861. "In a special laws attack under art. 5, § 46, the only issue to be resolved is whether a statute upon a subject enumerated in the constitutional provision targets for different treatment less than an entire class of similarly situated persons or things." Id. "The test is whether the provision fits into the structured regime of established procedure as part of a symmetrical whole. If an enactment injects asymmetry, the § 46 interdiction of special law has been offended." Id. ¶28 An interpretation of § 1434(D) that essentially denies a jury trial to certain groups of plaintiffs, transforms some actions at law into equitable ones, and creates a special category of dismissal or summary judgment applicable only to certain defendants across a broad variety of tort cases runs afoul of Okla. Const. art. 5, § 46. The reach of the OCPA is not likely confined simply to libel plaintiffs, but could reach into any tort involving speech. The number of different legal actions that might be "based on, relate[d] to or [] in response to a party's exercise of the right of free speech, right to petition or right of association," appears to be substantial.9 ¶29 "By mandating uniformity of procedure, the terms of art. 5, § 46 command that all citizens of the state shall have equal access to legal institutions for application of the general ordinary forensic process." Zeier at ¶ 18. If the OCPA's evidentiary requirements herald a more stringent test for a special class of claims than generally applied to demurrers to the evidence and motions for directed verdict or summary judgment, and thus changes the fact-finder for an apparently arbitrary group of plaintiffs, the law also may run afoul of art. 5, § 46.10 D. The Right to File a Meritorious Lawsuit for Demonstrable Injury ¶30 We finally note the OCPA's clearly stated legislative purpose is to weed out meritless suits while protecting "the rights of a person to file meritorious lawsuits for demonstrable injury." 12 O.S. Supp. 2014 § 1430. The concept that a suit must be meritless to be dismissed is reinforced by the Act's "sanctions for deterrence" provision, § 1438, which allows "[s]anctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in the [OCPA]." ¶31 Oklahoma jurisprudence previously has not countenanced sanctions for acts that are neither frivolous nor without reasonable basis. If genuine questions of material fact or law exist as to the right of recovery, and it is necessary to weigh the evidence in order to decide the case on the merits, it appears highly improbable that the case was meritless from the outset. A cognizable legal theory and a disagreement of material fact, supported by evidence on both sides, pursuant to the common law standard presupposes that the suit is not meritless, and that it should not be subjected to immediate summary dismissal or a sanction. The OCPA specifically prohibits the abrogation of these common law principles. ¶32 If more than one interpretation is possible, this Court will not interpret an act of the Legislature so as to render it unconstitutional. In combination with the directives of §§ 1430, 1440, and 1438, we are called upon to interpret § 1434(D) to fit the broader scheme and purpose of the Act of providing for the early dismissal of meritless or frivolous suits, and to avoid constitutional infirmity. Adhering to our constitutional mandate, we therefore hold that disputed questions of fact cannot be resolved in an OCPA dismissal proceeding. If a plaintiff has established a prima face case in the second-stage inquiry, the court may only properly consider defenses that turn solely on a question of law. It may not weigh and decide truly disputed questions of fact as "defenses" in this third stage. ¶33 Having established these basic principles, we turn now to the facts of the case at hand.11 V. THE INITIAL BURDEN TO SHOW THE ACT APPLIES ¶34 Defendants were initially required to show that Krimbill's libel suit relates to Defendants engaging in activity protected by the OCPA, i.e., the exercise of the right of free speech; the right to petition; or the right of association. The Legislature has defined these protected activities in 12 O.S. Supp. 2014 § 1431 as follows: 2. "Exercise of the right of association" means a communication between individuals who join together to collectively express, promote, pursue or defend common interests; 3. "Exercise of the right of free speech" means a communication made in connection with a matter of public concern; 4. "Exercise of the right to petition" means any of the following: . . .12 ¶35 Subsection 1431(7), in turn, defines a "matter of public concern" as meaning an issue related to: a. health or safety, b. environmental, economic or community well-being, c. the government, d. a public official or public figure, or e. a good, product or service in the marketplace; ¶36 The district court found that Defendants' speech was "a communication made in connection with a matter of public concern regarding a good, product or service in the marketplace," pursuant to §§ 1431(3) and 1431(7), and that the communication was covered by the Act. However, speech involving "goods, product or services in the marketplace" may also be exempt from the Act under § 1439(2), concerning "commercial speech." Because this case arose from a commercial dispute, we examine this exemption. A. The "Commercial Speech" Exemption ¶37 If speech is made in connection with a matter of public concern regarding a good, product or service in the marketplace, as found by the trial court here, the speech must cross a second threshold before the Act applies. Pursuant to § 1439(2), the OCPA shall not apply to:   2. A legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct the action is based upon arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer[.]   ¶38 Oklahoma has not attempted to reconcile the covered speech noted by § 1431(7), i.e., "speech on a matter of public concern related to a good, product or service in the marketplace," with the speech exempted by § 1439(2). The two clauses raise substantial questions, including such issues as the difference between speech "related to a good, product or service" and speech that "arises out of the sale or lease of goods [or] services"; and the difference between speech aimed at "an actual or potential buyer or customer" rather than "the public." Texas cases examining the exemption have developed certain rules related to it. 1. Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71 (Tex. App. 2013) ¶39 In Newspaper Holdings, an assisted-living hotel and its owner sued a newspaper and its source, alleging that the paper had published defamatory statements about the hotel. The court stated that in determining whether a speech falls under the commercial speech exemption to the TCPA, courts should examine whether the following circumstances exist: (1) the cause of action is against a person primarily engaged in the business of selling or leasing goods or services; (2) the cause of action arises from a statement or conduct by that person consisting of representations of fact about that person's or a business competitor's business operations, goods, or services; (3) the statement or conduct was made either for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person's goods or services or in the course of delivering the person's goods or services; and (4) the intended audience for the statement or conduct [is an actual or potential buyer or customer]. Id. at 88 (quoting and following Simpson Strong--Tie Co., Inc. v. Gore, 230 P.3d 1117 (Cal.2010)). ¶40 The Court in Newspaper Holdings decided that "although it was undisputed that the Newspaper was in the business of reporting community events, the Hotel's complained-of statements do not arise out of the lease or sale of the goods or services that NHI sells--newspapers." Essentially, the Court held the newspaper could invoke the Texas Act because the newspaper was not in the same business as the hotel, the newspaper's articles concerned whether the hotel met public licensing requirements and standards, and the intended audience was the public generally rather than the hotel's existing or potential customers. See id. at 81. 2. Backes v. Misko, 486 S.W.3d 7 (Tex. App. 2015), and Whisenhunt v. Lippincott, 474 S.W.3d 30 (Tex. App. 2015) ¶41 Backes and Whisenhunt expanded on the meaning of the Newspaper Holdings' element that "the statement or conduct was made either for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person's goods or services or in the course of delivering the person's goods or services." Backes and Whisenhunt clarified that, for the commercial speech exemption to apply, a statement regarding "securing sales in the person's goods" required that the statement must be made for the purpose of "securing sales in the goods or services of the person making the statement." Backes at 21 and Whisenhunt at 42 (emphasis added). 3. Epperson v. Mueller, 01-15-00231-CV, 2016 WL 4253978 (Tex. App. 2016) ¶42 Most recently, in Epperson v. Mueller, memorabilia dealers Epperson and Mueller sued one another for defamation. Epperson moved to dismiss Mueller's counterclaim pursuant to the TCPA.13 The trial court cited the test used in Newspaper Holdings but reached the conclusion that the commercial speech exemption applied, holding that Epperson and Mueller were in the same business (memorabilia), and that Epperson's intended audience was comprised of the parties' actual or potential customers rather than the general public. Hence, the Court held Epperson's statements were not protected by the Texas Act. Id. at *12. The Court emphasized that Epperson and Mueller were in the same business and that Epperson's statements were not merely criticisms of Mueller but also were intended to promote Epperson's own goods/services over Mueller's. Id. at *11. B. Interpreting the "Commercial Speech" Exemption ¶43 For the TCPA "commercial speech" exemption to apply, the Texas cases discussed above appear to require that (1) the parties are involved in the same general area of business; and (2) the statements forming the basis of the suit were made at least partially for the purpose of promoting sales of the goods or services of the person making the statement. If both of these requirements are met, the Courts held the TCPA does not apply and cannot be interposed as a defense. ¶44 In the case at hand, the speech at issue appears to be "on the border" of these principles, and may be "commercial speech" exempt from the Act. However, based on the limited evidence adduced in the trial court, it would be speculative at best for this Court to determine that Defendants and Krimbill are involved in the same business, or that Defendants made the statements at issue to promote their business aims. We therefore do not base our decision on an interpretation of the OCPA's "commercial speech" exemption, but instead presume that Defendants met their initial burden and that the Act applies in this case. VI. THE PRIMA FACIE CASE AND AFFIRMATIVE DEFENSES ¶45 The Act's requirement that a plaintiff show a prima facie case to avoid dismissal raises a further question concerning the line of demarcation between the "elements" necessary to a prima facie case and the "defenses" to a libel claim. This question has received little attention by the courts because its significance was limited. Since early statehood, Oklahoma has statutorily defined "libel" as follows: Libel is a false or malicious unprivileged publication by writing, printing, picture, or effigy or other fixed representation to the eye, which exposes any person to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of public confidence, or to injure him in his occupation, or any malicious publication as aforesaid, designed to blacken or vilify the memory of one who is dead, and tending to scandalize his surviving relatives or friends. 12 O.S.2011 § 1441. ¶46 Section 1441 can be interpreted as stating that it is the duty of a plaintiff to show unprivileged publication as part of a prima facie case. In 1981, however, the legislature enacted § 1444.1 (Pleading - Proof -- Defenses), which states: In all civil actions to recover damages for libel or slander, it shall be sufficient to state generally what the defamatory matter was, and that it was published or spoken of the plaintiff, and to allege any general or special damage caused thereby. As a defense thereto the defendant may deny and offer evidence to disprove the charges made, or he may prove that the matter charged as defamatory was true and, in addition thereto, that it was published or spoken under such circumstances as to render it a privileged communication. (Emphasis added). ¶47 Section 1444.1 makes two statements regarding defenses: first, the "defendant may deny and offer evidence to disprove the charges made" -- i.e., present ordinary defenses -- "or" the defendant may prove truth and privilege as defenses. This separation together with the use of the word "prove" makes clear that, at least since 1981, "truth" and "privilege" are affirmative defenses to a libel or slander claim, rather than the opposites of those defenses being elements that must be shown by a plaintiff.14 Inasmuch as the OCPA states that it does not abrogate prior statutes, common law, or rules, we hold that while § 1441 defines libel, § 1444.1 defines truth and privilege as affirmative defenses. Hence, the burden to show these defenses lies with the defendant in an OCPA proceeding, just as it would in any other proceeding. A. The Affidavit ¶48 Krimbill presented the pleadings and his own affidavit to show a prima face case. Defendants argue, however, that Krimbill presented no evidence whatsoever. They contend the pleadings cannot be considered, and that this Court should disregard the affidavit because "the [trial] court did not rely on it," and also because it was inadmissible. If neither the pleadings nor a personal affidavit may be used, then showing a prima facie case under the Act presents a substantial burden for a plaintiff. ¶49 As discussed in Part IIIA above, the pleadings may be considered. We therefore reject Defendants' contention otherwise. ¶50 Defendants' first argument concerning the affidavit is based on their observation that the district court did not refer to the affidavit in its decision. While it is true that the court did not specifically identify the evidence it considered, there is no requirement in the Act that it do so. Legal error may not be presumed from a silent record; it must be affirmatively demonstrated. Hamid v. Sew Original, 1982 OK 46, ¶ 7, 645 P.2d 496. We find no merit in the argument that we should not consider the affidavit because the district court "did not rely on it." Such a restriction is not consistent with the de novo standard of review. Furthermore, "[this] Court is not bound by the trial court's reasoning and may affirm the judgment below on a different legal rationale." Hall v. GEO Grp., Inc., 2014 OK 22, ¶ 17, 324 P.3d 399. B. The Admissibility of the Affidavit ¶51 Defendants next argue that Krimbill's affidavit must be disregarded because it is conclusory, citing as authority the cases of In re Lipsky, 460 S.W.3d 579 (Tex. 2015), and Concorde Res. Corp. v. Kepco Energy, Inc., 2011 OK CIV APP 39, ¶ 29, 254 P.3d 734. The Court in Concorde noted, "The party responding to a motion for summary judgment has an obligation to present something which shows that, when the date of trial arrives, he will have some proof to support his allegations. . . . A general statement in a summary judgment affidavit opining liability, without providing any information and without offering any reason for the conclusions, [is] not sufficient." Id. (emphasis added; citations omitted). ¶52 The Texas Court in Lipsky addressed the sufficiency of an affidavit stating that a libel plaintiff had "suffered direct economic losses and lost profits" without elaborating on the cause of that harm. Lipsky at 592-93. The opinion did not dispute that the affidavit served as evidence of alleged losses, but found that it did not connect the losses to the plaintiff's activities. The affidavit was thereby found to be insufficient as evidence of the element the defendants sought to prove, which was that the plaintiff's activities had caused defendants losses rather than simply that the defendants had suffered losses. ¶53 Concorde and Lipsky are both distinguishable from the present case. The affidavit in Concorde opined conclusively as to the ultimate legal issue of liability without supplying any facts to support that conclusion. If Krimbill's affidavit had simply stated, "I have been libeled," without further elaboration, the result here would be the same as in Concorde. That situation is not present here, however. The holding in Lipsky is even more distinguishable, because the Court did not reject the affidavit for being conclusory, but for being so insufficient that, even if true, it failed to show a required element. ¶54 As noted above, OCPA § 1440 is clear that the Act "shall not abrogate or lessen any other defense, remedy, immunity or privilege available under other constitutional, statutory, case or common law or rule provisions." Thus, the proper question is whether Krimbill's testimony normally would be admissible at trial or in a summary judgment proceeding. If so, it is admissible for purposes of the Act. ¶55 Oklahoma law also is clear that a witness may testify about any matter of which the witness has personal knowledge, and that "[e]vidence to prove personal knowledge may consist of the witness's own testimony." 12 O.S.2011 § 2602. "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. 12 O.S.2011 § 2401. Unless it is clear that Krimbill has no personal knowledge of whether NGL has made inaccurate public filings and public statements, his denial is admissible. The fact that the denial is self-interested goes to its weight at trial, not to its admissibility for dismissal purposes. We find that Krimbill's affidavit was generally admissible to the same extent Krimbill's same testimony would be admissible at trial. The district court did not err to the extent it considered it. C. "Malice" ¶56 Defendants argue that Krimbill is a "public figure," and as such, he must show a prima facie case for the additional element of malice. Assuming without deciding that the "public figure" status applies here, the actual malice standard requires proof that a defendant acted with knowledge that a publication was false "or with reckless disregard of whether it was false or not." Martin v. Griffin Television, Inc., 1976 OK 13, ¶ 28, 549 P.2d 85 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 726 (1964)); see also Huckabee v. Time Warner Entm't Co., 19 S.W.3d 413, 420 (Tex. 2000). ¶57 Reckless disregard is a subjective standard, focusing on a defendant's state of mind. Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex. 2002). Mere negligence is not enough. Id. Rather, the plaintiff must establish "'that the defendant in fact entertained serious doubts as to the truth of his publication,'" or had a "'high degree of awareness of . . . [the] probable falsity'" of the published information. Id. (quoting Harte--Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 688, 109 S. Ct. 2678 (1989)). Actual malice generally consists of "'[c]alculated falsehood.'" Bunton at 591 (quoting Garrison v. Louisiana, 379 U.S. 64, 75, 85 S. Ct. 209 (1964)). When a defendant's words are reasonably subject to more than one interpretation, the plaintiff must establish either that the defendant knew the words would convey a defamatory message or had reckless disregard for their effect. See Bunton at 603. ¶58 The "actual malice" element presents an especially difficult problem when it becomes part of the procedure mandated by the Act, inasmuch as malice is decided by a subjective standard, focusing on the defendant's state of mind, knowledge, and intent. The difficulty to a plaintiff of showing a prima facie case for a subjective belief or knowledge by the defendant in a "trial" held before discovery cannot be overestimated. "The question whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law." See Grogan v. KOKH, LLC, 2011 OK CIV APP 34, ¶ 15, 256 P.3d 1021, (citing Harte--Hanks Commc'ns). Unless a defendant includes his/her mental processes and subjective understanding as part of a motion to dismiss, a plaintiff would appear to have little chance of adducing any direct proof whatsoever of this element beyond the plaintiff's own belief that the defendant acted with actual malice. Given the practical improbability of direct evidence, unless the Oklahoma Legislature's intention was to effectively abolish defamation actions by public figures, it appears that a prima facie case for this element may be shown by circumstantial evidence. ¶59 The Texas appellate courts appear to have adopted the latter approach in cases under the TCPA: A defendant's state of mind "can--indeed, must usually--be proved by circumstantial evidence." Campbell, 471 S.W.3d at 629; see also Lipsky, 460 S.W.3d at 584 (concluding "clear and specific evidence under the" TCPA "includes relevant circumstantial evidence"). The evidence must be viewed in its entirety. Campbell, 471 S.W.3d at 629. "In addition, the supreme court has stressed that proof of actual malice is not defeated by a defendant's self-serving protestation of sincerity." Id. MacFarland v. Le-Vel Brands LLC, 05-16-00672-CV, 2017 WL 1089684, at *12 (Tex. App. Mar. 23, 2017). ¶60 In the case at hand, the trial court found that the limited circumstantial evidence indicated the possibility of actual malice. We find no error in this holding. We find that Krimbill presented a prima facie case of libel, and that the burden therefore shifted to Defendants to show an absolute defense to that prima facie case, as allowed by the Act. D. The "Privilege" Question ¶61 Defendants argue that Krimbill was required to provide evidence that Defendants' statements were "not privileged" as part of establishing a prima facie case. As discussed above, however, privilege is an affirmative defense pursuant to 12 O.S. 2011§ 1444.1. Thus, Defendants bear the burden of showing privilege as a matter of law in order to obtain summary dismissal of Krimbill's suit. ¶62 Defendants also argue that their statements were in fact privileged, and that they therefore have a valid defense pursuant to the OCPA. Whether a communication is privileged is initially a question of law to be determined by the court. Samson Inv. Co. v. Chevaillier, 1999 OK 19, 988 P.2d 327. As set forth in 12 O.S.2011 § 1443.1, on which Defendants rely: A. A privileged publication or communication is one made: First. In any legislative or judicial proceeding or any other proceeding authorized by law; Second. In the proper discharge of an official duty; Third. By a fair and true report of any legislative or judicial or other proceeding authorized by law, or anything said in the course thereof, and any and all expressions of opinion in regard thereto, and criticisms thereon, and any and all criticisms upon the official acts of any and all public officers, except where the matter stated of and concerning the official act done, or of the officer, falsely imputes crime to the officer so criticized. ¶63 Defendants first contend that their statement was privileged because it was made "in the course of . . . a legislative or judicial or other proceeding authorized by law." ¶64 The courts have generally restricted the reach of § 1443.1 to reports of things actually stated or discussed in court proceedings or records, or during other official proceedings. See Grogan at ¶ 38, (statement implying that teacher has acted as a terrorist is not privileged by § 1443.1 because there was no evidentiary material in this record showing that terrorism was discussed in any official proceeding). In Kirschstein v. Haynes, 1990 OK 8, ¶ 2, 788 P.2d 941 (superseded by rule on other grounds, as stated in Dani v. Miller, 2016 OK 35, n.1, 374 P.3d 779), however, the Court extended the law beyond the strict wording of the text of § 1443.1, stating: We have determined we will recognize an absolute privilege for communications made preliminary to proposed judicial or quasi-judicial proceedings in favor of attorneys, parties and witnesses generally under the standards set forth at the Restatement (Second) of Torts §§ 586, 587 and 588 and the comments thereto. (Emphasis added). ¶65 The main focus of Kirschstein was placing reports, documents or other statements made in anticipation of, or in preparation for, litigation inside the privilege granted by § 1443.1. By stating that the privilege operated pursuant to "the standards set forth at the Restatement (Second) of Torts §§ 586, 587 and 588 and the comments thereto," Kirschstein expanded the standards set by § 1443.1 to include the common law "as embodied in the Restatement," rather than simply placing certain statements made before suit was filed under the protection of § 1443.1. See Kirschstein at ¶ 13. ¶66 Restatement § 587 states: A party to a private litigation . . . is absolutely privileged to publish defamatory matter concerning another . . . during the course and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding. Comment 'c' further notes that: c. Relation of statement to proceedings. It is not necessary that the defamatory matter be relevant or material to any issue before the court. It is enough that it have some reference to the subject of the inquiry. Thus, while a party may not introduce into his pleadings defamatory matter that is entirely disconnected with the litigation, he is not answerable for defamatory matter volunteered or included by way of surplusage in his pleadings if it has any bearing upon the subject matter of the litigation. The fact that the defamatory publication is an unwarranted inference from the alleged or existing facts is not enough to deprive the party of his privilege, if the inference itself has some bearing upon the litigation. (Emphasis added.) ¶67 This standard suggests that material otherwise irrelevant to the subject matter of litigation may still be a legitimate part of the pleadings or proceedings, and therefore privileged, if it has "any bearing upon the subject matter of the litigation." Precisely how a court should determine whether material with no relevance to the question under litigation still has a "bearing upon the subject matter of the litigation" is not explained, and we find only three reported cases addressing the issue covered by "Comment c."15 Clearly, however, the inquiry is highly fact-based, and extremely difficult to perform accurately in a summary dismissal procedure held before a defendant has even filed an answer. ¶68 The factual questions presented in the case at hand include whether the allegations of false public statements and inaccurate filings contained in Talarico's email are in fact a part of the pleadings or proceedings in the underlying Delaware case, and whether such statements had some bearing on the subject of the case. If so, the email may qualify as a "fair and true report of a judicial proceeding." Defendants argue that paragraphs 75, 87-91, 94, 99, 102, 104 and 119-20 of the amended petition cover the same allegations made in the email, and that the comments in the email therefore are privileged as a report of a pleading. ¶69 Although two of the cited paragraphs do allege some form of inaccurate public filing, we agree with the trial court that, absent a much more extensive overview of the Delaware litigation, some of the email appears to have no bearing upon the subject matter of the Delaware litigation. We therefore find that pursuant to the limited record before us, we cannot determine if the statement central to this case was covered by a litigation privilege. E. Opinion ¶70 Defendants next contend that the statements in question were opinions rather than statements of fact. The First Amendment provides protection for statements that cannot "'reasonably be interpreted as stating actual facts'" about an individual. Milkovich v. Lorain Journal Co., 497 U.S. 1, 17, 110 S. Ct. 2695 (1990), (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50, 108 S. Ct. 876 (1988)). As a general rule, statements which are opinionative and not factual in nature, and which cannot be verified as true or false, are not actionable as slander or libel under Oklahoma law. See, e.g., Miskovsky v. Oklahoma Pub. Co., 1982 OK 8, ¶ 32, 654 P.2d 587. However, if the defendant expresses a derogatory opinion without disclosing the facts on which it is based, there may be liability "if the comment creates the reasonable inference that the opinion is justified by the existence of unexpressed defamatory facts." McCullough v. Cities Serv. Co., 1984 OK 1, 676 P.2d 833, citing Restatement (Second) of Torts § 566 (1977); see also Metcalf v. KFOR-TV, Inc., 828 F. Supp. 1515, 1529 (W.D. Okla. 1992)(fact that a statement claims to be an opinion is not conclusive of whether the statement is actionable; if the statement implies the existence of a fact susceptible of being proved true or false, it may be actionable). Whether a statement is one of fact or opinion, for purposes of determining defamation liability, is a question of law. Metcalf, id. ¶71 The statements in this case alleging inaccurate public filings appear to be inherently factual and capable of verification. Defendants argue that, even if the allegation of inaccurate filings is not opinion, its statement that, "We believe the misrepresentations made to LCT Capital, as detailed in the Complaint, are illustrative of broader, more systemic issues at the company under Mike's leadership" is a statement of opinion. Even if this is so, however, we find no provision in the Act for some form of "partial dismissal" at a pre-answer stage. F. The "Falsehood" Element ¶72 Talarico stated in the email that Krimbill's behavior had "affected the accuracy of NGL's public filings and [Krimbill's] public statements about the business." Defendants argue that it is Krimbill's burden under the OCPA to produce evidence that the implication of inaccurate public filings and statements is false in order to demonstrate a prima facie case for libel. We disagree pursuant to our analysis of 12 O.S.2011 §1444.1 above. As noted there, truth appears to be an affirmative defense. Further, Krimbill stated by affidavit that it was his responsibility to ensure that NGL's public filings were accurate, that any filings he had certified in his position at NGL were accurate, and that Talarico's implication that NGL's public filings or statements were inaccurate was false. We find a disputed question of fact as to the "truth" of this statement, and pursuant to our interpretation of §1434(D), this question cannot be resolved in a summary proceeding. G. Common Law Fair Comment ¶73 Defendants argue that the statements in question were also covered by the "common law fair comment" privilege. The common law fair comment privilege extends to fair expressions on matters of public interest. It differs from both: (1) the common law fair report privilege--which affords a qualified or conditional privilege to the media when they republish defamatory material in an account of a public or official proceeding, i.e., judicial proceedings, legislative sessions, judicial hearings, or official news conferences; and 2) its statutory counterpart, 12 O.S.2001 § 1443.1--which embodies a similar statutory privilege as a complete defense to libel. Although all three concepts overlap, the scope of the common law fair comment privilege, encompassing expressions of opinion on all matters of public opinion, is broader than either the common law fair report doctrine or the terms of the statute--both of which have their roots in political speech concepts and encompass public interest reports of official actions or proceedings. Grogan, 2011 OK CIV APP 34at ¶ 39 (quoting Magnusson v. New York Times Co. d/b/a KFOR, 2004 OK 53, ¶ 10, 98 P.3d 1070, for the principle that the common law fair comment privilege developed as a defense to actions for defamation, invasion of privacy and intentional infliction of emotional distress). Grogan further notes that the fair comment defense "protects statements that (1) involve matters of public concern, (2) are based on true or privileged facts, (3) represent the opinion of the speaker, and (4) are not made for the sole purpose of causing harm." Grogan at ¶ 39, citing Magnusson (emphasis added). ¶74 As we have already found, the record here reveals questions of fact as to the truth of Talarico's statements, and because, on the limited record before us, we cannot determine whether the email statements are privileged as a matter of law, we cannot determine if the "fair comment" privilege currently applies in this case. CONCLUSION ¶75 The OCPA as written has certain inherent contradictions. It may be interpreted as radically changing the mode of procedure in many cases, and establishing an unprecedented system of mandatory bench trials on the merits before an answer is even filed. However, the Act also contains clear legislative statements that it "shall not abrogate or lessen any other defense, remedy, immunity or privilege" and that the purpose of the OCPA is to weed out meritless suits while protecting "the rights of a person to file meritorious lawsuits for demonstrable injury." We have interpreted the Act in a manner consistent with these principles while at the same time avoiding an interpretation that the Act is unconstitutional. We find that the district court did not err in denying the motion to dismiss pursuant to the OCPA in this case. ¶76 AFFIRMED. WISEMAN, J., and RAPP, J. (sitting by designation), concur. FOOTNOTES 1 The Oklahoma Supreme Court cases to date that have addressed the current version of the Act, Anagnost v. Tomecek, 2017 OK 7, 390 P.3d 707, and Steidley v. Singer, 2017 OK 8, 389 P.3d 1117, did not establish a full standard of review because the sole issue in each of those cases concerned whether the Act applied retroactively. 2 "We apply a de novo standard of review when deciding whether a non-movant has satisfied her burden under the Anti--SLAPP statute." Deaver v. Desai, 483 S.W.3d 668, 676 (Tex.Ct.App. 2015)(abrogated on other grounds in In re Lipsky, 460 S.W.3d 579 (Tex.2015)). 3 "The [OCPA] was amended/re-written in 2014 to become effective on November 1, 2014." Anagnost, 2017 OK 7 at ¶ 8; see also, Laura Long, Slapping Around the First Amendment: An Analysis of Oklahoma's Anti-SLAPP Statute and Its Implication on the Right to Petition, 60 Okla. L.Rev. 419 (2007), for a discussion of the state's "anti-SLAPP" act as it existed at that time, at 12 O.S. § 1443.1. 4 A cursory search of the Texas reporters reveals over one hundred appellate cases involving the Texas Act in the previous five years. 5 See, e.g., Ariz. Rev. Stat. §§ 12-751 -- 12-752 (2006), protecting "[s]tatements that are . . . made as part of an initiative, referendum or recall effort, before or submitted to a government body, concerning an issue under review by that body, to influence government action or result are protected." The article cited above describes Oklahoma's 2007 anti-SLAPP statute as narrowly drawn because it applied only to claims of libel. 41 Val.U.L.Rev. at 1249-1251. 6 See 12 O.S. Supp. 2014, § 1432(A), stating that "[i]f a legal action is based on, relates to or is in response to a party's exercise of the right of free speech, right to petition or right of association, that party may file a motion to dismiss the legal action." See also Cal. Civ. Pro. Code § 425.16(b)(1), which provides: A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. 7 Although this Court stated, in Anderson v. Wilken, 2016 OK CIV APP 35, ¶ 4, 377 P.3d 149, that a plaintiff may "not rely on the facts pled in an OCPA dismissal proceeding," this statement was made in the context of a discussion of the unique procedural difficulty posed by OCPA § 1437. Section 1437 requires that, if a district court fails to set a hearing on an OCPA motion within a specified time, the motion is deemed denied and the matter may be immediately appealed without hearing any evidence below. We noted the problem created by requiring an appellate court to review a decision before any evidence is taken in the district court, and that due process would likely require the appellate court to take evidence and conduct a de novo trial of the issues, a function that Oklahoma's appellate courts have not previously performed, and that is traditionally outside our jurisdiction. It was in this context that we stated this Court and the parties could not simply rely on the pleadings at the appellate level, because the parties may need to present other facts beyond those required by minimal notice pleading. 8 In 2016 alone, Texas appellate courts considered TCPA claims involving intentional infliction of emotional distress (Ana Sophia SPENCER & William Alex Spencer, Appellant v. Jennifer Overpeck, Appellee, 04-16-00565-CV, 2017 WL 993093, at *3 (Tex. App. Mar. 15, 2017)); harassment by a homeowners' association (Long Canyon Phase II & III Homeowners Ass'n, Inc. v. Cashion, 03-15-00498-CV, 2017 WL 875314, at *1 (Tex. App. Mar. 3, 2017)); the disclosure of the identity of a person making a complaint (Int'l Ass'n of Drilling Contractors v. Orion Drilling Co., LLC, 01-16-00187-CV, 2016 WL 7104019, at *1 (Tex. App. Dec. 6, 2016)); rights under federal labor law arising out of demonstrations near stores (United Food & Commercial Workers Int'l Union v. Wal-Mart Stores, Inc., 02-15-00374-CV, 2016 WL 6277370 (Tex. App. Oct. 27, 2016)); a suit brought by the Unauthorized Practice of Law Committee for the Supreme Court of Texas (Booker v. Unauthorized Practice of Law Comm. for Supreme Court of Texas, 05-16-00039-CV, 2016 WL 5724898, at *1 (Tex. App. Oct. 3, 2016); tortious interference with contract (Deuell v. Texas Right to Life Comm., Inc., 508 S.W.3d 679 (Tex. App. 2016), reh'g overruled (Dec. 29, 2016)); violations of the Texas Uniform Trade Secrets Act (UTSA), business disparagement and invasion of privacy (Miller v. Talley Dunn Gallery, LLC, 05-15-00444-CV, 2016 WL 836775, at *2 (Tex. App. Mar. 3, 2016). It would be a mistake to consider the Act as applying only to classic libel suits. 9 See footnote 8, supra. 10 A further curious question arises if the Act requires a trial court to judge a defense on the merits pursuant to a preponderance standard before an answer has even been filed: what is the effect of a denial of such judgment? The court has considered the stated defenses on the merits, and found them inapplicable pursuant to a preponderance of the evidence. If the defendant raises no additional evidence or defenses, is it precluded from attempting to litigate these same defenses in a subsequent proceeding? 11 We cannot help noting that this legislation intended to provide a rapid and simple procedure has generated an appeal raising at least 12 factual/legal questions of defamation law and has delayed proceedings for some 18 months, before the defendant has answered. It appears that many types of suits potentially covered by the Act will now make trips to the appellate courts before they are at issue in the district courts. 12 The definition of "exercise of the right to petition" continues with numerous examples that we will not list because they are not implicated in our analysis. 13 The irony of this situation is difficult to escape. 14 "An affirmative defense is established when the publication is substantially true." Akins v. Altus Newspapers, Inc., 1977 OK 179, 609 P.2d 1263. The general rule is that the 'truth of the communication is a complete defense to a civil action for libel.'" Grogan v. KOKH, LLC, 2011 OK CIV APP 34, ¶ 11, 256 P.3d 1021, citing Oklahoma Publ'g Co. v. Kendall, 1923 OK 999, ¶ 35, 221 P. 762. 15 See Milliner v. Enck, 709 A.2d 417 (Pa. Super. Ct. 1998); Green Acres Trust v. London, 688 P.2d 658 (Ariz. Ct. App. 1983); and Harman v. Belk, 600 S.E.2d 43 (N.C. Ct. App. 2004). Citationizer© Summary of Documents Citing This Document Cite Name Level None Found. Citationizer: Table of Authority Cite Name Level Oklahoma Court of Criminal Appeals Cases  CiteNameLevel  1983 OK CR 161, 672 P.2d 308, HILL v. STATEDiscussed Oklahoma Court of Civil Appeals Cases  CiteNameLevel  2011 OK CIV APP 34, 256 P.3d 1021, GROGAN v. KOKH, LLCDiscussed at Length  2011 OK CIV APP 39, 254 P.3d 734, CONCORDE RESOURCES CORP. v. KEPCO ENERGY, INC.Discussed  2016 OK CIV APP 35, 377 P.3d 149, ANDERSON v. WILKENDiscussed Oklahoma Supreme Court Cases  CiteNameLevel  1990 OK 8, 788 P.2d 941, 61 OBJ 241, Kirschstein v. HaynesDiscussed  1957 OK 7, 308 P.2d 304, IN RE FLETCHER'S ESTATEDiscussed  1923 OK 999, 221 P. 762, 96 Okla. 194, OKLAHOMA PUBL. CO. v. KENDALLDiscussed  2004 OK 53, 98 P.3d 1070, MAGNUSSON v. NEW YORK TIMES CO. d/b/a KFORDiscussed  2006 OK 98, 152 P.3d 861, ZEIER v. ZIMMER, INC.Discussed  1976 OK 13, 549 P.2d 85, MARTIN v. GRIFFIN TELEVISION, INC.)Discussed  2014 OK 22, 324 P.3d 399, HALL v. THE GEO GROUP, INCDiscussed  2016 OK 35, 374 P.3d 779, DANI v. MILLERDiscussed  2017 OK 7, 390 P.3d 707, ANAGNOST v. TOMECEKDiscussed at Length  2017 OK 8, 389 P.3d 1117, STEIDLEY v. SINGERDiscussed  1977 OK 179, 609 P.2d 1263, AKINS v. ALTUS NEWSPAPERS, INC.Discussed  1982 OK 8, 654 P.2d 587, Miskovsky v. Oklahoma Pub. Co.Discussed  1982 OK 46, 645 P.2d 496, Hamid v. Sew OriginalDiscussed  1999 OK 19, 988 P.2d 327, 70 OBJ 859, Samson Investment Co. v. ChevaillierDiscussed  1984 OK 1, 676 P.2d 833, McCullough v. Cities Service Co.Discussed Title 12. Civil Procedure  CiteNameLevel  12 O.S. 1430, Title - PurposeDiscussed at Length  12 O.S. 1431, DefinitionsCited  12 O.S. 1432, Motion to Dismiss Legal Action Based on a Party's Exercise of RightsCited  12 O.S. 1434, Ruling on a Motion to Dismiss - Standard of ProofCited  12 O.S. 1435, Consideration of Pleadings and Affidavits - Specific and Limited DiscoveryCited  12 O.S. 1441, Definition of LibelCited  12 O.S. 1443.1, Privileged Communication Defined - Exemption from LibelDiscussed at Length  12 O.S. 1444.1, Pleading - Proof - DefensesDiscussed  12 O.S. 2401, Relevant Evidence DefinedCited  12 O.S. 2602, Lack of Personal KnowledgeCited oscn EMAIL: webmaster@oscn.net Oklahoma Judicial Center 2100 N Lincoln Blvd. Oklahoma City, OK 73105 courts Supreme Court of Oklahoma Court of Criminal Appeals Court of Civil Appeals District Courts decisions New Decisions Supreme Court of Oklahoma Court of Criminal Appeals Court of Civil Appeals programs The Sovereignty Symposium Alternative Dispute Resolution Early Settlement Mediation Children's Court Improvement Program (CIP) Judicial Nominating Commission Certified Courtroom Interpreters Certified Shorthand Reporters Accessibility ADA Contact Us Careers Accessibility ADA

731 N.W.2d 11 (2007) Clifford AYERS, Appellant, v. D & N FENCE COMPANY, INC. and EMC Insurance Companies, Appellees, United Fire and Casualty Company, Intervenor-Appellee. No. 05-1400. Supreme Court of Iowa. April 13, 2007. Rehearing Denied May 16, 2007. *13 David A. O'Brien of Willey, O'Brien, L.C., Cedar Rapids, for appellant. Michael L. Mock of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellee D & N Fence Company. Anne L. Clark of Hopkins & Huebner, P.C., Des Moines, for appellee EMC Insurance Companies. Chris Scheldrup and Charles A. Blades of Scheldrup Law Firm, P.C., Cedar Rapids, for appellee United Fire & Casualty Company. STREIT, Justice. Be careful what you wish for because it just might come true. Clifford Ayers injured his right knee in 1987 while working for D & N Fence Company. He was paid for an eighteen percent permanent disability to that lower extremity. In 2002, while still in the employ of D & N, Ayers injured his knee again. He filed a petition for workers' compensation alleging the 2002 injury caused additional disability to his right leg and resulted in a knee replacement surgery. D & N denied the allegations claiming Ayers's current disability was the result of his 1987 injury and had little or nothing to do with the 2002 injury. The commissioner agreed with D & N and awarded Ayers medical benefits. D & N cried foul claiming the commissioner should not have imposed liability upon D & N for additional medical expenses based on the 1987 injury when Ayers's petition alleged those expenses were necessitated by the 2002 injury. We conclude the commissioner did not abuse his discretion when he imposed liability for the 1987 injury. D & N was well aware of the earlier injury and even made it the focus of the hearing. Moreover, we find D & N's insurer in 1987 did not have a constitutional right to notice regarding the possible imposition of liability based upon the 1987 injury. Any obligation to notify the insurer was that of D & N. Accordingly, we affirm the district court. I. Facts and Prior Proceedings Ayers was fifty-six years old at the time of the hearing. He had been working for his brother's company, D & N, for twenty-six years. He began his career as a fence installer and was promoted to foreman, yard foreman, and finally manager of commercial sales, a position he has held since 1989. Ayers's claim in this case involves an injury to his right knee. Ayers first injured his knee in 1987. He was carrying some materials through a doorway at work when he fell. This injury ultimately required arthroscopic surgery resulting in the removal of a significant amount of cartilage. Ayers was found to have sustained an eighteen percent impairment to his right leg, and accordingly was paid permanent partial disability benefits. In 2002, Ayers injured his right knee at a D & N job site when he stepped in a hole. He twisted his knee and felt significant pain. Ayers immediately left the job site and reported the injury to D & N. A few days later, Ayers saw his family doctor who referred him to Dr. Fabiano, an orthopedic surgeon. Dr. Fabiano concluded Ayers suffered from a medial collateral ligament (MCL) strain. X-rays showed degenerative arthritis. Dr. Fabiano opined the MCL *14 strain may have "aggravate[d] and startle[d]" Ayers's degenerative arthritis. He performed knee replacement surgery after more conservative treatments did not alleviate Ayers's pain. The surgery was a success and Ayers returned to work after seven weeks of recovery. In April 2003, Ayers filed a workers' compensation claim for his March 2002 injury. Ayers sought reimbursement for his medical expenses ($51,174.62), seven weeks of healing period benefits at $599.97 per week, and 110 weeks of permanent partial disability benefits at the same rate. D & N and its insurer, EMC, disputed whether Ayers's 2002 injury caused any new permanent disability and the knee replacement surgery. A deputy workers' compensation commissioner conducted a hearing concerning Ayers's claim. Ayers pursued two theories of recovery. First, he argued the March 2002 injury aggravated or accelerated a preexisting condition (degenerative arthritis) and caused both the knee replacement surgery and additional disability to his right leg. Alternatively, Ayers argued the knee replacement surgery and the additional disability were proximately caused by the cumulative effect of the 1988 surgery and fifteen years of walking over uneven terrain while working for D & N. At the beginning of the hearing, the attorney for D & N and EMC stated: I believe there will be testimony . . . in this case that Mr. Ayers' problems with his right knee were ongoing from 1987 to 1988, and that essentially what we're looking at here is not a new injury, but it's simply a continuation of the '87, '88 injury. And it's our position, Your Honor, that all of this is really an ongoing part of the '87, '88 injury. And if you look at—It's really more analogous to [Excel Corp. v. ]Smithart [654 N.W.2d 891 (Iowa 2002)], where everything should be looked at as part of the first injury as opposed to any ongoing injury that we have. The deputy commissioner ruled in favor of D & N finding Ayers "clearly had serious degenerative joint disease prior to March 25, 2002" and that he "failed to prove that the proximate cause of his need for the knee arthroplasty surgery was the work injury." Ayers appealed the deputy's decision to the commissioner arguing inter alia: Even if the court concludes that Ayers' knee replacement surgery was not caused by trauma or cumulative trauma, the medical expenses related to the knee replacement surgery should still be paid . . . [because] the 1987 work related injury was a cause of Ayers' degenerative arthritis condition. In his appeal decision, the commissioner succinctly ruled: Claimant alleged and the parties stipulated that the claimant sustained a traumatic injury on March 25, 2002, when he stepped in a hole. In 1988 claimant had surgery and cartilage was removed from his right knee as a result of a 1987 work-related injury with this same employer for which weekly compensation was paid. All the physicians in this case attribute the knee replacement surgery to the 1988 surgery for the 1987 injury. None clearly attribute the surgery to the 2002 injury. Claimant proved convincingly that the surgery was causally related to the 1987 injury but failed to carry the burden of proving that the 2002 injury was a substantial factor in the need for the surgery. Accordingly, claimant is entitled to recover the requested [medical] benefits under section 85.26(2) for the 1987 injury . . . but he is not entitled to recover weekly compensation for the 2002 injury. *15 The motion to reconsider filed by D & N and EMC alerted the commissioner to the fact United Fire & Casualty Company insured D & N at the time of the 1987 injury. D & N and EMC noted Ayers's petition did not allege entitlement to medical benefits arising from the 1987 injury, and urged any liability for such medical benefits should be relitigated by the proper parties. Ayers also requested a rehearing arguing the commissioner failed to address the issue of cumulative trauma. In his decision on rehearing, the commissioner modified the decision by relieving EMC from liability and affirmed the remainder of his decision. Ayers filed a petition for judicial review in Linn County. D & N filed a cross-petition for judicial review and United Fire filed a petition to intervene. After United Fire was allowed to intervene, it filed a motion to present additional evidence concerning insurance coverage and causation of Ayers's current disability and knee replacement surgery. The district court denied United Fire's motion and dismissed all issues pertaining to insurance coverage without prejudice. Thereafter, the district court upheld the commissioner's ruling. It found the commissioner's findings of facts were supported by substantial evidence. The court rejected D & N's argument that the commissioner erred in ordering payment of medical benefits resulting from the 1987 injury when Ayers's petition alleged a 2002 injury date. The court also rejected United Fire's claim it had a right to notice and an opportunity to defend against the imposition of liability based upon the 1987 injury. The court agreed with the commissioner that any obligation to notify United Fire was D & N's obligation pursuant to Iowa Code section 87.10 (2001). The court stated Ayers is entitled to compensation and any dispute between his employer and the employer's insurance companies should not be a basis for delaying his rights. There was no "surprise development" which prejudiced D & N Fence. . . . Ayers filed a notice of appeal. D & N and United Fire filed a notice of cross appeal. Ayers contends the commissioner erred in finding the 2002 injury did not cause permanent disability and the knee replacement surgery. He argues the commissioner erred by applying the wrong standards to determine whether the 2002 injury aggravated a preexisting condition or was a cumulative injury. He also claims the commissioner erred by admitting into evidence a second report by D & N's expert because it was created and produced after the case preparation completion date established in the agency's hearing assignment order. D & N and United Fire both argue the commissioner erred by awarding Ayers medical benefits for the 1987 injury because the issue was not properly presented to the commissioner for consideration. II. Scope of Review "`We review the district court decision by applying the standards of the [Iowa] Administrative Procedure Act to the agency action to determine if our conclusions are the same reached by the district court.'" Univ. of Iowa Hosp. & Clinics v. Waters, 674 N.W.2d 92, 95 (Iowa 2004) (quoting Locate.Plus.Com, Inc. v. Iowa Dep't of Transp., 650 N.W.2d 609, 612 (Iowa 2002)). The Iowa Administrative Procedure Act provides fourteen grounds upon which a reviewing court may reverse the decision of the workers' compensation commissioner. Iowa Code § 17A.19(10). The relevant grounds for this appeal are (1) the agency action is unconstitutional, (2) the agency action is *16 not supported by substantial evidence, and (3) the agency action is an abuse of discretion. Id. § 17A.19(10)(a), (f), and (n). "The burden of demonstrating the required prejudice and the invalidity of agency action is on the party asserting invalidity." Id. § 17A.19(8)(a). III. Merits A. Whether Substantial Evidence Supports the Commissioner's Finding that Ayers's Knee Replacement Surgery was not Causally Related to the 2002 Injury The commissioner found Ayers failed to prove the 2002 injury was a proximate cause of his disability and the knee replacement surgery. The commissioner also found Ayers's current disability was not the result of cumulative trauma because "[t]he record does not show that claimant could have avoided the knee replacement surgery if he had not worked for the employer after 1988." Substantial evidence supports the commissioner's findings. See Waters, 674 N.W.2d at 95 (noting we may reverse the commissioner's findings only if they are not supported by substantial evidence in the record); Iowa Code § 17A.19(10)(f)(1) (stating a decision of the commissioner is supported by substantial evidence if the evidence is of the "quantity and quality of evidence that would be deemed sufficient by a neutral, detached, and reasonable person, to establish the fact at issue when the consequences resulting from the establishment of that fact are understood to be serious and of great importance"). Three physicians rendered opinions on the cause of Ayers's disability and knee replacement surgery: Dr. Fabiano, Dr. Riggins, and Dr. Stenberg. Causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 383, 101 N.W.2d 167, 171 (1960). Dr. Fabiano was Ayers's treating physician and has a specialty in orthopedics. In the days following Ayers's 2002 injury, Dr. Fabiano diagnosed Ayers as having preexisting degenerative joint disease with an MCL strain. Dr. Fabiano noted x-rays showed significant degeneration with "near bone on bone" changes in the knee. On September 9, 2002, Dr. Fabiano performed Ayers's knee replacement surgery and his postoperative diagnosis was end-stage degenerative joint disease. Dr. Fabiano concluded the cause of the knee replacement surgery was Ayers's degenerative arthritis, not the 2002 injury. Dr. Riggins reviewed Ayers's medical records and agreed with Dr. Fabiano's conclusions. Dr. Stenberg conducted an independent medical evaluation. His report opined "[t]he most likely cause of Mr. Ayers' degenerative arthritis condition would be his morbid obesity." Although Dr. Stenberg did later provide the only testimony supporting the claim that Ayers's disability and knee replacement surgery were causally related to the 2002 injury, he did so only after Ayers's counsel inquired whether that injury exacerbated Ayers's preexisting degenerative arthritis. The commissioner found Ayers had serious degenerative joint disease that had been symptomatic prior to March 25, 2002. Although Ayers sustained an injury on March 25, 2002, the commissioner found he failed to prove the injury materially aggravated his preexisting condition. Likewise, the commissioner rejected Ayers's cumulative injury argument. He found "[t]he record does not show that [Ayers] could have avoided the knee replacement if he had not worked for the employer after 1988. The cumulative trauma exposure was incidental in this case and did not materially change the outcome." *17 There is substantial evidence in the record to support the commissioner's factual findings. Moreover, the commissioner applied the correct legal standards in making these determinations. Ayers finds fault with the commissioner's statement that Ayers failed to prove "the 2002 injury significantly changed the course of the preexisting injury to bring about the need for knee replacement surgery." Ayers claims the commissioner applied "a higher, hyper-technical, and incorrect standard" in determining whether the 2002 injury materially aggravated his preexisting condition. Ayers is grasping at straws. A claimant has the burden of proving his work-related injury was a proximate cause of his disability. Meyer v. IBP, Inc., 710 N.W.2d 213, 220 n. 2 (Iowa 2006) (quoting Freeman v. Luppes Transp. Co., 227 N.W.2d 143, 148 (Iowa 1975)). In order for a cause to be proximate, it must be a "substantial factor." Kelly v. Sinclair Oil Corp., 476 N.W.2d 341, 349 (Iowa 1991). The commissioner applied the correct standard and we have no quarrel with his analysis. Likewise, we find the commissioner applied the correct standard in determining whether Ayers suffered a cumulative injury. The commissioner found Ayers failed to prove he "could have avoided the knee replacement if he had not worked for the employer after [his first knee surgery]." In order to be compensable, the cumulative trauma must be work related. Ayers offered no medical evidence supporting his contention that his disability was caused by work-related repetitive trauma. B. Whether Substantial Evidence Supports the Commissioner's Finding that Ayers's Knee Replacement Surgery was the Result of the 1987 Injury Substantial evidence supports the commissioner's finding that Ayers "proved convincingly" his disability and knee replacement surgery were causally related to his 1987 work-related injury. Dr. Riggins opined Ayers's degenerative arthritis was the expected result of the 1988 arthroscopic surgery, which was required after Ayers's 1987 injury. Dr. Stenberg agreed Ayers's earlier surgery "played a factor" in his degenerative arthritis. Dr. Bickel, who performed the arthroscopic surgery after the 1987 injury, predicted Ayers would continue to have problems with his right knee and eventually require knee replacement surgery. Having found substantial evidence to support the commissioner's ruling, we turn now to the consequences of his findings. C. Whether the Commissioner Abused his Discretion in Considering the 1987 Injury as a Cause When Ayers Pled 2002 as the Date of Injury D & N argues the commissioner erred in awarding Ayers benefits for his 1987 injury because the issue was not properly presented to the commissioner for consideration. Whether Ayers's application for workers' compensation benefits sufficiently informed his employer of the possibility of an award for the 1987 injury is a matter within the agency's discretion. Waters, 674 N.W.2d at 96. Thus, the proper standard of review is an abuse of discretion. Id. Ayers's application for benefits alleged an injury date of "[o]n or about March 25, 2002." D & N argues Ayers should have been required to file a new application for benefits alleging 1987 as the date of the injury. In Waters, we reiterated "[a]n application for arbitration is not a formal pleading and is not to be judged by the technical rules of pleading." Id. at 96-97 (quoting Coghlan v. Quinn Wire & Iron Works, 164 N.W.2d 848, 850 (Iowa 1969)). *18 Instead, "[t]he key to pleading in an administrative process is nothing more than opportunity to prepare and defend. The employer is to be afforded a substantive right to be at least generally informed as to the basic material facts upon which the employee relies as a basis for compensation." Id. at 97 (quoting James R. Lawyer and Judith Ann Graves Higgs, Iowa Workers' Compensation—Law & Practice § 21-7, at 231 (3d ed.1999)). The commissioner did not abuse his discretion in considering the 1987 injury as the cause of Ayers's disability and knee replacement surgery because D & N was well aware of Ayers's long-standing history of knee problems. In fact, D & N made the 1987 injury and subsequent surgery in 1988 an integral part of the hearing. Its attorney stated "what we're looking at here is not a new injury, but it's simply a continuation of the '87, '88 injury. And it's our position Your Honor, that all of this is really an ongoing part of the '87, '88 injury." D & N generated expert opinion testimony from Dr. Riggins to support this claim. Dr. Riggins was asked by defense counsel to review the Ayers file and opined "the osteoarthritis present in [Ayers's] right knee was the expected result of the earlier [1988] surgical procedure." Defense counsel was so persuasive the commissioner adopted her argument. What D & N wished for came true. This is not a "surprise development" that prejudiced the employer. Eberhart Constr. v. Curtin, 674 N.W.2d 123, 125 (Iowa 2004). The commissioner correctly pointed out "[n]othing would be gained by requiring another proceeding explicitly based on the 1987 injury." While D & N may have been surprised by the consequences of its argument, this is not Ayers's problem. Even if we were to order a new hearing, D & N would be barred from arguing the 1987 injury did not cause Ayers's disability and knee replacement surgery because it already proved this very matter. See generally Winnebago Indus., Inc. v. Haverly, 727 N.W.2d 567, 573-75 (Iowa 2006) (discussing doctrine of judicial estoppel). In 1988, Ayers was paid for an eighteen percent permanent partial disability to his lower right leg. Since he proved the knee replacement surgery performed in 2002 was necessary to treat the 1987 injury, Ayers is entitled to be reimbursed for the reasonable cost of that treatment. Iowa Code § 85.26(2). He is not entitled to any additional temporary or permanent disability payments because more than three years have passed since he received his last disability payments for the 1987 injury.[1]Id. § 85.26(1). D. Whether United Fire's Due Process Rights were Violated Finally, United Fire argues the commissioner violated its constitutional right to due process when it considered the 1987 injury. We review constitutional claims de novo. Consumer Advocate v. Commerce Comm'n, 465 N.W.2d 280, 281 (Iowa 1991). United Fire did not participate in the hearing. It claims it had a right to notice *19 and an opportunity to defend against Ayers's claim for additional workers' compensation benefits for the 1987 injury. See Carr v. Iowa Employment Sec. Comm'n, 256 N.W.2d 211, 214 (Iowa 1977) (stating the essential elements of due process are notice and an opportunity to defend). However, the insurer does not have a statutory or constitutional right to notice from the employee. The employee is only required to notify the employer of his claim. Iowa Code §§ 85.24, .24. The commissioner correctly stated any obligation to notify United Fire was that of D & N's. See id. § 87.10. The district court aptly held: Whether United Fire & Casualty Company must pay the medical expenses is not an issue which should be a concern for [Ayers]. He is entitled to compensation and any dispute between his employer and the employer's insurance companies should not be a basis for delaying his rights. We agree. The commissioner did not violate United Fire's due process rights. IV. Conclusion Substantial evidence supports the commissioner's findings that Ayers's disability and knee replacement surgery were caused by the 1987 injury and not the 2002 injury. Consequently, Ayers is entitled to reimbursement for his medical expenses. The commissioner did not abuse his discretion in considering the 1987 injury when Ayers pled 2002 as the date of injury because D & N raised the 1987 injury as the cause of Ayers's disability and knee replacement surgery. Finally, the commissioner did not violate United Fire's due process rights because any obligation to notify United Fire was that of D & N. AFFIRMED. NOTES [1] On appeal, Ayers argues the commissioner erred by admitting into evidence a second report by Dr. Riggins which was produced after the deadline for discovery. Ayers complained the late-produced report was prejudicial because it "for the first time offers expert testimony with regard to the issue of apportionment" of disability between the 1987 injury and the 2002 injury. According to the report, Ayers's current 50% impairment of his lower right extremity should be reduced by 18%, which was the amount of his impairment prior to March 25, 2002. In other words, D & N used this report to argue any award of disability payments should be based on 32% impairment rather than 50%. Because we affirm the commissioner's determination Ayers is not entitled to additional compensation for disability, this issue is moot.

210 P.3d 712 (2007) BRYAN v. TOMLINSON. No. 46393. Supreme Court of Nevada. November 14, 2007. Decision without published opinion. Affirmed/Reversed/Remanded.

This opinion is subject to revision before final publication in the Pacific Reporter 2020 UT 27 IN THE SUPREME COURT OF THE STATE OF UTAH SALT LAKE COUNTY, DUCHESNE COUNTY, UINTAH COUNTY, WASHINGTON COUNTY, and WEBER COUNTY, political subdivisions of the State of Utah, Appellants, v. STATE OF UTAH, DELTA AIR LINES, INC., and SKYWEST AIRLINES, INC., Appellees. No. 20180586 Heard May 6, 2019 Filed May 18, 2020 On Direct Appeal Third District, Salt Lake The Honorable Kara Pettit No. 170904525 Attorneys: Sim Gill, Darcy M. Goddard, Timothy Bodily, Bradley C. Johnson, Jacque M. Ramos, Salt Lake City, for appellant Salt Lake County Tyler C. Allred, Duchesne, for appellant Duchesne County Jonathan A. Stearmer, Vernal, for appellant Uintah County Eric W. Clarke, Brian R. Graf, St. George, for appellant Washington County Courtlan P. Erickson, Ogden, for appellant Weber County David N. Wolf, Laron Lind, Andrew Dymek, Salt Lake City, for appellee State of Utah Gary R. Thorup, James D. Gilson, David L. Arrington, Cole P. Crowther, Salt Lake City, for appellees Delta Air Lines, Inc. and SkyWest Airlines, Inc.  SALT LAKE COUNTY v. STATE Opinion of the Court CHIEF JUSTICE DURRANT authored the opinion of the Court, in which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, JUSTICE PEARCE, and JUSTICE PETERSEN joined. CHIEF JUSTICE DURRANT, opinion of the Court: Introduction ¶1 Salt Lake, Duchesne, Uintah, Washington, and Weber Counties (Counties) filed a lawsuit against the State of Utah, challenging several provisions of the Utah Tax Code as unconstitutional (Challenged laws).1 The district court dismissed two of the Counties’ claims as unripe because the allegations in their complaint did not show they had been adversely affected by the tax code provision at issue. The court then dismissed the Counties’ remaining claims for a failure to exhaust administrative remedies because the Counties had not first filed an appeal of a tax assessment with the Utah State Tax Commission. Because none of the Counties’ claims presents a justiciable controversy, we affirm the district court’s decision. ¶2 The district court properly dismissed the Counties’ claims on ripeness grounds. Under our ripeness doctrine, courts should resolve legal issues only where the resulting legal rule can be applied to a specific set of facts, thereby resolving a specific controversy. Although the Counties cite evidence outside their pleadings to suggest that the tax code provision at issue had already adversely affected them, they have not incorporated this evidence into their complaint. So their complaint is facially insufficient to show that the dismissed claims were ripe. Accordingly, we affirm the district court’s dismissal of the two claims dismissed on ripeness grounds. ¶3 Further, we affirm the district court’s dismissal of the Counties’ remaining claims because those claims are best viewed as requests for an advisory opinion—something we do not provide. According to the Counties, their claims “do not arise from a specific tax assessment challenged, unchallenged, or forgone.” And they do not “depend upon averments of particular assessments to maintain this action.” Instead, their claims “are structurally based and stem from the Challenged laws’ enactment and unconstitutional __________________________________________________________ 1 Delta Air Lines, Inc. and SkyWest Airlines, Inc. (Airlines) intervened as defendants in the district court. 2  Cite as: 2020 UT 27 Opinion of the Court assessment[-]mandated methodology.” In other words, the Counties’ purpose in turning to the judiciary in this case is to obtain a judicial declaration that the Challenged laws are unconstitutional in the abstract. Because we have “no power to decide abstract questions or to render declaratory judgments[] in the absence of an actual controversy directly involving rights,”2 we affirm the district court’s dismissal of the Counties’ remaining claims. Background ¶4 Generally, an individual’s property tax obligation is determined by the county assessor for the county in which the person’s property is located. But where a business operates in more than one county, the Utah Tax Code provides that its property tax obligation is determined by a central assessor, the state tax commission. In 2015, the Utah legislature amended portions of Utah’s tax code that establish the methodology for determining the property tax obligations of airlines operating within the state. Three of the amended tax provisions are relevant in this case. ¶5 First, the legislature enacted Utah Code section 59-2-201(4) (Valuation law). The Valuation law provides that the value of an aircraft is based on the Airliner Price Guide, an airline industry pricing publication.3 But the statute says that the tax commission may use an alternative valuation method where it has “clear and convincing evidence that the aircraft values reflected in the aircraft pricing guide do not reasonably reflect fair market value of the aircraft.”4 Additionally, the Valuation law provides for an incremental downward “fleet adjustment” in the value of every aircraft, after the first three, owned by an airline. 5 ¶6 The Counties brought a number of facial and as-applied challenges to the constitutionality of the Valuation law. In the first and second claims of their complaint, they argue that the Valuation law’s “clear and convincing evidence” standard violates article XIII, section 2(1) of the Utah Constitution, which states that “all tangible property in the State that is not exempt” shall be “assessed at a uniform and equal rate in proportion to its fair market value” __________________________________________________________ 2Univ. of Utah v. Indus. Comm’n of Utah, 229 P. 1103, 1104 (Utah 1924). 3 UTAH CODE § 59-2-201(4)(b)(ii). 4 Id. § 59-2-201(4)(d). 5 Id. § 59-2-201(4)(c). 3  SALT LAKE COUNTY v. STATE Opinion of the Court (uniformity clause). The Counties claim the “clear and convincing evidence” standard violates the uniformity clause because, where the values listed in the Airliner Price Guide differ from fair market value, it creates a higher bar for assessing property at a fair market value than is established for other types of property. The Counties allege that for other types of property, the tax commission “must only meet a preponderance of the evidence standard in establishing fair market value.” They also argue that it prevents the tax commission from determining the fair market value of aircraft property. ¶7 In the Counties’ third and fourth claims, they argue that the Valuation law’s “fleet adjustment provision” violates the uniformity clause because it provides for a property tax discount applicable only to airlines, and because it prevents the tax commission from assessing the value of aircraft at fair market value. ¶8 Finally, in the Counties’ fifth and sixth claims, they challenge the Valuation law for violating the constitution’s delegation of authority over tax assessments to the tax commission. They claim that by requiring the tax commission to use the valuations provided in outside pricing guides, the legislature has unconstitutionally delegated tax commission authority to the publishers of those pricing guides. They also argue that the Valuation law violates the constitution’s separation-of-powers provisions because it impermissibly allows the legislature to exert authority over an executive agency’s responsibility—the responsibility of assessing property tax obligations. ¶9 The district court dismissed all of the Counties’ claims related to the Valuation law because “administrative appeals that remain pending” could “obviate the need to reach some of the as-applied constitutional questions raised by the Counties.”6 This was so, the court explained, because the tax commission could, “upon clear and convincing evidence,” “apply an alternative method for valuation of aircraft.” And, according to the court, the result of the tax commission proceedings could be a property tax assessment that corresponds with the property’s “fair market value,” in which case the Valuation law would not harm the Counties. The court also found that “the determination of fair __________________________________________________________ 6 All the dismissals at issue in this case were made without prejudice. 4  Cite as: 2020 UT 27 Opinion of the Court market value and whether the airline property is undervalued under the Valuation . . . Law[] are factual findings that underlie the Counties’ constitutional claims,” so tax commission proceedings would “be useful to better frame the constitutional claims that may not be obviated by the Commission’s determinations.” The Counties appeal this determination as to their uniformity clause claim regarding the “clear and convincing evidence” standard (first claim), their uniformity clause claim regarding the “fleet adjustment” provision (third claim), and their separation-of-powers claim (sixth claim). 7 ¶10 The legislature also enacted Utah Code section 59-2-804 (Allocation law). The Allocation law provides a formula for determining an airline’s property tax obligation to the State of Utah.8 Because most aircraft do not remain permanently in any one state, Utah imposes property taxes only for the time in which the aircraft is in the state. This tax obligation is calculated as a percentage of the entire value of the airline’s property according to the formula provided by the Allocation law. ¶11 In their seventh and eighth claims, the Counties argue that the Allocation law violates article XIII’s uniformity clause and the provision mandating that property tax should be assessed to any non-exempt property. They argue that it is unconstitutional because, if the Allocation law were applied uniformly by every state, a certain percentage of the value of an airline’s property would escape taxation. ¶12 As it did with the Valuation-law-related claims, the district court dismissed the Counties’ Allocation-law-related claims for a failure to exhaust administrative remedies. The court held that “the determination of fair market value and whether the airline property is undervalued under the . . . Allocation Law[] are factual findings that underlie the Counties’ constitutional claims.” The __________________________________________________________ 7 The Counties have not appealed the dismissal of their fair-market-value-clause claims regarding the “clear and convincing evidence” standard (second claim) or regarding the “fleet adjustment” provision (fourth claim). Although the Counties do not explain why these claims were not appealed, we assume it is because they would undoubtedly require factual findings regarding the fair market value of specific property—a task better left for an administrative proceeding. 8 Id. § 59-2-804. 5  SALT LAKE COUNTY v. STATE Opinion of the Court court further held that the tax commission should be allowed to make these findings in an administrative proceeding because it would “be useful to frame the constitutional claims.” Specifically, the court explained that tax commission findings “regarding allocations using the [formula provided by the Allocation law] w[ould] be useful to frame the constitutional claims regarding the Allocation Law.” Finally, the court noted that the Counties were already pursuing appeals of the tax commission’s determinations, so “inconsistent findings could result if both the Commission and t[he] Court rendered factual findings regarding fair market value of the airlines’ property in simultaneous proceedings.” The Counties appeal this determination as to their seventh and eighth claims. ¶13 Lastly, the legislature enacted Utah Code section 59-2-1007 (Threshold law). The Threshold law bars counties from challenging a tax commission’s property tax assessment unless a county “reasonably believes” the tax commission’s assessment has undervalued property by at least 50 percent.9 In the Counties’ ninth and tenth claims, they challenged the Threshold law under the open courts provision of the Utah Constitution and article XIII’s uniformity clause. But, noting that the Counties’ complaint does “not identif[y] a specific instance in which they were denied the opportunity to pursue an appeal of an airline assessment under the . . . Threshold Law,” the court dismissed these claims as unripe. The Counties appeal this ripeness determination as to their open courts claim (ninth claim) but not as to their uniformity clause claim (tenth claim).10 We have jurisdiction over this appeal pursuant to Utah Code section 78A-3-102(3)(j). Standard of Review ¶14 We are asked to review a district court’s dismissal of several claims under rules 12(b)(1) and 12(b)(3) of the Utah Rules __________________________________________________________ 9 Id. § 59-2-1007(2)(b). 10 The Counties also brought an eleventh claim in their complaint, which challenged the Valuation, Allocation, and Threshold laws as violating article I, section 24 of the Utah Constitution, and the Fourteenth Amendment of the United States Constitution. This claim, as it relates to the Valuation and Allocation laws, was dismissed without prejudice for a failure to exhaust administrative remedies, and, as it relates to the Threshold law, it was dismissed without prejudice as unripe. 6  Cite as: 2020 UT 27 Opinion of the Court of Civil Procedure. A dismissal made under either of these rules “presents a question of law that we review for correctness.”11 Analysis ¶15 We must determine whether the district court erred in dismissing one of the Counties’ claims as unripe and several other claims for a failure to exhaust administrative remedies. We hold that neither of the court’s determinations was in error. I. We Affirm the District Court’s Ripeness Determination ¶16 The Counties argue that the district court erred in dismissing, on ripeness grounds, their claim challenging the Threshold law. They argue that their challenge of the Threshold law is ripe because it is certain that the Threshold law will deprive the Counties of an opportunity to challenge the tax commission’s property tax assessment. And they argue that the district court erred in excluding from its consideration matters outside the pleadings because those matters established that their challenge of the Threshold law is ripe. We disagree. A. The Counties’ pleadings are insufficient to establish that their challenge of the Threshold law is ripe ¶17 The Counties argue that, because the Threshold law will inevitably bar a challenge to a tax assessment, their challenge of the law is ripe. But we disagree because the Counties failed to plead that their right to challenge a tax assessment had been violated pursuant to the Threshold law, or that they intended to challenge a tax assessment that would be barred by the Threshold law. ¶18 The “[r]ipeness doctrine is invoked to determine whether a dispute has yet matured to a point that warrants a decision.”12 The doctrine rests upon the principle “that courts should decide only ‘a real, substantial controversy,’ not a mere hypothetical __________________________________________________________ 11Osguthorpe v. Wolf Mountain Resorts, L.C., 2010 UT 29, ¶ 10, 232 P.3d 999 (“A district court’s grant of a motion to dismiss based upon the allegations in the plaintiff’s complaint[] presents a question of law that we review for correctness.” (alteration in original) (citation omitted)). 13B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL 12 PRACTICE & PROCEDURE § 3532 (3d ed. 2018). 7  SALT LAKE COUNTY v. STATE Opinion of the Court question.”13 There are a number of policies underlying the doctrine. These include “block[ing] the court from rendering advisory opinions on matters that may not impact the parties to a case,” “requiring a clear factual record prior to adjudication,” “facilitat[ing] informed decisions that fit the circumstances of individual cases,” and “prevent[ing] the court from intruding on legislative functions by unnecessarily ruling on sensitive constitutional questions.”14 These policies underlie our ripeness test. ¶19 We have stated that “[i]ssues are ripe for adjudication where it appears ‘there is an actual controversy, or that there is a substantial likelihood that one will develop so that the adjudication will serve a useful purpose in resolving or avoiding controversy or possible litigation.’”15 By focusing a court’s attention on whether __________________________________________________________ 13Id. § 3532.2 (internal quotation marks omitted). Because of the ripeness doctrine’s aversion to resolving merely hypothetical disputes, the doctrine is often discussed in connection with the rule against issuing advisory opinions. And the policies underlying the ripeness doctrine also underlie the advisory opinion rule. 14 Carter v. Lehi City, 2012 UT 2, ¶ 93, 269 P.3d 141. These policies are substantially similar to the policies underlying the federal ripeness doctrine. According to Wright and Miller, these include the belief that “[u]nnecessary decisions dissipate judicial energies better conserved for litigants who have a real need for official assistance,” and that defendants “should not be forced to bear the burdens of litigation without substantial justification” or to bear the burdens of defending against “hypothetical possibilities rather than immediate facts.” WRIGHT & MILLER, supra ¶ 18 n.12, at § 3532.1. But perhaps the most important policy reason for the ripeness doctrine is that judicial decisions involve “lawmaking,” and “unnecessary lawmaking should be avoided, both as a matter of defining the proper role of the judiciary in society and as a matter of reducing the risk that premature litigation will lead to ill-advised adjudication.” Id. 15 Salt Lake Cty. Comm’n v. Salt Lake Cty. Att’y, 1999 UT 73, ¶ 12, 985 P.2d 899 (quoting Salt Lake Cty. v. Salt Lake City, 570 P.2d 119, 121 (Utah 1977)). Our ripeness test, although not identical, is similar to the federal approach. Under the federal approach, ripeness is determined through a balancing test in which the court “balances the need for decision against the risks of decision.” WRIGHT & (Continued) 8  Cite as: 2020 UT 27 Opinion of the Court the resolution of a legal issue will be helpful in resolving or avoiding a particular controversy or possible litigation, this test suggests that courts should resolve legal issues only where the legal determination can be applied to the facts attendant to a specific controversy. ¶20 This principle, that issues are ripe for adjudication only where the legal determination can be applied to the facts of a particular controversy, is illustrated in cases involving challenges to the constitutionality or legality of statutes or ordinances. In this context, we have explained that “[w]here there exists no more than a difference of opinion regarding the hypothetical application of a piece of legislation to a situation in which the parties might, at some future time, find themselves, the question is unripe for adjudication.”16 In other words, a challenge to a statute is unripe unless the court’s legal determination regarding the statute can be applied to specific facts in the case. This is true even where we have “no[] doubt” that the factual circumstances in which the legal determination would be applied will “arise at some future time.”17 ¶21 For example, in Baird v. State we explained that a “plaintiff may seek and obtain a declaration as to whether a statute is constitutional by . . . alleging facts indicating how he will be __________________________________________________________ MILLER, supra ¶ 18 n.12, at § 3532.1. The need for decision is measured by the “probability and importance of the anticipated injury,” and the risks of decision “are measured by the difficulty and sensitivity of the issues presented, and by the need for further factual development to aid decision.” Id. In other words, federal courts determine ripeness after balancing “the hardship to the parties of withholding court consideration” on one side, and “the fitness of the issues for judicial decision” on the other. Id. Because this test often requires courts to make difficult “value judgments,” it has been said that “[t]he general rule for determining whether ripeness exists is easy to state and hard to apply.” Id. § 3532 (alteration in original) (citation omitted). Although we have never adopted the federal balancing test, we have previously considered many of the test’s competing concerns in determining ripeness and, therefore, our case law may be consistent with the federal approach. 16Redwood Gym v. Salt Lake Cty. Comm’n, 624 P.2d 1138, 1148 (Utah 1981). 17 Id. 9  SALT LAKE COUNTY v. STATE Opinion of the Court damaged by its enforcement.”18 And we concluded that a “complaint is insufficient” if it “merely challenges the constitutionality of a statute without in some way indicating that plaintiff will be affected by its operation or is subject to its terms and provisions.”19 Thus a complaint challenging a statute’s validity satisfies the ripeness requirement when it contains facts showing that the challenged statute has been applied or will imminently be applied in a way that harms the plaintiff. ¶22 This rule served as the basis of our decision in Salt Lake County v. Bangerter.20 In that case, a number of counties appealed the dismissal of their claim challenging a provision in the tax code. We affirmed the dismissal because the counties “ha[d] failed to set forth the specific facts of any case that [had] arisen.”21 And, “[a]s far as we [could] determine from the record [of the case], no taxpayer [had] actually received a reduction of his property taxes under the [challenged] statute.”22 We held, therefore, that “[t]o render the constitutionality of the [challenged statute] ripe for adjudication,” the counties had to “produce a tax assessment that [had] been challenged and reduced under the [challenged statute] with a resulting loss of revenue to the relevant county.”23 “In the absence of such a reduced assessment,” we explained, “our hands [were] tied because a justiciable controversy necessarily involves an accrued state of facts as opposed to a hypothetical state of facts.”24 Like the unripe claim in the Bangerter case, the Counties’ claims challenging the Threshold law are premised on a merely hypothetical state of facts. ¶23 In their complaint, the Counties frame their challenge of the Threshold law in hypothetical terms. They assert that “[i]f an assessment is below fair market value, but not below the 50% threshold . . . , only the taxpayer can seek administrative review.” And because a taxpayer “has no incentive to file an appeal for an __________________________________________________________ 18 574 P.2d 713, 716 (Utah 1978). 19 Id. 20 928 P.2d 384, 385 (Utah 1996). 21 Id. 22 Id. 23 Id. 24 Id. (citation omitted) (internal quotation marks omitted). 10  Cite as: 2020 UT 27 Opinion of the Court assessment below fair market value,” “assessments below fair market value . . . will likely go unchallenged.” According to the Counties, this statutory framework operates to violate the Utah Constitution “by insulating from administrative or judicial review State Tax Commission assessments that are below market value or are non-uniform.” But the Counties do not allege they were actually barred from challenging a tax assessment, nor do they identify an assessment they would have challenged in the absence of the Threshold law. So nothing in the Counties’ complaint suggests they have been harmed, or that harm is imminent, because of the Threshold law. ¶24 Nevertheless, on appeal the Counties argue their claim is ripe because the Threshold law “is invoked ab initio.” In other words, the Counties argue that because the Threshold law “prevents any County to appeal any valuations that are below the 50% threshold since 2015,” “there is not only a substantial likelihood that a controversy will develop in the future, but that [an] actual controversy has already occurred.” But even though that may be true, there is nothing in the Counties’ complaint to suggest that the Counties were prohibited, or dissuaded, from challenging any tax assessments since 2015. So, as it appears in their complaint, their challenge to the Threshold law is framed only by hypothetical facts. Accordingly, it is unripe. B. The district court did not err by declining to consider the tax commission cases ¶25 But the Counties argue that the district court erred in making its ripeness determination because it disregarded “factual evidence” showing that, after the complaint in this case had been filed, the tax commission dismissed four property tax appeals pursuant to the Threshold law. We disagree. The district court did not err, because the State filed a motion under rule 12(b)(1), in which it raised a facial attack on the pleadings, making it unnecessary for the district court to consider matters outside the pleadings. ¶26 “Motions under [r]ule 12(b)(1) fall into two different categories: a facial or a factual attack on jurisdiction.”25 In a factual __________________________________________________________ 25 WRIGHT & MILLER, supra ¶ 18 n.12, at § 1350; see also Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (“In order to properly dismiss for lack of subject matter jurisdiction under [r]ule 12(b)(1), (Continued) 11  SALT LAKE COUNTY v. STATE Opinion of the Court challenge to jurisdiction, the defendant “attacks the factual allegations underlying the assertion of jurisdiction, either through the filing of an answer or otherwise presenting competing facts.”26 “In a facial challenge,” on the other hand, “all of the factual allegations concerning jurisdiction are presumed to be true and the motion is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction.”27 So where defendants raise facial challenges to jurisdiction, they are not necessarily arguing that there is an irreparable jurisdictional defect. Instead, they are arguing that the allegations currently included in the complaint are insufficient to establish jurisdiction. ¶27 Because a facial attack on jurisdiction is “directed solely at the sufficiency of the complaint’s jurisdictional allegations,” it is “unlikely that affidavits or other materials outside the pleadings will be necessary.”28 Where the allegations in a complaint are insufficient to establish jurisdiction, the court “has at least two possible courses of action.”29 First, the court “may deny the motion and direct the [plaintiff] to amend the pleading.”30 Second, the court may dismiss without prejudice so that the plaintiff can later file an amended complaint.31 ¶28 In this case, the State brought a facial attack on jurisdiction. In its motion to dismiss, the State argued that “[p]laintiffs have not pleaded facts regarding a specific assessment.” And they explained that “[t]his failure is fatal because without specific facts and a specific assessment, there is no case or controversy before the __________________________________________________________ the complaint must be successfully challenged on its face or on the factual truthfulness of its averments.”). We note that the facial versus factual distinction (and the related case law) comes from federal courts. Although we are not bound by federal case law, the federal cases we cite provide a helpful framing—one that is consistent with our rules of procedure—for addressing the problem with the Counties’ complaint. 26 WRIGHT & MILLER, supra ¶ 18 n.12, at § 1350. 27 Titus, 4 F.3d at 593. 28 WRIGHT & MILLER, supra ¶ 18 n.12, at § 1350. 29 Id. 30 Id. 31 Id. 12  Cite as: 2020 UT 27 Opinion of the Court Court.” So the State did not attack the factual allegations in the Counties’ complaint. Instead, it argued for dismissal because the complaint lacked sufficient factual allegations. And in response to this argument, the district court did not need to consider any materials outside the pleadings. ¶29 But the Counties argue that the court’s failure to consider evidence regarding the tax cases constituted reversible error because our case law suggests that where a court considers a rule 12(b)(1) motion to dismiss, it “should consider materials outside the pleadings, including supplemental factual allegations to determine whether any set of facts support the cause of action pled.” The Counties’ reliance on the cited case law is misplaced. ¶30 The Counties cite four cases in support of their argument: (1) Coombs v. Juice Works Development Inc.,32 (2) Wheeler v. McPherson,33 (3) Spoons v. Lewis,34 and (4) America West Bank Members, L.C. v. State.35 But none of these cases supports the Counties’ position. ¶31 In Coombs, the Utah Court of Appeals reviewed the district court’s dismissal of a contract case for improper venue under rule 12(b)(3).36 Because the defendant in the case had attached a contract containing a forum selection clause as part of its motion to dismiss under rule 12(b)(3), the court of appeals considered whether it was appropriate to consider the contract without converting the motion into a rule 56 motion for summary judgment.37 Citing Utah precedent, the court of appeals explained that only motions brought under rule 12(b)(6) would trigger a conversion to a motion for summary judgment.38 Accordingly, it concluded that courts “may consider facts alleged outside the complaint” without converting the motion into one for summary judgment.39 __________________________________________________________ 32 2003 UT App 388, 81 P.3d 769. 33 2002 UT 16, 40 P.3d 632. 34 1999 UT 82, 987 P.2d 36. 35 2014 UT 49, 342 P.3d 224. 36 Coombs, 2003 UT App 388, ¶ 7. 37 Id. 38 Id. 39 Id. (emphasis added). 13  SALT LAKE COUNTY v. STATE Opinion of the Court ¶32 Coombs does not support the Counties’ position for two reasons. First, in Coombs, the extra-pleading material at issue was brought by the defendant in support of the defendant’s factual attack on venue. As discussed above, factual attacks on the pleadings necessarily require the introduction of materials outside the pleadings, by the defendant, to establish that the factual allegations in a plaintiff’s complaint are not true. Accordingly, the court of appeals’ statement regarding the appropriateness of considering materials outside the pleadings should be understood to apply to factual attacks on the pleadings. Second, by using the word “may,” the court in Coombs suggested that courts retain discretion to consider, or to not consider, materials outside the pleadings. Thus the decision in Coombs does not stand for the proposition that a court must consider materials outside the pleadings, especially in deciding a facial challenge to jurisdiction. ¶33 Wheeler and Spoons also do not support the Counties’ position. In these cases, we rejected the argument that a motion to dismiss under rule 12(b)(1) is automatically converted into a rule 56 motion for summary judgment where one or both of the parties attach materials outside the pleadings. As we explained in both cases, “the purpose underlying rule 12[(b)(6)’s] conversion requirement is ‘to allow parties an adequate opportunity to rebut materials outside the pleadings.’”40 These cases suggest that a court may consider material outside the pleadings in deciding a rule 12(b)(1) motion and—where necessary to give both parties an adequate opportunity to rebut materials outside the pleadings— may convert the motion into a rule 56 motion for summary judgment. But they do not suggest that a court must consider any attached material outside the pleadings. And they especially do not suggest that a court must consider material outside the pleadings where a plaintiff attaches it in response to a defendant’s facial attack on the jurisdictional sufficiency of the plaintiff’s complaint. ¶34 Finally, America West Bank does not support the Counties’ position. In that case we reviewed a district court’s dismissal, under rule 12(b)(6), for a failure to state a claim upon which relief could be granted.41 Although we explained, as the Counties have indicated, that we should affirm a rule 12(b)(6) ruling only “if it clearly appears that [the plaintiff] can prove no set of facts in __________________________________________________________ 40 Wheeler, 2002 UT 16, ¶ 20 (quoting Spoons, 1999 UT 82, ¶ 4). 41 2014 UT 49, ¶ 7. 14  Cite as: 2020 UT 27 Opinion of the Court support of his claim,” we also explained that in considering a rule 12(b)(6) motion, a court “need not accept extrinsic facts not pleaded nor need [it] accept legal conclusions in contradiction of the pleaded facts.”42 Because America West Bank deals with a rule 12(b)(6) motion, it is not particularly illuminating on the question raised by the Counties in this case. But to the extent it is relevant, America West Bank suggests that district courts need not consider extrinsic facts when considering whether a plaintiff has pled sufficient jurisdictional facts.43 Accordingly, America West Bank does not suggest that district courts must consider materials outside the pleadings when considering a facial attack on jurisdiction under rule 12(b)(1). ¶35 In sum, the allegations in the Counties’ complaint related to the Threshold law are facially insufficient to show that the Counties have been adversely affected, or will imminently be affected, by the Threshold law. So their Threshold law claim is unripe. And because of the nature of the jurisdictional defect— facial insufficiency in the pleadings—the district court did not err in declining to consider materials outside the pleadings to rectify the jurisdictional issue. Accordingly, we affirm the court’s ripeness determination. II. We Affirm the District Court’s Dismissal of the Counties’ Remaining Claims Because Those Claims are Merely Requests for an Advisory Opinion ¶36 The Counties also argue the district court erred in dismissing their remaining claims for a failure to exhaust administrative remedies. They assert that the court’s dismissal of these claims was in error because their claims “give rise to purely legal questions that cannot be obviated through administrative adjudication.” Because the Counties’ argument on appeal suggested that this case did not present an actual controversy, we requested supplemental briefing. After considering this briefing, __________________________________________________________ 42 Id. (first alteration in original). 43 Although rule 12(b)(6) motions and rule 12(b)(1) motions are typically treated differently with respect to materials outside the pleadings, the nature of facial challenges to jurisdiction under rule 12(b)(1) is somewhat analogous to a challenge under rule 12(b)(6). For this reason, our statement in America West Bank regarding extrinsic facts in the context of rule 12(b)(6) motions may serve as a helpful analogy in analyzing facial challenges under rule 12(b)(1). 15  SALT LAKE COUNTY v. STATE Opinion of the Court we are convinced that the Counties’ claims are merely requests for advisory opinions. Because we do not issue advisory opinions, we affirm the district court’s dismissal of those claims. ¶37 Although the extent of the judicial power is not clear in every context, our case law establishes that we do not “decide abstract questions.”44 This is due to the nature of an abstract question. ¶38 An abstract question is a question that is to be “considered apart from application to or association with a particular __________________________________________________________ 44 Utah Transit Auth. v. Local 382 of Amalgamated Transit Union, 2012 UT 75, ¶ 19, 289 P.3d 582. Our analysis of abstract questions is guided by our case law. But even though the principle against deciding abstract questions is firmly established in our case law, we note that a debate exists regarding the source of this principle and the limits of our judicial power. This debate was recently highlighted in competing concurring opinions in In re Gestational Agreement, 2019 UT 40, 449 P.3d 69, opinions which focused on the requirement of adversariness—a related justiciability requirement identified in our case law. On one side of the debate is the view set forth in Justice Pearce’s concurrence. In that opinion, Justice Pearce argued that we have consistently, and perhaps inaccurately, treated prudential concerns as constitutional limits on our jurisdiction when we have not yet undertaken the analysis that would permit us to speak definitely about the meaning of the Utah Constitution. See id. ¶ 58 (Pearce, J., concurring). And on the other side of the debate is the view set forth in Justice Lee’s concurrence. According to Justice Lee, many of our traditional jurisdictional limits (such as the rule against deciding abstract questions at issue in this case) stem from the meaning of the term “judicial power” as it appears in Utah’s constitution. See id. ¶ 131 (Lee, A.C.J., concurring). But in declining to answer the abstract question presented by the Counties in this case, we need not determine whether the rule against deciding such questions is merely prudential (consistent with Justice Pearce’s view) or constitutionally-mandated (consistent with Justice Lee’s view) because either view would lead to the same result. So even though it is possible that, in a future case, a historical analysis of the original meaning of the Utah Constitution may lead us to rethink the way our case law has described the limits of the judicial power, we decline to revisit that case law unnecessarily here. 16  Cite as: 2020 UT 27 Opinion of the Court instance.”45 But, under our case law, a court cannot answer a legal question unless it is framed within “specific facts of [a] case that has arisen.”46 This is so even in the context of a declaratory judgment action.47 ¶39 We have explained that even though Utah courts have “the power to issue declaratory judgments determining rights, status, and other legal relations within [their] respective jurisdiction,”48 they nevertheless “must operate within the constitutional and statutory powers and duties imposed upon them.”49 Accordingly, the power to issue declaratory judgments does not transform our courts into “forum[s] for hearing academic contentions or rendering advisory opinions.”50 Thus courts should not “render declaratory judgments[] in the absence of an actual controversy directly involving rights.”51 ¶40 A “controversy” means a “case that requires a definitive determination of the law on the facts alleged for the adjudication of an actual dispute, and not merely a hypothetical, theoretical, or speculative legal issue.”52 Because there can be no “controversy” in the absence of specifically alleged facts regarding the dispute between the parties in a case, a court cannot render a declaratory __________________________________________________________ 45 See Abstract, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 1998). 46 Salt Lake Cty. v. Bangerter, 928 P.2d 384, 385 (Utah 1996). 47 We have repeatedly explained that a court may grant requested declaratory relief only where the following conditions exist: “(1) a justiciable controversy; (2) the interests of the parties must be adverse; (3) the party seeking such relief must have a legally protect[a]ble interest in the controversy; and (4) the issues between the parties involved must be ripe for judicial determination.” Lyon v. Bateman, 228 P.2d 818, 820–21 (Utah 1951) (emphases added). Downs v. Thompson, 2019 UT 63, ¶ 14, 452 P.3d 1101 (quoting 48 UTAH CODE § 78B-6-401(1)). 49 Lyon, 228 P.2d at 820. 50 Id. 51 Utah Transit Auth., 2012 UT 75, ¶ 19 (emphasis added). 52Controversy, BLACK’S LAW DICTIONARY (11th ed. 2019) (emphasis added). 17  SALT LAKE COUNTY v. STATE Opinion of the Court judgment where a plaintiff has not framed the legal question to be decided within the context of a specific factual dispute.53 ¶41 We note, however, that the Counties cite a number of cases they claim support the notion that a court may decide “purely legal questions” in the absence of an underlying factual dispute. Yet all of the cited cases, although presenting legal questions for judicial determination, presented factual circumstances in which the resolved legal questions could be applied.54 So our case law does __________________________________________________________ 53 See Jenkins v. Swan, 675 P.2d 1145, 1149 (Utah 1983) (“A plaintiff with a direct and personal stake in the outcome of a dispute will aid the court in its deliberations by fully developing all the material factual and legal issues in an effort to convince the court that the relief requested will redress the claimed injury.”). 54 Nebeker v. Utah State Tax Comm’n, 2001 UT 74, ¶¶ 1, 3, 34 P.3d 180 (plaintiff sought to have the tax commission’s decision to apply a 12 percent special fuel tax to plaintiff’s oilfield commodities business overturned on constitutional grounds); Bangerter, 928 P.2d at 386 (“If the Counties wish to attack the Equalization Act in the abstract without a specific controversy which is ripe for adjudication, they must approach the legislature, not this court.”); Brumley v. Utah State Tax Comm’n, 868 P.2d 796, 797 (Utah 1993) (plaintiffs sought a tax refund for amounts paid in Utah state income tax on retirement income from federal sources for the tax years of 1985, 1986, 1987, and 1988); Kennecott Corp. v. Salt Lake Cty., 702 P.2d 451, 453 (Utah 1985) (plaintiff sought “a partial refund of its 1981 property taxes previously paid under protest”); Jenkins, 675 P.2d at 1149 (denying plaintiff’s request for declaratory judgment, which was based on “generalized grievances that [were] more appropriately directed to the legislative and executive branches of the state government”); Johnson v. Utah State Ret. Office, 621 P.2d 1234, 1236 (Utah 1980) (plaintiffs sought “payment of benefits paid into the retirement system on plaintiffs’ behalf”); State Tax Comm’n v. Wright, 596 P.2d 634, 635 (Utah 1979) (defendant sought dismissal of a judgment for unpaid tax payments); Baird, 574 P.2d at 715 (overturning a district court’s determination that a statute was unconstitutional on the ground that it was an “advisory opinion” because “[t]he alleged adverse actions of [the] defendant [State of Utah] consisted of the creation, administration, and enforcement of a legislative act” and “[t]he allegations concerning the unconstitutionality of the act were all pleaded in the abstract” (Continued) 18  Cite as: 2020 UT 27 Opinion of the Court not support the Counties’ argument that we can decide a pure legal question that is not tied to a specific set of facts. Indeed, it confirms that we are unable to answer abstract questions by rendering advisory opinions. ¶42 Accordingly, to plead a justiciable controversy, plaintiffs must plead “concrete facts” “indicating a[] specific injury sustained or threatened to [the] plaintiff[s].”55 So where plaintiffs merely make “allegations concerning the unconstitutionality of [a statute] . . . in the abstract,”56 they have not pled a controversy. Instead, their claims are more properly characterized as abstract questions, or, in other words, as requests for advisory opinions. Because, on the face of their complaint, the Counties do not frame their constitutional challenges in the context of a specific factual dispute, their claims are merely requests for advisory opinions. ¶43 Throughout the Counties’ complaint, they purport to attack the Challenged laws “both facially and as applied to the 2017 __________________________________________________________ without any “concrete facts . . . indicating any specific injury sustained or threatened to [the] plaintiff personally”); Shea v. State Tax Comm’n, 120 P.2d 274, 274 (Utah 1941) (plaintiff sought a refund of $4,696.45 for overpayments on fuel taxes); TDM, Inc. v. Tax Comm’n, 2004 UT App 433, ¶¶ 6–7, 103 P.3d 190 (per curiam) (summarily reversing a district court determination that the factual record needed to be further developed in an administrative proceeding before a case could be brought in the district court). 55 Bangerter, 928 P.2d at 385 (citation omitted); see id. (“In a declaratory judgment action, the law itself is at issue. This does not remove the controversy requirement, however.”); see also Baird, 574 P.2d at 716 (“A plaintiff may seek and obtain a declaration as to whether a statute is constitutional by averring in his pleading the grounds upon which he will be directly damaged in his person or property by its enforcement; by alleging facts indicating how he will be damaged by its enforcement; that defendant is enforcing such statute or has a duty or ability to enforce it; and the enforcement will impinge upon plaintiff’s legal or constitutional rights. A complaint is insufficient which merely challenges the constitutionality of a statute, without in some way indicating that plaintiff will be affected by its operation or is subject to its terms and provisions.”). 56 Bangerter, 928 P.2d at 385. 19  SALT LAKE COUNTY v. STATE Opinion of the Court tax assessments.”57 But even though the district court determined that the Counties’ repeated references to the 2017 tax assessments rendered their claims regarding the Valuation and Allocation laws justiciable, the Counties’ arguments on appeal make clear that the claims raised in their complaint are not based on the facts of the 2017 tax assessment or on any injury stemming directly from it. ¶44 In their briefing on appeal, the Counties distance themselves from any specific factual scenario and never couch their claims in the context of the 2017 assessment. Instead, they argue that their claims “give rise to purely legal questions” that “do not arise from a specific tax assessment challenged, unchallenged, or foregone.” So it is clear that their claims do not stem from a __________________________________________________________ 57 “A statute may be unconstitutional either on its face or as applied to the facts of a given case.” State v. Herrera, 1999 UT 64, ¶ 4 n.2, 993 P.2d 854. We note, however, that the complaint in the case before us fails to present any as-applied challenges. “In an as-applied challenge, a party concedes that the challenged statute may be facially constitutional, but argues that under the particular facts of the party’s case, ‘the statute was applied . . . in an unconstitutional manner.’” Gillmor v. Summit Cty., 2010 UT 69, ¶ 27, 246 P.3d 102 (alteration in original) (footnote omitted). Typically, this type of challenge requires the plaintiff to show that, because of a particular quality or status of the plaintiff or the plaintiff’s circumstances, the application of an otherwise sound statutory provision was unconstitutional. See id. ¶ 30 (explaining that a party’s “as-applied” challenges were more properly classified as “facial challenges” because “nothing in [the party’s] petition allege[d] that there was something uniquely unconstitutional about the way in which the ordinances were applied to her particular [circumstances]”); Herrera, 1999 UT 64, ¶ 22 (discussing a defendant’s “as-applied” claim, which challenged a criminal statute’s application to the defendant based on the defendant’s mental illness). But nothing in the Counties’ complaint discusses the specific manner in which the Challenged laws were applied to them. Instead, the complaint merely states that the laws were unconstitutional “as applied to the 2017 assessment.” In fact, with the exception of the “as applied to the 2017 assessment” statement sprinkled throughout the complaint, most of the Counties’ allegations are couched in hypothetical terms. So the Counties have not actually raised any as-applied challenges in their complaint. 20  Cite as: 2020 UT 27 Opinion of the Court “specific injury sustained or threatened.”58 Because the complaint is not based on a specific instance where the Challenged laws have been applied (or will imminently be applied), the Counties’ complaint is merely a request for an advisory opinion on the constitutionality of the Challenged laws. ¶45 We also note that the problematic nature of the Counties’ complaint is highlighted by the many other cases in which they have specifically attacked the Challenged laws based on the laws’ application, or imminent application. As the State points out in its supplemental brief, the Counties have already raised constitutional concerns with the Challenged laws in multiple cases that are currently pending. In Utah, parties may not initiate “a separate declaratory judgment action when the same parties are already involved in a separate administrative action or proceeding involving identical issues.”59 Were we to allow parties to raise purely legal questions on “narrow issues taken out of . . . context” in separate declaratory judgment actions, we might “needlessly increase the risk of inconsistent or erroneous decisions.”60 ¶46 To ensure that this declaratory judgment action did not involve identical issues to those already presented in other cases, we asked the parties to provide supplemental briefing on whether “any of the Counties’ claims in this case arise from facts stemming from a tax assessment that is not being challenged, or has not already been challenged, in another case.” Although the State and the Airlines argued that the Counties have failed to bring a claim that had not already been brought in other cases, the Counties declined to address this question directly. So the “purely legal questions” the Counties have raised in this case may have already been raised within the factual context of another case. Thus, were we to answer the purely legal questions posed by the Counties in this case, we would risk arriving at a determination that is inconsistent with a determination made by a court that had the benefit of considering the same legal questions in a specific factual __________________________________________________________ 58 Bangerter, 928 P.2d at 385. 59Hercules, Inc. v. Utah State Tax Comm’n, 1999 UT 12, ¶ 9, 974 P.2d 286. Copper Hills Custom Homes, LLC v. Countrywide Bank, FSB, 2018 60 UT 56, ¶ 11, 428 P.3d 1133 (alteration in original) (citation omitted). 21  SALT LAKE COUNTY v. STATE Opinion of the Court context. This possibility highlights the importance of adhering to the legal principles we have discussed in this opinion. ¶47 As we have explained, our case law has firmly established that courts should not render advisory opinions, or, in other words, answer abstract questions. And this remains true in the context of declaratory judgment actions. Because the Counties’ claims are better characterized as requests for advisory opinions regarding the constitutionality of the Challenged laws, we do not address them.61 Conclusion ¶48 We affirm the district court’s dismissal, on ripeness grounds, of the Counties’ claim challenging the Threshold law because the Counties’ complaint is facially insufficient to show that the Threshold law adversely affected them. We also affirm the court’s dismissal of the Counties’ remaining claims on the ground that those claims are merely requests for an advisory opinion because none of the claims is tied to the facts of a particular controversy. __________________________________________________________ 61 Utah Transit Auth., 2012 UT 75, ¶ 19 (“One of our earliest explications of justiciability noted that ‘[e]ven courts of general jurisdiction have no power to decide abstract questions or to render declaratory judgments, in the absence of an actual controversy directly involving rights.’” (alteration in original) (citation omitted)); see also Jenkins, 675 P.2d at 1149 (explaining that courts have the constitutional obligation to apply legal principles “to a particular dispute”). 22 

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JANE DOE NO. 14, No. 12-56638 Plaintiff-Appellant, D.C. No. v. 2:12-cv-03626-JFW-PJW INTERNET BRANDS, INC., DBA Modelmayhem.com, ORDER AND OPINION Defendant-Appellee. Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding Argued and Submitted February 7, 2014 Opinion withdrawn February 24, 2015 Re-argued and Submitted April 8, 2015 Pasadena, California Filed May 31, 2016 Before: Mary M. Schroeder and Richard R. Clifton, Circuit Judges, and Brian M. Cogan, District Judge.* Opinion by Judge Clifton * The Honorable Brian M. Cogan, District Judge for the U.S. District Court for the Eastern District of New York, sitting by designation. 2 DOE V. INTERNET BRANDS, INC. SUMMARY** Communications Decency Act The panel withdrew the opinion filed on September 17, 2014, and in a superseding opinion reversed the district court’s Fed. R. Civ. P. 12(b)(6) dismissal, as barred by the Communications Decency Act, of an action against Internet Brands, Inc. alleging liability for negligence under California law based on a failure to warn; and remanded for further proceedings. Section 230(c) of the Communications Decency Act provides that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” Plaintiff Jane Doe sought to hold Internet Brands liable for failing to warn her about information it obtained from an outside source about how third parties targeted and lured victims through Internet Brand’s website modelmayhem.com, a networking website for people in the modeling industry. The panel held that the Communications Decency Act did not bar Jane Doe’s failure to warn claim under California law. The panel concluded that Jane Doe’s negligent failure to warn claim did not seek to hold Internet Brands liable as the “publisher or speaker of any information provided by another information content provider,” 47 U.S.C. § 230(c)(1), and therefore the Communications Decency Act did not bar the ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  DOE V. INTERNET BRANDS, INC. 3 claim. The panel expressed no opinion on the viability of the failure to warn allegations on the merits. COUNSEL Jeffrey Herman (argued) and Stuart S. Mermelstein, Herman Law, Boca Raton, Florida, for Plaintiff-Appellant. Daniel P. Collins (argued), Munger, Tolles & Olson LLP, Los Angeles, California; Jonathan H. Blavin, Munger, Tolles & Olson LLP, San Francisco, California; Wendy E. Giberti, iGeneral Counsel, P.C., Beverly Hills, California; Patrick Fraioli, Ervin Cohen & Jessup LLP, Beverly Hills, California, for Defendant-Appellee. Patrick J. Carome (argued), Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Felicia H. Ellsworth and Brook Hopkins, Wilmer Cutler Pickering Hale and Dorr, Boston, Massachusetts, for Amici Curiae The Computer and Communications Industry Association; The Internet Association; Care.com, Inc.; Craigslist, Inc.; Facebook, Inc.; IAC/Interactivecorp; and Tumblr, Inc. ORDER By order entered February 24, 2015, Defendant-Appellee Internet Brands Inc.’s Petition for Rehearing, filed October 31, 2014, was granted, the Petition for Rehearing En Banc was denied as moot, the opinion filed on September 17, 2014 was withdrawn, and the case scheduled for a new oral argument. 4 DOE V. INTERNET BRANDS, INC. An opinion is filed together with this order. Subsequent petitions for rehearing or rehearing en banc may be filed. OPINION CLIFTON, Circuit Judge: Model Mayhem is a networking website, found at modelmayhem.com, for people in the modeling industry. Plaintiff Jane Doe, an aspiring model who posted information about herself on the website, alleges that two rapists used the website to lure her to a fake audition, where they drugged her, raped her, and recorded her for a pornographic video. She also alleges that Defendant Internet Brands, the company that owns the website, knew about the rapists but did not warn her or the website’s other users. She filed an action against Internet Brands alleging liability for negligence under California law based on that failure to warn. The district court dismissed the action on the ground that her claim was barred by the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c) (2012). We conclude that the CDA does not bar the claim. We reverse and remand for further proceedings. I. Background At the motion to dismiss stage, we assume factual allegations stated in the Complaint filed by Plaintiff to be  DOE V. INTERNET BRANDS, INC. 5 true.1 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Plaintiff alleges that Internet Brands owns and operates the website modelmayhem.com, which it purchased in 2008. Model Mayhem is a networking site for professional and aspiring models to market their services. It has over 600,000 members. Plaintiff Jane Doe, a fictitious name, was an aspiring model who became a member of Model Mayhem. Unbeknownst to Jane Doe, two persons, Lavont Flanders and Emerson Callum, were using Model Mayhem to identify targets for a rape scheme, allegedly as early as 2006. Flanders and Callum are not alleged to have posted their own profiles on the website. Instead, they browsed profiles on Model Mayhem posted by models, contacted potential victims with fake identities posing as talent scouts, and lured the victims to south Florida for modeling auditions. Once a victim arrived, Flanders and Callum used a date rape drug to put her in a semi-catatonic state, raped her, and recorded the activity on videotape for sale and distribution as pornography. In 2008, Internet Brands purchased Model Mayhem from Donald and Taylor Waitts, the original developers of the site. Shortly after the purchase, Internet Brands learned of how Flanders and Callum were using the website. It is not alleged precisely how Internet Brands obtained that information, but it is alleged that the company “as early as August, 2010, knew that two individuals, Lavont Flanders and Emerson Callum, had been criminally charged in this scheme, and further knew from the criminal charges, the particular details 1 Given the serious nature of the allegations, we note that Internet Brands has specifically denied substantially all of the allegations, including that the assailants contacted Plaintiff through the website. 6 DOE V. INTERNET BRANDS, INC. of the scheme, including how MODELMAYHEM.COM had been used in the scheme and its members victimized.” Specifically, it is alleged that Internet Brands knew that: a. Lavont Flanders and Emerson Callum would contact female MODELMAYHEM.COM members, using fake identities, disguised as talent scouts. b. Lavont Flanders and Emerson Callum would lure female MODELMAYHEM.COM members to South Florida to participate in fake auditions for a fraudulent modeling contract opportunity. c. Lavont Flanders and Emerson C a l l u m woul d drug t he fem a l e MODELMAYHEM.COM members with a date-rape drug during the fake audition. d. Emerson Callum would then rape the unknowingly drugged women. e. Lavont Flanders and Emerson Callum would record the rape on video camera. f. Lavont Flanders and Emerson Callum would produce the rape videos and distribute the video on the internet, guised as consensual hardcore pornography. It is also alleged that Internet Brands sued the Waitts in August 2010 for failing to disclose the potential for civil suits arising from the activities of Flanders and Callum.  DOE V. INTERNET BRANDS, INC. 7 The reference to criminal charges suggests that the information was obtained by Internet Brands from an outside source, not from monitoring postings on the Model Mayhem website. As noted above, Flanders and Callum did not post on the website. In February 2011, several months after Internet Brands had learned about the criminal activity, Flanders, pretending to be a talent scout and using a false identity, contacted Jane Doe, in the words of the Complaint, “through” the Model Mayhem website.2 Jane Doe went to south Florida for a purported audition, where Flanders and Callum drugged, raped, and recorded her. Jane Doe filed this diversity action against Internet Brands in the Central District of California, where Internet Brands is based, asserting one count of negligent failure to warn under California law. She alleges that Internet Brands knew about the activities of Flanders and Callum but failed to warn Model Mayhem users that they were at risk of being victimized. She further alleges that this failure to warn caused her to be a victim of the rape scheme. Internet Brands filed a motion to dismiss the action under Federal Rule of Civil Procedure 12(b)(6), on the ground that her claim was barred by the CDA. The district court granted the motion to dismiss and dismissed the action with prejudice. It denied leave to amend the complaint on the 2 Internet Brands has contended that Jane Doe was contacted directly by her assailants, not through the website. At oral argument, counsel for Jane Doe may have agreed that the contact was outside the website. This distinction does not affect our conclusion. 8 DOE V. INTERNET BRANDS, INC. ground that any amendment would be futile. Jane Doe appeals. II. Discussion We review de novo a district court’s decision to grant a motion to dismiss. Edwards v. Marin Park, Inc., 356 F.3d 1058, 1061 (9th Cir. 2004). We also review de novo questions of statutory interpretation. United States v. Harvey, 659 F.3d 1272, 1274 (9th Cir. 2011). California law imposes a duty to warn a potential victim of third-party harm when a person has a “special relationship to either the person whose conduct needs to be controlled or . . . to the foreseeable victim of that conduct.” Tarasoff v. Regents of Univ. of California, 17 Cal.3d 425, 435 (1976), superseded by statute, Cal. Civ. Code § 43.92. Jane Doe alleges that Internet Brands had a cognizable “special relationship” with her and that its failure to warn her of Flanders and Callum’s rape scheme caused her to fall victim to it. Internet Brands argues that the CDA precludes the claim. Although we assume that Internet Brands may contest the scope of the duty to warn under California law and, in particular, the existence of the required special relationship, that issue is not before us. The dismissal of the action by the district court was based entirely on the CDA. The question before us, therefore, is whether the CDA bars Jane Doe’s negligent failure to warn claim under California law. We begin with the language of the statute. Campbell v. Allied Van Lines Inc., 410 F.3d 618, 620 (9th Cir. 2005).  DOE V. INTERNET BRANDS, INC. 9 Section 230(c) of the CDA, is titled “Protection for ‘Good Samaritan’ blocking and screening of offensive material.” It provides two types of protection from civil liability, but only the first type is relevant to this case: (1) Treatment of publisher or speaker No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. The preemptive effect of this subsection is express: “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” Section 230(e)(3). Separated into its elements, subsection (c)(1) precludes liability for “(1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider.” Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1100–01 (9th Cir. 2009) (footnote omitted). Thus, section 230(c)(1) precludes liability that treats a website as the publisher or speaker of information users provide on the website. In general, this section protects websites from liability for material posted on the website by someone else. The first element is satisfied in this case because Internet Brands is a provider of an interactive computer service as that 10 DOE V. INTERNET BRANDS, INC. term is defined in section 230(f)(2).3 The essential question, then, is whether Plaintiff’s failure to warn cause of action “inherently requires the court to treat” Internet Brands “as a publisher or speaker” “of information provided by another information content provider.” Barnes, 570 F.3d at 1100–02. Put differently, the case turns on whether it would be inconsistent with section 230(c)(1) for the State of California to require an interactive computer service provider to warn its users about the threat of a known sexual predator. A clear illustration of a cause of action that treats a website proprietor as a publisher is a defamation action founded on the hosting of defamatory third-party content. See, e.g., Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003). In such circumstances, the protections of section 230(c)(1) apply, and they continue to apply even if the website proprietor has not acted to remove offensive content posted by others. For example, this court has held that the CDA barred a negligent undertaking claim against a website that failed to remove an offensive profile posted on the website by the victim’s ex-boyfriend. Barnes, 570 F.3d at 1101–03. Such liability, the court explained, would “treat” the website as the “publisher” of user content because “removing content is something publishers do” and to permit liability for such conduct “necessarily involves treating the liable party as a publisher of the content it failed to remove.” Id. at 1103. 3 “The term ‘interactive computer service’ means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.” Section 230(f)(2).  DOE V. INTERNET BRANDS, INC. 11 Jane Doe’s claim is different, however. She does not seek to hold Internet Brands liable as a “publisher or speaker” of content someone posted on the Model Mayhem website, or for Internet Brands’ failure to remove content posted on the website. Jane Doe herself posted her profile, but she does not seek to hold Internet Brands liable for its content. Nor does she allege that Flanders and Callum posted anything to the website. The Complaint alleges only that “JANE DOE was contacted by Lavont Flanders through MODELMAYHEM.COM using a fake identity.” Jane Doe does not claim to have been lured by any posting that Internet Brands failed to remove. Internet Brands is also not alleged to have learned of the predators’ activity from any monitoring of postings on the website, nor is its failure to monitor postings at issue. Instead, Jane Doe attempts to hold Internet Brands liable for failing to warn her about information it obtained from an outside source about how third parties targeted and lured victims through Model Mayhem. The duty to warn allegedly imposed by California law would not require Internet Brands to remove any user content or otherwise affect how it publishes or monitors such content. Any alleged obligation to warn could have been satisfied without changes to the content posted by the website’s users and without conducting a detailed investigation. Internet Brands could have given a warning to Model Mayhem users, perhaps by posting a notice on the website or by informing users by email what it knew about the activities of Flanders and Callum. Posting or emailing such a warning could be deemed an act of publishing information, but section 230(c)(1) bars only liability that treats a website as a publisher or speaker of content provided by somebody else: 12 DOE V. INTERNET BRANDS, INC. in the words of the statute, “information provided by another information content provider.” 47 U.S.C. § 230(c)(1). A post or email warning that Internet Brands generated would involve only content that Internet Brands itself produced. Therefore, an alleged tort based on a duty that would require such a self-produced warning falls outside of section 230(c)(1). In sum, Jane Doe’s negligent failure to warn claim does not seek to hold Internet Brands liable as the “publisher or speaker of any information provided by another information content provider.” Id. As a result, we conclude that the CDA does not bar this claim. The core policy of section 230(c)(1) supports this conclusion. As the heading to section 230(c) indicates, the purpose of that section is to provide “[p]rotection for ‘Good Samaritan’ blocking and screening of offensive material.” That means a website should be able to act as a “Good Samaritan” to self-regulate offensive third party content without fear of liability. In particular, section 230 was in part a reaction to Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995) (unpublished), a New York state court decision holding that an internet service provider became a “publisher” of offensive content on its message boards because it deleted some offensive posts but not others. Id. at *4. Under Stratton Oakmont’s reasoning, a website had to choose between voluntarily removing some offensive third party content, which would expose the site to liability for the content it did not remove, or filtering nothing, which would prevent liability for all third party content. See id. “In passing section 230, Congress sought to spare interactive computer services this grim choice by allowing them to perform some editing on  DOE V. INTERNET BRANDS, INC. 13 user-generated content without thereby becoming liable for all defamatory or otherwise unlawful messages that they didn’t edit or delete.” Fair Housing Council v. Roommates.Com, LLC, 521 F.3d 1157, 1163 (9th Cir. 2008) (en banc) (hereafter Roommates.Com). Simply put, the immunity provision was “enacted to protect websites against the evil of liability for failure to remove offensive content.” Id. at 1174. Jane Doe’s failure to warn claim has nothing to do with Internet Brands’ efforts, or lack thereof, to edit, monitor, or remove user generated content. Plaintiff’s theory is that Internet Brands should be held liable, based on its knowledge of the rape scheme and its “special relationship” with users like Jane Doe, for failing to generate its own warning. Thus, liability would not discourage the core policy of section 230(c), “Good Samaritan” filtering of third party content. Another policy of section 230 is to “avoid the chilling effect upon Internet free speech that would be occasioned by the imposition of tort liability upon companies that do not create potentially harmful messages but are simply intermediaries for their delivery.” Delfino v. Agilent Techs., Inc., 52 Cal. Rptr. 3d 376, 387 (Ct. App. 2006). As section 230(b) itself explains, “[i]t is the policy of the United States . . . to promote the continued development of the Internet . . . [and] to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” Jane Doe’s cause of action does not seek to impose “intermediary” liability. Although Internet Brands may have been an “intermediary” between Jane Doe and the rapists in a broad sense, there is no allegation that Model Mayhem transmitted any potentially harmful messages between Jane 14 DOE V. INTERNET BRANDS, INC. Doe and Flanders or Callum. There is also no allegation that Flanders or Callum posted their own profiles on the website. That Internet Brands was in some sense an “intermediary” between Jane Doe and the rapists simply does not mean that the failure to warn claim treats Internet Brands as the publisher or speaker of user content. That Internet Brands was in some sense an “intermediary” between Jane Doe and the rapists simply does not mean that the failure to warn claim treats Internet Brands as the publisher or speaker of user content. It may be true that imposing any tort liability on Internet Brands for its role as an interactive computer service could be said to have a “chilling effect” on the internet, if only because such liability would make operating an internet business marginally more expensive. But such a broad policy argument does not persuade us that the CDA should bar the failure to warn claim. We have already held that the CDA does not declare “a general immunity from liability deriving from third-party content.” Barnes, 570 F.3d at 1100. “[T]he Communications Decency Act was not meant to create a lawless no-man’s-land on the Internet.” Roommates.Com, 521 F.3d at 1164. Congress has not provided an all purpose get- out-of-jail-free card for businesses that publish user content on the internet, though any claims might have a marginal chilling effect on internet publishing businesses. Moreover, the argument that our holding will have a chilling effect presupposes that Jane Doe has alleged a viable failure to warn claim under California law. That question is not before us and remains to be answered. Barring Jane Doe’s failure to warn claim would stretch the CDA beyond its narrow language and its purpose. To be sure, Internet Brands acted as the “publisher or speaker” of  DOE V. INTERNET BRANDS, INC. 15 user content by hosting Jane Doe’s user profile on the Model Mayhem website, and that action could be described as a “but-for” cause of her injuries. Without it, Flanders and Callum would not have identified her and been able to lure her to their trap. But that does not mean the failure to warn claim seeks to hold Internet Brands liable as the “publisher or speaker” of user content. Publishing activity is a but-for cause of just about everything Model Mayhem is involved in. It is an internet publishing business. Without publishing user content, it would not exist. As noted above, however, we held in Barnes that the CDA does not provide a general immunity against all claims derived from third-party content. In that case we affirmed the dismissal of a claim for negligent undertaking as barred under the CDA, as discussed above at 10, but we reversed the dismissal of a claim for promissory estoppel under Oregon law. The publication of the offensive profile posted by the plaintiff’s former boyfriend was a “but-for” cause there, as well, because without that posting the plaintiff would not have suffered any injury. But that did not mean that the CDA immunized the proprietor of the website from all potential liability. As we observed in Roommates.Com, “we must be careful not to exceed the scope of the immunity provided by Congress.” 521 F.3d at 1164 n.15. Congress could have written the statute more broadly, but it did not. The parties discuss other court decisions regarding the CDA in their briefs. The case law provides no close analogies, though, because the cases are all distinguishable in critical respects. For example, the purported tort duty does not arise from allegations about mishandling the removal of third party content. Barnes, 570 F.3d at 1105–06 (holding that the CDA bars negligent undertaking claim arising from 16 DOE V. INTERNET BRANDS, INC. Yahoo’s failure to take reasonable care in removing offensive profiles). Nor is there a contractual duty arising from a promise distinct from tort duty arising from publishing conduct. Id. at 1108–09 (holding that the CDA does not bar a promissory estoppel claim). The tort duty asserted here does not arise from an alleged failure to adequately regulate access to user content or to monitor internal communications that might send up red flags about sexual predators. Doe II v. MySpace, Inc., 175 Cal.App.4th 561, 573 (Ct. App. 2009) (holding that the CDA bars tort claims based on a duty to restrict access to minors’ MySpace profiles); Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008) (holding that CDA bars claims for negligence and gross negligence in not preventing a 13 year old girl from lying about her age to create a personal profile that led to contact by a sexual predator). Jane Doe alleges actual knowledge by Internet Brands from an outside source of information about criminal activity. This case does not concern an employer-employee relationship giving rise to a negligent supervision claim. Lansing v. Southwest Airlines Co., 980 N.E.2d 630, 639–41 (Ill. Ct. App. 2012) (holding that the CDA does not bar a negligent supervision claim against an airline whose employee used the company email and text messaging systems to harass the plaintiff). In short, this case presents the novel issue of whether the CDA bars Jane Doe’s failure to warn claim under California law. We conclude that it does not.  DOE V. INTERNET BRANDS, INC. 17 III. Conclusion The CDA does not bar Jane Doe’s failure to warn claim. We express no opinion on the viability of the failure to warn allegations on the merits. We hold only that the CDA is not a valid basis to dismiss Jane Doe’s complaint. Accordingly, we reverse and remand for proceedings consistent with this opinion. REVERSED AND REMANDED. 

No. 12834 I N THE SUPREME COURT OF THE STATE OF M N A A OTN 1975 JAMES DAVIS and LUCY DAVIS, p l a i n t i f f s and A p p e l l a n t s , -vs - CHARLES R. BAINThX, Defendant and Respondent. Appeal from: D i s t r i c t Court o f t h e S i x t h J u d i c i a l D i s t r i c t , Honorable Jack D. Shanstrom, Judge p r e s i d i n g . Counsel of Record: For Appellants : C o r e t t e , Smith and Dean, B u t t e , Montana Dolphy 0. Pohlman a r g u e d , B u t t e , Montana F o r Respondent: Berg, Angel, A n d r i o l o and Morgan, Bozeman, Montana C h a r l e s F. Ange 1 a r g u e d , Bozeman, Montana Anderson, Syrnmes, Forbes, P e e t e and Brown, B i l l i n g s , Montana Submitted: March 4 , 1975 Decided : MAY 2 8 191q .. 2 I :flfi.-{ > :- " Filed :  M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion o f t h e Court. This i s an a p p e a l from a judgment e n t e r e d i n t h e d i s t r i c t c o u r t , Sweet Grass County, on a j u r y v e r d i c t , a g a i n s t p l a i n t i f f s James and Lucy Davis and i n f a v o r of defendant Charles R. B a i n t e r . P l a i n t i f f s a l s o appeal from an o r d e r of t h e d i s t r i c t c o u r t denying t h e i r motion f o r a new t r i a l . The a c t i o n a r o s e o u t of an automobile a c c i d e n t i n v o l v i n g ~ a i n t e r ' sc a t t l e t r u c k , and an automobile owned by M r . and Mrs. Vernie Hathaway, i n which Lucy Davis was a passenger. A s a result of t h e a c c i d e n t , Hathaways were k i l l e d i n s t a n t l y and Lucy Davis received severe i n j u r i e s . The automobile i t s e l f was t o t a l e d . The B a i n t e r t r u c k i n c u r r e d l i t t l e damage. B a i n t e r r e c e i v e d no i n j u r i e s , b u t was h o s p i t a l i z e d a f t e r t h e a c c i d e n t f o r shock. P l a i n t i f f s Davis b r i n g t h i s a p p e a l on t h e i s s u e of whether a t h e j u r y r e n d e r e d l v e r d i c t which was c o n t r a r y t o t h e g r e a t weight o f t h e evidence. The a c c i d e n t occurred June 29, 1973, a t t h e Springdale t u r n o f f , l o c a t e d between Big Timber and Livingston on U. S. Highway 10. The following diagram i n d i c a t e s t h e r e l a t i v e p o s i t i o n s o f t h e p a r t i e s and w i t n e s s e s s h o r t l y b e f o r e t h e a c c i d e n t : N RH OT W Livingston ( Big Tm e,+ i b r-  Lucy Davis was a passenger i n a s t a t i o n wagon d r i v e n by M r . Hathaway (H) proceeding west toward Livingston. B a i n t e r (B) was d r i v i n g a s t o c k t r u c k e a s t toward Big Timber when he n o t i c e d t h e c a r i n f r o n t of him, driven by Ronning (R) was s i g n a l i n g f o r a l e f t t u r n onto t h e Springdale road. P l a i n t i f f s o r i g i n a l l y named Ronning a s a codefendant, b u t upon h i s motion t h e d i s t r i c t c o u r t d i s - missed Ronning a s a p a r t y defendant. The e v e n t s which t e n occurred a r e i n d i s p u t e , b u t t h e c o l l i s i o n d i d occur between ~ a i n t e r ' st r u c k and t h e Hathaway c a r . The l e f t f r o n t of t h e Hathaway c a r c o l l i d e d w i t h t h e l e f t r e a r of t h e B a i n t e r t r u c k and t h e t o p of t h e c a r was completely sheared o f f . Highway Patrolman Clarence Owen i n v e s t i g a t e d t h e a c c i d e n t and took s t a t e m e n t s from t h e w i t n e s s e s i n c l u d i n g B a i n t e r ; Ronning; John Esp, a passenger i n ~ o n n i n g ' sv e h i c l e ; and Lyle Ehlke (E), who was following t h e B a i n t e r t r u c k a t t h e time of t h e a c c i d e n t , p l a i n t i f f s ' t h e o r y evolves from t h e testimony of Lloyd Ronning and John Esp. The day t h e a c c i d e n t took p l a c e i t had been raining. A t t h e time of t h e a c c i d e n t i t was only m i s t i n g , b u t t h e r e was s t a n d i n g water on t h e road. Ronning t e s t i f i e d t h a t a s he was slowing t o make t h e l e f t t u r n i n t o Springdale, he saw t h e B a i n t e r t r u c k c l o s i n g i n on him; t h a t t h e t r u c k was zigzagging; and, t h a t h e was a f r a i d t h a t an a c c i d e n t might occur because t h e B a i n t e r t r u c k seemed t o be o u t of c o n t r o l . To prevent an a c c i d e n t , Ronning turned r i g h t onto a t u r n o f f . He d i d n o t s e e t h e a c c i d e n t occur between t h e Hathaway c a r and ~ a i n t e r ' st r u c k . John Esp, t h e passenger i n ~ o n n i n g ' sc a r , s a i d he t u r n e d around t o look o u t t h e back window when Ronning t o l d him t h e r e might be an a c c i d e n t . Esp t e s t i f i e d t h a t he t o o saw ~ a i n t e r ' s t r u c k zigzagging down t h e r o a d , a s i t was approaching them. However, he a l s o f a i l e d t o s e e t h e a c t u a l a c c i d e n t t a k e p l a c e between B a i n t e r and Ha thaway . From t h e above testimony, p l a i n t i f f s maintain t h e a c c i d e n t occurred when t h e B a i n t e r t r u c k , because i t was o u t of c o n t r o l , c r o s s e d i n t o t h e west l a n e , c a u s i n g t h e Hathaway c a r t o s t r i k e i t . There was no testimony e l i c i t e d from any w i t n e s s which c o n c l u s i v e l y put t h e B a i n t e r t r u c k i n t h e westbound l a n e of t r a f f i c . The c l o s e s t testimony was a l e a d i n g q u e s t i o n asked by p l a i n t i f f s ' a t t o r n e y t o John Esp: 11 Q. He [ B a i n t e r ] turned t o t h e r i g h t , b u t t h e back end went t o t h e l e f t a s he e i t h e r turned o r skidded, i s n ' t t h a t c o r r e c t ? A . Yes. I I The i n v e s t i g a t i n g highway patrolman t e s t i f i e d t h a t because of t h e l o c a t i o n of t h e d e b r i s a f t e r t h e a c c i d e n t , he had no doubt t h a t t h e a c c i d e n t occurred i n t h e westbound l a n e . ~ e f e n d a n t ' st h e o r y , obviously t h e t h e o r y b e l i e v e d by t h e j u r y , comes p r i m a r i l y from t h e testimony of Lyle Ehlke who was following t h e B a i n t e r t r u c k a t t h e time of t h e a c c i d e n t . Ehlke and h i s w i f e a t t h e time of t h e a c c i d e n t were e n r o u t e t o Minnesota from Washington. They knew no one involved i n t h e accident. Ehlke t o l d t h e highway patrolman t h a t a w h i t e s t a t i o n wagon had passed him j u s t p r i o r t o t h e a c c i d e n t , proceeded down t h e road and s t r u c k t h e s i d e of t h e Hathaway v e h i c l e , c a u s i n g i t t o v e e r and s t r i k e ~ a i n t e r ' st r u c k . Ehlke and t h e highway patrolman i n v e s t i g a t e d t h e l e f t s i d e of t h e Hathaway c a r a f t e r t h e a c c i d e n t and found o n l y a small s c r a t c h on t h e l e f t s i d e , which was n o t a new mark. A t t r i a l , Ehlke t e s t i f i e d t o t h e e f f e c t t h a t t h e w h i t e s t a t i o n wagon passed on t h e l e f t s i d e of t h e Hathaway c a r and s t r u c k t h e l e f t s i d e of t h e Hathaway v e h i c l e , c a u s i n g i t t o v e e r and c o l l i d e w i t h t h e r e a r end of t h e B a i n t e r c a t t l e truck. There i s some c o n f l i c t a s t o which s i d e of t h e Hathaway v e h i c l e Ehlke t o l d t h e i n v e s t i g a t i n g highway patrolman t h a t t h e w h i t e s t a t i o n wagon s t r u c k . The highway patrolman claims i t was the right side. Ehlke maintains i t was t h e l e f t s i d e , even though t h e y i n v e s t i g a t e d b o t h s i d e s of t h e Hathaway v e h i c l e . P l a i n t i f f s contend Ehlke ' s testimony i s h i g h l y improbable, i n c r e d i b l e , and i n h e r e n t l y impossible and c l a i m t h a t t h i s Court ought t o d i s r e g a r d i t i n i t s c o n s i d e r a t i o n , c i t i n g a s a u t h o r i t y Casey v. Northern P a c i f i c Ry. Co., 60 Mont. 56, 68, 198 P. 141, and , q u o t e :  II The r u l e h a s been s t a t e d r e p e a t e d l y i n t h i s j u r i s d i c t i o n t h a t a c o u r t may r e j e c t t h e most p o s i t i v e testimony, though t h e w i t n e s s be n o t d i s c r e d i t e d by d i r e c t evidence impeaching him o r c o n t r a d i c t i n g h i s s t a t e m e n t s . The i n h e r e n t i m p r o b a b i l i t y o f h i s s t o r y may deny i t a l l claims t o r e s p e c t . " (Emphasis added. ) P l a i n t i f f s p o i n t out t h a t t h e two s t o r i e s r e l a t e d by Ehlke a r e c o n t r a d i c t o r y and n o t worthy of b e l i e f f o r i t i s s o obviously c o n t r a r y t o t h e testimony o f t h e o t h e r w i t n e s s e s . This Court cannot a g r e e . W find there i s sufficient e evidence t o support t h e v e r d i c t . P l a i n t i f f s p o i n t out t h a t Mrs. Ehlke, a s a passenger i n t h e Ehlke v e h i c l e , saw t h e a c c i d e n t between t h e Hathaway c a r and the Bainter truck. They c l a i m t h a t s h e d i d n o t s e e a second w h i t e s t a t i o n wagon. With good v i s i b i l i t y t o t h e l e f t and f r o n t , Ronning d i d n o t s e e a second w h i t e s t a t i o n wagon. Esp, who was looking n o r t h t o t h e f r o n t and r e a r of t h e Ronning c a r , d i d n o t s e e a second w h i t e s t a t i o n wagon. B a i n t e r t e s t i f i e d t h a t he d i d n o t s e e a w h i t e s t a t i o n wagon come from t h e r e a r , pass ~ h l k e ' spickup, t r a v e l down t h e c e n t e r l i n e of t h e highway and pass between t h e Kathaway c a r and h i s c a t t l e t r u c k . P l a i n t i f f s maintain t h a t had t h e w h i t e s t a t i o n wagon done what Ehlke claimed i t d i d , s u r e l y t h e s e people would have seen i t also. However, t h e r e i s testimony which t e n d s t o e x p l a i n why no one e l s e saw t h e a c c i d e n t , and which c o r r o b o r a t e s ~ h l k e ' ss t o r y . ~ o n n i n g ' s testimony under cross-examination concerning t h e a c c i d e n t and t h e w h i t e s t a t i o n wagon was: "Q. But you d o n ' t know on which s i d e of t h e road i t [ ~ a i n t e r ' st r u c k ] was on? A . That i s t h e q u e s t i o n t h a t i s hard f o r m t o answer. e "Q. You saw t h e B a i n t e r t r u c k t u r n i n g toward t h e r i g h t toward t h e d i t c h ? A.. He was zigzagging, and then he come around l i k e t h a t . "Q. And headed toward t h e d i t c h t h e n ? A . When he come around l i k e t h a t I heard t h e c r a s h . That i s when t h e a c c i d e n t happened.  "Q. Again, you d o n ' t know where t h e impact was i n r e l a t i o n t o t h e westbound l a n e ? A . I wish I could s a y where i t was, b u t I mean, i t was behind me. And I was busy t r y i n g t o g e t m c a r - - - t o keep from t i p p i n g y t h i s c a r over I was d r i v i n g . I d o n ' t want t o be wrong w i t h anybody. "Q. Regarding t h e w h i t e s t a t i o n wagon t h a t M r . Pohlman was q u e s t i o n i n g you a b o u t , you c a n ' t say t h a t t h e w h i t e s t a t i o n wagon d i d n ' t pass t h a t a r e a ? A. No, I c a n ' t . I t could have. I have thought of i t f o r s i x months." M r . ~ o n n i n g ' sconcern over being involved i n an a c c i d e n t , and being i n t h e process of t u r n i n g , e x p l a i n s why he might have f a i l e d t o s e e any w h i t e s t a t i o n wagon. John Esp, t h e passenger i n t h e Ronning c a r , t e s t i f i e d t h a t he t o o f a i l e d t o s e e a w h i t e s t a t i o n wagon l e a v i n g t h e scene of t h e a c c i d e n t , b u t a l s o t e s t i f i e d t h a t h i s a t t e n t i o n was d i r e c t e d t o t h e r e a r when t h e a c c i d e n t occurred, and he d i d n o t s e e t h e a c c i d e n t a c t u a l l y occur. B a i n t e r t e s t i f i e d he d i d n o t s e e t h e white s t a t i o n wagon u n t i l he g o t out o f h i s t r u c k a f t e r t h e a c c i d e n t , and saw a w h i t e s t a t i o n wagon proceeding down t h e road. He also testified that because he was t u r n i n g h i s t r u c k toward t h e d i t c h when t h e a c c i - d e n t happened t h a t he would have been unable t o s e e t h e w h i t e s t a t i o n wagon. Mrs. Ehlke, who was r i d i n g i n t h e pickup w i t h h e r husband, s a i d she d i d n o t s e e t h e w h i t e s t a t i o n wagon, b u t d i d t e s t i f y t h a t j u s t p r i o r t o t h e a c c i d e n t she d i d h e a r something. O direct n examination by d e f e n d a n t ' s a t t o r n e y Mrs. Ehlke t e s t i f i e d : "Q. J u s t p r i o r t o t h e impact d i d you s e e o r h e a r anything e l s e o t h e r than -- A,. Yes. Something went r i g h t by t h e t r u c k . And I s a i d t o m husband, I s a i d , y what was t h a t . "Q. When you s a y went by t h e t r u c k , you mean your t r u c k ? A. Yes. Went r i g h t by. ' Q Was t h i s a sound t h a t you heard? A. Yes. "Q. Was t h e sound going from back t o f r o n t o r f r o n t t o back? A . It was coming from t h e back t o t h e f r o n t . "Q. H w long a f t e r you heard t h a t sound d i d you s e e o t h i s impact? A . Right a f t e r . "Q. Did you e v e r a c t u a l l y s e e a n y t h i n g pass you, your- s e l f ? A . No. ' 1 Again no d i r e c t testimony concerning t h e w h i t e s t a t i o n wagon, b u t testimony which l e n d s c r e d i b i l i t y t o M r . ~ h l k e ' ss t o r y . More s u p p o r t i n g testimony comes from Doug Solberg, a s t u d e n t from Montana S t a t e U n i v e r s i t y , who was d r i v i n g w e l l behind t h e people involved i n t h e a c c i d e n t , a t t h e time i t occurred. His testimony e s t a b l i s h e s t h e r e was a n o t h e r w h i t e s t a t i o n wagon. Solberg t e s t i f i e d t h e w h i t e s t a t i o n wagon followed him f o r a l e n g t h of time and then passed him. There i s c o n f l i c t i n g t e s t i - mony between Ehlke and Solberg a s t o t h e number of passengers i n t h e w h i t e s t a t i o n wagon. The i n v e s t i g a t i n g highway patrolman, Clarence Owen, t e s t i f i e d he had no doubt t h a t t h e a c c i d e n t occurred i n t h e west- bound l a n e of t r a f f i c , and t h a t t h e B a i n t e r t r u c k swerved i n t o t h a t l a n e causing t h e a c c i d e n t . This he a s c e r t a i n e d from l o c a t i o n of t h e d e b r i s of t h e wreck s c a t t e r e d on t h e highway. However, t h e r e was testimony e l i c i t e d from O f f i c e r Owen showing t h a t he f a i l e d t o q u e s t i o n anyone a s t o t h e removal o f d e b r i s from t h e eastbound l a n e of t r a f f i c b e f o r e h i s a r r i v a l a t t h e scene of t h e a c c i d e n t around 7:30 p.m., approximately 20-25 minutes a f t e r t h e a c c i d e n t occurred. O f f i c e r Owen a l s o t e s t i f i e d t h a t he r a d i o e d t o Big Timber f o r law enforcement o f f i c i a l s t o be on t h e lookout f o r t h e d e s c r i b e d w h i t e s t a t i o n wagon, w i t h n e g a t i v e r e s u l t s . But, t h e r a d i o c a l l was n o t t r a n s m i t t e d u n t i l some 40 minutes a f t e r t h e a c c i d e n t occurred. O f f i c e r Owen t e s t i f i e d he doubted t h a t t h r e e c a r s could pass simultaneously on t h e highway, although he admitted he had f a i l e d t o measure t h e width of t h e highway and r e c o r d i t . Another w i t n e s s , D r . Drumheller, a physics p r o f e s s o r from Montana S t a t e U n i v e r s i t y , t e s t i f i e d t h a t he had measured t h e width of t h e road and found i t t o b e 32 f e e t , t h e o r e t i c a l l y wide enough f o r t h e t h r e e c a r s i n q u e s t i o n t o have passed simultaneously. D r . Drum- h e l l e r f u r t h e r t e s t i f i e d t h a t i t was conceivable t h e a c c i d e n t could have occurred between t h e Hathaway c a r and t h e B a i n t e r t r u c k a t a minimum a n g l e of 22 d e g r e e s , b u t t h e d o c t o r could n o t s a y f o r s u r e on which s i d e of t h e highway t h e a c c i d e n t occurred. Dr. Drumheller a l s o t e s t i f i e d t h e Hathaway c a r , a f t e r t h e impact, could have been thrown sideways, which would e x p l a i n why it was l o c a t e d i n t h e westbound l a n e heading s t r a i g h t down t h e road. A thorough review of t h e r e c o r d r e v e a l s t h e r e was c r e d i b l e evidence s u p p o r t i n g both t h e o r i e s of how t h e a c c i d e n t occurred. T h e r e f o r e , t h e j u r y d i d n o t r e n d e r a v e r d i c t which was c o n t r a r y t o t h e g r e a t weight of t h e evidence. But, t o t h e con- t r a r y , t h e v e r d i c t i s supported by s u b s t a n t i a l c r e d i b l e evidence. A s t o whether t h e d i s t r i c t c o u r t e r r e d i n denying p l a i n - t i f f s ' motion f o r a new t r i a l , t h i s Court has h e l d t h a t t h e t r i a l c o u r t has broad d i s c r e t i o n t o g r a n t o r r e f u s e t o g r a n t a new t r i a l and w i l l n o t b e r e v e r s e d on a p p e a l except f o r a manifest abuse of t h a t d i s c r e t i o n . Johnson v. Whitcomb, 149 Mont. 23, 422 P.2d 642; Tigh v. College Park R e a l t y Co., 149 Mont. 358, 427 P. 2d 57. Where t h e r e i s s u b s t a n t i a l c r e d i b l e evidence t o support t h e v e r d i c t i t i s n o t e r r o r f o r t h e d i s t r i c t c o u r t t o deny a motion f o r a new t r i a l . Davis v. Smith, 152 Mont, 170, 448 P.2d 133; Kincheloe v. Rygg, 152 Mont. 187, 448 P.2d 140; Heen v. Tiddy, 151 Mont. 265, 442 P.2d 434. T h i s Court having found s u b s t a n t i a l c r e d i b l e evidence t o s u p p o r t t h e j u r y v e r d i c t f i n d s no abuse of d i s c r e t i o n o r e r r o r on t h e p a r t of t h e d i s t r i c t c o u r t i n denying t h e motion f o r a new t r i a l . The judgment of t h e d i s t r i c t cou affirmed. 4 --------- W Concur: e Chief J u s t i c e Mr. Justice John Conway Harrison dissenting: I dissent. 

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-20-00181-CV In re D’joulou K. Caldwell ORIGINAL PROCEDING FROM TRAVIS COUNTY MEMORANDUM OPINION D’joulou K. Caldwell, acting pro se, filed a “notice of appeal” in this Court challenging an administrative determination by the Texas Department of Public Safety (DPS) that he must register as a sex offender under the Texas Sex Offender Registration Act in Chapter 62 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. arts. 62.001-62.408; see also id. art. 62.003(a) (noting that “[f]or the purposes of this chapter, the department is responsible for determining whether an offense under the laws of another state, federal law, the laws of a foreign country, or the Uniform Code of Military Justice contains elements that are substantially similar to the elements of an offense under the laws of this state”). Additionally, it appears that Caldwell has filed a challenge to that administrative determination in Travis County district court that remains pending. See id. art. 62.003(c) (“An appeal of a determination made under this article shall be brought in a district court in Travis County.”); Crabtree v. State, 389 S.W.3d 820, 827 & n.24 (Tex. Crim. App. 2012) (“Those who wish to contest DPS’s determination that they must register under Chapter 62 may do so in Travis County district court.”); Texas Dep’t of Pub. Safety v. Anonymous Adult Tex., 382 S.W.3d 531, 533 (Tex. App.—Austin 2012, no pet.) (noting same). The record does not contain a final judgment or an otherwise appealable order in the underlying case. Without a final judgment or an otherwise appealable order, we may not exercise appellate jurisdiction. See Tex. Civ. Prac. & Rem. Code § 51.014; Lehmann v. Har Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). On March 12, 2020, the Clerk of this Court sent a letter requesting that Caldwell file a written response demonstrating this Court’s jurisdiction over his appeal and notifying him that failure to respond subjected his appeal to dismissal. Caldwell filed an affidavit and brief in response, stating that he is “seeking declaratory/injunctive/remedial relief” to reverse DPS’s decision compelling him to register as a sex offender under section 62.001. Based on the substance of Caldwell’s requested relief, we construe his filings as a petition for writ of injunction. See Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999) (stating that courts look to substance of party’s pleading rather than its caption or form to determine its nature); see also Tex. Gov’t Code § 22.221 (addressing appellate courts’ writ power); Tex. R. App. P. 52.1 (addressing original appellate proceedings seeking extraordinary relief including writs of injunction). However, this Court has limited injunctive powers. We have “no original jurisdiction to grant writs of injunction, except to prevent the invasion of [our] jurisdiction over the subject-matter of a pending appeal, or to prevent an unlawful interference with the enforcement of [our] judgments and decrees.” In re Mem’l Park Med. Ctr., Inc., No. 03-18- 00749-CV, 2018 Tex. App. LEXIS 10237, at *1-2 (Tex. App.—Austin Dec. 13, 2018, orig. proceeding) (citing Madison v. Martinez, 42 S.W.2d 84, 86 (Tex. Civ. App.—Dallas 1931, writ ref’d)); see also Tex. Gov’t Code § 22.221 (“Each court of appeals or a justice of a court of 2 appeals may issue a writ of mandamus and all other writs necessary to enforce the jurisdiction of the court.”). As we have noted, Caldwell does not have any final order or judgment for an appeal to this Court, and he does not seek to prevent another party’s interference with a previous judgment from this Court. Accordingly, we lack jurisdiction to issue a writ of injunction. See Tex. Gov’t Code § 22.221; In re Mem’l Park Med. Ctr., 2018 Tex. App. LEXIS 10237, at *1-2. We dismiss Caldwell’s petition for want of jurisdiction. 1 __________________________________________ Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Baker and Triana Dismissed for Want of Jurisdiction Filed: April 7, 2020 1 Caldwell also filed a motion for temporary relief, see Tex. R. App. P. 52.10, which we dismiss as moot. 3 

COURT OF APPEALS OF VIRGINIA Present: Judges Baker, Bray and Overton Argued at Norfolk, Virginia CHESAPEAKE GENERAL HOSPITAL and HEALTHCARE PROVIDERS GROUP SELF-INSURANCE ASSOCIATION MEMORANDUM OPINION * BY JUDGE JOSEPH E. BAKER v. Record No. 1913-96-1 MARCH 4, 1997 CYNTHIA L. HANDLOVITCH FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION George J. Dancigers (Heilig, McKenry, Fraim & Lollar, P.C., on brief), for appellants. Karen M. Rye (Melody L. Cockrell, on brief), for appellee. Chesapeake General Hospital and Healthcare Providers Group Self-Insurance Association (hereafter collectively referred to as employer) appeal the decision of the Workers' Compensation Commission (commission) reversing the deputy commissioner's ruling and ordering production of a deceased non-party's medical records pursuant to a protective order. As the parties are thoroughly familiar with the record, we need not reference the facts or procedures upon which this appeal is predicated. This Court only has jurisdiction to review an interlocutory decree or order (i) granting, dissolving, or denying an injunction or (ii) adjudicating the principles of a cause. Code § 17-116.05(4). We hold that the commission's order compelling * Pursuant to Code § 17-116.010 this opinion is not designated for publication. disclosure of Jane Doe's medical records does not fall within this Court's jurisdiction to review interlocutory orders as proscribed by Code § 17-116.05(4). Consequently, at this stage of the proceeding, we are not authorized to review the issue presented by this appeal. For the foregoing reasons, this case is remanded to the commission for such further action as the status of the matter may require, without prejudice and with leave granted to the parties, if they be so advised, to appeal the final decision of the commission. Remanded. - 2 - 

644 F.2d 876 Blackburnv.Anderson 79-6684 UNITED STATES COURT OF APPEALS Fourth Circuit 3/5/81 1 M.D.N.C. AFFIRMED

565 F.Supp.2d 905 (2008) PARENTS LEAGUE FOR EFFECTIVE AUTISM SERVICES, et al., Plaintiffs v. Helen JONES-KELLEY, et al., Defendants. No. 2:08-CV-421. United States District Court, S.D. Ohio, Eastern Division. June 30, 2008. *907 Michelle Francine Atkinson, Susan Gail Tobin, Ohio Legal Rights Service, Columbus, OH, for Plaintiffs. Ara Mekhjian, Jennifer Anne Adair, Ohio Attorney General's Office, Roger Francis Carroll, Ohio Attorney General, Columbus, OH, for Defendants. Memorandum Opinion and Order JAMES L. GRAHAM, District Judge. This matter comes before the Court on Plaintiffs' Motion for a Temporary Restraining Order (Doc. 3) filed on May 2, 2008, contemporaneously with a complaint for injunctive and declaratory relief. (Doc. 2)[1]. The Court held a hearing on Plaintiffs motion on June 27, 2008. On June 30, 2008, the Court denied the joint motion to dismiss filed by Defendants Helen Jones-Kelley and Sandra Stephenson (State Defendants). Because the Plaintiffs have established a likelihood of success on the underlying allegation that Ohio's proposed administrative rules violate federal Medicaid law, the Court grants Plaintiffs' motion. I. Factual Findings Plaintiffs are Parents League for Effective Autism Services (PLEAS), X.C., a minor and his parent, W.G., a minor and his parent, and K.W., a minor and his parent. Plaintiff PLEAS is an association of parents and families and children, including the three individual plaintiffs, who are children under the age of twenty-one with a diagnosis on the autism spectrum. Plaintiff children represented by PLEAS, as well as the three individual children, receive allegedly medically necessary services, funded by Medicaid, from Step By Step Academy (SBSA). SBSA is a nationally accredited and state certified community mental health agency that provides mental health services to children with autism. Autism is a "complex neurodevelopmental disability that generally appears during the first three years of life which impacts the normal development of the brain, resulting in impairments of social interaction, verbal and non-verbal communication, leisure and play activities, and learning." (Complaint at ¶ 53). It is a diagnosis found in the Diagnostic and Statistical Manual of Mental Disorders, 4th Ed., 1994 (DSM IV). See, Declaration of James A. Mulick, Ph.D at ¶ 17. In recent years, research has demonstrated that by *908 providing a child with autism appropriate services and supports, significant gains in most life areas can be achieved and some children can go on to live and work independently as adults. See Id. at ¶ 11. For an autistic child, "the best treatment plan will include ABA [applied behavioral analysis], the only treatment approach confirmed as effective by a comprehensive evaluation of all proposed therapies in a well known government sponsored review process." Id. at ¶ 20; see also, Id. at ¶ 21 (ABA therapy is "a highly effective form of behavioral treatment in virtually all cases"). ABA therapy uses a one-on-one teaching approach that relies on reinforced practice of various skills, with the goal of getting the child as close to typical developmental functioning as possible. Id. at ¶ 21. Research has also shown ABA therapy for autistic children is most effective when it is provided 30-40 hours per week in an intensive one-on-one setting. Declaration of Beth Ann Rosner, Ph.D, at ¶ 3. ABA programs are usually conducted under the supervision of a behavioral psychologist. Mulick Decl. at ¶ 25. Intensive behavioral interventions for autistic children "represent the treatment modality that provides the maximum reduction of physical and mental disability to achieve their best possible functional level." Id. at ¶ 35. Plaintiff children have been receiving ABA therapy, along with other services, at SBSA. SBSA provides a full-day year round treatment program that offers services to children in one-on-one and small group settings. See, Rosner Decl. at ¶ 3. Treatment offered at SBSA includes the development of language, self-help, socialization, gross and fine motor skills, cognition, and early learning skills. Id. Treatment also focuses on decreasing the severity and frequency of behavior problems that interfere with learning and social adoption in autistic children. Id. Children are generally referred to SBSA by licensed health care providers or are evaluated at SBSA by a licensed psychologist. For instance, children evaluated at Nationwide Children's Hospital Developmental Evaluation Program are often referred to SBSA because "SBSA can offer center based behavioral intervention and because they offer a high quality of service." Mulick Decl. at ¶ 34. Plaintiffs have also provided evidence indicating that plaintiff children have benefitted from the services received at SBSA. Individual Plaintiff, X.C., is a six year old boy diagnosed with autism disorder and attention deficit hyperactivity disorder (ADHD). See, Declaration of A.C. at ¶ 2. X.C. began receiving services at SBSA in January of 2007. Upon enrolling in SBSA, X.C. was in constant motion, any change in routine led to tantrums (crying yelling, screaming and banging his head), he could not be taken out in public due to his unruly behavior, he was withdrawn and did not acknowledge others when spoken to, he ate a very limited diet, and he ate non-food items whenever he could. See, Rosner Decl. at ¶ 16. Due to his behavioral issues, X.C. receives one-to-one sessions in a room separate from other children. A.C. Decl. at ¶ 15. Since attending SBSA, X.C.'s diet has improved, he is able to communicate by tapping his mother's shoulder for attention and using "I want," "I have," and "I am' not" sentences. A.C. Decl. at ¶¶ 15, 16. X.C has tried placements with other providers with no success. Id. at ¶ 19. PLEAS member, J.L. is autistic and has attended SBSA since April of 2006. (Plaintiffs Ex. 9). When he started SBSA, J.L. was non-verbal, had little receptive or expressive language, and severely delayed gross motor skills. Id. In addition, J.L. was exhibiting rumination (the regurgitation of previously swallowed food and liquid) at a rate of as much as 600 *909 times per day. After starting services at SBSA, J.L.'s communication skills have increased (although they remain at the one year old level), he now responds to his name, listens to instructions and smiles when smiled at. Id. The most notable improvement has been the reduction in rumination. J.L. now typically ruminates less than five times per day. Id. Other plaintiff children have experienced similar improvement. Defendant Helen Jones-Kelley is the Director of ODJFS, which is the agency responsible for the administration of the Medicaid program in Ohio. As Director, Jones-Kelley is responsible for ensuring that Ohio's Medicaid program complies with federal Medicaid statutes and regulations. Jones-Kelley is also responsible for ensuring that other state and county agencies and subdivisions which provide services funded by Medicaid comply with applicable federal laws. Defendant Sandra Stephenson is the Director of ODMH. As Director, Stephenson is responsible for adopting standards for services provided by community mental health facilities. ODJFS and ODMH are parties to an interagency agreement to provide behavioral health services to people who are eligible for Ohio Medicaid benefits. Defendant Kerry Weems, is the Acting Administrator of the Federal Centers for Medicare and Medicaid Services (CMS).[2] In October of 2005, CMS sent a letter to Barbara Riley, then-Director of ODJFS, concerning Ohio's proposed Medicaid State plan amendments. See, Defendant's Ex. M. The letter indicated that "habilitation services" are not included in the definition of "medical assistance" and therefore, the proposed plan to cover such services under the "rehabilitative" services category could not be approved. The letter does not define "habilitation services." In August of 2007, CMS filed a proposed rule that would limit the services covered under the "rehabilitative" services category. Congress has placed a moratorium on these and other proposed restrictions on Medicaid Law. Not long after CMS proposed rules that would curtail coverage of services under Medicaid, ODJFS proposed its own new Administrative Rules. The proposed rules change the definition of "rehabilitative services" and effectively limit the services that can be provided under Medicaid. At present, Ohio's state plan covers certain community mental health services, so long as those services are "rendered by eligible medicaid providers." Ohio Admin. Code 5101:3-27-02(A). Under this section, mental health services include community psychiatric supportive treatment (CPST) services. See, Ohio Admin. Code 5101:3-27-02(A)(6). The new version of 5101:3-27-02, effective July 1, 2008, is amended to clarify that only "rehabilitative" mental health services will be reimbursed by Medicaid. See, Ohio Admin. Code 5101:3-27-02(A), eff. 7/1/08. "Rehabilitative services" are defined in the amended version as providing for the "maximum reduction of mental illness and are intended to restore an individual to the best possible functional level." Id. CSPT services will continue to be covered by Medicaid subject to certain limitations. Ohio Admin Code 5101:3-27-02(A)(6), eff. 7/1/08. The changes to the rule reflect a much more narrow definition of "rehabilitative" than that found in the Federal Medicaid Act, which defines "rehabilitative" as "any medical or remedial services recommended by a physician or other licensed practitioner of the healing *910 arts, within the scope of his practice under State law, for maximum reduction of physical or mental disability and restoration of a recipient to his best possible functional level." See 42 C.F.R. § 440.130(d). The federal regulations do not require that the rehabilitative services reduce "mental illness." The second proposed change is to Ohio Admin. Code 5122-29-17, which governs CSPT services. The current version, in effect until July 1, 2008, provides that CSPT services are "an array of services delivered by community based, mobile individuals or multidisciplinary teams of professionals and trained others [that] address the individualized mental health needs of the client." Ohio Admin. Code 5122-29-17(A). Under the version currently in effect, CPST services "should be focused on the individual's ability to succeed in the community; to identify and access needed services; and to show improvement in school, work and family and integration and contributions within the community." Id. The amended version of Ohio Admin Code 5122-29-17, eff. 7/1/08, specifies that CSPT service is a "rehabilitative service intended to maximize the reduction of symptoms of mental illness in order to restore the individual's functioning to the highest level possible." The new rule restricts coverage of rehabilitative services to individuals with "mental illness," thereby effectively excluding other physical and mental disabilities from coverage. These proposed new administrative rules were apparently in response to Ohio's concern that it was going to lose federal funding for services it was currently providing. Ohio's concern was confirmed in a letter dated March 21, 2008 from CMS. In this letter, CMS informs ODJFS Director Jones-Kelley that CMS "generally views treatment for autism as habilitative rather than rehabilitative-as such, the CPST claims by Step by Step may not comply with Ohio's State Plan." See, Def. Ex. G. Notably, the March 21, 2008 letter uses the definition of CPST as set forth in the amended version of the Ohio Administrative Code. It is clear to the Court that the State Defendants' decision to change the Administrative Rules was in an effort to avoid having to pay for certain services under its Medicaid plan. II. Medicaid Overview Medicaid, authorized by Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., is a joint federal and state program designed to provide "medical assistance" to needy individuals. Its administration is entrusted to the Secretary of Health and Human Services (HHS), who in turn exercises his authority through the Centers for Medicare and Medicaid Services (CMS). Ark. HHS Ahlborn, 547 U.S. 268, 275, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006). The Medicaid program is subsidized by the federal government, but is administered by the states. Catanzano by Catanzano v. Wing, 103 F.3d 223, 225 (2nd Cir.1996). While participation in the program is voluntary, once a state chooses to participate, it must comply with the requirements of the Medicaid Act and its regulations. Harris v. McRae, 448 U.S. 297, 300, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980)(although participation is optional, once a state elects to participate, it must comply with the requirements of Title XIX); State of Louisiana v. HHS, 905 F.2d 877, 878 (5th Cir.1990)(although states have considerable discretion to design and operate their individual programs, they must maintain their plans in compliance with federal requirements in order to ensure federal funding). Participating states must submit a "state plan" to CMS for approval before *911 that state may receive Medicaid funds. See 42 U.S.C. §§ 1396a(a) & (b); see also, Catanzano, 103 F.3d at 225. The state plan initially must be approved by the Secretary of Health and Human Services. 42 U.S.C. § 1316(a)(1). Thereafter, a state that seeks to change its state plan may submit an amendment to CMS for approval. See 42 C.F.R. § 430.14-430.15; La. Dep't of Health & Hosps. v. Ctr. for Medicare & Medicaid Servs., 346 F.3d 571, 572 (5th Cir.2003) (stating that 42 C.F.R. § 430.14-430.15 records the Secretary's delegation of authority for approving state plan amendments to CMS). Ohio has an approved state plan. Ohio Dep't of Mental Retardation & Developmental Disabilities v. U.S. Dep't. of Health and Human Services, Health Care Financing Admin., 761 F.2d, 1187, 1188 (6th Cir.1985). Ohio's statutory scheme for the provision of Medicaid is found at Ohio Rev.Code. § 5111.01 et seq. and its regulations found at Ohio Admin. Code Chapter 5101. Compliance with federal Medicaid law requires a participating state to provide medical assistance to certain classes of people, including disabled children. 42 U.S.C. § 1396a(a)(10)(A). A state plan must provide a range of mandatory medical services to Medicaid recipients. 42 U.S.C. § 1396d(a)(1)-(28) (setting forth the various required services); see also S.D. v. Hood, No. 02-2164 Section "N", 2002 WL 31741240, 2002 U.S. Dist. LEXIS 23535 (E.D.La. Dec. 5, 2002)(federal law mandates that the states provide a range of medical services). While a state has discretion in determining which medical services, beyond the mandatory seven, it will cover for adults, states "are bound, when it is medically necessary, to make available to Medicaid-eligible children all of the twenty-eight types of care and services included as part of the definition of medical assistance in the Act." Rosie D. v. Romney, 410 F.Supp.2d 18, 25 (D.Mass., 2006). Moreover, a state may not ignore the Act's requirements "in order to suit state budgetary needs." Illinois Hospital Asso. v. Illinois Dep't of Public Aid, 576 F.Supp. 360, 371 (N.D.Ill.1983). Plaintiffs assert that the State of Ohio, in enacting proposed changes to the Ohio Administrative Code sections governing the implementation of Ohio's Medicaid program, have violated federal Medicaid law. Specifically, Plaintiffs challenge the State Defendants' compliance with the Federal "early and periodic, screening, diagnostic, and treatment services" (EPSDT). EPSDT is a mandatory medical service that must be provided by a State that has chosen to participate in the federal Medicaid program. 42 U.S.C. §§ 1396a (a)(43). EPSDT is defined at 42 U.S.C. § 1396d(r) and includes the following specific services: screening services to determine the existence of certain physical or mental illnesses or conditions (§ 1396d(r)(1)(A)(ii)), vision services (§ 1396d(r)(2)), dental services (§ 1396d(r)(3)), and hearing services (§ 1396d(r)(4)). EPSDT also includes: such other necessary healthcare, diagnostic services, treatment, and other measures described in section 1905(a) [subsec. (a) of this section] to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan. 42 U.S.C. § 1396d(r)(5); see also 42 C.F.R. 441.50 (further state plan requirements for EPSDT). 42 U.S.C. 1396d(a)(1) through (28) provide the necessary services that must be provided to eligible children under the "EPSDT umbrella." These services include "EPSDT services" ((a)(4)(B)). Of importance to this case is the following mandate, found at subsection (a)(13), which states that a state plan must provide for: *912 other diagnostic, screening, preventative and rehabilitative services, including any medical or remedial services (provided in a facility, home or other setting) recommended by a physician or other licensed practitioner of the healing arts within the scope of their practice under State law, for the maximum reduction of physical or mental disability and restoration of an individual to the best possible functional level. This section reflects the extremely broad EPSDT obligation. See Katie A. v. Los Angeles County, 481 F.3d 1150, 1154 (9th Cir.2007) (citing CMS' description of EPSDT as a "comprehensive child health program of prevention and treatment"); Rosie D. v. Romney, 410 F.Supp.2d 18, 25 (D.Mass.2006) ("as broad as the overall Medicaid umbrella is generally, the initiatives aimed at children are far more expansive"). The only limit on EPSDT services is that they be "medically necessary." Romney, 410 F.Supp.2d at 26; Collins v. Hamilton, 349 F.3d 371, 376 n. 8 (7th Cir.2003)(in the context of individuals under the age of twenty-one subject to EPSDT services, a state's discretion to exclude services deemed `medically necessary' by an EPSDT provider has been circumscribed by the express mandate of the statute). Ohio's EPSDT plan is referred to as "Healthchek" and is codified at Ohio Admin. Code 5101:3-14-01—5101:3-14-22. The purpose of Healthchek is to "maintain health by providing early intervention to discover and treat health problems." Ohio Admin. Code 5101:3-14-01(A). In Ohio, ESPDT services are covered by Medicaid "when the services are medically necessary, as defined in rule 5101:3-1-01 of the Administrative Code, to treat or ameliorate a defect, physical or mental illness, or condition." Ohio Admin. Code 5101:3-14-05(E). The term "medically necessary" is defined as: services that are necessary for the diagnosis or treatment of disease, illness, or injury and without which the patient can be expected to suffer prolonged, increased or new morbidity, impairment of function, dysfunction of a body organ or part, or significant pain and discomfort. Ohio Admin. Code 5101:3-1-01(A). In addition, a medically necessary service must: 1) meet generally accepted standards of medical practice (5101:3-1-01(A)(1)); 2) be appropriate to the illness or injury for which it is performed as to type of service and expected outcome (5101:3-1-01(A)(2)); 3) be appropriate to the intensity of service and level of setting (5101:3-1-01(A)(3)); 4) provide unique, essential, and appropriate information when used for diagnostic purposes (5101:3-1-01(A)(4; 5) be the lowest cost alternative that effectively addresses and treats the medical problem (5101:3-1-01 (A)(5)); and 6) meet general principles regarding reimbursement for medicaid covered services found in rule 5101:3-1-02 of the Administrative Code (5101:3-1-01(A)(6)). Ohio's state plan specifically identifies certain services which are covered, however, the fact that a state plan does not mention a particular service does not mean it is not a covered EPSDT service. See 42 U.S.C. § 1396d(r)(5) (setting forth EPSDT requirements and specifically stating that services are required, "whether or not such services are covered under the State plan"); see also, Pediatric Specialty Care, Inc. v. Ark. Dep't of Human Servs., 293 F.3d 472, 480 (8th Cir.2002) (the state plan need not specifically list every treatment service conceivably available under the EPSDT mandate). III. LEGAL STANDARD Fed. R. Civ. P 65 authorizes the Court to grant a temporary restraining *913 order. When deciding whether to grant preliminary injunctive relief, the Court considers four factors: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of preliminary injunctive relief would cause substantial harm to others; and (4) whether the public interest would be served by issuance of preliminary injunctive relief. See Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir.2000). A district court must make specific findings concerning each of these factors, unless analysis of fewer factors is dispositive of the issue. Six Clinics Holding Corp., II v. Cafcomp Systems Inc., 119 F.3d 393, 399 (6th Cir.1997). However, not all the factors need be fully established for a temporary restraining order or injunction to be proper. Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir.1997). While none of the factors are given controlling weight, a preliminary injunction should not be issued where there is no likelihood of success [*5] on the merits. Michigan State AFL-CIO, 103 F.3d at 1249. IV. ANALYSIS A. Whether the Court must abstain from deciding the Plaintiffs' motion based on either the Burford abstention or the doctrine of primary jurisdiction. Defendants assert that the must Court refrain from deciding the case pursuant to the Burford abstention and/or the doctrine of primary jurisdiction because the claims in the Complaint challenge Ohio Administrative Rules and state law. Defendants further assert that abstention is proper because resolution of the claims may have budgetary implications. Burford abstention stems from the case of Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424, (1943), in which the Supreme Court held that a federal court sitting in equity may, under certain circumstances, properly decline to exercise its jurisdiction over an action challenging the validity of a state administrative order. New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (explaining the holding in Burford). The Burford doctrine provides that, where timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies in two circumstances: 1) when there are difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar; or 2) where the exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. Adrian Energy Assocs. v. Mich. PSC, 481 F.3d 414, 423 (6th Cir.2007); see also, Value Behavioral Health v. Ohio Dep't of Mental Health, 966 F.Supp. 557, 572 (Burford doctrine "applies if a federal court's assertion of jurisdiction would interfere with a state agency, necessitate the resolution of state law issues, and disrupt state efforts to establish a coherent policy as to a matter of public concern"). In the context of cases involving state administrative schemes, the Burford abstention and primary jurisdiction doctrines "are different labels for the same thing." College Park Holdings v. Racetrac Petroleum, 239 F.Supp.2d 1322 (N.D.Ga., 2002). Courts should be reluctant to invoke both the Burford abstention and the doctrine of primary jurisdiction. Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. *914 1236, 47 L.Ed.2d 483, (1976) (Burford doctrine "represents an extraordinary and narrow exception to the duty of the district court to adjudicate a controversy that is properly before it"); College Park Holdings v. Racetrac Petroleum, 239 F.Supp.2d 1322 (N.D.Ga., 2002) (courts should be reluctant to invoke the doctrine of primary jurisdiction, which often, but not always, results in added expense and delay to the litigants). Defendants argue that abstention is proper because the case involves "complex state law issues" that relate to Ohio's Medicaid program and because the Court's decision could have significant budgetary implications. The Defendants also assert that if the Court abstains from hearing the case, the Plaintiffs can still obtain the services they need through state-law mechanisms, including the prior authorization process and the state administrative hearing process. Defendants do not cite any case law in support of their argument that this case justifies invocation of an extraordinary and narrow exception to the court's duty to adjudicate cases. Arguments for Burford abstention have been considered in similar cases and denied. In Moore v. Meadows, 2007 U.S. Dist. LEXIS 47087 (N.D.Ga 2007), the Plaintiff was a disabled minor receiving skilled nursing care under the Federal EPSDT mandate. She filed a section 1983 action seeking injunctive and declaratory relief that the State Medicaid plan was not in compliance with the federal EPSDT mandate. The Defendant, Georgia Department of Community Health, urged the court to abstain pursuant to Burford on the grounds that the Plaintiffs claims arose from a state regulatory scheme affecting matters of importance to the administration of Georgia's Medicaid program. Id. at 2007 U.S. Dist. LEXIS 47087, *7. The Court declined to abstain, finding that the claims were not of an essentially local concern, but involved rather "federal funds and federal regulation in an area in which the federal government has taken a keen interest." Id. (citing Meachem v. Wing, 77 F.Supp.2d 431, 443 (S.D.N.Y.1999)); see also Arkansas Medical Soc, Inc. v. Reynolds, 6 F.3d 519, 529 (8th Cir.1993) (federal Medicaid laws are "routinely interpreted by federal courts and no specialized knowledge of state law is required."); Meachem, 77 F.Supp.2d at 443 (plaintiffs' claims for various social services, including Medicaid, did not "implicate not a complex state regulatory scheme, but an important federal interest embodied in the Medicaid Act."). Furthermore, the fact that the claims may impact the State's budget, does not mandate abstention. Ohio State Pharmaceutical Asso. v. Creasy, 587 F.Supp. 698 (S.D.Ohio 1984) (even though the State may have a substantial interest in the management of its budget, there is no risk of an inconsistent application of state law or policy presented by the case at bar. The regulations which must be interpreted to resolve this matter are federal; the uniformity of application or interpretation of these regulations is a federal concern). Finally, the fact that there is a deferral letter from CMS regarding services at SBSA does not mandate that the Court wait for the administrative process to play out. The primary issue before the Court is whether the State's proposed rules violate Medicaid law. Accordingly, invocation of the Burford abstention or the doctrine of primary jurisdiction is not proper in this case. B. Civ.R.P.65 1. Whether the movant has a strong likelihood of success on the merits. As explained in detail in section II, the federal EPSDT mandate requires a *915 state to provide EPSDT services. 42 U.S.C. § 1396a(a)(43) and § 1396d(a)(4)(B). These services are defined as including screening services, vision services, dental services, hearing services, and (5) such other necessary health care, diagnostic services, treatment and other measures described in section 1905(a) [subsec. (a) of this section] to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan. 42. U.S.C. § 1396d(a)(1) through (28) provide the necessary services that must be provided to eligible children. Subsection (a)(13), states that a state plan must provide for: other diagnostic, screening, preventative and rehabilitative services, including any medical or remedial services (provided in a facility, home or other setting) recommended by a physician or other licensed practitioner of the healing arts within the scope of their practice under State law, for the maximum reduction of physical or mental disability and restoration of an individual to the best possible functional level. This provision has been interpreted by other courts to mean that if a "licensed clinician finds a particular service to be medically necessary to help a child improve his or her functional level, this service must be paid for by a state's Medicaid plan pursuant to the EPSDT mandate." Romney, 410 F.Supp.2d at 26; see also, Collins v. Hamilton, 349 F.3d 371, 375 (7th Cir.2003) (if a competent medical service provider determines that specific type of care or service is medically necessary, the state may not substitute a different service); John B. ex rel. L.A. v. Menke, 176 F.Supp.2d 786, 800 (M.D.Tenn.2001) (state is bound by federal law to provide medically necessary services). Plaintiffs assert that section (a)(13), read in conjunction with the ESPDT mandate of (a)(43), as defined in d(r), requires Ohio to cover services rendered at SBSA that are medically necessary. Defendants do not dispute that by participating in Medicaid, Ohio is required to comply with the federal Medicaid laws. Rather, Defendants assert that they are not allowed to cover the services rendered at SBSA because they are "habilitative" rather than "rehabilitative." The defendants base their position on the deferral letter from CMS to ODJFS in which CMS states that "CMS generally views treatment for autism as habilitative rather than rehabilitative." (Def.Ex.G). The term "rehabilitative services" is defined in the regulations implementing the federal Medicaid law as: Rehabilitative services, except as otherwise provided under this subpart, includes any medical or remedial services recommended by a physician or other licensed practitioner of the healing arts, within the scope of his practice under State law, for maximum reduction of physical or mental disability and' restoration of a recipient to his best possible functional level. 42 C.F.R. § 440.130(d). Habilitation services are defined in only one section of the Medicaid Act. 42 U.S.C. 1396n(c)(5)(A). This section provides that, for purposes of paragraph (c)(4)(B) (dealing with state waiver programs for the purpose of preventing institutionalization), the term "habilitation services": means services designed to assist individuals in acquiring, retaining, and improving the self-help, socialization, and adaptive skills necessary to reside successfully *916 in home and community based settings; Unlike the definition of "rehabilitative services", the definition of "habilitation services" does not contain the requirement that the services be "medical or remedial" and "recommended by a physician or other licensed practitioner of the healing arts." Moreover, habilitative services are not services which are recommended for the "maximum reduction of physical or mental disability and restoration of a recipient to his best possible functional level." What truly differentiates "habilitative" and "rehabilitative" services is the "medical necessity" of those services. Ohio, Dep't of Mental Retardation & Developmental Disabilities v. U.S. Dept. of Health and Human Services, 761 F.2d 1187 (6th Cir.1985) ("Putting aside the argument over "habilitative" and "rehabilitative," Ohio must be given an opportunity to demonstrate that the services which it proposes to provide at habilitation centers fall within "medical assistance" as defined in Title XIX."). Defendants assert that the CPST services provided at SBSA are not covered by any of the sections listed in (a)(1) through (28), including (a)(13). Plaintiffs argue that the CPST services fit within the meaning of "medical or remedial services" in (a)(13). Defendants counter that the phrase "including any medical or remedial services" modifies only the word "rehabilitative," thus requiring that covered medical services under (a)(13) be "rehabilitative." Defendants then return to their position that the services rendered at SBSA are "habilitative" and therefore not covered by Medicaid, unless rendered pursuant to a waiver. See 42 U.S.C § 1396n. Defendant concludes that the services at SBSA are not generally "habilitative" because the services are not "restoring" any skills that the child previously had. Taken to its logical conclusion, such an restrictive interpretation of "rehabilitative" would mean that no child who is born with a disability, could ever receive rehabilitative services. This does not comport with the broad coverage afforded under the EPSDT mandate. Furthermore, Defendants have cited no authority for their restrictive interpretation that "remedial and medical services" are covered only if they are "rehabilitative." Though Defendants claim that CMS has adopted this interpretation, they have not cited to any agency action that is entitled to Chevron deference. See, Chevron USA v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); U.S. v. Mead Corp., 533 U.S. 218, 227-231, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)(discussing the application of Chevron). Given the expansive requirements of the EPSDT mandate, the Court finds no basis for such a restrictive reading of the statute. Moreover, section (a)(13) also requires that State's provide "preventive services" which are defined as: services provided by a physician or other licensed practitioner of the healing arts within the scope of his practice under State law to: 1) prevent disease, disability, and other health conditions or their progression; 2) prolong life; and 3) promote physical and mental health and efficiency. Thus, the services provided at SBSA may well be "preventative" as well as "rehabilitative." The Court's conclusion that the services required by the EPSDT mandate are more broad than Defendants would suggest, is supported by case law. In Rosie D. v. Romney, 410 F.Supp.2d 18 (D.Mass.2006) the Court found that section d(a)(13) does not contain a requirement that the services be "rehabilitative." Rather, in that case, the Court found that "if a licensed clinician finds a particular service to be medically necessary to help a child improve *917 his or her functional level, this service must be paid for by a state's Medicaid plan pursuant to the EPSDT mandate." The Court used the word "improve" and not "restore" in concluding that the services were necessary. In S.D. v. Hood, 391 F.3d 581 (5th Cir.2004) the Court was also considering the EPSDT provisions of the federal Medicaid law and stated "every Circuit which has examined the scope of the EPSDT program has recognized that states must cover every type of health care or service necessary for EPSDT corrective or ameliorative purposes that is allowable under § 1396d(a)." Again, there is no requirement that the services be "rehabilitative" but only that they ameliorate or correct a condition. In Pediatric Specialty Care Inc. v. Ark. Dept. of Human Services, 443 F.3d 1005 (8th Cir. 2006), the Eighth Circuit read 42 U.S.C. 1396d(a)(13) as requiring the State to provide early intervention behavioral treatment to children under the EPSDT mandate. The district court concluded that such treatment was rehabilitative, even though it applied to young children who presumably were not being "restored" to a prior ability. Plaintiffs provided sufficient evidence that ABA therapy, when recommended by a licensed practitioner of the healing arts, is a medically necessary service which provides the maximum reduction of a mental or physical disability. Because the proposed administrative rules will effectively cut off funding for medically necessary services, Plaintiffs have established a likelihood of success on the merits. 2. Whether Plaintiffs will suffer irreparable injury. Plaintiffs have also established that if the new rules are made effective, they will suffer irreparable injury. If the Plaintiff children are no longer able to receive the medically recommended 35-40 hours of ABA therapy per week, there is sufficient evidence that the children will experience regression. For children like J.L., whose rumination went from less than five times per day to 34 times per day when his behavior plan was stopped for a mere two days, the injury is significant. See, Plaintiffs Ex. 9; see also, Decl. of A.C. at ¶ 17 (during breaks when X.C. does not receive treatment at SBSA, his behaviors worsen and his skills regress); Decl. of K.G. (during breaks when W.G. does not receive his services at SBSA, he suffers regression). Plaintiffs' provided the opinion of a licensed medical provider who concluded, in her professional judgment and to a reasonable degree of certainty, that if services are stopped, the Plaintiff children will suffer irreparable injury. See, Rosner Decl. at ¶ 7. Defendants assert that Plaintiffs will not suffer because if the services provided at SBSA are medically necessary, they may still be covered under other sections of the Medicaid Act. This argument ignores the fact that the services Plaintiff children need are not provided at the same intensive level elsewhere and for some children SBSA may offer the only site where they can receive such services. SBSA is certified as a community mental health provider offering CPST services. The proposed amendments specifically target the provision of CPST services to these children. The fact that the proposed amendments will no doubt affect the provision of services to these children is evidenced by the State's own attempts to find other arrangements for the children once the new rules are made effective. See, Def. Exs. W, Y, Z, and AA. 3. Whether issuance of preliminary injunctive relief would cause substantial harm to others. The evidence is clear that the State adopted the new rules to avoid having *918 to pay for services which it was concerned would not be reimbursed by CMS. Several of the State's exhibits were financial in nature, showing the cost of services provided at SBSA. In enjoining the State from enforcing the new rules, the Court is concluding that the Plaintiffs have a strong likelihood of establishing that ABA therapy is a medically necessary service that must be covered by Medicaid. Once a state has voluntarily elected to participate in the Medicaid program, it must comply with all federal Medicaid standards. Accordingly, "no state may characterize its duty to comply with the requirements of an elective program such as Medicaid as constituting a hardship to its citizens." Illinois Hospital Asso. v. Illinois Dep't of Public Aid, 576 F.Supp. 360, 371. If the services are medically necessary, CMS must cover the cost of those services. Thus, by enjoining the State, the Court is not requiring that the State pay for services which will not be reimbursed by CMS. The balance of harm sure to be suffered by the Plaintiffs outweighs and potential harm suffered by the Defendants. 4. Whether the public interest would be served by issuance of a preliminary injunctive relief. Congress mandated that the ESPDT services be provided to eligible children in the State of Ohio. Both the federal and state governments recognize that the purpose of EPSDT is to prevent or correct conditions at an earlier time so that the costs are not conveyed into adulthood. Early, and effective, treatment of children with autism has been shown to provide significant improvement, including the return of those children to the general community. See, Mulick Decl. at ¶ 11. The public benefits from the treatment of children with medical conditions. Although the cost of providing care to autistic children appears daunting, the potential that such care will have to be continued throughout adulthood poses a potentially larger economic burden. See, Michelle LeMarche Decl. at ¶ A (studies show a savings of $1,000,000 per child over the child's lifetime by receiving necessary early intervention). V. CONCLUSION For the foregoing reasons, the Court GRANTS Plaintiffs' request for injunctive relief. The Defendants are therefore ORDERED to refrain from implementing Ohio Admin Code. 5101:3-27-02 and 5122-29-17. In so ruling, the Court is not deciding that all of the services provided by SBSA are medically necessary nor that the cost of treatment as billed by SBSA is reasonable. Rather, the Court is simply holding that the Plaintiffs have a reasonable chance of being successful in establishing that ABA services are covered by Medicaid and that the amendments to the Ohio Administrative Code violate the federal Medicaid Act. IT IS SO ORDERED. NOTES [1] Plaintiffs filed an amended complaint for injunctive and declaratory relief on June 24, 2008 (Doc. 27). [2] On June 20, 2008, the Court required joinder of the CMS and Plaintiffs amended their complaint accordingly. Defendant CMS has been notified of the suit against it and was represented by counsel at the TRO hearing on June 27, 2008.

379 F.2d 569 JACK DANIEL DISTILLERY, Lem Motlow, Prop., Inc.,v.The UNITED STATES. No. 302-63. United States Court of Claims. June 9, 1967. N. Barr Miller, Washington, D. C., for plaintiff. J. Marvin Haynes, Washington, D. C., attorney of record. Joseph H. Sheppard, Jerome D. Meeker, Robert S. Bersch, Walter D. Haynes, and Haynes & Miller, Washington, D. C., of counsel. Theodore D. Peyser, Washington, D. C., with whom was Asst. Atty. Gen., Mitchell Rogovin, for defendant. Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON, and NICHOLS, Judges. OPINION NICHOLS, Judge:* 1 This is a suit for refund of corporation income tax and assessed interest in the total sum of $4,274,803.73 for the fiscal years ended April 30, 1958 through 1962. While plaintiff does not claim a refund for the fiscal year ended April 30, 1957, it claims entitlement to a carryover of a net operating loss from such year to the fiscal year ended April 30, 1959. Defendant by counterclaim seeks a judgment for income tax and interest previously refunded in the sum of $559.99 for the fiscal years 1958 through 1960, and for unpaid assessments of income tax and interest in the sum of $211,838.02 for the fiscal years 1961 and 1962. 2 With the approval of the trial commissioner, the trial has been limited by agreement of the parties to the issues of law and fact relating to the right of each party to recover, reserving the determination of the amounts of recovery, if any, for further proceedings. 3 Plaintiff, a newly-formed Tennessee corporation, acquired the stock of a predecessor Tennessee corporation of the same name (hereinafter called Old Jack Daniel) on August 29, 1956, for a total purchase price of $18 million, with a down payment of $5.4 million in cash and the balance of $12.6 million in negotiable promissory notes. On September 17, 1956, plaintiff liquidated Old Jack Daniel and thereby acquired all its assets and assumed its liabilities, and thereafter carried on the whiskey distillery business previously operated by Old Jack Daniel at Lynchburg, Tennessee. Plaintiff had been incorporated by its parent, Brown-Forman Distillers Corporation, on August 25, 1956, for the specific purpose of acquiring the Old Jack Daniel stock and then liquidating Old Jack Daniel. There are two issues in this case: 4 1. The fair market value of the inventory of barreled whiskey, the tax-paid whiskey in bottling tanks, and the goodwill acquired by plaintiff from Old Jack Daniel for purposes of section 334 of the Internal Revenue Code of 1954; and 5 2. Whether the amount of $3.5 million paid to plaintiff by its parent, Brown-Forman Distillers Corporation, on August 28, 1956, was a loan or a contribution to capital. VALUE OF UNBOTTLED INVENTORY AND GOODWILL 6 The point of beginning for the valuation issue is section 334(b) (2) of the Internal Revenue Code of 1954, 26 U.S.C. § 334(b) (2) (1964). It provides that if property is received in complete liquidation of a subsidiary under section 332(b) and certain other criteria are met (all of which occurred in the instant case), the basis of the property received shall be the adjusted basis of the stock with respect to which the distribution was made. Treasury Regulations § 1.334-1(c) (4) (viii) (1954 Code), 26 C.F.R. § 1.334-1 (c) (4) (viii) (1961) provides, for the purposes of this case, that the adjusted basis of the stock shall be allocated among the tangible and intangible assets received in proportion to the net fair market value of the assets received.1 The parties have stipulated the value of all items other than the three in dispute. The undisputed assets acquired by plaintiff in the liquidation of Old Jack Daniel including the distillery plant, buildings and equipment, land, cash, accounts receivable, raw materials and supplies, and others, and as to these defendant has accepted as fair market value the amounts shown on plaintiff's books. The valuations of the parties concerning the disputed items, and the cost basis of such assets on the books of Old Jack Daniel, are as follows: 7 ______________________________________________________________________________ | Defendant | Plaintiff | Cost to Old | | | Jack Daniel ________________________________|_____________|________________|______________ Whiskey in barrels ____________ | $3,788,000 | $11,571,381.51 | $3,249,294.87 Whiskey in bottling tanks _____ | 17,200 | 26,248.86 | 16,256.55 Goodwill ______________________ | 6,706,000 | 2,507,998.30 | 0 ________________________________|_____________|________________|______________ 8 The wide gap between the valuations given by the parties results in part from a use of two completely different methods of valuation and in part from a difference as to what incidents of ownership are part of fair market value. 9 Jack Daniel whiskey is and was what is known in the distilling industry as an irreplaceable whiskey, that is, it is a unique whiskey which has gained a reputation for its distinctive taste. Jack Daniel, being considered irreplaceable, was not sold on the bulk whiskey market. Examples of irreplaceable whiskeys were such bourbons as Old Grand-Dad, Old Forester, and Old Fitzgerald. Jack Daniel was even more distinctive than such irreplaceable bourbons, because the unique method by which it was produced gave it a taste distinct from both rye and bourbon, and it was unlike any other whiskey on the market in 1956. It was also, at that time, the highest priced domestic whiskey. 10 Some years prior to 1956, the distilling industry, believing that the market price for bulk whiskey did not adequately reflect the value of irreplaceable whiskeys, entered into an agreement with insurance underwriters to use a new method of valuing irreplaceable whiskey for insurance purposes. The method used was to take the case price of the whiskey in glass and subtract from this, excise taxes, bottling costs, and other charges as yet unincurred with respect to the bulk inventory. The resulting figure was considered to be the value of the matured whiskey in barrels and bottling tanks. The value of freshly distilled whiskey was established on the basis of production cost. The intermediate age whiskey was valued by prorating, according to age, the difference between the values of the mature whiskey and the fresh whiskey. 11 When sale negotiations began between the Old Jack Daniel stockholders and the representatives of Brown-Forman, the sellers' asking price for the Old Jack Daniel stock was placed at $20 million. This amount was arrived at by two methods. First, the anticipated combined earnings for Old Jack Daniel and its sales affiliate, Nashville Sales Company, for the fiscal year 1956 were $2 million. The Old Jack Daniel stockholders considered that a sales price of 10 times earnings, or $20 million, was reasonable. The second method was that the net tangible assets of Old Jack Daniel were valued at $15 million, and to this was added $5 million as the value of goodwill. In determining the net tangible asset value of Old Jack Daniel, the bulk inventory was valued by the same method as that used for insurance valuation. 12 After the initial negotiating session, Brown-Forman verified to its satisfaction the valuation given the tangible assets. In order to determine whether, for tax purposes, it could write up the unbottled inventory to the insurance value, it consulted its regular outside auditors, Lybrand, Ross Bros. & Montgomery. The auditors reviewed the projected income and cash flow, and determined that the valuation given the inventory would yield an extraordinary gross profit. They then advised Brown-Forman that they considered the proposed valuation a correct accounting method for determining basis under § 334(b) (2) of the Internal Revenue Code of 1954. 13 After further negotiations, Brown-Forman and the Old Jack Daniel stockholders agreed on a purchase price of $18 million, and the sale of the Old Jack Daniel stock was consummated on August 29, 1956, with the subsequent liquidation of Old Jack Daniel on September 17, 1956. 14 In accordance with the market value insurance formula, plaintiff valued (as did Old Jack Daniel) the transferred inventory of barreled whiskey (3,125,277.06 original proof gallons) at $11,571,381.51, and the transferred inventory of whiskey in bottling tanks (1,350 regauged proof gallons) at $26,248.56, for a total valuation of $11,597,630.37, all in the manner detailed in findings 42 through 45. 15 In comparing its income tax liability for the fiscal period August 25, 1956 to April 30, 1957, and the fiscal years ended April 30, 1958-1962, plaintiff used as its basis for computing the cost of the unbottled inventory acquired by the liquidation of Old Jack Daniel the aforementioned valuation used for determining insurance values. These values were entered on its books on September 17, 1956. Plaintiff filed timely income tax returns for the fiscal period ended April 30, 1957, and the fiscal years 1958-62, showing taxable income or loss and tax paid, as follows: 16 ______________________________________________________________ | Taxable | Taxable Year | Income | Tax Paid Per | (or Loss) | Return ______________________________|________________|______________ 1957 ________________________ | ($377,667.55) | None 1958 ________________________ | (1,080.17) | None 1959 ________________________ | 348,478.49 | $ 175,708.81 1960 ________________________ | 2,318,166.67 | 1,199,946.67 1961 ________________________ | 3,940,388.52 | 2,043,502.03 1962 ________________________ | 5,874,356.32 | 3,049,165.29 |________________|______________ Total ___________________ | $12,480,309.83 | $6,468,322.80 ______________________________|________________|______________ 17 The Internal Revenue Service audited plaintiff's returns for the fiscal years 1958-62, and determined the following deficiencies: 18 Income Tax Taxable Year Deficiency 1958 ________________________________________________ $1,170,404.69 1959 ________________________________________________ 1,223,537.00 1960 ________________________________________________ 731,917.64 1961 ________________________________________________ 324,146.59 1962 ________________________________________________ 23,081.62 _____________ $3,473,087.54 19 The foregoing deficiencies resulted from the Commissioner's use of the Old Jack Daniel cost basis for the assets, rather than the basis recorded on plaintiff's books on September 17, 1956, in computing cost of goods sold and allowances for depreciation of the assets acquired from Old Jack Daniel.2 The 1959 deficiency also results in part from the disallowance of a deduction for a net operating loss carryover, based on plaintiff's original calculation that it incurred losses for fiscal 1957 and 1958, such losses giving rise to a deduction in 1959. In recomputing plaintiff's income for fiscal 1957 and 1958, the Commissioner determined that plaintiff had income for those periods. 20 Before this court, the defendant has retreated, to a degree, from the original position of the Commissioner that the fair market value of the bulk whiskey was the cost basis on the books of Old Jack Daniel. To the Old Jack Daniel cost basis, $3,265,551, defendant has added a "future worth factor" of $539,649, computed at 6.5 percent per year, compounded semiannually for each seasonal distillation, for a total valuation of $3,805,200.3 The "future worth factor" was intended to take into account interest on the original investment as the whiskey matured and the storage and other charges incurred on the inventory as it matured. 21 The above outlined methods of valuation are the factual bases for the divergent positions of the parties. The legal definition of fair market value is the price at which property would change hands in a transaction between a willing buyer and a willing seller, neither being under compulsion to buy or sell, and both being reasonably informed as to all relevant facts. Wood v. United States, 29 F.Supp. 853, 89 Ct.Cl. 442 (1939).4 22 The principal difficulty in valuing the unbottled whiskey inventory is that because Jack Daniel is distinctive and irreplaceable, it has never been sold in bulk. Since its value has never been tested by sales in the market place, the determination of fair market value of the unbottled inventory will necessarily be constructive in nature, based upon careful consideration of the reliable and relevant testimony and evidence pertaining to what price would have been reached on September 17, 1956, between a willing seller and a willing buyer, both reasonably informed as to the facts. Old Jack Daniel proposed the insurance value as being the fair market value of the unbottled inventory, and this value was accepted by the representatives of Brown-Forman.5 Brown-Forman's regular independent auditors determined that a purchase of the whiskey inventory at the insurance values would yield an extraordinary before-tax profit, and that the valuation was therefore a reasonable one. 23 In the trial of this case, R. L. Buse, Jr., president of both a whiskey brokerage company and a distillery company, Vernon O. Underwood, president of a large whiskey wholesaler, and G. K. McClure, treasurer of Stitzel-Weller Distillery, a whiskey distiller, all testified that, in their opinion the insurance value was the fair market value of the Jack Daniel inventory. In addition, Buse and Underwood testified that in 1956 they would willingly have purchased (if financing could have been obtained), or participated in a joint venture to purchase, the Jack Daniel inventory at the insurance value, assuming that they would have the right to sell the same under Jack Daniel labels. 24 The testimony is convincing that the Jack Daniel inventory could have, in 1956, been sold to a third party or parties for the insurance valuation given the inventory, if the purchaser or purchasers were given the right to sell the same under Jack Daniel labels. 25 Defendant makes two attacks on plaintiff's valuation which raise questions about what elements of value attach to fair market value. 26 As stated above, plaintiff's witnesses, in considering the fair market value of the unbottled inventory, assumed that their purchase of the inventory would have included the right to market the whiskey under the Jack Daniel labels. Defendant contends that the use of the Jack Daniel labels is an intangible and should not be included in the valuation of a tangible asset.6 27 The testimony of plaintiff's witnesses indicated that the addition of the right to use the Jack Daniel label would substantially increase the value of the unbottled inventory. For purposes of this opinion, it can be conceded that the sale of the unbottled whiskey does not automatically carry with it the right to use the Jack Daniel label. The question then arises whether the value attributable to such right has to be excluded from the fair market value. 28 In the ordinary commercial situation, when an item is manufactured and put into inventory, it is ready to be sold to the consuming public. If it is a unique item, the value attributable to a name or trademark will have adhered to the item at that point in time. For example, a Cadillac automobile or a Baldwin piano has a certain value when produced, and the value of the name would be virtualy inseparable from the value of the item as a whole. 29 Of course, the whiskey inventory had a value even without the Jack Daniel name, albeit a lower one. As to the bottled inventory, defendant accepted the value placed thereon by plaintiff. Thus, defendant (at least by implication) has conceded that the whiskey in labeled bottles had the market value which plaintiff contends should be placed on the matured whiskey (and prorata on the maturing whiskey) in barrels and in bottling tanks, less the cost of bottling and other unincurred costs. Defendant's distinction between the unbottled and bottled inventory (the latter carrying the right to use the Jack Daniel labels) is in essence the difference between finished stock and work in process.7 This distinction is not entirely inapt, the unbottled inventory having some characteristics of work in process. The inventory had to age for a certain number of years and then be bottled and labeled before the analogy between Jack Daniel whiskey and a Cadillac would be full and complete. 30 On the other hand, the unbottled Jack Daniel inventory is unlike the usual work in process in many respects. The addition of the word "Cadillac" to an automobile chassis or "Baldwin" to a piano leg enhances the value of the object very little, if at all. This is in complete contrast to the Jack Daniel situation. The evidence indicates that the unique qualities of Jack Daniel whiskey are generated in specialized distillation and leaching processes accomplished prior to its being placed in barrels for aging, and that the holding of the same in barrels for aging does not fit the concept of work in process in the usual sense. In addition, ordinary work in process might have little liquidation value, but only a salvage value, whereas the Jack Daniel inventory had a substantial liquidation value with or without the Jack Daniel name. 31 Taking all the above factors into consideration, it is apparent that, even though the unbottled inventory could technically be called work in process, it had already reached a stage where its distinctiveness had given its name a value inseparable in fact, if not in law, from the item itself. In the world of commercial reality, the fair market value of the inventory included the right to use the Jack Daniel label. Indeed, no businessman desiring to maximize his profit would have entertained the notion that the whiskey would be sold, unbranded, on the bulk market. The fair market value test is predicated in part on the highest and best use which can be made of the subject matter, and the evidence certainly shows that the Jack Daniel whiskey would in 1956 have sold at the highest price under its own labels. In assessing fair market value, due consideration should be given to the realities of commercial transactions, and particularly to the plain facts concerning the best use to be made of the subject matter of a sale. As a recognized commentator in the tax field has said: "Fair market value in essence means sound value; it is the price for which the owner would hold out if he could."8 It would seem to have been sound commercial practice for the Old Jack Daniel stockholders and Brown-Forman to place the value on the unbottled inventory, which they did. It must be concluded that the fair market valuation has to include, in this instance, any value attributable to the use of the Jack Daniel trade name and labels in connection with any disposition of the unbottled inventory transferred by liquidation of Old Jack Daniel. 32 The second problem raised by defendant is whether an asset can have a different fair market value in varying context, i. e., whether an asset has a different value as part of a sale of a going business than it would have if sold separately; and, if that question is answered affirmatively, whether the valuation of the unbottled inventory is affected by that factor in this case. 33 In two cited decisions, the Tax Court rejected valuations of the Commissioner which were based on the liquidation value of the asset, i. e., the amount the asset would bring if sold separately from the business. Kraft Food Co., 21 T.C. 513 (1954), rev'd on other grounds 232 F.2d 118 (2d Cir. 1956); Philadelphia Steel & Iron Corp., 23 T.C.M. 558 (1964), aff'd per curiam, 344 F.2d 964 (3d Cir. 1965). Defendant argues that these cases support the general proposition that all assets sold as part of a going business should be valued in that light. Therefore, if an asset is shown to have a lower value if sold as part of a going business, the lower value should be the fair market value for purposes of § 334(b) (2). 34 However, both the above cases assigned the assets in dispute a fair market value higher than the liquidating value. Plaintiff therefore claims that these cases support the general proposition advanced by it that fair market value must be determined with reference to highest and best possible use of the property. 35 The factual patterns in the two lastcited cases are complex and substantially different from this case, and no hard commitment can or should be made to either party's contention concerning any general principle to be derived from those opinions, especially when it is remembered that determination of fair market value is basically a factual decision, no matter how complicated the reasoning process involved. Even if defendant's interpretation of the two Tax Court opinions is accepted, the value of the unbottled inventory as part of a going business was at least that reasonably and in good faith given it by the parties to the arm's-length sale of all of the Old Jack Daniel stock. Moreover, defendant's method of valuation has no relationship to either a liquidating fair market value or a going business fair market value. 36 The potential profit to plaintiff from purchasing the inventory at insurance value was extremely high, as was shown by the profit projections of plaintiff's auditors. The actual before-tax profit realized from the sale of the inventory was $6.2 million, more than a 50 percent return on the original investment in the whiskey inventory, and more than a 25 percent return on total costs (except taxes). Defendant has not shown why this valuation does not, in fact, represent the going business value of the unbottled inventory.9 Defendant contend that the valuation of the individual monthly distillations was arbitrary because plaintiff showed a loss upon the disposition of a substantial portion of the unbottled inventory. While it may be true that the valuation placed on monthly distillation did not reflect fair market value, the issue is the value of the inventory as a whole, and the evidence makes it abundantly clear that the overall valuation is fair. In this context, plaintiff has provided a proper basis for valuation. See Kraft Foods Co., supra, 21 T.C. at 592-593. 37 Defendant has raised other minor attacks on plaintiff's method of valuation. It argues that the $6.2 million profit does not justify plaintiff's valuation of the whiskey when one considers that plaintiff had to pay almost $20 million and wait 5 years to realize the gain. While acknowledging that there is a certain factor for the use of capital which is not reflected in plaintiff's profit figures, it is concluded that such factor is not nearly as great as defendant suggests. In the first place, the amount of capital tied up because of the inventory purchase was $11.9 million, not $20 million. An interest allocation based on the total purchase price of $18 million10 would be proper only if the other assets had no independent economic value prior to the sale of the unbottled inventory. That is manifestly not the case here. Secondly, the capital was being returned to plaintiff throughout the period when the inventory was being bottled and sold, and not all in one lump sum at the end of the period, as defendant suggests. Even taking into account an interest factor for the use of capital, plaintiff still obviously made a substantial profit on its total costs for the unbottled inventory. 38 Defendant also points out that the profit which Old Jack Daniel would have made if it had sold the $12 million whiskey inventory separately would have been $8.5 million, which it terms "grossly excessive," being a return of approximately 243 percent on the Old Jack Daniel cost of production of $3.5 million. But, if defendant's valuation is accepted, plaintiff had a before-tax profit of 350 percent of its original investment, and approximately 55 percent of its total costs (exclusive of taxes). In addition, defendant's valuation attributes no gain to Old Jack Daniel from the sale of the inventory as part of the business. 39 Defendant relies upon United States v. Cornish, 348 F.2d 175 (9th Cir. 1965), but that case does not militate against the conclusion that plaintiff's valuation method was proper. The taxpayer in Cornish used a "work-back" formula in valuing timber and timber cutting rights. The Court of Appeals rejected the use of a "work-back" formula for two reasons. First, it took into account the prospect that the taxpayer's partnership would make a larger profit because of the unique sawmills owned by the partnership. This was a factor already taken into account in determining the fair market value of the sawmills, and if also allowed as an element of value for the timber, would result in one element of value being attributed to two assets. Second, it also took into account the prospect that the partners would exercise their unique skills in the future to continue the highly profitable nature of the business.11 40 In the instant case the skills necessary to produce the distinctive Jack Daniel whiskey had already been exercised at the time of sale; the remaining factors (aging and bottling) are a rather minor part of the overall operation, and are relatively simple and unskilled operations. 41 As the testimony and evidence in the present case indicate, the value of the whiskey as Jack Daniel's whiskey adhered to the inventory when it was placed in barrels to age. It had a substantial value at that time as Jack Daniel whiskey. The timber in Cornish had no greater value as such because certain unique skills and operations would ultimately result in an operation more profitable than other sawmills. Factually, Cornish is in nowise comparable with the Jack Daniel situation. 42 Defendant's evidence on valuation was presented by an appraiser for the Internal Revenue Service, Robert V. Brown.12 The unbottled inventory valuation was computed by taking the cost of production, $3,265,551, and adding a "future worth factor" for each seasonal distillation of 6.5 percent, compounded semiannually, for $539,649. The total valuation was thus $3,805,200. 43 This method of valuation must be rejected, as being purely arbitrary, because it completely ignores the "market" concept in the term fair market value. Fair market value could in the abstract be higher or lower than cost, but equating cost and market price is grossly inconsistent with the seller's market for Jack Daniel whiskey existing in 1956, and with the general economic conditions prevailing at that time. Defendant here made no attempt to investigate the "market" and establish a valuation on the basis of same. Since there had been no sales of the unique Jack Daniel whiskey in bulk, the fair market value of the unbottled inventory would have to be established by the expert testimony of persons knowledgeable in market conditions relating to Jack Daniel whiskey. But because there had been no bulk sales of such whiskey, it does not follow that the "fair market value" standard can be disregarded, and an inapt standard substituted. 44 The testimony has overwhelmingly established that the unique method of distilling Jack Daniel produced a distinctive whiskey which was in great demand. From this it can be assumed that even as a part of the going business, the fair market value of the unbottled inventory exceeded its cost. Yet defendant, in its valuation method, ascribes no profit to the inventory. The "future worth factor" is not profit, it is an allowance for additional costs incurred as the inventory matures and a percentage of interest on the capital investment in the inventory. 45 Defendant attempts to buttress its valuation by reference to buy-back clauses in several contracts made by distillers of irreplaceable bourbons with distributors for the sale of such whiskey in barrels. Such clauses permit the distiller to repurchase the whiskey upon the happening of certain stated events. 46 There are two plain reasons why defendant's valuation fails to gain weight by reliance on buy-back clauses. First, such clauses only become operable when conditions arise that force the distributor to sell the whiskey. They cannot be considered to establish an open market price, since they only operate in one direction, i. e., by placing a floor but not a ceiling on the barrel price,13 and the contingency against which these clauses are intended to guard is a distress sale which would dump irreplaceable bourbon on the bulk market. Secondly, the barrel sales prices of irreplaceable bourbon under such contracts must have included a profit to the distiller, which, as pointed out previously, defendant has ignored in arriving at its valuation herein. 47 From all the foregoing, it is concluded that plaintiff's valuation of the unbottled inventory constitutes the fair market value as of September 17, 1956, and was properly used by it as a basis for computing its cost of goods sold and income for the years in question. 48 The remaining valuation problem relates to the fair market value of the goodwill transferred to plaintiff from Old Jack Daniel. During the negotiations for sale of the Old Jack Daniel stock, the goodwill was agreed to have a value of $2.5 million, and approximately this amount was entered on plaintiff's books as goodwill when Old Jack Daniel was liquidated. Plaintiff's approach to the valuation was essentially what defendant characterizes as "residual," i. e., when the fair market value of the tangibles is established, the remaining amount which the purchaser is willing to pay for the business is attributable to the goodwill. 49 Defendant arrived at a valuation for the intangibles by capitalizing anticipated excess earnings. Briefly stated, this was done by obtaining an average after-tax net profit (using plaintiff's earnings projections and deducting estimated average costs); applying a 6.5 percent rate to defendant's net tangible valuation to obtain a return on the tangibles; then deducting the return on the tangibles from the total projected income. The resulting sum is considered the earnings attributable to the intangibles. This amount was then multiplied by eight (standing for the estimated length of time that it would require a competitor to market Tennessee whiskey) and then reduced to its present worth by discounting it at 5 percent. 50 The residuary method, though lacking in precision for use in all cases, may in a proper case be accepted as the reasonable way to value goodwill. When it is the method actually used in good faith by the parties to the sales transaction, as in the present case, and when such parties have reasonably established the value of all other assets, there appears to be no compelling reason for rejecting it. The residuary method has been used in a substantial number of cases and appears clearly to be the proper method for this case, since the fair market value of the tangible assets and the value of the business are and were firmly established. See Philadelphia Steel & Iron Corp., supra; 10 Mertens, supra, 59.37 and cases therein cited. The parties actively bargained in good faith over the value of the goodwill after they had settled on the value of the other assets. The sellers originally wanted $5 million, the buyer originally offered $1 million, and they finally agreed upon $2.5 million. 51 TREATMENT OF $3.5 MILLION PAID TO PLAINTIFF BY BROWN-FORMAN IN EXCHANGE FOR A PROMISSORY NOTE. 52 The defendant has counterclaimed for the tax14 attributable to amounts accrued on plaintiff's books for the fiscal period and years involved as interest on a promissory note which was issued to Brown-Forman in return for $3.5 million of the $5.5 million in cash received from Brown-Forman when plaintiff was incorporated, $5.4 million of which was in turn paid over to Old Jack Daniel stockholders as part payment for the Old Jack Daniel stock. Defendant contends that the $3.5 million was a capital contribution rather than a loan, and that therefore plaintiff incorrectly accrued the interest deductions. 53 The question whether a receipt of funds by a subsidiary corporation from its parent is a loan15 or a capital contribution has given rise to much litigation, resulting in apparently conflicting judicial opinion. To state the problem is simple: did the words used by the taxpayer actually and accurately describe the economic relationship of the parties, that is, did the parties intend, at the time of the issuance of the instrument, to create a real debtor-creditor relationship?;16 to arrive at an answer is the difficult task. 54 This area is devoid of blackletter law, as is true of any tax inquiry seeking the "substance"17 of a given transaction. In fact, "[t]here is no one characteristic * * * which can be said to be decisive in the determination of whether the obligations are risk investments in the corporations or debts." John Kelley Co. v. Commissioner of Internal Revenue, 326 U.S. 521, 530, 66 S.Ct. 299, 304, 90 L.Ed. 278 (1946); also see Moughon v. Commissioner of Internal Revenue, 329 F.2d 399, 401 (6th Cir., 1964); Byerlyte Corp. v. Williams, 170 F.Supp. 48, 53 (D.C.N.D.Ohio, 1958), aff'd on rehearing 170 F.Supp. 60 (D.C. N.D.Ohio, 1959), reversed and remanded on other grounds 286 F.2d 285 (6th Cir., 1960) ("In the plethora of precedent on this issue there is to be found no single rule, principle or test that is controlling or decisive of the question whether advances by stockholders to a closely held or solely owned corporation are to be considered as debts or contributions to capital." at 53). Therefore, the Court must consider the specific facts of this case to determine the plaintiff-taxpayer's relationship with Brown-Forman in regard to the advance in question. The Court must examine these facts in light of the signposts that have previously been laid out,18 always recognizing that the burden of establishing that the advance was a loan is upon the taxpaper. New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 78 L.Ed. 1348 (1934); White v. United States, 305 U.S. 281, 292, 59 S.Ct. 179, 83 L.Ed. 172 (1938); Arlington Park Jockey Club v. Sauber, 262 F.2d 902, 905 (7th Cir., 1959). 55 While it may be somewhat repetitious, we will again state those introductory facts specifically bearing on the Government's counterclaim. 56 Early in 1956 Brown-Forman learned that Old Jack Daniel might be for sale. This prospect interested Brown-Forman as it coincided with its interest to diversify and expand its operations. Brown-Forman first offered to buy the assets of Old Jack Daniel but the latter's shareholders were only willing to consummate the purchase of Old Jack Daniel by a sale of their stock. Brown-Forman agreed to this format, setting up a subsidiary, New Jack Daniel, the plaintiff-taxpayer, to purchase the stock for $5.4 million in cash and $12.6 million in secured, negotiable, promissory notes. Old Jack Daniel was thereafter to be liquidated into New Jack Daniel. 57 When New Jack Daniel was incorporated, Brown-Forman decided that in addition to the Old Jack Daniel assets, New Jack Daniel would need a permanent equity capitalization of $2,000,000 in order to carry on the distillery business. This sum was paid by Brown-Forman in cash and in return it received all of New Jack Daniel's stock. At the same time Brown-Forman loaned New Jack Daniel $3,500,000 and received in return its subordinated note for the same amount. 58 In 1956, in order to expand and diversify its activities, Brown-Forman borrowed $19,600,000 (with $9.95 million of it being used to pay off prior long-term debt) from its usual banking sources. At that time Brown-Forman showed the $3.5 million of the new loan would provide the funds for the loan to New Jack Daniel. The additional $9.65 million loan was obviously made with this in mind. 59 We now turn to the specific facts and applicable standards which have led us to conclude that Brown-Forman did in fact lend $3.5 million to New Jack Daniel. Our decision, favoring New Jack Daniel, is so made because we consider the facts tending to show the note represented a true debt to outweigh those suggesting the opposite conclusion. 60 Brown-Forman and New Jack Daniel clearly intended to create a valid debtor-creditor relationship here. The note received by Brown-Forman contained an unqualified promise to repay the principal and interest on or before a fixed maturity date, regardless of New Jack Daniel's earnings. Haffenreffer Brewing Co. v. Commissioner of Internal Revenue, 116 F.2d 465, 468 (1st Cir., 1940), cert. den. 313 U.S. 567, 61 S.Ct. 942, 85 L.Ed. 1526 (1941). During the period when the $3.5 million note was outstanding, Brown-Forman represented it as a loan on its books, in its reports to the Securities and Exchange Commission and the American Stock Exchange, to its lending institutions, and to its stockholders. Interest was regularly accrued by New Jack Daniel on its books and interest receivable was regularly accrued by Brown-Forman and both companies so reflected the interest on the tax returns. 61 It is true, as the Government stresses, that the note in question was subordinated to the purchase money notes given to the Old Jack Daniel stockholders. However, the note was not subordinated to the claims of other creditors.19 "Moreover, that the indebtedness was subordinated is outweighed [by the other factors herein,20] by the lack of other claims and the obvious benefit in facilitating any future refinancing." Brighton Recreations, Inc. v. Commissioner, 20 CCH Tax Ct. Mem. 127, 136 (1961). 62 This latter consideration is borne out by the fact that New Jack Daniel, soon after the loan from Brown-Forman, was able to borrow an additional $300,000 from one of the banks which participated in the loan to Brown-Forman, giving its unsecured note in return, as to which the $3.5 million note to Brown-Forman was not subordinated. In fact, the bank President testified that if the plaintiff had requested additional credit at the time when the $300,000 loan was made it would have been granted. We must also stress the fact that Brown-Forman was not required to make any further advances to New Jack Daniel, Cf. Affiliated Research, Inc. v. United States, 351 F.2d 646, 173 Ct.Cl. 338 (1965) (where after the initial advances had been made the corporation still required further advances on several occasions) and New Jack Daniel was able to repay the loan in full in 1963. Oak Motors, Inc. v. Commissioner, 23 CCH Tax Ct. Mem. 520, 524 (1964); Cf. Affiliated Research, supra, (where the advances, with small exceptions, were never repaid). 63 Another factor that could be on the Government's side of the scales is the fact that the note was unsecured. The Government contends that this shows Brown-Forman really subjected its money to the risk that New Jack Daniel would not succeed in its venture,21 though this risk would materialize only if the failure to succeed was such that the equity capital ($2 million) was first wiped out. "To say that the advances were * * * placed at the risk of the business does not help [the Government]. All unsecured loans involve more or less risk. On all available information, the risk here was a good one."22 The value of the aging whiskey inventory, as we have determined, was appreciating at a rate of more than $250,000 a month and New Jack Daniel had almost $3 million in working capital. Of the $5.5 million received from Brown-Forman, $5.4 million was paid to the Old Jack Daniel stockholders, leaving a balance of $100,000. New Jack Daniel received $2,845,574.76 in cash upon the liquidation of Old Jack Daniel. In addition, there were also received accounts receivable worth $527,630.53 and a life insurance policy with a cash surrender value of $17,432.85. By 1956 orders from distributors exceeded the supply of Jack Daniel whiskey and allocation had to be made among the distributors, in part because of a production cutback in 1954. The Jack Daniel whiskeys were then the highest priced domestic whiskeys with the highest profit to the distiller. 64 Here there was a reasonable expectation that the amounts advanced would be repaid (Finding 68) and Brown-Forman had contributed a substantial amount of equity capital to plaintiff. These two factors are important in plaintiff's favor. 65 "Essential to the creation of a debtor-creditor relationship is the existence of a reasonable expectation of repayment at the time of the transaction." Irbco Corp. v. Commissioner, 25 CCH Tax Ct. Mem. 359, 366 (1966); accord Earle v. W. J. Jones & Son, supra, n. 22. Mr. Sam Fleming, President of the Third National Bank in Nashville, a bank which participated in the loan to Brown-Forman, testified that "* * * barring some unforeseen event, like prohibition or depression, * * * they [New Jack Daniel] should be able to pay the $3.5 million loan." And, when it was negotiating for its $19.6 million loan, Brown-Forman prepared sales projections for New Jack Daniel to support the probability of its ability to repay Brown-Forman on time. As it turned out, the projections were conservative when compared with New Jack Daniel's actual sales for the years involved. Finally, the reasonableness of the expectation of repayment was verified by the fact that the loan was repaid in 1963 with interest. In Irbco Corp., supra, at 366, the Tax Court, in emphasizing the fact of actual repayment in determining that a bona fide loan existed, said: 66 Respondent belittles the significance of the repayments made by Irby & Co. He states that even substantial repayment "doesn't control" as a reflection of what the parties intended when the loan was made, citing [cases]. All of these cases involved repayments, but in none was there a substantial repayment at a time when no further advances were being made. Furthermore, the factual complexions of [the cases cited] are unlike that here present. Two involved advances to new businesses with unproven earning ability. In the other, the borrower had no income in several of the years during which advances were made. These factors overcame the importance of repayments. 67 The Government argues that the likelihood of ultimate repayment is, as explained in Affiliated Research, supra, at 342, 351 F.2d at 648, of much less importance than the question of whether repayment is dependent upon the success of the recipient corporation. Even if this is so, and it is so only with the qualification stated above, it is only one factor to be considered and although there are cases finding an advance to be an equity investment even though there was a reasonable expectation of repayment, Fellinger v. United States, 363 F.2d 826 (6th Cir., 1966), the other factors in this case outweigh this consideration. We note that in Fellinger, supra, the lenders had not made a substantial equity investment in the borrower. Moreover, the case at bar is distinguishable from Affiliated Research, supra, on two important grounds: first, the corporation there did not have a substantial amount of equity investment in it, and second, and more important, there was no finding there that there was a reasonable expectation of repayment. 68 We have found (Finding 66) that "Brown-Forman determined that a capitalization of $2 million would be adequate for plaintiff's needs and that the Old Jack Daniel assets would be sufficient to carry on the distillery business." Brown-Forman had years of experience in the whiskey business and was well qualified to make this judgment. That its judgment was correct is borne out by the following facts: (1) upon the liquidation of Old Jack Daniel plaintiff acquired ample cash to supply its needs for working capital (the approximate amount of which was, of course, known to Brown-Forman when the purchase negotiations were proceeding), (2) Brown-Forman never had to make further advances to New Jack Daniel for the operation of the distillery business, and (3) New Jack Daniel was able to pay the $3.5 million loan with interest in 1963. "There is `no rule which permits the Commissioner [of Internal Revenue] to dictate what portion of a corporation's operations shall be provided for by equity financing rather than by debt';" Nassau Lens Co., Inc. v. Commissioner of Internal Revenue, 308 F.2d 39, 46 (2d Cir., 1962), the choice is that of the stockholders. Rowan v. United States, 219 F.2d 51, 54 (5th Cir., 1955). 69 In American Processing and Sales Company v. United States,23 our latest decision in this area (though specifically dealing with a bad debt situation), before looking at the bona fide nature of the debt in question, we first asked whether the purpose of incorporating the borrower was to perpetrate a tax hoax. Here, as well as there, there were valid business reasons for setting up a new corporation. In the instant case, the Old Jack Daniel stockholders refused to sell the company's assets directly to Brown-Forman. They wanted their former assets and business to be the security for the purchase money notes. The way this desire was fulfilled was by having Brown-Forman set up a new subsidiary to buy the Old Jack Daniel stock, with the subsidiary's stock acting as security for the notes given by it in part-purchase of the old company's stock. In addition, Brown-Forman wished to maintain the local identity of the Jack Daniel business to forestall any adverse public reaction to a change in the control of the business. This was done by incorporating New Jack Daniel as a Tennessee corporation with the same name as Old Jack Daniel, by having New Jack Daniel employ the same officers and personnel as Old Jack Daniel, and by never mentioning Brown-Forman's name in Jack Daniel advertising. It was crucial to the assurance of the continued right to distill Jack Daniel whiskey in Moore County, Tennessee, that the Tennessee identity of the distiller be preserved. 70 The Government also argues that the burden was on the plaintiff to show that it could have borrowed the $3.5 million from an unrelated source and on the same terms as those actually granted. It is true that the courts have considered this factor in the past. Matthiessen v. Commissioner of Internal Revenue, 16 T.C. 781 (1951), aff'd 194 F.2d 659 (2d Cir., 1952). But the mere fact that a loan could not be obtained from an unrelated source does not preclude the existence of a bona fide loan. Brighton Recreations, Inc., supra, at 135; American Processing and Sales Company, supra, n. 23, 371 F.2d at 852. In Brighton, supra, the corporation involved was actually unable to secure loans from outside sources, yet countervailing circumstances enable the court to find the existence of a bona fide debt. The case at hand is much stronger (for the taxpayer's position) than those cited for when Brown-Forman borrowed the $19.6 million from its usual banking sources the latter obviously knew and took into account the fact that $3.5 million of that sum was going to be lent by Brown-Forman to New Jack Daniel. In addition, the Third National Bank of Nashville, after having lent Brown-Forman $792,000, lent an additional $300,000 to New Jack Daniel, taking in return its unsecured note.24 See Jaeger Auto Finance, supra, n. 17. 71 The most important factor, in our minds, leading to a decision for the plaintiff, is the obvious awareness of Brown-Forman's bankers that $3.5 million of their loan to Brown-Forman was going to be passed on to the plaintiff. In substance, the bankers loaned $3.5 million to Brown-Forman in reliance on the fact that while Brown-Forman was going to lend that sum to the plaintiff, it had been satisfactorily established that plaintiff was going to be able to repay that sum in 1963. The bankers were most concerned with Brown-Forman having both a debt and equity position in plaintiff. Had that position been solely equity, as the Government contends it was, Brown-Forman's chance of getting repayment of its advance in case of plaintiff's insolvency would be much less than if it also had a creditor standing. Knowing that the $3.5 million was a loan certainly influenced the bankers' decision in estimating the probability of repayment. This situation is very similar to that in Oak Motors, supra, where the Tax Court stated (at p. 524) in allowing the corporate taxpayer an interest deduction on the stockholder's loan: 72 For this purpose, [the stockholder Boyte] was a mere conduit and nothing else. The evidence shows that the Third National Bank * * * considered Boyte's advance — and the note which represented it — to be a bona fide debt of petitioner. This is corroborated by the fact that the bank clearly was relying on repayment of petitioner's indebtedness to Boyte to enable Boyte to repay his own loan, in the same amount, to the bank.25 73 So here, the banks were relying upon repayment of New Jack Daniel's debt to Brown-Forman to enable Brown-Forman to fully meet its loan obligation. Brown-Forman needed timely repayment from New Jack Daniel in order to pay its $9.65 million loan. In this situation, to call the advance made to New Jack Daniel one of equity capital would be to ignore the "substance" of the transaction. Irbco Corp., supra, at 366; Miller's Estate v. Commissioner of Internal Revenue, 239 F.2d 729, 732-733 (9th Cir., 1956). 74 Accordingly, the plaintiff is entitled to recover on its petition and the defendant is not entitled to recover on its counterclaim. Judgment is therefore entered for plaintiff. 75 Since the decision in this case has been limited to the issues of law and fact relating to the right of each party to recover, the amounts of recovery, relying upon our decision herein, will be determined pursuant to Rule 47(c) (2) of the Rules of this court. Notes: * This case was referred to Trial Commissioner Roald Hogenson, with directions to make findings of fact and recommendation for conclusions of law. The Commissioner has done so in an opinion and report filed April 28, 1966. Exceptions were filed by the plaintiff to the commissioner's second recommended conclusion of law in regard to the defendant's counterclaim and by the defendant to the commissioner's first recommended conclusion of law. The court is in agreement with the findings of the commissioner as to both issues. We have adopted his recommended opinion except in regard to the defendant's counterclaim 1 Net fair market value is fair market value less any specific mortgage or pledge to which it is subject. Treas.Reg. § 1.334-1(c) (4) (viii), supra. None of the assets in question was subject to a mortgage or pledge. Therefore, fair market value and net fair market value are the same for the purposes of this case 2 The defendant has accepted plaintiff's valuations of all assets other than the three in dispute. Therefore, even if the valuations in dispute are resolved in defendant's favor, plaintiff is entitled to a refund as to the assets no longer in dispute, subject to the decision on defendant's counterclaim 3 Defendant's valuation in a larger amount than allowed by Internal Revenue as the fair market value of the unbottled inventory is another reason why plaintiff would be entitled to a refund, even if defendant's present valuation prevails 4 See generally, 10 Mertens, Federal Income Taxation, § 59.01. (Zimet rev., 1964) 5 Defendant has attacked the negotiations between Old Jack Daniel and Brown-Forman as being either nonexistent or solely a sham for tax purposes. The trial commissioner viewed and appraised the witnesses and concluded that the negotiations took place as described in the findings. Defendant argues that because tax considerations were important to the parties and both parties had an incentive to overstate inventory value (for Old Jack Daniel stockholders, in order to secure a high sales price for the shares of stock and insure payment; for Brown-Forman, in order to get a higher basis), the valuation negotiations were necessarily solely tax-oriented. Of course, that conclusion does not necessarily follow from the above premises, and the trial commissioner has concluded that the parties to the sale concluded in good faith that the insurance value was the fair market value of the unbottled whiskey inventory 6 Although defendant has couched its argument in terms of use of the label, presumably the same argument would be presented if a purchaser used the Jack Daniel name without the Jack Daniel label. The inventory could have had three different values, depending upon whether the purchaser used (in descending order of value) the Jack Daniel label, the Jack Daniel name, or the term "Tennessee Whiskey." (It is assumed that a bulk purchaser could not be prevented from using the latter term.) As will be developed more fully later plaintiff has presented evidence only as to the highest possible value, and defendant has presented no evidence on any of such values 7 See generally, Paton, Accountants' Handbook, 517 (3d ed. 1947) 8 Gordon, What is Fair Market Value?, 8 Tax L.Rev. 35, 36 (1952) 9 This conclusion is reinforced by defendant's acceptance of plaintiff's valuation for the bottled inventory. Defendant's rationale that plaintiff's valuation is arbitrary because it includes 100 percent of the profit on the bottle-ripe whiskey applies equally to the bottled whiskey and the unbottled bottle-ripe whiskey 10 The $20 million figure should be $18 million. The stock was purchased for $18 million, which price reflects the value of assets less liabilities. The later liquidation of Old Jack Daniel and assumption of its liabilities by plaintiff did not add anything to the purchase price 11 The Court of Appeals stated in a footnote that a similar problem arose in the valuation of the partnership inventory. It did not specifically state so, but it is clear that similar problems would only arise as to the unfinished portion of the inventory, i. e., the cut but unmilled timber, and would not be factors affecting the value of the finished lumber 12 Plaintiff objected to Brown's testimony on the ground that he was not qualified to give an expert appraisal of whiskey inventory value. Defendant's method of developing its valuation was such that it did not require longstanding and intimate knowledge of the whiskey industry. Therefore, such expertise (or lack thereof) is not the deciding factor in considering Brown's testimony. The deciding factor is the inherent validity (or lack thereof) of defendant's theory of valuation, and Brown's testimony must, of necessity, be considered in this light 13 The contract between Brown-Forman and Young's Market gave Young's Market the right to buy a certain amount of bottle-ripe Early Times under the terms of the barrel purchase contract. However, Early Times was not considered an irreplaceable whiskey 14 In oral argument Defendant's able counsel justly called this issue "peanuts" because the classification of the amounts accrued by plaintiff as interest or dividends does not result in there being a great difference in the ultimate tax liability. The reason for this is that the Internal Revenue Code (26 U.S.C. § 243) would grant a parent a deduction for 85 percent of the "dividends" it received from a domestic subsidiary, whereas if it was "interest" the subsidiary would be able to deduct the full amount (26 U.S.C. § 163) and its parent would have to include the full amount in its income (26 U.S.C. § 61). Though in this latter case the parent would lose its dividends received deduction, the two corporations would be better off as a unit. In this case the net saving would be 7.5 percent on each dollar paid by the subsidiary to its parent as interest, i. e., 50 percent of 15 percent (the increased 100 per cent deduction made available by Section 243 (b) of the Internal Revenue Code of 1954 is only available in tax years ending after 12/31/63). This counterclaim was first tendered as an issue by the Government after the "loan" had been repaid, after the commencement of this suit solely on the issue of fair market value, and after plaintiff's (and Brown-Forman's) tax returns passed audit for seven years 15 "The classic debt is an unqualfied obligation to pay a sum certain at a reasonably close fixed maturity date along with a fixed percentage in interest payable regardless of the debtor's income." 4A Mertens, Federal Income Taxation, Section 26.10 (revised, 1966) 16 "The essential difference between a stockholder and a creditor is that the stockholder's intention is to embark upon the corporate adventure, taking the risks of loss attendant upon it, so that he may enjoy the chances of profit. The creditor, on the other hand, does not intend to take such risks so far as they may be avoided, but merely to lend his capital to others who do intend to take them." United States v. Title Guarantee & Trust Co., 133 F.2d 990, 993 (6th Cir. 1943). The creditor "* * * seeks a definite obligation, payable in any event." Commissioner of Internal Revenue v. Meridian & Thirteenth Realty Co., 132 F.2d 182, 186 (7th Cir., 1942). 17 The substance, not the form, of the advances will determine whether they are to be considered as loans or as capital contributions, Crown Iron Works Co. v. Commissioner of Internal Revenue, 245 F.2d 357, 359 (8th Cir., 1957); Jaeger Auto Finance Co. v. Nelson, 191 F.Supp. 693, 697 (D.C.E.D.Wis., 1961); Gilbert v. Commissioner of Internal Revenue, 262 F.2d 512, 513 (2d Cir., 1959), cert. den. 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959) 18 The tests the courts have used in this area have been commented upon in great detail. See Goldstein, Corporate Indebtedness to Shareholders: "Thin Capitalization" and Related Problems, 16 Tax L.Rev. 1 (1960-61); 4A Mertens, supra, n. 15, sections 26.10A-10C and cases cited therein. It is interesting to note that in Mr. Goldstein's opinion, "Section 163 [of the Internal Revenue Code of 1954] should * * * be amended to disallow the interest deduction to a corporation on any indebtedness held by a corporation which owns 80 percent of the value of its stock." Goldstein, supra, at 76. This, however, has not been done to date 19 "Debt is still debt despite subordination."Kraft Foods Co., supra, at 232 F.2d 125-126; also see John Wanamaker Philadelphia v. Commissioner of Internal Revenue, 139 F.2d 644, 647 (3rd Cir., 1943), ("* * * the most significant characteristic of a creditor-debtor relationship [is] the right to share with general creditors in the assets in the event of dissolution or liquidation * * *."). Here we have what can be described as an involuntary subordination. The only way the purchase of Old Jack Daniel could be made was to have the New Jack Daniel stock act as security for the purchase money notes, with the note running from New Jack Daniel to Brown-Forman being subordinated to them. 20 Also seeKraft Foods Co., supra, at 232 F.2d 125; Royalty Service Corp. v. United States, 178 F.Supp. 216, 220 (D. Mont.1959) (the absence of subordination is a strong factor in the taxpayer's favor); Commissioner of Internal Revenue v. O. P. P. Holding Corp., 76 F.2d 11, 12 (2d Cir. 1935) (subordination is not fatal). 21 "* * * Congress evidently meant the significant factor to be whether the funds were advanced with reasonable expectations of repayment regardless of the success of the venture or were placed at the risk of the business * * *." Gilbert v. Commissioner of Internal Revenue, 248 F.2d 399, 406 (2d Cir., 1957); Gilbert v. Commissioner of Internal Revenue, supra, n. 17 22 Earle v. W. J. Jones & Son, 200 F.2d 846, 851 (9th Cir., 1952) 23 Ct.Cl., January 20, 1967, 371 F.2d 842 (1967) 24 The record did not establish that New Jack Daniel would or would not have been able to borrow $3.5 million from an unrelated lender on the same terms as those granted by Brown-Forman. We have found (Finding 74) that "[n]o consideration was given to the possibility of having plaintiff borrow a portion of the required $5.5 million from someone other than Brown-Forman, because Brown-Forman'sbankers wanted all of the outside debt consolidated in the Brown-Forman debt structure with them." This finding justifies giving little weight, if any, to the outside source factor. (Emphasis supplied.) 25 It is to be noted that the note given by the corporation to Boyte was subordinated to the rights ofall of the corporation's other creditors. Oak Motors, supra, at 522.

4 Cal.4th 599 (1992) 842 P.2d 1160 15 Cal. Rptr.2d 400 THE PEOPLE, Plaintiff and Respondent, v. WILLIAM ADOLF NOGUERA, Defendant and Appellant. Docket No. S005170. Crim. No. 26428. Supreme Court of California. December 28, 1992. *611 COUNSEL Donald Specter and Alison Hardy, under appointments by the Supreme Court, and Arnold Erickson for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Harley D. Mayfield, Assistant Attorney General, Rudolf *612 Corona, Jr., and Janelle B. Davis, Deputy Attorneys General, for Plaintiff and Respondent. OPINION ARABIAN, J. Defendant William Adolf Noguera was convicted by a jury of one count of first degree murder. (Pen. Code, §§ 187, 189; all statutory references are to this code except as indicated.) The jury also found that in committing the murder, defendant used dangerous and deadly weapons, namely, a martial arts tonfa and a wooden dowel (§ 12022, subd. (b)); it also found true a special circumstance allegation that the murder was committed for financial gain. (§ 190.2, subd. (a)(1).) Following a penalty trial, the jury returned a verdict of death. We affirm the judgment. FACTS I. GUILT PHASE EVIDENCE A. The murder of Jovita Navarro: the prosecution's case. Sometime between 11:30 on the night of April 23, 1983, and 4:30 the following morning, Jovita Navarro was murdered in the bedroom of her La Habra bungalow. La Habra police found Jovita's body after being summoned by a "911" call from Mindy Jackson, Jovita's next-door neighbor. After securing the area, investigating officers went to the Jackson residence where they interviewed Dominique Navarro, Jovita's 16-year-old daughter. Dominique told them she had returned from a date with her then-18-year-old boyfriend around 2:00 that morning; after chatting briefly with her mother, who was reading in bed, and removing her makeup, Dominique had gone to bed and to sleep. She was awakened a few hours later, she said, by muffled noises coming from her mother's adjacent bedroom. After a few minutes, Dominique heard her mother cry out, "get out, mi hija ("hija" is Spanish for "daughter"), get out, mi hija." Frightened, and unsure what was afoot in the darkened house, Dominique told Mindy Jackson that she sat at the end of her bed for "about 5 to 15 minutes," before running blindly down the hall and out the back door. As she ran, she heard a "thumping" sound coming from her mother's bedroom, followed by what sounded like the footsteps of someone close behind her. Reaching Mindy Jackson's house, Dominique banged on the door until Jackson answered. In tears and near hysteria, according to Jackson, Dominique said that someone was hurting her mother; she begged Jackson to return *613 to the house with her. Jackson refused. Instead, she managed to telephone 911. Authorities logged in the emergency call at 4:43 a.m. To the casual observer, the murder scene suggested that Jovita had been killed in the course of a combined rape and burglary. Her body was found lying across the bed, her feet touching the floor. Her nightgown had been pulled up around her neck, and a pair of blue women's underpants was wadded between her thighs. The contents of the bedroom were in disorder — bedding and blankets had been pulled from the bed and thrown haphazardly on the floor; a jewelry box, normally resting on a dresser, was found upended on the hall floor, its contents of costume jewelry scattered along the hallway. Jovita had been badly beaten, mainly on the face and head. She had suffered extensive facial injuries, including dental and eye damage from at least 18 blows to the face and head; her skull had multiple depressed fractures and her scalp had been loosened and torn by the force of the beating; her nose almost touched her left cheek and "defensive wounds" were evident on her arms and hands. On her left thigh, examiners found oval shaped wounds.[1] Blood was spattered on the walls, furniture, and ceiling of the bedroom. The pathologist who examined the body testified that the proximate cause of Jovita Navarro's death was not the beating but asphyxiation — induced by pressing a rounded object against her throat with such force that her larynx was crushed, choking off her airway. Extensive cyanosis, or blueing, of her lips and pinpoint hemorrhaging beneath her eyelids confirmed that Jovita had, in effect, been strangled. Had she not died from a lack of oxygen, the pathologist concluded, the severity of the beating would have resulted in her death. In the bedroom, La Habra police investigators found a "tonfa," a martial arts weapon fashioned from red oak and resembling a police baton; it lay shattered in two pieces, testimony to the savagery of the beating. In a neighboring yard, police recovered a piece of wood shaped like a broom handle, with traces of blood on it. In another yard, they found a bloodstained tan leather glove; bloodstains were also found on a cinder block wall adjoining a nearby lot. The bloodstains on the tonfa, the wooden dowel, and the glove were the same type as Jovita's. An analysis of fibers removed from *614 the brick wall and the glove were consistent with those found on the bedroom blanket. La Habra and Orange County authorities began an extensive forensic investigation of the crime scene. As a result, investigators concluded that much of the evidence pointing to a burglary and rape/murder of Jovita had been faked. An autopsy failed to reveal the presence of sperm in Jovita's vagina. An analysis of vaginal swabs was consistent with a finding that the victim might have had intercourse several hours earlier the preceding evening, but there was no external evidence of sexual trauma consistent with a forcible rape. Tests of the blue underwear for semen or other stains indicative of forcible sex were negative. Although the bedroom appeared to have been rifled, nothing of value was missing, including a clear plastic change purse stuffed with small bills that the intruder could not have overlooked. The jewelry box had been knocked from its place and its contents scattered, but none of the jewelry had been taken. An analysis of the blood-spattering pattern on the bed linen suggested that it had been removed from the bed and arranged on the floor after the murder, rather than during a struggle. Moreover, the spatter analysis indicated that Jovita had probably been murdered before the contents of the bedroom had been upended. Finally, investigators could find no evidence that Jovita's killer had gained entry into the house by force. The on-scene criminalist, examining the body at 6:30 that morning, initially estimated the time of death at between three and six hours prior to his examination, or between 12:30 and 3:30 a.m. Although routine examinations for lividity and rigor mortis — two crude measures used to approximate time of death — confirmed that estimate, it was later revised upward, to 4:45 a.m., based on Dominique's statement to the police that she had heard her mother cry out around 4:30 that morning. After conducting an autopsy on the morning of April 24, the examining pathologist concluded on the basis of the quantity and state of the contents of her stomach that Jovita died sometime between 12:30 and 2:30 that morning. Another criminalist, who observed the body at the autopsy, testified that the 4:45 a.m. time of death stated in the certificate of death was based on Dominique's account of the murder. Although that hour was not substantially out of line with the results of the lividity and rigor tests, had it not been for Dominique's statement the condition of the body suggested that death *615 had occurred between three and seven hours earlier, or between 11:30 the preceding evening and 3:30 that morning.[2] An inquiry into Jovita's financial circumstances disclosed that she carried $13,000 in life insurance and at the time of her death had approximately $14,000 in accumulated retirement benefits from her job as an Orange County welfare clerk. The house, with a market value of around $90,000, had an existing mortgage balance of $7,000; Jovita carried mortgage insurance in the event of her death. Dominique was her sole heir. As their investigation deepened, police learned from interviews with Margaret Garcia, a coworker, and Mindy Jackson that relations between Jovita and Dominique's boyfriend, the defendant, were not always pleasant. Jovita had quarrelled with both over Dominique's repeated violations of curfew hours, over her pregnancy and subsequent abortion, and over what Jovita regarded as a steep decline in Dominique's schoolwork and attendance beginning with the onset of her relationship with defendant. Garcia and Jackson both testified that Jovita was planning to sell the house and move to the beach, or to enlist Dominique in the Army, in an attempt to separate her from defendant. According to Garcia, Jovita had considered hiring a "hit man" to kill defendant. About two weeks before her death, Garcia said, Jovita told her that she had awakened in the middle of the night to find the front door open and all the outside lights off. Jovita found Dominique wandering the house; Dominique told her that she had opened the front door, but could not explain why. About two or three weeks before Jovita's murder, Jackson had witnessed her screaming into the telephone and had seen Dominique in the bathroom crying. Jovita had slammed down the handset and said that she "hated" defendant and didn't want to hear his name again. "If he [defendant] is going to use his karate on me, he has another thing coming," Jackson reported Jovita as saying. Through interviews with Dominique and defendant, authorities learned that on the night of Jovita's death the two had gone to a party in West Covina about 7:00. They left around 11:30 that evening, they told police, and went for a hamburger with a friend; after dropping their friend off, they parked for an hour or two, returning to Jovita's house between 1:30 and 2:00 a.m. Dominique let herself in, locked the front door, opened a sliding glass door at the rear of the house in order to let the family dogs out, and turned off the outside lights. After chatting briefly with her mother, she went to bed. *616 Defendant told police that after leaving Dominique's house, he went home. Because he had missed the 1:30 curfew set by his mother, he had to knock on the front door to get in. His grandmother, who was watching television with his mother, let him in. After talking with them and being lectured by his mother about being late, he went to bed. La Habra police also interviewed Peter LaCombe, a diesel mechanic employed by the county who had been dating Jovita for about two weeks before her death. LaCombe had spent the evening of April 23 with Jovita at her house. The two ate a substantial dinner around 7:30 and then danced and watched television. Around 11:00 that evening, LaCombe testified, he left for home. From interviews with the adjoining neighbor, Mindy Jackson, police learned that Jackson and her husband had entertained a friend, Tom Brooks, on the night of the murder. All three had heard loud noises coming from the Navarro house around 11:00 p.m. Brooks testified that he had gone outside to investigate but had noticed nothing remarkable; the house was dark and the sliding glass door at the rear was closed. Later that night, they heard what Brooks described as "really radical noises" next door. The three had gone outside about 1:45 a.m. They heard Jovita's two dogs barking and growling; there were no lights either outside or inside the Navarro house. Despite discrepancies in the accounts given by Dominique and defendant and others interviewed, and suspicions presented by the forensic analyses, police made no arrests in the case until late in the year. In December, the police inspector assigned to the investigation, Sergeant Keltner, received a tip from Steve Arce, an acquaintance of defendant, that Ricky Abram might have information relevant to the homicide investigation. Keltner interviewed Abram on December 14, 1983, at the Ione Juvenile Detention Facility near Sacramento, where Abram was an inmate. He tape-recorded most of their conversation. In substance, Abram testified at trial that he decided to disclose his knowledge of the murder scheme after Keltner told him of his possible criminal liability for Jovita's murder. Abram told the jury that in March 1983, a few weeks after he first met defendant, the two had driven in defendant's car to pick up Dominique at her house. On the way over, defendant told Abram that he intended to kill Dominique's mother. He asked for Abram's help in borrowing a shotgun for that purpose. After picking up Dominique, the three drove to Bob's Big Boy, a nearby restaurant. There, according to Abram, they discussed in detail defendant's plan to murder Jovita. *617 The murder, Abram testified, would be staged to look as if Jovita had been killed by a burglar in the middle of the night. Dominique's role would be to let the two men into the house; Abram would fake the burglary and take any items of value; defendant would kill Jovita with a shotgun blast. Defendant and Dominique would then have intercourse, Abram said, after which Dominique, feigning a rape, would run hysterically next door to report the break-in and murder/rape. For his part in the crime, defendant promised Abram $5,000 from the $25,000 obtained from "the mother's insurance." In addition to his share of the insurance, Abram told the jury, defendant promised he could live in Jovita's house with defendant and Dominique, since "the house would be passed on to the daughter after the mom's death." After leaving the restaurant and returning Dominique to her house, defendant dropped Abram off. In early April, Abram was arrested for auto theft, convicted and imprisoned. He testified that he did not see defendant or Dominique again until the trial, regarded the murder scheme as a "joke," and did not learn of Jovita's death until Keltner told him. Police interviews with others provided additional evidence of defendant's involvement in the murder. Steve Arce told the jury of a fight he had with defendant around the Easter preceding Jovita's death. Defendant had used his feet to quickly knock Arce to the ground. Arce had also seen tonfas in defendant's car and had seen defendant spinning a tonfa in his hand. He had seen defendant wearing tan leather motorcycle gloves on occasion, and had seen him with Ricky Abram. He also related an incident about a month before Jovita's death in which defendant kicked two individuals in a street encounter, knocking one of them to the ground in "thirty seconds maybe," using martial arts techniques. A couple of weeks before the murder, Arce had heard defendant complain about Jovita's interference in his relationship with Dominique; defendant had said that he wanted "to kill that bitch," referring to Jovita. In the months following Jovita's death, investigators learned, Dominique spoke frequently with defendant by telephone from an uncle's house, where she was now living. Once, the uncle testified, he overheard Dominique complain after completing a call from defendant that she did not want to call the family attorney again; she was upset, her uncle said. The attorney, Dominique's cousin, confirmed that Dominique made a growing number of telephone calls to him in the months following Jovita's death; her questions centered on the disposition of the family home and details concerning the amount of Jovita's insurance, the sums due creditors, and any surplus in the estate; Dominique was "very emphatic," he testified, that she did not want the house to be sold. That June, the attorney attended a meeting with *618 defendant, his mother, Dominique, and another lawyer at which the possibility of Dominique's legal emancipation was discussed. In December 1983, authorities arrested Dominique and defendant. Charged with one count of conspiracy to commit murder and one count of first degree murder, Dominique was tried as a juvenile, convicted and sentenced to the custody of the Youth Authority; her conviction was affirmed on appeal. B. The defense case. Defendant testified in his defense. His relations with Jovita were "fair," he said; sometimes they got along well, sometimes not. He had lived at the Navarro residence for a few months in 1982 with Jovita's consent. The three regularly had dinner out about once a month. Defendant denied any involvement in Jovita's death. He had talked to Ricky Abram once about selling him an automobile engine; they had gone to Bob's Big Boy with Dominique. While they had lunch, Dominique had complained that her mother had restricted her for coming home late. He never saw Abram again. Defendant had studied martial arts as a young teenager, but had not earned a black belt and had no training in the use of a tonfa; nor had he ever owned one. He had been badly stabbed in the thigh in a fight in June of 1982, still walked with a limp and had difficulty stretching one of his legs. He had never had any knowledge of Jovita's life insurance. On the night of Jovita's murder, defendant testified, he had gone with Dominique to a party in West Covina. After a hamburger with a friend, the two had parked for awhile. He dropped Dominique off at her house around 2:00 that morning, went home and, after talking with his mother and grandmother, went to bed. About 3:30 a.m., he heard a knock on his window. It was Margaret Noone, a friend; he let her in and she stayed in bed with him for about an hour before leaving by the window. Around 6:00 a.m., Dominique had telephoned; she was very upset; defendant dressed and left immediately for her house. Defendant's sister supported his testimony regarding the injury to his leg and the fact that he had never received training in or owned a tonfa. His grandmother confirmed that defendant had arrived home around 2:00 on the morning of Jovita's murder. Defendant's mother testified that he returned home at exactly 2:00 on the morning of April 24, 1983 — she had been watching a program on Spanish television and remembered the time. She spoke to defendant briefly as to *619 why he was late. Later that night, defendant's mother heard the sound of voices in her son's room. Through the door, she asked defendant who was there; he told her to go to sleep and later refused to tell her the identity of his visitor. Asked about the meeting with Dominique's attorney in June of 1983, at which Dominique's legal emancipation was discussed, Mrs. Noguera testified that she had earlier accompanied Dominique to the Social Security office in an effort to help her receive some benefits — she had been without any income in the five months since her mother's death. A previous attorney had done nothing, and Dominique needed help. Margaret Noone testified that around 3:00 a.m. on April 24, 1983, she had climbed into the window of defendant's bedroom and stayed for about one and one-half hours. She left when she heard someone knocking on the bedroom door. Two of defendant's friends testified to prior conversations with Ricky Abram and Steve Arce. Wilbur Boring told the jury that in December of 1983, after he had implicated defendant in Jovita's murder, Abram had told him that "he [defendant] got what he deserved; he put me in jail so I put him in jail." Patrick Reese testified that Arce had told him that he cooperated with the police in exchange for immediate release on a felony charge; Arce had observed a pair of nunchuku sticks in defendant's possession, not tonfas, and had told Reese that he (Arce) should not have told the police some of the things he told them. C. Rebuttal. The prosecution recalled Margaret Noone to the stand. She stated that, in testifying on behalf of defendant, she had "lied... [about] basically almost everything" because she "was getting threats if I didn't say something like that [i.e., her alibi testimony] something would happen to me or my family because [defendant] has such powerful friends, even though he's in jail." She had seen nunchuku sticks in defendant's car, and he liked to "mess around with them." Noone told the jury that she had been granted immunity from prosecution by the People. In addition, the trial court took judicial notice that Dominique had been called as a witness by the prosecution, had refused to testify, and been adjudged in contempt of court. A deputy marshal testified that shortly after Dominique was held in contempt, he heard defendant say to another inmate that Dominique "did a good job and tell her I love her." *620 II. PENALTY PHASE EVIDENCE A. The prosecution's case. John Antenucci testified that in August 1983, he placed a newspaper advertisement to sell a used Volkswagen. Accompanied by a friend, defendant responded to the advertisement and expressed an interest in buying the automobile. The three went for a test drive, during which defendant stopped the car and told Antenucci to get out because his friend "has a gun." Defendant's friend displayed a handgun and threatened to shoot Antenucci, who managed to grab the car keys and escape. B. The defense case. Defendant called 15 witnesses, including a former employer, his high school girlfriend, and several friends of his family. Several witnesses testified that defendant's family was very close until his parents were divorced in 1980. His mother testified that defendant, who had hunted, fished, and gone on motorcycle trips with his father, appeared to take the divorce hard; he became quieter, more serious, less playful. She asked the jury to spare her son's life. Defendant's sister and grandmother also asked the jury not to impose the death penalty. Several witnesses testified to defendant's participation in the California Blue Jacket Cadette Corps, a youth organization modeled on the Navy. Junior high school authorities testified to his participation in such sports as basketball, track, softball, and football; elementary school employees testified that defendant's parents had been involved actively in his schooling. DISCUSSION I. GUILT PHASE ISSUES A. Claims of evidentiary error. 1. Admission of victim's hearsay statements. (1a) Defendant contends that the trial court erred in admitting into evidence over objection — through the testimony of Mindy Jackson, a neighbor, and Margaret Garcia, a coworker of Jovita — several statements in which Jovita expressed both fear and a dislike amounting to hatred of defendant. If offered to prove that defendant was the killer, the statements obviously were relevant: they tended to prove that he had made threats of physical harm to *621 Jovita in the past and, inferentially, that he carried them out on the night of April 23. For that purpose, however, the statements were hearsay and inadmissible unless authorized by a recognized exception. (Evid. Code, § 1200.) The People argue that, although hearsay, Jovita's statements were admissible, not to prove their content (that is, that defendant in fact made such threats, thereby supporting the inference that he later carried them out), but for the limited purpose of establishing Jovita's state of mind at or near the time she was murdered. Such a limited "state of mind" exception is authorized by Evidence Code section 1250, subdivision (a)(1), which provides in substance that, if not otherwise untrustworthy, hearsay statements reflecting an existing state of mind of the speaker are not inadmissible when limited to proof of the declarant's state of mind.[3] The People's argument, however, overlooks an essential requirement of Evidence Code section 1250. Apart from a single anomaly, our cases approving the admission of hearsay statements under the exception codified in Evidence Code section 1250, subdivision (a)(1) — the state of mind exception — explicitly recognize the requirement that the declarant's mental state be factually relevant; that is, that it be, in the words of the statute, "itself an issue in the action." In People v. Ruiz (1988) 44 Cal.3d 589, 607-610 [244 Cal. Rptr. 200, 749 P.2d 854], for example, we held that the trial court's admission of the hearsay testimony of three murder victims expressing their fear of the defendant was error because "neither the states of mind of these victims prior to their deaths ... nor their acts or conduct ... were an issue in the case which might have been resolved or assisted by the challenged evidence." (Id. at p. 608.) "As our cases have made clear," we said, "`a victim's out-of-court statements of fear of an accused are admissible under [Evidence Code] section 1250 only when the victim's conduct in conformity with that fear is in dispute. Absent such dispute, the statements are irrelevant.'" (Ibid., quoting from People v. Armendariz (1984) 37 Cal.3d 573, 586 [209 Cal. Rptr. 664, 693 P.2d 243]; see also People v. Thompson (1988) 45 Cal.3d 86, 103 *622 [246 Cal. Rptr. 245, 753 P.2d 37]; People v. Bunyard (1988) 45 Cal.3d 1189, 1204 [249 Cal. Rptr. 71, 756 P.2d 795]; People v. Ireland (1969) 70 Cal.2d 522, 529 [75 Cal. Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323].) We went on to observe in People v. Ruiz, supra, 44 Cal.3d 589, that "a victim's prior statements of fear are not admissible to prove the defendant's conduct or motive (state of mind). If the rule were otherwise, such statements of prior fear or friction could be routinely admitted to show that the defendant had a motive to injure or kill." (Id. at p. 609; italics in original.) The anomaly in our case law, People v. Merkouris (1959) 52 Cal.2d 672 [344 P.2d 1], upheld the admission of hearsay statements by two murder victims concerning threats against them by the defendant, offered to prove that the threats were carried out in the subsequent homicides. That holding, however, as we pointed out in People v. Ruiz, supra, 44 Cal.3d at page 609, was repudiated by the Legislature in 1965 (when it enacted subdivision (b) of Evidence Code section 1250) as one "`based on a rationale that destroys the very foundation of the hearsay rule.'"[4] (2) Thus, hearsay statements of victims concerning fears of or threats against them by the accused, when offered to prove the conduct of the accused, are not within the exception to the hearsay rule embodied in Evidence Code section 1250. (1b) Here, neither Jovita's state of mind nor her conduct was relevant to any part of the People's case; nor did the defense raise any issue concerning her state of mind or behavior at or before the night she was murdered. The entire thrust of the defense case went to the identity of the killer and defendant's alibi that he was attending a party miles away from the crime scene for much of the evening and spent the remainder of the night at home with his family. Jovita's state of mind or conduct not being an issue in either the prosecution or defense case, her hearsay statements reflecting dislike and fear of defendant failed to satisfy the requirement that the declarant's "state of mind, emotion, or physical sensation ... [be] itself an issue in the action." (Evid. Code, § 1250, subd. (a)(1).) It was thus error for the trial court to admit them into evidence. (People v. Ruiz, supra, 44 Cal.3d at p. 609.)[5] Although error, we conclude that the admission of Jovita's hearsay statements does not require reversal. While much of its evidence — apart from the *623 testimony of Ricky Abram and Steve Arce — was circumstantial, the prosecution presented a strong case supporting the conclusion that Jovita Navarro was murdered by defendant. Moreover, much of the testimony admitted as part of what defendant contends was "frustrated mother's gossip" was heard by the jury through other witnesses — both defendant and Dominique admitted that his relations with Jovita were not always good, that she wanted Dominique to date others and was concerned about the decline in Dominique's schoolwork. Finally, the trial court gave the jury an instruction limiting the use it could make of the challenged hearsay testimony to Jovita's state of mind — a limitation repeated by the prosecutor in his closing guilt phase argument to the jury.[6] Despite the error, admission of the hearsay statements added little to a substantial case pointing to defendant's guilt. For that reason also, we reject defendant's claim that admission of Jovita's hearsay statements violated his rights secured under the confrontation clauses of the federal and the California Constitutions. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) In light of the substantial evidence pointing to defendant's guilt, we conclude that the error in admitting the challenged hearsay statements was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065].) 2. Admission of character evidence. (3) Defendant next argues that it was error to admit, over a timely objection, Steve Arce's testimony relating his fight with defendant (in which defendant used martial arts techniques), and a subsequent street fight (in which defendant again used martial arts techniques to quickly knock down one of his opponents). Arce's testimony should have been excluded under Evidence Code section 1101, defendant argues, because it was nothing more than evidence of "prior bad acts," in effect used by the prosecution to show that defendant was a "bad character," who habitually used martial arts to beat up others. As relevant here, Evidence Code section 1101 provides that character evidence (whether shown by opinion, reputation, or conduct) is inadmissible to prove conduct on a specific occasion. Evidence of a crime or other acts is admissible, however, when relevant to prove a fact other than a disposition to commit such acts. Both sides acknowledge that defendant's familiarity with martial arts was shown by other evidence. Indeed, defendant contends that the challenged *624 testimony was inadmissible under Evidence Code section 1101 because it was "merely cumulative" (People v. Thompson (1980) 27 Cal.3d 303, 318 [165 Cal. Rptr. 289, 611 P.2d 883]). The People argue that Arce's testimony concerning the martial arts incidents was directed at countering testimony of defendant and his sister, as well as statements by Dominique in the transcript of her police interview, that defendant had only limited use of his left leg since being stabbed in the thigh with a knife a year before Jovita's murder and thus could not have used martial arts on Jovita. At trial, the prosecutor's theory supporting the admissibility of Arce's testimony was that it "puts [defendant's] familiarity with martial arts very close to the [date of the] victim's death." At the prosecution's request, the trial court gave a limiting instruction, telling the jury that the challenged martial arts testimony "was not offered to prove that the defendant is, in fact, a bad person, but as to the value it may have to you as to his knowledge of martial arts and skills therein." In addition, at the close of the guilt phase, the trial court gave the jury a more extensive instruction similarly limiting the use of Arce's martial arts testimony. The rationale offered by the prosecutor adequately identified an exception to the bar on admissibility imposed by Evidence Code section 1101. It is true that, as the defense points out, there was other evidence that defendant had studied and practiced martial arts. That evidence, however, was comparatively remote in time to the murder. The testimony of Arce placed defendant's use of his martial arts skills — linked to the crime scene by the presence of the broken tonfa — to within one month of Jovita's murder. In addition, the evidence was relevant to prove defendant's identity as Jovita's killer, an additional exception to the bar of section 1101. (Evid. Code, § 1101, subd. (b).) Under the circumstances, we conclude there was no error.[7] 3. Admission of Dominique's hearsay statements under the coconspirator exception. (4) Next, defendant contends that certain statements of Dominique — made in the course of a police interview on the morning of April 24th, to Mindy Jackson on the same day, and to a private attorney several months later — were erroneously admitted into evidence under Evidence Code section 1223, the coconspirator exception to the hearsay rule, despite a defense objection. We conclude that, for the most part, the statements of Dominique were offered for a nonhearsay purpose, that is, to establish the existence of *625 a conspiracy between Dominique and defendant by demonstrating that Dominique was lying to the police and to Mindy Jackson in the account she gave them of her role in Jovita's murder. These statements were thus not subject to the strictures of Evidence Code section 1223. The remaining statements, relating to the existence of an "insurance conspiracy" between Dominique and defendant and made to her lawyer several months after the killing, were offered to prove the truth of the matter stated therein. However, although hearsay, they fell within the coconspirator exception of Evidence Code section 1223. The statements at issue consist of Dominique's description of the events surrounding Jovita's murder (e.g., her return home from her date with defendant, retiring only to be awakened by thumping sounds and her mother's screams) made to Mindy Jackson on the morning of April 24; a tape recording of Dominique's "hysterical" 911 call made about the same time; and statements made by Dominique to investigating officers the day after the murder, including a tape recording of a two-hour police interview that evening. In addition, questions asked by Dominique of her lawyer concerning the nature and value of the assets of Jovita's estate and related matters, together with an uncle's testimony concerning an overheard telephone conversation between Dominique and defendant, were admitted into evidence. It is plain from the record before us that the facially exculpatory statements made by Dominique to Mindy Jackson, the 911 operator, and the investigating officers were not offered by the prosecution to prove the truth of their content. Rather, they were offered to help demonstrate to the trier of fact the existence of a preconceived plan by defendant and Dominique to murder Jovita and plant a false trail of evidence indicating a burglary and rape gone awry. Given that evidentiary role, the nonhearsay statements were not subject to the independent corroboration requirements of Evidence Code section 1223. (Evid. Code, § 1200, subd. (a).) (5) The remaining statements of Dominique challenged by defendant as inadmissible under the coconspirator exception were offered by the prosecution to prove the truth of their content. If credited, they suggest to the trier of fact that the alliance between defendant and Dominique encompassed not only Jovita's murder, but receipt of the assets of her estate, including her house, life insurance, and pension income. Given the prosecution's theory of the case, embracing successive but interdependent objectives, the precise evidentiary issue with respect to Dominique's statements to her lawyer and in the telephone conversation with defendant is whether there was evidence sufficient to support a prima *626 facie finding of a so-called "insurance conspiracy" (People v. Leach (1975) 15 Cal.3d 419, 436 [124 Cal. Rptr. 752, 541 P.2d 296]) independent of the challenged declarations. We conclude that there was such evidence in the testimony of Ricky Abram. If credited by the trier of fact, Abram's testimony established the existence of a plan among the three conspirators to murder Jovita, and subsequently to divide the proceeds of her estate and reside together in the Navarro household. Abram's testimony alone was sufficient to establish the three preliminary facts necessary for the admission of hearsay statements under the coconspirator exception, that is, that Dominique was participating in the conspiracy at the time she made the statements, that her declarations were in furtherance of the conspiracy, and that the defendant was a member of the conspiracy at the time the declarations offered against him were made. Although made months after Jovita's death, Dominique's statements to her attorney, occurred at a time when the ultimate objective of the conspiracy — securing the life insurance proceeds and the house — had yet to be achieved. (People v. Hardy (1992) 2 Cal.4th 86, 139 [5 Cal. Rptr.2d 796, 825 P.2d 781]; People v. Sully (1991) 53 Cal.3d 1195, 1231 [283 Cal. Rptr. 144, 812 P.2d 163]; People v. Leach, supra, 15 Cal.3d at p. 430-431, fn. 10; People v. Saling (1972) 7 Cal.3d 844 [103 Cal. Rptr. 698, 500 P.2d 610].) Finally, because Dominique's statements fell within an exception to the hearsay rule that is "firmly ... rooted in our jurisprudence," no independent inquiry into their reliability need be undertaken for purposes of satisfying the confrontation clause of the federal Constitution. (Bourjaily v. United States (1987) 483 U.S. 171, 183 [97 L.Ed.2d 144, 157, 107 S.Ct. 2775]; see also People v. Hardy, supra, 2 Cal.4th 86, 151; People v. Sully, supra, 53 Cal.3d 1195, 1231; People v. Brawley (1969) 1 Cal.3d 277, 286-291 [82 Cal. Rptr. 161, 461 P.2d 361].) We therefore reject defendant's claim to the contrary. 4. Admission of Dominique's hearsay declarations regarding her use of makeup. Over a defense objection, the trial judge permitted Mindy Jackson to relate to the jury a statement made to her by Dominique "two or three months" before Jovita's murder to the effect that Dominique maintained a good complexion by removing her makeup every night before going to bed. On the basis of that statement, combined with observations of Jackson and a responding officer that Dominique had makeup running down her tearstained face when interviewed early on the morning of April 24, the prosecution was able to argue to the jury that Dominique's account of Jovita's *627 murder (i.e., that she was awakened by sounds from her mother's bedroom) was fabricated. (6) Defendant contends that the only possible basis for admitting Dominique's hearsay declarations concerning her nightly practice of removing her makeup is the coconspirator exception of Evidence Code section 1223. However, defendant argues, the statement fails to satisfy the requirement that it be made "in furtherance of the objective of [the] conspiracy." (Evid. Code, § 1223, subd. (a).) Moreover, defendant argues, the erroneous admission of Dominique's hearsay statements was seriously prejudicial. In his closing argument, the prosecutor repeatedly referred to the fact that Dominique was wearing makeup when she appeared at Mindy Jackson's house the morning after the murder, and the jury asked during the course of its deliberations to review Jackson's testimony. We agree that the challenged hearsay statement did not qualify for admission under the coconspirator exception of Evidence Code section 1223, the basis specifically relied upon by both the prosecution and by the trial court in admitting it. Lacking any apparent connection with the plan to murder Jovita as alleged by the prosecution, the statement could not have been in furtherance of the conspiracy, as required by subdivision (a) of the statute. Defendant's claim that admission of the challenged statement regarding Dominique's makeup habits was "seriously prejudicial" to his defense is substantially undercut, however, by similar evidence in the record which is not challenged, and by the cumulative — indeed, minor — role the contested hearsay statement likely played in the jury's deliberations. Evidence was admitted in the form of a transcript of a tape recording of Dominique's interview with the investigating officers on the day following Jovita's murder in which she stated that, before going to bed on the night of the murder, she had removed her makeup or "most of it." Moreover, as noted, both Mindy Jackson and Officer Rees testified that Dominique was wearing makeup on the morning of April 24. Jackson testified that Dominique wore "heavy makeup," a fact she regarded as "unusual"; Rees testified that Dominique's face was "streaked" with makeup. It was this disparate evidence of Dominique's use of makeup on the morning of April 24 that the prosecution relied on in its closing argument, including, it is true, the hearsay statement of Dominique's makeup habits erroneously admitted by the trial court. The latter testimony, however, constituted only a small part of the entire evidence on the makeup point, the bulk of which was unchallenged. Likewise, the jury's mid-deliberation request for a transcript of Mindy Jackson's testimony was part of a request for transcripts of the testimony of *628 Peter LaCombe and Tom Brooks. With respect to Jackson's testimony, the jury asked specifically for extracts concerning "observations of Dominique when she came to the [Jackson's] front door." In context, the request suggests that the jury was interested in reviewing much of the testimony surrounding the events of the night of April 23-24, including Dominique's appearance when she knocked on Mindy Jackson's door that morning, rather than the erroneously admitted hearsay statement regarding Dominique's nightly practice of removing her makeup. Given the early hour, and Dominique's testimony that she had been awakened from sleep by the sounds of a struggle, it is likely that a reasonable juror would be more impressed with the fact that Dominique was wearing makeup at all, rather than by the contested "habit" evidence that she always removed her cosmetics before going to bed. We conclude, therefore, that although not admissible under the coconspirator exception, it is not reasonably probable that defendant would have obtained a more favorable result had Dominique's hearsay statement not been admitted. B. Accomplice issues. 1. Admission of Ricky Abram's prior consistent statement. In his cross-examination of Ricky Abram, defense counsel suggested that the witness had a motive to fabricate his testimony because of his prior confinement under California Youth Authority jurisdiction, subsequent arrests following his California Youth Authority discharge, and an expectation of benefits in exchange for his favorable testimony against defendant. On redirect examination, the trial court permitted the prosecution, over objection, to introduce into evidence a tape recording and transcript of the December 1983 interview between Abram and Sergeant Keltner. In all substantial respects, the interview corroborated Abram's trial testimony regarding the origin and details of the conspiracy to murder Jovita. It thus tended to reinforce in the jurors' minds the impression that Abram was truthful. (7) Defendant contends that the tape recording and transcript of Abram's interview with Keltner were inadmissible as a prior consistent statement under Evidence Code section 791 because they failed to meet the requirement that the statement be made "before the bias, motive for fabrication, or other improper motive is alleged to have arisen." (Evid. Code, § 791, subd. (b).) Here, the defendant's claim is that any improper motive Abram might have had arose at the time of the interview with Keltner and thus that, in the words of the codifiers of the Evidence Code, "the logical thrust of the [prior *629 consistent statement] is lost." (See Cal.Law Revision Com. com. to Evid. Code § 791, subd. (b), 29B West's Ann. Evid. Code (1966 ed.) § 791, p. 373.) Defendant relies on People v. Coleman (1969) 71 Cal.2d 1159 [80 Cal. Rptr. 920, 459 P.2d 248], a capital case in which we held it was error to admit, under the prior consistent statement exception, hearsay declarations made by a crime partner of the accused to his wife and father. The People, seizing on the specific nature of the questions concerning a motive to fabricate his testimony asked Abram on cross-examination, rely on our statements in People v. Andrews (1989) 49 Cal.3d 200 [260 Cal. Rptr. 583, 776 P.2d 285], and People v. Bunyard, supra, 45 Cal.3d 1189, that "`[t]he mere asking of questions [by the defense] may raise an implied charge of improper motive ...'" (49 Cal.3d at p. 210, quoting 45 Cal.3d at p. 1209), thus invoking the exception of Evidence Code section 791, subdivision (b). We addressed this precise question in People v. Hayes (1990) 52 Cal.3d 577 [276 Cal. Rptr. 874, 802 P.2d 376]. There, the defendant argued that it was error to admit into evidence a prior consistent statement by a prosecution witness offered to rehabilitate his testimony because the witness was on probation at the time of the statement and otherwise had motives to fabricate. We framed the issue presented by these circumstances as being "whether, when a witness's testimony may have been influenced by multiple biases or motives to fabricate, a prior consistent statement is admissible if made before the existence of any one or more of the alleged biases or motives to fabricate or only if made before the existence of all such biases and motives." (52 Cal.3d at p. 609, italics in original.) In resolving the issue in People v. Hayes, supra, 52 Cal.3d 577, we cited and relied on People v. Andrews, supra, 49 Cal.3d 200, 210-211, and summarized Andrews as deciding, "in effect, that a prior consistent statement is admissible if it was made before the existence of any one or more of the biases or motives that, according to the opposing party's express or implied charge, may have influenced the witness's testimony. [Citations.]" (52 Cal.3d at p. 609.) Our statement of the issue and the controlling legal rule in People v. Hayes, supra, focuses on the governing inquiry in administering Evidence Code section 791, namely, that a prior consistent statement is admissible as long as the statement is made before the existence of any one of the motives that the opposing party expressly or impliedly suggests may have influenced the witness's testimony. Here, the thrust of defense counsel's cross-examination of Ricky Abram sought to explore, in light of his cooperation in testifying against defendant, *630 the existence and nature of any agreements with law enforcement authorities to obtain early parole or assistance in the favorable disposition of multiple criminal charges brought against him after the December 1983 interview with Keltner. Although defendant argues that Abram had a motive to minimize his potential penal liability as soon as Keltner told him that he was liable criminally as a coconspirator, as People v. Hayes, supra, 52 Cal.3d 577, makes clear, the focus under Evidence Code section 791 is the specific agreement or other inducement suggested by cross-examination as supporting the witness's improper motive. Indeed, that is the distinction the court seems to have had in mind when we wrote, in People v. Bunyard, supra, 45 Cal.3d at page 1209, that "[t]he mere asking of questions may raise an implied charge of an improper motive...," and thus invoke Evidence Code section 791. (See also People v. DeSantis (1992) 2 Cal.4th 1198, 1229 [9 Cal. Rptr.2d 628, 831 P.2d 1210] [People v. Andrews, supra, 49 Cal.3d 200, applied where a defendant's cross-examination of his crime partner concerning possible modification of his sentence in exchange for testimony "yielded a compelling additional incentive to lie."]; People v. Coleman, supra, 71 Cal.2d 1159; People v. Duvall (1968) 262 Cal. App.2d 417 [68 Cal. Rptr. 708].) 2. Instructions concerning corroboration of accomplice testimony. (8a) The trial court gave the jury both CALJIC No. 2.27 (testimony of a single witness is sufficient for the proof of any fact) and CALJIC No. 3.11 (accomplice testimony must be corroborated in order to convict). Defendant contends that the two instructions are contradictory and in combination confused the jury, permitting defendant to be convicted on the basis of Ricky Abram's uncorroborated testimony alone. We have encountered this claim repeatedly since our initial consideration of it in People v. Chavez (1985) 39 Cal.3d 823, 829-832 [218 Cal. Rptr. 49, 705 P.2d 372]. In Chavez, we concluded that "we must look to the entire charge, rather than merely one part, to determine whether error occurred. [Citation.]" (Id., at p. 830.) (9) We have since refined the test formulated in Chavez to encompass determinations whether the jury "is instructed on the kind of evidence necessary to constitute corroboration, on the method of determining whether the accomplice's testimony was corroborated, on viewing the accomplice's testimony with distrust, and [whether] the parties proceed[ed] on the premise that corroboration is required." (People v. Andrews, supra, 49 Cal.3d 200, 217.) Where these criteria are met, there is no error. (People v. Williams (1988) 45 Cal.3d 1268, 1313 [248 Cal. Rptr. 834, 756 P.2d 221]; People v. Adcox (1988) 47 Cal.3d 207, 241 [253 Cal. Rptr. 55, 763 P.2d 906].) *631 (8b) Applying these criteria to the record in this case leads us to reject defendant's claim. Although the trial judge read the jury an unmodified version of CALJIC No. 2.27, the "single witness" instruction, together with the accomplice corroboration requirement of CALJIC No. 3.11,[8] he also gave the jurors the full array of accomplice instructions, including the definition of an accomplice (CALJIC No. 3.10), the nature and sufficiency of corroborative evidence (CALJIC No. 3.12), the rule that one accomplice may not be corroborated by another (CALJIC No. 3.13), the necessity of criminal intent (CALJIC No. 3.14), and the requirement that accomplice testimony be viewed with "distrust" (CALJIC No. 3.18). In addition, it is clear from a review of the trial transcript that counsel for both the People and defendant proceeded throughout the trial on the assumption that Abram was an accomplice whose testimony required corroboration. Thus here, as in People v. Williams, supra, 45 Cal.3d 1268, 1313, and People v. Adcox, supra, 47 Cal.3d 207, 241, we conclude that nothing in the combined instructions suggested to the jurors that corroboration of Abram's testimony was not required: "A reasonable juror would have recognized CALJIC No. 2.27 as setting forth the general rule and the charge on accomplice testimony as an exception to it. [Citations.] Nothing before us indicates that the jurors may have acted otherwise." (People v. Andrews, supra, 49 Cal.3d at p. 217.) Given our conclusion that there was no instructional error, defendant's additional claim under this rubric — that the quality of Abram's uncorroborated testimony was so unreliable as to offend federal Sixth Amendment jury trial and Fourteenth Amendment due process rights — loses its underpinning. Although Abram's testimony had its frailties, they were not concealed from exposure and consideration by the jury or from attack by defense counsel. Moreover, because there was no error in giving the jury the combined single witness and accomplice corroboration charges, there is no basis upon which to conclude that the jurors relied solely on the uncorroborated testimony of Abram to convict defendant. (10a) In a variant on his federal Sixth Amendment claim, defendant contends that Ricky Abram's credibility was so slender a reed upon which to base the finding of a financial gain special circumstance that it violates the federal Eighth Amendment. He points to Abram's defects as a witness — the *632 circumstances under which he agreed to testify for the prosecution, the fallibility of his memory, his reference to testifying from a "script," the trial judge's remark, in the presence of the jury, that Abram had "difficulty in remembering," his serious emotional problems, prior felonies, and admission that he had lied to the police in the past. Drawing an analogy between these testimonial defects and the dangers presented by the forecasts of future violence by a psychopharmacologist which we held inadmissible in the penalty phase in People v. Murtishaw (1981) 29 Cal.3d 733, 767-774 [175 Cal. Rptr. 738, 631 P.2d 446], defendant concludes that the jury's finding that the special circumstance was true on the basis of the uncorroborated testimony of Abram cannot be allowed to stand. (11)(See fn. 9.), (10b) We reject the argument for two reasons. First, its underpinning assumes a predicate that we have just rejected, namely, that the jury was confused by the accomplice and single witness instructions given by the trial court into believing that Abram's testimony did not require corroboration.[9] Second, although founded in part on the inherent unreliability of psychiatric predictions of future violence, our ruling in People v. Murtishaw, supra, 29 Cal.3d 733, rested as much on the incurably prejudicial impact on a penalty jury of "`affirmative assertion[s] by an apparently well-qualified professional....'" (Id. at p. 773.) "One can imagine few matters more prejudicial at the penalty trial," we said, "than testimony from an established and credentialed expert that defendant, if sentenced to life without possibility of parole, would be likely to kill again." (Ibid.) This "`mystic infallibility in the eyes of the jury'" (People v. Kelly (1976) 17 Cal.3d 24, 32 [130 Cal. Rptr. 144, 549 P.2d 1240]) that often envelopes quasi-scientific testimony was not, of course, present in this instance, where the jury was, we reiterate, fully capable of judging Abram's credibility. 3. Instructions concerning withdrawal from conspiracy. (12) Defendant raises the related claim that it was error to instruct the jury on the law governing the termination of penal liability by withdrawing from a conspiracy. Specifically, the trial court read the jury both CALJIC No. 3.02 (conditions for aider and abettor withdrawal) and CALJIC No. 6.20 (coconspirator withdrawal). Defendant reasons that because there was no evidence that Abram communicated a desire to withdraw from the conspiracy and because both instructions require the accessory or coconspirator to *633 communicate the fact of withdrawal to the other parties in order to validly terminate penal liability, giving the jury the challenged instructions somehow confused them, permitting the (improper) conclusion that Abram had ceased to be an accomplice. His testimony, in that event, need not have been evaluated with skepticism or corroborated. We are unpersuaded. Abram's status as a jail inmate at the time of Jovita's murder reasonably raised the issue of the effect of his incarceration on his accomplice liability. In effect, the contested instructions informed the jurors that withdrawal required something more than impossibility, that is, required Abram to communicate his withdrawal to his coconspirators. We see nothing erroneous or prejudicial in such a result, especially since the effect of the challenged instructions was to favor a finding that Abram was an accomplice, and thus to require — as the jury was instructed — that his testimony be evaluated skeptically as well as corroborated. In any event, the basic thrust of Abram's testimony was corroborated by forensic evidence gathered at the crime scene. Jovita appeared to have been killed in the dead of night by an assailant bent on burglary and rape; her daughter fled screaming from the house to report the murder. In gross outline, the manner in which Jovita's murder was accomplished tracked the plan discussed by the three at Bob's Big Boy as related by Abram in his testimony. 4. Instructions concerning the reasonable doubt standard. (13) Defendant's final claim of instructional error is that in giving the jury the standard pattern instructions on reasonable doubt and circumstantial evidence, the trial court committed Cage error (Cage v. Louisiana (1990) 498 U.S. 39 [112 L.Ed.2d 339, 111 S.Ct. 328] (per curiam) [hereafter Cage]). In Cage, the jury was instructed that it must acquit if it had a reasonable doubt as to the guilt of the accused. "Reasonable doubt," however, was defined as a doubt "founded upon a real tangible substantial basis and not upon mere caprice and conjecture." (Id., at p. 40 [112 L.Ed.2d at p. 342].) Concluding that the challenged instruction "equated a reasonable doubt with a `grave uncertainty'" and thus might have altered the constitutional standard for penal liability to "`a moral certainty' that the defendant was guilty" (ibid.), the high court reversed the conviction. By parity of reasoning, defendant argues that a like analysis applies to the pattern reasonable doubt instructions given the jury in this case. He points out that CALJIC Nos. 2.01, 2.02, 2.21 and 2.27 — standard instructions on the relationship between circumstantial evidence and reasonable doubt, all of *634 which were given in this case — direct the jury to make findings using reasonable factual interpretations over those that require unreasonable interpretations. The asserted error was compounded, defendant argues, by the prosecutor's argument in closing that the jurors should adopt a reasonable interpretation of the evidence. Finally, defendant contends that the directory character of the instructions operated as a mandatory conclusive presumption of guilt. In People v. Jennings (1991) 53 Cal.3d 334 [279 Cal. Rptr. 780, 807 P.2d 1009], we rejected a claim analogous in all respects to the one made here. There we pointed out that the vice of the instruction condemned in Cage, supra, 498 U.S. 39, consisted in the "transformation of true reasonable doubt, as it has been traditionally defined, into a higher degree of doubt [required to acquit]." (53 Cal.3d at p. 386.) No such possibility was presented to the jury in this case, however, where the trial court's use of standardized, pattern instructions included the language of CALJIC No. 2.90. That instruction defines a "reasonable doubt" as one that leaves "the minds of the jurors in that condition that they cannot say that they feel an abiding conviction to a moral certainty of the truth of the charge." Unadorned "moral certainty" of defendant's guilt was thus the measure given the jury in this case; there was no Cage-like dilution of the standard required to convict. (People v. Jennings, supra, 53 Cal.3d at p. 386; see also People v. Johnson (1992) 3 Cal.4th 1183, 1235 [14 Cal. Rptr.2d 702, 842 P.2d 1].) Likewise, we reject as we did in Jennings, supra, 53 Cal.3d at page 386, the claim that jurors, charged to choose reasonable interpretations of circumstantial evidence over unreasonable interpretations, would interpret such instructions "to permit a criminal conviction where the evidence shows defendant was `apparently' guilty, yet not guilty beyond a reasonable doubt." (Ibid.) The same is true of defendant's claim that the standard reasonable doubt instructions regarding circumstantial evidence are in effect irrebutable presumptions of guilt. "Read in context, the instructions merely require the jury to reject unreasonable interpretations of the evidence, and to accept the reasonable version of the events which fits the evidence." (Ibid.; see also People v. Wilson (1992) 3 Cal.4th 926, 943 [13 Cal. Rptr.2d 259, 838 P.2d 1212].) C. Challenge to special circumstance instruction regarding proof of "financial gain." Defendant's single claim of error under this rubric has four parts. (14) Fixing on the dual character of the motive alleged by the prosecution for Jovita's murder — eliminating the chief obstacle to the relationship between defendant and Dominique and acquiring the principal assets of her *635 estate — defendant argues that the failure of the standard CALJIC instruction to require the jury to find that the financial gain motive was (variously) a "dominant," "substantial," or "significant" motive for the murder violated the federal Eighth Amendment requirement that capital offenses be narrowly defined to encompass the limited class of crimes that morally justify imposition of the death penalty. (See, e.g., McCleskey v. Kemp (1987) 481 U.S. 279, 305 [95 L.Ed.2d 262, 286, 107 S.Ct. 1756].) Second, defendant contends that our opinion in People v. Green (1980) 27 Cal.3d 1 [164 Cal. Rptr. 1, 609 P.2d 468], striking the special circumstance of murder in the commission of a robbery, requires reversal of the conviction here. In Green, the evidence showed that defendant had taken certain items from the murder victim, both immediately before and after killing her, for the purpose of concealing her identity and obstructing his detection. We held that the jury's finding that the robbery special circumstance was true could not stand under such facts, where "the defendant's intent [was] not to steal but to kill and the robbery [was] merely incidental to the murder." (Id. at p. 61.) Third, defendant claims that under People v. Howard (1988) 44 Cal.3d 375 [243 Cal. Rptr. 842, 749 P.2d 279], the trial court should have instructed the jury that the financial-gain special circumstance could only be found true if defendant harbored such a motive at the time of the killing. Finally, defendant contends that by giving the standard language of CALJIC No. 2.51 (motive is not an element of the crime and need not be shown) with respect to the murder of Jovita, the trial court confused the jury, misleading it into believing that the financial-gain special circumstance need not be proven. These arguments are foreclosed by our holdings in People v. Howard, supra, 44 Cal.3d 375, and People v. Edelbacher (1989) 47 Cal.3d 983 [254 Cal. Rptr. 586, 766 P.2d 1]. In People v. Howard, we rejected the claim that the unadorned language of the financial-gain special-circumstance instruction was flawed because it failed to convey to the jury any requirement that financial gain be the "direct" or "motivating cause" of the murder. Instead, we concluded that the drafters intended no such limitation. Although we recognized in Howard that we had been led in People v. Bigelow (1984) 37 Cal.3d 731, 751 [209 Cal. Rptr. 328, 691 P.2d 994, 64 A.L.R.4th 723], to engraft a limiting gloss on the reach of the financial-gain special circumstance "to prevent overlapping special circumstances findings based on the same conduct" (44 Cal.3d at p. 410), we also noted that "Bigelow does not expressly require that instructions utilizing the limited construction adopted in that opinion be given in all cases." (Ibid.) Moreover, the risk of multiplicity that impelled the result in Bigelow is not present in this case. *636 In context, defendant's overbreadth argument is no different from the one rejected in People v. Edelbacher, supra, 47 Cal.3d 983, that the failure to instruct the jury that the financial-gain special circumstance requires a finding of causal proximity violates the Eighth Amendment. We held in Edelbacher that "Proof of actual pecuniary benefit to the defendant from the victim's death is neither necessary nor sufficient to establish the financial-gain special circumstance." (Id. at p. 1025.) Instead, we invoked the formulation in People v. Howard, supra, 44 Cal.3d at page 409, that "`the relevant inquiry is whether the defendant committed the murder in the expectation that he would thereby obtain the desired financial gain.'" (People v. Edelbacher, supra, 47 Cal.3d at p. 1025.) "[S]o construed," we concluded, "the special circumstance provision is not unconstitutionally vague or overbroad." (Ibid.) Nothing in defendant's arguments here persuades us to revisit that conclusion. (15) Defendant's additional claim, founded on our holding in People v. Green, supra, 27 Cal.3d 1, that we should gloss the financial-gain special circumstance to require a finding that financial gain was the "primary goal" of the killing, is simply a variation on the claims made and rejected in People v. Howard, supra, 44 Cal.3d 375, and People v. Edelbacher, supra, 47 Cal.3d 983. Our holding in Green was designed to avoid the risk that a jury might impose the death penalty "on the basis of whether in the course of committing a first degree murder the defendant happens to engage in ancillary conduct that technically constitutes robbery or one of the other listed [special circumstance] felonies...." (27 Cal.3d at p. 61.) That holding has no obvious application to the evidence in this case, where the facts fail to lend support to any claim that the requisite intent to the special circumstance finding was somehow "ancillary" to the commission of the murder or only a "technical" special circumstance. Defendant either had an expectation of financial benefit at the time of the killing or he did not. It was for the jury to make that determination, applying a common sense, nontechnical understanding of "financial gain." (16) For closely related reasons, we reject defendant's claim that our holding in People v. Howard, supra, 44 Cal.3d 375, required the trial judge sua sponte to give the jury a pinpoint instruction that before it could find the financial gain special circumstance true, it had to find that defendant possessed the required intent at the time of the killing. Contrary to defendant's reliance on People v. Howard, supra, 44 Cal.3d 375, that case is authority for the opposite proposition. Indeed, Howard stands for the proposition that, except for the limited gloss of People v. Bigelow, supra, 37 Cal.3d 731, the special circumstance of *637 murder for financial gain "is not a technical one" and that the Legislature "intended [it] to cover a broad range of situations." (People v. Howard, supra, 44 Cal.3d at p. 410.) "It is well settled," we continued, "that where the terms `have no technical meaning peculiar to the law, but are commonly understood by those familiar with the English language, instructions as to their meaning are not required.'" (Id., at p. 408.) Here, as in Howard, "there is no necessity in this case for further refinement or restrictive interpretation of the [financial-gain] special circumstance in the absence of additional indications that the statutory language itself could have caused confusion." (Id., at p. 410.) (17) Last, defendant's claim that giving the jury CALJIC No. 2.51 (motive is not an element of the crime charged and need not be proven) permitted it to dispense with proof of financial gain also fails. We rejected the identical claim in People v. Edelbacher, supra, 47 Cal.3d at page 1027, on the commonsense ground that here, as there, the "`crime charged' was murder and any reasonable juror would have understood the instruction as referring to this substantive offense only and not to any special circumstance allegation." D. Claim that cumulative guilt phase errors require reversal. (18) Defendant's final claim of error at the guilt phase of his trial is that, in combination, the multiple errors alleged to have occurred denied him a fair trial and led to a constitutionally unreliable penalty verdict. Again, we are not persuaded. As our review of defendant's guilt phase claims in light of the record in this case indicates, the evidentiary error in admitting, through the testimony of Mindy Jackson and Margaret Garcia, the hearsay declarations of Jovita that she feared and disliked defendant was not prejudicial in light of other evidence of guilt and the limiting instruction given the jury. So, too — and for the same reasons — was the admission of Dominique's statement regarding her nightly makeup habits. The evidence presented to the jury by the prosecution made out a strong, albeit in many respects circumstantial, case for defendant's guilt. The frailties in Ricky Abram's testimony were exposed to the jury through extensive cross-examination by defense counsel. On this record, we cannot say it is reasonably probable that defendant would have secured a more favorable result had the challenged evidence not been admitted. (People v. Gordon (1990) 50 Cal.3d 1223, 1253-1254 [270 Cal. Rptr. 451, 792 P.2d 251]; People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) Likewise, we conclude that any errors were harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18.) *638 II. PENALTY PHASE ISSUES A. Alleged prosecutorial misconduct in penalty phase closing argument. (19a) Defendant asserts that several comments made by the prosecutor during his closing argument at the penalty phase amounted to prejudicial misconduct. Defendant's trial counsel failed to make any objection throughout the course of the prosecutor's closing penalty argument. We are thus met at the outset with the contention of the People that any errors have been waived. Governing law is straightforward. (20) To preserve for appellate review a claim of prosecutorial misconduct, a defendant must raise a timely objection and, if practicable, request a curative admonition; except where a timely objection would be futile, absent such an opportunity for the trial court to consider the claim of misconduct and to remedy its effect, any error is waived and we will not review it. (People v. Green, supra, 27 Cal.3d at pp. 27-34 & fn. 19; People v. Miranda (1987) 44 Cal.3d 57, 108, fn. 30 [241 Cal. Rptr. 594, 744 P.2d 1127]; People v. Benson (1990) 52 Cal.3d 754, 794 [276 Cal. Rptr. 827, 802 P.2d 330]; People v. Gordon, supra, 50 Cal.3d at p. 1269.) We have repeatedly (and recently) rejected the claim that capital cases require a different rule regarding the effect of a failure to interpose claims of curable prosecutorial misconduct. (See, e.g., People v. Miranda, supra, 44 Cal.3d at p. 108, fn. 30; People v. Gordon, supra, 50 Cal.3d at p. 1269; People v. Benson, supra, 52 Cal.3d at p. 794.) (19b) Judged against these rules, we conclude that the claims of prosecutorial misconduct in the closing argument of the penalty phase were waived by trial counsel's failure to make any objection. Assuming there was misconduct, all of the claims — encompassing assertions that the prosecutor expressed a personal opinion concerning the gravity of the offense, compared defendant to an imaginary and less culpable defendant, improperly relied on less serious noncapital homicides to claim that defendant's offense could not be mitigated, and attempted to remove sympathy from the jury's penalty consideration — could have been cured by a timely objection, followed by an instruction from the trial court to cease the line of objectionable argument, and a curative admonition to the jury to disregard the prosecutor's improper remarks. (21) We also reject defendant's alternative claim that trial counsel's failure to object to the alleged misconduct amounted to ineffective assistance of counsel. Having reviewed the record with respect to each of the instances of alleged misconduct, we are persuaded that there is not a reasonable *639 likelihood that any of the challenged comments might have been misconstrued by the jurors. (People v. Clair (1992) 2 Cal.4th 629, 662-663 [7 Cal. Rptr.2d 564, 828 P.2d 705].) The prosecutor neither vouched personally for the death penalty as an appropriate sentence (see, e.g., People v. Benson, supra, 52 Cal.3d at pp. 794-795) nor argued on the basis of facts not in evidence (see, e.g., People v. Bolton (1979) 23 Cal.3d 208, 212 [152 Cal. Rptr. 141, 589 P.2d 396]). We do not, in short, think that a reasonable juror would have understood the prosecutor to urge the death sentence based on either a personal opinion or facts not in evidence. (People v. Benson, supra, at p. 793.) B. Claim of error in penalty determination instructions (Brown error). At the close of the penalty phase, the trial court instructed the jury concerning the scope of its sentencing function as follows: "After having heard all of the evidence and having heard and considered the argument of counsel, you shall consider and take into account and be guided by the applicable factors of aggravating and mitigating circumstance upon which you have been instructed. [¶] The weighing of aggravating and mitigating circumstances does not mean a mere mechanical counting of factors on each side of an imaginary scale. You are free to assign whatever weight you deem appropriate to each and all of the various factors upon which you have been instructed. By weighing the totality of various circumstances, you must determine which penalty is appropriate, death, or life without the possibility of parole. [¶] If, in your reasoned judgment, you conclude that the aggravating circumstances outweigh the mitigating circumstances and you personally believe death is the appropriate sentence under all the circumstances, then you shall impose death. In the event that you cannot so find, you shall impose life without the possibility of parole." (22) Defendant asserts that this instruction was error under People v. Brown (1985) 40 Cal.3d 512 [220 Cal. Rptr. 637, 709 P.2d 440], reversed on other grounds sub nom. California v. Brown (1987) 479 U.S. 538 [93 L.Ed.2d 934, 107 S.Ct. 837]. In Brown, we considered the claim that the text of the unadorned language of section 190.3 (as embodied in then-CALJIC No. 8.84.2) could be construed to permit unconstitutional capital sentences by misleading penalty juries as to the nature of their function. We concluded that the instruction and the underlying Penal Code provision were not subject to such a construction but that, under some circumstances, the instruction might confuse a penalty jury regarding the fundamental character of the capital sentencing process. We identified two sources of potential confusion. First, the emphasis in the instruction on the process of weighing aggravating against mitigating *640 circumstances smacked of a mechanical task in which contending factors are quantified, toted up, and balanced, with the resulting sum pointing unerringly to either death or life. Second, we concluded that the use of the word "shall" in the instruction, directing the jury to impose either death or a sentence of life without parole depending upon the outcome of the weighing process, might be misunderstood to "force[] [jurors] to impose death on [a] basis other than their own judgment that such a verdict was appropriate under all the facts and circumstances of the individual case." (People v. Brown, supra, 40 Cal.3d at p. 540, fn. omitted.) The penalty determination instruction given the jury in this case was not the instruction challenged in People v. Brown, supra, 40 Cal.3d 512. Indeed, the transcript of the chambers conference at which counsel and the trial judge discussed proposed penalty instructions indicates that the instruction challenged by defendant as erroneous under Brown was drawn with full knowledge of our opinion in that case. The question before us is whether, as modified, the instruction passes muster in light of the twin concerns we expressed in Brown. We conclude that it does. First, the instruction incorporated language conveying unmistakably to the jury that its sentencing determination was not the result of a mechanical sequence ("... not ... a mere mechanical counting of factors on each side of an imaginary scale"). In addition, the instruction emphasized the discretionary nature of the jurors' weighing function ("You are free to assign whatever weight you deem appropriate to each and all the various factors upon which you have been instructed."). Of equal importance, the instruction underlined the requirement that each juror be convinced personally that death was the appropriate judgment ("... If ... you personally believe death is the appropriate sentence under all the circumstances ...."). (23) The fact that the challenged instruction included the mandatory "shall" is not per se fatal to its validity. We have rejected claims of Brown error in several cases in which the challenged instruction included such language. In People v. Hayes, supra, 52 Cal.3d at pp. 641-643, we held that the use of an instruction in the form of former CALJIC No. 8.84.2 — tracking almost verbatim the language of section 190.3 — was not prejudicial in light of an additional instruction "that virtually eliminated any risk that the jury would be misled as to its sentencing discretion or as to the process of penalty determination." (52 Cal.3d at p. 642.) And in People v. Hendricks (1988) 44 Cal.3d 635 [244 Cal. Rptr. 181, 749 P.2d 836], we said that "it is not improper per se to instruct the jury that it `shall' impose death." (Id. at p. 653; see also People v. Allen (1986) 42 Cal.3d 1222, 1279, fn. 38 [232 Cal. Rptr. 849, 729 P.2d 115].) *641 Our opinion in People v. Boyde (1988) 46 Cal.3d 212 [250 Cal. Rptr. 83, 758 P.2d 25], affirmed sub nom. Boyde v. California (1990) 494 U.S. 370 [108 L.Ed.2d 316, 1105 S.Ct. 1190], furnished a rationale for the analytical method behind the results in these cases. In Boyde, we held that, despite use of an unadorned section 190.3 instruction, the concerns expressed in People v. Brown, supra, 40 Cal.3d 512, were satisfied by other emphases on the jurors' discretion in valuing the weight given to each of the relevant sentencing factors. This emphasis was decisive on the issue of Brown error, we said, because "when jurors are informed that they have discretion to assign whatever value they deem appropriate to the factors listed, they necessarily understand that they have discretion to determine the appropriate penalty. The task of assigning weights to factors is not an arid exercise performed in a vacuum; it is the very means by which the jury arrives at its qualitative and normative decision as to the appropriate penalty." (46 Cal.3d at p. 253; see also People v. Burton (1989) 48 Cal.3d 843, 873 [258 Cal. Rptr. 184, 771 P.2d 1270].) That rationale applies here. Given the modifications in the instruction made in light of the concerns expressed in Brown, supra, 40 Cal.3d 510, we do not think there is a reasonable likelihood that a juror would have misunderstood the nature of his or her role in the capital sentencing process — either as one involving a mechanical quantification of relevant factors or requiring the imposition of the death penalty. (People v. Clair, supra, 2 Cal.4th at pp. 662-663.) (24) Defendant also claims prejudice arising from the failure of the instruction to include language regarding the role of sympathy in the jury's evaluation of the circumstances relevant to its penalty determination. We disagree. In a supplemental instruction given the jury immediately after the challenged penalty determination instruction, the trial court told the jurors that "[y]ou may consider pity and sympathy for the defendant in deciding the penalty to be imposed on the defendant." Although defendant points out that this supplemental instruction was not integral to the penalty determination instruction itself, we find nothing to suggest, given the close proximity of the "sympathy" and penalty determination instructions, that a reasonable juror would have retired to deliberate defendant's fate under the impression that sympathy was not a legitimate component of the sentencing equation. Defendant contends, however, that a question put to the trial judge by the jury foreman during the course of deliberations demonstrates the confusion engendered among the jurors by the modified instruction. Moreover, the argument continues, the answer to the query given by the trial court — a rereading of the challenged instruction — failed to clarify the point of confusion and led, quickly and inevitably, to a sentence of death. We examine these arguments next. *642 C. Claim of error in answering the jury's mid-deliberation inquiry. As noted, ante, at a point in their deliberations, the jurors sought guidance from the trial court in the form of answers to two questions. The second question asked, "[i]f the jury finds aggravating circumstances exceed the mitigating circumstances, is it still possible for the jury to find the appropriate sentence is life without the possibility of parole?"[10] Before responding, the trial judge heard argument from counsel. The defense position was that the appropriate response was an unqualified "yes"; the prosecution requested that the penalty determination instruction previously given the jury be reread without comment. The trial judge adopted the prosecution's position and reread to the jury the modified penalty determination instruction set out above. (See, ante, at p. 639.) Soon after being reread the instruction (within 20 minutes, according to the defense), the jury returned a verdict of death. (25) Defendant argues that it was prejudicial error for the trial court to content itself with a rereading of the penalty determination instruction in responding to the jury's question. He contends that the question itself indicated that the jurors were confused as to the scope of their sentencing discretion, that rereading the instruction already given did nothing to dispel that confusion, and that the prompt return of a capital sentence demonstrates the decisive effect of the trial court's failure to inform the jury that the correct answer to the question was, as the defense argued, literally "yes." We are not persuaded that, under these circumstances, the trial court's decision to reread to the jury the text of the pertinent instruction was error. We have already concluded, ante, at page 640 that it was not error for the trial court to give the jury the penalty determination instruction that it did. Given that conclusion, we cannot say that a repetition of the instruction was error. There is merit in the argument of the People that the unqualified "yes" sought by the defense, without more, would have failed to convey to the jury the guided nature of its sentencing discretion in a capital case. The most that can be said of the trial court's response to the jury's query was that it represented an unwillingness to venture beyond the safety of standardized instructions. After hearing argument of counsel and considering the matter, the trial court exercised its discretion, electing not to risk diverging from the *643 instruction by additional comment. Given the record, we cannot say that its decision was an abuse of discretion. (People v. Beardslee (1991) 53 Cal.3d 68, 97 [279 Cal. Rptr. 276, 806 P.2d 1311].) Defendant's claim that the prejudicial effect of the instruction is established by the speed with which the jury returned a verdict of death after receiving it, rests on unprovable speculation concerning the course of the jury's deliberations in this case. We must assume that a penalty jury, properly instructed as to its sentencing responsibility in a capital case, will deliberate in accordance with those instructions. Here, we conclude that the jury was properly instructed regarding the nature of the penalty determination not once, but twice. D. Prosecution's alleged use of nonstatutory aggravating factors in penalty phase argument. (26a), (27a) Defendant contends that comments made by the prosecutor in his closing penalty argument in effect amounted to the introduction of aggravating penalty evidence not embraced by the factors enumerated in section 190.3. In People v. Boyd (1985) 38 Cal.3d 762 [215 Cal. Rptr. 1, 700 P.2d 782], we concluded that 1978 amendments to the penalty determination statute, changing it "from a statute in which the listed aggravating and mitigating factors merely guide the jury's discretion to one in which they limit its discretion," rendered inadmissible evidence which "is not probative of any specific listed factor," as being "irrelevant to aggravation." (Id. at pp. 773, 774.) The question here is whether the prosecutor's arguments transgressed this exclusionary line to defendant's prejudice. We conclude that they did not. Defendant cites three specific arguments by the prosecutor which he contends amounted to Boyd error. First, referring to the incident involving Margaret Noone's recantation of her alibi testimony in favor of defendant, the prosecutor stated that defendant, "by the use of force, the threat of force, he coerces and threatens Majorie [sic] Noone to come in here and to commit perjury." Defendant himself also committed perjury, the prosecutor continued, an apparent reference to his alibi testimony, supported by Noone's (later recanted) testimony. Second, defendant cites the prosecutor's remark concerning the testimony of his mother and the statement that the jury "should have no sympathy for her [i.e., defendant's mother]. That is her child, she's come in here, and she committed perjury during the penalty phase." Last, defendant attacks as Boyd error the prosecutor's remark that defendant did not merit the sympathy of the jury because his offense had caused *644 pain to members of his family: "But the question you have to ask yourself is does the Defendant deserve that sympathy for his family members? Because ... no matter what your verdict is, because whether you say he's going to die or you say he's going to live the rest of his life in San Quentin, they are here because of what he did." (26b) In each of these instances of alleged prosecutorial misconduct in the penalty argument, as in those discussed, ante, at page 638 and following, defense counsel raised no objection, sought no admonition, requested no curative instruction. It is clear, moreover, that the misconduct alleged to have occurred was amenable to remedial measures by the trial judge, given a timely objection. The claims of error are thus waived. (See People v. Cooper (1991) 53 Cal.3d 771, 843 [281 Cal. Rptr. 90, 809 P.2d 865] and cases cited, ante, at p. 638.) (27b) Moreover, none of the contentions has merit. In the three instances of claimed Boyd error, the prosecutor did no more than argue in rebuttal, on the basis of evidence already before the jury, to character evidence offered by defendant under factor (k), the "catch-all" sentencing factor of section 190.3. (§ 190.3, factor (k).) Under factor (k) and its implementing instruction, CALJIC former No. 8.84.1, the penalty jury is directed to consider any circumstance extenuating the offense and any "sympathetic or other aspect of the defendant's character or record that the defendant offers as a basis for a sentence less than death, whether or not related to the offense for which he is on trial." (Ibid.) There was nothing improper in such rebuttal argument, as we noted in People v. Boyd, supra, itself. "Once the defense has presented evidence of circumstances admissible under factor (k),... prosecution rebuttal evidence would be admissible as evidence tending to `disprove any disputed fact that is of consequence to the determination of the action.' [Citation.]" (38 Cal.3d at p. 776.) Thus, "a defendant who introduces good character evidence widens the scope of the bad character evidence that may be introduced in rebuttal." (People v. Fierro (1991) 1 Cal.4th 173, 237 [3 Cal. Rptr.2d 426, 821 P.2d 1302].) The scope of rebuttal legitimately embraces argument by the prosecutor "suggesting a more balanced picture of [the accused's] personality." (People v. Rodriguez (1986) 42 Cal.3d 730, 791 [230 Cal. Rptr. 667, 726 P.2d 113].) Here, as in People v. Fierro, supra, 1 Cal.4th 173, the prosecutor "could properly refer in closing argument to prior criminal conduct which had not been admitted as evidence in aggravation under section 190.3." (Id. at p. 237.) The limitation on such rebuttal argument — that it "relate directly to a *645 particular incident or character trait defendant offers in his own behalf" (id. at p. 238) — was met here. Defendant's evidence in mitigation at the penalty phase portrayed him as someone of good character, offering as examples his participation in the California Blue Jackets youth organization, high school sports and other school activities, as well as his church activities and school prizes. Similarly, Margaret Noone's recantation undermined the credibility of defendant's mother's testimony, evidence that the prosecution was entitled to rebut by arguing the evidence. (26c) In any event, any error in the prosecutor's closing penalty argument was harmless. Reviewing the record as a whole, we are not persuaded that, had a timely objection been made to the claimed misconduct and a curative instruction given, it is reasonably possible that defendant would have obtained a more favorable result.[11] E. Claim that improper voir dire and closing penalty argument combined to reduce the jury's sentencing discretion. In the course of the sequestered voir dire proceedings required for the selection of a "death qualified" jury (see Hovey v. Superior Court (1980) 28 Cal.3d 1, 80-81 [168 Cal. Rptr. 128, 616 P.2d 1301]), the trial court permitted the prosecutor to ask each prospective juror whether, in the words of a representative query, the fact that a capital defendant was "18 or 19 at the time of the killing ... [would] automatically cause you to vote for the lesser punishment of life imprisonment without possibility of parole?" In addition, the prosecutor was permitted to ask each juror in the sequestered voir dire whether "you would be able to consider imposing the death penalty ... if we have one victim as opposed to requiring that the defendant kill two or more people?" (28) Defendant challenges these questions on two grounds. First, he contends they had the impermissible effect of inducing the jurors to "prejudge" the evidence to be offered against him at trial. Second, he argues that, in combination with certain remarks made by the prosecutor in his closing penalty argument, the questions had the effect of exerting psychological pressure on the jurors, reducing the scope of their sentencing discretion at the penalty phase. Neither claim is persuasive. At the time of trial, the scope of legitimate inquiry on voir dire embraced both "`matters concerning which either the local community or the population at large is commonly known to harbor strong feelings that may stop *646 short of presumptive bias in law yet significantly skew deliberations in fact'" (People v. Williams (1981) 29 Cal.3d 392, 408 [174 Cal. Rptr. 317, 628 P.2d 869]) and "reasonable inquiry into specific legal prejudices ... as the basis for a challenge for cause." (People v. Balderas (1985) 41 Cal.3d 144, 183 [222 Cal. Rptr. 184, 711 P.2d 480], italics omitted.) As a result of the passage of Proposition 115 in the June 6, 1989, General Election, however, Code of Civil Procedure section 223 now provides that "Examination of prospective jurors shall be conducted only in aid of the exercise of challenges for cause." Whether evaluated under the standard prevailing at the time of trial or the current version of Code of Civil Procedure section 223, we conclude that the prosecutor's questions were entirely proper because they were directly relevant to whether a juror would be subject to a challenge for cause. As noted, the prosecutor's questions at issue simply inquired whether a juror would consider imposing the death penalty in a case in which the defendant was only 18 or 19 at the time of the crime and in which only one victim was killed. If a juror would not even consider the death penalty in such a case, he or she properly would be subject to challenge for cause. Our decision in People v. Fields (1983) 35 Cal.3d 329 [197 Cal. Rptr. 803, 673 P.2d 680] speaks directly to the point. In discussing the permissible scope of death penalty voir dire, the Fields court stated: "A juror who resolved in advance not to impose the death penalty in the case before him, whatever his views might be in other cases, could not `conscientiously apply the law as charged by the court' (Adams v. Texas [(1980]) 448 U.S. 38, 45 [65 L.Ed.2d 581, 589, 100 S.Ct. 2521]) because he had already determined the penalty without considering the relevant aggravating and mitigating factors. It follows that such a juror may be dismissed for cause without violating the constitutional doctrine expounded in Witherspoon [v. Illinois (1968) 391 U.S. 510 (20 L.Ed.2d 776, 88 S.Ct. 1770)] and Adams." (35 Cal.3d at p. 357.) The Fields court then concluded that although "... a court may properly prohibit voir dire which seeks to ascertain a juror's views on the death penalty in actual or hypothetical cases not before him," "... a court may properly excuse a prospective juror who would automatically vote against the death penalty in the case before him, regardless of his willingness to consider the death penalty in other cases." (Id. at pp. 357-358, fn. omitted.) Because the challenged voir dire questions in this case were directly relevant to and "in aid of" the exercise of a challenge for cause, the questions were proper, both under the standards governing voir dire in effect at the time of trial and the narrower standard enacted by Proposition 115. *647 (29) In light of our conclusion that the specific questions posed by the prosecutor on voir dire simply inquired whether a juror would consider the death penalty if the defendant were 18 or 19 and only 1 person had been killed and were thus not improper, defendant's related argument — that the prosecutor's reference in his closing penalty phase argument to the voir dire questions and the jurors' answers to them overcame the jurors' natural reluctance to impose the death penalty in this case — loses its force. In arguing these points to the jurors, the prosecutor was not contending that defendant's relative youth, or the fact that he did not kill more than one victim, could not be taken into consideration by the jury in determining whether the death penalty was appropriate. Rather, he was merely making the entirely proper argument that the circumstances under which the murder of Jovita Navarro occurred were sufficiently aggravating to warrant the death penalty, despite defendant's youth and the fact that there was only one victim. Such an argument did not limit the jury's sentencing discretion. F. Refusal of the trial court to give pinpoint penalty instructions requested by the defense. In its instructions to the jury concerning the sentencing function following the close of the penalty phase, the trial court gave CALJIC No. 8.84.1, relevant portions of which are set out below.[12] In addition, the jury was instructed that the mitigating factors enumerated in the instructions were "only examples" of mitigating factors that the jury could consider in assessing the penalty, that they should "pay careful attention" to the factors in mitigation, that they were "not required to limit your consideration of mitigating circumstance [sic] to these factors" but could consider "other circumstances as reasons for not imposing the death penalty," and that "any mitigating circumstances, standing alone, may be sufficient to support a decision that life without the possibility of parole is the appropriate punishment." The trial court refused, however, to give a lengthy special instruction requested by the defense consisting of 15 subparts purporting to guide the *648 jury in reaching its penalty determination.[13] (30) Defendant claims that the trial court was required to give the proffered instruction by People v. Sears (1970) 2 Cal.3d 180, 189-90 [84 Cal. Rptr. 711, 465 P.2d 847], and that the failure to do so violated his rights under the Fifth, Eighth, and Fourteenth Amendments to the federal Constitution. We do not agree. We upheld the trial court's refusal to give a similar, so-called "pinpoint" penalty determination instruction — also urged on the authority of Sears — in People v. Benson, supra, 52 Cal.3d 754. We pointed out that "Under Sears [a criminal defendant] ha[s] a `right to an instruction that "pinpoint[s] the theory of the defense."'" (Id. at p. 806, quoting from People v. Gordon, supra, 50 Cal.3d at p. 1276, italics in original.) Here, as in People v. Benson, supra, the proffered special instruction for the most part in effect argued the evidence by "highlight[ing] certain aspects ... without further illuminating the legal standards at issue [citations]." (People v. Fauber (1992) 2 Cal.4th 792, 865-866 [248 Cal. Rptr. 600, 755 P.2d 1049].) Other instructions given by the trial court and summarized above adequately covered the defense theory in the penalty phase. Those elements of defendant's special instruction that were not argumentative were thus duplicative, and the trial court did not err in declining to give them. (People v. Wright (1988) 45 Cal.3d 1126, 1134-1138 [248 Cal. Rptr. 600, 755 P.2d 1049].) There was no error. G. Constitutionality of section 190.3, factors (a) and (i). (31) Defendant mounts a broad constitutional challenge to the capital sentencing scheme embodied in section 190.3. Specifically, he contends that permitting the jury to consider factors (a) (circumstances of the capital crime) and (i) (the age of the defendant at the time the crime was committed) of section 190.3, without more specific instructional guidance, impermissibly enlarges the sentencing discretion of capital juries and thus runs afoul of vagueness limitations imposed by the Eighth Amendment to the federal Constitution. We have recently rejected such a challenge directed at the use of section 190.3, factor (a). In People v. Proctor, ante, page 499 [15 Cal. Rptr.2d 340, *649 842 P.2d 1100], we noted that the "United States Supreme Court itself has established that the circumstances surrounding a capital offense constitute one of the criteria upon which the jury should base its penalty determination. [Citations.] The high court has not stated or implied that the factor of the `circumstances of the offense' [of section 190.3, factor (a)] is unconstitutionally vague." (Id., supra, ante, at p. 551, italics in original.) Likewise, we have said that the defendant's "age," as used in factor (i) of section 190.3, "is ... a metonym for any age-related matter suggested by the evidence or by common experience or morality that might reasonably inform the choice of penalty." (People v. Lucky (1988) 45 Cal.3d 259, 302 [247 Cal. Rptr. 1, 753 P.2d 1052].) As we have recently stated, both factors direct the attention of the penalty jury to "specific, provable, and commonly understandable facts about the defendant and the capital crime that might bear on his moral culpability. Having met these standards of relevance and specificity, factors (a) ... and (i), are not `illusory' or otherwise impermissibly `vague' (Stringer v. Black (1992) 503 U.S. ___, ___ [117 L.Ed.2d 367, 382, 112 S.Ct. 1130]) simply because they leave the sentencer free to evaluate the evidence in accordance with his or her own subjective values." (People v. Tuilaepa, ante, 569, at p. 595 [15 Cal. Rptr.2d 382, 842 P.2d 1142].) H. Claim that cumulative effect of penalty phase errors requires reversal. Defendant contends that the cumulative effect of the asserted penalty phase errors requires reversal of the verdict. There were, however, no errors to accumulate. I. Claim that multiple flaws in the capital sentencing process render the death penalty unconstitutional. Last, defendant attacks, as constitutionally defective, multiple features of the 1978 death penalty law; we have rejected and continue to reject these claims. People v. McLain (1988) 46 Cal.3d 97, 118 [249 Cal. Rptr. 630, 757 P.2d 569]; People v. Jennings (1988) 46 Cal.3d 963, 980, 981-982, 987-988 [251 Cal. Rptr. 278, 760 P.2d 475]; People v. Rodriguez, supra, 42 Cal.3d 730, 777-779; People v. Frierson (1979) 25 Cal.3d 142, 172-188 [158 Cal. Rptr. 281, 599 P.2d 587]; People v. Miranda, supra, 44 Cal.3d 57, 104-105; People v. Lucky, supra, 45 Cal.3d 259, 302; People v. Melton (1988) 44 Cal.3d 713, 757 [244 Cal. Rptr. 867, 750 P.2d 741]; People v. Johnson (1989) 47 Cal.3d 1194, 1253 [255 Cal. Rptr. 569, 767 P.2d 1047]. CONCLUSION The judgment is affirmed. Lucas, C.J., Panelli, J., Kennard, J., Baxter, J., and George, J., concurred. *650 MOSK, J. I concur in the judgment. After review, I have found no reversible error or other defect. I write separately to comment on the majority's treatment of defendant's claim under Stringer v. Black (1992) 503 U.S. ___ [117 L.Ed.2d 367, 112 S.Ct. 1130] (Stringer). As I stated in my dissenting opinion in People v. Proctor, ante, page 499 [15 Cal. Rptr.2d 340, 842 P.2d 1100]: "In Stringer, the United States Supreme Court held that `if a State uses aggravating factors in deciding who shall be eligible for the death penalty or who shall receive the death penalty, it cannot use factors which as a practical matter fail to guide the sentencer's discretion' in contravention of the Eighth Amendment. [Citation.] It explained: `Although our precedents do not require the use of aggravating factors, they have not permitted a State in which aggravating factors are decisive to use factors of vague or imprecise content. A vague aggravating factor employed for the purpose of determining whether a defendant is eligible for the death penalty fails to channel the sentencer's discretion. A vague aggravating factor used in the weighing process is in a sense worse, for it creates the risk that the jury will treat the defendant as more deserving of the death penalty than he might otherwise be by relying upon the existence of an illusory circumstance.' [Citation.] Of course, California uses `aggravating factors' — labeled `special circumstances' [citation] — to determine death eligibility. It also uses `aggravating factors' — bearing that very label [citation] — to decide between life and death. "A narrow Stringer challenge could specifically attack any one or more of the factors set out in the standard jury instruction on the determination of penalty as vague and, for that reason, likely to invite an arbitrary and capricious choice of punishment in violation of the Eighth Amendment.... "A broader Stringer challenge could generally attack the standard jury instruction on the determination of penalty as vague at its very core and, for that reason, highly likely to invite an arbitrary and capricious choice of punishment in violation of the Eighth Amendment." (People v. Proctor, supra, ante, at pp. 566-567 (dis. opn. of Mosk, J.); accord, People v. Tuilaepa, ante, 569, 596-597 [15 Cal. Rptr.2d 382, 842 P.2d 1142] (conc. opn. of Mosk, J.).) Defendant's Stringer challenge is narrow. He attacks factor (a), the "circumstances of the crime," and factor (i), the "age of the defendant at the time of the crime." *651 The majority reject the claim. They do so because they themselves do not find factors (a) and (i) to be vague. But "[w]hat is dispositive is not what jurists on appellate courts may announce, but what laypersons on juries may understand." (People v. Proctor, supra, ante, at p. 567 (dis. opn. of Mosk, J.); accord, People v. Tuilaepa, supra, ante, at p. 597 (conc. opn. of Mosk, J.).) In this regard, consider factor (i). "We have held that `age' can be aggravating or mitigating or neither depending on the peculiar facts of the individual case. (E.g., People v. Lucky (1988) 45 Cal.3d 259, 302 [247 Cal. Rptr. 1, 753 P.2d 1052].) Whether a juror would come to the same conclusion, however, is another matter." (People v. Tuilaepa, supra, ante, at p. 597 (conc. opn. of Mosk, J.).) In the course of their analysis, the majority appear to suggest that if a factor is not vague, it necessarily passes muster under the United States Constitution, even if it "`leave[s] the sentencer free to evaluate the evidence in accordance with his or her own subjective values.'" (Maj. opn., ante, at p. 649, quoting People v. Tuilaepa, supra, ante, at p. 595.) Such a proposition would be too broad. "The requirements imposed by the federal charter are substantive as well as formal. Thus, a factor, no matter how clearly defined, is constitutionally invalid if, for example, it authorizes or allows a juror to `attach[] the "aggravating" label to' matters `that are constitutionally impermissible or totally irrelevant to the sentencing process, such as ... the race, religion, or political affiliation of the defendant' or `to conduct that actually should militate in favor of a lesser penalty, such as perhaps the defendant's mental illness.'" (People v. Tuilaepa, supra, ante, at pp. 597-598 (conc. opn. of Mosk, J.), quoting Zant v. Stephens (1983) 462 U.S. 862, 885 [77 L.Ed.2d 235, 255, 103 S.Ct. 2733].) A successful Stringer challenge, it must be noted, does not automatically result in reversal. "As Stringer itself makes plain, an instruction incorporating a vague factor is subject to harmless-error analysis." (People v. Tuilaepa, supra, ante, at p. 598 (conc. opn. of Mosk, J.).) On this record, even if one or both of the factors defendant attacks are deemed vague, no prejudice appears. In conclusion, having found no reversible error or other defect, I concur in the judgment. Appellant's petition for a rehearing was denied March 10, 1993. NOTES [1] At trial, extensive testimony by forensic ondontologists was presented by both sides, pro and con, as to whether the wounds were human bite marks and, if so, when they were inflicted. The prosecution placed in evidence casts of the teeth of 12 individuals, including defendant, to support its claim that defendant had bitten Jovita in the act of killing her. [2] As of 2 a.m. on April 24, 1983, the seasonal change from standard to daylight saving time occurred; clocks were set forward by one hour. [3] In full, Evidence Code section 1250 provides: "(a) Subject to Section 1252, evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: "(1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or "(2) The evidence is offered to prove or explain acts or conduct of the declarant. "(b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed." [4] Subdivision (b) of Evidence Code section 1250 provides that "This section [i.e., 1250] does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed." [5] Because we conclude that the admission of Jovita's hearsay testimony was error under section 1250, we need not decide defendant's additional claims that admission of the hearsay testimony violated Evidence Code sections 1101 and 352. [6] For example, prior to Margaret Garcia's testimony concerning Jovita's statements, the trial court instructed the jury that "the communications ... from the deceased ... to this witness are limited to the effect to [sic] the state of mind of the victim only and you're not to consider it for any other purpose." A similar admonition accompanied Mindy Jackson's testimony. [7] Because the issue is not raised by the People, we do not reach the potential question of what effect passage of the "truth in evidence" provision of Proposition 8 (Cal. Const., art. I, § 28, subd. (d)) has on the evidentiary limitations embodied in Evidence Code section 1101. [8] In Chavez, supra, 39 Cal.3d 823, we approved the suggestion of the Court of Appeal in People v. Stewart (1983) 145 Cal. App.3d 967 [193 Cal. Rptr. 799] that CALJIC No. 2.27 be modified when given in conjunction with No. 3.11. (Chavez supra, at p. 831.) The current version of No. 2.27 includes such a modification (testimony concerning a fact by one witness "whose testimony ... does not require corroboration" is sufficient proof). It was not, however, the version given the jury in this case. [9] We do not, of course, mean to suggest that accomplice testimony admitted to prove the financial gain special circumstance must itself be corroborated. To the contrary, when the special circumstance alleged "requires only proof of the motive for the murder for which defendant has already been convicted, the corroboration requirement of [Penal Code] section 1111 does not apply." (People v. Hamilton (1989) 48 Cal.3d 1142, 1177 [259 Cal. Rptr. 701, 774 P.2d 730], fn. omitted.) [10] The jury's first question, the answer to which defendant does not challenge, asked "[i]nterpretation [sic] of the `you' in paragraph four of [CALJIC No.] 8.84.2, `in the event that you cannot so find, you shall impose life without possibility of parole,' does the `you' refer to the individual juror [or] to the jury collectively?" In response, the trial judge stated: "As I've instructed you, each of you have to decide the punishment by yourselves. Obviously you deliberate together; however, before you can render a verdict as to which punishment can be imposed, all 12 of you must agree to that punishment." [11] Because we find that there was no error under People v. Boyd, supra, 38 Cal.3d 762, we reject defendant's claim that trial counsel's failure to make timely objections to the claimed misconduct by the prosecutor amounted to ineffective assistance of counsel within the meaning of the Sixth Amendment guarantee. [12] "In determining which penalty is to be imposed on the defendant, you shall consider all of the evidence which has been received during any part of the trial of this case. You shall consider, take into account and be guided by the following, if applicable: ".... .... .... .... .... .... .... "(k) Any other circumstance which extenuates the gravity of the crime even though its [sic] not a legal excuse for the crime and any sympathetic or other aspect of the defendant's character or record that the defendant offers as a basis for [sic] sentence less than death, whether or not related to the offense for which he is on trial. You must disregard any jury instruction given to you in the guilt or innocence phase of this trial which conflicts with this principle." [13] Defendant's special instruction No. 14 included the following representative subparts: "... (3) That [defendant's] formative years were spent in a closely knit family who generally participated in many activities together; "(4) That [defendant] was extremely close to his father and that this relationship was severely affected when his parents divorced; "(5) That [defendant] was thereafter raised by his mother; ".... .... .... .... .... .... .... "(12) [Defendant's] artistic potential and musical ability ".... .... .... .... .... .... .... "(15) Any other sympathetic or other aspect of [defendant's] character or record that he offers as a basis for a sentence less than death, whether or not related to the offenses for which he is on trial."

106 F.3d 840 37 Fed.R.Serv.3d 253 Richard BOARDMAN, Guardian Ad Litem for Daniel Clippard, Appellant,v.NATIONAL MEDICAL ENTERPRISES, Doing Business as LutheranMedical Center, Inc.; and Millar Elevator ServiceCompany, Appellees. No. 95-3485. United States Court of Appeals,Eighth Circuit. Submitted Nov. 20, 1996.Decided Feb. 11, 1997. Jonathan E. Fortman, St. Louis, MO, argued, for appellant. Dearn L. Franklin and Steven E. Garlock, St. Louis, MO, for appellees. Before MAGILL and MORRIS SHEPPARD ARNOLD, Circuit Judges, and LONGSTAFF,1 District Judge. MORRIS SHEPPARD ARNOLD, Circuit Judge. 1 Richard Boardman, guardian ad litem of Daniel Clippard, appeals from the judgment that the district court2 entered on a verdict rendered against him in an action for injuries sustained by Mr. Clippard when an elevator that National Medical Enterprises (NME) owned and serviced suddenly dropped three stories. Mr. Boardman asserts that the district court erred in barring his expert witness from testifying, in barring him from reading an expert witness's deposition to the jury, in allowing NME to draw the jury's attention to Mr. Boardman's lack of witnesses relevant to an issue, and in precluding Mr. Boardman from drawing the jury's attention to NME's failure to produce certain witnesses. For the reasons discussed below, we affirm. I. 2 The district court refused to allow Mr. Boardman's expert witness, Joe Stabler, to testify because Mr. Boardman had not lived up to the requirements of E.D. Mo. Local R. 33, which governed discovery with respect to expert witnesses (a different version of the local rules is now in effect; all references in this opinion, however, are to the local rules in effect at the relevant time). Fed.R.Civ.P. 26(a)(2)(B) and Fed.R.Civ.P. 26(a)(5) authorize parties to use interrogatories to require disclosure of the identity of expert witnesses and the subject matter, facts, and opinions to which the expert witnesses are expected to testify at trial, together with a summary of the grounds underlying each opinion. NME sent Mr. Boardman interrogatories seeking disclosure of each of the matters covered by Fed.R.Civ.P. 26(a)(2)(B), and on January 13, 1994, Mr. Boardman responded, "Unknown at this time, will timely supplement." 3 The relevant local rule required any answer or supplemental answer to an interrogatory to be made not less than sixty days prior to the date of trial (sixty days prior to trial was December 12, 1994). On September 10, 1994, Mr. Boardman supplemented his answer by serving notice on NME that he "may call" Joseph Stabler as an "expert witness to testify concerning elevator safety, mechanics, operation, maintenance and repair." Though Mr. Boardman timely provided NME with Mr. Stabler's identity and with the subject matter upon which Mr. Stabler would testify, he failed to identify prior to December 12, 1994, the facts and opinions to which Mr. Stabler was expected to testify. 4 E.D. Mo. Local R. 33 nevertheless provided a second window of opportunity for Mr. Boardman. It stated, "All parties shall have the right, no less than thirty (30) days prior to trial, to supplement previous answers to interrogatories by furnishing rebuttal expert witness information." Mr. Boardman wanted Mr. Stabler to testify at trial that the elevator engaged in overspeed mode and could not have done so in the absence of negligence, in rebuttal to certain testimony that NME's experts offered. Although the local rule afforded Mr. Boardman an extra thirty days (or until January 13, 1995) to produce the facts and opinions to which Mr. Stabler was expected to testify as a rebuttal witness, Mr. Boardman failed to meet this extended deadline. He also failed to provide the required information after that date. 5 E.D. Mo. Local R. 33 further provided that if "a party fails to comply with this Rule, the Court shall prohibit the party's expert from giving expert testimony." Since Mr. Boardman failed to comply with the rule, the district court was manifestly authorized to prohibit Mr. Stabler from testifying, and we detect no error in its having done so. 6 Mr. Boardman nevertheless argues that Mr. Stabler presented his rebuttal opinion during NME's October 27, 1994, deposition of Mr. Stabler, and contends that this satisfied the requirements of the scheduling order. First of all, we are not altogether satisfied that the opinion that Mr. Boardman sought to have Mr. Stabler present in rebuttal at trial was in fact presented during the deposition. Even if it was, Mr. Boardman's failure to obey the scheduling order is not excused merely because NME elected to depose Mr. Stabler. For the same reason, we need not address Mr. Boardman's contention that the district court refused to permit him to make an offer of proof outlining the opinions to which Mr. Stabler would have testified had he been allowed to. 7 "The power of the trial court to exclude exhibits and witnesses not disclosed in compliance with its discovery and pretrial orders is essential" to the judge's control over the case. Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877, 897-98 (8th Cir.1978). The district court did not abuse its discretion. The court protected the integrity of the trial process by shielding NME from unexpected testimony, the presentation of which would have undermined the goals of discovery and prejudiced NME. Fed.R.Civ.P. 16(f) and Fed.R.Civ.P. 37(b)(2)(B) authorize district courts to prohibit noncomplying parties from introducing evidence, which is what the district court properly did in this case. II. 8 Mr. Boardman also appeals from the district court's decision to prevent him from reading to the jury the deposition testimony of John Donnelly, a defense expert witness. Mr. Boardman did not adhere to the requirements of the scheduling order with regard to Mr. Donnelly: He never designated Mr. Donnelly as an expert witness, and he did not reveal the subject matter that Mr. Donnelly would discuss or the opinions that he would present. Mr. Boardman informed NME only that he reserved the right to read all or portions of the depositions of any witnesses that NME had listed, a revelation that he did not make until January 27, 1995, well after the scheduling order deadlines had expired. 9 E.D. Mo. Local R. 33, Fed.R.Civ.P. 16(f), Fed.R.Civ.P. 37(b)(2)(B), and Fed.R.Civ.P. 37(d) afford the district court wide latitude in imposing sanctions for failure to obey discovery orders. "[T]he court of appeals will not reverse the district court in the absence of a clear abuse of discretion." Hazen v. Pasley, 768 F.2d 226, 229 (8th Cir.1985). "It is fundamental that it is within the trial court's discretionary power whether to allow the testimony of witnesses not listed prior to trial.... A ruling by the district court pertaining to this [kind of] matter will be overturned only if there is a clear abuse of discretion." Blue v. Rose, 786 F.2d 349, 351 (8th Cir.1986); see also Harris v. Steelweld Equip. Co., 869 F.2d 396, 399 (8th Cir.1989), cert. denied, 493 U.S. 817, 110 S.Ct. 70, 107 L.Ed.2d 37 (1989). 10 Blue (and Harris ) upheld a district court's decision to prevent a witness from testifying because of counsel's failure to list the witness as required by a local court rule and the court's scheduling order. "The rules proscribing discovery are enacted for a reason. Once discovery has closed in a case, it is the court's discretion whether or not to allow it to be reopened." Harris, 869 F.2d at 400. The district court thus did not err in preventing Mr. Boardman from reading the deposition testimony of John Donnelly to the jury. III. 11 In closing argument, NME alluded to the fact that Mr. Boardman had failed to call any witnesses to establish NME's negligence. Mr. Boardman objected, arguing that he would have called Mr. Stabler to testify to that point had the district court not excluded his testimony. On appeal, Mr. Boardman cites several Missouri cases to the effect that one cannot highlight opposing counsel's failure to call a witness when, due to one's own motion, the court has excluded that witness. State law, however, does not control this issue: Federal law controls the permissible content of closing argument even in diversity cases, and federal courts give considerable discretion to the trial court in matters of this sort. Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 285 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 84, 133 L.Ed.2d 42 (1995); Vanskike v. Union Pac. R.R. Co., 725 F.2d 1146, 1149 (8th Cir.1984). 12 "To constitute reversible error, statements made in oral arguments must be plainly unwarranted and clearly injurious." Vanskike, 725 F.2d at 1149. In one recent case, we held that an argument similar to the one made here was not grounds for reversal. Sylla-Sawdon, 47 F.3d at 284-86. We see no error whatever in permitting defense counsel to point out that plaintiff lacked witnesses on the issue of negligence, a matter of obvious relevance and central importance to a determination of the case. IV. 13 Finally, Mr. Boardman maintains that the district court erred in precluding him from arguing an adverse inference from NME's failure to call three of its employees as witnesses. One employee had entered the elevator with Mr. Clippard but had departed before the incident; the other two had pulled Mr. Clippard from the elevator after the incident. Mr. Boardman contends that there is a general rule that failure of an opposing party to put on a witness raises a negative inference, and calls our attention to Johnson v. Richardson, 701 F.2d 753 (8th Cir.1983). In fact, as NME points out, that case held that it is the failure to put on a key witness that raises such an inference. Id. at 757. This means that a party arguing the negative inference must demonstrate that the witness was important and possessed relevant information. See Cowens v. Siemens-Elema AB, 837 F.2d 817, 825 (8th Cir.1988). Mr. Boardman does not even argue, and the record does not indicate, that these witnesses had relevant information to provide at trial. 14 In addition, in deciding this issue we think it significant which party had the burden of proof. Drawing an adverse inference from the failure of a party to put on key witnesses relevant to some issue is most reasonable when it is the party with the burden of proof on that issue who fails to do so. See Kostelec v. State Farm Fire & Cas. Co., 64 F.3d 1220, 1228 (8th Cir.1995). Here, NME did not have the burden of proof on any issue, and Mr. Boardman's suggestion that NME failed to produce certain witnesses might confuse the jury as to who did. We note too that the district court is better situated to "determine whether prejudice has resulted from a closing argument, and [we] will not disturb the district court's ruling unless there has been an abuse of discretion." Vanskike v. ACF Indus., Inc., 665 F.2d 188, 209 (8th Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1632, 71 L.Ed.2d 867 (1982). 15 For all of these reasons, we hold that the district court did not abuse its discretion in limiting Mr. Boardman's closing argument. V. 16 The judgment of the district court is affirmed for the reasons indicated. 1 The Honorable Ronald E. Longstaff, United States District Judge for the Southern District of Iowa, sitting by designation 2 The Honorable Charles A. Shaw, United States District Judge for the Eastern District of Missouri

483 S.W.2d 767 (1972) Jack J. HENDERSON, Plaintiff-Appellant, v. EAGLE EXPRESS COMPANY, Defendant-Respondent. No. KCD 25760. Missouri Court of Appeals, Kansas City District. July 25, 1972. Joel Pelofsky, Kansas City, for plaintiff-appellant. Warren H. Sapp, Kretsinger & Kretsinger, Kansas City, for defendant-respondent. WASSERSTROM, Judge. Plaintiff initiated this case by filing suit in the Magistrate Court for wages claimed to be due and unpaid. Judgment in that court was for the plaintiff, and the defendant appealed to the Circuit Court. On trial before a jury, the Circuit Court directed a verdict for the defendant on the ground of accord and satisfaction. Plaintiff appeals, assigning as his only point that the court below erred in so directing the verdict. The evidence shows that the plaintiff commenced work for defendant in April, 1966, as a truck driver at $90.00 per week, which averaged about $2.25 per hour. Plaintiff subsequently contended that his employment was governed by a union contract which called for a wage rate of $3.30 per hour. Since the defendant denied coverage *768 of this employment under the union agreement, a grievance proceeding was held which resulted in a determination that the plaintiff was covered and was entitled to the union rate. The award in his favor did not specify any liquidated amount due him. Following the arbitration award, defendant computed the amount due to the plaintiff under the award and tendered to him a check in the amount of $734.04. The check bears a printed legend: "By endorsement this check when paid is accepted in full payment of the following amount". Immediately following that legend, the following appears in pen and ink: "9-8 labor for Period 4-7-66 through 8-19-66 $734.04." The check bears the endorsement of the plaintiff, and the plaintiff admitted that the signature was his and that he did cash the check. However, plaintiff further testified that after the check was delivered to him and before he cashed it, he had a conversation with the defendant's president, Mr. Galloway, in which plaintiff states that he protested the amount of the check, on the basis that the check did not cover the amount of overtime to which he claimed to be entitled. Plaintiff further testified that in response to this protest concerning the non-payment of overtime, Mr. Galloway answered: "I'll take care of this later". The trial court ruled that the evidence outlined above conclusively proved an accord and satisfaction. The sole issue for determination by this court is whether that ruling was correct. An accord and satisfaction is a contract for the settlement of a disputed or unliquidated claim for an amount less than that claimed by the creditor. Such contract has been held to have been made in a myriad of cases, where a check has been tendered in payment of an account on express condition that acceptance thereof shall be deemed to be satisfaction in full. There have been repeated rulings that if the creditor cashes the check under such circumstances, an accord and satisfaction results notwithstanding protests on his part. Even his striking out or modification of the condition written on the check has been held to be ineffective. Bartley v. Pictorial Review Co., 188 Mo.App. 639, 176 S.W. 489. However, all of the cases in this line of authority emphasize that there can be no accord and satisfaction unless the check be tendered on the condition that it be accepted, if at all, in full satisfaction, and such an intention on the part of the debtor must be made clearly apparent to the creditor. 1 Am.Jur.2d, "Accord and Satisfaction", § 15, p. 312; 1 C.J.S. Accord and Satisfaction § 34, p. 528. Even though the tender may originally have been made upon such condition, nevertheless, the condition may be withdrawn or waived and in such event acceptance of the check will not result in an accord and satisfaction. 1 C. J.S. Accord and Satisfaction § 33c, p. 527. The situation where such a condition was originally made and then withdrawn is illustrated in Le Doux v. Seattle North Pac. Shipbuilding Company, 114 Wash. 632, 195 P. 1006, l.c. 1010. In that case, an employer tendered a check to the employee with a legend on the back of the check as follows: "In full settlement to date of all expenses and services rendered, a/c Twohy Bros. Company and Seattle North Pacific Shipbuilding Company". The check was accepted and cashed by the employee. However, he testified that there had been a conversation between him and the employer to the effect that no figures were available for a calculation of the compensation due at the time the check was given, that it was understood that the check was given to the employee for the purpose of giving him some immediate cash which he needed, and that a complete settlement would be had later. The Washington Supreme Court held that under such facts there was no accord and satisfaction: "Whether there has been an accord and satisfaction is generally a question of fact, and if this check was sent with the *769 understanding that it was only on account, it could not be considered as payment in full, notwithstanding any indorsement to that effect on the back of the check. It was, of course, for the jury to determine whether the check was agreed to be sent on account. The general rule is that, where a debtor sends to his creditor a check for the amount he is willing to pay, and at that time informs the creditor that he intends the check to be considered as full payment, then, by the acceptance and cashing of the check, the creditor agrees to the settlement, and cannot thereafter seek additional compensation. But that rule is inapplicable to the situation here as testified to by Mr. Schacht. Where there is an agreement that a certain sum shall be paid on account and not in full settlement, the sending of a check which shows that it is in full settlement does not, as a matter of law, accomplish an accord and satisfaction." A similar ruling was made in Equitable Life Assurance Soc. v. Mercantile Com. B. & T. Co. (CA8), 143 F.2d 397, l.c. 401. In that case a series of disability payments were made during 1939 and 1940, each payment check being endorsed: "In full settlement of any and all Disability Claims to the date of this check". After the death of the insured in 1940, his representative claimed that additional disability payments were due for a period of time from 1932 to 1939. The defendant contended that the endorsement on the checks followed by the cashing thereof constituted an accord and satisfaction. The court held to the contrary: "The insured objected to this endorsement, and the company, on November 10, 1939, wrote to him that ` * * * we are willing to concede that your acceptance of such endorsement does not constitute a waiver of any right you may think you have.' To constitute an accord and satisfaction a payment must be offered, intended, and accepted as a satisfaction of the original demand. Aldridge v. Shelton's Estate, Mo.App., 86 S.W.2d 395, 399. The appellant is not in a position to urge the contention that there was an accord and satisfaction in this case." See also Glenz v. Tacoma Ry. and Power Co., 125 Wash. 650, 216 P. 842, l.c. 843; Phelps Lumber Co. v. Bradford-Kennedy Co., 96 Wash. 503, 165 P. 376; Knight v. Glenn Falls Ins. Co., Mo.App., 20 S.W.2d 941, l.c. 943. If the conversation occurred between plaintiff and Mr. Galloway, to which plaintiff testified, then defendant did withdraw the condition that its check must be accepted by the plaintiff, if at all, in full settlement. Under that evidence, the cashing of the check by plaintiff would not accomplish a contract of accord and satisfaction. Plaintiff was entitled to have the jury pass upon this factual issue. We conclude that the court below erred in taking that issue from the jury. The judgment of the court below is reversed and the cause is remanded for a new trial. All concur.

15 Mass. App. Ct. 286 (1983) 445 N.E.2d 174 CHARLES W. SULLIVAN & another vs. BOARD OF APPEALS OF HARWICH & others. Appeals Court of Massachusetts, Barnstable. October 5, 1982. February 11, 1983. Present: HALE, C.J., ARMSTRONG, & SMITH, JJ. Kevin M. Keating for the plaintiffs. John S. Leonard for George A. McLaughlin, Sr., executor, & others, interveners. James M. Falla, for Board of Appeals of Harwich, submitted a brief. ARMSTRONG, J. The plaintiffs are the owners of two two-family dwellings in Harwich which have been used primarily for rental during the four summer months. The dwellings, lawful when constructed, see McLaughlin v. Board of Appeals of Harwich, 359 Mass. 416 (1971), are valid non-conforming uses in what is now a single-family residence district. The plaintiffs applied to the building inspector for permission to transfer the units into condominium ownership and appealed to the board of appeals from the building inspector's adverse decision. From the board the plaintiffs sought either a determination that the zoning by-law did *287 not restrict conversion to condominiums or, in the alternative, a special permit under a section of the zoning by-law which authorized "pre-existing non-conforming structures or uses [to be] changed, extended or altered on special permit" if the board should find that the changed structure or use "shall not be substantially more detrimental to the neighborhood than the existing non-conforming use." The board denied the first alternative, apparently (judging from the arguments addressed to them and their decision) for the reason that condominiums are a multi-family use not listed in the table of uses permitted in the district in question; and it denied a special permit for the reasons that, since no "sound plan of resident management [or] plan for upkeep [was made] available for review, detriment to the neighborhood could not be ruled out," and "the available square footage [32,500 square feet] raised a serious question of adequate open area for year-round occupancy." On appeal under G.L.c. 40A, § 17, a judge upheld the board's decision, and the case is before us on the plaintiffs' appeal from the ensuing judgment. CHR Gen., Inc. v. Newton, 387 Mass. 351, 356-357 (1982), an opinion issued after the trial judge's decision in this case, invalidated Newton's condominium conversion ordinance as an impermissible exercise of the city's authority under The Zoning Enabling Act, holding that a municipality's zoning power is confined to regulating the use of property rather than its form of ownership. The change proposed by the plaintiffs here does not, on its face, go beyond a change in the form of ownership. They do not propose structural change other than the installation of separate water and gas meters, which are permissible as of right, we think, under the principles set forth in Crawford v. Building Inspector of Barnstable, 356 Mass. 174, 176-178 (1969), and Berliner v. Feldman, 363 Mass. 767, 775 (1973). Nor do they propose, at least expressly, a change of use from summer to year-round occupancy.[1] The board and the judge *288 both found, however, that submitting the units to the condominium statute is likely to lead to occupancy extending beyond the limits of the summer tourist season. There is arguably a qualitative difference between summer rental units and individually owned condominium units. In Goldman v. Dennis, 375 Mass. 197 (1978), the Supreme Judicial Court upheld the validity of a zoning by-law which explicitly prohibited making condominiums of existing nonconforming cottage colonies if the land on which the cottages were located did not meet the minimum requirements specified in the zoning by-law for "open space village development." The court held as follows: "The legislative body of the town could reasonably believe that conversion of a cottage colony to single family use under condominium type ownership would encourage expansion of use beyond the short summer season. In McAleer v. Board of Appeals of Barnstable, 361 Mass. 317, 323 (1972), we recognized that a town could inhibit `expansion of a nonconforming use from seasonal to a year-round basis,' although we found the by-law there in question to be broad enough to permit the increase. See Berliner v. Feldman, [supra at] 776-777; Morin v. Board of Appeals of Leominster, 352 Mass. 620, 623-624 (1967). Here the by-law is explicit in its limitation of the expansion of a nonconforming use. Although the limitation is phrased in terms of the type of ownership, we think it is valid as a regulation of `change of use.' See Powers v. Building Inspector of Barnstable, 363 Mass. 648, 652-658 (1973)." Goldman v. Dennis, 375 Mass. at 199. It is generally accepted that one may not as of right alter the structure or extend the area devoted to a nonconforming use but may increase the amount of use within the same *289 structure or area. See Billerica v. Quinn, 320 Mass. 687, 689 (1947); Powers v. Building Inspector of Barnstable, 363 Mass. at 652-653. Cases involving the lawfulness of a temporal extension of a nonconforming use have focused on the degree of specificity with which the zoning by-law prohibits the particular extension and, absent specific mention therein, on the general permissiveness of the by-law towards extensions of nonconforming uses. In McAleer v. Board of Appeals of Barnstable, supra, it was held that a by-law which authorized alterations or enlargements of nonconforming buildings and extensions of nonconforming uses by a special permit did not prohibit the conversion of a restaurant-cocktail lounge facility from seasonal to year-round use, although the court observed (361 Mass. at 323) that it would probably have reached the opposite result if Barnstable's nonconforming use by-law had been similar to that considered in Inspector of Bldgs. of Burlington v. Murphy, 320 Mass. 207 (1946) (express prohibition of any change, enlargement, or extension of a nonconforming use). In Berliner v. Feldman, 363 Mass. at 776-777, an extension from seasonal to year-round use was held not to violate a nonconforming use by-law which "express[ed] the same `permissive spirit' with respect to tolerance of nonconforming uses and their expansion as did the McAleer by-law." In Goldman v. Dennis, 375 Mass. at 199, the court, as has been seen, put emphasis on the Dennis by-law's express prohibition against conversion of nonconforming cottage colonies to condominium ownership in the circumstances there extant, in which respect the Dennis by-law is functionally analogous to the by-law considered in Inspector of Bldgs. of Burlington v. Murphy, supra. Goldman v. Dennis, relied on by the board, would be more in point if Harwich had a zoning by-law regulating the conversion to condominiums of summer rental properties. The Harwich by-law is silent on the subject, see Walker v. Board of Appeals of Harwich, 388 Mass. 42, 53-54 (1983), and its general by-law governing extensions and alterations of nonconforming uses is the permissive type *290 of by-law, similar in substance to those in the McAleer and Berliner cases (in that it sanctions extensions and alterations by special permit) and dissimilar to those in Inspector of Bldgs. of Burlington v. Murphy (a general nonconforming use provision allowing no leeway for extension) and Goldman v. Dennis (a condominium-conversion restriction allowing no scope for discretion in application).[2] At least in the absence of a by-law more directly addressing the arguably special problems of condominium conversion of seasonal rental properties, we apply the general principles that a nonconforming use is not extinguished by a transfer of property, Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205, 221 (1982), and that a change in the form of ownership does not by itself effect a change of use. Id. at 222. CHR Gen., Inc. v. Newton, 387 Mass. at 356-357. If the use of the plaintiffs' two two-family dwellings in the past has resulted in a nonconforming use limited in scope to seasonal occupancy, a transfer of ownership will not by itself effect an extension of the permitted nonconforming use to year-round occupancy. Because a special permit was unnecessary to enable the plaintiffs to sell the units in condominium form, the board did not exceed its authority in denying the application; and, as that was the operative part of the board's decision, the judge correctly affirmed the decision. The plaintiffs have, however, from the outset been seeking, in essence, declararatory relief establishing that the Harwich zoning by-law as *291 presently drafted does not preclude them from transferring their properties into condominium ownership or require them to obtain a special permit for that purpose. The issue has been fully litigated and, although the case is styled an appeal under G.L.c. 40A, § 17, it is appropriate that the judgment should be amended to contain a declaration to that effect. As so amended, the judgment is affirmed. So ordered. NOTES [1] Contrast Walker v. Board of Appeals of Harwich, 388 Mass. 42 (1983), decided shortly before the date of this opinion. In the Walker case the applicants for a special permit proposed substantial structural alterations to their motel complex and an expansion to year-round occupancy in addition to the condominium form of ownership. Because the structural changes necessitated the obtaining of a special permit, there was no occasion in the Walker case for the court to consider the necessity of a special permit for condominium conversion alone. [2] It may be contended that a municipal by-law of the restrictive type appearing in Inspector of Bldgs. of Burlington v. Murphy would be inconsistent with the second sentence of the first paragraph of G.L.c. 40A, § 6, as amended through St. 1979, c. 106. The power of a municipality strictly to confine changes in nonconforming uses appeared more clearly under the predecessor statute, G.L.c. 40A, § 5, as in effect prior to St. 1975, c. 808, but it is quite possible that the second sentence of the new § 6, first par., is to be read as authorizing municipalities to provide for extensions or alterations of nonconforming uses by special permit while not requiring them so to provide. The new section was so read in Healy, Massachusetts Zoning Practice Under the Amended Zoning Enabling Act, 64 Mass. Law Rev. 157, 161 (1979).

282 Md. 468 (1978) 386 A.2d 757 MELVIN ALFONZO CROSS v. STATE OF MARYLAND [No. 84, September Term, 1977.] Court of Appeals of Maryland. Decided May 4, 1978. The cause was argued before MURPHY, C.J., and SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ. George E. Burns, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant. Stephen B. Caplis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Clarence W. Sharp, Assistant Attorney General, on the brief, for appellee. DIGGES, J., delivered the opinion of the Court. The petitioner, Melvin A. Cross, is before this Court by way of certiorari to contest the decision of the Court of Special Appeals in Cross v. State, 36 Md. App. 502, 374 A.2d 620 (1977), which affirmed the judgment of the Circuit Court for Howard County entered on a jury verdict finding him guilty of grand larceny. Since we agree with the petitioner that (i) the evidence introduced at the trial tending to associate him with another crime committed the same day was improperly placed before the jury, and (ii) other evidence purporting to show that Cross was in possession of goods stolen in the *470 burglary was inadequate to raise an inference that he was the thief, we will reverse the judgment and remand the case for a new trial. The events which are the basis of this criminal prosecution occurred between the fifteenth and eighteenth of February, 1976.[1] On Sunday the fifteenth, between 4:00 and 5:00 p.m., the Howard County home of Margaret and Robert Fridell was burglarized. At the time of this trespass two neighbors noticed a light blue car parked near the residence, but gave no additional information concerning the vehicle and described the occupants only as "two persons" who were taking things from the house and putting them in the automobile.[2] Among the items reported missing was Mrs. Fridell's diamond engagement ring. Three days later, while investigating a break-in which had occurred at the home of Mr. Hugh Buffington in Catonsville, about an hour after and several miles from the Fridell burglary, the Baltimore County police discovered Mrs. Fridell's ring on the front seat of petitioner's blue 1967 Chevrolet. The car was at the time located in a storage yard in Prince George's County, having been placed there as a result of its impoundment by local police after being involved in an accident in that county on the evening of Monday, February 16. To bolster its case against Cross charging grand larceny and related offenses pertaining to the Fridell burglary, the State sought at the trial to introduce evidence concerning his whereabouts immediately before and after the break-in at the *471 Fridell home. Cindy Brosenne, an employee of a liquor store located two and one-half to three miles from the Fridell residence, identified Cross as one of two black men who purchased a six-pack of Michelob beer at the store between 3:30 and 4:30 p.m. on the fifteenth. The State was also allowed to present the testimony of Mr. Buffington concerning the burglary of his Catonsville home at approximately 6:30 p.m. that same day. This witness, over petitioner's objection, was permitted to testify that upon his return home from a two-hour absence he found a blue 1967 Chevrolet parked in his driveway "facing out"; that after making a mental note of the license plate number he alighted from his car, only to discover that his north screen doors had been torn down; that he immediately went to a neighbor's house and called the Baltimore County police; and that when he returned to his home, the witness found that the blue car, whose means of exit via the driveway had been blocked by his own car, had, as evidenced by tire tracks, been driven away across his front lawn. At no time did Mr. Buffington observe the occupant or occupants of the blue car. Although this witness testified he had shown the tire tracks left by the burglars' car to the police when they first arrived at around 6:45 p.m., some four hours later while examining the ground around the house the officers discovered a Michelob beer bottle, which had not previously been observed by anyone that evening. The bottle was found lying in the tire tracks about thirty or forty feet from the street, and had not been run over by the fleeing vehicle. Although the license tag number Mr. Buffington gave the police when they first arrived was not the tag number of Cross' vehicle,[3] that information, together with the *472 description of the car as being a blue Chevrolet, eventually led the police to petitioner's automobile, which they found at the storage yard in Prince George's County. In his defense, the petitioner produced as a witness the filling station operator, J. Robert Peacock, who had towed Cross' vehicle from the place where the accident occurred. Mr. Peacock testified that he was summoned to the scene by the police and thereafter at their request towed a faded blue 1967 Chevrolet back to the Bowie gas station where he worked. He stated that although he had not observed Cross at the accident scene, approximately one to two hours later the petitioner arrived at the station accompanied by friends; he displayed a personal property release document from the police, took some items from the interior and trunk of the car, and then departed in another automobile. Mr. Peacock also testified that before he began the towing operation he entered the car to straighten the wheels and put the transmission in neutral, but, it being dark, noticed nothing on the front seat. Further, this witness was not sure if the station had the keys to the wrecked car but testified that he did not lock it upon arriving at the station because the business was open twenty-four hours daily. The vehicle was later towed five miles to a storage lot where, on February 18, the previously mentioned discovery of the ring by the Baltimore County police occurred. Cross did not testify and offered no explanation of how Mrs. Fridell's engagement ring happened to be in his car; however, he did call his wife to the stand and she testified that on the day and at about the time of the Fridell burglary, her husband was with her in Hagerstown, Maryland. On this evidence, the jury found the petitioner guilty of both grand larceny and receiving stolen goods, but the State nolle prossed the latter conviction after the verdict was rendered in an attempt to avoid leaving in existence inconsistent *473 verdicts.[4]See Bell v. State, 220 Md. 75, 80-81, 150 A.2d 908, 911 (1959); Heinze v. State, 184 Md. 613, 617, 42 A.2d 128, 130 (1945). A mere cursory review of the case law relating to the issue which is the subject of the petitioner's first contention of error — the trial court's admission of evidence of another crime — readily reveals that there are few principles of American criminal jurisprudence more universally accepted than the rule that evidence which tends to show that the accused committed another crime independent of that for which he is on trial, even one of the same type, is inadmissible. The law of this State is fully in accord. E.g., McKnight v. State, 280 Md. 604, 612, 375 A.2d 551, 556 (1977); Ross v. State, 276 Md. 664, 669, 350 A.2d 680, 684 (1976); Harrison v. State, 276 Md. 122, 155-56, 345 A.2d 830, 848-49 (1975). Yet, as with many firmly established legal principles, there are exceptions which at times appear to swallow the rule. In the instance of the exclusory rule pertaining to other crimes, exceptions have been recognized because of the desire of the courts to admit evidence which is "substantially relevant for some other purpose than to show a probability that [the defendant] committed the crime on trial because he is a man of criminal character." McCormick's Handbook of the Law of Evidence § 190, at 447 (2d ed. 1972). The well-established exceptions to the rule in Maryland were recently chronicled by Judge Levine for this Court in Ross v. State, supra: [E]vidence of other crimes may be admitted when it tends to establish (1) motive, (2) intent, (3) absence of mistake, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the *474 other, and (5) the identity of the person charged with the commission of a crime on trial. Additional exceptions have also been recognized: When the several offenses are so connected in point of time or circumstances that one cannot be fully shown without proving the other, and to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial; and to prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. [276 Md. at 669-70, 350 A.2d at 684 (citations omitted).] In many instances, the breadth of these exceptions will present the prosecution with little difficulty in "pigeonholing" the evidence within one of them. But it should be remembered that, though the evidence may fall within one or more of the exceptions, the trial judge still possesses discretion as to whether it should be received. In the judicious determination of this issue he should carefully weigh the necessity for and probativeness of the evidence concerning the collateral criminal act against the untoward prejudice which is likely to be the consequence of its admission. Harris v. United States, 366 A.2d 461, 463-64 (D.C. 1976); see McKnight v. State, supra at 612-13 [556]. See generally McCormick on Evidence, supra, § 190, at 453-54. In some cases, this may require that evidence of the criminal actions of the defendant be totally excluded; in others, admission of portions or all of the evidence of the defendant's specific criminal actions may be permissible. In its opinion, the Court of Special Appeals discussed two of the exceptions enumerated in Ross, though without citing that case: (1) that the evidence of the Buffington burglary was admissible on the basis that it established a "common scheme or plan" — the ground upon which the State relied in urging its admission at trial and upon which the trial court received it, and (2) that it was admissible as establishing the "identity" of the petitioner.[5] The Court of Special Appeals *475 determined that the evidence was not admissible as establishing a common scheme or plan, a conclusion with which we agree, though not for the reasons, as we read that court's opinion, assigned by it. The court said: Nor can we agree with the State that the Buffington crime tends to establish "a common scheme or plan." The mere practice of backing a getaway car up to a premises to be burglarized does not, in our judgment, constitute so unusual a modus operandi that it could be labeled the "signature" of a particular criminal so as to establish his identity. [36 Md. App. at 521, 374 A.2d at 631.] In so stating the court appears to have confused the exceptions involved. As a general rule, in order to gain the admission of evidence of other criminal acts under the common scheme or plan exception it is necessary that the crimes, including the crime charged, so relate to each other that proof of one tends to establish the other. Westcoat v. State, 231 Md. 364, 368, 190 A.2d 544, 546 (1963); Wilson v. State, 181 Md. 1, 3, 26 A.2d 770, 772 (1942); see Young v. State, 152 Md. 89, 91-92, 136 A. 46, 47 (1927). Moreover, there must be "not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations." 2J. Wigmore, Evidence § 304, at 202 (3d ed. 1940) (emphasis in original). The concurrence of common features under this exception, however, must be more than simply a manner of operation, which is possessed to some extent by most criminal recidivists. A method of operation is not, by itself, a common scheme, but merely a repetitive pattern. People v. Fiore, 34 N.Y.2d 81, 312 N.E.2d 174, 178, 356 N.Y.S.2d 38, 44 (1974). Thus, evidence of other crimes can be introduced under the common scheme exception only when the relationship between the time, place, circumstances or parties involved in the crimes is such that the uncharged *476 crime or crimes "support the inference that there exists a single inseparable plan encompassing both the charged and uncharged crimes, typically, but not exclusively, embracing uncharged crimes committed in order to effect the primary crime for which the accused has been indicted." 312 N.E.2d at 177, 356 N.Y.S.2d at 42-43. The evidence in this case, which indicates only that a blue car was seen in front of two residences where break-ins occurred, is clearly inadequate to show any kind of systematic scheme or plan sufficient to allow admission of the evidence of the other crime. See United States v. Carter, 475 F.2d 349, 351 (D.C. Cir.1973) (per curiam) (evidence that individual wore fur hat and coat when perpetrating armed robberies on two separate occasions insufficient to show common scheme or plan). The language used by the Court of Special Appeals, as we read that court's opinion, to describe the common scheme or plan exception in fact describes the "handiwork" or "signature" exception discussed in McKnight v. State, 280 Md. 604, 613, 375 A.2d 551, 556 (1977), and at times referred to as the "modus operandi" form of the identity exception. See note 6 infra. The evidence sought to be admitted here obviously does not meet the requirements of that exception. Having thus concluded that the evidence relating to the Buffington burglary was not admissible as establishing a common scheme or plan, we now consider and reject the determination by the Court of Special Appeals that it was nevertheless admissible as tending to establish the petitioner's identity, the fifth exception we noted in Ross. 276 Md. at 669-70, 350 A.2d at 684. In stating our reasons for this conclusion we call attention to the fact that, as pointed out in Professor McCormick's treatise on evidence, "a need for proving identity is not ordinarily of itself a ticket of admission, but ... the evidence will usually follow, as an intermediate channel, some one or more of the other [exceptions]." McCormick's Handbook of the Law of Evidence § 190, at 451 (2d ed. 1972). A reading of the many cases on the identity exception reveals a dearth of analysis which, in turn, only serves to highlight this exception's amorphous nature. One explanation of this ambiguity is given *477 by Wigmore when he says: "That the accused planned the act, had a motive for the act, bore traces of the act, and so forth, are all merely `identifying' facts, because the real guilty person also must have planned, had a motive, borne traces, and the like." 2J. Wigmore, Evidence § 410, at 384 (3d ed. 1940). Whatever the reason, many courts appear to have used the identity exception as a sort of catch-all clause which is mixed into other exceptions or delineated separately depending on the needs of that court in a given case. Having studied the authorities, we conclude that perhaps the most useful analysis of the identity exception and its scope is contained in Underhill's treatise on criminal evidence, in which it is stated that evidence of other offenses may be received under the identity exception if it shows any of the following: (a) the defendant's presence at the scene or in the locality of the crime on trial; (b) that the defendant was a member of an organization whose purpose was to commit crimes similar to the one on trial; (c) the defendant's identity from a handwriting exemplar, "mug shot," or fingerprint record from a prior arrest, or his identity through a ballistics test; (d) the defendant's identity from a remark made by him; (e) the defendant's prior theft of a gun, car or other object used in the offense on trial; (f) that the defendant was found in possession of articles taken from the victim of the crime on trial; (g) that the defendant had on another occasion used the same alias or the same confederate as was used by the perpetrator of the present crime; (h) that a peculiar modus operandi used by the defendant on another occasion was used by the perpetrator of the crime on trial;[[6]] *478 (i) that on another occasion the defendant was wearing the clothing worn by or was using certain objects used by the perpetrator of the crime at the time it was committed; (j) that the witness' view of the defendant at the other crime enabled him to identify the defendant as the person who committed the crime on trial. [P. Herrick, 1 Underhill's Criminal Evidence § 210, at 637 (6th ed. 1973 & 1977 Cum. Supp.) (footnotes omitted).] Although the State contends that the evidence was admissible as demonstrating Cross' presence in the locality of the Fridell burglary — and thus his identity as the perpetrator — the argument fails for the simple reason that before evidence of another crime may be admitted, the accused's involvement in the uncharged crime must be established. The question then arises as to the standard of proof which the State is required to meet in demonstrating such involvement. In this regard, we would agree with those courts which have held that in order to be admissible for the limited purposes enumerated in the appropriate exception, such evidence must be clear and convincing to the trial judge.[7]E.g., United States v. Herzberg, 558 F.2d 1219, 1224 (5th Cir.) ("plain, clear and convincing"), cert. denied, 434 U.S. 930, 98 S.Ct. 417 (1977); United States v. Machen, 430 F.2d 523, 526 (7th Cir.1970) ("crisp, concise, and persuasive"); State v. Titworth, Minn., 255 N.W.2d 241, 244-45 & n. 1 (1977) ("clear and convincing"). But see Ernster v. State, 165 Tex. Crim. 422, 308 S.W.2d 33, 34 (Crim. App. 1957) (other *479 crime must be proved beyond a reasonable doubt). It should be added that such evidence may be circumstantial. State v. Titworth, supra at 245. In this case, one would be hard put to urge that the evidence of the petitioner's involvement in the Buffington break-in was "clear and convincing"; in fact, it was so deficient that it would not even suffice to create a jury issue were Cross being tried for any crime associated with the Buffington incident.[8] The only evidence which in any way purports to link Cross to the crime scene is Mr. Buffington's description of a blue Chevrolet parked in his home driveway, his recollection of its license plate number, and the Michelob beer bottle found in the tire tracks on his front yard. As for Mr. Buffington's description of the blue car and its license plate, the evidence is insufficient to show the petitioner was the vehicle's owner; even assuming that he was, absent a further showing that he was the driver, a passenger, or otherwise at the scene, the evidence would be insufficient to authorize Cross' conviction for the Buffington burglary. See Thomas v. State, 277 Md. 314, 325-26, 353 A.2d 256, 262-63 (1976) (evidence that defendant found asleep in auto parked on shoulder of road exhibited signs of intoxication when awakened insufficient to support conviction of driving or attempting to drive while impaired); Luker v. State, 256 Ark. 687, 509 S.W.2d 806, 807-08 (1974) (evidence insufficient since no showing defendant was driving his truck even though truck was at scene of burglary); People v. Hildebrandt, 308 N.Y. 397, 126 N.E.2d 377, 378-79 (1955) (proof obtained through "phototraffic camera" showing defendant's car was speeding insufficient to support traffic conviction because no evidence defendant was driving). As for the beer bottle, there is no evidence it was one of those in the six-pack Cross bought from Cindy Brosenne. Furthermore, there was nothing unique about the bottle — found several hours after the break-in — and there is significance in the fact that it had not been run over although it was found lying in the tire track left by the fleeing blue automobile. The beer bottle evidence simply *480 established no link between Cross and the Buffington burglary. See United States v. Machen, supra, 430 F.2d at 524 (similarity between packing slips on stolen cosmetics found in defendant's truck and packing slip discovered in shed with goods stolen in second theft insufficient to show defendant's involvement in second theft). Because there is no probative evidence in the record placing petitioner at the Buffington home on the afternoon of the fifteenth, the evidence concerning the break-in there should not have been admitted.[9] Moreover, in light of the highly prejudicial impact of revealing to the jury facts concerning the uncharged crime, "there is at least a reasonable possibility that the improper testimony of prior criminal conduct contributed to the conviction," Ross v. State, 276 Md. 664, 674, 350 A.2d 680, 687 (1976), and its admission thus cannot be said to constitute harmless error. Turning to the petitioner's second contention of error, we find that the Court of Special Appeals was likewise incorrect when it ruled that the jury could infer from the discovery of the stolen diamond ring on the front seat of Cross' automobile that he was the thief. While it is true that, absent a reasonable explanation, exclusive possession of recently stolen property authorizes the trier of fact to draw an inference of guilt sufficient to sustain the conviction of the possessor as either the thief or a receiver of stolen goods, e.g., Brewer v. Mele, 267 Md. 437, 449, 298 A.2d 156, 164 (1972) (citation of authorities),[10] that rule is of little aid to the State here. This *481 is so since the record reveals with absolute clarity that Cross was simply not shown to have been in possession of the stolen ring. Courts throughout the country, including this Court and the Court of Special Appeals, have struggled, with only limited success, to define precisely what is required to establish the requisite possession. See, e.g., Brooks v. State, 235 Md. 23, 31-32, 200 A.2d 177, 181-82 (1964); Butz v. State, 221 Md. 68, 77-78, 156 A.2d 423, 428 (1959); Jordan v. State, 219 Md. 36, 43-46, 148 A.2d 292, 297-98, cert. denied, 361 U.S. 849 (1959); Polansky v. State, 205 Md. 362, 366-67, 109 A.2d 52, 54 (1954); Boswell and Poe v. State, 5 Md. App. 571, 578-79, 249 A.2d 490, 496-97 (1968), cert. denied, 253 Md. 733 & 735 (1969); Hickman v. State, 1 Md. App. 578, 579-81, 232 A.2d 282, 283-84 (1967); State v. King, 379 A.2d 131, 134-35 (Me. 1977); Castle v. Commonwealth, 196 Va. 222, 83 S.E.2d 360, 363-64 (1954). See generally Annot., 51 A.L.R.3d 727 (1973). We will not undertake to assay a suitable definition in this case, since, however that concept might ultimately be defined, it is clear that a mere showing of legal title to the place where the stolen property was discovered will not, standing alone, permit an inference of guilt to be drawn. Here, nothing was shown beyond the fact that the petitioner owned the car. No evidence was presented that he occupied the vehicle in which the ring was located either before, at the time of, or, except to retrieve his personal belongings, after the February 16 accident — or indeed at any other time. To the contrary, from the time of the accident until the ring was discovered on February 18, the evidence specifically negates any form of possession beyond whatever bare legal title may denote, demonstrating instead that the vehicle was in the possession of the police and the garage as their agent, having been towed from the scene of the accident by a service station operator, left unlocked at that station, and finally removed again to an impoundment lot five miles from the station; the record is silent as to who, with or without permission, may have had access to it at the lot.[11] Since the record is utterly *482 devoid of any evidence placing the petitioner at any time in the vehicle where the ring was discovered, the determination upon which the inference of Cross' guilt must rest — that he was in exclusive possession of recently stolen goods — simply cannot stand. For each of the two reasons explained, the judgment of the Court of Special Appeals must be reversed. Judgment of the Court of Special Appeals reversed with direction to it to reverse the judgment of the Circuit Court for Howard County and remand the cause to that court for a new trial. Costs to be paid by Howard County. NOTES [1] Although the case has been submitted to this Court by the parties on an agreed statement of facts, pursuant to Maryland Rule 828 g, the truncated nature of the statement has made it necessary for us to supplement it by examining and drawing upon the trial record in order to explore the merits of this appeal. While we encourage the use of agreed statements under the rule to simplify the appellate process and will rely solely on such statements in most instances, we caution counsel against inadequate stipulation which fails to bring the full impact of the contentions of the parties to the Court's notice. [2] As was acknowledged by the parties at oral argument in this Court, the statement of the Court of Special Appeals that "[n]eighbors of the Fridells had testified that the two white male burglars operated from a blue Chevrolet," Cross v. State, 36 Md. App. 502, 521, 374 A.2d 620, 632 (1977) (emphasis added), is without support in the record. There is nowhere in the proceedings any evidence which indicates the race or physical characteristics of the two Fridell home burglars, or the make or model of the blue car used by them; nor is there any definitive testimony as to the burglars' sex. [3] At trial, Mr. Buffington testified that when the police arrived he told them the license number had the letters D-P-S or D-S-P and the numbers 211 or another number which contained two consecutive ones. The police in their report recorded that Mr. Buffington had told them the license number was either D-S-P 112 or D-S-P 111 or A-S-P and the same combination of numbers. However, Cross' actual tag number was D-S-P 411. The Court of Special Appeals nonetheless stated in its opinion that Mr. Buffington "unequivocally identif[ied] the appellant's automobile, both by general description and by specific license tag number." 36 Md. App. at 521, 374 A.2d at 631. Since it is clear from the record that this witness did not give police the correct number of Cross' license, his identification of the automobile can hardly be said to be "unequivocal." Likewise we are constrained to observe that the court's statement that Mr. Buffington "found a Michelob beer bottle lying on his lawn, after the strange car drove away," id. at 520 [631], may give an erroneous flavor to that witness' testimony. The record shows, as we have noted in the text, that the bottle was found in the tire tracks only thirty or forty feet from the street some four hours after the burglary occurred, and it had not been run over by the car. [4] In his appeal to the Court of Special Appeals, the petitioner raised three additional grounds for reversal: the inconsistency of the jury's verdicts of both larceny and receiving stolen goods; the erroneous admission of the testimony of the liquor store checker, Cindy Brosenne; and the inadmissibility of an in-court identification of petitioner by Miss Brosenne. 36 Md. App. at 503-04, 374 A.2d at 623. Cross has not challenged the decision of the Court of Special Appeals rejecting these three claims of error, and since those portions of the court's opinion are thus not before us for consideration, we are prevented from expressing our views as to their correctness. [5] The Court of Special Appeals summarily rejected the applicability of the motive, intent, and absence of mistake exceptions, and the State does not contend, nor could it, that these or the remaining exceptions set out in Ross are applicable in this case. [6] We recognize that modus operandi, which Underhill makes a part of the identity exception, was delineated separately in our opinion in Ross v. State, 276 Md. 664, 670, 350 A.2d 680, 684 (1976), where we stated that evidence of "other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused" was admissible. As is noted in McCormick's treatise on evidence, the modus operandi or "distinctive device" exception is often stated separately from the identity exception, McCormick's Handbook of the Law of Evidence § 190, at 451 (2d ed. 1972); however, we observe that this difference in treatment is unimportant so long as the concept is properly analyzed. [7] The preferred method for submitting any evidence of other crimes to the court during trial would be by way of a proffer to the trial judge outside the presence or hearing of the jury. Such a proffer not only protects the jury from immediate prejudice, but also allows the trial judge to determine whether there is any way to limit the prejudicial aspects of the evidence while retaining its probative character and whether the evidence should properly be introduced at that time. See United States v. Bailey, 505 F.2d 417, 420 (D.C. Cir.1974), cert. denied, 420 U.S. 961 (1975). [8] Although it is of no significance to our decision on this issue, the record indicates that the grand jury declined to charge Cross with the Buffington burglary. [9] The State also argues that the evidence of the Buffington break-in was properly admitted since it tended to rebut the testimony of Cross' wife as to his presence in Hagerstown at the time of the Fridell burglary. The short answer to this contention is that the evidence was not offered for that purpose, cf. State v. Hepple, 279 Md. 265, 368 A.2d 445 (1977); in any event, since it in no way connects Cross with the criminal acts at the Buffington home, it has no probative value in rebutting any testimony produced by the petitioner. [10] In Anglin v. State, 244 Md. 652, 656-57, 224 A.2d 668, 670 (1966), cert. denied, 386 U.S. 947 (1967), this Court justified the allowance of such an inference thus: The reasonableness and legality of permitting an inference of fact that exclusive recent and unaccounted for possession is a guilty possession is explained by the rule that there may be drawn an inference of one fact from proof of another or others if there is some rational connection between the fact or facts proved and the ultimate fact inferred so that the inference drawn from the proof is not so far-fetched as to be arbitrary. [11] Although Cross, with written authority of the police and under the watchful eye of the garage operator, did enter the automobile while it was at the service station to remove his personal belongings, the vehicle and whatever contents were left remained in the possession of the police and the garageman as their agent.

519 F.2d 1400 Trammelv.Kelly 74-1962 UNITED STATES COURT OF APPEALS Fourth Circuit 4/23/75 1 D.S.C. AFFIRMED