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https://www.courtlistener.com/api/rest/v3/opinions/7217103/ | MEMORANDUM**
Isaías Sanchez-Munoz appeals his guilty-plea conviction and 50-month sentence for illegal reentry by a previously *481deported alien with a prior aggravated felony, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Sanchez-Munoz’s counsel has filed a brief stating that he finds no meritorious issues for review, along with a motion to withdraw as counsel of record. No pro se supplemental brief or answering brief has been filed.
Our examination of the brief and our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83-84, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), disclose no arguable issues for review on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217104/ | MEMORANDUM**
Jessie Dario Rios appeals his conviction by guilty plea and 155-month sentence for armed bank robbery and aiding and abetting, in violation of 18 U.S.C. § 2113(a), (d) and § 2.
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Rios’ counsel has submitted a brief stating that there are no meritorious issues for review. Appellant has not filed a supplemental pro se brief.
Our independent review of the brief and the record under Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no issues requiring further review. Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217105/ | MEMORANDUM**
Mario Raul Paz Jr. appeals the restitution ordered by the district court after he pled guilty to three counts of knowingly uttering a counterfeit security under 18 U.S.C. § 513(a). We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We review for plain error a district court’s order imposing restitution when a defendant fails to object to the restitution during sentencing, United States v. Zink, 107 F.3d 716, 718 (9th Cir.1997), and we affirm.
The district court did not plainly err in its restitution order, because the sum awarded was not grossly disproportionate to the criminal offense, see United States v. Dubose, 146 F.3d 1141, 1145 (9th Cir.1998) (proportionality is inherent in an 18 U.S.C. § 3663 restitution order), and because the district court properly relied on the presentence report in determining the amount of restitution, see 18 U.S.C. § 3664; cf. United States v. Cannizzaro, 871 F.2d 809, 812 (9th Cir.1989) (upholding restitution order where presentence report contained information regarding the defendant’s finances and victims’ losses, the defendant did not object to this information, and the judge referred to the report’s findings at sentencing). Paz’s claim of ineffective assistance of counsel should be brought in habeas proceedings because the *482record is not sufficiently complete to allow review on direct appeal. See United States v. Lightboume, 104 F.3d 1172, 1178 (9th Cir.1997).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224322/ | ORDER STAYING CASE
KATHLEEN M. WILLIAMS, District Judge.
This MATTER is before the Court on Defendant Yucatan Foods, L.P.’s motion to dismiss Plaintiffs class action and representative action complaint (DE 13, “MTD”), Plaintiffs response (DE 17, “Resp.”), and Defendant’s reply (DE 18, “Reply”).
I. BACKGROUND
Plaintiff Ellen Greenfield filed a three-count class action1 complaint against Defendant Yucatan Foods, L.P. (“Yucatan”), on May 3, 2013, alleging violations of the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. §§ 501.201-501.213 (Counts 1 and 2), and a Florida state law claim for unjust enrichment (Count 3). (DE 1, “Compl.”). Yucatan filed a motion to dismiss all counts of the complaint on August 1, 2013.
a. Summary of Allegations
For the purposes of Yucatan’s motion to dismiss, the Court accepts the facts of the complaint as true. See Speaker v. U.S. Dept. of Health and Human Servs. Ctrs. For Disease Control and Prevention, 623 F.3d 1371, 1379 (11th Cir.2010). Yucatan is a limited partnership that manufacturers food products for sale to consumers. Plaintiff and members of the putative class are consumers that purchased various avocado products manufactured by Yucatan, including “Authentic Guacamole.” (Compl. ¶ 10; 13). Plaintiff claims that Yucatan *1373mislabeled these products because it failed to identify sugar as an ingredient. (Compl. ¶ 15). Instead, Defendant identified a form of sugar, “Evaporated Cane Juice” (“ECJ”), as an ingredient. (Compl. ¶ 15).
Plaintiff avers that she and the class have suffered economic injuries resulting from this deceptive and unfair conduct. (Compl. ¶23). Specifically, Plaintiff asserts that Yucatan’s mislabeling led consumers to pay a premium price for these various avocado products, which did not satisfy the minimum standards established by law and which contained inferior or undesirable ingredients. (Compl. ¶ 20). Plaintiff further claims that but for Yucatan’s mislabeling, she and the class would not have purchased or would not have paid a premium price for Yucatan’s products.2 (Compl. ¶ 23). As a result, Plaintiff alleges two counts for violations of the Florida Deceptive and Unfair Trade Practices Act and one count for unjust enrichment.
b. The FDA Regulates Evaporated Cane Juice
These state law claims concern the proper naming and representation of sugar cane derivatives on food product labels. Consequently, the federal food regulatory scheme comes into play. The U.S. Food and Drug Administration (“FDA”) regulates sugar in its various forms under the authority granted to it by the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 301 et seq., as amended by the Nutrition Labeling and Education Act of 1990 (“NLEA”), 21 U.S.C. § 343 et seq. Pursuant to that grant of authority, Congress tasked the FDA with establishing and maintaining a uniform federal scheme of food regulation to ensure that food is labeled in a manner that does not mislead consumers.
The gravamen for a misbranding claim is that the consuming public is not given notice of the true character of the food product. 21 U.S.C. section 343 sets forth the conditions under which food is considered “misbranded.” Generally, food is misbranded under 21 U.S.C. section 343(a)(1) if “its labeling is false or misleading in any particular.”
State police powers traditionally included the proper marketing and regulation of food, but the NLEA provides that no state may directly or indirectly establish any requirement for the labeling of food that is not “identical” to the FDCA. See 21 U.S.C. § 343 — 1(a). Thus, the FDCA “comprehensively regulates food and beverage labeling.” Pom Wonderful LLC v. Coca-Cola Co., 679 F.3d 1170, 1175 (9th Cir.2012), cert. granted, — U.S. -, 134 S.Ct. 895, 187 L.Ed.2d 701 (2014). In its Motion, Yucatan raises federal preemption as a ground for dismissal.
The Court does not reach the preemption issues today except to note that the effect of the express preemption provision of the NLEA makes the FDA’s interpretation of the federal acts central to Plaintiffs FDUTPA claims. If Yucatan’s labeling practice is compliant with FDA standards Plaintiff very likely cannot state a claim for a per se violation of FDUTPA because the Florida food regulations must be identical to the FDA’s. And if Yucatan’s labeling practice is compliant with FDA standards, Plaintiff is much less likely to be able to state a claim for a traditional viola*1374tion of FDUTPA because FDUTPA exempts from enforcement “[a]n act or practice required or specifically permitted by federal or state law.” Fla. Stat. § 501.212(1) (FDUTPA’s “safe harbor” provision).
On the other hand, if the FDA finds that evaporated cane juice is not the common or usual name for any type of sweetener, Plaintiffs per se FDUTPA argument becomes apparent. And if he FDA finds that evaporated cane juice is a misleading term, then Plaintiff will have strong evidence of a deceptive and unfair practice to support a claim for a traditional violation of FDUTPA.
Thus, although Plaintiff has alleged three state law claims, her complaint turns on whether the term “evaporated cane juice” .is false and misleading under the FDCA and its implementing regulations. Accordingly, Plaintiffs claims require a determination of whether “evaporated cane juice” is “[t]he common or usual name” for the sweetener in the purchased products and whether Yucatan identified that ingredient “in as simple and direct terms as possible, [disclosing] the basic nature of the food or its characterizing properties or ingredients.” 21 C.F.R. 102.5; see also Fla. Stat. § 500.11(l)(i). Therefore, the Court considers the FDA’s position on evaporated cane juice.
c. 2009 Draft Guidance
In 2009, the FDA issued Draft Guidance for Industry: Ingredients Declared as Evaporated Cane Juice (“ECJ Draft Guidance”) indicating that the term “evaporated cane juice” had a potential to mislead.3 (Compl. ¶ 32; 38). The ECJ Draft Guidance provided in pertinent part:
Sweeteners derived from sugar cane syrup should not be listed in the ingredient declaration by names which suggest that the ingredients are juice, such as ‘evaporated cane juice.’ FDA considers such representations to be false and misleading under section 403(a)(1) of the Act (21 U.S.C. 343(a)(1)) because they fail to reveal the basic nature of the food and its characterizing properties (i.e., that the ingredients are sugars or syrups) as required by 21 CFR 102.5.
2009 WL 3288507, at *3. The FDA has not finalized or formally adopted this draft guidance. When addressing a similar draft, non-binding agency policy, the Tenth Circuit noted that because such policies have not been finalized or adopted by the agency, they are afforded neither Chevron4 deference, nor “the lesser deference applicable to interpretative rules.” S. Utah Wilderness Alliance v. Dabney, 222 F.3d 819, 829 (10th Cir.2000).
Furthermore, the plain language of the draft guidance made clear that it is not a final, binding regulation on how evaporated cane juice should be listed in an ingredient declaration. Both in the preface and the introduction to the draft guidance, the FDA warned that the draft guidance “contains nonbinding recommendations”; “is being distributed for comment purposes only”; “does not create or confer any rights for or on any person and does not operate to bind FDA or the public”; and “do[es] not establish legally enforceable responsibilities.” 2009 WL 3288507, at *1 n. 1. The FDA further clarified that “[t]he use of the word should in Agency guid-ances means that something is suggested or recommended, but not required.” Id. (emphasis added).
*1375
d. Recent FDA Action
As noted by Judge Gonzalez Rogers of the Northern District of California in Reese v. Odwalla, Inc., — F.Supp.2d -, -, No. 13-cv-947-YGR, 2014 WL 1244940, at *5 (N.D.Cal. March 25, 2014), the “FDA has revived its review of the [evaporated cane juice] issue.” On March 4, 2014, FDA officially reopened the public comment period on its 2009 Draft Guidance and requested comment on whether evaporated cane juice is an appropriate common and usual name. See Draft Guidance for Industry on Ingredients Declared as Evaporated Cane Juice; Reopening of Comment Period; Request for Comments, Data, and Information, 79 Fed.Reg. 12507 (March 5, 2014) (the “Notice”). The Notice states, in pertinent part:
We have not reached a final decision on the common or usual name for this ingredient and are reopening the comment period to request further comments, data, and information about the basic nature and characterizing properties of the ingredient sometimes declared as “evaporated cane juice,” how this ingredient is produced, and how it compares with other sweeteners.
Notice at 1 (emphasis added). Significantly, the FDA does plan to provide final guidance: “After reviewing the comments received, we intend to revise the draft guidance, if appropriate, and issue it in final form.” Id. at 5. The comment period remains open until May 5, 2014, and the Parties can anticipate a final determination in accordance with the FDA’s good guidance practice regulations.
II. DISCUSSION
The disputes in this case concern an unresolved issue of food labeling law that the interpreting agency is actively considering. The primary jurisdiction doctrine applies where a plaintiffs claims implicate a federal agency’s expertise with a regulated product. See United States v. W. Pac. R.R. Co., 352 U.S. 59, 64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956) (primary jurisdiction doctrine applies “whenever enforcement of [a] .claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.”).
The doctrine enables a court to take advantage of an agency’s expertise, protects the integrity of the regulatory scheme, and promotes uniformity. See Flo-Sun, Inc. v. Kirk, 783 So.2d 1029, 1037 (Fla.2001). Furthermore, in Florida, “the application of the doctrine of primary jurisdiction is a matter of deference, policy and comity, not subject matter jurisdiction.” Id. The Fifth Circuit held that primary jurisdiction promotes the proper relationships between the branches of government:
The doctrine operates, when applicable, to postpone judicial consideration of a case to administrative determination of important questions involved by an agency with special competence in the area. It does not defeat the court’s jurisdiction over the case, but coordinates the work of the court and the agency by permitting the agency to rule first and giving the court the benefit of the agency’s views.
Mercury Motor Exp., Inc. v. Brinke, 475 F.2d 1086, 1091-92 (5th Cir.1973).5 Thus, assuming that the requirements of the Class Action Fairness Act are met, the Court has subject matter jurisdiction in this case. The question is whether the *1376circumstances favor deference to an agency while it receives comments and considers a critical issue in the case.
Courts consider four factors when applying the doctrine of primary jurisdiction: (1) the need to resolve an issue that (2) has been placed by Congress within the jurisdiction of an administrative body having regulatory authority (3) pursuant to a statute that subjects an industry or activity to a comprehensive regulatory scheme that (4) requires expertise or uniformity in administration. In re Horizon Organic Milk Plus DHA Omega-3 Mktg. & Sales Practice Litig., 955 F.Supp.2d 1311, 1348 (S.D.Fla.2013) (citations and internal quotations omitted). The four factors are not exclusive and courts seem heavily influenced by a fifth factor: whether the FDA has shown any interest in the issues presented by the litigants. See id. at 1351 (noting that courts have dismissed on primary jurisdiction grounds when “the FDA continues to be actively involved in monitoring and evaluating labeling” and declined to apply primary jurisdiction when the parties do “not provide evidence that the FDA has actually taken any interest in investigating the claims or issues presented”); compare, Taradejna v. Gen. Mills, Inc., 909 F.Supp.2d 1128, 1135 (D.Minn.2012) (finding that it would be “imprudent” for the Court to substitute its judgment for that of the FDA pending agency revision of the relevant standard); with Krzykwa v. Campbell Soup Co., 946 F.Supp.2d 1370, 1375 (S.D.Fla.2013) (finding that the FDA’s consistent policy of declining to promulgate rules concerning “natural food products” signaled a lack of interest in regulating that area of food labeling) (citing Janney v. Gen. Mills, Inc., 944 F.Supp.2d 806, 814-15 (N.D.Cal.2013)).
First, the FDA is once again considering, among other things, the common or usual name of evaporated cane juice as well as its basic characterizing properties. See Notice. Second, Congress vested the FDA with regulatory authority over food labeling. See FDCA as amended by NLEA. Third, those same acts subject all food moving through interstate commerce to the federal labeling standards. See id. Fourth, as discussed in Reese under facts and law similar to this case, courts are divided on the applicability of the primary jurisdiction doctrine and the legal effect of the FDA’s 2009 draft guidance; undoubtedly, a final interpretation by the FDA will infuse a disputed area of the law with uniformity. Reese, — F.Supp.2d at -, 2014 WL 1244940, at *4. The need for consistent guidance is underscored by the increasing volume of this type of litigation and the concomitant potential for inconsistent judicial rulings. See Swearingen v. Santa Cruz Natural, Inc., No. 13-04291-SI, at 6, 2014 WL 1339775 (N.D.Cal. April 2, 2014) (“[A]p-plying the doctrine of primary jurisdiction allows the Court to benefit from the FDA’s expertise on food labeling and will ensure uniformity in administration of the regulations.”).
As for the unofficial fifth factor, the FDA’s decision to allow the ECJ Draft Guidance to linger for more than four years might have indicated a previous unwillingness to regulate evaporated cane juice. But now, the FDA has taken up the subject for reconsideration. The Court is well aware that the “primary jurisdiction doctrine is not designed to secure expert advice from agencies every time a court is presented with an issue conceivably within the agency’s ambit.” In re Horizon Organic Milk Plus DHA Omega-3 Mktg. & Sales Practice Litig., 955 F.Supp.2d at 1349 (internal quotations omitted). However, as Judge Gonzalez Rogers points out, this is “a matter that is not only within the expertise and authority of the agency, it is before the agency at this moment.” Reese, *1377— F.Supp.2d at-, 2014 WL 1244940, at *4; see also Swearingen, 13-04291-SI, at 5 (“[C]ourts find it particularly appropriate to defer to [the FDA] when, as is true here, the [FDA] is in the process of making a determination on a key issue in the litigation”).
In response, Plaintiff argues that the doctrine of primary jurisdiction should not apply where the agency or administrative body cannot provide the relief sought. (Resp. at 15). This argument reflects, as the Supreme Court explained in Reiter v. Cooper, 507 U.S. 258, 269, 118 S.Ct. 1213, 122 L.Ed.2d 604 (1993), “a mistaken understanding of primary jurisdiction.” The fact that the FDA does not provide the relief sought would be relevant to an exhaustion of administrative remedies analysis, but that doctrine does not apply when the administrative body in question does not have exclusive jurisdiction over the claim. See, e.g., Reiter, 507 U.S. at 269, 113 S.Ct. 1213; Davis & Assocs. v. Williams, 892 A.2d 1144, 1149-50 (D.C.2006) (distinguishing the doctrine of exhaustion of administrative remedies from doctrine of primary jurisdiction and noting that courts make exceptions to the exhaustion of remedies doctrine when administrative remedies are inadequate).
When the doctrine of primary jurisdiction applies, the court has discretion either to stay the case and retain jurisdiction or to dismiss the case without prejudice if the Parties would not be unfairly disadvantaged. See Reiter, 507 U.S. at 268-69, 113 S.Ct. 1213. The doctrine applies here. While it seems unlikely that the Parties would be unfairly disadvantaged by a dismissal without prejudice, staying this case appears to be the more prudent course.
III. Conclusion
For all of the foregoing reasons, this case is STAYED until August 15, 2014. Yucatan Foods, L.P.’s motion to dismiss Plaintiffs class action and representative action complaint (DE 13) is DENIED AS MOOT without prejudice to renew. The Clerk is directed to CLOSE this case for administrative purposes. Any and all pending motions are DENIED AS MOOT without prejudice to renew.
. Class certification is not before the Court and the Court makes no judgment regarding the appropriateness of class treatment in this case.
. Plaintiff does not allege that she suffered adverse health consequences as a result of Defendant listing ECJ as an ingredient instead of sugar. 'Indeed, it is not clear whether Plaintiff consumed the products herself or simply purchased them to pass along to her attorney for inspection. In any case, Plaintiff alleges purely economic injury based on labeling claims. (Compl. ¶¶ 5, 10-23).
. See FDA, Draft Guidance for Industry, 2009 WL 3288507.
. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
. The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217106/ | MEMORANDUM**
Lyle Gene Anderson appeals the district court’s order denying his 28 U.S.C. § 2254 habeas corpus petition. We have jurisdiction under 28 U.S.C. § 2253(a), and we affirm.
Anderson contends that his sentence of 25 years to life under California’s “three-strikes” law for possession of methamphetamine for sale, in violation of California Health and Safety Code § 11378, constitutes cruel and unusual punishment in violation of the Eighth Amendment. We cannot say, however, that the California Court of Appeal’s decision, which concluded that Anderson’s sentence was not grossly disproportionate under Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), was objectively unreasonable. See Lockyer v. Andrade, — U.S. -, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003) (holding that state court’s affirmance of two consecutive 25-years to life sentences for petty theft was not contrary to or an unreasonable application of clearly established federal law); see also Ewing v. California, — U.S. -, 123 S.Ct. 1179, 1190, 155 L.Ed.2d 108 (2003) (noting the broad discretion of state legislatures to set punishments for crimes and holding that three-strikes sentence of 25 years to life for felony grand theft was not grossly disproportionate). The district court therefore properly denied Anderson’s petition. See Andrade, 123 S.Ct. at 1174.1
AFFIRMED.2
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
. We decline to consider Anderson’s contention based on Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980), because it was not raised below. See Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir.1998).
. All pending motions are denied. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217107/ | MEMORANDUM**
Veodis Burnett appeals his 100-month sentence, imposed following his guilty plea for conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 846, 841(a), and distribution of heroin, in violation of 21 U.S.C. § 841(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court did not clearly err in finding that the one pound of heroin at issue in the July 27, 2000 negotiation was relevant conduct that should be used in calculating Burnett’s base offense level. See United States v. Vaandering, 50 F.3d 696, 704 (9th Cir.1995).
Burnett concedes that if this Court affirms the district court’s inclusion of the July 27, 2000 heroin in the base offense calculation, we need not reach his second argument, as to whether the district court erred in applying the preponderance of evidence standard to its finding of the drug quantity involved in the first two heroin transactions. Accordingly, Burnett’s sentence is AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217109/ | MEMORANDUM**
Venustiano Ocampo-Teran appeals his guilty-plea conviction and 71-month sentence for unlawful reentry following deportation, in violation of 8 U.S.C. § 1326.
*485Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel for Ocampo-Teran has filed a brief stating that there are no meritorious issues for review, and a motion to withdraw as counsel of record. Ocampo-Teran has not filed a pro se supplemental brief.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no further issues for review. Counsel’s motion to withdraw is GRANTED and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217155/ | JUDGMENT
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224323/ | MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS
DEIN, United States Magistrate Judge.
I. INTRODUCTION
This action arises out of the negotiation, execution, and subsequent termination of a 1997 agreement (“Agreement”) between the plaintiff, Alsa Corporation d/b/a Alsa Refinish (“Alsa”), and the defendant, PPG Industries, Inc. (“PPG”), regarding the manufacture, marketing and distribution of a soft feeling paint product for which Alsa had obtained the exclusive distribution rights. Alsa claims that PPG induced it to enter into the Agreement and relinquish its exclusive rights with promises that it would work with the plaintiff to develop markets for the soft feeling paint and to accomplish the goals memorialized in the Agreement. However, in 2000, PPG informed Alsa that it was terminating the Agreement. Alsa contends that the reasons PPG gave for ending the parties’ contractual relationship were false, and that its true purpose was to avoid its obligations to the plaintiff, including its obligation to pay Alsa commissions and royalties on sales of the product. By its Verified Complaint, Alsa has asserted claims against PPG for fraudulent inducement (Count I), breach of contract (Count II), fraud (Count III), unfair trade practices (Count IV), breach of fiduciary duties (Count V), and injunctive relief (Count VI).
The matter is before the court on “Defendant PPG Industries, Inc.’s Motion to Dismiss the Complaint in its Entirety” (Docket No. 9). By its motion, PPG contends that each of Alsa’s claims must be dismissed with prejudice for failure to comply with the pleading requirements of Fed.R.Civ.P. 8(a) and 9(b), and for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). As described below, this court finds that each of Alsa’s tort claims is barred by the “gist of the action” doctrine, which prevents plaintiffs from re-casting breach of contract claims into tort claims, and that Alsa has otherwise failed to state a plausible claim for relief against PPG since its termination complied with the *339terms of the Agreement. Therefore, and for all the reasons detailed herein, PPG’s motion to dismiss is ALLOWED. However, the dismissal shall be WITHOUT PREJUDICE.
II. STATEMENT OF FACTS
When ruling on a motion to dismiss brought under Fed.R.Civ.P. 12(b)(6), the court must accept as true all well-pleaded facts, and give the plaintiff the benefit of all reasonable inferences. See Cooperman v. Individual, Inc., 171 F.3d 43, 46 (1st Cir.1999). “Ordinarily, a court may not consider any documents that are outside of the complaint, or not expressly incorporated therein, unless the motion is converted into one for summary judgment.” Alt Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir.2001). “There is, however, a narrow exception ‘for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiff’s] claim; or for documents sufficiently referred to in the complaint.’ ” Id. (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993)). “When a complaint’s factual allegations are expressly linked to— and admittedly dependent upon — a document (the authenticity of which is not challenged), that document effectively merges into the pleadings and the trial court can review it in deciding a motion to dismiss under Rule 12(b)(6).” Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st. Cir.2008) (quoting Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 16-17 (1st Cir.1998)) (punctuation omitted). Applying this standard to the instant case, the facts relevant to the defendant’s motion to dismiss are as follows.1
The Parties’ Negotiations
As described above, this case arises out of an Agreement involving the manufacture, marketing and distribution of a paint product known as “soft feeling” or “soft touch” coating (the “Product”). (See Compl. ¶ 7). Originally, the Product was manufactured in Europe by Tego Becker S.r.l. (“Tego Becker”), and was used in the automotive components sector to paint interior plastic parts. (Id. ¶ 8). Alsa claims that in 1994, its predecessor, Jewelpak Corporation (“Jewelpack”), entered into a Distribution Agreement with Tego Becker under which Jewelpack acquired the exclusive right to sell the Product in North America, South America, and Asia. (Id. ¶¶ 7, 9-10). Thus, by the time the parties began to discuss the possibility of a business deal, Alsa held the sole license to use Tego Becker’s technical data and to distribute the Product in those markets. (See id. ¶¶ 11-13).
The parties initially met at a trade show in Chicago in 1995. (Id. ¶ 11). According to Alsa, PPG represented that it was interested in the Product for its own lines, but recognized the need to work with Alsa if it *340wished to obtain any rights in the Product. (Id. ¶ 12). Accordingly, over the course of the next two years, the parties proceeded to negotiate the terms of a deal. (Id. ¶ 18). Alsa claims that throughout the period of their negotiations, PPG recognized that Alsa was devoting all of its resources toward the development of the Product. (Id. ¶ 14). It further claims that PPG encouraged it to continue such efforts “on the promise that, if successful, an agreement would be reached under which PPG would manufacture the Product in a joint venture with Alsa.” (Id.).
The plaintiff alleges that during the parties’ negotiations, PPG made various representations that induced Alsa to work with PPG and ultimately relinquish the exclusive rights that it had acquired from Tego Becker. (Id. ¶¶ 17, 19-20). In particular, PPG allegedly represented that the parties “would jointly and severally develop markets for soft feeling paint.” (Id. ¶ 17). According to Alsa, PPG also represented that it “would abide by the terms that were later memorialized in the Agreement[,]” including terms calling for the payment to Alsa of profits and commissions from sales of the Product. (See id. ¶¶ 19, 22-25). Moreover, PPG allegedly stated that after the Agreement was executed, “the parties would work together in good faith to pursue the goals of the Agreement.” (Id. ¶ 19). As described below, Alsa claims that PPG’s representations were false, and that it did not intend to carry out its contractual obligations to the plaintiff.
The Parties’ Agreement
Alsa and PPG ultimately entered into an Agreement, which became effective as of March 6, 1997. (Def. Ex. 1 at 1). Therein, the parties recognized that Tego Becker owned a body of technical data, including but not limited to patents, formulations, and manufacturing procedures relating to the production of a soft touch coating system, and that PPG and Alsa wished to “jointly and severally develop markets for the use of coating compositions having properties and characteristics the same as, or better” than Tego Becker’s system. (Id. at 1 & ¶ B). They also indicated that in order to accomplish this goal, PPG would be entering into a separate agreement with Tego Becker, referred to as the “PPG/Tego Agreement,” under which PPG would obtain a license to use Tego Becker’s body of technical data. (Id. ¶ B). The record indicates that PPG did enter into a licensing agreement with Tego Becker, which was terminated in 2000.
Pursuant to the Agreement between Alsa and PPG, the defendant agreed to make a one-time payment of $250,000 to Alsa, and to provide it with a report verifying PPG’s ability to manufacture the Product, in exchange for certain licensing rights and services from Alsa. (Id. ¶ 8.2). In particular, Alsa agreed to relinquish its exclusive license to sell and distribute the Product. (Id. ¶ 3.2(a)). It also agreed, among other things, that during the term of the Agreement, it would provide PPG and its affiliates with marketing assistance for the manufacture, distribution and sale of the Product. (Id. ¶ 3.2(f)). Alsa claims that it performed all of the marketing work for the new Product without any assistance from PPG. (Compl. ¶ 17).
The Agreement also contained provisions under which the parties agreed to provide each other with various payments and benefits based on sales of the Product. For example, PPG agreed that during the term of the Agreement, it would share fifty percent of the profits from sales to certain customers with Alsa. (Id. ¶ 4.2). It also agreed to pay Alsa royalties, both during and after the term of the Agreement, based on sales to other, specified *341customers. (Id. ¶¶ 3.2(c), 44-4.7). Furthermore, PPG agreed to provide Alsa with accountings “[wjithin sixty (60) days after the first day of March, June, September and December of each calendar year[,]” and to pay Alsa any royalties and/or profits that were due for the preceding quarter. (Id. ¶ 4.11). Alsa similarly agreed to share profits and pay royalties to PPG, and to provide PPG with account-ings, based on its own sales of the Product. (See id. ¶¶ 3.7, 4.9,4.11).
The Termination Provision
Section 5 of the Agreement defined the term of the contract and addressed the circumstances under which the parties could terminate their Agreement. Thus, section 5 provided in relevant part that “[t]his Agreement shall terminate five (5) years after the EFFECTIVE DATE, unless: (a) it is earlier terminated as provided in Subsections 5.4 through 5.9; or (b) it is extended by mutual written consent of the parties.” (Id. ¶ 5.1). It also provided, in subsection 5.5, that “[i]n the event the PPG/TEGO AGREEMENT terminates prior to five (5) years after the EFFECTIVE DATE, either party shall have the option to terminate this Agreement upon giving the other party sixty (60) days written notice.” (Id. ¶ 5.5). Therefore, the parties expressly agreed that the Agreement could be terminated prior to the expiration of the 5-year term in the event PPG’s contractual relationship with Tego Becker came to an end.
The Agreement contained a choice of law provision under which the parties agreed that “[t]he validity, interpretation and performance of this Agreement shall be governed in accordance with the laws of the Commonwealth of Pennsylvania, United States of America (excluding, any choice-of-law rules of the Commonwealth of Pennsylvania which may direct or refer any such determination to the laws of another jurisdiction).” (Id. ¶ 9.2). The parties agree that this provision applies in the instant case, and that Pennsylvania law governs the substance of Alsa’s claims. (See Def. Mem. (Docket No. 10) at 8 n. 2; PI. Opp. Mem. (Docket No. 16) at 13-16). The Agreement also contained an integration clause under which the parties agreed that “[t]his writing constitutes the entire agreement between the parties hereto relating to the subject matter of this Agreement, and there are no understandings, representations, or warranties of any kind except as expressly set forth herein.” (Def. Ex. 1 ¶ 10.3).
PPG’s Termination of the Agreement
Alsa claims that the Agreement initially worked as planned, that accountings and payments were made regularly, and that at one point it was receiving approximately $100,000 a month from PPG pursuant to the terms of the Agreement.2 (Compl. ¶¶ 27-29). However, in February 2000, PPG sent Alsa a letter in which it informed the plaintiff that it was terminating the parties’ Agreement. (See id. ¶ 30). Alsa alleges that in its letter, PPG stated that the soft coating business was not profitable, that it no longer had an interest in the Product, and that it was “no longer going to manufacture the Product in any form or in any of PPG’s lines of business.” (Id.). In fact, the letter, which was written by Howard S. Thaller, PPG’s Manager *342of Marketing & Development, and was sent to Ike Banoun at Alsa, specifically explained as follows:
I regret to inform you that the Soff-Feeling Licensing Agreement between Tego-Becker and PPG Industries has been terminated. Effective March 1, 2000, PPG will no longer be able to supply soft feeling products based on Tego technology to the general market. As a direct consequence, we are terminating the PPG-Alsa agreement under the terms stated in section 5.5.
As part of the termination of the Tego-PPG Agreement, Mike Henderson has agreed to allow PPG to continue to supply Alsa with the Tego-Becker Soft Feeling System so that you will be able to continue any programs you may have in place. This arrangement will also allow Alsa to supply Stahl should the business you have been pursuing materialize there. A separate notification of the termination will be sent to your attention that details the continuing mutual obligations that exist under the terms of the PPG-ALSA agreement.
These events have occurred for a number of reasons. First and foremost, the level of sales developed did not generate the minimum royalties for the second consecutive year, and our agreement with Tego-Becker did not allow us to continue by the simple expedient of paying the difference.
Moreover, during the second half of 1999, a global shortage of two key ingredients forced PPG to incur large expenses including off shore spot buys, air freighting and expediting materials in efforts to maintain production and avoid shutting down Microsoft’s vendor, Triquest. PPG was placed on allocation for one of the materials that is key to the “feel” of the product, and if the full allocation were used for the manufacture of Tego’s soft feeling coating, total product sales would be less than $1 million. In all, total costs related to the Soft-Feeling program and support for Microsoft and Triquest resulted in a loss position for PPG for 1999. With sales related to the mouse program winding down as the program reaches maturity, and given Stahl’s lack of success with their gravure program, we cannot justify sustaining the continuing expenses of the program.
Sales to Triquest in the second half amounted to $196,340, resulting in profits after costs and expenses directly related to the program of $27,854. Accordingly, we are forwarding under separate cover a check in the amount of $13,927 that represents half of the profits generated by these sales. Details of the calculations follow in the attachment.
(Def. Ex. 2 at 1-2 (emphasis added)).3 Based on the existing record, there is no *343dispute that the PPG/Tego agreement had been terminated. Moreover, Alsa does not allege that the termination of that contract was a sham, or that PPG induced Tego-Becker to terminate its contract.
Alsa claims that at the time of its notification, PPG knew that the abrupt manner in which it was ceasing to manufacture the Product would place Alsa in an untenable commercial position. (Compl. ¶ 31). In particular, Alsa alleges that without the assistance of PPG it was unable to meet the demands of its largest customer, Microsoft, and ultimately lost Microsoft’s business. (Id. ¶¶ 32-33). It also alleges that it was forced to develop and manufacture its own soft touch coating, at a cost of $1 million, simply to keep its operations afloat. (Id. ¶ 34). According to Alsa, PPG knew that the plaintiff would be unable to sustain the business alone and would be devastated as a result of its actions. (See id. ¶¶ 33-34). It contends that to this day, it continues to struggle financially and is barely able to makes ends meet. (Id. ¶ 35).
Alsa’s Discovery of PPG’s Alleged Fraud
Alsa claims that nearly twelve years later, it learned that PPG had intentionally lied when it represented that it was leaving the soft touch coating business and would no longer sell the Product in any form. (Id. ¶ 36). Specifically, Alsa alleges that in May 2012, David Ettman, an individual who had been employed as a purchaser for Motorola, informed the plaintiff that at the time PPG terminated the parties’ Agreement, it had a plan “to purposefully place Alsa in a precarious economic position” and avoid its contractual obligations to the plaintiff. (Id. ¶ 36-37). In particular, Alsa allegedly learned in 2012 that in February 2000, PPG knew that it was about to enter huge new markets for the Product, including markets within the automotive industry, and that it intentionally withheld this information from Alsa because it wanted to avoid paying any commissions or royalties that would have been due to Alsa under the terms of the Agreement. (Id. ¶¶ 38-39). Alsa believes that PPG has illegally sold the soft touch technology under various names, including the name “Velvecron,” since its termination of the Agreement in 2000. (Id. ¶ 41).
Based on the information provided by Mr. Ettman, Alsa determined that PPG’s stated reasons for terminating the Agreement, including its alleged representations that the soft coating business was not profitable, that PPG had no further interest in the Product, and that PPG was no longer going to manufacture the Product, were false. (See id. ¶ 30). Additionally, Alsa concluded that “PPG fraudulently induced [it] into the contract with the intent to lull Alsa into acquiescence on its licensing rights with the knowledge that it had no intent on living up to its end of the bargain.” (Id. ¶ 40). Alsa claims that PPG’s manufacture of products using the soft touch technology has yielded billions of dollars in sales since 2000, and that PPG’s desire to keep those profits for itself is what motivated the defendant to terminate the Agreement and cut it out of the deal. (Id. ¶ 42). However, Alsa has not alleged that PPG lied about the termination of the PPG/Tego Agreement. Nor has it challenged the defendant’s representation in its termination notice that it was terminating its Agreement with the plaintiff pursuant to section 5.5 of the parties’ contract.
*344Additional factual details relevant to this court’s analysis are described below where appropriate.
III. ANALYSIS
As described above, Alsa has asserted six separate causes of action against PPG, which include claims for fraudulent inducement (Count I), breach of contract (Count II), fraud (Count III), unfair trade practices (Count IV), and breach of fiduciary duties (Count V), as well as a request for a preliminary and permanent injunction (Count VI). The plaintiff has agreed to the dismissal of Counts IV and VI. Accordingly, the plaintiffs claims for unfair trade practices and injunctive relief will be dismissed and will not be addressed further. With respect to Counts I — III and V, PPG has moved to dismiss those claims for failure to comply with the pleading requirements of Fed.R.Civ.P. 8(a) and 9(b), and for failure to state a claim for relief pursuant to Fed.R.Civ.P. 12(b)(6). Because this court finds that dismissal is warranted for failure to state a claim under Rule 12(b)(6), it is unnecessary to address whether the plaintiff has satisfied the notice pleading standard set forth in Rule 8(a) or the heightened standard for pleading claims of-fraud under Rule 9(b).
A. Motion to Dismiss Standard of ' Review
Motions to dismiss under Rule 12(b)(6) test the sufficiency of the pleadings. Thus, when confronted with a motion to dismiss, the court accepts as true all well-pleaded facts and draws all reasonable inferences in favor of the plaintiff. Cooperman, 171 F.3d at 46. Dismissal is only appropriate if the complaint, so viewed, fails to allege a “plausible entitlement to relief.” Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95 (1st Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127 S.Ct. 1955, 1967, 167 L.Ed.2d 929 (2007)).
“The plausibility inquiry necessitates a two-step pavane.” Garcia-Catalan v. United States, 734 F.3d 100, 103 (1st Cir.2013). “First, the court must distinguish ‘the complaint’s factual allegations (which must be accepted as true) from its conclu-sory legal allegations (which need not be credited).’ ” Id. (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir.2012)). “Second, the court must determine whether the factual allegations are sufficient to support ‘the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Id. (quoting Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir.2011)) (additional citation omitted). This second step requires the reviewing court to “draw on its judicial experience and common sense.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). “If the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal.” Morales-Cruz, 676 F.3d at 224 (quoting SEC v. Tambone, 597 F.3d 436, 442 (1st Cir.2010)).
B. Counts I, III and V: Claims for Fraudulent Inducement, Fraud and Breach of Fiduciary Duties
PPG argues that each of Alsa’s tort claims, including its claims for fraudulent inducement, fraud and breach of fiduciary duties, is barred under Pennsylvania law by the “gist of the action” doctrine and the economic loss doctrine. (Def. Mem. at 2, 13-16). It also contends that the parol evidence rule precludes Alsa from maintaining a claim for fraud or fraud in the inducement, and that the plaintiffs failure to plead the existence of a confidential relationship warrants the dismissal of its *345claim against PPG for breach of its fiduciary duties. (Id. at 2, 11-12, 16-17). This court finds that the gist of the action doctrine defeats Alsa’s tort claims, and that Alsa’s allegations are otherwise insufficient to state a plausible claim for relief under Rule 12(b)(6). Therefore, the defendant’s motion to dismiss Counts I, III and V is allowed.
i. The “Gist of the Action” Doctrine
“In Pennsylvania, the gist of the action doctrine is a theory under common law [that is] ‘designed to maintain the conceptual distinction between breach of contract claims and tort claims.’ ” InSyte Med. Techs., Inc. v. Lighthouse Imaging, LLC, Civil Action No. 13-1375, 2014 WL 958886, at *5 (E.D.Pa. Mar. 11, 2014) (slip op.) (quoting Addie v. Kjaer, 737 F.3d 854, 865-66 (3d Cir.2013)) (additional citation omitted). “As a practical matter, the doctrine precludes plaintiffs from re-casting ordinary breach of contract claims into tort claims.” eToll, Inc. v. Elias/Savion Adver., Inc., 811 A.2d 10, 14 (Pa.Super.Ct.2002). “For the tort action to survive, ‘the wrong ascribed to [the] defendant must be the gist of the action, the contract being collateral.’ ” DeFebo v. Andersen Windows, Inc., 654 F.Supp.2d 285, 290 (E.D.Pa.2009) (quoting eToll, Inc., 811 A.2d at 14) (additional quotations and citation omitted). “Thus, while the existence of a contractual relationship between two parties does not prevent one party from bringing a tort claim against another, the gist of the action doctrine precludes tort suits for the mere breach of contractual duties unless the plaintiff can point to separate or independent events giving rise to the tort.” InSyte Med. Techs., 2014 WL 958886, at *5. “In other words, a claim should be limited to a contract claim when the parties’ obligations are defined by the terms of the contracts, and not by the larger social policies embodied by the law of torts.” eToll, Inc., 811 A.2d at 14 (quoting Bohler-Uddeholm Am., Inc. v. Ellwood Group, Inc., 247 F.3d 79, 104 (3d Cir.2001)) (additional quotations and citation omitted).
Courts applying Pennsylvania law “have held that the [gist of the action] doctrine bars tort claims: (1) arising solely from a contract between the parties; (2) where the duties allegedly breached were created and grounded in the contract itself; (3) where the liability stems from a contract; or (4) where the tort claim essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of a contract.” Id. at 19 (internal quotations and citations omitted). “In short, if the duties in question are intertwined with contractual obligations, the claim sounds in contract, but if the duties are collateral to the contract, the claim sounds in tort.” PPG Indus., Inc. v. Generon IGS, Inc., 760 F.Supp.2d 520, 528 (W.D.Pa.2011).
Alsa argues that it is premature to determine, at the motion to dismiss stage, whether the gist of the action sounds in contract or in tort, and notes that the Federal Rules of Civil Procedure allow plaintiffs to plead in the alternative. (PL Opp. Mem. at 14). “A court should be cautious when determining that a claim should be dismissed under the gist of action doctrine, due in part to the fact that Fed.R.Civ.P. 8(d)(2) allows parties to plead multiple claims as alternative theories of liability.” PPG Indus., Inc., 760 F.Supp.2d at 528 (footnote omitted). However, there is no set rule and district courts have “applied] the doctrine at the pleading stage to dismiss what are in reality contract claims, with prejudice.” Reginella Constr. Co., Ltd. v. Travelers Cas. & Sur. Co. of Am., 971 F.Supp.2d 470, 475 (W.D.Pa.2013) (citing cases). In the instant case, both the alleged facts and the *346documents referred to in the Complaint demonstrate that the gravamen of Alsa’s claims are in contract. Accordingly, this court finds that all of Alsa’s tort claims are barred by the gist of the action doctrine.
The Plaintiff’s Fraud Claims
Alsa has asserted two separate claims against PPG for fraud. In Count I, Alsa alleges that PPG made several misrepresentations to the plaintiff, with knowledge of their falsity, in order to induce it “to agree to forego its exclusive right to distribute the Product by itself or through other manufacturers.” It further alleges that Alsa reasonably relied on those representations to its detriment. (Compl. ¶¶ 46-49). Similarly, in Count III, Alsa alleges that PPG “made knowing misrepresentations to Alsa intending to induce detrimental reliance!,]” that Alsa reasonably relied on those misrepresentations, and that the plaintiff was harmed as a result. (Id. ¶¶ 59-61). Because the allegedly fraudulent representations concerned the performance of contractual duties, and were inextricably interwoven with PPG’s obligations under the parties’ Agreement, both of Alsa’s fraud claims are barred under Pennsylvania law.
“The Superior Court [of Pennsylvania] has held that fraud claims should be barred where they arose during the course of ■ the parties’ contractual relationship; where the allegedly fraudulent acts also were breaches of duties ‘created and grounded in the ... contract!;]’ and where the damages ‘would be compensable in an ordinary contract action [and] thus, the claim would essentially duplicate a breach of contract action.’ ” Pediatrix Screening, Inc. v. TeleChem Int’l, Inc., 602 F.3d 541, 548 (3d Cir.2010) (quoting eToll, Inc., 811 A.2d at 20-21). As the court explained in eToll:
the cases seem to turn on the question of whether the fraud concerned the performance of contractual duties. If so, then the alleged fraud is generally held to be merely collateral to a contract claim for breach of those duties. If not, then the gist of the action would be the fraud, rather than any contractual relationship between the parties.
811 A.2d at 19. Thus, “[w]here fraud claims are ‘inextricably intertwined’ with the contract claims, the gist of the action is contractual, and the fraud claim should be dismissed.” Pediatrix Screening, Inc., 602 F.3d at 549 (quoting eToll, 811 A.2d at 21).
Courts in Pennsylvania have recognized “that fraud in the inducement of a contract would not necessarily be covered by [the gist of the action] doctrine because fraud to induce a person to enter into a contract is generally ... not ‘interwoven’ ■with the terms of the contract itself.” eToll, Inc., 811 A.2d at 17 (punctuation omitted). See also DeFebo, 654 F.Supp.2d at 290 (noting that “fraud-in-the-inducement claims are not always barred by the gist of the action doctrine”). “However, the type of fraud is not necessarily disposi-tive, and courts have applied the doctrine to claims for fraud-in-the-inducement.” DeFebo, 654 F.Supp.2d at 290 (internal citation omitted). Moreover, “[a] breach of contract claim ... ‘cannot be bootstrapped into a fraud claim merely by adding the words fraudulently induced or alleging the contracting parties never intended to perform.’ ” InSyte Med. Techs., Inc., 2014 WL 958886, at *9 (quoting Galdieri v. Monsanto Co., 245 F.Supp.2d 636, 650 (E.D.Pa.2002)) (internal quotations omitted). “A court must examine whether the fraud claim is actually barred by the doctrine ‘based on the individual circumstances and allegations of the plaintiff.’” Id. (quoting eToll, Inc., 811 A.2d at 17).
*347An examination of Alsa’s Complaint shows that the alleged misrepresentations supporting its fraud in the inducement and fraud claims directly concern the performance of contractual duties and are “inextricably intertwined” with Alsa’s contract claims. eToll, Inc., 811 A.2d at 21. As described above, Alsa has alleged that PPG induced it to relinquish its exclusive rights in the Product by representing that the parties “would jointly and severally develop markets for soft feeling paint[,]” promising that it “would abide by the terms that were later memorialized in the Agreement[,]” and stating that “the parties would work together in good faith to pursue the goals of the Agreement.” (Compl. ¶¶ 17, 19). Each of these representations amounts to nothing more than a promise to adhere to the terms of the Agreement. Thus, the alleged promise to jointly and severally develop markets for the Product was specifically described as a primary purpose of the Agreement, and was therefore embodied by the terms of the Agreement. {See Def. Ex. 1 at 1). Moreover, PPG’s alleged representations that it would abide by the terms of the Agreement, and would do so in good faith, directly concerned the performance of PPG’s contractual duties. Accordingly, the Agreement “is far from collateral to the fraud claim[s]; rather ... the agreement is at the heart of the fraud claim[s], and therefore the gist of the fraud action is unmistakably contractual, not tortious.” InSyte Med. Techs., Inc., 2014 WL 958886, at *9 (quoting KSM Assocs., Inc. v. ACS State Healthcare, LLC, No. 05-4118, 2006 WL 847786, at *8 (E.D.Pa. Mar. 30, 2006)) (punctuation omitted).
To the extent Alsa is relying on the representations made by PPG in its February 2000 termination letter to support its claim for fraud, it does not alter this court’s conclusion that the gist of the action is contractual. As alleged in the Corn-plaint, and as further described in the letter, those representations directly concerned PPG’s termination of the parties’ contractual relationship pursuant to section 5.5 of the Agreement. Because PPG’s duties regarding termination were created by and grounded in the parties’ contractual Agreement, any harm that Alsa allegedly suffered as a result of the letter “would be compensable in an ordinary contract action[.]” eToll, Inc., 811 A.2d at 20-21. Therefore, any alleged fraud “was not so tangential to the parties’ relationship so as to make fraud the gist of the action.” Id. at 21.
Claim for Breach of Fiduciary Duties
In Count V of its Complaint, the plaintiff alleges that PPG owed it fiduciary duties “[d]ue to the relationship created between PPG and Alsa[,]” and that PPG’s breach of those duties caused Alsa to suffer serious economic harm. (Compl. ¶¶ 69-71). For the reasons that follow, this court finds that this claim too is barred by the gist of the action doctrine.
“Claims for breach of fiduciary duty and breach of contract can coexist if the fiduciary duty is based on duties imposed as a matter of social policy and if the fiduciary duty is not based on a contractual agreement between the parties.” InSyte Med. Techs., Inc., 2014 WL 958886, at *11. Thus, “[a] breach of fiduciary duty claim may survive the gist of the action doctrine where the fiduciary relationship in question is well established and clearly defined by Pennsylvania law or policy[.]” Id. However, “[a] breach of fiduciary duty claim is barred by the gist of the action doctrine if the fiduciary duty alleged is grounded in contractual obligations.” Id. See also Clark Motor Co., Inc. v. Mfrs. & Traders Trust Co., No. 4:07-CV-856, 2008 WL 9393759, at *10 (M.D.Pa. Nov. 20, 2008) (slip op.) (“If the fiduciary relation*348ship is created solely by the contractual agreement, ... a breach of fiduciary duty claim based upon that relationship will be barred by the gist of the action doctrine”), aff'd, 360 Fed.Appx. 340 (3d Cir.2010). Where such circumstances exist, “[t]he fiduciary duty claim is then ‘inextricably intertwined’ with the breach of contract action.” InSyte Med. Techs., Inc., 2014 WL 958886, at *11, and cases cited.
The record in the instant case shows that the parties’ relationship, and their obligations to one another, were created and defined solely by the terms of their contractual Agreement. Under Pennsylvania law, “[a] fiduciary relationship arises ... where ‘one person has reposed a special confidence in another to the extent that the parties do not deal with each other on equal terms, either because of an overmastering dominance on one side or weakness, dependence or justifiable trust, on the other.’” Id. (quoting Ginley v. E.B. Mahoney Builders, Inc., No. 04-1986, 2005 WL 27534, at *1 (E.D.Pa. Jan. 5, 2005)) (additional citation omitted). Such relationships have been defined to include “the relationship between attorneys and their clients, between majority and minority shareholders and between joint venturers.” Clark Motor Co., Inc., 2008 WL 9393759, at *10. However, they do not include relationships that arise solely out of “an arms length business contract.” Valley Forge Convention & Visitors Bureau v. Visitor’s Servs., Inc., 28 F.Supp.2d 947, 953 (E.D.Pa.1998). Here, the alleged facts show that the relationship between Alsa and PPG arose as the result of an arms length agreement between a manufacturer and a distributor following two years of negotiations. Alsa has cited no cases in which a fiduciary relationship was found to exist under such circumstances. Nor has it alleged any facts that would establish that the parties’ relationship was unequal or involved a special level of trust or confidence. Therefore, Count V is barred by the gist of the action doctrine. See InSyte Med. Techs., Inc., 2014 WL 958886, at *12 (finding that claim for breach of fiduciary duty was barred by gist of the action doctrine where parties were engaged in “an arm’s length commercial relationship, rather than one of special trust or confidentiality”).
The plaintiff argues that a fiduciary relationship existed because “Alsa was dependent on PPG to meet the Soft Touch manufacturing demands of customers” and because Alsa “remained dependent [on] PPG for manufacturing of the Soft Touch product” even after the termination of the Agreement. (PI. Opp. Mem. at 16-17). However, the record demonstrates that any dependence Alsa had on PPG’s ability to manufacture the Product arose- out of the parties’ Agreement and not out of any kind of special relationship or dependence that transcended the parties’ contractual arrangement. “There is a crucial distinction between surrendering control of one’s affairs to a fiduciary or confidant or party in a position to exercise undue influence and entering an arms length commercial agreement, however important its performance may be to the success of one’s business.” Valley Forge Convention & Visitors Bureau, 28 F.Supp.2d at 953. Because the alleged relationship between the parties to this litigation involved the latter type of arrangement, Alsa’s claim against PPG for breach of its fiduciary duties is barred and must be dismissed.
ii. Alternative Bases for Dismissal of Alsa’s Tort Claims
This court finds that Counts I, III and V fail to state a plausible claim for relief for other reasons as well. Therefore, even if it is assumed that the gist of the action *349doctrine is inapplicable, PPG is still entitled to have those claims dismissed.
Absence of a Fiduciary Relationship
In order “[t]o allege a breach of fiduciary duty, a plaintiff must [first] establish that a fiduciary or confidential relationship existed between [the plaintiff] and the defendants.” Baker v. Family Credit Counseling Corp., 440 F.Supp.2d 392, 414 (E.D.Pa.2006). Although no precise formula exists for determining when such a relationship exists, “[t]he ‘essence’ of such a relationship is ‘trust and reliance on one side, and a corresponding opportunity to abuse that trust for personal gain on the other.’ ” Id. at 415 (quoting In re Estate of Scott, 455 Pa. 429, 316 A.2d 883, 885 (1974)). As described above, Alsa has not alleged any facts to show that its relationship with PPG involved anything more than an arms length business contract between commercial entities. Therefore, it has not alleged a plausible claim for breach of fiduciary duties.
Failure to Allege Misrepresentations
This court also finds that Alsa has failed to state a plausible claim for fraudulent inducement or fraud. In order to state a claim based on either of those theories, the plaintiff must allege that the defendant made misrepresentations of material fact. See EBC, Inc. v. Clark Bldg. Sys., 618 F.3d 253, 275 (3d Cir.2010) (listing elements of a claim for fraud, including “(1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false”); Fitzpatrick v. Queen, No. Civ. A. 03-4318, 2005 WL 1172376, at *4 (E.D.Pa. May 16, 2005) (listing elements of claim for fraud in the inducement, including “a material misrepresentation of fact”). Because the record fails to show that PPG’s alleged statements to Alsa were false, those claims must be dismissed for this reason as well.
To the extent Alsa relies on statements that PPG allegedly made during the course of the contract negotiations, including its alleged statements that it would “jointly and severally develop markets for soft feeling paint[,]” would abide by the terms of the Agreement, and would work with Alsa “in good faith to pursue the goals of the Agreement[,]” it has not alleged any facts showing that those statements were misleading. (See Compl. ¶¶ 17, 19). Rather, Alsa’s own allegations indicate that PPG carried out its contractual obligations for nearly three years, from the date the Agreement became effective on March 6, 1997 until it sent Alsa the termination letter in February 2000. (See Def. Ex. 1 at 1; Compl. ¶ 30; Def. Ex. 2). They also indicate that throughout that time period, PPG provided Alsa with regular accountings and payments, including payments that at one time reached approximately $100,000 a month, as called for under the terms of the parties’ Agreement. (Compl. ¶¶ 27-29). Moreover, the record shows that PPG ultimately terminated the Agreement because “the Soft-Feeling Licensing Agreement between Tego-Becker and PPG Industries [had] been terminated.” (Def. Ex. 2 at 1). This was consistent with Section 5.5 of the Agreement, which specifically authorized PPG to terminate its Agreement with Alsa “[i]n the event the PPG/TEGO AGREEMENT terminates prior to five (5) years after the EFFECTIVE DATE[.]” (Def. Ex. 1 ¶ 5.5). Accordingly, the record belies Alsa’s conclusory allegations that PPG acted fraudulently, and that it “had no intent on living up to its end of the bargain.” (See Compl. ¶ 40). Alsa has failed to allege any facts to support its conclusion of fraud. Rather, the facts Alsa has alleged indicate that PPG’s alleged state*350ments regarding its commitment to work with Alsa and to carry out the terms of the Agreement were true when made, since PPG carried out its obligations for three years.
To the extent Alsa’s fraud claim is based on statements that PPG made to justify its termination of the Agreement, the record similarly fails to show that PPG’s representations were false or misleading. Although Alsa alleges that PPG purported to terminate the Agreement because the soft coating business was not profitable and the defendant no longer wished to manufacture the Product, the letter PPG sent clearly stated that the termination was pursuant to section 5.5 and “[a]s a direct consequence” of the termination of its agreement with Tego-Becker. (Def. Ex. 2 at 1). Because Alsa has not alleged any facts showing that PPG’s statements about the termination of the PPG/Tego Agreement were false, or that the basis for PPG’s termination of its Agreement with Alsa was inconsistent with section 5.5, this court finds that Alsa has failed to allege a plausible claim of fraud. Accordingly, Counts I, III and V of the Complaint will be dismissed for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6).4
C. Count II: Claim for Breach of Contract
In Count II of its Complaint, Alsa has asserted a claim against PPG for breach of contract. Specifically, Alsa alleges that “PPG breached the covenant of good faith and fair dealing as well as the specific terms of the contract.” (Compl. ¶ 55). This court finds that PPG is entitled to dismissal of this claim as well.5
In order to state a claim for breach of contract, the plaintiff must allege “(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” Omicron Sys., Inc. v. Weiner, 860 A.2d 554, 564 (Pa.Super.Ct.2004) (quoting J.F. Walker Co., Inc. v. Excalibur Oil Group, Inc., 792 A.2d 1269, 1272 (Pa.Super.2002)) (punctuation omitted). In the instant case, Alsa’s Complaint fails to identify any specific term of the Agreement that was allegedly breached by the defendant. (See Compl. ¶¶ 54-57). Moreover, as described above, the record indicates that PPG carried out its contractual duties for a period of nearly three years, and that its termination of the Agreement complied with the unambiguous language of section 5.5. Therefore, Alsa has failed to allege sufficient facts to support a claim that PPG breached an express provision of the Agreement.
Alsa’s Complaint also fails to state a claim for breach of the implied covenant of good faith and fair dealing. The Superi- or Court of Pennsylvania has adopted Section 205 of the Restatement (Second) of Contracts, which provides that “[ejvery contract imposes on each party a duty of good faith and fair dealing in its performance and its enforcement.” Kaplan v. Ca-*351blevision of PA, Inc., 448 Pa.Super. 306, 671 A.2d 716, 721-22 (1996) (quoting Restatement (Second) of Contract, § 205). The term “ ‘[g]ood faith’ has been defined as ‘[h]onesty in fact in the conduct or transaction concerned.’ ” Id. at 722 (quoting 13 Pa.C.S.A. § 1201). While the Superior Court has recognized that “[t]he breach of the obligation to act in good faith cannot be precisely defined in all circumstances,” it has noted that “examples of ‘bad faith’ conduct include: ‘evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party’s performance.’ ” Id. (quoting Somers v. Somers, 418 PaSuper. 131, 613 A.2d 1211, 1213 (1992)). As in the case of its claim for breach of an express term of the Agreement, Alsa fails to identify how the defendant’s actions constituted a breach of the implied covenant of good faith and fair dealing.6 (See Compl. ¶¶ 54-57). In light of PPG’s alleged compliance with the Agreement over the course of several years, and its apparent justification for terminating the Agreement, this court finds that Alsa has failed to state a claim for relief on this basis.
Alsa argues that “PPG blatantly breached the specific terms of the contract because PPG secretly sold the Soft Touch technology under various names and failed to pay Alsa profits and royalties pursuant to Section 4 of the Agreement.” (PI. Opp. Mem. at 13). This argument does not create a triable claim. In its Complaint, Alsa alleges that the sales at issue occurred after PPG’s termination of the Agreement in 2000. (Compl. ¶ 41). Because Alsa has not alleged any facts to show that PPG’s conduct in ending the parties’ relationship violated the termination provisions of the Agreement or was otherwise improper, there is no support for its assertion that PPG was obligated to make any payments to the plaintiff or that its failure to do so amounted to a breach of its contractual obligations.
Similarly unconvincing is Alsa’s contention that “PPG breached the implied duty of good faith and fair dealing by inducing Alsa into the contract with the intent to lull Alsa into acquiescence on its licensing rights with the knowledge that it had no intent on living up to its end of the bargain.” (PI. Opp. Mem. at 13). As an initial matter, and as detailed above, Alsa’s claim of fraudulent inducement is unsupported by the facts alleged in the Complaint and cannot withstand PPG’s motion to dismiss. More importantly, and as also described above, Alsa’s own assertions that PPG adequately performed its contractual obligations for three years undermines its contention that PPG breached its obligation of good faith and fair dealing. In the absence of factual support, Alsa’s con-clusory charge of wrongdoing cannot withstand the motion to dismiss. Therefore, PPG’s motion to dismiss is allowed with respect to Count II of the Complaint.
*352D. PPG’s Request for Dismissal with Prejudice
During oral argument, this court instructed PPG to search for and produce, if available, the PPG/Tego Agreement and the notice of termination of that agreement. PPG subsequently located both documents and filed them with the court. (See Exs. A and B to the Affidavit of William Uhl, Esq. in Support of Defendant PPG Industries, Inc.’s Motion to Dismiss the Complaint (Docket No. 29)). Those documents indicate that Tego-Becker terminated the PPG/Tego Agreement on January 6, 2000, pursuant to Subsection 5.3 of the PPG/Tego Agreement. While PPG has not relied on those documents in support of its motion to dismiss, it argues that they warrant a dismissal of Alsa’s claims with prejudice because they demonstrate that any effort by Alsa to amend its Complaint would be futile since PPG clearly had the right to terminate its Agreement with Alsa. (See Def. Supp. Reply Mem. (Docket No. 28) at 2-8).
Although the question is a close one, this court declines to dismiss Alsa’s claims with prejudice. Under Fed.R.Civ.P. 15(a), leave to amend should be freely given “when justice so requires.” Alsa has not sought leave to amend, and has not had an opportunity to present arguments in favor of an amendment. Furthermore, this court is not able to conclude, at this early stage in the proceedings, without any discovery, that any such effort by Alsa would necessarily be futile. Accordingly, Alsa’s claims will be dismissed without prejudice.
IV. CONCLUSION
For all the reasons detailed herein, “Defendant PPG Industries, Inc.’s Motion to Dismiss the Complaint in Its Entirety” (Docket No. 9) is ALLOWED. However, the dismissal shall be WITHOUT PREJUDICE.
. In addition to the Verified Complaint (Docket No. 1), this court has considered the PPG/ Alsa Agreement, which is attached as Exhibit 1 to the Declaration of Samuel Goldblatt, Esq. (Docket No. 11) (“Def. Ex. 1”), and the February 29, 2000 letter from Howard S. Thaller at PPG to Ike Banoun at Alsa, which is attached as Exhibit 2 to Attorney Goldblatt's Declaration (“Def. Ex. 2”). Both of those documents are specifically referred to in the Complaint and are central to the plaintiff's claims. Therefore, it is appropriate for this court to consider them without converting the defendant’s motion into one for summary judgment. See Alt. Energy, Inc., 267 F.3d at 33. However, PPG has not shown that the Termination Agreement attached as Exhibit 3 to Attorney Goldblatt’s Declaration falls within the narrow scope of documents that may be considered by the court on a motion to dismiss under Rule 12(b)(6).- Therefore, this court has not considered it, and has not incorporated it into the Statement of Facts set forth herein. This court also will not consider the defendant’s arguments which are premised on the Termination Agreement.
. While Alsa alleges that the Agreement worked as planned for a period of two years, the record indicates that the Agreement remained in place for a period of approximately three years. As described above, the Agreement became effective as of March 6, 1997. (Def. Ex. 1 at 1). Moreover, there is no dispute that PPG did not terminate the Agreement until 2000, about three years into the five-year term of the Agreement. (Compl. ¶ 30; Def. Ex. 2).
. During oral argument, Alsa argued that the letter from Mr. Thaller to Mr. Banoun was not the letter that was referenced in the Complaint, even though it was written in 2000 and informed Alsa that sales of the Product were not profitable, as Alsa alleged in paragraph 30 of its Complaint. Accordingly, this court ordered Alsa to file a supplemental memorandum stating whether it was challenging the authenticity of the letter submitted in support of the defendant's motion and attaching a copy of the letter described in paragraph 30 of the Complaint. On November 8, 2013, Alsa filed a supplemental opposition to the motion to dismiss. (Docket No. 25). However, Alsa did not dispute the authenticity of the letter submitted by the defendant, nor did it dispute that PPG's exhibit was the letter that was referenced in paragraph 30 of its Complaint. (See Supp. Opp. at 2-3). Accordingly, Alsa has presented no reason why the letter should not be considered in connection with the motion to dismiss. However, to the extent Alsa is relying on the Affidavit of Ike Banoun, which is attached to its supplemental *343opposition, or on the Supplemental Affidavit of Ike Banoun, which was submitted on November 19, 2013, such evidence is outside the Complaint and may not be considered on a motion to dismiss. See Alt. Energy, Inc., 267 F.3d at 33.
. In light of this court’s conclusion that Alsa’s tort claims must be dismissed for the reasons described above, it is not necessary to address PPG’s argument that these claims are barred by the economic loss doctrine or that the parol evidence rule bars Alsa’s claims for fraud and fraud in the inducement. (See Def. Mem. at 15-17).
. Because the Termination Agreement attached as Exhibit 3 to Attorney Goldblatt’s Declaration is not properly before the court on the motion to dismiss, this court has not addressed PPG's argument that the parties’ execution of the Termination Agreement constituted a novation that defeats the plaintiff’s claim for breach of contract. (See Def. Mem. at 18-19).
. PPG argues that in order to state a claim for breach of the implied covenant of good faith and fair dealing, the plaintiff must allege facts showing that the defendant breached "a specific duty imposed by the contract other than the covenant of good faith and fair dealing ....” (Def. Mem. at 12-13) (quoting Pro Acoustics, LLP v. Korn, 2010 WL 3370849, at *3, 2010 U.S. Dist. LEXIS 88101, at *8 (E.D.Pa. Aug. 24, 2010)). Alsa argues that this is not an accurate description of Pennsylvania law, and that an identical argument has been rejected by at least one federal court in that state. (Pi. Opp. Mem. at 11-13). This court finds that the issue does not need to be resolved here because even assuming a plaintiff can state a claim for breach of the implied covenant of good faith and fair dealing without alleging a breach of a specific contractual obligation, Alsa has failed to state any such claim in the instant case. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224324/ | MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
STEARNS, District Judge.
The Commodity Futures Trading Commission (CFTC) accuses defendants John B. Wilson and JBW Capital LLC (JBW), of civil violations of the Commodity Exchange Act (CEA). The CFTC alleges that Wilson (and JBW, see § 2(a)(1)(B) of the CEA) violated 7 U.S.C. §§ 6m(l), 6b(a)(2)(C)(i)-(iii), 6b(a)(2)(A)-(C),1 and 6o(l)(A)-(B) by (1) failing to register with the CFTC as a commodity pool operator (CPO) while operating such a pool, (2) knowingly and willfully making misrepresentations of material fact to the pool investor-participants, and (3) using means of interstate commerce to defraud and deceive the participants. The CFTC seeks summary judgment, an order of permanent injunction, a permanent trading ban, and a permanent registration ban, against Wilson and JBW. The CFTC also seeks the payment of restitution and civil monetary penalties. Wilson and JBW, for their *355part, argue that a material dispute over scienter precludes entry of summary judgment.2
BACKGROUND
JBW was registered as a Massachusetts limited liability company on July 23, 2007, and Wilson, a Massachusetts resident, was listed as its sole registered agent. See JBW Cert, of Org. (Dkt. # 55-6 at 10-11). The JBW Operating Agreement stated that JBW’s business purpose was to “invest in stocks, bonds, derivatives, commodity futures, financial futures, stock index futures, options on stocks, and options on futures.” See JBW Operating Agmt. (Dkt. # 55-5) ¶ 5. The Operating Agreement also stated that Wilson was the Manager of JBW and would be compensated for his services, and that, as Manager, he had “sole responsibility” over the investment and management of JBW’s assets. See id. ¶¶ 11(3) & 11(6). Neither Wilson nor JBW was ever registered with the CFTC as a CPO, nor did either file a notice with the National Futures Association (NFA) claiming to be exempt from CFTC registration.
In September of 2007, Wilson accepted contributions for JBW from several investors. The initial investors in JBW were family members and acquaintances of Wilson, including Stephen Wilson (Wilson’s brother), Peter Parsons, Thomas Trafton, Peter Trafton, and Jeyhsin Yao. In his affidavit in opposition to the CFTC’s motion for summary judgment, Wilson refers to these initial investors as the “founders” of JBW. See Wilson Aff. (Dkt. # 58-4) ¶ 2.
On September 10, 2007, Wilson opened a bank account for JBW at Sovereign Bank, and on September 12, 2007, he opened a trading account for JBW at MF Global, Inc. (MFG). Wilson deposited funds from JBW investors into the JBW bank account and then transferred the pooled funds to the MFG trading account. Wilson used the money to begin trading in commodity futures in October of 2007, and initially used an algorithm called the “Humphrey Program” to trade commodity futures.3
By December 31, 2007, JBW had thirteen pool participants. In March of 2008, JBW accepted funds from at least eight new pool participants. At some point, each of the investors in JBW was sent a “Certificate of Beneficial Interest” (CBI) purporting to show each investor’s pro rata percentage share of the pooled funds. During the life of the unregistered pool, Wilson obtained over $2,000,000 from twenty-five pool participants (excluding himself), had total net trading losses of approximately $1,800,000, and returned approximately $227,000 to the investors.
It is undisputed that in operating JBW, Wilson used the telephone and emails. *356See Defs.’ Resp. to Stmt, of Facts (Dkt. # 59) ¶ 19. Wilson circulated periodic reports to JBW investors, including statements reporting JBWs Net Asset Value (NAV).
False and Misleading Statements
Wilson admitted to receiving daily and monthly statements of account from MFG, through which he conducted the trading on behalf of JBW. See Wilson Dep. 104:4-10, Sep. 22, 2011 (Dkt. #55-14) (Wilson 9/22/11 Dep.). Wilson also admitted to sending various emails to the pool participants containing information about the status of the pool, including updated NAV values. The following chart summarizes the emails sent by Wilson to pool participants prior to September of 2008.4
Date_NAV reported by Wilson Actual JBW NAV
As of 11/30/07_$159,460.00_$159,460.00
12/21/07_$180,071.00_$177,385.00
3/01/08_$566,076.13_$553,523.00
5/30/08$2,029,271.00$1,041,399.00
On September 1, 2008, JBW’s trading account at MFG reflected a net balance of approximately $2,558,347. On September 11, 2008, JBW experienced a net trading loss of approximately $1,045,632. Notwithstanding, on September 13, 2008, Wilson reported by email to JBW investors that “Today’s NAV” was $2,475,941. See Slowly Deck, Ex. 12 (Dkt. # 55-6 at 2). The actual NAV on September 13, 2008, was approximately $1,149,628. Wilson admits to circulating this email and it is undisputed that he knew that the $2,475,941 NAV figure was inaccurate. See Wilson Dep. 105:4-10, Nov. 20, 2013 (Dkt. # 55-19) (Wilson 11/20/13 Dep.); cf. Defs.’ Opp’n (Dkt. # 58) at 15 (listing a plethora of allegedly disputed facts regarding whether Wilson committed “any fraudulent act,” but failing to allege that Wilson did not know the actual NAV amount on September 13, 2008). On September 15 and 16, 2008, JBW experienced another net futures trading loss of over one million dollars. See Slowly Decl., Ex. 35 (Dkt. # 55-7).
On September 22, 2008, Wilson again emailed the JBW pool participants (with the exception of Daniel Mann, a pool participant who had recently agreed to invest), admitting the September 11, 2008 loss, and noting that he had already spoken to each of the email recipients personally. He wrote:
[I] ... want to again express my apologies for the remarkable loss I incurred. I also want to apologize for not reporting the $1M loss of 9/11 in my weekly report. My intention was not to deceive but to “roll” the loss into the next week and hopefully show some recovery. Clearly a recovery was not the case because I experienced the second major loss on the following Monday.
I will be sending a report later this month which will explain how I plan to recover from this. Each of you know this is my profession and only source of income. I will make a recovery and make every effort to make each investor whole.
Slowly Deck, Ex. 13 (Dkt. # 64-1) (emphasis added). Wilson acknowledged writing *357this email. See Wilson 9/22/11 Dep. 220:21-222:13.
Prior to sending the September 22, 2008 email admitting the September 11 loss, Wilson welcomed Daniel Mann into JBW, emailing him on September 17, 2008, to confirm receipt of his $100,000 investment. Slowly Dec!., Ex. 57 (Dkt. # 55-10 at 6). Wilson admits that this email was sent after the September 11 losses, and that when he received the funds from Mann, he did not disclose the precipitous losses the fund had incurred during the previous few days. See Wilson 9/22/11 Dep. 220:4-16. Mann was also omitted from the September 22, 2008 confessional email that Wilson sent to the other pool participants.
At the end of September, Wilson sent an email to each of the investors with a “recovery plan.” Wilson pledged to transfer $200,000 of his own funds to the trading account, stated that he would modify his “automated trading program” to contain a “stop loss order” feature, and that he would be soliciting new investor contributions, but that he would segregate the new investor contributions for purposes of his compensation. See Wilson 11/20/13 Dep. 112:17-114:11. Wilson admitted that he did not actually modify the program to include a stop-loss order feature, and admitted that he did not actually segregate new funds received (from Mann), contrary to the statements in his recovery plan email. Id. 114:12-20.
On December 12, 2008, Wilson emailed an NAV update to Mann, falsely stating that Mann’s investment in JBW was worth approximately $120,867, despite the fact that the NAV for the entire pool barely exceeded $42,000 (Wilson had incurred a net trading loss of approximately $161,875 on December 1, 2008, which he had not disclosed to Mann).
On December 15, 2008, Wilson emailed Mann a CBI, recognizing Mann’s initial $100,000 capital contribution (from September). The CBI represented that Mann’s percentage interest in JBW as of September 28, 2008, was 3.76% of the total fund. The actual NAV of the JBW fund at the end of September 2008 approximated $10,000.00.5
Wilson admitted to knowingly deceiving Mann about his percentage interest in JBW and about the value of the fund in total, and admitted to deceiving him for fear that Mann would withdraw his money and refuse to invest further funds. At his deposition, Wilson testified as follows:
Q: What did you tell him? ,
A: I told him whatever the $100,000 was over two and a half mill, something like that. I don’t know what the percentage was, but it was — I don’t know what the percentage was, but it was basically $100,000 of two and a half million.
Q: At the time you told Mr. Mann that he was putting $100,000 or words to that effect into a $2 million fund, that was not true, there was no $2 million fund?
A: You’re absolutely right.
Q: Was there a reason why you did not tell him?
A: Fear, simple as that.
Q: Was there a concern that he would not invest the money?
A: Yes.
Wilson 9/22/11 Dep. 147:19-148:12. Wilson explained that he misled Mann in the attempt to recoup the losses suffered by his *358other investors in September of 2008. See id. at 148:13-24.
DISCUSSION
Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). If this is accomplished, the burden then “shifts to the nonmoving party to establish the existence of an issue of fact that could affect the outcome of the litigation and from which a reasonable jury could find for the [non-moving party].” Rogers v. Fair, 902 F.2d 140, 143 (1st Cir.1990). The nonmoving party “must adduce specific, provable facts demonstrating that there is a triable issue.” Id., quoting Brennan v. Hendrigan, 888 F.2d 189, 191 (1st Cir.1989). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphases in original).
“State of mind” issues do not necessarily preclude summary judgment. See Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990) (“Even in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.”); Carmona v. Toledo, 215 F.3d 124, 133 (1st Cir.2000) (a moving party is not required to “prove a negative” to avoid trial on a specious claim).
The Commodities Exchange Act
Section la(ll) of the CEA defines “Commodity pool operator” (CPO) as “any person — (i) engaged in a business that is of the nature of a commodity pool ... or similar form of enterprise and who, in connection therewith, solicits, accepts, or receives from others, funds, securities, or property ... for the purpose of trading in commodity interests, including any — (I) commodity for future delivery.” 7 U.S.C. § la(ll). A commodity pool is “any investment trust, syndicate, or similar form of enterprise operated for the purpose of trading in commodity interests.” Id. § la(10)(A).
CPO Registration Requirement
It is unlawful for a CPO “to make use of the mails or any means or instrumentality of interstate commerce in connection with his business” unless the CPO registers with the CFTC (with certain exceptions). Id. § 6m(l).6 Principals are liable for the violations of their agents in this regard. See 7 U.S.C. § 2(a)(1)(B), and 17 C.F.R. § 1.2. If a person claims exemption from the requirement under one of the articulated exceptions, he or she must still file an electronic notice with the NFA. 17 C.F.R. § 4.13(b)(1). It is beyond dispute that neither Wilson nor JBW registered as a CPO, nor did either file an electronic notice of a claimed exemption with the NFA.7
In opposition to the CFTC’s motion for summary judgment, Wilson alleges that “[t]he undisputed evidence proves that Mr. Wilson was not solely responsible for decisions and that the decision-making of the Founders [of JBW] was on a collec*359tive basis.” Defs.’ Opp’n at 4.8 This assertion (even assuming that it had some legal relevance) is directly contradicted by Wilson’s own testimony:
Q: You then ultimately opened up a futures trading account at Man Financial?
A: That’s right, MF Global.
Q: In the name of JBW Capital?
A: That is correct.
Q: Not in your name?
A: That’s right.
Q: But you are the one who had trading authority over the JBW account at MF Global?
A: That’s correct.
Q: No one else?
A: That’s correct.
Wilson 9/22/11 Dep. 77:4-16.
Q: Were you the only person that had check signing authority on the JBW account at Sovereign Bank?
A: Yes.
Q: Why did you choose MF Global for the clearing firm?
A: They gave the best commission rate of any firm.
Id. at 89:15-22. Further, Wilson admitted that he controlled the JBW account and made all financial decisions affecting the pool:
Q: Now, I know you mentioned that you considered them equal members because they have certificates of beneficial interest, but they didn’t have managing decision power over the company?
A: That’s correct.
Q: They didn’t have trading authority over the account?
A: That’s correct.
Q: They didn’t have the check signing authority over the bank account? A: That’s correct.
Q: Even though they had a beneficial interest in the company as an investor, all the executive decisions were still being made by you for the company?
A: That is correct.
Q: And only you?
A. That is correct.
Id. 107:10-108:4.
Wilson’s second line of defense would excuse his (and JBW’s) failure to register, because he supposedly relied on “professionals” for legal, tax, accounting, regulatory and compliance matters. See Defs.’ Opp’n at 4.9 Specifically, Wilson asserts that an attorney named James DeMaria “was engaged to make sure that the entity was in accord with all compliance regulatory registration issues” and that he and the other professionals “had a duty to correctly advise the Defendants ... of all relevant issues pertaining to their field of expertise, including but not limited to the obligation, if any, to register the securities of JBW, whether JBW and/or Mr. Wilson had a duty to register as an investment advisor, or otherwise.” Defs.’ Opp’n at 5.
*360Wilson also points to a February 24, 2008 email he sent to Kate Ryan, a CPA, in which he stated:
Hi Kate,
I’m attracting more investors which is good news. What I don’t want is bad news about registration concerns. I attached this hyperlink about “investment clubs” which seems to best apply to my L.L.C. If I understand it correctly my “gates” to avoid SEC or other regulation is 100 members or $25M. Am I right? [hyperlink]
As we discussed many times, I want to be a quiet successful venture; I don’t want publicity, notoriety or constriction. I want to make a lot of money for me and my investors and I want to play by the rules. That being said, I want to protect my back side and thank you for your help.
John
Slowly Deck, Ex. 10 (Dkt. # 55-6). Immediately beneath the first paragraph of the email, a handwritten “Yes” appears. (Lillian Gonzales testified that the handwriting appears to be that of Ryan, then no longer her employee). See Defs.’ Opp’n, Ex. 13 (Sep. 30, 2013 Hrg. Trans.), 185:1-10.10
Putting aside the fact that this email correspondence is dated well after Wilson began operating JBW, and passing over the contradictory nature of Wilson’s own testimony,11 to the extent that this argument might be construed as an attempted “misled by counsel” or “misled by CPA” defense, it vastly understates the elements of a proper “advice of counsel” defense and the obligations incumbent upon a party asserting it. See, e.g., G.S. Enters., Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 275, 571 N.E.2d 1363 (1991) (“To establish the advice-of-counsel defense, the party raising it must show that: (1) he is acting in good faith in the belief that he has a good cause for his action and is not seeking an opinion to shelter himself; (2) he has made a full and honest disclosure of all the material facts within his knowledge or belief; (3) he is doubtful of his legal rights; (4) he has reason to know that his counsel is competent; (5) he honestly complied with his counsel’s advice; and (6) his counsel is of such training and experience that he is able to exercise prudent judgment in such matters.”).
In any event, the registration requirement does not contain a “state of mind” limitation to liability. There is a “flat prohibition ... against using the facilities of interstate commerce to give commodity advice unless registered,” and “[w]hile fraud and misconduct may also be violations of the Act ... violations of § 6m alone are sufficient” to warrant the granting of an injunction. CFTC v. British Am. Commodity Options, 560 F.2d 135, 142 (2d Cir.1977). The British American Court also noted that “Congress has specifically found that the activities of commodity trading advisors affect substantially the transactions on commodity markets, see 7 U.S.C. § 61, and it has made the policy decision that the conduct of business by *361unregistered advisors is not in the public interest.” Id.
Although the court is unaware of any case directly discussing state of mind with regard to a failure to register (as opposed to operating as a CPO when the CFTC has rejected an application for registration), the CFTC makes a compelling analogy to the securities laws generally and to the flat prohibition against holding oneself out as an investment advisor without first registering with the Securities and Exchange Commission (SEC). 15 U.S.C. § 80b-3. Courts have consistently held that the SEC registration requirement is a “strict liability” provision. See, e.g., SEC v. Blavin, 557 F.Supp. 1304, 1309 (E.D.Mich.1983), aff'd, 760 F.2d 706, 712 (6th Cir.1985).
I agree with the CFTC that for enforcement purposes, § 6m(l) of the CEA deserves to stand on the same footing as Securities Exchange Act (SEA) § 80b-3. As in the case of the SEA, the CFTC registration requirement is “central” to the “comprehensive scheme for regulation of trading in commodity futures” established by Congress in the wake of severe abuses of the commodity future market. See British Am., 560 F.2d at 138 (“Registration is the kingpin in this statutory machinery, giving the Commission the information about participants in commodity trading which it so vitally requires to carry out its other statutory functions of monitoring and enforcing the Act.”).
In the context of strict liability, there is little force to Wilson’s lack of scienter argument given his direct admission that that he “chose” not to register as a commodity pool operator.12
Q: It was your intent when you started JBW capital to use the investors’ money to only trade futures?
A: Right.
Q: That was your intent?
A: That’s right.
Q: That’s what you told the investors?
A: That’s right.
Q: That’s what you did, you only traded futures with their money?
A: That is correct.
Q: Given that, sitting here today, why do you still think it was not a commodity pool?
A: I just didn’t think of it as a commodity pool because I had not registered with the NFA nor the CFTC, which would have then designated it as a commodity pool.
Q: I am asking you your opinion based upon your experience, because you have some experience in the futures market, why do you not think that you should have been registered as a commodity pool operator?
A: I’m not saying that I didn’t think I should. I chose not to register as a commodity pool operator.
Wilson 9/22/11 Dep. 94:20-95:22. The court therefore concludes that Wilson, and by extension, JBW, violated 7 U.S.C. § 6m(l) by failing to register as a CPO as required.
Commodities Fraud
The CEA contains a general fraud provision, stating:
It shall be unlawful—
(1) for any person, in or in connection with any order to make, or the making of, any contract of sale of any *362commodity in interstate commerce or for future delivery that is made, or to be made, on or subject to the rules of a designated contract market, for or on behalf of any other person ...
(A) to cheat or defraud or attempt to cheat or defraud the other person;
(B) willfully to make or cause to be made to the other person any false report or statement or willfully to enter or cause to be entered for the other person any false record;
(C) willfully to deceive or attempt to deceive the other person by any means whatsoever in regard to any order or contract or the disposition or execution of any order or contract, or in regard to any act of agency performed, with respect to any order or contract for or, in the case of paragraph (2), with the other person.
7 U.S.C. § 6b(a)(l), (a)(2)(A)-(C).13
“In an enforcement proceeding, the CFTC can show a violation of this anti-fraud provision by establishing that the defendant intended to make and did make a material misrepresentation with scien-ter.” S.E.C. v. Princeton Econ. Int’l Ltd., 73 F.Supp.2d 420, 424 (S.D.N.Y.1999) (collecting cases); see also CFTC v. R.J. Fitzgerald & Co., 310 F.3d 1321, 1328 (11th Cir.2002) (noting that to establish a violation of section 6(b)(l)(A)-(C), the CFTC must prove that (1) a misrepresentation was made, (2) with scienter, and (3) that the misrepresentation was material).
A statement is “material” if there is a “substantial likelihood that a reasonable investor would consider it important in making an investment decision.” Saxe v. E.F. Hutton & Co., Inc., 789 F.2d 105 (2d Cir.1986) (citing TSC Indus. Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976)). Fraudulent statements about NAV are material. Princeton Econ., 73 F.Supp.2d at 423 (letters to investors overstating the NAV were material misrepresentations in connection with sales of securities); Bruhl v. Price Waterhousecoopers Int’l, 257 F.R.D. 684, 697 (S.D.Fla.2008) (“[T]he fact that some investors would have access to different data[ ] does not eliminate the NAV statements as a relevant and material matter to be considered in the investment calculus.”).
Wilson’s sole defense to the obviously false (and material) statements about NAV that he made to his investors is the rather dubious contention that he didn’t “intend” to defraud anyone. However, as the First Circuit has noted, “the Commission need not find an actual intent to misrepresent a fact or to deceive.” First Commodity Corp. of Boston v. CFTC, 676 F.2d 1, 6 (1st Cir.1982). Rather, “the Commission has the power to base liability upon “willful” behavior, liberally defined to include ‘reckless’ behavior.” Id. at 7. Recklessness in a securities context is typified by “an extreme departure from the standards of ordinary care, and which presents a danger of misleading buyers or sellers that is either known to the defendant or is so obvious the actor must have been aware of it.” Greebel v. FTP Software, Inc., 194 F.3d 185, 198 (1st Cir.1999). A misrepresentation can be so bald (e.g., “Today’s NAV for JBW is $2,475,941,” when it is in fact $1,149,628) that it makes it “very difficult to believe the speaker was not aware of what he was doing.” First Commodity Corp. of Boston, 676 F.2d at 6-7. Here, however, the court need not even consider “recklessness,” as Wilson has not denied knowing that his statements were false. His excuse that he did *363not “mean” to deceive, but just “meant” to roll-over the losses into the next week or month’s report in the Micawber-like hope that something would turn up, virtually defines an “intent to deceive.” 14
Lastly, Wilson argues that none of his investors relied on his misrepresentations. However, in public enforcement cases, reliance is not an essential element. See, e.g., JCC, Inc. v. CFTC, 63 F.3d 1557, 1565 n. 23 (11th Cir.1995). The CEA “makes it actionable ‘to cheat or defraud or attempt to cheat or defraud such other person,’” and thus it is “unnecessary to show reliance even in a private action” because “an attempt that fails (perhaps because no one relied on it) is nonetheless a violation of [7 U.S.C. § 6b].” Slusser v. CFTC, 210 F.3d 783, 786 (7th Cir.2000) (emphasis added in original).
CPO Commodities Fraud
Section 6o of the CEA is a “parallel statute” to section 6b (the general anti-fraud provision discussed above), “forbidding fraud and misrepresentation by commodity trading advisors.” Stotler & Co. v. CFTC, 855 F.2d 1288, 1291 (7th Cir.1988); see also CFTC v. Driver, 877 F.Supp.2d 968, 978 (C.D.Cal.2012) (“The same intentional or reckless misappropriations, misrepresentations, and omissions of material fact violative of section [6]b of the Act ... also violate section [6]o(l)(A)-(B) of the Act.”). Section 6o(l)(A) of the CEA makes it unlawful for a CPO to use instruments of interstate commerce to “employ any device, scheme, or artifice” to defraud prospective or actual customers. Id. Section 6o(l)(B) makes it unlawful to use the instruments of interstate commerce to “engage in any transaction, practice, or course of business which operates as a fraud or deceit” upon actual or prospective customers. Id.
As noted in the discussion of section 6b, it is undisputed that Wilson sent false NAV updates, among other false and misleading financial information, to the JBW pool participants. It is also undisputed that he used means of interstate commerce to do so (email), and did so while acting as a CPO. This is enough to find that Wilson violated section 6o(l)(B), which, unlike section 6b, has no scienter requirement. See First Commodity Corp., 676 F.2d at 6 (noting that section 6o is an “antifraud provision that does not depend on scienter”); In re Kolter, Comm. Fut. L. Rep. ¶ 26,262, 1994 WL 621595 at *7 (CFTC Nov. 8, 1994) (“Although scienter must be proved to establish a violation of section [6]b and section [6]o(l)(A), it is not necessary to establish a violation of section [6]o(l)(B).”). Further, given that sections 6o and 6b are viewed as parallel provisions, differing only in that section 6o requires a CPO to have engaged in the viola-tive conduct, and to have used means of interstate commerce to do so, there is no reason to re-evaluate the scienter requirement with respect to section 6o(l)(A). Wilson’s allegations of a dispute of fact regarding scienter are thoroughly refuted by his own admissions and by the documentary evidence, as discussed earlier in this opinion. Thus, the court finds that Wilson also violated 7 U.S.C. § 6o(1)(A).
Requested Relief
Injunctive Relief:' Pursuant to 7 U.S.C. § 13a-1, the CFTC may “bring an action *364in the proper district court of the United States” and may seek to enjoin “any act or practice constituting a violation of any provision [of the CEA] or any rule, regulation, or order thereunder.” 7 U.S.C. § 13a-1(a). The injunctive relief the CFTC seeks is appropriate, given Wilson’s violations. Further, Wilson recognizes that he has an “addiction” to trading and that, as a result, he has “exited the industry, as far as being a trader.” See Wilson Dep. 56:10-28, Oct. 18, 2011 (Dkt. # 55-15); see also id. at 78:10-22.
Civil Penalties: Pursuant to 7 U.S.C. § 13a-l(d)(l), and 17 C.F.R. § 143.8, civil monetary penalties are permitted up to the greater of $130,000 per violation for acts committed prior to October 23, 2008, or treble a defendant’s monetary gain. Civil monetary penalties may be imposed in an amount that is appropriate to the gravity of the offense and as is necessary as a deterrence. “Civil monetary penalties are also exemplary; they remind both the recipient of the penalty and other persons subject to the Act that noncompliance carries a cost.” In re GNP Commodities, Inc., Comm. Fut. L. Rep. ¶ 25,360 at 39,-222, 1992 WL 201158, at *23 (CFTC Aug. 11, 1992).
Civil penalties are appropriate here. Wilson and JBW violated core provisions of the CEA. Further, Wilson continues to refuse to acknowledge the gravity of his actions, and continues to mischarac-terize what can only be called “lies” to his investors about the current value of their investments, by calling them “estimates,” or, alternatively, by stating that he was genuinely optimistic about the fact that the value of the fund would someday equal the figure he told his investors was then “current.” See, e.g., Wilson 11/20/13 Dep. 100:13-22, 102:7.15 In the absence of a showing by the CFTC of any personal gain on Wilson’s part as the result of the fraud, the appropriate measure of a civil penalty is the statutory per-violation amount, rather than a trebling of the investors’ losses (as the CFTC proposes).16
ORDER
For the foregoing reasons, the CFTC’s motion for summary judgment is ALLOWED. The CFTC will have ten (10) days from the date of today’s Order to *365submit a proposed form of final judgment consistent with the court’s findings and rulings.
SO ORDERED.
MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR RECONSIDERATION
On May 16, 2014, the court granted plaintiff Commodity Futures Trading Commission’s (CFTC) motion for summary judgment against defendants John B. Wilson and JBW Capital LLC for violations of the Commodity Exchange Act (CEA), 7 U.S.C. §§ 6m(l), 6b(a)(2)(i)-(iii), 6b(a)(l)(A)-(C),1 and 6o(l)(A)-(B). The court granted the CFTC’s request for in-junctive relief, as well as its request for civil penalties pursuant to 7 U.S.C. § 13a-1(d)(1), and 17 C.F.R. § 143.8. The court denied the CFTC’s request for the additional remedy of restitution. The court requested a proposed order from the CFTC, directing the calculation of civil penalties on a statutory per-violation basis.
On May 27, 2014, the CFTC filed a motion for partial reconsideration of the judgment “with respect to restitution.” See Dkt. # 68. Relying on the court’s reference to FTC v. Verity Int’l, Ltd., 443 F.3d 48, 67 (2d Cir.2006), the CFTC alleges that the court defied “First Circuit precedent” in declining to order restitution.
A motion for reconsideration of an order to grant summary judgment is treated as a motion under Fed.R.Civ.P. 59(e), and is appropriate only “in a limited number of circumstances.” United States v. Allen, 573 F.3d 42, 53 (1st Cir.2009). “Motions under Rule 59(e) must either clearly establish a manifest error of law or must present newly discovered evidence.” F.D.I.C. v. World Univ. Inc., 978 F.2d 10, 16 (1st Cir.1992). The manifest error exception “requires a definite and firm conviction that a prior ruling on a material matter is unreasonable or obviously wrong,” Ellis v. United States, 313 F.3d 636, 648 (1st Cir.2002), and “to prevail on a Rule 59(e) motion based on ‘manifest error of law,’ the moving party must demonstrate that errors were made which were so egregious that an appellate court could not affirm the district court’s judgment.” See Kelly v. City of Fort Thomas, Kentucky, 610 F.Supp.2d 759, 781 (E.D.Ky.2009) (collecting cases).2
The CFTC has made no such showing. Rather, the CFTC iterates the arguments for restitution that were made in its summary judgment pleadings and cites First Circuit precedent essentially affirming the discretion of a district court to fashion a remedy tailored to the facts of a given case.3 The additional cases cited by the *366CFTC neither compel an order of restitution as a matter of law, nor are the facts of those retail advertising cases analogous to those in this case. While the court was not persuaded by the CFTC’s argument that restitution should be awarded, “[t]hat [a party] has a difference of opinion with the Court in this matter is not grounds for reconsideration under Rule 59(e).” Trabal Hernandez v. Sealand Servs. Inc., 230 F.Supp.2d 258, 260 (D.P.R.2002). Consequently, the motion to reconsider is DENIED.
SO ORDERED.
. The CFTC Reauthorization Act of 2008 took effect on June 18, 2008; thus, the relevant sections of the CEA with regard to commodities fraud are § 6b(a)(2)(C)(i)-(iii) for acts before June 18, 2008, and § 6b(a)(2)(A)-(C) for acts after June 18, 2008.
. Defendants also complain that they have been "unduly restricted” in formulating an opposition because of the CFTC's alleged withholding of discovery. This allegation is baseless. Defendants have engaged in a pattern of abusive discovery practice by demanding the production of massive amounts of irrelevant material. See Dkt. # 38, # 51, and # 52 (denying defendants' motions to compel). Defendants have also rebuffed the court’s repeated invitations to cure their over-broad (or at times incomprehensible) discovery requests. See, e.g., Dkt. # 52 (noting that “[djefendant is free to issue a more targeted 30(b)(6) request in compliance with the rules, but has been on notice of the defects in its first request for more than two months,” and that "defendant's motion does not identify what information defendant seeks from the CFTC that it is entitled to under F.R.C.P. 26(b) that it does not already possess.”).
. Wilson has stated that the Humphrey Program was developed by him and an individual named Edward Baafi, and that he had successfully conducted a 90-day simulated trading test of the program on algorithmic futures trading software between December 2006 and May 2007.
. See Pl.'s Mem. (Dkt. # 55-1) at 4. The values in the rightmost column are taken from MFG statements attached as exhibits to the affidavit of Judith M. Slowly, an CFTC Futures Trading Investigator. See Dkt. # 55-4, # 55-9, & # 55-10.
. Dkt. # 55-1, at 6. On or about December 16, 2008, Mann invested another $100,000 in JBW. Id.
. The exceptions are set out in 17 C.F.R. § 4.13.
. In any event, Wilson did not qualify for exemption from the registration requirement because JBW had more than 15 pool participants, controlled more than $2 million in capital contributions, and because Wilson was compensated for his services as the manager of JBW. Dkt. # 55-1 at 10.
. In support, Wilson cites page 37, line 9-19 of an October 2, 2013 Hearing Transcript, which is a portion of his deposition testimony on direct examination, answering questions asked by his lawyer, Philip Giordano. As the entirety of the cited testimony concerns interactions between Wilson and others "before JBW Capital was created” {see line 11), the testimony is irrelevant to any issue in this case.
. The individuals Wilson names as his "professionals” are Peter Kortkamp, Esq. (as legal counsel), James DeMaria, Esq. (as legal counsel), Lillian Gonzales (a CPA), and Kate Ryan (a CPA). Kortkamp, DeMaria, and Gonzales were all investors in JBW Capital. Ryan was an employee at Gonzales’ accounting firm (Gonzales and Associates).
. Ryan by way of affidavit avers that "Wilson never asked me whether JBW should be registered with [the CFTC] or [the NFA]. I assumed that Wilson had an attorney for questions regarding any need for registration as my focus was on preparing the tax returns for JBW. I do not have any knowledge or expertise about the registration rules of the CFTC or NFA.” Slowly Aff., Ex. 52 ¶ 5.
. In his September 22, 2011 deposition, Wilson was asked "you were not registered with the NFA or the CFTC?” He responded, "I was not,” and was then asked “Did you ever consider registering with the NFA?” and "You didn't consult with anybody about whether or not you should register?” He responded “I did not” to both questions. Wilson 9/22/11 Dep. 92:9-19.
. Scienter is “a mental state embracing the intent to deceive, manipulate or defraud.” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193-194 n. 12, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). It may also be established by a showing of "a high degree of recklessness.” Aldridge v. A.T. Cross Corp., 284 F.3d 72, 82 (1st Cir.2002).
. 7 U.S.C. § 6b(a)(2)(C)(i)-(iii) for acts prior to June 18, 2008.
. Wilson also made separate misrepresentations and material omissions in his emails to Mann, even after he disclosed the September 11, 2008 losses to his other investors. Actionable misrepresentations include those made to persons during the solicitation of funds. Saxe v. E.F. Hutton & Co., Inc., 789 F.2d 105, 110-111 (2d Cir.1986); Hirk v. Agri-Research Council Inc., 561 F.2d 96, 103-104 (7th Cir.1977); CFTC v. Rosenberg, 85 F.Supp.2d 424, 447-448 (D.N.J.2000).
. When Wilson was asked why he sent an email on May 30, 2008, stating that "Today's NAV” is $2,029,271.45 when in fact the NAV on that date as reflected in an MFG statement, was actually $1 million less, he replied, “I did it because I had an estimate of what was going to happen in the month of June. And that seems to have realized itself, by looking at the June statement.” Id. 102:7-24.
. The CFTC has also requested disgorgement and restitution in the amount of $1,780,456, which is the agency's calculation of loss to the pool participants (who had invested a total of $2,008,275, and received approximately $227,818 when Wilson dissolved the fund). While the court’s jurisdiction under section 13a-l includes equitable remedies such as disgorgement and restitution, see, e.g., CFTC v. Wilshire Inv. Mgmt. Corp., 531 F.3d 1339, 1344 (11th Cir.2008) (collecting cases), the appropriate measure for restitution here is "the benefit unjustly received by the defendants.” F.T.C. v. Verity Int’l, Ltd., 443 F.3d 48, 67 (2d Cir.2006) (noting that the district court "strayed off course” when measuring restitution purely by the plaintiffs’ losses); see also CFTC v. Am. Metals Exchange Corp., 991 F.2d 71, 78 (3d Cir.1993) (“[I]n designing remedies under the [CEA] or the [SEA], the courts have considered disgorgement to serve primarily to prevent unjust enrichment.”). There must be a “relationship between the amount of disgorgement and the amount of ill-gotten gain.” Id. at 79. Wilson and JBW committed significant violations of the CEA, and thus the court has imposed civil penalties, but no evidence has been presented with regard to the amount of retained profits or ill-gotten gains. The court therefore declines to enter an order of restitution.
. The CFTC Reauthorization Act of 2008 took effect on June 18, 2008; thus, the relevant sections of the CEA with regard to commodities fraud are § 6b(a)(2)(i)-(iii) for acts before June 18, 2008, and § 6b(a)(l)(A)(C) for acts after June 18, 2008.
. The CFTC does not suggest the discovery of previously unknowable evidence.
. In the First Circuit case which the CFTC cites, defendant retailers appealed a district court order of restitution for deceptive advertising, and argued, citing the Verity case, that "damages for deceptive advertising are limited to actual profits, not gross receipts.” F.T.C. v. Direct Mktg. Concepts, 624 F.3d 1, 14 (1st Cir.2010). The Court rejected the argument on appeal, noting "the law allows for broad discretion in fashioning a remedy for deceptive advertising; many cases uphold rescission (effectively, restoring the parties to pre-sale status) or restitution (under these facts, the same) as appropriate remedies.” Id. Further, noting that "in many cases in which the FTC seeks restitution, the defendant’s gain will be equal to the consumer’s loss,” id. (quoting Verity, 443 F.3d at 68), the Court emphasized that, given a set of unique facts, "Verity [held] only that ‘certain circum*366stances require the court to limit disgorgement to the defendant's profits.' ” Direct Mktg., 624 F.3d at 14 (quoting FTC v. Trudeau, 579 F.3d 754, 772 (7th Cir.2009)). Thus, the First Circuit held the district court's conclusion that gross receipts were an appropriate measure of damages in that consumer protection case, “was consistent with Verity and within the bounds of the district court’s discretion in fashioning an equitable remedy.” Id. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224325/ | MEMORANDUM AND ORDER
YOUNG, District Judge.
I. INTRODUCTION
Edward Tawa (“Tawa”) is a former client of tax preparer Michael Edwards (“Edwards”), who pled guilty before this Court to charges of wire fraud and the corrupt endeavor to obstruct the Internal Revenue Service. Adopting the government’s recommendation, this Court sentenced Edwards to three years of incarceration and $141,129.36 restitution as to the wire fraud charge. Tawa moves for additional restitution to cover his attorneys’ fees and costs, accountants’ fees, and prejudgment interest. After careful consideration of the briefs submitted by the parties, the Court has calculated the award of additional restitution as permitted under the Mandatory Victims Restitution Act of 1996 (“MVRA”) and explains its determination in this memorandum. See 18 U.S.C. § 3663A.
A. Procedural History
1. State Court Civil Action
On August 29, 2011, Tawa filed a civil lawsuit (“Civil Action”) against Edwards in the Massachusetts Superior Court sitting in and for the County of Suffolk, for violations of Massachusetts General Laws *369Chapter 93A, Negligent Misrepresentation, Fraud, Breach of Contract, Breach of Fiduciary Duty, and Negligence. Def. Michael Edwards’ Opp. Edward Tawa’s Mem. Requesting Add’l Restitution (“Edwards’ Opp.”) 2, ECF No. 21. Edwards served as Tawa’s tax preparer from 1995 until 2011, when Tawa brought malpractice claims against Edwards with respect to Edwards’ mishandling of a Massachusetts Department of Revenue (“DOR”) audit and adverse domicile determination in 2010. Edward Tawa’s Am. Mem. Regarding Calculation Restitution Pursuant 18 U.S.C. § 3663A-3664 (“Tawa Mem.”), Ex. A, Victim Impact Statement, ECF No. 16.
On October 30, 2012, Tawa filed an amended complaint upon learning that Edwards was being investigated by the government for misappropriating Tawa’s 2006 tax refund check. Edwards’ Opp. 2. This amended complaint included a conversion claim alleging that Edwards stole Tawa’s 2006 federal tax refund in the amount of $202,143, and that Edwards had also forged Tawa’s signature on this filed tax return. Tawa Mem., Ex. B: Civil Compl., First Amended Compl. ¶¶ 67-73, ECF No. 16-2.
A related complaint (“Transferee Action”) was filed by Tawa on April 23, 2013, against multiple parties who had received portions of Tawa’s stolen tax refund check. Tawa Mem., Verified Compl., Ex. D, ECF No. 16-6. These parties included Edwards’ daughter, parents, and various entities Edwards’ controlled or in which he held an interest. Id.
On December 2, 2013, the parties settled the pending civil actions in an agreement in which Edwards agreed to an entry of judgment in the amount of $600,000 on Count III (Fraud) of the amended complaint. Edwards’ Opp. 3; Settlement Agreement, ECF No. 23 (filed under seal). This agreement included two forms of immediate payment to Tawa; first, cash and securities in the amounts of $46,977.14, $14,000, and $36.50 (totaling $61,013.64), and second, in the delivery of two deeds on property held by Edwards, in which the “greater of $150,000 or the net proceeds from the sale” was to be credited towards the judgment. Settlement Agreement ¶¶ 4-6; Edwards’ Opp. 3. Tawa agreed to dismiss the pending Civil Action and Transferee Action and “credit any funds recovered pursuant to any restitution order entered against Edwards in the criminal matter entitled United States v. Michael Edwards ” towards this judgment. Settlement Agreement ¶¶ 1, 8.
2. District Court Criminal Matter
On October 31, 2013, criminal charges were entered against Edwards in this court. Information, ECF No. 1. Edwards was charged with the Corrupt Endeavor to Obstruct the Internal Revenue Service (Count 1) and with Wire Fraud (Count 2). Id. On Count 2, the government alleged that Edwards, operating as Boston Financial Associates (“Boston Financial”), prepared and filed a tax return for Tawa and fraudulently inserted Boston Financial’s mailing address to receive Tawa’s 2006 tax refund. Id. ¶ 4. Upon receiving Tawa’s tax refund, Edwards deposited this check into Boston Financial’s bank account and wire transferred approximately $23,000 from this account to the operating account of a Rhode Island restaurant in which he had invested. Id. ¶ 6.
Edwards pled guilty to both counts and entered into a plea agreement with the government in which it agreed to recommend a sentence of thirty-three months incarceration, restitution of $573,518 on Count 1 to the IRS, and restitution of $202,143 on Count 2 to Tawa, reflecting the amount of the misappropriated tax refund check. Plea Agreement, ECF No. 2; Edwards’ Opp. 4.
*370On February 24, 2014, this Court accepted Edwards’ guilty plea and sentenced Edwards to a three-year term of incarceration on each count, to run concurrently, and accepted Probation’s recommendation for restitution in the amounts of $573,518 to the IRS and $141,129.36 to the victim, reserving the right to amend the order of restitution within ninety days. Elec. Clerk’s Notes, Feb. 24, 2014, ECF No. 15 (reflecting the amount of the misappropriated refund check less the amount already received by Tawa from civil settlement). In response to Tawa’s request for additional restitution at sentencing, the Court requested additional briefing from the parties.
B. Factual Background
Tawa relies heavily on the chronology of relevant facts to support his argument for additional restitution. Tawa is a current resident of Las Vegas, Nevada, who during the relevant period, was a trader on the stock exchange. First Amended Compl. ¶ 2. Edwards was in the business of tax preparation (operating as Boston Financial) and had handled Tawa’s taxes for over fifteen years. Id. ¶ 4-5. On October 14, 2008, Edwards filed Tawa’s U.S. Individual Income Tax Return for the calendar year 2006, but placed Boston Financial’s mailing address on the tax return. Plea Agreement 11. In February 2009, Edwards received Tawa’s tax refund check and deposited it into Boston Financial’s bank account. Id. On May 28, 2009, the Massachusetts Department of Revenue (“DOR”) sent a notification of audit to Tawa in the care of Edwards, who was authorized by Tawa to servé as his tax representative. First Amended Compl. ¶¶ 7-8. The purpose of this audit was to determine Tawa’s domicile for the tax period of 2005-2007, during which he filed Massachusetts Nonresident returns (noting that Nevada has no personal income tax, while Massachusetts does). Id. ¶ 10; Tawa Mem., Ex. B: Civil Compl., Notification of Audit 26, ECF No. 16-2. The DOR also requested that Tawa complete a domicile questionnaire. Id. Edwards failed to respond to this audit notification, as well as to following notices from the DOR, including a July 2009 follow-up letter, a September 2009 Notice of Intention to Assess, and a February 2010 Notice of Assessment charging Tawa with a tax liability of $153,627.77, citing Tawa’s failure to provide documentation of his new domicile in Nevada. First Amended Compl. ¶¶ 17, 20, 24; Notification of Audit 28. On May 11, 2010, the DOR issued a notice levying $157,677.59 of Tawa’s personal funds. First Amended Compl. ¶29. Meanwhile, from May 2009 to May 2011, Edwards assured Tawa that he had the necessary documents to provide to the DOR to handle this domiciliary issue. Id. ¶¶ 16, 27.
Tawa was unaware that Edwards had misappropriated his tax refund check when he brought his initial claims against Edwards in August 2011, and did not find out until he was contacted by the FBI in regards to the theft in October 2012. Victim Impact Statement 1; Edwards’ Opp. 2. Tawa believes that Edwards’ inaction in regards to the repeated notices from the DOR was deliberate in an effort to conceal the tax refund theft from both Tawa and the DOR. Victim Impact Statement 1.
The criminal charges against Edwards are limited to the scheme to defraud under 18 U.S.C. § 1341 and do not include Edwards’ actions relating to the DOR audit. Plea Agreement 1; Statement of Facts 1.
C. Legal Standard
Restitution is “a mechanism for making a victim whole by restoring the monetary equivalent of losses suffered in consequence of the defendant’s criminal *371activity.” United States v. Salas-Fernandez, 620 F.3d 45, 48 (1st Cir.2010). Under 18 U.S.C. § 3663A(a)(1), the courts have discretion to order restitution “in addition to or in lieu of, any other penalty authorized by law” to the victim of the offense. The First Circuit has held that “sentencing courts wield considerable discretion ‘to reach an expeditious, reasonable determination of appropriate restitution by resolving uncertainties with a view toward achieving fairness to the victim.’ ” United States v. Corey, 77 Fed.Appx. 7, 10 (1st Cir.2003) (citing S.Rep. No. 97-532).
Under 18 U.S.C.A. § 3664(d)(5), a court can determine a victim’s losses after sentencing in an amended restitution order. Restitution orders are not subject to the economic circumstances of the defendant and are given in the “full amount of each victim’s losses” under the Mandatory Victims Restitution Act of 1996 (“MVRA”). 18 U.S.C. § 3664(f)(1)(A); see also Brian Kleinhaus, “Serving Two Masters: Evaluating the Criminal or Civil Nature of the VWPA and MVRA Through the Lens of the Ex Post Facto Clause, the Abatement Doctrine, and the Sixth Amendment,” 73 Fordham L.Rev. 2711, 2712 (2005).
The “American Rule” provides that a prevailing litigant is “ordinarily not entitled to collect a reasonable attorneys’ fee from the loser.” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). The MVRA, however, provides restitution to the victim of an offense “for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U.S.C. § 3663A(b)(4). The First Circuit in United States v. Janosko, 642 F.3d 40 (1st Cir.2011) elaborated on these “other expenses”:
While “expenses” qualifying for restitution are not unlimited, like the notion of response under § 1030(e)(ll), they will pass muster if they would not have been incurred in the absence of the offense, Hughey v. United States, 495 U.S. 411, 416-18, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990); United States v. Cutter, 313 F.3d 1, 7 (1st Cir.2002), were “not too attenuated” in fact or time from the crime, United States v. Vaknin, 112 F.3d 579, 590 (1st Cir.1997), abrogated on other grounds by United States v. Anonymous Defendant, 629 F.3d 68 (1st Cir.2010), and were reasonably foreseeable, United States v. Collins, 209 F.3d, 1, 3-4 (1st Cir.1999).
Id. at 42. Understanding that the criminal offense in this case is the wire fraud, where Edwards fraudulently inserted his own address to receive Tawa’s tax refund and deposited the refund into his own bank account, this Court must analyze whether Tawa’s additional fees arose from either the investigation or prosecution of this offense, and were sufficiently caused by and related to the offense as outlined under Janosko. See Information 3.
Although prejudgment interest is not mentioned in the MVRA, courts have included prejudgment interest in restitution orders in an effort to ensure that victims are compensated in the “full amount of each victim’s losses.” United States v. Qurashi 634 F.3d 699, 704 (2d Cir.2011). For example, the First Circuit allowed for restitution of prejudgment interest in a bank fraud case, stating that “foregone interest is one aspect of the victim’s actual loss.” United States v. Corey, 77 Fed. Appx. 7, 12 (1st Cir.2003) (quoting United States v. Smith, 944 F.2d 618, 626 (9th Cir.1991)). These awards, however, should be rooted in “actual damages” directly resulting from the defendant’s criminal conduct. United States v. Barany, *372884 F.2d 1255, 1261 (9th Cir.1989) (interpreting the precursor statute to the MVRA, the Victims Witness and Protection Act of 1982 or “VWPA”).
II. ADDITIONAL RESTITUTION
A. Tawa’s Motion for Additional Restitution
Tawa seeks an increase in restitution from the Court’s amount of $141,129.36 to $485,599.68. Tawa Mem. 1. The Court’s award, adopting Probation’s recommendation, represents the amount of the misappropriated tax refund check, $202,143, less the amount of cash that had already been paid to Tawa in the civil settlement, $61,013.64. Id. at 4; Settlement Agreement ¶¶ 4-6. Tawa argues first, that the starting figure of $202,143 is too low and the offset of cash paid is too high, and second, that he is entitled to attorneys’ fees and costs, accountants’ fees, and prejudgment interest under Section 3663A. Tawa Mem. 4.
Tawa’s request may be outlined as follows: Pursuant to the civil settlement, Tawa agreed to an entry of judgment amounting to $600,000. Tawa Mem. 3. This agreement spelled out an initial payment of $61,013.64 and the delivery of two real estate deeds to Tawa (taking the greater of the net proceeds from sale or $150,000). Id. Tawa requests the following additional restitution amounts:
• Prejudgment interest (2.5% for 5 years) = $26,000
• Attorneys’ fees= $243,011.87
• Accountants’ fees= $14,444
• TOTAL ADDITIONAL RESTITUTION $283,455.87
• COMBINED TOTAL RESTITUTION AMOUNT= $485,599.68
Edwards opposes this motion for additional restitution, arguing that any additional recovery is limited by statute to “necessary ... expenses incurred during participation in the investigation or prosecution of the offense.” 18 U.S.C.A. § 3663A(b)(4); Edwards’ Opp. 6. Arguing that Tawa failed to prove how his attorneys’ fees, accountants’ fees, and prejudgment interest were related to the prosecution of the criminal offense, Edwards maintains that these additional fees are “too remote” from the criminal conduct to serve as a basis of restitution. Id. at 7. With the exception of some of Tawa’s attorneys’ fees, this Court comes to the conclusion that the additional requested fees cannot be awarded as mandatory victim restitution.
B. Attorneys’ Fees and Costs
1. Fees Attributed to Edwards’ Criminal Case
Generally, a prevailing litigant is responsible for its own reasonable attorneys’ fee, Alyeska Pipeline Service Co., 421 U.S. at 247, 95 S.Ct. 1612, but the MVRA provides restitution for expenses incurred by the victim “during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U.S.C. § 3663A(b)(4). Although Tawa was not a party to the criminal action brought against Edwards, he argues that his attorney “assisted] the United States Attorney in the investigation of Edwards and with grand jury testimony.” Tawa Mem., Ex. C, Amended Affidavit Attys’ Fees & Costs Counsel Edward G. Tawa (“Amended Affidavit”) ¶ 3, ECF No. 16-4.
Looking to the submission of attorneys’ fees and costs, Tawa Mem., Ex. C-Ex. 1, Billable Time Sliplisting (“Time”), ECF No. 16-6, various services between October 2012 and February 2014 can be readily attributed to legal services pertaining to the criminal prosecution and investigation. *373Time 14-53. The earliest item is from October 10, 2012, billing 0.1 hours for an email sent to the FBI, and seems to correspond with the period Tawa first learned Edwards was under criminal investigation for the stolen tax refund. Id. at 14. Following items show that Tawa was billed for preparations for a grand jury proceeding, meetings with investigators and the prosecutor, and for emails with the U.S. Attorney. Id. at 19. Tawa continued to be billed for correspondence with U.S. attorneys and investigators, and for preparation in regards to Edwards’ ongoing criminal matter through February 2014. Id. at 53 (including emails with the Department of Justice, the U.S. attorneys, and Probation regarding restitution and probation). This submission of fees makes it clear that Tawa’s counsel provided continuing assistance, or at least cooperation, with the U.S. attorneys in their criminal prosecution of Edwards before this Court beginning with the FBI investigation in October 2012 through sentencing in February 2014. Finding that these services fall under Section 3663A(b)(4), covering the expenses incurred during “participation” in the prosecution and investigation, the Court will award restitution to these attorneys’ fees directly arising from work done on Edwards’ criminal investigation and prosecution.1
The Court here notes that it was presented with a billing list that was not categorized as to whether the services were directed to civil or criminal matters, although all services were properly documented and no issue of block billing exists. See Time. In calculating additional attorneys’ fees, the Court relied on the individual descriptions for the billing items to identify the hours directly related to the criminal prosecution (highlighting those services noting correspondence with parties such as the U.S. attorneys and the FBI for example). This Court has separately compiled and calculated these fees, totaling 15.1 hours and $5662.50, and has attached the compilation below as Appendix A.
2. Remaining Fees From Civil Litigation
As for the remaining attorneys’ fees and costs, including legal services for completing a domicile audit with the Massachusetts DOR, litigating the civil lawsuit, and working with accountants to “ascertain, correct and complete” Tawa’s tax returns, Tawa seeks the entirety of his legal fees, or at least one-half of his attorneys’ fees and all of his costs under additional restitution (arising as a “direct result” of Edwards’ conduct). Tawa Mem. 6; Amended Affidavit ¶ 5 (“Pursuant to the Victim Impact Statement submitted by Tawa, approximately one-half of the legal fees and expenses incurred are the foreseeable and direct result of Edwards’ theft. The other one-half would have been incurred but for Edwards’ theft.”).
The First Circuit in Janosko established a three-part test qualifying the meaning of “other expenses” under Section 3663A(b)(4). 642 F.3d at 42. Under this standard, a court must analyze whether the fees at issue: (1) would not have been incurred absent the criminal offense; (2) were not too remote in fact or time from the criminal offense; and (3) were reasonably foreseeable. Id.
*374Tawa argues that “but for” Edwards’ theft of his 2006 tax refund check, “none of the other misdeeds and inaction would have followed,” triggering the civil lawsuit relating to the DOR audit. Tawa Mem. 6. Therefore, he argues, his legal fees from the civil litigation are eligible for restitution, because they arose from Edwards’ initial theft of the refund check. Amended Affidavit ¶ 3 (“Moreover, due to Edwards’ efforts to mask his theft and hide his assets, Edwards caused the fees to be significantly higher than they would have been.”). The chronology of events outlines this theory: Edwards filed Tawa’s tax return in October 2008, deposited Tawa’s refund check in February 2009, and ignored all DOR notices that began arriving in May 2009. First Amended Compl. ¶¶ 7, 13,17, 20, 24, 29, 67-73.
Edwards opposes this argument and points out that Tawa is trying to claim fees and costs from “before [he] was even aware that there was a criminal investigation,” and that Tawa failed to demonstrate how his expenses were either incurred in assistance of the prosecution or arose but for the criminal offense. Edwards’ Opp. 6 (estimating that $60,000 in fees was incurred after Edwards pled guilty). While the lack of knowledge of the criminal investigation ought not foreclose restitution, this Court agrees that Tawa was unable to demonstrate how his civil litigation fees were incurred “to advance the investigation or prosecution of the offense.” United States v. Maynard, 743 F.3d 374, 381 (2d Cir.2014).
The first prong is a “but for” test, in which the Court must accept that the DOR-related civil litigation would not have occurred absent the criminal offense, namely, the tax refund fraud. Looking to the statement of facts from the Plea Agreement, Edwards was found to have stolen tax refund checks not only from Tawa, but also another client, “J.W.” and his corporation “N.G.”. Statement of Facts 11-12; Information 1-2. Similar to Tawa’s case, Edwards attempted to mislead an IRS auditor in regards to the discrepancies in J.W.’s reported income. Statement of Facts 12. Seeing how Edwards attempted to “cover-up” both the J.W. and Tawa thefts to the IRS and DOR, Tawa’s theory has some basis here; why else would Edwards go through such great lengths to avoid or deceive auditors? Victim Impact Statement. While the Court can draw a correlation between the tax refund theft and the “cover up” attempt leading to malpractice and fraud litigation in the civil sphere, the evidence is lacking in establishing a “but for ” causal connection between the two acts. It is equally plausible to the Court that Edwards’ misconduct and fraud relating to the DOR audit would have occurred regardless of Edwards having misappropriated Tawa’s refund check. For this reason, the Court cannot conclude that the civil litigation fees would not have been incurred in the absence of the crime. See Janosko, 642 F.3d at 42; citing to Hughey v. United States, 495 U.S. 411, 416-18, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990).
While Tawa’s decision to initiate a civil lawsuit and pursue legal remedies was a reasonable and foreseeable event in light of the injuries he incurred, Tawa is unable to support how the civil lawsuit and resulting attorneys’ fees were an extended result of Edwards’ initial tax refund theft. Given the discovery in the civil lawsuit, the Court concludes that, had any further documentation existed which would have assisted in determining a “but for” nexus for restitution purposes, Amended Affidavit ¶ 3, Tawa would have submitted it. Without proof as to how he incurred fees by participating in the criminal prosecution, Tawa is limited to the general rule which states that prevailing litigants are responsible for *375their own reasonable attorneys’ fees. Alyeska Pipeline Service Co., 421 U.S. at 247, 95 S.Ct. 1612. Finally, this Court makes its determination in light of the fact that Tawa settled his civil lawsuit with Edwards and has already received funds going towards the $600,000 judgment in his favor. By settling, Tawa compromised his opportunity to seek full damages, and he cannot try to recoup the difference through a restitution order from the district court. His damages will be limited to the amount of $5662.50, detailed in Appendix A.
C. Accountants’ Fees
Accountants’ fees have been awarded by courts as part of mandatory restitution under Section 3663A(b)(4). See United States v. Stennis-Williams, 557 F.3d 927, 930 (8th Cir.2009) (affirming accountants’ fees incurred by a victim’s estate in investigating fraudulent conduct); followed by United States v. Elson, 577 F.3d 713, 728 (6th Cir.2009). Especially in the context of tax fraud, accountants’ fees are a reasonable and foreseeable cost incurred by victims of the criminal offense. See Corey, 77 Fed.Appx. 7 at 10 (“[w]here there is fraud, then, the concept of loss comprehends all reasonably foreseeable injuries ‘sustained by [the] victim as a result of the underlying offense.’ ”).
Here, Tawa provides several invoices, totaling $14,444, for the accountants’ fees he seeks. Tawa Mem. 6; Tawa Mem., Ex. F, Sharkansky Invoice, ECF No. 16-15. The earliest invoice, dated September 15, 2011 and stating a balance of $9568, was for preparing Tawa’s personal tax returns for the years 2008-2010, and for ordering transcripts from the IRS to “research history, review capital loss versus ordinary loss on tax filings and other miscellaneous services.” Sharkansky Invoice 14. Tawa fails to describe in his briefing how these services were either utilized in assisting the prosecution after criminal charges were brought in 2013, or how it arose directly from Edwards’ crime. It is also unclear whether Tawa’s 2008-2010 tax returns were already filed by Edwards and needed to be redone, or whether Tawa was simply using a new accountant as a result of having broken off his professional relationship with Edwards. Further, there is no mention that these tax services were utilized by the U.S. attorneys in their 2013 criminal case against Edwards.
These same issues exist for the remaining invoices. A billing item dated November 15, 2011 states a balance of $1411 for having “finalize[d]” the 2008-2010 tax filings, which the Court is unable to link to either litigation or the theft of the 2006 tax refund. Sharkansky Invoice 13. The final invoice, dated October 23, 2012, dated one week prior to Tawa filing his amended complaint in state court, was for: the preparation of his 2011 personal tax returns, calculating the effect of not reporting as a trader in previous tax periods, and for “assistance with installment plan.” Id. at 12. Again, it is unclear how the 2011 tax return costs or “assistance with installment plan” can be attributed to the criminal offense or to assistance in the prosecution. As for “calculating the effect of not reporting as a trader,” the Court can only guess that this cost was incurred as a result of Edwards having mischaracterized Tawa as a non-trader on his 2006 tax return. Victim Impact Statement 3. According to the Victim Impact Statement, Tawa claims this misreporting caused him to lose an additional $200,000 in federal tax refunds from “loss carrybacks” that would have otherwise been available to him. Id. This service, amounting to $1785.00, cannot be awarded to Tawa for the same reasons stated above. First, Tawa is un*376able to link this cost to the criminal prosecution, which was for wire fraud and not the misreporting, and second, he does not provide the calculations or IRS formulas utilized in estimating his additional losses. Without the necessary foundation, the Court is unable to analyze these accountants’ fees and therefore, will not award accountants’ fees under additional restitution.
D. Prejudgment Interest
The Second Circuit in Qurashi held that, “the MVRA allows a sentencing court to award prejudgment interest in a criminal restitution order to ensure compensation ‘in the full amount of each victim’s losses.” ’ 634 F.3d at 704 (citing 18 U.S.C. § 3664(f)(1)(A)). This Court agrees, finding that “foregone interest” can be a significant and reasonable aspect of a victim’s loss. Corey, 77 Fed.Appx. at 12 (noting that although the MVRA is silent on prejudgment interest, courts should allow for its recovery in the spirit of allowing victims to have “full and fair compensation.”).
Here, Tawa seeks $26,000.00 in prejudgment interest, a sum which was calculated at 2.5 percent interest for a period of five years. Tawa Mem. 6. The only explanation for this amount is found in Tawa’s Victim Impact Statement, where he asserts that “I would have been entitled to receive interest from the IRS of approximately $26,000” in the form of “lost overpayment interest.” Victim Impact Statement 3. While the IRS does provide overpayment interest, see 26 C.F.R. § 301.6611-1, Tawa fails to point to any authority providing the 2.5 percent interest rate and no explanation is given as to the selection of the five-year period. The seemingly arbitrary nature of this requested amount precludes the Court from making a proper determination of prejudgment interest here. Therefore, no prejudgment interest shall be awarded to Tawa.
E. Other Requests
Tawa asks the Court that his restitution order not be offset by the $61,013.64 already collected in cash from the civil settlement. Tawa Mem. 6. According to the MVRA, as well as Tawa and Edwards’ civil settlement agreement however, “any amount paid to a victim under an order of restitution shall be reduced by any amount later recovered as compensatory damages for the same loss.” 18 U.S.C. § 3664(j)(2) (preventing double recovery by victims). Tawa cannot utilize this criminal restitution order to alter the terms of his settlement agreement, which directed him to “credit any funds recovered pursuant to any restitution order entered against Edwards in the criminal matter entitled United, States v. Michael Edwards ” towards this judgment. Settlement Agreement ¶¶ 1, 8; Edwards’ Opp. 3. This Court is “clearly without authority” to award fees and costs in a “wholly separate civil suit” from state court, and will not do so here. Barany, 884 F.2d at 1261.
Tawa also asks that the restitution order not be reduced by these amounts collected “because the tools available to enforce a restitution order are different than the tools available to enforce the Judgment.” Tawa Mem. 8. This argument is not persuasive, especially considering that Tawa was able to get prejudgment “trustee process attachments” of Edwards’ bank accounts and has already received the deeds to real estate to be sold towards his recovery. Settlement Agreement ¶¶ 4-7; Edwards’ Opp. 3. As it did in the original restitution order, this Court will credit from the amount already paid to Tawa in the form of cash, which currently totals $61,013.64.
*377III. CONCLUSION
This Court AWARDS $5662.50 in additional attorneys’ fees that arise from Tawa’s counsel’s participation in the criminal prosecution of wire fraud charges against Edwards that took place before this Court. This Court will not award any accountants’ fees and prejudgment interest to Tawa. Adding attorneys’ fees of $5662.50 to the original award of $141,129.36 (reflecting the amount of the misappropriated check less the amount of cash credited from the civil settlement) results in a new restitution award to Tawa in the amount of $146,791.86.
SO ORDERED.
APPENDIX A
ADDITIONAL ATTORNEYS’ FEES
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. The six billing items between January 10, 2014 and February 24, 2014 were marked by counsel as “WIP” or "work in progress.” This Court assumes that these items have yet to billed to Tawa, but expects that in the ordinary course of business, counsel will bill these services at the same hourly rate of $375 to Tawa. These items are included in the final calculation of additional attorneys’ fees in Appendix A. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217112/ | MEMORANDUM**
Marcus Rodney Anthony Pryce appeals the 46-month sentence imposed following his guilty plea conviction for one count of illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a) & (b). We dismiss.
Pryce contends the district court erred by denying his request for a downward departure based on cultural assimilation, U.S.S.G. § 5K2.0, and extraordinary physi*487cal impairment, U.S.S.G. § 5H1.4. We lack jurisdiction to review a district court’s discretionary refusal to downwardly depart. See United States v. Garcia-Garcia, 927 F.2d 489, 490 (9th Cir.1991).
DISMISSED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217114/ | MEMORANDUM**
California state prisoner Guillermo Chavez appeals pro se the district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order), and we affirm.
The district court properly dismissed Chavez’s action for failure to exhaust administrative remedies because Chavez submitted exhibits demonstrating that he did not appeal his October 5,1999 grievance to the director’s level of review. See Booth v. Churner, 532 U.S. 731, 739-41, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); cf. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir.2003) (a prisoner’s concession to nonexhaustion can be a valid ground for dismissal).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217116/ | MEMORANDUM**
Dennis Martel, a California state prisoner, appeals pro se the district court’s order denying reconsideration of its judgment dismissing his 42 U.S.C. § 1983 action alleging prison officials were deliberately indifferent to his serious medical needs.1 We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion, Sch. Dist. No. 1J Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993), and we affirm.
*490We lack jurisdiction to address Martel’s contentions regarding the merits of the district court’s original entry of judgment because he failed to file a timely notice of appeal or a timely post-judgment tolling motion. See Fed. R.App. P. 4(a)(4)(A). Accordingly, the scope of Martel’s appeal is limited to the denial of his motion for reconsideration.
The district court did not abuse its discretion in denying Martel’s motion for reconsideration because he failed to demonstrate mistake, inadvertence, surprise, excusable neglect, newly-discovered evidence, or any other basis for relief. See ACandS, 5 F.3d at 1262-63.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. Appellant’s motion for leave to proceed in forma pauperis is granted. The Clerk shall change the docket to reflect appellant’s in forma pauperis status for this appeal. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217156/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217158/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224327/ | RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
HAIGHT, Senior District Judge.
I. Introduction
This is an employment discrimination case. Plaintiff Nadimkhan Pathan1 (hereinafter “Plaintiff’), charges Defendants State of Connecticut Police Officer Standards & Training Council and State of Connecticut Department of Environmental Protection2 (hereinafter collectively “Defendants”) with discriminating against him because of his race, national origin, and religion in violation of Title VII of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991. See [Doc. 1]. Specifically, the Complaint contains three counts: (1) racial discrimination in violation of Title VII of the Civil Rights Act of 1964 as amended by the Civil rights Act of 1991; (2) national origin discrimination in violation of the same; and (3) religious discrimination in violation of the same. Id. Plaintiff “prays for appropriate compensatory damages including: damages for back pay; front pay; bonuses; personal days; lost pension benefits; emotional distress; consequential damages; punitive damages; reasonable attorneys’ fees; costs; interest; job reinstatement; for an injunction requiring the removal of any and all adverse information contained in plaintiffs personnel file; for a trial by jury; and for all other just and proper relief.” Id. at 12.
Defendants deny all liability, and have moved for summary judgment. See [Doc. 43], They contend: (1) that Plaintiff cannot prevail on a Title VII claim against the State of Connecticut Police Officer Standards & Training Council (hereinafter “POST”) because Plaintiff “did not have an employer-employee relationship with POST for Title VII purposes;” (2) that both Defendant State of Connecticut Department of Environmental Protection (hereinafter “DEP”) and Defendant POST “have met their burden of articulating legitimate, non-diseriminatory reasons for their actions;” and (3) that Plaintiff “is unable to demonstrate pretext with regard to either [Defendant.” [Doc. 43-2] at 3. Plaintiff filed an objection to Defendants’ Motion for Summary Judgment, see [Doc. 50], and Defendants have filed reply briefs thereto. See [Doc. 57] and [Doc. 59], The summary judgment motion is therefore ripe for adjudication, and the Court now rules upon it.
II. Background
Plaintiff, who describes himself as a Muslim Asian with an Indian national origin, see [Doc. 1] at ¶¶ 8-10, states in his *405Complaint that he “was employed by [Defendant State of Connecticut Department of Environmental Protection and[,] as a part of his employment^] attended [Defendant State of Connecticut Police Officer Standards & Training Council’s police academy.” Id. at ¶ 11. His employment with DEP became effective March 16, 2007 when he became a Protective Services Trainee in Conservation Enforcement for the Department. [Doc. 46-9] at 25. Plaintiff was “required to serve a twelvemonth working test period,” which fully encompassed his time at the POST academy. See id.
Plaintiffs attendance at the POST academy was a requirement for job advancement at DEP, as it was only subsequent to becoming a certified police officer that Plaintiff “would have been able to work as [a Conservation Enforcement] officer with the Connecticut Department of Environmental Protection.” Id at ¶ 15; see also, e.g., [Doc. 50-2] at 2 (Plaintiff states in his Affidavit that “[a]s a part of [his] job advancement, [he] was required to attend the Connecticut Police Academy to become a certified police officer,” and that “[b]y becoming a certified police officer, [he] would be able to work as a Conservation Enforcement Officer with the Connecticut Department of Environmental Protection”)
Indeed, in Defendants’ own words: “[P]ursuant to Conn. Gen.Stat. § 7-294d(a)(5), probationary police officer candidates, such as [Plaintiff], are required to receive basic training necessary to become eligible for certification as a police officer,” and thus “must first attend a basic training program at either the Connecticut Police Academy or at a POST-approved Academy.” [Doc. 59] at 9. Under Connecticut law, POST regulates and oversees all police training schools, along with, inter alia, the appointment and minimum qualification of instructors at such schools, the nature of the basic training all candidates must meet before being deemed eligible for certification, and the curricula these candidates will study. Connecticut law is clear that “[n]o person may be employed as a police officer by any law enforcement unit for a period exceeding one year unless such person has been certified [by POST] or has been granted an extension by [POST].” C.G.S.A. § 7-294d(a)(b). Defendants affirm that the Connecticut Police Academy training program in which Plaintiff was enrolled at the time of events relevant to this lawsuit was directly run by POST. [Doc. 43-2] at 1.
Plaintiff avers that during his training at the POST academy, which commenced in March of 2007, his class coordinator Lieutenant Peter Hall “would talk about the Iraq war, terrorism[,] and the Middle East in Plaintiffs presence[, ... ] discuss[ ] how Muslims required their women to wear burqas,” and asked Plaintiff whether, “if [Plaintiff] had a daughter[,] [Plaintiff] would ... force her to wear a burqa.” Id. at ¶¶ 17-19. Plaintiff also avers that Lieutenant Hall made comments about Muslims being “mostly uncivilized people ... [who] treat[] their women [by] abusing them [and] beat[ing] them,” see [Doc. 43-5] at 24, and that “[d]uring the first day of classes, the classroom instructors asked ... if there were any Muslims in the classroom,” in response to which “[P]laintiff raised his hand and announced that he was Muslim.” Id. at ¶¶ 20-22; see also [Doc. 43-5] at 30 (stating that Lieutenant Hall “ask[ed] in the class ... who is a Muslim — you know, anybody Muslim around here?”). Plaintiff further avers that “[d]uring the first day of classes, the classroom instructors asked about everyone’s religion,” including whether “there were any Muslims in the classroom.” [Doc. 50-2] at 3. Plaintiff states that after he had “raised [his] hand because [he is] a Mus*406lim,” Lieutenant Hall “then said Muslims were uncivilized and suicide bombers,” as well as that they “abuse their women, treating] them like animals.” Id. Plaintiff states that he believes that he was the only Muslim in his POST academy class. [Doc. 43-5] at 30.
Plaintiff also avers that “[w]hile at the police academy, academy recruits were required to shower nude in the bathroom showers that were not private.” [Doc. 1] at ¶¶ 20-22. The basis for Plaintiff’s belief that this was an academy policy is that, as he contends, Lieutenant Hall told him that that was the case. [Doc. 43-5] at 31-33. As Plaintiff states, because his “religion prohibits him from being nude in public, ... [he] attempted to shower with an undergarment on,” and was informed by Lieutenant Hall that the academy’s rules “required that [Plaintiff] shower in the nude.” [Doc. 1] at ¶¶ 23-25; see also [Doc. 43-5] at 33. Although Plaintiff states he told Lieutenant Hall “that his religious faith prohibited him from doing so,” Plaintiff avers that Lieutenant Hall “insisted that [he] shower nude in the [a]cademy bathroom.” [Doc. 1] at 1126; see also [Doc. 45-5 at 33]. The Court notes that shortly after this conversation, however, Plaintiff was provided with a key to a private bathroom in which he could shower early in the day and later in the evening. [Doc. 1] at ¶ 27; see also [Doc. 43-5] at 33-34.
Plaintiff further alleges that another POST academy instructor in whose class Plaintiff was enrolled, Detective Romano Amleto, “would talk about terrorism and suicide bombers” during class; commented at least once that “Arabs are lazy and corrupt;” asked Plaintiff if Plaintiff was Middle Eastern; and when Plaintiff responded that he “was not Middle Eastern but ... Indian[, ... ] responded by telling [Plaintiff] that [being Indian] was the same thing [as being Middle Eastern] and that [Plaintiff] was a part of that side of the world.” [Doc. 1] at ¶¶ 30-33; see also [Doc. 43-5] at 46. In addition, Plaintiff avers that Detective Amleto had stated (presumably in an unpleasantly suggestive way) that Detective Amleto had taken flying lessons with an Arab, and that Arabs “cheat on ... test[s] to pass.” [Doc. 3-5] at 46.
Plaintiff further states that another academy instructor, Captain Noonan, made jokes about Plaintiff running a 7-Eleven and driving a cab, presumably due to Plaintiffs religion, national origin, or race, or some combination thereof, and that on one occasion Captain Noonan had joked that he had spoken with Plaintiffs sister while on a telephone support call routed to a help operator in India. See, e.g., [Doc. 43-6] at 15; [Doc. 50-3] at 17-18 (in which Plaintiff stated that Captain Noonan had said that Plaintiff “should go back and open [a] 7-[Eleven]. This is not [a] job for [Plaintiff].”)
The event which directly led to Plaintiffs dismissal from the POST academy, and, accordingly, to the filing of this lawsuit, took place on July 10, 2007. On this date Plaintiff took a multiple choice test which concerned the appropriate medical responses and actions as a first responder. See, e.g., [Doc. 43-5] at 54. This test was one of three which Plaintiff was to take prior to his final exam in a POST academy course, and its score was to be averaged with the scores Plaintiff had received on the first two tests administered in this course, for which Plaintiff reports his median score was “higher than the passing grade.” Id. at ¶ 47. Plaintiff claims that some of the answers he had marked and then erased on the July 10, 2007 multiple choice test were erroneously graded as his submitted final answers because “the optical scanner” which was used to grade the *407test papers “did not read [Plaintiffs answer sheet properly.” Id. at ¶¶ 37-38. Consequently, Plaintiff avers, he then “went ahead and further erased the previously erased answer” — it seems after the test was returned to him graded — and then “showed his answer sheet to the instructor,” Detective Amleto, “who looked at [the] answer sheet [and] stated that it was okay and approved [it],” presumably with the answers now fully and accurately reflecting Plaintiffs initially intended responses. Id. at ¶¶ 38, 43. Plaintiff reports that issues with the scantron reader were not an uncommon occurrence, as “at least one guy ha[d] a problem in every testing” with the reader’s erroneous recognition of erased answers. [Doc. 43-6] at 24. Plaintiff states that in general when such issues occurred, the impacted recruit would show the exam paper to the instructor, receive permission to correct the mark, and then get credit for it, as Plaintiff avers he did with respect to his July 10, 2007 exam. Id. at 44-45.
Plaintiff avers that when he reported to a classroom to take his final exam in the same POST academy course two days later, he was approached by Lieutenant Hall and Detective Amleto, who asked him whether he had ever cheated on a test. Plaintiff responded that he had not. Plaintiff alleges that Detective Amleto then “told [Plaintiff] that he wanted [him] to sit in the front row so that [Detective Amleto] could watch [Plaintiff] while he took the [final exam],” which Plaintiff agreed to do. Shortly thereafter, however, Lieutenant Hall approached Plaintiff and asked whether Plaintiff “had ever changed an answer to a test question after he received his score,” to which Plaintiff states he again responded that he had not, explaining “that on one occasion” a few days prior “where the optical scanner did not read [P]laintiffs intended answer due to the fact that he had erased another answer, [Plaintiff had gone] ahead and further erased the previously erased answer,” and that “when he did this he brought the answer sheet to [Detective] Amleto and showed it to him.” Id. at ¶¶ 39-43.
Plaintiff avers that Lieutenant Hall “then told [Plaintiff] that [Plaintiff had] cheated,” and that “Plaintiff was [then] ordered out of the classroom, stripped of his uniform and badge, and thrown out of the [POST] academy.” Id. at ¶¶ 44-45; see also [Doc. 50-3] at 28-29. Plaintiff states that he responded: “Sir, I never cheated on any testing,” but nonetheless Detective Hall kept repeating that he had. Id. at 29-30. Plaintiff reports that when he attempted to explain that he was trying to further erase already-erased test answers in order to receive a more accurate test score, which included further erasing an answer which had in fact been correct, Lieutenant Hall repeated that Plaintiff had cheated. Plaintiff avers that he then told the Lieutenant: “Sir, it’s not cheating[,] I didn’t change any answer. I didn’t do anything. I don’t have anything to do,” and that Lieutenant Hall replied: “No, that is cheating. You changed the answer,” and left the room smiling. Id. at 32. Plaintiff states that he was then forced to change his clothes and pack his belongings, and escorted from the POST academy campus by Lieutenant Hall and another officer, who “walk[ed] behind [Plaintiff ... laughing.” Id. at 37. Lieutenant Hall then allegedly told Plaintiff that if he ever saw Plaintiff again (presumably on the POST academy campus), Plaintiff would be arrested. Id. Plaintiff was subsequently formally dismissed from his position at DEP for, as Defendants phrase it, “failing to complete his working test period as a result of having been dismissed from the police academy.” [Doc. 43-2] at 2.
*408Defendants give a different accounting of the relevant events. Their version of the events is largely reflected in reports filed by both Lieutenant Hall and Detective Amleto concerning allegations that Plaintiff had cheated on his July 10, 2007 exam. See [Doc. 43-15] and [Doc. 43-16]. Lieutenant Hall’s report, dated July 12, 2007, stated:
On this date at approx. 1130 hrs it was brought to my attention by Detective Romano Amleto that he had received information from Class Sergeant Karen Reilly, CT EnCon Police Dept., 315th Training Session, of a possible question of academic integrity by a member of the class, one Pathan B. Nadeemdad-khan (Ct EnCon Police Dept.). According to Detective Amleto, Class Sergeant Reilly had informed him that members of the class had informed her that they believed Recruit Nadeemdadkhan had changed answers on [a test] while the test was being reviewed.
Detective Amleto told me that Recruit Nadeemdadkhan had failed ... test # 3 on July 10, 2007 and that he had not had a chance to check the answers himself before going over the test with the class. Detective Amleto stated that he [had] given the scantron answer sheets back to the recruits and was going over the test with the class in preparation for the final exam. After reviewing the test Detective Amleto stated that Recruit Nadeemdadkhan brought to his attention three questions that he claimed had been answered correctly but had been scored incorrectly by the scantron machine. As a result of this Recruit Na-deemdadkhan’s failing grade of a 67 became a passing grade of 72.
At appx. 1200 hrs. I spoke with Class Sergeant Reilly who stated that she had been informed by members of the class that Recruit Nadeemdadkhan had possibly changed answers on the scantron sheet to give himself a passing grade. She further stated that no one has said they saw him changing any answers but only [that] they had suspicions of his integrity. When I asked her who might have witnesses Recruit Nadeemdadkhan [sic] changing an answer, she stated that recruit James Wright sits directly behind him in class and possibly could have seen it.
At approx. 1230 hrs. I invited Recruit Wright into the staff dining room and along with Detective Amleto we questioned him about the above allegations. Recruit Wright stated at no time had he observed Recruit Nadeemdadkhan changing any answers on an answer sheet or cheating on any exams.
At approx. 1240 hrs. Detective Amleto and I interviewed Recruit Nadeemdad-khan in the Academy Conference room. Detective Amleto questioned Recruit Nadeemdadkhan about his changing answers on the MRT # 3 test and I noted that to each question asked of him by Detective Amleto that Recruit Nadeem-dadkhan wasn’t answering the question but interrupted the interview asking Detective Amleto to get the scantron sheet in question. When he returned with the scantron I placed it on the table directly in front of Recruit Nadeemdadkhan and told him I was only going to ask him one question and that I expected him to tell me the truth. I then asked him if he had changed any answer(s) on this test sheet. To this question, Recruit Na-deemdadkhan looked me directly in the eyes and stated, “Yes I did Lieutenant, I can[ ] not lie to you.” He then went on to say he only wanted to get a passing grade. I told him I was very disappointed in him and that I had told him and the entire class on numerous occasions that cheating would not be tolerated and that we had a serious problem *409with this. At this point Recruit Na-deemdadkhan asked if both Detective Amleto and I could give him another chance. I cut him off mid-sentence telling him not to even go there and he was insulting both Detective Amleto and myself by even thinking we would consider doing such a thing.
I then told Detective Amleto that he needed to get a statement from Recruit Nadeemdadkhan admitting his cheating and that he need[ed] to submit an investigative report in writing himself. I told Detective Amleto I was going to make Director Rainville aware of this incident and that I would be contacting the recruits department. As I was leaving I heard Detective Amleto instruct Recruit Nadeemdadkhan to write a statement about this incident and he gave the recruit paper to write on....
... "At approx. 1480 hrs. Sergeant Thomas Lewoc and Officer Keith Schneider of CT En Con Police Dept. Arrived at the Academy. Along with myself the three of us escorted Recruit Nadeemdadkhan to the barracks where Sergeant Lewoc ordered him out of his uniform and took possession of all agency property that had been issued to him. While this was going on Recruit Na-deemdadkhan again admitted in front of Sergeant Lewoc, Officer Schneider and myself to changing answers to get a passing score. He was then escorted to his personal vehicle by myself and Officer Schneider and told once he left the academy grounds he was not to come back on the property again
At approx. 515 hrs Detective Amleto gave me his written report of this incident. At this time I asked about the statement from Recruit Nadeemdad-khan. After Detective Amleto checked his desk where he had instructed Recruit Nadeemdadkhan to leave it, it was determined that Recruit Nadeemdad-khan failed to follow Detective Amleto’s orders and did not give a statement.
See [Doc. 43-15]; see also, e.g., [Doc. 50-4].
Detective Amleto’s written report of the incident, also dated July 12, 2007, stated:
On this date the undersigned along with Lieutenant Hall investigated allegations that Recruit Pathan B. Nadeemdadkhan violated section 4 item 14b (Cheating) of SPECIFIC RULES & REGULATIONS of the Connecticut Police Academy, Recruit Rules & Regulations. The results of the investigation are contained within this report.
At 1130 hrs on this date the undersigned along with Lt. Hall interviewed Recruit James M. Wright. This recruit is seated immediately behind the subject and indicated that [he] at no time observed any academic violations by the subject recruit.
At 1240 hrs the subject recruit Pathan B. Nadeemdadkhan was interviewed. Under direct questioning by Lt. Hall and the undersigned this recruit made admissions that he changed the answer on the scantron answer sheet to question #33 of MRT Exam 3 after the sheet was already graded and while we were going over the exam to review material.
It is my sad duty to report that this recruit by his own admission has violated [the] academic integrity policy of this institution. Please find the original scantron answer sheet attached to this report....
See [Doc. 43-16]; see also, e.g., [Doc. 50-5].
Class Sergeant Karen Reilly, who is noted in both Lieutenant Hall and Detective Amleto’s accounts, has completed an affidavit with respect to the events underlying this lawsuit. Her statements are in gener*410al accord with both Plaintiffs and the POST academy instructors’ versions of events; she avers therein that after the relevant test had been reviewed, “several recruits who sat near [Plaintiff] in class came to [her] and expressed their concerns about [Plaintiff] having cheated on the ... exam.” [Doc. 43-11] at 3. Class Sergeant Reilly states that these recruits told her that Plaintiff “had erased some answers on the answer sheet during the time Detective Amleto was reviewing the exam,” and that these recruits “questioned [Plaintiffs] academic integrity.” Id. Class Sergeant Reilly states that she then “immediately verbally communicated those concerns to Detective Amleto.” Id.
On July 16, 2007, four days after Plaintiff had been asked to physically exit the premises of the POST academy, Raymond A. Bouchard, Director of Basic Training at the POST academy, wrote a letter to Plaintiff stating that he had “reviewed the investigation conducted by [Plaintiffs] session coordinator, Lt. Peter Hall,” and was “very concerned about this incident” as Plaintiff had “violated one of the basic tenets of Law Enforcement, that of honesty, through [Plaintiffs] attempts to cheat on an ... exam.” [Doc. 42-10] at 15. The letter further informed Plaintiff that “[a]s a result of the violation noted [Plaintiff was] being dismissed from the [POST] Academy.” Id. at 16.
Due to his dismissal from the POST academy, Plaintiff was terminated from his probationary position with DEP. Diane Ragali, then DEP’s Principal Human Resources Specialist, states in an affidavit that “[a]s a result of having failed POST’s Basic Training, [Plaintiff] failed to obtain his police officer certification and, therefore, became ineligible for permanent appointment as a Police Officer and/or Conservation Enforcement Officer.” [Doc. 43-9] at 6. She further explicates that “[dismissal from the Connecticut Police Academy results in an automatic termination by [DEP], as the police officer certification is a mandated requirement for all trainees.” Id. Accordingly, William L. Evans, Jr., a Chief of Fiscal/Administrative Services at DEP, wrote Plaintiff a letter dated July 16, 2007 — i.e., the same day as the letter written to Plaintiff by POST academy’s Raymond A. Bouchard — which informed Plaintiff that he was “being dismissed from state service due to the failure of [his] initial working test period,” and that such “dismissal [would] be effective at the close of business July 16, 2007.” [Doc. 43-10] at 16. This letter further stated that a captain at the POST academy had informed DEP that Plaintiff had been discharged from the academy “for improper conduct,” and that “[a]s a Protective Services Trainee” Plaintiff was “required to meet all entrance and graduation requirements of the POST Police Academy.” Id.
Plaintiff filed a complaint about the events underlying this lawsuit with the State of Connecticut Commission on Human Rights and Opportunities (hereinafter “CHRO”) in January of 2008. In this complaint, Plaintiff alleged illegal discriminatory practice by both POST and DEP. See [Doc. 43-10] at 17. Equal Employment Opportunity Manager Marcia Z. Bonitto provided CHRO Commissioner Gina McCarthy with an investigative report concerning these allegations roughly two months later, on March 6, 2008. See [Doc. 43-10] at 37. This investigative report concludes that “[t]here is no evidence to indicate that DEP staff acted in any way that would be considered discriminatory towards [Plaintiff],” but notes that Defendant POST “is a state agency independent of DEP,” and, as “[t]he acts of discrimination alleged in Mr. Pathan’s CHRO complaint occurred under the jurisdiction of the Connecticut Police Academy[, ... ] it is that agency’s responsibility to investigate *411those allegations.” Id. at 40-41 (emphasis added). It is not fully clear to the Court why this CHRO investigative report was focused solely upon DEP when Plaintiffs initial CHRO complaint had been made against both DEP and POST. Nonetheless, as Plaintiffs allegations in the case at bar concern allegations of discrimination which occurred at the POST academy, and not at DEP or directly involving DEP staff, the finding by this CHRO investigative report that “DEP staff did not act in any way that would be considered discriminatory towards Plaintiff’ means little for the purpose of this lawsuit.
While this CHRO investigative report and Ms. Ragali’s aforementioned affidavit both state that Plaintiff was informed by DEP that he could contact individuals at DEP to discuss his POST academy dismissal and termination from DEP’s employ and present his side of the story, they also say that Plaintiff did not do so. Assuming without finding that Plaintiff did not make contact with his former employer to discuss his concerns, that omission is not conclusive evidence that his allegations concerning discrimination, or his actions surrounding the July 10, 2007 exam and subsequent conversation regarding the same on July 12, 2007 with Lieutenant Hall and Detective Amleto, are inaccurate or untrue.
Essentially, the Court has been giving two different accountings of the July 12, 2007 conversation between Plaintiff and Lieutenant Hall and Detective Amleto. Plaintiff, on the one hand, states that he in no uncertain terms told his POST instructors that he had not cheated on the exam; Lieutenant Hall and Detective Amleto aver that he did. This is, then, one man’s word against the word of two other men.
III. Standard of Review
The standards for summary judgment are familiar. Summary judgment is appropriate when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” F.R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The role of a district court in considering a motion for summary judgment is therefore “not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists.” In re Dana Corp., 574 F.3d 129, 151 (2d Cir.2009). A party moving for summary judgment bears the burden, on the claims made within that motion, of showing that it is entitled to summary judgment. Once it has satisfied this burden, the party opposing that particular summary judgment motion “must set forth specific facts demonstrating that there is a genuine issue for trial.” Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009) (internal quotation marks omitted). A dispute about a genuine issue of fact exists for summary judgment purposes where the evidence' is such that a reasonable jury could decide in the non-movant’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In making its determination on a summary judgment motion, a trial court will resolve all ambiguities and draw all inferences contained within that motion in favor of the party against whom summary judgment is sought. Fed.R.Civ.P. 56(c); Mat-sushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 274 (2d Cir.2009). It is “[ojnly when reasonable minds could not differ as to the import of the evidence” that summary judgment is proper. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991). When “a *412motion for summary judgment is properly supported by documentary and testimonial evidence ... the nonmoving party may not rest upon the mere allegations or denials of his pleadings, but rather must present significant probative evidence to establish a genuine issue of fact.” Marczeski v. Gavitt, 354 F.Supp.2d 190, 193 (D.Conn.2005) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
In order to present a “genuine issue of material fact” the party opposing a particular motion for summary judgment must therefore present contradictory evidence “such that a reasonable jury could return a verdict for [that] party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505. Consequently that party must present affirmative evidence in order to defeat a properly supported summary judgment motion. As the “mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment,” id. at 247-48, 106 S.Ct. 2505, if the party opposing a particular summary judgment motion submits evidence that is “merely colorable,” summary judgment may be granted. Id. at 249-50, 106 S.Ct. 2505. In sum, a “complete failure of proof concerning an essential element of [that] party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. at 322, 106 S.Ct. 2548.
In general, “when ruling on a motion for summary judgment in an employment discrimination case, where intent is at issue, the Court ‘affirms judgment in favor of an employer sparingly because careful scrutiny of the factual allegations may reveal circumstantial evidence to support the required inference of discrimination.’ ” Bogues v. Town of Trumbull, 383 F.Supp.2d 348, 352 (D.Conn.2005) (quoting Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir.2003)). However, as the Second Circuit has noted, “it is ... beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases,” as the “salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to ... other areas of litigation.” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.2001) (citation omitted). Ultimately, then, “[t]rial courts should not treat discrimination differently from other ultimate questions of fact,” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), and “[s]ummary judgment against a plaintiff in an employment discrimination case is appropriate if the plaintiff offers only unsupported assertions, conjecture or surmise, or conclusory statements to support an essential element of her case.” Soderberg v. Gunther Intern., Ltd., No. 3:02-CV-02010, 2004 WL 57380 at *4 (D.Conn.2004) (internal quotation marks and citation omitted).
IV. Legal Standard for a Title VII Claim
Plaintiffs Complaint alleges that Defendants discriminated against him due to race, national origin, and religion in violation of Title VII. Title VII makes it unlawful for an employer “to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a); see also, e.g., Jacobs v. Connecticut Community Technical Colleges, 837 F.Supp.2d 1, 7 (D.Conn.2011) (quoting same). Title VII claims are evaluated and governed by the burden-shifting framework set forth by the United States Supreme Court forty years *413ago in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, e.g., Sample v. Wal-Mart Stores, Inc., 273 F.Supp.2d 185 (D.Conn.2003). Under this burden-shifting framework, “a plaintiff must satisfy the minimal burden of making out a prima facie case of discrimination; the burden then shifts to the defendant to produce a legitimate, nondiscriminatory reason for its actions; and the final burden rests on the plaintiff to prove not only that the proffered nondiscriminatory reason was pretextual but also that the defendant discriminated against the plaintiff.” Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 91 (2d Cir.2001) (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).
If “the plaintiff has met this burden of establishing a prima facie case (which is generally not understood by courts to be onerous),” then the defendant must merely “articulate (not prove), via admissible evidence, a legitimate reason for the employment decision.... At that point, the plaintiff must have the opportunity to demonstrate that the employer’s proffered reason was not the true reason for the employment decision,” which may be accomplished “either by persuading the trier of fact that a discriminatory reason more likely than not motivated the employer, or by persuading the trier of fact that the employer’s proffered explanation is unworthy of belief.” Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1180-81 (2d Cir.1992) (internal quotation marks and citations omitted) (emphasis in original); see also Weichman v. Chubb & Son, 552 F.Supp.2d 271, 289-90 (D.Conn.2008) (applying McDonnell Douglas analysis to FMLA retaliation claim).
Specifically applying the McDonnell Douglas analytical framework to summary judgment standards in Title VII antidis-crimination cases, the Second Circuit has noted:
At the summary judgment stage, if the plaintiff presents at least a minimal amount of evidence to support the elements of the claim, the burden of production shifts to the defendant to proffer a legitimate ... reason for the adverse employment action. If the employer produces such evidence, the employee must, in order to avoid summary judgment, point to evidence sufficient to permit an inference that the employer’s proffered ... reason is pretextual
Kaytor v. Electric Boat Corp., 609 F.3d 537, 552-53 (2d Cir.2010), (emphasis added) (quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.2005)), (internal quotation marks and citations omitted).
As this Circuit has further emphasized in the past, “courts [have] recognized that more than one reason can motivate an employer’s adverse action”; thus, when applying a McDonnell Douglas analysis, courts have “said that [a] plaintiff had to prove” under the third prong of the analysis — in which a plaintiff must demonstrate that the employer’s proffered reason was not the true reason for the employment decision — that the allegedly “impermissible reason, even though not the only reason for an adverse employment decision, was a ‘substantial’ or ‘motivating’ factor,” or, at the least, “ ‘made a difference’ in the decision.” Fields v. New York State Office of Mental Retardation and Developmental Disabilities, 115 F.3d 116, 120 (2d Cir.1997) (in discussing the application of the McDonnell Douglas analysis to an adverse employment discrimination claim arising under Title VII) (quoting Sherkow v. Wisconsin, 630 F.2d 498, 502 (7th Cir.1980), Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989) and citing cf. *414Paolillo v. Dresser Industries, Inc., 865 F.2d 37, 40 (2d Cir.1989), as amended, 884 F.2d 707 (2d Cir.1989) (addressing this standard as it applies to a court’s McDonnell Douglas analysis of alleged discrimination under the ADEA)); see also, e.g., Jute v. Hamilton Sundstrand Corp., 420 F.3d 166 (same).
“In short,” then, “the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To the get the jury, ‘[i]t is not enough ... to disbelieve the employer; the factfinder must [also] believe the plaintiffs explanation of intentional discrimination.’ ” Weinstock v. Columbia University, 224 F.3d 33 (2d Cir.2000) (quoting St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 519, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). “In order to survive a motion for summary judgment, at the third step [a] plaintiff must put forth adequate evidence to support a rational finding that the legitimate non-discriminatory reasons proffered by the employer were false, and that more likely than not the employee’s [protected status] was the real reason for the discharge.” Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir.1996) (citing Viola v. Philips Medical Systems of North America, 42 F.3d 712, 717 (2d Cir.1994)).
V. Legal Discussion
A. Whether Plaintiff May Assert an ADA Claim Against POST
Before the Court delves into an inquiry into the prima facie elements of Plaintiffs Title VII claim, it must first determine which parties are properly within this case.
Defendants aver in support of their summary judgment motion that “ [Pjlaintiff cannot prevail on a Title VII claim against POST because [Plaintiff] did not have an employer-employee relationship with POST for Title VII purposes.” [Doe. 43-2] at 3, 10-13. Plaintiff disagrees, and avers that POST was indeed his “employer” during the relevant time period for purposes of Title VII. [Doc. 50-1] at 14.
Title VII defines “[t]he term ‘employer’ [to] mean[ ] a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current and preceding calendar year, and any agent of such a person.... ” 42 U.S.C. § 2000e(b).3 It defines “[t]he term ‘employee’ [to] mean[] an individual employed by an employer,” with certain exceptions not relevant to the case at bar. 42 U.S.C. § 2000e(f).
No party to this lawsuit disputes either that Defendant DEP was Plaintiffs employer in the relevant time period pursuant to Title VII’s definition of the term or that Plaintiff was, in turn, DEP’s employee for Title VII purposes. Rather, the Parties’ disagreement centers upon whether Defendant POST ought also to be considered Plaintiffs employer for Title VII purposes in the relevant time period pursuant to Title VII. This dispute, which might appear chiefly semantic in nature, cuts to the heart of whether Plaintiff may assert a Title VII claim against POST for the events with which this action is concerned. This is because Title VII provides that “[i]t shall be an unlawful employment practice for an employer ”—
*415(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a) (emphasis added); see also, e.g., [Doc. 43-2] at 10; [Doc. 50-1] at 14. Thus for purposes of this lawsuit Defendant POST is only liable under Title VII to the extent to which Defendant POST may be considered to be Plaintiffs employer for Title VII purposes. (While two other subsections of the same statute, i.e., 42 U.S.C. § 2000e-2(b) and (c), address similar restrictions on the “employment practices” of non-employer employment agencies and labor organizations, these are categories into which POST clearly does not fall with respect to Plaintiffs claims.) Notably, a third subsection of this statute, i.e., 42 U.S.C. § 2000e-2(d), addresses the status of work- or job-related training programs under Title VII:
It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.
42 U.S.C. § 2000e-2(d) (emphasis added).
Defendants, in support of their position that POST cannot be considered Plaintiffs employer under Title VII in the relevant time period and that, accordingly, this court must grant summary judgment with respect to their motion regarding the same, note that Plaintiff “was employed by ... DEP, not by POST,” and, moreover, that “it is undisputed that POST neither hired [Plaintiff] nor compensated him ... Rather, during the period of time relevant to his [C]omplaint, [P]laintiff was a trainee at the POST academy, where his employer sent him to receive the basic training required of [nearly] all probationary police officers employed by any law enforcement unit in the State of Connecticut.” [Doc. 43-2] at 13 (emphasis added). Thus, Defendants contend, at all times “[w]hile attending the basic training program, ... [P]laintiff remained an employee of DEP and was compensated by DEP,” receiving “no financial benefit or remuneration from POST.” Id. (emphasis added).
In an effort to clarify the precise nature of the relationship between Plaintiffs training at POST and his employment with DEP, Defendants aver: “[P]ursuant to Conn. Gen.Stat. § 7-294d(a)(5), probationary police officer candidates, such as [Plaintiff], are required to receive basic training necessary to become eligible for certification as a police officer,” as any “person who is to become a police officer in Connecticut ] must first attend a basic training program at either the Connecticut Police Academy or at a POST-approved Academy.” [Doc. 59] at 9. Under Connecticut law, POST regulates and oversees all police training schools, along with, inter alia, the appointment and minimum qualification of instructors at such schools, the nature of the basic training all candidates must meet before being deemed eligible for certification, and the curricula such candidates will study. “No person may be employed as a police officer by any law *416enforcement unit for a period exceeding one year unless such person has been certified [by POST] or has been granted an extension by [POST].” C.G.S.A. § 7-294d(a)-(b). As noted swpra, Defendants affirm that the Connecticut Police Academy training program in which Plaintiff is enrolled is directly run by POST. [Doc. 43-2] at 1.
Defendants point both to the relationship between DEP and POST and to the relationship between POST and Plaintiff as evidence that “there was no ... employer-employee relationship between ... POST and ... [P]laintiff,” and thus that “POST cannot be subject to liability under Title VII” since “the existence of an employer-employee relationship is a primary element of Title VII claims.” [Doc. 43-2] at 10-11 (citing Gulino v. New York State Education Department, 460 F.3d 361 (2d Cir.2006) (internal quotation marks omitted)). In making this argument Defendants rely heavily on the 2006 Second Circuit decision in Gulino v. New York State Education Department, 460 F.3d 361. The Court, however, disagrees with Defendants’ reading of the definition of “employer” under Title VII, as well as with Defendants’ reading and analysis of the Second Circuit’s decision in Gulino v. New York State Education Department.
As an initial matter, on its face Title VII includes an employer’s agents within its definition of the term “employer”: “The term ‘employer’ means a person engaged in an industry affecting commerce ... and any agent of such a person.” 42 U.S.C. § 2000e(b) (emphasis added). As noted supra, Defendants have explicitly averred that “police officer candidates, such as [Plaintiff], are required to receive basic training necessary to become eligible for certification as a police officer,” and moreover that a “person who is to become a police officer in Connecticut ] must first attend a basic training program at either the Connecticut Police Academy or at a POST-approved Academy.” [Doc. 59] at 9 (emphasis added). Defendants have also affirmed that the Connecticut Police Academy training program Plaintiff attended was directly run by POST. See [Doc. 43-2] at 1. Thus according to Defendants’ own contentions and description, Plaintiff’s attendance at the POST academy was a mandatory requirement both of his continued position as a probationary officer with DEP and of any career advancement Plaintiff might have at DEP. Although the Court will further address this matter infra, it is difficult to understand how under such circumstances POST would not be considered an agent of DEP with respect to its provision of police officer training to Plaintiff and other similarly situated DEP probationary officers.
The language of Title VII makes clear that Congress intended for agents of employers to be held to the same standards as employers. See 42 U.S.C. § 2000e(b). Indeed, and as addressed supra, the statute encompasses employers’ agents within its very definition of “employer.” Id. Thus the above-quoted Title VII subsection which addresses employment training programs may be read to state in relevant part with respect to Defendant POST: “It shall be an unlawful employment practice for any [of an employer’s agents ] ... to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.” 42 U.S.C. § 2000e-2(d).
Furthermore, the 2006 Second Circuit decision in Gulino v. New York State Education Department, 460 F.3d 361 (2d Cir.2006), on which Defendants heavily rely in order to argue that POST is not a *417proper Title VII defendant in the case at bar, supports the understanding that POST is DEP’s agent under the circumstances at bar, and thus that POST was indeed one of Plaintiffs “employers” for Title VII purposes. In fact, in its Gulino decision the Second Circuit explicitly acknowledges that “Title VII liability applies to employers or their agents,” thereby recognizing what is made clear from the text of Title VII: “that ‘any agent’ of an employer will be liable for discriminatory behavior.” Gulino v. New York State Education Department, 460 F.3d at 378-79 (emphasis in original) (citing 42 U.S.C. § 2000e(b)).4 The evidence on record when viewed in light of the Gulino holding as well as other caselaw and the language of Title VII itself make evident that there is at least a triable issue of fact as to whether POST, through its academy, was functioning as DEP’s agent pursuant to applicable law.5
Furthermore, while it is true, as Defendants observe, that the Gulino decision narrows the scope of those parties which the Second Circuit recognizes to be within the reach of Title VII liability — including, of course, which parties may be considered agents of a plaintiff’s employer(s), and therefore which parties may be considered “employers” in their own right within a Title VII context — the circumstances of this case seem to fit exactly within this narrowed scope. Notably, in Gulino the Second Circuit cited with approval its earlier holding in Spirt v. Teachers Insurance and Annuity Association, 691 F.2d 1054 (2d Cir.1982) vacated and remanded on other grounds, 463 U.S. 1223, 103 S.Ct. 3565, 77 L.Ed.2d 1406 (1983), in which the Second Circuit had, as described in Guli-no, “enunciated a narrow rule based upon a unique factual posture ... [and] held that[] where an employer has delegated one of its core duties to a third party ... that third party can incur liability under Title VII.” 460 F.3d at 377 (emphasis added). This is, in other words, a particular acknowledgment of the agency principle within a context of Title VII scope and *418liability. Thus while the Second Circuit is careful to note the decided narrowness of this rule, and while it criticizes the lower court’s significantly broader reading thereof, ultimately the Second Circuit accepted and affirmed within its Gulino holding that Spirt remained good law for those specific circumstances in which an employer has delegated at least one of its core duties to a third party — which is exactly the circumstance in the case at bar with respect to the relationship between Defendant DEP and Defendant Post. The Second Circuit even “[a]ppl[ied] the appropriately narrow reading of Spirt to the facts of th[e] case before it” in Gulino, although given the record before it the court of appeals concluded that in that circumstance there was no factual basis on which it could hold the one of the two defendants was liable under Title VII, precisely because the other defendant — i.e., the party with a direct employment relationship with plaintiff— “ha[d] not delegated a core employer responsibility ” to its co-defendant, and therefore under those factual circumstances only the plaintiffs direct employer “would be liable under Spirt.” Id. at 377-78.6
As the present record makes clear, and unlike those circumstances which existed in Gulino, there is no question in the case at bar that Defendant DEP delegated to Defendant POST the responsibility of training some of its employees, and that pursuant to Connecticut law such training was mandatory for such employees’ current positions as well as for any potential job advancement within DEP. The Court notes, moreover, that job training appears to be a core employment duty under Title VII, and, as discussed supra, it is specifically singled out within the statute; pursuant to 42 U.S.C. § 2000e-2(d):
It shall be an unlawful employment practice for any employer ... controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.
42 U.S.C. § 2000e-2(d) (emphasis added).
Indeed, and as the Second Circuit stated less than a decade ago, “[tjraining is a benefit of employment that receives protection under Title VII.” La Grande v. DeCrescente Distributing Co. Inc., 370 Fed.Appx. 206, 211 (2d Cir.2010). The evidence and pleadings on record more than adequately show that Plaintiffs POST “training was ‘part of the job’ and [that] barring [Plaintiff] from the training diminished his material responsibilities [and] opportunities,” as it was the direct cause of his employment termination with DEP. See id; see also, e.g., E.E.O.C. v. Joint Apprenticeship Committee of Joint Industry Board of the Electrical Industry, 186 F.3d 110, 114 (2d Cir.1999) (a Title VII case in which the defendant, the Joint Apprenticeship Committee of the Joint Industry Board of the Electrical Industry, administered an “apprentice training pro*419gram,” the “[successful completion [of which] also entitle [d] an individual to membership in the International Brotherhood of Electrical Workers, Local, 3.”)
For example, the Affidavit of Diane Ra-gali, then Defendant DEP’s Principal Human Resources Specialist, states: “[a]s a result of having failed POST’s Basic Training, [Plaintiff] failed to obtain his police officer certification and, therefore, became ineligible for permanent appointment as a Police Officer and/or Conservation Enforcement Officer.” [Doc. 43-9] at 6. A “[dismissal from the Connecticut Police Academy results in an automatic termination by [DEP], as the police officer certification is a mandated requirement for all trainees.” Id.
Given that DEP, Plaintiffs employer, had outsourced Plaintiffs officer training to POST as required by Connecticut law, it is entirely consistent both with the Second Circuit’s decision in Gulino and with the language of Title VII to consider POST a liable party under Title VII for purposes of this action. Accordingly, in light of the Second Circuit’s explicit acknowledgment and affirmation of the narrow rule articulated in Spirt within its 2006 Gulino holding, and resolving all ambiguities and drawing' all inferences in Plaintiffs favor as the Court must in making a determination on Defendants’ summary judgment motion, see, e.g., Fed. R.Civ.P. 56(c); Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. 1348, the Court finds that there is at minimum a genuine issue of fact as to whether DEP delegated what is presumably a core duty under Title VII— i.e., the training of its employee police officers — to POST when it required such employees to attend POST-run academies.7 For the reasons articulated supra, the *420Court declines to dismiss Defendant POST from this case.
B. Plaintiffs Prima Facie Case
In order to set forth a prima facie case of employment discrimination under Title VII, Plaintiff must show that he: (1) is a member of the protected class; (2) was qualified for his position; (3) suffered an adverse employment action; and (4) this adverse employment action occurred under circumstances giving rise to an inference of discrimination. Sample v. Wal-Mart Stores, 273 F.Supp.2d at 188. As this Circuit has noted, under the McDonnell Douglas burden-shifting paradigm the “qualification necessary to shift the burden to defendant for an explanation of the adverse job action is minimal....” Slattery v. Swiss Reinsurance America Corp., 248 F.3d at 92 (citation omitted); see also, e.g., Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir.2005); Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir.2001). Notably, for the purpose of their Motion for Summary Judgment Defendants do not contend that Plaintiff cannot plead sufficient facts in order to establish a prima facie case of discrimination pursuant to Title VII; rather they state that they “will assume arguendo that [Plaintiff] has [pled] sufficient facts and sustained his ... burden of demonstrating a prima facie case.” [Doc. 43-2] at 13 (some emphasis omitted).
Plaintiff nonetheless avers in his opposition to Defendants’ Motion for Summary Judgment that he can establish a prima facie case:
The first prong is met because [Plaintiff], as an Asian, Indian, and Muslim, belongs to a protected class. The second prong is met because [Plaintiff] had already been hired by ... DEP and was a sworn officer with ... DEP and was required to attend POST for additional training to become a certified officer. The third prong is met because [Plaintiff was thrown out of the police academy and was terminated by ... DEP. The fourth prong can be met by the evidence of the discriminatory comments regarding [Plaintiffs] race, national origin[,] and religion, as well as the treatment regarding showering that [P]lain-tiff was subjected to.
[Doc. 50-1] at 19. Given the factual record of this ease the Court concurs with Plaintiffs assertions in such regard, and again notes that this Circuit has repeatedly held that the burden in establishing a prima facie Title VII discrimination case is minimal. See, e.g., James v. New York Racing Association, 233 F.3d 149, 156 (2d Cir. 2000); Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir.2004).
*421C. Defendant’s Proffering of a Legitimate and Non-Discriminatory Reason for Plaintiffs Termination and Other Adverse Employment Actions
As noted supra, if a plaintiff “has met this burden of establishing a prima facie case,” a defendant must merely “articulate (not prove), via admissible evidence, a legitimate reason for the employment decision.” Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1180-81 (2d Cir.1992) (internal quotation marks and citations omitted) (emphasis in original); see also Weichman v. Chubb & Son, 552 F.Supp.2d 271, 289-90 (D.Conn.2008) (applying McDonnell Douglas analysis to FMLA retaliation claim). “This burden is one of production, not persuasion; it can involve no credibility assessment.” Reeves v. Sanderson Plumbing Products, Inc., 580 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
Here, Defendants contend that they “have met their burden of articulating a legitimate nondiscriminatory reason for their decisions,” as “POST dismissed ... [P]laintiff from the police academy after it had determined that [he] had changed answers on a test score sheet after it had been graded in order to achieve a passing grade, a major violation of academy rules and regulations,” and “DEP then dismissed [Plaintiff] from his position with that agency because [he had] failed to complete the basic training program required for certification as a Protective Services Trainee.” [Doc. 43-2] at 14. Defendants further state that the “Connecticut Police Academy’s Recruit Rules and Regulations provide, in relevant part, that ‘[c]heating, plagiarism and/or conspiring with others to cheat or falsely report academic grades or proficiency skill levels shall constitute a major infraction of Academy Rules and Regulations and may result in immediate dismissal from the Academy.’” Id. at 17. Plaintiff was provided with a copy of these rules. Id.
Since Defendants’ burden in this second prong of the three-pronged McDonnell Douglas test is merely to articulate, and not to prove, a legitimate non-discriminatory reason for Plaintiffs dismissal from the POST academy and his subsequent termination from his position with DEP, it is apparent that Defendants have met that burden.
D. Whether Plaintiff Has Demonstrated that Discrimination Was a Motivating Factor
“Because the Defendants] ha[ve] articulated non-discriminatory reasons for [their] conduct, the McDonnell Douglas framework — with its presumptions and burdens — disappears], ... and the sole remaining issue [is] discrimination vel non ... ” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. at 142-43, 120 S.Ct. 2097. Accordingly, “Plaintiff must now point to evidence that reasonably supports a finding of prohibited discrimination, i.e., that the [Defendants’] proffered non-discriminatory reasons are merely pretext for wrongful discrimination.” Wilks v. Elizabeth Arden, Inc., 507 F.Supp.2d 179, 194 (D.Conn.2007). In order to do so, Plaintiff must “present evidence from which a fact-finder could reasonably conclude that [Defendants’] reason was pretextual and that the real reason was discrimination.” Brennan v. Metropolitan Opera Ass’n, Inc., 192 F.3d 310, 317 (2d Cir.1999). “Pretext is evaluated on a case-by-case basis,” and “[a]n employer [is] entitled to judgment as a matter of law if the record conclusively reveals some other nondiscriminatory reason for the employer’s decision, or if the plaintiff creates only a weak issue of fact as to whether the employer’s reason was untrue and there *422[is] abundant and uncontroverted independent evidence that no discrimination had occurred.” Bogues v. Town of Trumbull, 383 F.Supp.2d 348, 356 (D.Conn.2005) (quoting Reeves v. Sanderson Plumbing Prod. Inc., 530 U.S. 133, 143, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).
In a Title VII burden-shifting framework “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated ... remains at all times with the plaintiff’ and “once the employer has proffered its nondiserimina-tory reason, the employer will be entitled to summary judgment ... unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination.” James v. New York Racing Association, 233 F.3d at 154 (internal quotation marks and citations omitted). “The plaintiff must produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the defendants] were false, and that more likely than not discrimination was the real reason for the employment action ... To get to the jury, it is not enough ... to disbelieve the employer; the factfinder must also believe the plaintiffs explanation of intentional discrimination.” Rajaravivarma v. Board of Trustees for the Connecticut State University System et al., 862 F.Supp.2d 127, 147 (D.Conn.2012) (quoting Weinstock v. Columbia University, 224 F.3d 33, 43 (2d Cir.2000)); see also, e.g., Barker v. Ellington Board of Education, No. 3:12-CV-00313, 2013 WL 6331159 at *11 (D.Conn. Dec. 5, 2013) (quoting same). “[A] factfinder’s disbelief of a defendant’s proffered rationale may allow it to infer the ultimate fact of intentional discrimination in some cases.” Barker v. Ellington Board of Education, 2013 WL 6331159 at *11 (internal quotation marks and citation omitted).
Notably, as the Second Circuit has stressed, while “there are sentences in some opinions to the effect that a Title VII plaintiff must prove both that the [defendant’s proffered] reason was false[] and that discrimination was the real reason, ... these decisions do not require a finding of pretext in addition to a finding of discrimination;” rather, “they make the quite different point that a Title VII plaintiff may not prevail by establishing only pretext, but must prove, in addition, that a motivating reason was discrimination.” Fields v. New York State Office of Mental Retardation and Developmental Disabilities, 115 F.3d 116, 121 (2d Cir.1997) (emphasis in original) (citations and internal quotation marks omitted). Thus “though a plaintiff may not prevail only by showing that a proffered explanation is not pretext, it is not required to make such a showing.” Id. Ultimately “[s]ince a plaintiff prevails by showing that discrimination was a motivating factor, it can invite the jury to ignore the defendant’s proffered legitimate explanation and conclude that discrimination was a motivating factor, whether or not the employer’s proffered explanation was also in the employer’s mind.” Id. (emphasis in original); see also Henry v. Wyeth Pharmaceuticals, Inc., 616 F.3d 134, 156 n. 5 (2d Cir.2010) (‘We ... addressed this point in Fields v. New York State Office of Mental Retardation & Developmental Disabilities ... Notwithstanding out admonition in Fields, district courts in the intervening years have continued to instruct juries that pretext is, in effect, a required element of plaintiffs claim which must be proved by a preponderance of the evidence. Plaintiff has no such burden; in all cases, plaintiff sustains his burden if he proves that an adverse employment decision was motivated by discrimination, regardless of whether he is able to additionally show that the employ*423er’s asserted justification for the decision was ‘pretextual.’”) (emphasis in original).
Expanding on this theme, the Second Circuit said in Henry, 616 F.3d at 157, that “[t]o require a plaintiff to prove that the employer acted with conscious intent to deceive as to its reasons imposes a burden not envisioned by [Title VII],” and continued:
There are many circumstances in which a jury may justifiably find a prohibited discriminatory motivation notwithstanding a different explanation given by the employer in good faith without intent to deceive. One such circumstance exists where the adverse decision is made by two or more persons, some of whom are motivated by discrimination, while others are motivated by other reasons, and the employer’s innocent explanation emanates from those who had no discriminatory motivation and were unaware of their colleagues’ discriminatory motivation. In such cases, the explanation given by the employer will be based on incomplete information, but not an intent to deceive.
(emphasis added).
In the set of circumstances before this Court, Plaintiff avers that he did not cheat on the July 10, 2007 exam in question, and that he repeatedly told this to his POST academy supervisors, i.e., Lieutenant Hall and Detective Amleto, when asked on July 12, 2007. Lieutenant Hall and Detective Amleto, however, aver both that Plaintiff did cheat on this exam and that Plaintiff verbally admitted having done so at least twice. The Court is consequently faced with what is essentially one individual’s word against two other individuals’ words.
Plaintiffs pleadings and deposition testimony extensively address his allegations concerning discriminatory remarks made by Lieutenant Hall and Detective Amleto, among other POST academy instructors. These alleged remarks concerned Plaintiffs race, religion, and national origin. Lieutenant Hall and Detective Amleto are also the individuals who reported that Plaintiff admitted to cheating on the exam in question on July 12, 2007 and, indeed, they are the only two individuals whose testimony Defendants have proffered in order to provide direct support for this claim despite averments that two other individuals, i.e., DEP employees Sergeant Lewoc and Officer Schneider, also heard Plaintiff admitting to cheating. See, e.g., [Doc. 43-15]. While Sergeant Lewoc, for example, states in an affidavit that Plaintiff “admitted to [Lewoc] that [Plaintiff] changed answers on an exam,” see [Doc. 43-12] at 3, Plaintiff does not deny that he did this; he merely denies that in doing so he was attempting to or in actuality cheating. Defendants also acknowledge that the individual with the best view of Plaintiff during the events in question, Recruit James Wright, “stated at no time had he observed [Plaintiff] changing any answers on an answer sheet or cheating on any exams,” and that Class Sergeant Karen Reilly, who first brought the possibility of Plaintiffs cheating to Lieutenant Hall and Detective Amleto’s attention, had merely stated in so-doing that “members of the class had informed her that they believed Recruit Nadeemdadkhan had changed answers on [a test] while the test was being reviewed,” see id. — a fact which, again, Plaintiff does not dispute and has never disputed.
Title VII provides that “[i]t shall be an unlawful employment practice for an employer” or for an employer’s agents, who as discussed supra are also considered to be a plaintiff-employee’s “employers” pursuant to the language of the statute:
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with *424respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a) (emphasis added). The statute also provides that:
It shall be an unlawful employment practice for any employer [or an agent of that employer] ... controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.
42 U.S.C. § 2000e-2(d) (emphasis added).
As the Court has noted supra, it is appropriate for a court to grant summary judgment when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” F.R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505. The role of a district court in considering a motion for summary judgment is thus “not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists.” In re Dana Corp., 574 F.3d at 151. A dispute about a genuine issue of fact exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. at 252, 106 S.Ct. 2505. In making its determination on a summary judgment motion, a trial court will resolve all ambiguities and draw all inferences contained within that motion in favor of the party against whom summary judgment is sought. Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 274 (2d Cir.2009). It is “[o]nly when reasonable minds could not differ as to the import of the evidence” that summary judgment is proper. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991). Resolving all ambiguities and drawing all inferences in favor of Plaintiff as it must for purposes of summary judgment, the Court concludes that Plaintiff has provided sufficient evidence for a reasonable trier of fact to conclude that discrimination was a motivating factor in Plaintiffs dismissal from the POST academy and subsequent termination from DEP’s employ.
The Court also concludes that Plaintiff has provided sufficient evidence to allow a reasonable jury to find that Defendants’ stated reason for these adverse employment actions was a pretext for unlawful discrimination. See, e.g., Feingold v. New York, 366 F.3d 138, 157 (2d Cir.2004). The remarks pertaining to Plaintiffs race, national origin, and religion, which Plaintiff unequivocally ascribes to the only two witnesses (Lieutenant Hall and Detective Am-leto) Defendants put forth to directly support Defendants’ contention that Plaintiff admitted to cheating on his July 10, 2007 exam, rise well above isolated remarks of seeming bias or enmity. Rather, the comments Plaintiff says Lieutenant Hall and Detective Amleto made constitute a series of opprobrious comments of the sort which would support a claim for creation of a hostile work environment. That element must be viewed together with the directly *425conflicting accounts of the July 12, 2007 conversation: Lieutenant Hall and Detective Amleto say Plaintiff confessed to cheating, Plaintiff says he did not do so. A reasonable jury could accept Plaintiffs account. Plaintiff has pointed to sufficient evidence to create a triable issue with respect to pretext.
To pursue that subject somewhat further, the discriminatory remarks alleged by Plaintiff to have been made by Lieutenant Hall and Detective Amleto (which are largely unaddressed in Defendants’ submissions) create the permissible inference that Hall and Amleto may have acted with animus toward Plaintiff: stating that Plaintiff had admitted cheating when in fact Plaintiff had not done so, thereby deliberately causing the adverse employment action at issue, i.e., Plaintiffs forced exit from the POST academy and subsequent termination from his employment position with DEP. Accordingly, the record of this lawsuit does not provide “abundant and uncontroverted independent evidence that no discrimination had occurred.” Bogues v. Town of Trumbull, 383 F.Supp.2d at 356 (quoting Reeves v. Sanderson Plumbing Prod. Inc., 530 U.S. at 148, 120 S.Ct. 2097). I think it important to emphasize that, in voicing this analysis, the Court neither makes nor intimates any view about the integrity or conduct of Lieutenant Hall or Detective Amleto. That is not a trial court’s function on a motion such as this one. This Court’s proper function is to decide whether, in the totality of circumstances, the case should be allowed to proceed to a trial, where a jury will decide the genuine issues about material facts. That must occur in the case at bar.
Two additional observations are appropriate. First, the Court notes the possibility that this is a case where the explanation proffered by several of those individuals associated with DEP and POST who were involved with Plaintiffs adverse employment actions — i.e., that they believed Plaintiff had cheated on his exam — was given in “good faith [and] without intent to deceive.” See Henry v. Wyeth Pharmaceuticals, Inc., 616 F.3d at 157. However, the Court concludes that on the basis of this record, there is a triable issue of fact as to whether Plaintiff’s dismissal from the POST academy and subsequent termination from his probationary employment with DEP was also made in part by individuals who were — for purposes of this summary judgment adjudication — credibly “motivated by discrimination.” In consequence, a jury must make a factual determination as to whether it finds “a prohibited discriminatory motivation notwithstanding.” Id.
Second, if one accepts (as the jury could permissibly find) that Lieutenant Hall and Detective Amleto made the discriminatory remarks with respect to Plaintiffs race, national origin, and religion that Plaintiff ascribes to them, there is the added possibility that there may have been some ambiguity in the participants’ minds as to whether Plaintiff merely affirmed on July 12, 2007 that he only altered exam answers for innocent reasons, or actually confessed that he had cheated. If that is what occurred, the case may present a circumstance “where the decisionmaker is unaware of his own discriminatory motivation and may believe in good faith that his different explanation honestly accounts for the decision, without awareness of the extent to which his judgments are influenced by ingrained discriminatory attitudes which have been proved to the jury.” Henry, 616 F.3d at 156 n. 6. That is to say, Lieutenant Hall and Detective Amleto may have misunderstood Plaintiffs words for an admission of wrongdoing because of their own innate biases and ingrained dis*426criminatory attitudes. In defining the possible boundaries of a trial, the Court intimates no view as to whether these particular facts took place.
Given the record in this case, and the standards applicable to a motion for summary judgment, the Court holds that Plaintiff has “present[ed] evidence from which a fact-finder could reasonably conclude that [Defendant’s] reason was pre-textual and that the real reason was discrimination.” Brennan v. Metropolitan Opera Ass’n, Inc., 192 F.3d at 317. Here, Plaintiff has not simply produced “some evidence;” rather, Plaintiff has produced “sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendants] were false, and that more likely than not discrimination was the real reason for the employment action.” Rajaravivarma v. Board of Trustees for the Connecticut State University System et al., 862 F.Supp.2d 127, 147 (D.Conn.2012) (quoting Weinstock v. Columbia University, 224 F.3d 33, 43 (2d Cir.2000)); see also, e.g., Barker v. Ellington Board of Education, No. 3:12-CV-00313, 2013 WL 6331159 at *11 (D.Conn. Dec. 5, 2013) (quoting same). In short: the record contains no evidence that Plaintiff had cheated on his exam besides testimony solely provided by Lieutenant Hall and Detective Amleto. Defendants have produced no additional witness who testifies in direct support of their contentions that Plaintiff admits that he cheated on the exam rather than merely changed answers on the scantron sheet. Plaintiff avers that he did not cheat. These are factual issues that militate against summary disposition.
Discriminatory remarks are alleged to have been made toward Plaintiff by Lieutenant Hall and Detective Amleto. Those remarks preceded the examination-correcting incident which triggered Plaintiffs termination. A jury could reasonably find that these remarks revealed a discriminatory mind set on the part of the speakers which caused them, perhaps unconsciously, to view the circumstances of the exam incident, and to construe Plaintiffs explanation of it, in a manner adverse to Plaintiff, and consistent with the discriminatory animus these officers seem, by the evidence of their remarks, to have harbored.
VI. Conclusion
There are factual issues in this case which are not appropriate for summary disposition. If certain of those issues are resolved in Plaintiffs favor by a trial jury, Defendants will be liable to Plaintiff under Title VII.
For the forgoing reasons, Defendants’ Motion for Summary Judgment [Doc. 43] is DENIED in its entirety.
It is SO ORDERED.
. Plaintiff states in his August 10, 2011 deposition that he brought this lawsuit under the name "Nadimkhan Pathan,” the name by which he at least sometimes went in India. He states, however, that his school certificate and passport refer to him as "Nadeemdad-khan Pathan,” and indicates that both first names — i.e., Nadimhkan and Nadeemdad-khan- — are correct. See [Doc. 43-5] at 8-9. For consistency, Plaintiff will be referred to in this Ruling by the name under which he has brought the action, i.e., "Nadimkhan Pa-than.” However, certain pieces of evidence which the Court quotes within this Ruling refer to Plaintiff as "Nadeemdadkhan Pa-than”; the Court will not alter such spellings when directly quoting from those documents.
. Defendants advise the Court that, "[a]s of July 1, 2011, the Department of Environmental Protection [was] involved in an agency consolidation with the newly[] created Department of Energy and Environmental Protection.” [Doc. 43-2] at 1. For the purpose of consistency within this Ruling, the Court will refer to this Defendant as the Department of Environmental Protection or "DEP.”
. Under Title VII, "[t]he term person’ includes one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under Title 11, or receivers.” 42 U.S.C. § 2000e(a).
. The Second Circuit there concluded that although no one factor is determinative of whether an agency relationship exists, "the common-law element of control is the principal guidepost that should be followed.” Gulino v. New York State Education Department, 460 F.3d at 372-73; see also, e.g., Restatement (Third) of Agency § 1.01 ("Agency is the fiduciary relationship that arises when one person (a "principal”) manifests assent to another person (an "agent”) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.”)
The Court notes that much of the agency-related discussion and analysis within Gulino on which Defendants largely rely concerns an application of the federal common law of agency to the definition and application of the term "employee” within Title VII — in the words of the Court of Appeals, employing "traditional indicators of employment under the common law of agency” in order to "dis-cem[] the existence of an employment relationship” — and thus is not squarely applicable to this Ruling, which in relevant part addresses the Defendants’ relationships with one another rather than the relationship between Plaintiff and either Defendant. See, e.g., Gulino v. New York State Education Department, 460 F.3d at 370-73, 379 (emphasis added).
. In Gulino the Second Circuit noted the "non-exhaustive, thirteen-factor list of considerations from federal case law and the Restatement (Second) of Agency” which Gulino credits to the Supreme Court’s holding in Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). While the Court concedes that several of the thirteen facts there listed are not implicated given the factual record in this matter, for the reasoning discussed infra it nonetheless holds that the evidence on record, along with the Parties’ pleadings, makes evident that there is at least a triable issue of fact as to whether POST, through its academy, was functioning as DEP’s agent pursuant to applicable law.
. The Gulino opinion specifically addresses and dismisses several more expansive scopes of Title VII liability which were and appear to continue to be permitted by other Circuits. After reciting that "the existence of an employer-employee relationship is a primary element of Title VII claims” under 42 U.S.C. § 2000e-2(a), the Second Circuit stated in Gulino: "Absent some evidence that Congress intended otherwise, we conclude that all ... parties” other than those who fall under Title VII’s definition of employer, or those which may properly be considered employment agencies or labor unions "are excluded from the Title VII liability scheme.” 460 F.3d at 375. This statement leaves Defendant POST squarely within a definition of "employer” pursuant to Title VII.
. Despite its acknowledgment of the narrow Spirt rule, the Second Circuit’s 2006 opinion in Gulino heavily throws into questioning the status of other decisions on which Plaintiff relies, namely Pompeii v. Alexander Manufacturing, Inc., No. 3:03-CV-01170, 2003 WL 22682337 at *1 (D.Conn. Nov. 7, 2003), which held that in instances in which a plaintiff bringing a Title VII action “does not allege that [a defendant] was [the plaintiff's] direct employer, the question is whether [that] plaintiff has alleged facts sufficient to raise the possibility that [the defendant] was [the plaintiff's] 'employer' [under the statute] in the broader sense of significantly affecting [the plaintiff’s] access to employment opportunities.” Pompeii v. Alexander Manufacturing, Inc., No. 3:03-CV-01170, 2003 WL 22682337 at *1 (D.Conn. Nov. 7, 2003). As the district court there explained, "Title VII primarily covers relations between employees and their employers or their employers’ agents, not between employees and third parties,” id. (emphasis added) (citing Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702, 718, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978)); accordingly “the term 'employer,' as it is used in Title VII, is sufficiently broad to encompass any party who significantly affects the access of any person to employment opportunities, regardless of whether that party is the 'employer' of the person as that term has been defined at common law,” and "[a] defendant can be considered a plaintiff’s 'employer' if the plaintiff alleges that the defendant had authority to ... at a minimum! ] affect [the plaintiff's] employment with [his or her] direct employer in some way.” Id. (citing Spirt v. Teachers Insurance & Annuity Association, 691 F.2d 1054).
To the extent, however, that these cases are still good law: If completing and passing the POST training program and receiving certification of the same was a requirement for Plaintiff’s continued employment and career prospects with DEP, then POST without doubt had at minimum significant "influence over the existence and terms of [his] employment” with DEP; in truth, and as the record more than adequately shows in order to survive a motion for summary judgment on this issue, the nature, terms, and ultimately existence of Plaintiff’s employment with DEP were at least in significant part dependent upon Plaintiff’s success with the POST training program. See Pompeii v. Alexander Manufacturing, Inc., 2003 WL 22682337 at *1; see also, e.g., Kern v. City of Rochester, 93 F.3d 38 *420(2d Cir.1996) (noting that a Title VII plaintiff had, among other things, “fail[ed] to allege that her employment ... was affected by [a prospective defendant] in any way,” and thus concluding that without such allegations "the district court [had] properly denied [her] motions to amend her complaint to add a Title VII action against [that prospective defendant].”)
However, while Plaintiff has more than sufficiently alleged — and the evidence more than sufficiently demonstrates — that POST had the authority and ability to affect Plaintiff’s employment with DEP, and furthermore, while, Defendants have concurred with this position, see [Doc. 43-2] at 13 (emphasis added), given its doubt about the standards set forth by these decisions post-Gulino, the Court will not and does not deny summary judgment for such a reason or under such considerations. See Gulino v. New York State Education Department, 460 F.3d at 373-76, 378-79 (addressing the inapplicability in this Circuit of either the "interference” theory of employer liability under Title VII as well as two other theories of indirect employer liability: (1) the single or joint employer test and (2) the instrumentality test). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217117/ | MEMORANDUM**
Jesus O. Cordova appeals his revocation of supervised release for an underlying guilty-plea conviction for drug possession with intent to distribute, in violation of 21 U.S.C. § 841(a). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.
Cordova challenges neither the sufficiency of the evidence demonstrating his violation, nor the district court’s adherence to Federal Rule of Criminal Procedure 32.1, which sets forth the requirements governing revocation proceedings. Instead, Cordova contends that at the revocation hearing, the district court should have engaged in a colloquy to establish Cordova’s unequivocal admission to the supervised release violation. We are unpersuaded. We have held that the making of admissions at a probation revocation proceeding is not the equivalent of a guilty plea, functional or otherwise, and that, consequently, the protections of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), or Rule 11 do not apply. See United States v. Segal, 549 F.2d 1293, 1300 (9th Cir.1977). Our decision in United States v. Tadeo, 222 F.3d 623 (9th Cir.2000), is not to the contrary.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217118/ | MEMORANDUM**
Jose Escobar-Martinez appeals from his conditional guilty plea conviction and sen*492tence for attempted entry after deportation in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291. We review de novo whether the district court erred by precluding Escobar-Martinez from presenting a necessity defense. See United States v. Avellano-Rivera, 244 F.3d 1119, 1125 (9th Cir.2001). We affirm.
A defendant must establish the existence of four elements to be entitled to a necessity defense: (1) that he was faced with a choice of evils and chose the lesser evil; (2) that he acted to prevent imminent harm; (3) that he reasonably anticipated a causal relationship between his conduct and the harm to be avoided; and (4) that there was no other legal alternative to violating the law. Id. at 1125-26. If the “defendant’s offer of proof is deficient with regard to any of the four elements, the district judge must grant the motion to preclude evidence of necessity.” Id. at 1126 (citation omitted).
The district court properly precluded invocation of a necessity defense because Escobar-Martinez faded to show, among other things, that he was under imminent threat of harm and that there was no legal alternative to his conduct. See id.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217119/ | MEMORANDUM**
Shawn Allen appeals his guilty-plea convictions and concurrent 151-month sentences imposed for two counts of bank robbery, in violation of 18 U.S.C. § 2113(a). Allen’s attorney has filed a brief and a motion to withdraw as counsel of record pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Allen has not filed a pro se supplemental brief.
Our review of the Anders brief and our independent review of the record under Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), disclose no issues requiring further review. Accordingly, counsel’s motion to withdraw is GRANTED and the district court’s judgment is AFFIRMED.1
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
. All pending motions are denied. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217120/ | MEMORANDUM**
Rodney Romero, a California state prisoner, appeals pro se the district court’s denial of his 28 U.S.C. § 2254 petition challenging his “three strikes” sentence for receiving stolen property in violation of California Penal Code § 496(a) as cruel and unusual punishment. We have jurisdiction under 28 U.S.C. § 2253. We affirm.
Romero contends his sentence under California’s “three strikes” law violates the Eighth Amendment’s prohibition against cruel and unusual punishment. We conclude that the California state courts did not unreasonably apply clearly established law in upholding Romero’s sentence. See Ewing v. California, — U.S. -, 123 *493S.Ct. 1179, 1190, 155 L.Ed.2d 108 (2003) (acknowledging broad discretion possessed by legislatures and holding that three-strikes sentence of 25 years to life for felony grand theft was not grossly disproportionate); Lockyer v. Andrade, — U.S. -, 123 S.Ct. 1166, 1175, 144 L.Ed.2d 155 (2003) (holding that state court’s affirmance of two consecutive 25-years-to-life sentences for petty theft was not contrary to or an unreasonable application of clearly established federal law). The district court therefore properly denied Romero’s petition. See Andrade, 123 S.Ct. at 1174.
AFFIRMED.1
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. Respondent’s motion for summary affirmance is denied. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224328/ | RULING ON DEFENDANTS’ MOTION TO DISMISS
CHARLES S. HAIGHT, JR., Senior District Judge.
I. INTRODUCTION
Plaintiffs Soundkeeper, Inc., Connecticut Fund for the Environment, Inc., and Conservation Law Foundation, Inc. (collectively, “Plaintiffs”) bring this lawsuit “under the citizen suit enforcement provisions of the Federal Water Pollution Control Act, *42833 U.S.C. § 1251 et seq.” (hereafter “the Clean Water Act,” “the Act,” or “the CWA”) in order to address and abate occurrences which Plaintiffs contend constitute “ongoing and continuous violations of the Act.” [Doc. 1] at 1.
Plaintiffs allege that Defendant A & B Auto Salvage, Inc. and Defendant A & B Scrap Metal LLC (collectively, “Defendants”) continue to “discharge polluted storm water runoff from their automobile salvage and scrap metal recycling facility located at 54 Wrobel [Place], East Hartford, CT 06108 ... into waters of the United States without authorization, in violation of Sections 301(a) and 402(p)(2)(B) of the Act, 33 U.S.C. §§ 1311(a) and 1342(p)(2)(B), and that “Defendants have failed to obtain coverage under [or to] comply with the conditions of an individual National Pollutant Discharge Elimination System ... [P]ermit or the State of Connecticut] General Permit for the Discharge of Stormwater Associated with Industrial Activity issued by the Connecticut Department of Energy and Environmental Protection” in violation of Sections 402(p)(3)(A) and (p)(4)(A) of the Act, 33 U.S.C. §§ 1342(p)(3)(A) and (p)(4)(A), and of 40 C.F.R. §§ 122.26(c)(1) and (e)(1). Id. at 1-2.
Defendants move to dismiss Plaintiffs’ Complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). [Doc. 17]. Defendants contend both (1) that this “action is barred under Section 309(g), 33 U.S.C. § 1319(g) as the result of a 1982 Administrative Order rendering judgment issued by the State of Connecticut Department of Energy & Environmental Protection;” and, in addition, (2) that this action is barred by a 2010 State of Connecticut Department of Energy & Environmental Protection “agency determination [which] expressly stated that registration [for the property] under the General Permit was not required under the Clean Water Act.” [Doc. 17-1] at 1-2 (emphasis omitted). Since Defendants contend that “all claims [contained within] the Complaint are dependent on the failure to register under the General Permit,” Defendants contend that all such claims “fail as a matter of law and must be dismissed for lack of subject matter jurisdiction.” Id. at 2.
This Ruling resolves that motion.
II. LEGAL STANDARDS
A motion to dismiss for lack of subject matter jurisdiction is governed by Fed. R.Civ.P. 12(b)(1), under which a case is properly dismissed “when the court lacks the statutory or constitutional power to adjudicate the case.” Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir.1996). Both the moving and non-moving parties “may use affidavits and other materials beyond the pleadings themselves in support or in opposition to a challenge to subject matter jurisdiction” and the “district court also may inquire, by affidavits or otherwise, into the facts as they exist.” Tuccio Development, Inc. v. Town of Ridgefield, No. 3:06-CV-01821, 2008 WL 749855 at *1 (D.Conn. March 19, 2008) (quoting Matos v. United States Dept. of Housing & Urban Development, 995 F.Supp. 48, 49 (D.Conn.1997) and Land v. Dollar, 330 U.S. 731, 735, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947)) (internal quotation marks omitted).
Parties asserting that subject matter jurisdiction exists — here, Plaintiffs — bear the burden of proving it by a preponderance of the evidence; all ambiguities and inferences will be drawn in their favor. Aurecchione v. Schoolman Transp. System, Inc., 426 F.3d 635, 638 (2d Cir.2005). The overarching function of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) “is merely to assess the legal *429feasibility of the complaint, not to assay the weight of evidence which might be offered in support thereof’ and, accordingly, the “issue on a motion to dismiss is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his claims.” Bici v. Napolitano, No. 3:10-CV-01991, 2012 WL 642781 at *1 (D.Conn. Feb. 28, 2012) (emphasis added) (internal quotation marks omitted) (quoting Mytych v. May Dept. Stores Co., 34 F.Supp.2d 130, 131 (D.Conn.1999) and United States v. Yale New Haven Hosp., 727 F.Supp. 784, 786 (D.Conn.1990)).
III. BACKGROUND
Plaintiffs’ Complaint avers that Defendants’ businesses involve automobile salvage and scrap metal recycling, the housing of vehicles, motors, batteries, oils, automotive fluids, paints, and the maintaining of scrap piles containing asphalt, industrial scrap metal, and nonferrous materials including aluminum and steel, all to be found at their facility property located at 54 Wrobel Place, East Hartford, CT 06108. According to the Complaint, the moving, processing, and crushing of vehicles leads to the release of pollutants including paint, sediment, glass, copper, lead, zinc, nickel, cadmium, arsenic, mercury, and other metals, as well as non-metal pollutants; the Complaint also avers that machinery at the facility may also release fuel, oil, lubricants, and pH-affecting substances, which, according to Plaintiffs, are then carried via stormwater under fences and into ditches, streams, and, ultimately, the Hockanum River.
Defendants have attached to their Motion to Dismiss the July 9, 2010 Department of Energy and Environmental Protection 1 (hereafter “DEEP”) Inspection Report on which they partially rely in their contention that Plaintiffs’ Complaint ought to be dismissed in its entirety. See [Doc. 17-1] at 22. This July 9, 2010 DEEP Inspection Report concluded, subsequent to an examination of the property, that Defendants did not need to register for a stormwater General Permit.
Plaintiffs, opposing Defendants’ motion to dismiss, point to a subsequent DEEP Memorandum which is dated April 25, 2012 and which notes that “a stormwater swale along the west side of the property ... may constitute a point source discharge associated with industrial activity ... [and] appears to potentially receive stormwater from scrap areas.” [Doc. 1-2] at 2 (emphasis added). The April 25, 2012 Memorandum further notes:
It appears that A & B Auto has a storm-water point source discharge associated with industrial activity from their property, which would require registration for the Stormwater General Permit. A & B Auto should engage a professional engineer and/or a Certified Hazardous Materials Manager to evaluate the site as soon as possible, but also during wet weather to determine the manner of runoff from the site.
Id. at 1.
Defendants apparently received a letter from DEEP concerning the conclusions and observations contained within the April 25, 2012 DEEP Memorandum and, as suggested therein, Defendants hired an engineering firm to provide an evaluation of their property. Defendants have *430submitted this engineering firm’s resulting report as an attachment to their Supplemental Memorandum in Support of their Motion to Dismiss. See [Doc. 28] at 5. This engineering firm report, dated November 12, 2012, noted that while the engineering firm, in a July 24, 2012 inspection of the property, “did identify a drainage swale running along the western boundary of the property,” it found “no indication of any drainage to the swale from the areas of the property where industrial activity occurs,” and furthermore over the course of four inspections the engineering firm found “no indications of channelized runoff from the operational areas of the property.” Id. at 5-6. “Based on this information and the recently conducted site inspections,” the engineering firm expressed its belief “that the 54 Wrobel place property owned by A & B Auto Salvage [did] not require a stormwater permit at [that] time.” Id. at 7.
Defendants have also provided the Court with an October 26, 2012 DEEP Memorandum which noted that DEEP staff, in a Department site visit conducted in response to a request for the same from the engineering firm Defendants had employed, “did not observe evidence of a point source discharge from the A & B site located at 54 Wrobel Place in East Hartford as defined by the Industrial Stormwa-ter GP ... [rather, Department] staff recommended that A & B modify some areas on site in order to improve the site’s topography relative to stormwater flow and reduce the chances of channelized discharge.” Id. at 14.2 The October 26, 2012 DEEP report further stated that the engineering firm hired by Defendants “had evaluated the site during wet weather and determined there were no point source discharges,” and noted that the engineering firm would “provide a report to the Department indicating such, and provide evidence that site modifications were completed as discussed.” Id.
On April 6, 2012, prior to the April 25, 2012 Memorandum discussed supra, Plaintiffs served Defendants with a “Notice of Violation and Intent to File Suit under the Clean Water Act” as set forth at 40 C.F.R. Part 135. Plaintiffs filed this action’s lawsuit on June 6, 2012.
IV. DISCUSSION
“The Clean Water Act ... is a cornerstone of the federal effort to protect the environment,” and “is the principal legislative source of the EPA’s authority — and responsibility — to abate and control water pollution.” Waterkeeper Alliance, Inc. v. U.S. E.P.A., 399 F.3d 486, 490 (2d Cir.2005) (citations omitted). The stated objective of the Act is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). As the United States Supreme Court recently noted, “[a] central provision of the Act is its requirement that individuals, corporations, and governments secure National Pollutant Discharge Elimination System ... [P]ermits before discharging pollution from any point source into the navigable waters of the United States.” Decker v. Northwest Environ*431mental Defense Center, — U.S. -, 133 S.Ct. 1326, 1331, 185 L.Ed.2d 447 (2013). To that end, Section 301(a) of the CWA prohibits anyone from discharging any pollutant, “[e]xcept as in compliance with” particular sections of the Act, including 33 U.S.C. § 1342. See 33 U.S.C. § 1311(a), discussed infra. Outside of these allowances, “the discharge of any pollutant by any person shall be unlawful.” Id.
Plaintiffs contend that their standing to bring this lawsuit is found within Section 505 of the CWA, which explicitly authorizes citizen suits brought pursuant to the Act. As the Second Circuit has noted, “Congress expressly provided in [the] CWA that its provisions might be enforced through a citizen enforcement suit.” No Spray Coalition, Inc. v. City of New York, 351 F.3d 602, 605 (2d Cir.2003) (comparing this aspect of the CWA to the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136 et seq.) Section 505 of the CWA provides in relevant part that “any citizen may commence a civil action on his own behalf’ against any person “who is alleged to be in violation” either “of an effluent standard or limitation under this chapter” or “of an order issued by the Administrator or a State with respect to such a standard or limitation.” 33 U.S.C. § 1365(a)(1). An “effluent standard or limitation” for purposes of Section 505 is defined as:
... (1) an unlawful act under subsection (a) of section 1311 [i.e., § 301(a) ] of this title; (2) an effluent limitation or other limitation under section 1311 or 1312 of this title; (3) standard of performance under section 1316 of this title; (4) prohibition, effluent standard or pretreatment standards under section 1317 of this title; (5) certification under section 1341 of this title; (6) a permit or condition thereof issued under section 134.2 of this title ...; or (7) a regulation under section 1345(d) of this title.”
33 U.S.C. § 1365(f) (emphasis added); see also, e.g., Connecticut Fund for the Environment v. Contract Plating Co., Inc., 631 F.Supp. 1291, 1292 (D.Conn.1986). In other words, the term “effluent standard” as defined by Section 505 encompasses any violation of the strict prohibition contained in Section 301 of the CWA — discussed infra — on discharges without an appropriate permit. The term “effluent standard” for purposes of Section 505 also specifically encompasses allegations of the discharge of pollutants without a Section 402 permit (also discussed infra).
Defendants aver that notwithstanding the allegations in Plaintiffs’ Complaint, “registration with the DEEP seeking General Permit coverage as well as compliance with the requirements of this General Permit coverage was not required” at any point relevant to this lawsuit because the aforementioned “July 9, 2010 DEEP Inspection Report [itself] expressly stat[ed] that registration was not required.” [Doc. 17-1] at 5 (emphasis in original). Accordingly, Defendants contend that Plaintiffs have no standing to bring a CWA citizen suit pursuant to Section 505. As a corollary, Defendants also argue that because DEEP had in 2010 indicated its belief that a General Permit was not needed in the relevant time frame, Plaintiffs, in bringing the Complaint in the action at bar, failed to comply with the notice requirements set forth in Section 505, which dictate in part that when a citizen seeks to initiate a new action under this section, an action may not be brought “prior to sixty days after the [citizen] plaintiff has given notice of the alleged violation (i) to the Administrator; (ii) to the state in which the alleged violation occurs; and (iii) to any alleged violator of the standard, limitation, or order.” 33 U.S.C. § 1365(b)(1)(A).
Defendants lastly contend that Plaintiffs’ action is barred under Section 309(g) of *432the CWA, i.e., 33 U.S.C. § 1319(g), which “bars citizen suits when the state has commenced and is diligently pursuing a civil, criminal or enforcement proceeding against the polluter pursuant to comparable State law.” [Doc. 17-1] at 16 (citing 33 U.S.C. § 1319(g)(6)(A)(ii) and McAbee v. City of Fort Payne, 318 F.3d 1248, 1251 (11th Cir.2003)). Defendants aver that “[between 1978 and 1982, both the DEEP _and the Town of East Hartford ... brought enforcement proceedings against James Morone ..., predecessor to the Defendants at the Facility” who “operated an unpermitted solid waste disposal area at the Facility.” Id. In Defendants’ words, “[o]n April 5, 1982 and again on July 22, 1982, Morone entered into stipulated judgments with both the DEEP and the Town wherein he agreed to close the site in compliance with applicable regulations.” Id. at 16-17 (internal quotation marks omitted). Thus Defendants conclude that “this Court must dismiss this action under 33 U.S.C. § 1319(g)(6)(l)(ii) because: (1) the state law under which the Connecticut Department of Environmental Protection ... is proceeding is comparable to 33 U.S.C. § 1319(g)[;] and (2) the [Connecticut Department of Environmental Protection] is diligently prosecuting its action.” Id. at 17 (internal quotation marks and citation omitted).3
A. Whether Plaintiffs Lack Standing to Bring This Lawsuit
Defendants argue that Plaintiffs lack standing to bring this lawsuit as no registration violation existed at any time relevant to this lawsuit, including the date on which Plaintiffs’ Complaint was file, i.e., June 6, 2012. See [Doc. 17-1] at 10; see also [Doc. 1], As noted supra, in support of this argument Defendants point both to the July 9, 2010 DEEP Report, id. at 22, which concluded that Defendants did not at that time need to register for a storm-water General Permit, and to the April 25, 2012 DEEP Memorandum, which indicated that a request for further evaluation of the need for a permit had been made and which did not affirmatively require Defendants to apply for a General Permit. Id. at 10.
Plaintiffs respond to Defendants’ assertions with the contention that despite these two DEEP-produced documents and the conclusions contained therein, Plaintiffs are allowed under Section 505 of the CWA to challenge Defendants’ alleged discharge of a pollutant from a point source without a General Permit because such a discharge is in and of itself an unlawful act pursuant to Section 302(a) of the CWA, a fact which renders any DEEP findings or statements potentially factually relevant but not dis-positive. Plaintiffs note that the Act itself states that Section 505 citizen suits against those “in violation of ... an effluent standard or limitation” within its purview are permitted, see 33 U.S.C. § 1365(a)(1)(A), and thus conclude that, as the property in question is an auto salvage and scrap recycling operation which is allegedly discharging stormwater “associated with industrial activity” from a point source into the waters of the United States, Defendants fall squarely within Section 505 and the Act’s purview regardless of any DEEP reports or statements. [Doc. 1] at ¶¶ 103-109; see also, e.g„ 40 C.F.R. § 122.26(c)(1); 40 C.F.R. § 122.26(b)(14).
From this record and the parties’ conflicting contentions, a central question emerges: Whether Section 505 citizen suits may be brought against persons or *433entities that are allegedly discharging relevant pollutants without a permit when the EPA or applicable State agency has previously determined that such a permit is not required. Phrased differently: May a citizen suit be brought against a person or entity in order to determine whether that person or entity needs to obtain an NPDES or General Permit in order to discharge stormwater associated with an industrial activity from a point source, when the relevant regulatory body has knowingly not required such a permit? As Plaintiffs succinctly summarize this question: can a “violation of the Clean Water Act ... exist in Connecticut [before] the Connecticut Department of Energy & Environmental Protection deems that one exists,” see [Doc. 19] at 2, or, rather, is DEEP “the gatekeeper for CWA citizen suits”? Id. at 8.
Plaintiffs, asserting that subject matter jurisdiction exists, are confronted by Defendants’ Rule 12(b)(1) motion to dismiss, which challenges jurisdiction. Consequently, Plaintiffs bear the burden of establishing jurisdiction by a preponderance of the evidence. The Court, as it must for purposes of a motion to dismiss under Rule 12(b)(1), draws all ambiguities and inferences in favor of Plaintiffs. Aurecchione v. Schoolman Transp. System, Inc., 426 F.3d at 638. As noted supra, the overarching function of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) “is merely to assess the legal feasibility of the complaint, not to assay the weight of evidence which might be offered in support thereof’ and, accordingly, the “issue on a motion to dismiss is not whether the plaintiff[s] will prevail, but whether the plaintiff[s] [are] entitled to offer evidence to support [their] claims.” Bici v. Napolitano, 2012 WL 642781 at * 1 (emphasis added) (internal quotation marks omitted) (quoting Mytych v. May Dept. Stores Co., 34 F.Supp.2d at 131 and United States v. Yale New Haven Hosp., 727 F.Supp. at 786).
1. Whether a Citizen Suit May Be Brought When the EPA or Equivalent State Agency Has Previously Stated Or Determined That a Permit Is Not Required
With respect to the question of whether a citizen suit may be brought when the EPA or equivalent state agency, here DEEP, has previously stated or determined that a permit is not required: there is precedent within this Circuit for Section 505 citizen suits to be brought over a lack of permit for a particular activity when, as here, the EPA or an equivalent state agency has previously determined that such a permit was not required. For example, the Second Circuit’s decision in Peconic Baykeeper, Inc. v. Suffolk County, 600 F.3d 180 (2d Cir.2010), involved a case in which local New York State county defendants had employed various measures to combat the spread of mosquito-borne illnesses including the use of pesticides intended to kill adult mosquitos in mid-flight. The plaintiffs in that case, who like the Plaintiffs here had commenced an action under Section 505’s citizen suit provision, contended that the defendants had violated the Clean Water Act through particular applications of pesticides, as well as through other related activities. “In carrying out [these] mosquito-control measures, [defendants had been] under the oversight of the New York State Department of Environmental Conservation ..., an agency with EPA-delegated authority to enforce the CWA in [New York State],” which “[a]s part of its CWA enforcement powers ... issues [certain] permits ... equivalent to a [comparable] permit issued by the EPA pursuant to the CWA.” Id. at 184. (citation omitted). The defendants in Peconic Baykeeper, Inc. had, as had the Defendants in the case at bar, been in*434formed by the relevant regulatory body that a permit was unnecessary for the very activity over which a citizen suit had been brought.
Indeed, in Peconic Baykeeper, Inc., the New York State Department of Environmental Conservation had not only “reviewed and approved maps delineating the area to be sprayed by [defendants],” but had also given defendants “guidance as to whether [they were] required to receive [such an aforementioned] permit prior to spraying,” or, rather, “whether the pesticide application [in which they engaged] was exempt from the CWA’s permitting requirement.” Id. Specifically, the New York State Department of Environmental Conservation “advised [defendants] that so long as [their] spraying complied with [certain requirements], the CWA did not require issuance of [such a] permit prior to the application of pesticides.” Id. As the Second Circuit noted, “[t]he EPA later codified the principle” articulated and relied upon by the New York State Department of Environmental Conservation in this advice in an Interim Statement and, later, in a Final Rule. Id. Nonetheless, the plaintiffs brought a citizen suit under the Clean Water act alleging that defendants had violated the Act in part by engaging in the very act which the New York State Department of Environmental Conservation had reviewed and, moreover, had determined did not require a permit.
Neither the district court’s nor the Second Circuit’s decision in Peconic Bay-keeper, Inc., turned on the contested presence of subject matter jurisdiction. See id.; see also, e.g., Peconic Baykeeper, Inc. v. Suffolk County, 585 F.Supp.2d 377 (E.D.N.Y.2008). However, I think it fair to say that by not turning on a or even addressing Rule 12(b)(1) question, both decisions in Peconic implicitly accepted that a citizen suit may be brought over actions or circumstances which the EPA or relevant State agency has specifically determined did not require a CWA permit. “[F]ederal courts are under an independent obligation to examine their own jurisdiction,” FW/PBS Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), and “[w]hether a federal court has subject matter jurisdiction is a question that may be raised at any time ... by a court sua sponte.” McGinty v. New York, 251 F.3d 84, 90 (2001) (quoting Lyndonville Savings Bank and Trust Co. v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000)) (internal quotation marks omitted).
Other Circuits have more directly addressed the Section 505 standing question discussed supra. The Ninth Circuit, for example, has repeatedly held “that a court may, in entertaining a citizen suit, decide whether a discharge of particular matter into navigable waters violates the CWA even though the regulating agency determined that the discharge was not subject to the requirement of a permit.” San Francisco Baykeeper v. Cargill Salt Div., 481 F.3d 700, 706 (9th Cir.2007) (emphasis added) (citing Association to Protect Hammersley, Eld, and Totten Inlets v. Taylor Resources, Inc., 299 F.3d 1007, 1012-13 (9th Cir.2002)). The Fifth Circuit has similarly stated that “a citizen may ... bring an action against a person that is [acting] without a permit even where [the] EPA has failed to issue a permit or promulgate an effluent limitation to cover the discharge.” Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546, 566 (5th Cir.1996) (emphasis added).
For reasons similar to those expressed in these Ninth and Fifth Circuit decisions, this Court, applying the standards governing a Rule 12(b)(1) motion to dismiss, and consistent with the Second Circuit’s implicit acceptance of a citizen’s suit such as the one in the particular cir*435cumstances at bar, declines to dismiss Plaintiffs’ Complaint on the ground that Plaintiffs lack the standing to bring it, or the Court is otherwise lacking in subject matter jurisdiction.
2. Defendants’ Notice Arguments
As Defendants state in their pleadings, their notice arguments are entirely derivative of their argument concerning whether Plaintiffs had standing to bring this lawsuit under the existing circumstances. As such, given the Court’s above reasoning and conclusions with respect to Defendants’ arguments concerning preclusion of this lawsuit by the 2010 DEEP Memorandum, the Court will not dismiss this action due to an alleged deficiency in Plaintiffs’ adherence of the prescribed statutory notice requirements. The Court will briefly touch upon the most prevalent of these arguments, however, in order to clarify what it construes to be a misreading of the pertinent statutory language by Defendants.
Specifically, Defendants’ argument that Plaintiffs lack standing for failing to comply with applicable notice requirements appears to be that although Plaintiffs did give the required 60 days of notice to all appropriate parties, at the time such notice was issued — i.e., on April 6, 2012— “registration [and a permit] under the Act was not required.” [Doc. 17-1] at IB. “As such,” Defendants conclude, “the notice [Plaintiffs provided] is defective and Plaintiffs lacked standing to file this lawsuit.” Id. This reasoning and reading of the relevant section of the CWA is not sensible. 33 U.S.C. § 1365(b)(1)(A) provides that no citizen suit shall be brought under the CWA “prior to sixty days after the plaintiff has given notice of the alleged violation ” to appropriate parties. Id. (emphasis added). A complaint alleges, upon information and belief; a fact-finder makes determinations with respect to such allegations. Section 505 citizen suits, like all lawsuits at a notice or complaint stage, concern alleged violations. It is therefore entirely possible that a fact-finder ruling upon this lawsuit could determine that no CWA permit had been required under a particular set of circumstances and that, accordingly, no CWA violations had taken place, and yet also determine that the initial notice provided by Plaintiffs for this lawsuit had been entirely proper.
The Court further notes that Defendants have also averred that Plaintiffs’ notice was somehow premature, and that “this case is not ripe for adjudication because DEEP is reevaluating the need for Defendants to register for a stormwater general permit.” See [Doc. 17-1] at 15, 12-15. Defendants go so far as to state that “Plaintiffs’ actions and this lawsuit are unconscionable ... because Defendants have not been allowed [a full] DEEP recommended evaluation and an opportunity, if necessary, to bring the Facility into compliance.” Id. at 13 (emphasis added). Defendants also aver at page 14 of their Memorandum in Support of their Motion to Dismiss that “[t]he ripeness doctrine is intended, through avoidance of premature adjudication, to protect the courts from entangling themselves in abstract disagreements.” Id. at 14. While that last statement is undeniably true, under Section 505, any citizen may commence a civil action against any person who is alleged to be in violation of an effluent standard or limitation under the CWA, and the district courts have jurisdiction over such actions. To the extent that Defendants are attempting to premise a ripeness contention on 33 U.S.C. § 1319(g)(6), addressed more fully infra, the Court disagrees that anything within that CWA subsection supports a ripeness or exhaustion argument. The Court will not dismiss this lawsuit on the basis that notice was improper due to any sort of lack of ripeness or exhaustion.
*436B. Whether Plaintiffs’ Claim is Barred by 33 U.S.C. 1319(g)
Section 1319(g)(6) of the CWA in relevant part precludes citizen suits which, like, the one at bar, are civil penalty actions when either the EPA or a relevant State authority “has commenced and is diligently prosecuting an action” based upon the same claims and circumstances at issue in the citizen suit. See 33 U.S.C. § 1319(g)(6)(A) and (g)(6)(A)(i)-(ii). It also bars citizen suits for which the EPA or relevant State authority “has issued a final order not subject to further judicial review and the violator has paid [an appropriate] penalty....” See 33 U.S.C. § 1319(g)(6)(A)(iii).4
Defendants state in support of their Motion to Dismiss:
DEEP is well aware of the lengthy history of the facility as defined in the Complaint ... as well as the surface water requirements that it has imposed via an Administrative Order. In light of this, ... DEEP has expressly found that registration is not required under the General Permit. As such, all Plaintiffs’ claims fail as a matter of law. Furthermore, the Facility is subject to an Administrative Order issued by ... DEEP which runs with the land and which requires continuing surface water (stormwater) compliance presently overseen by DEEP. DEEP is actively engaged in overseeing the Facility’s operations and compliance [as] evidenced by the prompt inspection and April 25, 2012 Inspection Report following Plaintiffs’ purported April 6, [2012] notice [of this lawsuit]. This suit, therefore, runs afoul of the ‘limitation on actions’ provisions contained in 33 U.S.C. § 1319(g)(6)(A) and perverts the purpose and intent behind the citizen suit provisions contained in the [CWA]. For these reasons, this suit must be dismissed as it materially interferes with DEEP oversight.
[Doc. 22] at 2-3 (citations omitted).
Even without considering the citizen suit-specific exceptions to 33 U.S.C. § 1319(g)(6)(A) which are contained within 33 U.S.C. § 1319(g)(6)(B),5 it is apparent that nothing within 33 U.S.C. § 1319(g)(6)(A) precludes the citizen suit before this Court, as no action has been commenced or is currently being diligently prosecuted by a Connecticut public agency, and moreover, no relevant final order as discussed supra has been entered.
As an initial matter, “[i]n order to invoke section 1319(g)(6) [of the CWA] to limit a citizen’s suit, it is imperative that a state [or the EPA has] commenced] enforcement proceedings.” Connecticut Fund for the Environment v. Acme Electro-Plating, Inc., 822 F.Supp. 57, 60 (D.Conn.1993). Such enforcement proceedings must be on-going and must be specific to the issues with which the citizen suit is concerned. A description of the sort of civil action contemplated by § 1319(g)(6)(A) may be found at § 1319(b):
*437The Administrator is authorized to commence a civil action for appropriate relief, including a permanent or temporary injunction, for any violation which he is authorized to issue a compliance order under subsection (a) of this action. Any action under this subsection may be brought in the district court of the United States ....
33 U.S.C. § 1319(b) (emphasis added).
Over two decades ago, for example, Judge Eginton held that a citizen suit concerning circumstances similar to those in this matter over which “the state had not commenced an enforcement proceeding” for five years, and of which the last potentially relevant enforcement proceeding had been concluded upon entry of stipulated judgment roughly four years prior, was not barred by 33 U.S.C. § 1319. Id. Defendants aver that “[i]n the present matter, ... DEEP has had active continuing oversight over the Facility for decades, even to the extent that it has directed that surface waters be treated in a prescribed manner.” [Doc. 22] at 3.
While the Court need not and will not affirmatively determine, for purposes of adjudicating this motion to dismiss, whether the DEEP visits to Defendants’ property — some of which took place in response to a request from an engineering firm Defendants had hired — constitute a requisite statutory commencement or diligent prosecution of an action, it will note for purposes of a Fed.R.Civ.P. 12(b)(1) adjudication that there is nothing in the record to support the notion that these visits were either indicative of, or for that matter a product of, DEEP’s having commenced and having been diligently prosecuting an action as per the relevant requirements in 33 U.S.C. § 1319(g)(6)(B). The facial language of this subsection appears to contemplate an action which has been “brought in [a] district court of the United States” for “appropriate relief’ and not merely an investigation, see 33 U.S.C. § 1319(b); however, the Court is unconvinced by the record before it whether the DEEP documents and site visits were sufficient even to constitute what could reasonably be construed as a single investigation. Further, even were the Court to find that the Department’s actions reflected the commencement of such an action, there is absolutely no cognizable evidence on the record that such an action was being diligently prosecuted by DEEP or any other regulatory authority. Pursuant to the guidelines of how it must evaluate a motion to dismiss brought under Fed.R.Civ.P. 12(b)(1), the Court cannot and will not grant Defendants’ motion to dismiss on such grounds.
Furthermore: Defendants’ entire argument that this matter ought to be dismissed due to its preclusion by 33 U.S.C. § 1319 appears to be premised upon the assertion that since entry of a 1982 Administrative Order “that runs with the land,” DEEP has, “[a]s evidenced by [its] July 9, 2010 Inspection Report, ... been ‘diligently prosecuting’ its 1982 enforcement action with follow-up site inspections that address[] both the contamination below as well as the surface waters (stormwaters) at the Facility.” Id. at 5. “Indeed,” Defendants aver, “the July 9, 2010 DEEP Inspection Report contains explicit remarks concerning ‘stormwater’ and how the site was graded. It also referenced the fact that the previous inspection of the Facility occurred on October 7, 2009, further evidence of the ongoing nature of the enforcement action that resulted in the 1982 Administrative Order.” Id. Defendants further aver that Judge Eginton’s 1993 decision in Connecticut Fund for the Environment v. Acme Electro-Plating, Inc., discussed supra, is distinguishable from the circumstances at bar, as in the circumstances there present DEEP had “brought an enforcement action [years prior to the lawsuit] due to the failure of [the defen*438dant] to apply for and obtain an effluent discharge permit. A [j]udgment entered and [defendant] applied for but was denied a permit. Despite the denial of the permit, the [DEEP] took no action,” and, as a result of the DEEP not taking any subsequent action, the court held that DEEP “was not diligently prosecuting an enforcement action.” Id. at 6.
The Court disagrees. The 1982 administrative order and accompanying stipulated judgment on which Defendants rely predates the violations alleged in Plaintiffs’ notice letter and Complaint by roughly a quarter of a century. The 1982 administrative order and stipulated judgment also involved a different owner and a different operator of the property; different industrial activity; a different statute; and a different applicable permit program. The Court further notes that, as Plaintiffs note, the particular “EPA regulations requiring industrial facilities like [Defendants’ facility to seek permit coverage for stormwater discharges associated with industrial activity were not promulgated by the EPA until 1990, eight years after” the 1982 administrative order and judgment. See [Doc. 19] at 14 (citing 40 C.F.R. § 122.26 (1990) and 55 F.R. 48063 (Nov. 16,1990)).
The pertinent language contained within § 1319(g)(6) is clear: “any violation ... for which the Administrator, the Secretary, or the State has issued a final order not subject to further judicial review and the violator has paid a penalty assessed ... shall not be the subject of a civil penalty action -” 33 U.S.C. § 1319(g)(6)(A) and (g)(6)(A)(iii) (emphasis added). The words “any violation,” which are contained at § 1319(g)(6)(A), makes evident the Congressional intent that the sole sort of final orders and judgments which would operate to preclude future civil penalty actions brought pursuant to § 1319(g)(6) must concern the same alleged violation. Despite their averments, including that this 1982 administrative order and final judgment run with the land now owned by Defendants, Defendants have not provided sufficient evidence for the Court to find that the violation with which this 1982 administrative order and judgment was concerned is the same, or sufficiently so, as those alleged violations with which this lawsuit is now concerned. Accordingly, pursuant to the guidelines under which a Court must evaluate a motion to dismiss brought pursuant to Fed. R.Civ.P. 12(b)(1), the Court declines to dismiss Plaintiffs actions on such grounds.
V. CONCLUSION
For the reasons discussed above, the Defendants’ motion to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1) is DENIED.
The foregoing is SO ORDERED.
. The Court notes that this Inspection Report was issued by the "Department of Environmental Protection,” which is now called the "Department of Energy & Environmental Protection.” For consistency and clarity, the Court will refer to this Department as the Department of Energy & Environmental Protection, or “DEEP,” throughout this Ruling.
. In response to the request that Defendants modify the site’s topography in order to reduce the chance of channelized discharge, Defendants created a small berm along the western and northern boundaries of the property and the customer parking lot was regraded. [Doc. 28] at 7. The engineering firm hired by Defendants acknowledged that these modifications had left "a drainage swale along the western boundary of the property, but” has specified that “the stormwater that this channel receives is from the road and only passes through the very southwestern corner of the property,” and that, in addition, "there is no industrial activity in this area of the property.” Id.
. Defendants include in their motion a demand for attorney's fees. Given the Court's resolution of the motion, attorney’s fees will not be awarded to Defendant at this stage of the litigation.
. These provisions are in general accord with the Notice provision contained within Section 505 of the CWA, which states in relevant part that no citizen suit may be commenced “if the [EPA] or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.” 33 U.S.C. § 1365(b) and (b)(1)(B).
. These citizen suit-specific exceptions provide that the statutory limitations set forth at subsection (A) do not apply to citizen suits which were filed prior to the commencement of an EPA or State action or to citizen suits in which "an action ... with respect to [the] violation^] [alleged in the suit] is filed before the 120th day after the date on which ... notice [of the citizen suit] is given.” See 33 U.S.C. § 1319(g)(6)(B)(i)-(ii) | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217122/ | MEMORANDUM**
Abram Meliksetian appeals pro se the district court’s dismissal of his Fed. R.Crim.P. 41(e) motion for the return of property seized by the Federal Bureau of Investigations. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo. United States v. Marolf, 173 F.3d 1213, 1216 (9th Cir.1999) (dismissal of a Fed.R.Crim.P. 41(e) motion); Hawkins v. Risley, 984 F.2d 321, 323 (9th Cir.1993) (per curiam) (application of res judicata). We affirm.
The district court properly dismissed Meliksetian’s Fed.R.Crim.P. 41(e) motion on res judicata grounds because he unsuccessfully raised identical issues against the same parties in a prior proceeding that resulted in final judgment. See Stratosphere Litig. L.L.C. v. Grand Casinos, Inc., 298 F.3d 1137, 1143 n. 3 (9th Cir.2002) (citations omitted).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217123/ | *495MEMORANDUM**
Brad R. Johnson appeals pro se the district court’s sua sponte Fed.R.Civ.P. 12(b)(6) dismissal of his action alleging violations of the Federal Credit Reporting Act (“FCRA”), the Fair Debt Collection Practices Act (“FDCPA”), the Racketeering Influenced and Corrupt Organizations Act (“RICO”), the Fourteenth Amendment, and state tort law. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo dismissals for failure to state a claim, Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir.1987), and for abuse of discretion a decision to change venue, King v. Russell, 963 F.2d 1301, 1304 (9th Cir.1992) (per curiam). We may affirm on any ground supported by the record. Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir.1998).
The Illinois district court did not abuse its discretion when it transferred Johnson’s ease to the Central District of California because no events alleged in the complaint took place in Illinois, a substantial part of the events took place in California, and all defendants resided in California. See King, 963 F.2d at 1304.
The district court properly dismissed Johnson’s claim under the FCRA because the provision he cited, 15 U.S.C. § 1681s-2(a), may only be enforced by federal and state officials. See Nelson v. Chase Manhattan Mortgage Corp., 282 F.3d 1057, 1059 (9th Cir.2002).
The district court properly dismissed Johnson’s claim under the FDCPA because the Franchise Tax Board is not a “debt collector” as defined by the statute. See 15 U.S.C. § 1692a(6)(C).
The district court properly dismissed Johnson’s RICO claim because government entities are incapable of forming the malicious intent necessary to support a RICO action. See Pedrina v. Chun, 97 F.3d 1296, 1300 (9th Cir.1996).
The district court properly dismissed Johnson’s section 1983 claim alleging California’s pre-judgment child support procedures violated due process because any review would necessarily affect the child support order or judgment issued by the state court. See Doe & Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir.2001).
The district court properly dismissed Johnson’s 42 U.S.C. § 1983 claim alleging California’s post-judgment child support procedures violated due process because the procedures provide for notice to be sent to an individual at least 20 days before garnishment of his funds and a meaningful state, post-deprivation remedy for the loss is available. See Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1317 (9th Cir.1989).
The panel has no basis to review the district court’s denial of Johnson’s motion to alter or amend the judgment because it was not submitted with his appeal. See In re O’Brien, 312 F.3d 1135, 1137 (9th Cir.2002).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217125/ | MEMORANDUM**
Kolawole Adelabu, a native and citizen of Nigeria, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) denial of his numerous motions seeking to challenge his in absentia removal order. We dismiss the petition for review.
We lack jurisdiction to review the BIA’s order denying Adelabu’s motion to reopen his removal proceedings because he did not petition for review within 30 days of the order. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003).
We lack jurisdiction to review Adelabu’s motion to remand for relief under the United Nation’s Convention Against Torture and, his motion to reconsider, because he filed his petition for review in this court before the BIA reached a decision on either motion. See Kendall v. Homestead Development Co., Inc., 17 F.3d 291, 294 (9th Cir.1994).
Adelabu’s remaining contentions are unpersuasive.
PETITION DISMISSED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217127/ | MEMORANDUM**
Rigoberto Mendoza-Cervantes and his family (“Petitioners”) petition for review of a final order of the Board of Immigration Appeals denying their applications for suspension of deportation.1
Petitioners claim that the application of the Illegal Immigration Reform and Immigrant Responsibility Act (“IRRIRA”) § 309(c)(5) stop-time provision to their case violated their due process rights. In light of this Court’s decision in Ram v. INS, 243 F.3d 510 (9th Cir.2001), their argument must fail. In Ram, 243 F.3d at 517, this Court held that the application of the stop-time provision to cases that were pending at the time of IRRIRA’s enactment “does not offend due process.”
Petitioners also claim that that the Nicaraguan Adjustment and Central American Relief Act of 1997 (“NACARA”) violates the equal protection clause of the constitution because it exempts citizens of certain countries from the application of IIRIRA’s stop-time provision. Once again, their argument is foreclosed by Ram, 243 F.3d at 517, which held that NACARA does not violate the equal protection clause.
The petition for review is DENIED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir. R. 36-3.
. Because the parties are familiar with the factual and procedural history of this case, we will not recount it here. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217128/ | MEMORANDUM**
Babatunde Osiname appeals the district court’s restitution order arising out of his conviction for mail and wire fraud. 18 U.S.C. §§ 1341, 1343. Jeanette L. Franklin appeals her mail and wire fraud convictions. Id. We dismiss in part and affirm in part.
(1) Osiname asserts that the restitution award against him was too high. However, when he pled guilty he waived his right to appeal “any order of restitution.” Appeal waivers are generally enforceable. See United States v. Baramdyka, 95 F.3d 840, 843-44 (9th Cir.1996); United States v. Michlin, 34 F.3d 896, 898 (9th Cir.1994). Osiname presents no legal reason for deviation from the general rule. Thus, we dismiss his appeal.
(2) Osiname’s counsel, Darlene M. Rick-er, has filed a brief and a motion to withdraw pursuant to Anders v. State of California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). Osiname has filed a supplemental brief. Our review of the briefs and of the record discloses no further issues requiring review. Thus, counsel’s motion to withdraw will be granted.
(3) Franklin first asserts that the evidence was insufficient to sustain her convictions for mail and wire fraud. Of course, the government was required to submit sufficient evidence to prove that she committed or aided and abetted the commission of each of those crimes. See United States v. Jackson, 72 F.3d 1370, 1385 (9th Cir.1995) (elements of aiding and abetting); United States v. Bonanno, 852 F.2d 434, 440 (9th Cir.1988) (elements of mail and wire fraud). However, Franklin’s intent may be proved by circumstantial evidence. See Jackson, 72 F.3d at 1381; United States v. Mares, 940 F.2d 455, 458 (9th Cir. 1991); United States v. Rasheed, 663 F.2d 843, 848 (9th Cir.1981). The government’s evidence of her activities and prevarications, coupled with the implausi*500bility of her story, was quite sufficient to meet its burden.
(4) Franklin next complains that the district court should have declared a mistrial because of the government’s argument regarding a photograph. However, we agree with the district court that the record does not demonstrate any misconduct by the government. See United States v. Patel, 762 F.2d 784, 795 (9th Cir.1985); cf. United States v. LaPage, 231 F.3d 488, 491 (9th Cir.2000) (it is misconduct for the government to knowingly deal in lies). The absence of demonstrable misconduct is fatal to this claim.
(5) Finally, Franklin asserts that the instructions on aiding and abetting were improper and confusing. On the contrary, they easily pass muster. See United States v. Dixon, 201 F.3d 1223, 1230 (9th Cir.2000). The court properly instructed that Franklin had to knowingly aid and abet Osiname in the commission of his crime, and, therefore, properly defined knowingly. See United States v. Vaughn, 797 F.2d 1485, 1492 (9th Cir.1986); United States v. Burgess, 791 F.2d 676, 680 (9th Cir.1986). Moreover, Franklin’s assertion1 that a natural consequences instruction was wrong is wrong. See United States v. Andrews, 75 F.3d 552, 556 (9th Cir.1996).
DISMISSED as to Osiname; AFFIRMED as to Franklin. The motion of Darlene M. Ricker to withdraw as counsel for Osiname is GRANTED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. This claim must be reviewed for plain error because no objection was made in the district court. See United States v. Perez, 116 F.3d 840, 846 (9th Cir.1997). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217130/ | MEMORANDUM**
Tamara Shana Washington appeals her conviction and sentence for importation of marijuana and possession of marijuana with intent to distribute. See 21 U.S.C. §§ 841(a)(1), 952, 960. We affirm.
*502(1) Washington asserts that the evidence was insufficient to establish that she knew that her car was laden with marijuana when she tried to drive it into the United States from Mexico. We disagree. Clear it is that a rational juror could find the essential elements of the crime beyond a reasonable doubt. See United States v. Yoshida, 303 F.3d 1145, 1149 (9th Cir.2002). The evidence was more than sufficient to allow the jury to infer knowledge. See United States v. Hursh, 217 F.3d 761, 767-68 (9th Cir.2000); United States v. Quintero-Barraza, 78 F.3d 1344, 1351-52 (9th Cir.1995); United States v. Haro-Portillo, 531 F.2d 962, 963 (9th Cir.1976). Similarly, there was ample evidence that Washington possessed the marijuana which was found in the tires of her car. See United States v. Whitehead, 200 F.3d 634, 639 (9th Cir.2000); Quintero-Barraza, 78 F.3d at 1352; United States v. Rubio-Villareal, 927 F.2d 1495, 1499 (9th Cir.1991).
(2) Washington also claims that the district court improperly enhanced her sentence on the basis that she had obstructed justice through perjury. See USSG § 3C1.1.1 We, again, disagree. Peijury certainly is an obstruction of justice within the meaning of the Guidelines. Id. at comment. (n.4b). On this record the district court could certainly find, as it did, that she willfully intended to give false testimony under oath regarding a material matter. See United States v. Dunnigan, 507 U.S. 87, 95, 113 S.Ct. 1111, 1117, 122 L.Ed.2d 445 (1993); United States v. Jimenez, 300 F.3d 1166, 1170 (9th Cir.2002). Indeed, it could fairly be said that only a muckle fool would fail to see her factitious story for what it was.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. All references are to the version of the Guidelines effective November 1, 2001. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217132/ | MEMORANDUM**
Plaintiff Grace Browning appeals the district court’s dismissal of her challenge to the Commissioner’s benefits decision. She asserts that the Attorney Advisor’s “fully favorable” resolution of her second application for benefits constituted a de facto reopening of her first application for benefits. See Lester v. Chater, 81 F.3d 821, 827 n. 3 (9th Cir.1995) (noting that a de facto reopening of a Commissioner’s earlier decision can occur “where the Commissioner considers ‘on the merits’ the issue of the claimant’s disability during the already-adjudicated period”). We find Plaintiffs argument unpersuasive for three reasons.
First, the Attorney Advisor addressed this issue expressly and clearly disavowed any intention to reopen consideration of Plaintiffs first application for benefits. This case is therefore distinguishable from the cases on which Plaintiff relies, because there the adjudicator did not disclaim an intention to reopen an earlier application. Compare Lewis v. Apfel, 236 F.3d 503, 510 (9th Cir.2001) (finding de facto reopening when “[t]he ALJ knew of the June 1991 denial of Lewis’s 1991 application. Yet he considered evidence of disability from as early as 1989, and he accepted without comment the alleged onset date of September 15,1990.”), with Krumpelman v. Heckler, 767 F.2d 586, 587, 589 (9th Cir.1985) (finding no reopening when an ALJ “after his review of the submitted evidence found that good cause did not exist for reopening that claim”).
Second, the bulk of the evidence considered by the Attorney Advisor was from 1996. Although the Attorney Advisor mentioned some evidence from the period encompassed by Plaintiffs first application for benefits, he did so only to point out that the 1996 evidence was consistent with Plaintiffs longstanding complaints. Thus, the Attorney Advisor cannot be said to have “eonsider[ed] ‘on the merits’ the issue of the claimant’s disability during the already-adjudicated period.” Lester, 81 F.3d at 827 n. 3.
Finally, the Attorney Advisor noted that Plaintiffs condition had “deteriorated.” Accordingly, the Attorney Advisor’s con*505elusion that Plaintiff was disabled in 1996 does not necessarily undermine the ALJ’s earlier decision that Plaintiff was not disabled previously.
For these reasons, the grant of benefits on Plaintiffs second application did not constitute a de facto reopening of Plaintiffs first application. Because the award of benefits was based solely on Plaintiffs second application, the Commissioner did not err in calculating benefits. See 20 C.F.R. § 404.621(a)(1) (2002).
To the extent that Plaintiffs appeal can be characterized as a call for review of the Commissioner’s failure to reopen her first application, the district court properly concluded that it lacked jurisdiction. Krumpelman, 767 F.2d at 588.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217133/ | MEMORANDUM***
Defendant Adekunbo Benson (aka Sean Banji Howard) appeals from the 49-month sentence imposed by the district court upon revocation of Defendant’s supervised release in June 2002. We affirm.
1. Citing Rule 32(h) of the Federal Rules of Criminal Procedure and Burns v. United States, 501 U.S. 129, 138-39, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991), Defendant argues that the district court erred by failing to provide him with notice of the court’s intention to “depart upward” from the Sentencing Guidelines before sentencing Defendant for violating the terms of his supervised release. Defendant’s argument must fail. The U.S. Sentencing Commission has never issued binding Guidelines relating to sentencing for violations of supervised release. Chapter 7, which relates to violations of supervised release, contains “neither guidelines nor interpretations or explanations of guidelines” but merely “policy statements [that] are not binding on the sentencing judge.” United States v. George, 184 F.3d 1119, 1121 (9th Cir.1999). Because there were no binding Guidelines from which the district court could “depart,” Defendant was not entitled to notice. United States v. Garcia, 323 F.3d 1161, 1164-65 (9th Cir.2003).
*506A district court abuses its discretion if it fails to consider the policy statements contained in Chapter 7. United States v. Tadeo, 222 F.3d 623, 625 (9th Cir.2000). The district court did not abuse its discretion in this case, because it expressly considered the probation report and the advice of Chapter 7 before imposing sentence, and it explained in detail why it was sentencing Defendant to more than the recommended sentence. Garcia, 323 F.3d at 1164-65.
2. The district court did not err by failing to provide Defendant with his right of allocution at sentencing. Before sentencing, the district court clearly afforded Defendant an opportunity to address the court, which Defendant declined. There was no error.
AFFIRMED.
phis disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224331/ | MEMORANDUM OF LAW RE DEFENDANTS’ MOTION TO DISMISS, GRANTING IN PART AND DENYING IN PART
BAYLSON, District Judge.
I. Introduction
Plaintiff Matthew Mooney is the former employee of an insurance company and has sued the parent and several of its subsidiaries,1 asserting antitrust claims under § 1 of the Sherman Act, 15 U.S.C. § 1 (Count I), and New York’s Donnelly Act, N.Y. Gen. Bus. § 340 (Count II). Plaintiff also asserts claims for defamation per se (Count III); breach of contract, specifically against AXA Network, LLC (Count IV) and AXA Advisors, LLC (Count V); and a claim for “Trademark Compensation Owed,” which is effectively another claim for breach of contract, against AXA Equitable Life Insurance Company and AXA Advisors, LLC (Count VI).
AXA has moved to dismiss Plaintiffs Amended Complaint in its entirety for failure to state a claim. ECF 20.
II. Facts2
Mooney has approximately nineteen years of experience working in the sale and servicing of insurance products. Am. Complaint, ECF 15 ¶ 2 (Preliminary Facts). For approximately eighteen years, from roughly 1994 to 2012, Mooney was an agent for AXA (or its predecessors). ECF 15 ¶ 9 (Preliminary Facts). During that time, Mooney entered into a Trademark License Agreement, in which he licensed to AXA a trademark he owned called “SARP.” ECF 15 ¶ 11-13 (Preliminary Facts). SARP, which stands for “Sales Associate Retirement Program,” is a retirement plan designed for independent contractors who may otherwise not have access to traditional retirement planning services through their employer. ECF 15 ¶ 11 (Preliminary Facts). The Trademark Licensing Agreement does not specify what consideration Mooney was to receive in exchange for granting the license — instead, the agreement only notes that “Licensor acknowledges receipt of satisfactory compensation in consideration of and full payment for the License.” *494ECF 15 Ex. 3 ¶ 2. Mooney alleges that this consideration provision refers to an ongoing arrangement in which AXA Advisors agreed to pay him (1) 1.40% of the value of assets under management on the annuity contracts he sold as a registered AXA representative; (2) one quarter of the 3.25% commissions earned by other AXA agents that utilized the SARP mark; and (3) an additional percentage of his own production equaling a 5% total commission. ECF 15 ¶¶ 12, 13 (Preliminary Facts). From 2006 to 2012, Mooney and other AXA agents marketed AXA products using the SARP trademark. ECF 15 ¶ 16 (Preliminary Facts). During that period, AXA compensated Mooney according to the described commission structure. ECF 15 ¶ 22 (Preliminary Facts).
Mooney also entered into an Associate Agreement with AXA Network, LLC and a Representative Agreement with AXA Advisors, LLC. According to the Associate Agreement, Mooney would receive a right to vested commissions, seniority, and other benefits after completing twelve years of continuous service with AXA Network. ECF 15 Ex. 1 § IV.A. By the time Mooney resigned, AXA credited Mooney as having had eighteen years of continuous service as a representative and an associate, notwithstanding a one-year break between June 2002 and June 2003. ECF 15 ¶ 10 (Preliminary Facts). This credit was a condition of Mooney’s returning to AXA in June 2003. ECF 15 ¶ 10 (Preliminary Facts).3
On May 4, 2012, Mooney resigned his association with AXA. ECF 15 ¶ 20 (Preliminary Facts). After learning of his resignation, William Degnan, President of AXA’s American Division, told Mooney that his resignation would be accepted but that Mooney would feel pain as a consequence. ECF 15 ¶ 3 (Count III). Mooney claims that AXA then made efforts to disparage and discredit him in the eyes of his clients. ECF 15 ¶ 2 (Count III). Specifically, on or about January 17, 2013, AXA employees Justin Scheef and Greg Em-mons met with one of Mooney’s clients, Molly Schmittgen, and told her that Mooney “only knew about life insurance,” “didn’t know anything about investments,” “hated helping clients with investing their money,” and “invested her in all of the wrong accounts because he didn’t know what he was doing.” ECF 15 ¶ 4 (Count III).
After accepting his resignation, AXA stopped compensating Mooney under the Trademark License Agreement but continued to use the SARP mark. ECF 15 ¶ 23 (Preliminary Facts). Mooney claims that AXA has breached the Trademark License Agreement by failing to compensate Mooney for its continued use of the mark. ECF 15 ¶ 2 (Count VI).
Mooney then began working for The Leaders Group, Inc. (“Leaders”) — an independent securities broker dealer. ECF 15 ¶ 1 (Count I). Leaders and AXA compete with each other in the sale of variable annuities and variable life insurance products, including AXA-brand annuities and AXA-brand variable life insurance products. ECF 15 ¶ 3 (Count I). Leaders and AXA also compete with one another for experienced insurance agents to sell these products. ECF 15 ¶ 3 (Count I).
To become an AXA broker dealer, Leaders entered into an agreement (the “Broker Dealer Agreement”) with AXA, which gave Leaders authority to market AXA-brand variable annuity and variable life *495insurance products. ECF 15 ¶ 5 (Count I). A provision of the Broker Dealer Agreement requires that, in the absence of AXA’s written authorization, Leaders cannot appoint as an agent or advisor for the sale of AXA-brand products anyone who has previously worked with AXA for a period of twelve months after the termination of their AXA employment. ECF 15 ¶ 7 (Count I).
After hiring Mooney, Leaders and Mooney requested that AXA permit his appointment as an agent to market AXA products through Leaders. AXA denied the request. ECF 15 ¶ 8 (Count I). AXA’s refusal prevented Mooney from selling AXA products and restrained Leaders from selling AXA products through Mooney. ECF 15 ¶ 8 (Count I).
In response, Mooney filed this action, claiming that (1) the hiring restriction in the Broker Dealer Agreement is an unreasonable restraint of trade under federal and New York law; (2) the comments made by Justin Scheef and Greg Emmons constitute defamation per se; and (3) AXA and certain of its entities breached the Representative, Associate, and Trademark Licensing Agreements.
III. Jurisdiction and Standard of Review
At this stage in the proceedings, the Court has jurisdiction pursuant to 28 U.S.C. § 1331 because Mooney’s Sherman Act claim alleges a cause of action under a federal statute. Mooney also asserts that this Court has jurisdiction under 28 U.S.C. § 1332 because this action is between citizens of different states and the amount in controversy exceeds $75,000.
When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court “must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference.” Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991). The Court must accept as true all well-pleaded allegations in the complaint and view them in the light most favorable to the nonmov-ing party. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). A plaintiff need only allege facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To do this, a plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
IV. Sherman Act and Donnelly Act Claims4
A. Contentions of the Parties
Mooney’s position on his antitrust claims has been something of a moving target. In his Original Complaint, Mooney described the employee restriction in the Broker Dealer Agreement as “unrelated to any legitimate interest of AXA.” Original Complaint, ECF 1 ¶ 10 (Count I). This phrasing alludes to the type of restraint that is treated as per se illegal under the antitrust laws. See Newburger, Loeb & Co. v. Gross, 563 F.2d 1057, 1082 (2d Cir.1977) (“Restraints on post-employment competition that serve no legitimate purpose at the time they are adopted would be *496per se invalid.”)- Aside from this statement, the Original Complaint offered no characterization of what kind of unreasonable restraint AXA had imposed on Leaders.
The Original Complaint had other noticeable omissions. Although it alleged that the contested provision restricted the market for “insurance agents and representatives,” ECF 1 ¶ 9 (Count I), it failed to plead (1) any discussion of substitutes or cross-elasticity of demand; (2) AXA’s market share in the relevant market; or (3) how the alleged restraint had an anticom-petitive effect on the relevant market. AXA’s First Motion to Dismiss pointed out these deficiencies. AXA’s Motion also went on to note that the Original Complaint only alleged harm to Mooney, not the market as a whole. ECF 11.
Mooney then filed an Amended Complaint, in which he added nineteen additional paragraphs of antitrust-related allegations to the Original Complaint’s eleven. ECF 15. These additional allegations, however, do not clarify what market was being harmed by AXA’s alleged restraint. At some points, the Amended Complaint seems to allege that the restriction in the Broker Dealer Agreement was a restraint on the insurance product market, ECF 15 ¶ 1 (Preliminary Facts), ¶¶ 27, 28 (Count I); at others points, a restraint on the insurance labor market of experienced AXA employees, ECF 15 111 (Preliminary Facts), ¶ 29 (Count I).
Additionally, although the Amended Complaint now alleges AXA’s market share, it only describes market share in certain insurance product markets, not in the insurance labor market. See ECF 15 ¶¶ 12-13, 18-20, 25 (Count I). The Amended Complaint also alleges that the restriction in the Broker Dealer Agreement constituted both an unreasonable vertical agreement as well as an unreasonable horizontal agreement — implicitly suggesting that the restraint was both per se illegal and unreasonable under the Supreme Court’s rule-of-reason doctrine. ECF 15 ¶ 28 (Count I).
AXA filed a Motion to Dismiss the Amended Complaint. In its briefing, AXA observed that the Amended Complaint suffers from the same deficiencies as the Original Complaint. AXA argues that Mooney still fails to allege a relevant market because he has not pled any substitutes or explained why no substitutes were available in his proposed market. AXA also indicates that Mooney has not alleged that AXA had sufficient market share to influence the market by imposing the alleged restraint or that the alleged restraint had a direct anticompetitive effect on the market. Finally, AXA again states that Mooney has still only alleged an injury to himself, not an injury to the market as a whole. ECF 20.
The Court held oral argument on AXA’s Motion to Dismiss on March 18, 2014. At the hearing, Mooney clarified his position on a variety of issues. First, he indicated that he was not pursuing a per se illegality theory. Second, in response to the Court inquiring about the Amended Complaint’s lack of discussion regarding substitutes, Mooney stated that he did not have to allege substitutes because the relevant market was a labor market, not a product market. He also clarified that ,the alleged labor market was not for experienced insurance agents in general, but for current AXA and former AXA employees.5 In response to the Court’s inquiry about why it should accept a single-brand labor market in light of Second Circuit precedent, *497which generally rejects such a market definition, Mooney cited Bogan v. Hodgkins, 166 F.3d 509 (2d Cir.1999) for the proposition that pleading a single-brand market can sustain an antitrust claim.6
Aside from pointing out the defects regarding market definition, market share, and antitrust injury in Mooney’s Amended Complaint, AXA has repeatedly emphasized, both in its briefing and at oral argument, that the restriction in the Broker Dealer Agreement actually promotes competition. AXA points out that the contested provision only restricts intra brand competition — that is, competition among sellers of one particular brand. Restrictions on intra brand competition, AXA notes, support inter brand competition, which has procompetitive benefits because it encourages the sale of competing, non-AXA insurance products and thus strengthens the position of AXA’s competitors in the marketplace. EOF 20 at 19-20 (citing Cont’l T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 52 n. 19, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977) (noting that interbrand competition, rather than intrabrand competition, is the “primary concern of antitrust law”); Gatt Commc’ns, Inc. v. PMC Assocs., LLC, 711 F.3d 68, 77 (2d Cir.2013) (“[Ijnhibitions on intrabrand competition ... lie far from the core [Section] 1 violations that are likely to give rise to antitrust injury.” (alteration in original)); K.M.B. Warehouse Distribs., Inc. v. Walker Mfg., Co., 61 F.3d 123, 127-28 (2d Cir.1995)). Because the restriction inures to the benefit of AXA’s competitors, AXA argues that this restriction does not harm competition within the marketplace.
B. Rule of Reason
Section 1 of the Sherman Act prohibits “every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations.” 15 U.S.C. § 1. To state a claim under § 1, the plaintiff must allege “(1) a combination or some form of concerted action between at least two legally distinct economic entities; and (2) such combination or conduct constituted an unreasonable restraint of trade either per se or under the rule of reason.” Tops Markets, Inc. v. Quality Markets, Inc., 142 F.3d 90, 95-96 (2d Cir.1998).7
Rule-of-reason analysis generally guides a district court’s inquiry when determining the existence of an unreasonable restraint on trade. See Business Elec. Corp. v. Sharp Elec. Corp., 485 U.S. 717, 726, 108 S.Ct. 1515, 99 L.Ed.2d 808 (1988) (“[T]here is a presumption in favor of a rule-of-reason standard.... ”). “Under the rule of reason, the anticompetitive consequences of a challenged practice are weighed against the business justifications upon which it is predicated and its putative procompetitive impact....” Kasada, Inc. v. Access Capital, Inc., Case No. 01-cv-8893, 2004 WL 2903776, at *4 (S.D.N.Y. Dec. 14, 2004). After weighing the anti-competitive consequences of a practice against its procompetitive justifications, the court then determines whether the restraint is reasonable — that is, whether it is more beneficial to competition than harmful.
However, if the alleged restraint falls into the category of agreements or practices that have been condemned by the *498Supreme Court as being obviously anti-competitive and contrary to the policies underlying the Sherman Act, then the court does not engage in a reasonableness analysis — the restraint is simply presumed per se illegal.
“The categories of per se illegal practices are an approximation, a shortcut to reach conduct that courts can safely assume would surely have an anticompeti-tive effect.” Bogan v. Hodgkins, 166 F.3d 509, 515 (2d Cir.1999). Agreements between competitors at the same level of the market structure that involve price fixing, territory allocation, the orchestration of group boycotts or concerted refusals to deal, or other competition-minimizing activities — commonly referred to as “horizontal restraints” — are examples of practices that receive per se treatment under § 1 of the Sherman Act. See, e.g., Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 212, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959) (finding group boycotts unreasonable per se); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 228, 60 S.Ct. 811, 84 L.Ed. 1129 (1940) (finding price fixing unreasonable per se). By contrast, agreements between persons or entities at different levels of a market structure, such as between a manufacturer and distributor — commonly referred to as “vertical restraints” — are analyzed under the rule of reason. See GTE Sylvania, Inc., 433 U.S. at 58-59, 97 S.Ct. 2549 (holding non-price vertical restrictions are analyzed under the rule of reason); Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 907, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007) (holding vertical price restraints are judged according to the rule of reason).
Classifying the nature of the restraint alleged — and thus identifying the doctrine to govern the analysis — is critical at the motion to dismiss phase, for it determines what factual material the plaintiff must plead in order to state a claim. Under rule-of-reason analysis, to sufficiently plead an unreasonable restraint on trade, the plaintiff must allege facts that describe the challenged restraint, the contours of the relevant market, the anticompetitive effects the restraint has on that market, and an injury suffered by the plaintiff that the antitrust laws were intended to prevent and that flows from that which makes the restraint unlawful. Int’l Television Prods. Ltd. v. Twentieth Century-Fox Television Div. of Twentieth Century-Fox Film Corp., 622 F.Supp. 1532, 1538-39 (S.D.N.Y.1985).
By contrast, under per se analysis, the plaintiff need not allege anticompetitive effects. As described above, the law regards practices that are per se illegal as so unwaveringly noxious to competition that their anticompetitive effect is presumed. See Gianna Enters, v. Miss World (Jersey) Ltd., 551 F.Supp. 1348, 1354 (S.D.N.Y. 1982) (“Per se violations do not require a showing of deleterious impact on competition. The acts involved are considered so repugnant to the policies underlying antitrust law that they create a presumption of anticompetitive effect.”). The plaintiff therefore need only plead facts describing the challenged conduct and the relevant market affected by the conduct. See Bogan, 166 F.3d at 515 (“[I]t is an element of a per se case to describe the relevant market in which we may presume the anti-competitive effect would occur.”).
Because Mooney represented at oral argument that he was not pursuing a per se theory, the Court reviews the sufficiency of the Amended Complaint under the rule of reason.
i. Relevant Market
“In order to plead an antitrust violation under the rule of reason, a plain*499tiff must allege a relevant market, including both a product market and a geographic market.” Integrated Sys. & Power, Inc. v. Honeywell Int’l Inc., 713 F.Supp.2d 286, 298 (S.D.N.Y.2010).8 “The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it.” Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). “[T]wo products or services are reasonably interchangeable where there is sufficient cross-elasticity of demand. Cross-elasticity of demand exists if consumers would respond to a slight increase in the price of one product by switching to another product.” Todd v. Exxon Corp., 275 F.3d 191, 201-02 (2d Cir.2001) (citations omitted) (Sotomayor, J.). “Dismissal is appropriate where the alleged product market is defined without ‘reference to the rule of reasonable interchangeability and cross-elasticity of demand’ or where it ‘clearly does not encompass all interchangeable substitute products even when all factual inferences are granted in plaintiffs favor.’ ” Integrated Sys., 713 F.Supp.2d at 298 (quoting Chapman v. N.Y. State Div. for Youth, 546 F.3d 230, 238 (2d Cir.2008)).
Here, Mooney alleges that the relevant market is the labor market for current and former “experienced and trained [AXA] representatives and associates.” ECF 15 ¶ 29 (Count I). As AXA points out in its briefing, ECF ¶ 20 at 14, the complaint does not allege any substitutes for AXA-affiliated employees or provide a discussion of cross-elasticity of demand. There is no discussion about the insurance agent labor supply, the existence of other insurance agents that are not affiliated with AXA, potential barriers to entry into the insurance agent market, or systemic barriers that might prevent an agent from changing insurance employers. This is a critical deficiency of the complaint.
In his briefing, Mooney responded to the failure to allege substitutes and cross-elasticity in a footnote:
The labor market cases (as opposed to product market cases) do not discuss the elasticity of the market. However, the implication of AXA’s admissions is that the market for experienced professional [sic] is inelastic, in that AXA makes efforts to retain its people, rather than replace them.
ECF 23 at 11 n. 2. Mooney offered no case citations for the proposition that antitrust complaints that plead a labor market as the relevant market are somehow excused from discussing cross-elasticity or substitutes.
Indeed, the case law directly contradicts Mooney’s contention. In Todd, the plaintiff alleged that the defendant unreasonably restrained the labor supply for nonunion managerial, professional, and technical employees by exchanging detailed compensation information with competitors so that the colluding companies could set their employees’ salaries at artificially low levels. 275 F.3d at 195. In reviewing the dismissal of the complaint, the Second Circuit conducted a thorough analysis of the cross-elasticity of demand and potential substitutes alleged in the complaint, particularly regarding whether the alleged labor market was over-inclusive and under-inclusive as pled. Id. at 199-204.
Similarly, in Bogan, the plaintiffs alleged that defendants unreasonably restrained *500the labor supply for Northwestern Mutual Life (“NML”) insurance agents by maintaining agreements that prevented agents that worked for one General Agent from switching to work for another General Agent. 166 F.Sd at 515-16. Although the plaintiffs’ primary theory was rooted in per se illegality, the Second Circuit observed that the plaintiffs’ case could have been salvaged had they pled that the market for experienced NML agents was a cognizable submarket of the wider insurance agent labor market. Id. The court noted, however, that the plaintiffs could not rely on this approach because they failed to make any effort to demonstrate the cross-elasticity of demand between NML agents and other labor substitutes. Id. at 516.
At oral argument, and with passing reference in his brief, Mooney offered an alternative theory. He suggested that the relevant market was a single-brand market — that is, that there were no substitutes for AXA-affiliated employees because they were a market unto themselves.
In the past, antitrust plaintiffs have attempted to define the relevant market as a single brand of product or service, thereby sidestepping the need to allege cross-elasticity of demand or any reasonably interchangeable substitutes. The Supreme Court has opined on the conceptual problems that accompany overly-narrow market definitions. The Court’s holdings and observations, which have been echoed many times across this circuit, express skepticism for single-brand markets:
A retail seller may have in one sense a monopoly on certain trade ... because no one else makes a product of just the quality or attractiveness of his product. ... Thus one can theorize that we have monopolistic competition in every nonstandardized commodity with each manufacturer having power over the price and production of his own product. However, this power that, let us say, automobile or soft-drink manufactures have over their trademarked products is not the power that makes an illegal monopoly. Illegal power must be appraised in terms of the competitive market for the product.
United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 392-93, 76 S.Ct. 994, 100 L.Ed. 1264 (1956).9
Accordingly, absent allegations explaining why such a market definition is plausible, courts in this district consistently reject single-brand markets. See Todd, 275 F.3d at 200 (“Cases in which dismissal on the pleadings is appropriate frequently involve either (1) failed attempts to limit a product market to a single brand ... or (2) failure even to attempt a plausible explanation as to why a market should be limited in a particular way.”); Mathias v. Daily News, L.P., 152 F.Supp.2d 465, 482 (S.D.N.Y.2001) (“[Cjourts have consistently held that a brand name product cannot define a relevant market.”); e.g., Re-Alco Indus., Inc. v. Nat’l Ctr. for Health Educ., Inc., 812 F.Supp. 387, 391-92 (S.D.N.Y.1993) (one particular brand of health education materials is not a relevant product market); Theatre Party Assocs., Inc. v. Shubert Org., Inc., 695 F.Supp. 150, 153-55 (S.D.N.Y.1988) (sales of selected tickets to Phantom of the Opera do not comprise a viable antitrust market).
The widespread rejection of single-brand markets is not some creature of brittle formalism. Rather, courts rebuff these market definitions because single-*501brand markets — whatever their theoretical possibility — are consistently pled in a manner that lacks plausibility or is otherwise untethered to economic reality. See Theatre Party Assocs., 695 F.Supp. at 154 (“The federal courts, in the context of Rule 12 motions to dismiss, have not hesitated to reject market allegations that make no economic sense under any set of facts.”). Thus, although the Court is not willing to reject the alleged single-brand market out of hand, it is incumbent upon Mooney to plead why such a market is plausible. See Beyer Farms v. Elmhurst Dairy, Inc., 142 F.Supp.2d 296, 303 (E.D.N.Y.2001) (“[An antitrust plaintiff must] explain why the market it alleges is in fact the relevant, economically significant product market.”); Int’l Audiotext Network, Inc. v. AT & T, 893 F.Supp. 1207, 1213 (S.D.N.Y.1994) (“[A]n antitrust plaintiff must set out a theoretically rational explanation to support its proposed relevant product market.”); N. Jersey Secretarial Sch., Inc. v. McKiernan, 713 F.Supp. 577, 583 (S.D.N.Y.1989) (dismissing complaint because the plaintiff “fail[ed] to explain the basis” for the market alleged); Gianna Enters., 551 F.Supp. at 1354 (dismissing complaint for failure to adequately plead a relevant market where plaintiff alleged a market limited to international beauty pageants but “made no attempt to explain” why the product market should be so limited).
Mooney argues that AXA’s representations in a 2011 Form 10-K securities filing about its strategy “to retain personnel, rather than replace them” demonstrates that the AXA-affiliated agent market is “inelastic” — that is, has no substitutes. ECF 23 at 11 n.2. Mooney quotes extensively from the 10-K filing in an attempt to support this contention. See, e.g., ECF 15 ¶ 15 (Count I) (“[AXA’s] proprietary sales force and key employees are key factors driving our sales.”) (quoting AXA’s 2011 Form 10-K); ECF 15 ¶ 14 (Count I) (“[AXA] must attract and retain productive sales representatives to sell [AXA’s] products.”) (quoting AXA’s 2011 Form 10-K). Mooney argues that these statements “concede” the existence of his alleged labor market. ECF 23 at 6.
Mooney’s argument misses the mark. As an initial matter, the expressed preferences of a labor purchaser are insufficient to define the contours of a particular market. See City of New York v. Grp. Health, Inc., 649 F.3d 151, 156 (2d Cir.2011) (“A single purchaser’s preferences, however, cannot define a market.”). Although retaining experienced AXA insurance agents may be particularly suitable to AXA’s needs, this mere preference does not serve as a plausible explanation — or any explanation, for that matter — for why the court should treat AXA-affiliated agents as a single-brand market.
Indeed, the allegations in Mooney’s complaint suggest that the market for insurance agents, including AXA-affiliated agents, is very elastic — that is, has many substitutes. For instance, quoting from AXA’s 2011 Form 10-K, the complaint alleges:
• We compete with other financial institutions for sales representatives;
• Intense competition exists among insurers and other financial service companies for financial professionals and key employees;
• Competition is particularly intense in the hiring and retention of experienced financial professionals, ECF 15 ¶ 15 (Count I).
ECF 15 ¶¶ 14-15 (Count I). Thus, on the basis of the allegations of the complaint alone, it is clear that the insurance agent market, of which AXA-affiliated employees are a part, is an intensely competitive market. Mooney has offered no explanation *502for why the Court should regard the market for AXA-affiliated employees as a distinct labor submarket, other than that AXA has exhibited a preference for retaining personnel over hiring new personnel. This cannot sustain Mooney’s alleged market.
Without alleging all reasonably interchangeable substitutes for AXA-affiliated employees or alleging a plausible explanation for why the Court should regard competition for AXA-affiliated employees as a market unto itself, Mooney has failed to adequately allege a relevant market. This is an essential element to stating a claim under § 1 of the Sherman Act and the Donnelly Act. Accordingly, AXA’s Motion will be granted as to these claims,
ii. Other Deficiencies
Mooney’s antitrust claims are deficient in additional ways. In order to state an antitrust claim under the rule of reason, Mooney must allege that the alleged restraint harmed competition in his proposed market. He could satisfy this requirement by alleging facts that show that the alleged restraint had “an actual adverse effect on competition, such as reduced output,” or by demonstrating an adverse effect “indirectly by establishing that [AXA] had sufficient market power to cause an adverse effect on competition.” Tops Markets, Inc., 142 F.3d at 96. Market power is a “surrogate” for pleading an actual adverse effect on the market. F.T.C. v. Indiana Fed’n of Dentists, 476 U.S. 447, 461, 106 S.Ct. 2009, 90 L.Ed.2d 445 (1986). If an entity controls a large share of the market, then a court may infer that a potentially unlawful restraint has the potential for “genuine adverse effects on competition” without allegations detailing that genuine adverse effect. Id. at 460-61, 106 S.Ct. 2009. The complaint fails to allege either adverse effect or market power.
Assuming for a moment that Mooney’s proposed relevant market — AXA-affiliated insurance agents — is cognizable under the antitrust laws, Mooney has failed to allege that the market has been adversely affected as a result of the contested provision in the Broker Dealer Agreement. Mooney avers that market competition has been harmed because the restriction prevents AXA-affiliated agents from selling AXA-affiliated products if they choose to work at another company— which chills insurance agents from leaving their employment at AXA. ECF 15 ¶ 27 (Count I). This allegation, however, fails to explain how competition is directly harmed given that AXA-affiliated employees can still sell other brands of insurance. The restriction in the Broker Dealer Agreement only limits their sale of AXA products, which necessarily implies that the restriction encourages former AXA employees to sell non-AXA products. Mooney has failed to plausibly allege how this dynamic harms competition, for it very plainly seems to encourage AXA-affiliated agents to sell the products of AXA’s competitors — which would increase competition, not diminish it. See GTE Sylvania, Inc., 438 U.S. at 52 n. 19, 97 S.Ct. 2549 (noting that interbrand competition, rather than intrabrand competition, is the “primary concern of antitrust law”).
Additionally, Mooney’s inability to plead a cognizable market renders him unable to plead market power. On the one hand, if Mooney had successfully alleged a single-brand market, then AXA would obviously have market power over insurance agents that work for AXA. This market, as discussed supra, is not plausible. On the other hand, had Mooney alleged reasonably interchangeable substitutes in the market for AXA-affiliated employees, his claim would still fail because, although he alleges AXA’s share of several insurance *503product markets, he alleges no facts about what percentage of the relevant insurance labor market AXA controls. Accordingly, the complaint is deficient as to Mooney’s antitrust claims because it fails to allege either direct anticompetitive effects or market power from which anticompetitive effects may be inferred.
V. Breach of the Associate and Representative Agreements10
A. Contentions of the Parties
The Amended Complaint alleges that AXA Network and AXA Advisors breached the Associate Agreement and the Representative Agreement, respectively, by failing to pay commissions that had vested in Mooney. According to the Associate Agreement, commissions will vest in Mooney after twelve years of continuous service.11 ECF 15 Ex. 1, § IV.A. Mooney alleges that AXA had “credited” Mooney with eighteen years of continuous service by the time he resigned. He also alleges that, as a result of this crediting, AXA regularly paid Mooney commissions, - service fees, and other compensation under both the Associate and Representative Agreements. ECF 15 ¶ 22 (Preliminary Facts). According to the complaint, AXA ceased paying him commissions under these agreements after he left AXA on May 4, 2012.12 ECF 15 ¶23 (Preliminary Facts).
AXA argues that Mooney is not entitled to any commissions because he did not satisfy the contractual vesting requirements in the Associate Agreement. Namely, he does not have twelve years of continuous service — he falls three years short: he worked from 1994 to 2002 (8 years), had a year break, and then returned from 2003 to 2012 (9 years). According to the agreement, prior service only applies if it immediately precedes the entry into the agreement, ECF 15 Ex. 1 § IV.A, and thus, according to AXA, his prior service cannot be counted.
AXA also notes that the Associate Agreement has an Integration clause, which states that the written Agreement is the entire and final understanding of the parties and supersedes all prior agreements if any. The Agreement also states that it can only be modified by a writing approved by AXA Network. ECF 15 Ex. 1, § XX. Lastly, AXA notes that the terms of the Agreement are not ambiguous. Given these provisions, AXA asserts Mooney’s basis for claiming breach of the Associate and Representative Agreements13 — that *504there was some understanding to “credit” him with years of continuous service — is wholly dependent on inadmissible parol evidence that is contrary to the Integration Clause of the Associate Agreement and New York law.
In response, Mooney asserts that his claims are not based on inadmissible parol evidence. Instead, he argues that his claims are based on the doctrine of partial performance — namely, that the agreement to “credit” Mooney with years of continuous service was an oral modification of his Agreements that was at least partially performed. According to Mooney, because AXA agreed to credit him with several years of service and, based on that crediting, paid him commissions as if they had vested under the Agreements, Mooney is entitled to introduce extrinsic evidence to explain the oral modification to those Agreements. See Rose v. Spa Realty Assocs., 42 N.Y.2d 338, 341, 397 N.Y.S.2d 922, 366 N.E.2d 1279 (1977) (“Partial performance of an oral agreement to modify a written contract, if unequivocally referable to the modification, avoids the statutory requirement of a writing.”).
B. Discussion
In the context of a written agreement, the parol evidence rule forbids proof of an oral agreement to add to or vary the writing where it is evident from the terms of the writing that the entire agreement between the parties was intended to be completely embodied in the document. Fogelson v. Rackfay Const. Co., 300 N.Y. 334, 338, 90 N.E.2d 881 (1950). Thus, when a written contract prohibits oral modifications, New York law precludes deviation from the written contract based on allegations of an oral modification where the only proof of the modification is the oral exchanges between the parties. Rose, 42 N.Y.2d at 343, 397 N.Y.S.2d 922, 366 N.E.2d 1279. This common law principle has been codified by statute:
A written agreement or other written instrument which contains a provision to the effect that it cannot be changed orally, cannot be changed by an executory agreement unless such executory agreement is in writing and signed by the party against whom enforcement of the change is sought or by his agent.
N.Y. Gen. Oblig. Law § 15-301(1).
The New York Court of Appeals, however, has recognized an exception to § 15-301(1), known as the doctrine of partial performance. Under this doctrine, an oral agreement may modify a preexisting written agreement if (1) there has been partial performance of the oral modification and (2) that partial performance is unequivocally referable to the oral modification — that is, the conduct constituting the alleged partial performance must not be compatible with the written agreement. Rose, 42 N.Y.2d at 343-44, 397 N.Y.S.2d 922, 366 N.E.2d 1279. In this scenario, a court may consider past oral exchanges and the conduct of the parties to explain the nature and extent of the modification. Id. at 343, 397 N.Y.S.2d 922, 366 N.E.2d 1279. This doctrine applies even where the written agreement contains a prohibition against oral modification. See id. (“[A] contract once made can be unmade, and a contractual prohibition against oral modification may itself be waived.”).
Here, Mooney has alleged facts that indicate that there was a modification to the Associate and Representative Agreements by pleading that AXA “credited” him with years of continuous service when he returned to work for the company in 2003. He has also pled that AXA acted on this modification by paying him commissions and other compensation as if they had vested under the Agreements. Ac*505cording to AXA, Mooney was never entitled to vested commissions because he had never accrued twelve years of continuous service, as required under the Agreements to trigger vested commissions. Because Mooney has alleged that AXA paid him these commissions anyway, he has sufficiently pled that AXA acted in a way that was inconsistent with the written Agreements yet unequivocally referable to the alleged modification. Accordingly, Mooney has sufficiently pled facts consistent with the partial performance doctrine. His allegations therefore fall outside the prohibition of the parol evidence rule and N.Y. Gen. Oblig. Law § 15-301(1).
AXA’s Memorandum in Support of its Motion to Dismiss relies heavily on the parol evidence rule and N.Y. Gen. Oblig. Law § 15-301. It does not, however, address the exception provided by the partial performance doctrine. In its Reply brief, AXA asserts that the partial performance doctrine is not available when the claimed performance is equally consistent with the agreement as written. ECF 25 at 8 (citing Gun Hill Rd. Serv. Station v. ExxonMobil Corp., Case No. 08-cv-7956, 2013 WL 395096, at *5-6 (S.D.N.Y. Feb. 1, 2013).) In Gun Hill the plaintiff alleged that the defendant engaged in conduct that was in partial performance of an oral agreement. At summary judgment, the district court found these actions to be consistent with the written agreement, which foreclosed the application of the partial performance doctrine. Although correctly stating the law, AXA’s citation to Gun Hill does little because AXA fails to explain how its paying of vested commissions to Mooney is equally consistent with the Associate and Representative Agreements.
AXA’s citation to Volpe v. Interpublic Group, 2013 WL 3989040, 2013 N.Y. Misc. LEXIS 3431 (N.Y.Sup.Ct.2013), is equally unavailing. AXA offers it for the proposition that arguments based on oral exchanges are barred because they are contrary to the plain language of an agreement. AXA does not, however, offer any discussion as to how this proposition defeats the allegations in the complaint under the partial performance doctrine.
Accordingly, Counts IV and V adequately state a claim for breach of contract.
VI. Breach of the Trademark Licensing Agreement
A. Contentions of the Parties
The Amended Complaint alleges that AXA Equitable Life Insurance and AXA Advisors breached the Trademark Licensing Agreement by failing to remit compensation to Mooney for use of the SARP mark. According to the Amended Complaint, AXA agreed to pay Mooney for use of his mark on an ongoing basis pursuant to a compensation structure that was not specified in the Agreement. ECF 15 ¶¶ 12-13 (Preliminary Facts).
AXA argues that the Agreement unambiguously states that Mooney has already received full compensation for use of the SARP mark. See ECF 15 Ex. 3 ¶2 (“Li-censor acknowledges receipt of satisfactory compensation in consideration of and full payment for the License.”). AXA also notes that the Agreement has an Integration Clause that forbids modifications except those in writing. ECF 15 Ex. 3 ¶ 7. AXA argues that, based on these provisions, Mooney has already received full compensation and any assertion that Mooney’s consideration involves ongoing payments is contradicted by the plain language of the agreement. Again citing N.Y. Gen. Oblig. Law § 15-301(1), AXA further contends that any allegations made by Mooney about an ongoing compensation *506structure constitute inadmissible parol evidence.
Mooney responds by noting that parol evidence is appropriate in this context because the terms “consideration received” and “compensation” are not defined or described in the agreement. Because these terms are undefined, Mooney argues that he is entitled to introduce evidence to explain what the consideration was. He asserts extrinsic evidence explaining the nature of undisclosed consideration is not barred by New York law and does not violate the parol evidence rule.
B. Discussion
Mooney’s trademark contract claim implicates another facet of the parol evidence rule. “[W]hile the parol evidence rule requires exclusion of evidence of conversations, negotiations and agreements made prior to or contemporaneous with the execution of a written [agreement] which may tend to vary or contradict its terms, such proof is generally admissible to explain ambiguities therein.” 67 Wall St. Co. v. Franklin Nat. Bank, 37 N.Y.2d 245, 248^9, 371 N.Y.S.2d 915, 333 N.E.2d 184 (1975) (citations omitted). This is not an exception to the parol evidence rule; it is but a clarification of what the rule prohibits:
Evidence to explain an ambiguity, establish a custom, or show the meaning of technical terms, and the like, is not regarded as an exception to the general rule, because it does not contradict or vary the written instrument, but simply places the court in the position of the parties when they made the contract, and enables it to appreciate the force of the words they used in reducing it to writing. It is received where doubt arises upon the face of the instrument as to its meaning, not to enable the court to hear what the parties said, but to enable it to understand what they wrote as they understood it at the time.
Murdock v. Gould, 193 N.Y. 369, 375, 86 N.E. 12 (1908) (internal quotation marks and citation omitted); see also Brewster v. Silence, 8 N.Y. 207, 213 (1853) (“[P]arole evidence can not [sic] be received to contradict, vary or add to an instrument in writing, but only to explain it in case of ambiguity”).
Here, Mooney’s allegations regarding his compensation structure under the Trademark Licensing Agreement do not constitute inadmissible parol evidence because they do not vary, add, or contradict the terms in the Agreement. To the contrary, his allegations about his compensation merely help to explain the ambiguous terms “consideration received” and “compensation.” See Ehrlich v. Am. Mon-inger Greenhouse Mfg. Corp., 26 N.Y.2d 255, 258, 309 N.Y.S.2d 341, 257 N.E.2d 890 (1970) (noting that the recital of “value received” on a note did not prevent defendants from rebutting the recital because “recitation of receipt of consideration is a mere admission of fact which, like all such admissions, may be explained or disputed by parol evidence” (internal quotation marks and citation omitted)).
AXA offered little by way of contesting Mooney’s allegations under the Trademark Licensing Agreement except to say that the terms of that Agreement are not ambiguous. AXA, of course, offers no clarification as to what “consideration received” or “compensation” means. Although the terms of the Agreement clearly state that Mooney received some consideration, it is ambiguous as to what that consideration was. This scenario is a quintessential example of when parol evidence should be taken.
At oral argument, AXA also argued that Mooney’s allegations about his compensation structure were barred by the parol *507evidence rule because they were inconsistent with an unambiguous term in the Agreement — namely, Mooney’s allegation of an ongoing payment plan is inconsistent with the term that states that consideration had already been delivered to Mooney. This argument fails. The promise to make continued payments can constitute adequate consideration. Thus, Mooney’s alleged receipt of AXA’s promise to make continued payments does not contradict the terms of the agreement.
Accordingly, Count VI states a claim for breach of contract under the Trademark Licensing Agreement.
VII. Defamation14
A. Contentions of the Parties
The Amended Complaint alleges that AXA employees made disparaging comments about Mooney to his clients and that such statements were defamatory per se. ECF 15 ¶ 2 (Count III). In a conversation with one of Mooney’s clients, AXA employees stated that Mooney “only knew about life insurance,” “didn’t know anything about investments,” “hated helping clients with investing their money,” and “invested her in all of the wrong accounts because he didn’t know what he was doing.” ECF 15 ¶ 4 (Count III).
AXA contends that the alleged remarks are not actionable for defamation because they do not constitute false statements, but rather mere opinions. AXA argues that “not knowing” anything about investments and “hating” helping clients are the kinds of loose, figurative, non-actionable statements that are regarded as opinion in Ohio courts. It also argues that the statements are cherry-picked from a lengthier conversation. According to AXA, because purportedly defamatory remarks are evaluated in their larger context, the complaint is deficient for not alleging the entire conversation. Finally, AXA contends that the statements are not actionable under the innocent construction rule and the doctrine of qualified privilege.
B. Discussion
Although all that is typically required to survive a motion to dismiss are allegations sufficient to raise a plausible inference that the plaintiff is entitled to relief, Ohio courts undertake a thorough analysis of defamation claims when considering the sufficiency of the pleadings. See, e.g., Vail v. The Plain Dealer Publishing Co., 72 Ohio St.3d 279, 649 N.E.2d 182, 184 (1995). Accordingly, the Court employs the same analysis as would any Ohio court.
Defamation is defined as a “false publication causing injury to a person’s reputation, or exposing him to public hatred, contempt, ridicule, shame or disgrace, or affecting him adversely in his trade or business.” Sullivan v. Tucci, 69 Ohio App.3d 20, 590 N.E.2d 13, 14 (1990). In order to state a claim under Ohio law, Mooney must allege five elements: “(1) a false and defamatory statement, (2) about plaintiff, (3) published without privilege to a third party, (4) with fault of at least negligence on the part of the defendant, and (5) that was either defamatory per se or caused special harm to the plaintiff.” Gosden v. Louis, 116 Ohio App.3d 195, 687 N.E.2d 481, 488 (1996).
There are two kinds of defamation. “Defamation per se occurs when material is defamatory on its face; defamation per quod occurs when material is defamatory through interpretation or innuendo.” Id. “[I]n order to be found defamatory per se, the statement need[ ] only to tend to injure the plaintiff in his trade or *508occupation.” Williams v. Gannett Satellite Info. Network, Inc., 162 Ohio App.3d 696, 834 N.E.2d 397, 401 (2005) (emphasis in original). Words that are defamatory per se carry a presumption of falsity, damages, and malice, unless published with privilege. Wampler v. Higgins, 93 Ohio St.3d 111, 752 N.E.2d 962, 977 n. 8 (2001). Under Ohio’s innocent construction rule, “if an utterance is reasonably susceptible of both a defamatory and an innocent meaning, as a matter of law, the innocent meaning is to be adopted.” Sweitzer v. Outlet Commc’ns, Inc., 133 Ohio App.3d 102, 726 N.E.2d 1084, 1091 (1999).
A statement is not defamatory if it is a statement of opinion because “expressions of opinion are generally protected under Section 11, Article I of the Ohio Constitution....” Vail, 649 N.E.2d at 184. Whether an alleged defamatory statement is one of fact or opinion is a question of law that may be resolved on a motion to dismiss. Id. (reversing dismissal of defamation complaint for failure to state a claim); see also SPX Corp. v. Doe, 253 F.Supp.2d 974, 978 (N.D.Ohio 2003) (explaining that because the privilege accorded opinions presents a legal question “it is appropriate to decide these issue in the context of a motion pursuant to Rule 12(b)(6)”).
The primary issue in evaluating Mooney’s defamation claim is whether the alleged remarks constitute statements of fact or opinion.15
A court must consider the totality of the circumstances when determining whether a defamatory statement is protected opinion. In answering this question, a court must consider four factors: (1) the specific language used; (2) whether the statement is verifiable; (3) the general context of the statement; and (4) the broader context in which the statement appeared. Scott v. News-Herald, 25 Ohio St.3d 243, 496 N.E.2d 699, 706 (1986). “This analysis is not a bright-line test, but does establish parameters within which each statement or utterance may stand on its own merits rather than be subjected to a mechanistic standard.... Each of the four factors should be addressed, but the weight given to any one will conceivably vary depending on the circumstances presented.” Vail, 649 N.E.2d at 185.
First, the Court must determine the specific language used. When examining the particular words used in the contested statement, a court looks to “the common meaning ascribed to the words by an ordinary reader.” McKimm, 729 N.E.2d at 371. Moreover, the words are to “be read in the context of the whole ..., rather than in isolation.” Rich v. Thompson Newspapers, Inc., 164 Ohio App.3d 477, 842 N.E.2d 1081, 1087 (2005). A reasonable reader is “less likely to infer facts from an indefinite or ambiguous statement than one with a commonly understood meaning.” Wampler, 752 N.E.2d at 978. Accordingly, the inquiry is “whether the allegedly defamatory statement has a precise meaning and thus is likely to give rise to clear factual implications.” Id.
Here, the phrases “only knew about life insurance,” “didn’t know anything about investments,” and “hated helping clients with investing their money” are not ambiguous or susceptible to many meanings. *509Although there is no direct statement that Mooney failed to perform his duties with regard to assisting his clients with their investments, this is the clear import of the specific language used. “Only knew” clearly implies that Mooney knew nothing about anything else. What was implied in that statement is made express in the next — “didn’t know anything about investments.” “Hated helping clients” also unambiguously indicates that Mooney was not interested in executing his duties to his clients. These statements embody a “pejorative implication” that a reasonable listener would perceive “as an assertion that the [plaintiff] failed to perform his duties as an advisor.” Mehta v. Ohio Univ., 958 N.E.2d 598, 609 (Ohio Ct.App.2011); see Scott, 496 N.E.2d at 707 (holding that though there was no express statement that the appellant had committed perjury, the clear impact of the specific language in nine sentences was that the appellant lied while under oath, which weighed in favor of an actionable statement).
The statement “invested her in all of the wrong accounts because he didn’t know what he was doing” is even more indicative of an actionable statement. This is an express, unambiguous statement that Mooney invested the client’s money incorrectly. Both implicitly and expressly, these statements convey a precise meaning — that Mooney was deficient in his job — and thus are likely to give rise to clear factual implications. The specific language factor therefore weighs in favor of regarding these statements as factual in nature.
Second, the Court must determine whether the statements are verifiable— that is, can they be objectively proven or disproven. This analysis turns on whether “the author implies] that he has first-hand knowledge that substantiates the opinion he asserts.” Vail, 649 N.E.2d at 186. If a speaker “represents that he has private, first-hand knowledge which substantiates the opinions he expresses, the expression of the opinion becomes as damaging as an assertion of fact.” Scott, 496 N.E.2d at 707 (internal quotation marks and citation omitted). But where a statement “lacks a plausible method of verification, a reasonable [listener] will not believe that the statement has specific factual content.” Id.
Here, although statements about what Mooney “knows” about investments or whether he liked or “hated” helping clients may or may not be susceptible to a plausible method of verification, whether Mooney invested his client’s assets in “all of the wrong accounts” is plausibly verifiable. AXA argues that what constitutes a “wrong” investment is a highly subjective statement that can vary from person to person. The Court is unpersuaded by this argument. In the realm of investing, where clients provide risk profiles and investment goals, determining whether someone invested assets consistent with those goals or whether they did not— regardless of the actual performance of the accounts — is well within the realm of plausible verification. Or even more simply, the underlying goal of investment is to earn money. If Mooney can show that the accounts in which he invested his client’s funds turned a profit, this at least shows a minimum degree of success. Even if the verifiability of the “wrongness” of Mooney’s investment choices is not patently obvious and thus suggests some form of opinion, the speaker of this statement— being an AXA representative familiar with the client’s accounts and Mooney’s handling of them — implicitly represented that he had “first-hand knowledge which substantiates the opinions he expresses.” Id. This is sufficient to conclude that the second factor weighs in Mooney’s favor.
*510Third, the court must next determine the general context in which the statements appear. This factor requires examination of “the immediate context” of the allegedly defamatory remarks. Wampler, 752 N.E.2d at 980. The language “surrounding the averred defamatory remarks may place the reasonable [listener] on notice that what is being [said] is the opinion of the [speaker].” Id.
Because Mooney has not pled the entire conversation between the AXA representatives and his client, the third factor affords very little guidance in the Court’s inquiry. That being said, the statements that Mooney did plead — though not necessarily all verifiable — do suggest a general context of disparagement. Namely, the thrust of these statements appears to be that Mooney was bad at his job and that his client should allow AXA to repair the damage he had done. Given that all reasonable inferences must be drawn in favor of the plaintiff on a motion to dismiss, this factor weighs, albeit slightly given the paucity of context, in favor of Mooney.
Finally, the Court must consider the broader context of the statements. This factor examines whether, by custom or convention, the particular setting in which the statements occurred signals to the listener that what is being heard is likely to be opinion, not fact. Scott, 496 N.E.2d at 708. For example, a letter to the editor in a newspaper or commentary from a newspaper columnist signals to a reader that the content is meant to be a persuasive statement of the writer’s opinion. Rich, 842 N.E.2d at 1088.
This factor weighs in Mooney’s favor. Based on the allegations in the complaint, it appears that the statements took place in a private meeting between a potential client and AXA representatives. In this type of professional setting, it is reasonable to infer that these AXA representatives would not conduct this meeting without first reviewing the investments made by Mooney, the circumstances surrounding those investments, and the investment preferences of the client, so that they could most effectively pitch AXA’s services to her. This is not the type of context where a reasonable listener would expect to encounter loose, hyperbolic statements. And even if a reasonable listener might expect to encounter statements phrased in the form of opinion, the listener would expect that these opinions would be supported by first-hand, factual knowledge. Because the Court is required to draw all reasonable inferences in Mooney’s favor, the fourth factor suggests that the broader context of the meeting is one in which a reasonable listener would expect to hear factual statements rather than opinions.
Accordingly, under the totality of the circumstances, the Court concludes that Mooney has sufficiently pled statements that are defamatory per se.
However, even if these statements are defamatory per se, they are not actionable if they were communicated under a qualified privilege.16 DeAngelo v. W.T. Grant Co., 111 N.E.2d 773, 776 (Ohio Ct.App.1952). The essential elements of a qualified privilege are “good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only.” Hahn v. Kotten, 43 Ohio St.2d 237, 331 N.E.2d 713, 719 (1975). If the communication is privileged, the plaintiff may not recover unless he demonstrates that the defendant made the *511statement with “actual malice, such as ill will, spite, grudge or some ulterior motive.” DeAngelo, 111 N.E.2d at 776.
The Court need not examine whether the allegations in the complaint meet all the elements necessary to establish a qualified privilege. Mooney has sufficiently pled that the statements were made with actual malice. See ECF 15 ¶ 3 (Count III) (alleging that the President of AXA’s American Division said that Mooney would “feel pain” for resigning and alleging that AXA then took steps to discredit Mooney in the eyes of his clients). A factual allegation suggesting actual malice is all that is required at this stage to defeat an assertion of qualified privilege. Absent the elements of qualified privilege appearing on the face of the complaint, “defendants may not establish the existence of an affirmative defense by a motion to dismiss under Civ.R. 12(B)(6).” Bell, 669 N.E.2d at 550.
Accordingly, the Amended Complaint states a claim for defamation per se.17
VII. Conclusion
For the foregoing reasons, Counts I and II fail to plead an antitrust violation. Because (1) the deficiencies in the Amended Complaint are nearly identical to those in the Original Complaint; (2) the nature of the insurance industry precludes Plaintiff from plausibly asserting any antitrust claim on his facts; and (3) Plaintiff has not requested leave to amend, the Court does not believe that an additional opportunity to replead these counts would cure the deficiencies. Counts I and II are therefore dismissed with prejudice. Counts III-VI, however, state a claim and will proceed. Therefore, AXA’s Motion to Dismiss the Amended Complaint will be GRANTED IN PART, as to Counts I and II, and DENIED IN PART, as to Counts III-VI.
An appropriate order follows.
. Defendants are AXA Advisors, LLC; AXA Network, LLC; AXA Equitable Life Insurance Company; AXA Distributors, LLC; AXA Distributors Insurance Agency, LLC; and AXA Distributors Insurance Agency of Massachusetts, LLC (collectively, Defendants or AXA)
. These factual allegations are taken from the Amended Complaint. ECF 15. They are presumed true for the purpose of adjudicating AXA’s motion. Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir.1993).
. The Representative Agreement does not have a twelve-year vesting requirement. See ECF 15 Ex. 2.
. The New York Court of Appeals has held that the Donnelly Act was modelled on the Sherman Act and should generally be construed in light of federal precedent. X.L.O. Concrete Corp. v. Rivergate Corp., 83 N.Y.2d 513, 518, 611 N.Y.S.2d 786, 634 N.E.2d 158 (1994).
. The Court refers to Mooney's characterization of the relevant labor market as “AXA-affiliated employees” or "AXA-affiliated agents.”
. As discussed infra, Bogan offers no support for, such a proposition.
. Plaintiff has alleged a written agreement between Leaders and AXA that delineates the alleged unreasonable restraint raised in the Amended Complaint. This is sufficient to satisfy the concerted action element of Plaintiff's § 1 claim.
. Mooney has alleged that AXA sells insurance across the United States. ECF 15 ¶ 5 (Preliminary Facts). This is sufficient to plead a relevant geographic market. The Court's inquiry centers on the allegations surrounding the relevant product market.
. Although E.I. du Pont concerned a § 2 monopolization claim, the concerns expressed in the opinion about single-brand markets have been cited widely in cases with § 1 claims. See, e.g., Mathias v. Daily News, L.P., 152 F.Supp.2d 465, 482 (S.D.N.Y.2001).
. Counts IV, V, and VI are governed by New York law.
. Unlike the Associate Agreement, the Representative Agreement does not expressly state when commissions will vest in Mooney; rather, it only provides that commissions may be paid according to schedules and rules that AXA Advisors may publish from time to time. ECF 15 Ex. 2, § III. Mooney, however, alleges that he was entitled to vested commissions from AXA Advisors under the Representative Agreement. Such commissions, he alleges, were contingent on his "credited” period of continuous service and that he received those commissions while working for AXA. ECF 15 ¶¶ 10, 22 (Preliminary Facts).
. Mooney does not expressly allege when AXA started paying him vested commissions. Ostensibly, his vested commission payments would have started in 2006. See ECF 15 ¶ 5 (Count IV) (alleging being credited eighteen years of continuous service at the time of his resignation in 2012 — which suggests Mooney had twelve years of credited service in 2006). Even though this allegation is not expressly made, reading the complaint in the light most favorable to Mooney — which the Court must do in this procedural posture — the complaint implicitly alleges that AXA was paying him these commissions from 2006 to 2012 and that the commissions stopped once he left AXA’s employment.
.The Representative Agreement does not contain an Integration Clause. See ECF 15 Ex. 2.
. Count III is governed by Ohio law, by agreement of the parties.
. At the outset, AXA’s invocation of the innocent construction rule is unpersuasive. If the alleged statements are found to be factual and communicated outside a privilege, they unambiguously disparage Mooney and would tend to injure his trade or occupation. See McKimm v. Ohio Elections Comm’n, 89 Ohio St.3d 139, 729 N.E.2d 364, 373 (2000) (explaining that the "innocent-construction rule” only applies to statements that "are reasonably susceptible to an innocent construction” (emphasis in original)).
. Although qualified privilege is in the nature of an affirmative defense, on a motion to dismiss, Ohio courts look to see if the requirements of the privilege exist on the face of the complaint. See Bell v. Horton, 107 Ohio App.3d 824, 669 N.E.2d 546, 550 (1995).
. In a letter to the Court, ECF 30, AXA directed the Court’s attention to a recent case published in the Appellate Division of the New York Supreme Court. See Frechtman v. Gutterman, 115 A.D.3d 102, 979 N.Y.S.2d 58 (2014). Aside from the fact that Ohio law governs the disposition of this claim, the opinion in Frechtman does not add anything to the points of law already discussed. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224332/ | DECISION AND ORDER
VICTOR MARRERO, District Judge.
In a four-count Superseding Indictment dated October 31, 2013 (the “Indictment”), *514a grand jury charged defendant Natalia Ivanova (“Ivanova”) with conspiring to commit marriage fraud, in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1325(c); conspiring to commit visa, permit and document fraud, in violation of 18 U.S.C. § 371 and 18 U.S.C. § 1546(a); conspiring to transport, harbor and encourage the residence of aliens, in violation of 8 U.S.C. § 1324(a)(l)(A)(v)(I); and aggravated identity theft, in violation of 18 U.S.C. § 1028A. (Dkt. No. 297.) Trial is scheduled to begin on May 12, 2014.
On April 14, 2014, the Government filed motions in limine requesting that the Court declare certain evidence admissible at trial. (Dkt. No. 386.) Specifically, the Government intends to introduce evidence concerning (1) fake marriages Ivanova allegedly arranged as part of the charged conspiracies other than the 43 marriages previously identified in discovery; (2) items seized from a search of Ivanova’s home, which the Government alleges were used in furtherance of the conspiracy; (3) Ivanova’s alleged post-arrest attempts to tamper with witnesses; and (4) Ivanova’s own allegedly fake marriage. By letter dated April 25, 2014, Ivanova opposes the motion in part. (Dkt. No. 3 97.)
For the reasons discussed below, the Government’s motions in limine are GRANTED.
I. LEGAL STANDARD
Rule 404(b) of the Federal Rules of Evidence (“Rule 404(b)”) provides that evidence of prior bad acts “may” be admissible to establish “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” The Second Circuit “follows the ‘inclusionary’ approach to ‘other crimes, wrongs, or acts’ evidence, under which such evidence is admissible unless it is introduced for the sole purpose of showing the defendant’s bad character, or unless it is overly prejudicial under [Federal Rule of Evidence] 403 or not relevant under [Federal Rule of Evidence] 402.” United States v. Carlton, 534 F.3d 97, 101 (2d Cir.2008) (citation omitted).
To determine whether Rule 404(b) permits or forbids the exclusion of certain evidence, a court must first determine whether the evidence concerns bad acts other than the charged crimes. Evidence of uncharged conduct is not considered “ ‘other crimes’ ” evidence, and therefore not subject to Rule 404(b) analysis, “if it ‘arose out of the same transaction or series of transactions as the charged offense, if it [is] inextricably intertwined with the evidence regarding the charged offense, or if it is necessary to complete the story of the crime [on] trial.’ ” United States v. Towne, 870 F.2d 880, 886 (2d Cir.1989) (alterations in original) (quoting United States v. Weeks, 716 F.2d 830, 832 (11th Cir.1983)). This type of evidence need not “directly establish an element of the offense charged”; rather, it can “provide background” for the alleged events, and may be admitted to show “the circumstances surrounding the events or to furnish an explanation of the understanding or intent with which certain acts were performed.” United States v. Coonan, 938 F.2d 1553, 1561 (2d Cir.1991) (citation omitted).
If the evidence at issue is prior bad act evidence, the court must conduct a Rule 404(b) analysis. “Evidence may be introduced under Rule 404(b) if (1) it is introduced for a proper purpose, (2) it is relevant to the charged offense, (3) its prejudicial effect does not substantially outweigh its probative value, and (4) it is admitted with a limiting instruction if requested.” United States v. Rutkoske, 506 F.3d 170, 176-77 (2d Cir.2007). A district *515court enjoys “broad discretion” in determining whether to admit evidence pursuant to Rule 404(b). Berkovich v. Hicks, 922 F.2d 1018, 1022 (2d Cir.1991) (internal quotation marks omitted).
II. DISCUSSION
As described above, the Government seeks to introduce four categories of evidence. The Court considers each category of evidence in turn.
A. PREVIOUSLY UNDISCLOSED FAKE MARRIAGES
The Government has previously disclosed to defense counsel a list of 43 allegedly fake marriages that Ivanova helped to arrange as part of the charged conspiracies. At trial, the Government plans to introduce evidence about other allegedly fake marriages that Ivanova arranged in furtherance of the conspiracies.
The Court is persuaded that evidence of these additional marriages is admissible as direct evidence of the charges. Because the evidence consists of actions “done in furtherance of the alleged conspiracies],” the actions are not “‘other’ act[s] within the meaning of Rule 404(b).” United States v. Concepcion, 983 F.2d 369, 392 (2d Cir.1992). This direct evidence also helps explain the relationships and interactions among various eoconspirators in this case. See United States v. Mercado, 573 F.3d 138, 141 (2d Cir.2009) (affirming admission of evidence that explained development of relationship between co-conspirators).
Ivanova seeks to preclude the Government from using evidence of any fraudulent marriages that are not part of the charged conspiracies. But the evidence that the Government seeks to introduce relates only to marriages that are part of the charged conspiracies. Should the Government seek to introduce evidence of fraudulent marriages that are not part of the charged conspiracies, the Court will consider their admissibility at that time.
Finally, the Court will not at this time exclude evidence of fraudulent marriages insofar as Ivanova argues that introduction of such material would cause “undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R.Evid. 403. However, the Court is mindful of these potential pitfalls, and Government is cautioned to avoid them in the course of the trial. The Government has provided the Court with a list of 17 witnesses whom it intends to call at trial. It appears from their proffered testimony that many of these witnesses will testify about the same, or substantially similar, events. To the extent that the probative value of any witness’s testimony “is substantially outweighed by a danger of’ presenting cumulative or wasteful evidence, id., the Court will limit the testimony accordingly.
B. ITEMS FROM IVANOVA’S HOME
Law enforcement, with Ivanova’s consent, seized evidence from her home at the time she was arrested. Ivanova previously moved to suppress this evidence, claiming that she invoked her right to counsel before consenting to the search. After a hearing, the Court denied the motion. (Dkt. No. 269.) The Government now seeks to enter the fruits of that search as evidence of the charged crimes.
Ivanova does not specifically object to the use of any of the evidence seized from her home. The Government proffers that much of the evidence was used in furtherance of the frauds charged in the Indictment. If the Government sufficiently connects the evidence collected to the charged crimes, then it is admissible as the “tools of the trade” of the crimes. See United States v. Mitchell, 328 F.3d 77, 83 *516(2d Cir.2003) (upholding admission of evidence of firearms as “tools of the trade” of drug conspiracy).
Ivanova asks the Court to admit this evidence only if the Government specifically identifies which of the items seized from Ivanova’s home were used in connection ■with the charged crimes. She offers no authority to support this request for particulars. The Court is not persuaded that such particulars are necessary for Ivanova to prepare her defense. See United States v. Salazar, 485 F.2d 1272, 1277-78 (2d Cir.1973). Nonetheless, to the extent the Government may be able to facilitate and expedite the trial by providing additional particulars to Ivanova without jeopardizing its presentation of its direct case, it may serve efficiency for it to consider doing so.
C. CONSCIOUSNESS OF GUILT
The Government seeks to introduce evidence that Ivanova tampered with witnesses as relevant toward her consciousness of guilt. Evidence of consciousness of guilt is generally admissible. See United States v. Perez, 387 F.3d 201, 209 (2d Cir.2004). Ivanova does not object to the admission of such evidence. Should Ivanova request a limiting instruction, the Court will provide one. See id.
D. IVANOVA’S FAKE MARRIAGE
The Government proffers that Ivanova entered into her own fake marriage in 1998. According to the Government, Ivanova submitted fraudulent paperwork to the immigration authorities in connection with her own marriage, similar to the fraudulent paperwork she allegedly aided others to submit in furtherance of the charged crimes. Thus, the Government contends that evidence of Ivanova’s fake marriage is admissible under Rule 404(b) to show intent, knowledge, identity, and absence of mistake. Ivanova argues in response that evidence of her marriage is inadmissible because it goes only to show her propensity to commit marriage fraud and that its unfairly prejudicial effect substantially outweighs any probative value it might have.
“Where a defendant’s intent or knowledge is clearly at issue, evidence of prior acts may be admissible to prove intent or knowledge.” United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir.1992). Thus, where knowledge or intent is an element that the government must prove at trial, evidence of the defendant’s involvement in prior similar acts are admissible to prove such knowledge or intent. Id.; see also United States v. Zackson, 12 F.3d 1178, 1182 (2d Cir.1993) (“Where a defendant claims that his conduct has an innocent explanation, prior act evidence is generally admissible to prove that the defendant acted with the state of mind necessary to commit the offense charged.”).
Prior similar criminal acts are also admissible to prove identity where the defendant operated through a “common mo-dus operandi.” United States v. Carlton, 534 F.3d 97, 101-02 (2d Cir.2008). “For the prior similar acts to be probative of identity there must be ‘a high degree of similarity ... [leading] to the logical inference, by virtue of the combination of common features, that a common plan or design was at the basis for all the [criminal acts] and hence that it was the [defendant] who committed this [criminal act].’ ” United States v. Neary, 733 F.2d 210, 216 (2d Cir.1984) (alterations in original) (quoting United States v. Danzey, 594 F.2d 905, 913 (2d Cir.1979)).
However, prior act evidence of this kind must be relevant to an issue that is actually in dispute. See Pitre, 960 F.2d at 1119. If the defendant offers a “statement to the court of sufficient clarity to *517indicate that the issue will not be disputed,” then the Government cannot introduce prior act evidence on that issue. Id. (quoting United States v. Colon, 880 F.2d 650, 659 (2d Cir.1989)); see also United States v. Ortiz, 857 F.2d 900, 904 (2d Cir.1988) (where defendant’s unequivocal defense is that he did not commit the charged acts, “intent is not placed in issue” and thus “evidence of other acts is not admissible for the purpose of proving intent”).
The Court is persuaded that Ivanova’s own fraudulent marriage is relevant to the issues of intent, knowledge, identity, and absence of mistake. At trial, the Government will have to prove that Ivanova knowingly and intentionally conspired to assist others in entering fraudulent marriages. See United States v. Pinckney, 85 F.3d 4, 8 (2d Cir.1996) (identifying one element of conspiracy as “specific intent to achieve the objective of the conspiracy”). That Ivanova herself participated in a fraudulent marriage is probative of her knowledge of how to submit the necessary fraudulent paperwork and that her work to assist others in obtaining their own fake marriages was no innocent mistake. Moreover, the methods Ivanova used to obtain her own fraudulent marriage, which the Government asserts are substantially similar to the methods she used to help others obtain fraudulent marriages, are proof of modus operandi that is probative of her identity.
Ivanova vaguely asserts that she will not contest issues of intent, knowledge, or absence of mistake. However, absent a more clear understanding of the theory of defense, the Court is not persuaded at this time that Ivanova has removed those issues from dispute. Moreover, Ivanova does not purport to remove the issue of identity from dispute. Indeed, if Ivanova failed to dispute all of these issues, it is difficult to understand what relevant or legally grounded theory of defense could remain open to her.
Finally, in light of the probative value evidence of Ivanova’s fraudulent marriage has regarding issues of intent, knowledge, identity, and lack of mistake, the Court is not persuaded that such probative value “is substantially outweighed by” any unfair prejudice that might result. See Fed.R.Evid. 403. Thus, at this time, the Court grants the Government’s motion to admit evidence of Ivanova’s own fake marriage.
Finally, the Court notes that it will consider giving an appropriate limiting instruction as to this matter if Ivanova requests one. See Rutkoske, 506 F.3d at 177.1
III. ORDER
For the reasons discussed above, it is hereby
ORDERED that the Government’s motions in limine (Dkt. No. 386) are GRANTED.
SO ORDERED.
. In a passing reference, Ivanova requests a six-month adjournment to review recently produced discovery. The Court is not persuaded that an adjournment is necessary. This case has been pending for over two years, and the current trial date was set after defense counsel requested a six-month adjournment from the previous trial date. Moreover, the Government represents that it will identify what files in the recently produced discovery it will seek to introduce at trial. Ivanova's request for an adjournment is therefore denied. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224333/ | MEMORANDUM OPINION & ORDER
PAUL G. GARDEPHE, District Judge:
Defendant Robert Medina is charged with (1) conspiring to distribute, and to possess with intent to distribute, 280 grams or more of crack cocaine, and marijuana, in violation of 21 U.S.C. § 846; (2) using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and (3) on July 28, 2012, using and carrying a firearm in connection with a drug trafficking crime, and causing the death of a person through use of a firearm, in violation of 18 U.S.C. § 924(j). (S3 Indictment (Dkt. No. 111)).
On July 1, 2013, Medina moved to suppress evidence “of his arrest, identification, and purported [post-arrest] statements” made to members of the New York City Police Department (“NYPD”) on July 28, 2012, claiming that police officers had violated his rights under the Fourth, Fifth, and Fourteenth Amendments. (Dkt. No. 11; Nov. 16, 2013 Def. Br. (Dkt. No. 43) at 1) For the reasons stated below, Medina’s motion to suppress will be denied.
BACKGROUND
Medina’s arrest arose from the NYPD’s investigation of two shootings in the Bronx on July 28, 2012. (Hearing Tr. 16, 142) The first shooting took place at about 1:00 a.m. near 222nd Street and White Plains Road, and resulted in a non-fatal injury to a bystander outside Scotty Pump Ups Tav*524ern (“Scotty’s”). (Hearing Tr. 142) The second shooting took place at about 5:00 a.m. near 228th Street and White Plains Road, and caused the death of Gary Clark. (Hearing Tr. 16,18,196).
I. MEDINA’S AFFIDAVIT
In an affidavit submitted in support of his motion to suppress, Medina states that he was inside his girlfriend’s apartment— Apt. 1A, 721 East 228th Street — on the morning of July 28, 2012.1 (July 1, 2013 Rody Decl. (Dkt. No. 12), Ex. A (“Medina Aff.”) ¶¶ 2, 4) At approximately 9:30 a.m., he awoke to hear police officers pounding on the door. (Id. ¶ 4) After Medina’s girlfriend unlocked the door, officers pushed it open and entered. (Id. ¶¶ 4, 5).
Once inside, officers ordered Medina to get out of bed, grabbed him by the arm, and pulled him into the hallway. (Id. ¶ 5) An officer then took Medina down the hall to a stairwell, instructed him to sit, and questioned him about a shooting. (Id. ¶¶5, 6) Medina was not given Miranda warnings. (Id. ¶ 6) At one point during the interview, Medina asked to return to the apartment; his request was denied. (Id.) Medina does not aver how long he was questioned, but ten minutes after the questioning ended, he was allowed to return to the apartment and the officers left. (Id. ¶ 7) Medina went back to sleep. (Id. ¶ 8).
About two hours later, officers returned to the Apartment 1 A, pounded on the door, identified themselves as “NYPD,” and shouted for the occupants to “open the door, now.” (Id. ¶ 9) They also warned that they did not “want to have to kick the door down,” and that they had “people at the windows.” (Id.).
When Medina opened the door, he saw several officers with their guns drawn “but not pointed at [him].” (Id. ¶ 10) An officer then entered the apartment, grabbed Medina, pulled him into the hallway, and pushed him up against a wall, where he was frisked and handcuffed. (Id.) Medina claims that he told the officers that he wanted to speak to a lawyer. (Id. ¶ 11) Detective Mullarkey responded, ‘You watch too much TV.” (Id.) Medina was not given Miranda warnings. (Id. ¶ 12).
Medina was then transported to the 47th Precinct. (Id.) Medina claims that he told another detective that he wanted a lawyer, but that detective told him that they would “talk about that later.” (Id. ¶ 13) Medina was then placed in an interview room. (Id.) He was not given Miranda warnings. (Id.).
Medina states that he remained in the interview room for “many hours.” (Id. ¶ 14) Officers occasionally entered the room during that time. (Id.) After Medina complained that he was cold — because of the air conditioning and his wet clothing— he was given an NYPD raincoat. (Id.) Medina repeatedly asked whether he was free to leave; officers told Medina that he could not leave, and that he would have to speak with the arresting officer. (Id.).
After approximately eight hours, Detective Crisfield, Detective Mullarkey, and a third detectives entered the interview room and introduced themselves. (Id. ¶ 15) Medina asked why he had been arrested and was told, “You know what for.” (Id.) Medina then asked if he could go home, and Detective Mullarkey replied “in substance” that “[i]f you say the right things you can go home tonight.” (Id.) The officers then questioned him for about an hour without giving him Miranda *525warnings. (Id.) They provided Medina with Chinese food and cigarettes during this interview. (Id.) Medina does not allege what was discussed during this interview. (Id.).
After the interview, Detective Crisfield told Medina that he could not “use” any of the interview because Medina had not been read his Miranda rights. (Id. ¶ 16) Crisfield stated that he would read Miranda warnings to Medina and that Medina should then sign a form acknowledging that he had been read his rights.2 (Id.).
Medina signed the Miranda form but “refused to acknowledge item ‘5.’ ”3 (Id. ¶ 17) After Medina signed the Miranda form, the detectives did not repeat any of the questions asked previously, but instead asked Medina whether he recognized a particular phone number and whether he recognized a man in a photograph. (Id. ¶ 18) Medina was then taken to a cell. (Id. ¶ 19).
II. SUPPRESSION HEARING TESTIMONY
The Court conducted a hearing concerning Medina’s suppression motion on August 20, 2013, August 21, 2013,' and October 25, 2013. NYPD Lieutenant John Fitzpatrick and Detectives Craig Crisfield, Robert Regnier, Gregory Mullarkey, and Steven Smith testified. Medina did not testify or call any witnesses.
As noted above, Medina’s arrest was the product of the NYPD’s investigation of (1) a shooting at about 1:00 a.m. on July 28, 2012, near 222nd Street and White Plains Road, which resulted in a non-fatal injury to a bystander outside Scotty’s; and (2) a shooting at about 5:00 a.m. that same day near 228th Street and White Plains Road that caused the death of Gary Clark. (Hearing Tr. 16, 18, 142, 196) Detective Crisfield was the lead detective for the shooting outside Scotty’s. (Hearing Tr. 142) Detective Mullarkey was the lead detective for the Clark homicide, and was assisted by Detectives Smith and Regnier. (Hearing Tr. 55-56, 142, 268-69, 288-89, 365-67) Lieutenant Fitzpatrick supervised the investigation of both shootings. (Hearing Tr. 15-17, 55-56).
Fitzpatrick, Crisfield and other NYPD officers who arrived at the scene of the Clark homicide on the morning of July 28, 2012 observed a bullet-ridden red Cadillac and blood on the ground across the street from an apartment building located at 721 East 228th Street. (Hearing Tr. 30-31, 144) The officers learned that Clark had driven the red Cadillac to this location shortly before his death. (Hearing Tr. 30-31).
Lieutenant Fitzpatrick and other NYPD officers who reported to the scene of the Clark homicide that morning reviewed video footage shot on two nearby security cameras. (Hearing Tr. 23-24) The cameras were trained on an apartment building located at 721 East 228th Street. (Hearing Tr. 23-24) Shortly before Clark was shot, the videotape showed several men milling about in front of the building. (GX 5; Hearing Tr. 19, 368) At the entrance to an alleyway next to the building, one man approached another, and they appeared to speak briefly. (GX 5; Hearing Tr. 19, 368, 372) The first man then *526walked away, while the other walked into the alley, bent down, and retrieved a long firearm that appears to be a shotgun or rifle. (GX 5; Hearing Tr. 19) That man then returned to East 228th Street, pointed the weapon across the street, and fired approximately three times in the vicinity of where Clark’s body was found. (GX 5; Hearing Tr. 19, 27, 373) After the shooting, several men who had been standing in front of the building — including the shooter — ran into 721 East 228th Street. (Hearing Tr. 368, 376-77) One of the detectives who reviewed the videotape — Detective Bonacardi — recognized Defendant Ruben Estrada as the shooter. (Hearing Tr. 57-58).
After watching the videotape, Lieutenant Fitzpatrick directed other police officers to canvass buildings in the area. (Hearing Tr. 30-33) Detectives Crisfield and Mullarkey canvassed 721 East 228 Street at about 9:30 a.m. (Hearing Tr. 146, 293).
When Crisfield knocked on the door to Apartment 1A at 721 East 228th Street, a woman answered the door and told Cris-field that she and her boyfriend — Defendant Medina — were in the apartment, but that neither had seen or. heard anything related to the shooting the night before. (Hearing Tr. 147-50) Crisfield did not speak with Medina at that time; his girlfriend reported that he was sleeping. (Hearing Tr. 150).
While the canvass was taking place, Lieutenant Fitzpatrick examined Clark’s vehicle, the bullet-ridden red Cadillac. (Hearing Tr. 30-31) Bullet holes on the passenger side of the car “looked like they were going from the back towards the front of the car.” (Hearing Tr. 31).
Soon after, an NYPD detective participating in the canvass told Lieutenant Fitzpatrick that a resident of 721 East 228th' Street had suggested that officers “check Apartment 1 A.” (Hearing Tr. 32) Fitzpatrick and Detectives Crisfield, Regnier, Mullarkey, and Smith then returned to that building and searched the stairways, common areas, and roof for evidence of the shooter or the firearm depicted in the video footage. (Hearing Tr. 32-33, 150-51, 198, 270, 294, 378) The search yielded nothing. (Hearing Tr. 33).
At some point between 10:00 a.m. and 11:00 a.m., Fitzpatrick and the detectives knocked on the door of Apartment 1A. Medina’s girlfriend opened the door. (Hearing Tr. 34, 65, 71-72, 151) The detectives asked if they could enter and talk with her about the shooting the night before, and she agreed. (Hearing Tr. 34) Once inside the apartment, the detectives found Medina in bed. He was instructed to step outside the apartment. (Hearing Tr. 34-35, 72-73,153-54).
As Medina left the apartment, Fitzpatrick noticed that he was limping, and he asked Medina to identify himself. (Hearing Tr. 35, 75) When Fitzpatrick heard Medina’s name, he recalled that Medina had been shot earlier that summer outside Scotty Pump Ups Tavern, a bar located at 222nd Street and White Plains Road. The police had interviewed Medina at that time. (Hearing Tr. 35, 75) Fitzpatrick believed that the earlier shooting of Medina outside Scotty’s might be related to the non-fatal shooting outside Scotty’s that morning. (Hearing Tr. 35-36) Fitzpatrick told one of the investigating detectives about the earlier shooting of Medina outside Scotty’s, and told that detective to keep this incident in mind when questioning Medina.4 (Hearing Tr. 75-76).
*527Lieutenant Fitzpatrick directed Medina down the hall to Detectives Smith and Crisfield, who were standing near a stairwell. Detective Regnier then questioned Medina’s girlfriend. (Hearing Tr. 36, 381).
Detectives Crisfield and Smith questioned Medina for less than fifteen minutes as he sat on the staircase. (Hearing Tr. 156, 158, 201, 381-83) Medina was not restrained or handcuffed, and according to Smith and Fitzpatrick, Medina was free to leave at any time.5 (Hearing Tr. 77, 381— 83) The detectives did not administer Miranda warnings to Medina. (Hearing Tr. 405).
Crisfield told Medina that he had been at Apartment 1A earlier that morning, but that he and the other detectives had returned to investigate new information suggesting that Medina “might have been involved” in the shooting outside 721 East 228th Street. (Hearing Tr. 156,201) Smith obtained pedigree information from Medina, and then asked whether Medina had seen or heard anything about “what happened.” (Hearing Tr. 381-82) Medina said that he had been “smoking weed” in the lobby and had not seen anything. (Hearing Tr. 383) Medina then lowered his voice, however, and told Smith to check the security cameras outside the building. (Hearing Tr. 383) Medina told Smith that the cameras would “tell you everything you want to know.” (Hearing Tr. 383) During this conversation, Medina volunteered that he had been shot previously. (Hearing Tr. 404) Smith’s conversation with Medina at the stairwell lasted about ten minutes and was amicable throughout. (Hearing Tr. 383) After the detectives finished questioning Medina’s girlfriend, Medina was permitted to return to. the apartment and detectives left. (Hearing Tr. 384).
Between noon and 1:00 p.m., Lieutenant Fitzpatrick spoke by telephone with a confidential informant (“Cl”) who stated that he had witnessed a shooting in front of Scotty’s tavern that morning.6 (Hearing Tr. 39-40) The Cl said that he had been standing in front of Scotty’s when he saw a man known to him as “Pops” running up the street and shooting at a red Cadillac as it drove by. (Hearing Tr. 40, 104) The Cl identified Pops . as the “same guy [who was] shot in front of Scotty’s ... earlier this summer.” (Hearing Tr. 41) The Cl stated that Defendant Estrada was with Pops but was not holding a gun. (Hearing Tr. 131).
The Cl told Fitzpatrick that Pops had been on the east side of the street, in front of Scotty’s, and fired shots at the passenger side of the red Cadillac as it drove northbound. (Hearing Tr. 40) The Cl’s description was consistent with Fitzpatrick’s observations of the red Cadillac at the scene of the Clark homicide. (Hearing Tr. 40) The Cl also told Fitzpatrick that Pops had been shooting a .45 caliber semi-automatic handgun, and had hit a bystander down the street from Scotty’s while shooting at the red Cadillac. (Hearing Tr. 40, 87) The Cl’s account was likewise consistent with other information *528Fitzpatrick had obtained indicating that the bystander had been shot after leaving a restaurant about a half a block away from Scotty’s. (Hearing Tr. 40).
After speaking with the Cl, Fitzpatrick believed that Medina was responsible for the shooting outside Scotty’s. (Hearing Tr. 41) The Cl agreed to come to the station house later that day to confirm the identity of “Pops.” (Hearing Tr. 42)
In the early afternoon — before the Cl had identified Medina’s photograph — Fitzpatrick decided that Medina should be arrested. (Hearing Tr. 42) Fitzpatrick believed that “time was of the essence,” given “the amount of violence going on and with what [the police had] put tor gether.” (Hearing Tr. 42) Accordingly, he authorized the arrest of Medina even before the Cl had viewed a photograph of Medina and confirmed that Medina was “Pops.” (Hearing Tr. 42, 107).
Between 2:00 and 3:00 p.m., Lieutenant Fitzpatrick and approximately seven or eight detectives — including Crisfield, Reg-nier, and Mullarkey — returned to Apartment 1A to arrest Medina. (Hearing Tr. 45-46, 160-61, 273-74, 300) Four or five officers (including Fitzpatrick) stationed themselves at the front door of the apartment, and at least two were outside the windows of the ground-level apartment. (Hearing Tr. Ill, 115, 161, 301) The officers pounded on the door, saying “open up” and stating that they were looking for Medina. (Hearing Tr. 45-46, 111, 301) Fitzpatrick had his gun in his hand, but could not recall whether other officers had their guns drawn. (Hearing Tr. 46) Reg-nier did not recall that any officer had his gun drawn. (Hearing Tr. 285-86) Mullar-key stated that he might have had his gun drawn, but he could not recall whether any other officer had drawn his weapon.7 (Hearing Tr. 331).
According to Fitzpatrick and Mullarkey, Medina answered the door, stepped out into the hallway, and was fully compliant. (Hearing Tr. 46, 113-14, 302) Medina was handcuffed in the hallway and placed under arrest. (Hearing Tr. 113, 302) He was not given Miranda warnings (Hearing Tr. 115, 215, 286-87, 302-03), and — according to Fitzpatrick, Regnier, and Mullarkey— did not ask for a lawyer at that time. (Hearing Tr. 116, 274, 337) Medina was transported to the station house between 3:00 and 3:30 p.m. (Hearing Tr. 46, 113, 117, 162-64, 303) Mullarkey, who accompanied Medina, testified that Medina did not ask for an attorney during the ride to the station house. (Hearing Tr. 303, 340-41).
At the station house, Mullarkey put Medina in an interview room on the second floor. The room was equipped with a table, a few chairs, and a one-way window. (Hearing Tr. 117-18,163-64, 304) Medina’s handcuffs were removed. (Hearing Tr. 304) He did not request an attorney at that time. (Hearing Tr. 304).
Crisfield testified that he was responsible for Medina while he was in the interview room, and that he checked on Medina at least once every half-hour. (Hearing Tr. 164-66) Medina was given a jacket after complaining about the air conditioning in the interview room. (Hearing Tr. 165) He was also given coffee, food, and cigarettes, and allowed to use the restroom. (Hearing Tr. 165,185).
At about 3:30 p.m., the Cl arrived at the station house, and Fitzpatrick introduced him to Crisfield. (Hearing Tr. 120, 171) The Cl told Crisfield that he had “known Pop[s] ... for years.” (Hearing Tr. 174) After Crisfield showed the Cl a photo*529graph of Medina, the Cl signed the photograph and wrote, “[T]his is the guy ‘Pop’ I seen shooting.” (Hearing Tr. 175-76; GX 9) The interview of the Cl ended at about 4:30 p.m. (Hearing Tr. 176-77).
An hour or two after Medina’s arrest, Crisfield questioned Medina about the earlier incident in which he had been shot outside Scotty’s. (Hearing Tr. 166, 170-71) Crisfield did not give Miranda warnings to Medina.8 (Hearing Tr. 166-68, 229-32) In preparation for this interview, Crisfield had reviewed portions of the case file concerning the June 2012 shooting of Medina, and noted that Medina had not cooperated with the NYPD’s investigation. (Hearing Tr. 167-68).
Crisfield told Medina that the file indicated that a man named “Bush” had shot Medina in June. (Hearing Tr. 169) Medina responded that the shooter’s name was “Push.” (Hearing Tr. 169) Crisfield asked Medina whether he knew anything about the shootings earlier that morning, and Medina stated that he did not. (Hearing Tr. 170) Crisfield asked Medina no further questions at that time. (Hearing Tr. 170).
At approximately 9:00 p.m., Crisfield spoke with the victim of the shooting outside Scotty’s. (Hearing Tr. 177-78) The victim stated that he had not seen who had shot him. (Hearing Tr. 178).
After speaking with the victim, Crisfield entered Medina’s pedigree information into an electronic database and completed arrest paperwork concerning Medina. (Hearing Tr. 179) Medina remained in the interview room until approximately 9:30 p.m., when Crisfield took him to be fingerprinted.9 (Hearing Tr. 179) As Crisfield escorted Medina to the fingerprint room, Medina asked what he was being charged with and why. (Hearing Tr. 179) Crisfield told Medina that he had been identified in connection with the shooting that day outside Scotty’s, and that he would be charged with assault. (Hearing Tr. 180).
After fingerprints were taken, Crisfield escorted Medina back to the interview room. (Hearing Tr. 180) Crisfield told Medina that he would be brought to Central Booking and that he would not have another opportunity to speak with Cris-field. (Hearing Tr. 180) Medina then agreed to speak with Crisfield. (Hearing Tr. 180).
Because Crisfield believed that the shooting outside Scotty’s and the Clark homicide might be related, he told Detectives Mullarkey and Smith — who were investigating the Clark homicide — that Medina was willing to talk. (Hearing Tr. 181, 306, 386) The three detectives entered the interview room at some point between 10:30 p.m. and 11:30 p.m., and questioned Medina for approximately one hour. (Hearing Tr. 181-83, 239, 305-06, 309).
After entering the interview room, Detective Crisfield told Medina that he needed to give him Miranda warnings in order for their conversation to be “official.” (Hearing Tr. 181) Crisfield and Mullarkey testified that Crisfield then presented Medina with a Miranda advice of rights form and read a Miranda warning card *530aloud to Medina.10 (Hearing Tr. 181-82, 186, 306-07) Mullarkey testified that Miranda warnings were read to Medina as soon as the detectives entered the interview room. (Hearing Tr. 306-307) The executed advice of rights form states that the interview of Medina commenced at 10:40 p.m. and ended at 11:45 p.m. (GX 6).
The advice of rights form provided to Medina contains the following questions:
1. You have the right to remain silent and refuse to answer questions. Do you understand question # 1?
2. Anything you do or say may be used against you in a court of law. Do you understand question # 2?
3. You have the right to consult an attorney before speaking to the po- ' lice and have an attorney present during any questioning now or in the future. Do you understand question #3?
4. If you can not afford an attorney, one will be provided for you without cost. Do you understand question #4?
5. If you do not have an attorney available, you have the right to remain silent, until you have the opportunity to consult with one. Do you understand question # 5?
6. Now that I have advised you of your rights, are you willing to answer questions?
(GX 6).
Crisfield explained to Medina that he would be reading from his Miranda card and that Medina should follow along using the Miranda advice of rights form. (Hearing Tr. 186) Crisfield told Medina that after each question, Crisfield would ask Medina whether he understood the question and, if so, to write “yes” next to that question and initial his answer.11 (Hearing Tr. 186).
Both Crisfield and Mullarkey testified that Medina verbally answered “yes” to each question on the form when it was read to him, and never asked to speak with an attorney. (Hearing Tr. 187, 307-08) Medina also did not ask any questions or seek clarification concerning any aspect of the advice of rights form. (Hearing Tr. 307-08) After reading Medina the Miranda warnings, Crisfield told him to sign the bottom of the advice of rights form if he still wanted to speak to the detectives, and Medina did so. (Hearing Tr. 188).
On the completed advice of rights form, however, Medina wrote yes and his initials to Questions 1-4 and 6, but left the space next to Question 5 blank. (GX 6) None of the detectives noticed the omission at the time. (Hearing Tr. 247).
Crisfield then began questioning Medina about the June 2012 shooting outside Scotty’s, in which Medina was shot in the leg. (Hearing Tr. 189, 309) Medina told the detectives that he had been chased and shot at by men in his neighborhood. (Hearing Tr. 189, 410) Medina stated that a man known as “Push” had shot him in *531the leg and that he had been living in constant fear since June. (Hearing Tr. 191, 410-11) Medina also stated that he had been shot at on other occasions since June. (Hearing Tr. 191, 410-11) Detective Cris-field showed Medina a photograph of Ger-od Jackson, and Medina identified Jackson as “Push.” (Hearing Tr. 192-93; GX 8) Medina also told the detectives that the dispute between him and his assailants arose from a debt that they owed Medina related to the sale of cocaine or crack cocaine. (Hearing Tr. 389, 412-13).
The detectives then began questioning Medina about the shootings earlier that day. Medina stated that on July 27, 2012, he observed a red Cadillac — a vehicle used by the men who had shot him — being driven in the vicinity of East 219th Street and Barnes Avenue. (Hearing Tr. 191) Medina ran away from the vehicle. (Hearing Tr. 191) At approximately 1:00 a.m. on July 28, 2012, Medina saw the same red Cadillac as it pulled up in front of Scotty’s. (Hearing Tr. 191) Medina saw the driver pull a firearm out of his waistband. (Hearing Tr. 191) Medina would not tell the detectives what happened next, but he commented that he was “tired of running” and had to protect himself. (Hearing Tr. 191, 413-14).
Medina stated that he then went to 721 East 228th Street, where he observed the red Cadillac drive by several times. (GX 7) Medina reported that “Mafia” — allegedly Defendant Estrada — had hidden a gun in a nearby alley. (Id.) Medina saw “Push” — the man who had shot him in June — across the street. (Id.) Medina then heard an exchange of gunfire, and went into his girlfriend’s apartment. (Id.) A short time later, he observed “Mafia” come down the stairs of 721 East 228th Street and exit the building. (Id.).
III. POST-HEARING BRIEFING
After the hearing, Medina submitted supplemental briefing concerning his suppression motion. (Nov. 16, 2013 Def. Br. (Dkt. No. 43); Dec. 13, 2013 Def. Reply Br. (Dkt. No. 47)) Medina argues that all statements he made to detectives on July 28, 2012, should be suppressed because:
1. the detectives did not have probable cause to arrest him;
2. he was arrested inside his home, in violation of Payton v. New York, 445 U.S. 573 [100 S.Ct. 1371, 63 L.Ed.2d 639] (1980);
3. the NYPD interrogated him — without administering Miranda warnings — in the stairwell outside his girlfriend’s apartment;
4. the NYPD interrogated him — without administering Miranda warnings — in the 47th Precinct interview room;
5. he did not knowingly waive his Miranda rights, as demonstrated by his “refusal” to respond to Question 5 on the advice of rights form;
6. he did not voluntarily waive his Miranda rights, given the length of his detention prior to questioning at the 47th Precinct;
7. even if Miranda warnings were administered before the three detectives began their interrogation at the 47th Precinct, the detectives employed a deliberate, two-step interrogation technique in violation of Missouri v. Seibert, 542 U.S. 600 [124 S.Ct. 2601, 159 L.Ed.2d 643] (2004); and
8. the detectives did not honor his repeated requests for counsel.
(See Nov. 16, 2013 Def. Br. (Dkt. No. 43) at 1-2).
*532
DISCUSSION
I. PROBABLE CAUSE FOR MEDINA’S ARREST
Medina argues that the NYPD lacked probable cause for his arrest, and “rel[ied] on insufficient information provided by an unreliable informant.” (Id. at 13) As a result, Medina contends, “evidence obtained during and following [his] unlawful arrest” should be suppressed “as fruit of the poisonous tree.” (Id. at 26).
A. Legal Standard
“[A]n arrest [without a warrant] must be supported by probable cause or else it violates the Fourth Amendment.” United States v. Valentine, 539 F.3d 88, 93 (2d Cir.2008). “[P]robable cause is ‘a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.’ ” United States v. Clark, 638 F.3d 89, 94 (2d Cir.2011) (quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). “ ‘Probable cause to arrest a person exists if the law enforcement official, on the basis of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution in believing that an offense has been or is being committed by the person to be arrested.’ ” Valentine, 539 F.3d at 93 (quoting United States v. Patrick, 899 F.2d 169, 171 (2d Cir.1990)). “When making a probable cause determination, ‘[t]he experience of a [law enforcement] officer is a factor to be considered.’ ” Arias v. United States, Nos. 09 Civ. 4536(CM), 07 Cr. 813(CM), 2011 WL 1332190, at *3 (S.D.N.Y. Mar. 31, 2011) (quoting United States v. Fisher, 702 F.2d 372, 378 (2d Cir.1983)) (alterations in original).
‘“Probable cause [does not] require[ ] ... a prima facie showing of criminal activity.... Rather, it requires only the possibility of criminal activity....’” United States v. Rodriguez, No. S107 Cr. 699(HB), 2008 WL 52917, at *5 (S.D.N.Y. Jan. 2, 2008) (quoting United States v. Perea, 848 F.Supp. 1101, 1104 (E.D.N.Y.1994)). “The quantum of evidence required to establish probable cause to arrest need not reach the level of evidence necessary to support a conviction, but it must constitute more than rumor, suspicion, or even a ‘strong reason to suspect.’ ” Fisher, 702 F.2d at 375 (quoting Henry v. United States, 361 U.S. 98, 101, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959)) (internal citations omitted). “[A] showing of probable cause cannot be negated simply by demonstrating that an inference of innocence might also have been drawn from the facts alleged.” Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir.2007).
Where information from a confidential informant provides the basis for an arrest, courts undertake “the totality-of-the-circumstances analysis that traditionally has informed probable cause determinations.” Gates, 462 U.S. at 238, 103 S.Ct. 2317; see Caldarola v. Calabrese, 298 F.3d 156, 162-63 (2d Cir.2002) (applying the totality-of-the-circumstances analysis to determine whether informant tips provided probable cause for an arrest). “[A]n informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are all highly relevant in determining the value of [the informant’s] report.” Gates, 462 U.S. at 230, 103 S.Ct. 2317. These factors should not, however, “be understood as entirely separate and independent requirements to be rigidly exacted in every case.... Rather, ... they should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question [of] whether there is ‘probable cause.’...” *533Id. “If, for example, a particular informant is known for the unusual reliability of his predictions of certain types of criminal activities in a locality, his failure, in a particular case, to thoroughly set forth the basis of his knowledge surely should not serve as an absolute bar to a finding of probable cause based on his tip.” Id. at 233, 103 S.Ct. 2317. “Conversely, even if [a court] entertain[s] some doubt as to an informant’s motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles his tip to greater weight than might otherwise be the case.” Id.
The Second Circuit has noted that
[t]he core question in assessing probable cause based upon information supplied by an informant is whether the information is reliable. Information may be sufficiently reliable to support a probable cause finding if the person providing the information has a track record of providing reliable information, or if it is corroborated in material respects by independent evidence. If a substantial amount of information from an informant is shown to be reliable because of independent corroboration, then it is a permissible inference that the informant is reliable and that therefore other information that he provides, though uncorroborated, is also reliable.
United States v. Wagner, 989 F.2d 69, 72-73 (2d Cir.1993).
B. Analysis
The decision to arrest Medina was made by Lieutenant Fitzpatrick, an officer with more than nineteen years’ experience in the NYPD. (Hearing Tr. 15).
Fitzpatrick supervised the investigation of the July 28, 2012 shooting outside Scotty’s and the Clark homicide. Fitzpatrick and his detectives went to the scene of each shooting, reviewed video footage of the Clark homicide, canvassed the neighborhood where the Clark homicide had taken place, and questioned Medina, who lived in an apartment building adjacent to the site of the Clark homicide. Fitzpatrick also examined the red Cadillac at the scene of the Clark homicide, and observed bullet holes on the passenger side of the car.
Fitzpatrick then questioned a confidential informant about the two shootings. Fitzpatrick had been working with the Cl for about eight months, and he knew that the Cl was familiar with the neighborhoods in which the shootings had taken place. (Hearing Tr. 37-38, 43-45) The Cl had provided information to Fitzpatrick in the past that Fitzpatrick had been able to corroborate. (Hearing Tr. 128) This “track record” of reliable information made it more likely that the information the Cl provided to Fitzpatrick on July 28, 2012, was reliable. See Wagner, 989 F.2d at 72-73.
Moreover, the Cl’s description of events in the early morning hours of July 28, 2012, in front of Scotty’s was corroborated by other information the NYPD had uncovered during its investigation. The Cl described seeing someone shoot at a red Cadillac on the passenger side of the car, an account that was consistent with Fitzpatrick’s observation of bullet holes on the red Cadillac at the scene of the Clark homicide. (Hearing Tr. 40) The Cl also stated that a bystander had been shot down the street from Scotty’s; this account was likewise consistent with other information obtained by the NYPD. (Hearing Tr. 40) The Cl reported that Defendant Estrada — who the police had seen in the videotape firing shots at the scene of the Clark homicide — was with Medina, a/k/a “Pops,” outside Scotty’s when the bystander was shot. (Hearing Tr. 131) *534Because a number of the details provided by the Cl were consistent with and corroborated by the NYPD’s independent investigation, there was reason to believe that the Cl’s claim that the shooter outside Scotty’s had been shot himself at that same location earlier in the summer was reliable.12 See United States v. Gagnon, 373 F.3d 230, 236 (2d Cir.2004) (“In addition to considering an informant’s veracity, reliability, and basis of knowledge, in assessing the totality of the circumstances we also evaluate whether the information an informant provides is corroborated by independent police investigation ... ”); see Wagner, 989 F.2d at 72-73.
Moreover, Fitzpatrick — who had encountered Medina early on during his investigation of the July 28, 2012 shootings — recognized him as the victim of a shooting two months earlier outside Scotty’s. (Hearing Tr. 35, 75) Fitzpatrick also knew that (1) Clark had been shot to death across the street from the apartment building in which Medina was living; and (2) a resident of 721 East 228th Street had reported that the apartment in which Medina was living was connected to the Clark homicide. (Hearing Tr. 32) This information, considered together with the Cl’s information and identification, provided Fitzpatrick with “sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution in believing” that Medina had been involved in an altercation with the driver of the red Cadillac, and that Medina had fired the shots that struck the red Cadillac and the bystander outside Scotty’s. Valentine, 539 F.3d at 93. Accordingly, Medina’s arrest was supported by probable cause, and his statements will not be suppressed on this ground.
II. MANNER OF MEDINA’S ARREST
Medina argues that the investigative fruits of his arrest should be suppressed because the police arrested him inside his home without a warrant, in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). (Nov. 16, 2013 Def. Br. (Dkt. No. 43) at 20-27) Medina claims that he was forcibly removed from his home and arrested or, alternatively, that the NYPD’s show of force effectively amounted to an arrest inside his home. (Id. at 22, 24).
A. Legal Standard
“It is a ‘basic principle of Fourth Amendment law* that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton, 445 U.S. at 586, 100 S.Ct. 1371. “In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house.” Payton, 445 U.S. at 590, 100 S.Ct. 1371. Accordingly, “absent exigent circumstances or consent, the police must obtain a warrant before entering a suspect’s home to make a routine felony arrest.” Mosby v. Senkowski 470 F.3d 515, 519 (2d Cir.2006).
*535B. Analysis
Fitzpatrick and Mullarkey testified that Medina came out of his girlfriend’s apartment voluntarily when the officers arrived to arrest him, and that he was arrested in the hallway. (Hearing Tr. 46, 113-14, 302, 336) Crisfield’s equivocal testimony that he “thought” Medina was brought out by officers does not overcome Fitzpatrick and Mullarkey’s definitive statements on this point, especially given that Fitzpatrick was stationed closest to the door. (See Hearing Tr. 113-14, 162) Fitzpatrick and Mullarkey’s testimony supports a conclusion that no Payton violation occurred at the time of Medina’s arrest.13
Medina argues, however, that even if the Court finds that no physical entry of the apartment occurred, the NYPD “effectively seized Mr. Medina inside the home” through a show of force at the door. (Nov. 16, 2013 Def. Br. (Dkt. No. 43) at 25).
“Although some courts in other circuits have found that Payton might apply where the police use an extreme degree of coercion or fraud in coaxing a suspect out of their home, the Second Circuit has never held that such conduct amounts to a Pay-ton violation, and other circuits have rejected such an application of Payton.” Watkins v. Perez, No. 05 Civ. 477(GEL), 2007 WL 1344163, at *10 (S.D.N.Y. May 7, 2007) (“[E]ven if the police make it clear that a suspect cannot leave her home without being arrested, such conduct does not implicate the concerns that motivated Pay-ton. ... Payton is not implicated simply because petitioner was technically ‘seized’ while within her home.”) (internal citations omitted).
Even if coercive conduct without a physical entry could amount to a Payton violation, the NYPD’s conduct here is distinguishable from the extreme examples cited by Medina. For example, in Sharrar v. Felsing, 128 F.3d 810, 819 (3d Cir.1997), “a SWAT team surround[ed] a residence with machine guns pointed at the windows and the persons inside [were] ordered to leave the house backwards with their hands raised.” Likewise, in United States v. Maez, 872 F.2d 1444, 1450 (10th Cir.1989), “[t]he Albuquerque SWAT team had surrounded the [defendant’s] trailer with rifles pointed at the home[,] [used] ... loud speakers [to ask] the occupants ‘... to remove themselves from the mobile home’ ..., [had] rifles pointed at the house[,] and ... searched and handcuffed [the defendant’s son outside, which the defendant witnessed].” In United States v. Al-Azzawy, 784 F.2d 890, 893 (9th Cir.1985), *536“the police had completely surrounded [defendant’s] trailer with their weapons drawn and ordered him through a bullhorn to leave the trailer and drop to his knees.” In each case, the court concluded that the defendant was essentially arrested within the home because of the extreme showing of force by law enforcement. Nothing comparable to the force used in these cases occurred here.
Finally, even if a Payton violation had occurred, it would not warrant suppression of Medina’s post-arrest statements. The Supreme Court has “decline[d] to apply the exclusionary rule in this context because the rule in Payton was designed to protect the physical integrity of the home; it was not intended to grant criminal suspects ... protection for statements made outside their premises where the police have probable cause to arrest the suspect for committing a crime.” New York v. Harris, 495 U.S. 14, 17, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990). Accordingly, “where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the ... use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton.” Id. at 21, 110 S.Ct. 1640.
Because the NYPD had probable cause to arrest Medina, the exclusionary rule would not apply to his post-arrest statements, even if a Payton violation had occurred. Accordingly, Medina’s post-arrest statements will not be suppressed on this basis.
III. ALLEGED MIRANDA VIOLATIONS
Medina contends that Miranda violations require suppression of statements he made (1) while in the stairwell of his girlfriend’s apartment building, prior to his arrest, and (2) when questioned by Detectives Crisfield, Smith, and Mullarkey at the 47th Precinct on the night of his arrest. (Nov. 16, 2013 Def. Br. (Dkt. No. 43) at 30-61).
A. Legal Standard: Miranda Requirements
In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held that
when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning ... [the following] [procedural safeguards must be employed to protect the privilege [against self-incrimination:] ... He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.
Id. at 478-79, 86 S.Ct. 1602.
“A central inquiry in determining whether Miranda is applicable is thus whether the statement of the defendant that is at issue was made in the course of ‘custodial interrogation.’ ” United States v. Rodriguez, 356 F.3d 254, 258 (2d Cir.2004).
*537“Custodial interrogation exists when a law enforcement official questions an individual and that questioning was (1) conducted in custodial settings that have inherently coercive pressures that tend to undermine the individual’s will to resist and to compel him to speak (the in custody requirement) and (2) when the inquiry is conducted by officers who are aware of the potentially incriminatory nature of the disclosures sought (the investigative intent requirement).”
Id. (quoting United States v. Morales, 834 F.2d 35, 38 (2d Cir.1987)) (internal citations omitted).
With respect to custody, the Supreme Court has noted that,
[a]s used in [its] Miranda case law, “custody” is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of “the objective circumstances of the interrogation,” a “reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.” And in order to determine how a suspect would have “gaugefd]” his “freedom of movement,” courts must examine “all of the circumstances surrounding the interrogation.” Relevant factors include the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning.
Howes v. Fields, — U.S. -, 132 S.Ct. 1181, 1189, 182 L.Ed.2d 17 (2012) (quoting Stansbury v. California, 511 U.S. 318, 322-323, 325, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994); Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)) (internal citations omitted).
“Interrogation” — for purposes of Miranda — “refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).
“The purpose of the Miranda warning is to ensure that the person in custody has sufficient knowledge of his or her constitutional rights relating to the interrogation and that any waiver of such rights is knowing, intelligent, and voluntary.” United States v. Carter, 489 F.3d 528, 534 (2d Cir.2007). However,
[a]ny statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. ... Volunteered statements of any kind are not barred by the Fifth Amendment....
Miranda, 384 U.S. at 478, 86 S.Ct. 1602.
Where a defendant “has alleged police custodial interrogation in the absence of Miranda warnings, the burden shifts to the government to prove Miranda voluntariness, either because there was no custodial interrogation implicating Miranda, there was some exception to the Miranda rule, or because [the defendant] was properly Mirandized and waived his rights.” United States v. Miller, 382 F.Supp.2d 350, 362 (N.D.N.Y.2005).
“To prove a valid waiver [of Miranda rights], the government must show (1) that the relinquishment of the defendant’s rights was voluntary, and (2) *538that the defendant had a Ml awareness of the right being waived and of the consequences of waiving that right.” United States v. Jaswal, 47 F.3d 539, 542 (2d Cir.1995) (per curiam). “Only if the totality of the circumstances ‘reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.’ ” United States v. Male Juvenile, 121 F.3d 34, 40 (2d Cir.1997) (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)). “The government bears the burden of demonstrating by a preponderance of the evidence that a defendant waived his constitutional rights.” United States v. Lynch, 92 F.3d 62, 65 (2d Cir.1996).
Voluntariness is evaluated in light of “the totality of all the surrounding circumstances, including the accused’s characteristics, the conditions of interrogation, and the conduct of law enforcement officials” to determine whether “the defendant’s will was overborne by the [police officers’] conduct.” United States v. Anderson, 929 F.2d 96, 99 (2d Cir.1991); see Lynch, 92 F.3d at 65 (applying this analysis to determine “[w]hether a defendant knowingly and voluntarily waived his rights”).
“A voluntary relinquishment of a right occurs when the relinquishment is the ‘product of a free and deliberate choice rather than intimidation, coercion, or deception.’ ” Male Juvenile, 121 F.3d at 41 (quoting Moran, 475 U.S. at 421, 106 S.Ct. 1135). “Coercive police activity [therefore] is ‘a necessary predicate’ to finding that a waiver of Miranda rights was not voluntary.” Coronado v. Lefevre, 748 F.Supp. 131, 139 (S.D.N.Y.1990) (quoting Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct.. 515, 93 L.Ed.2d 473 (1986)).
A waiver of Miranda rights is “knowing” if the “the relinquishment of rights was ... ‘made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.’ ” United States v. Plugh, 648 F.3d 118, 127 (2d Cir.2011) (quoting Moran, 475 U.S. at 421, 106 S.Ct. 1135).
B. The Stairwell Interrogation
Medina argues that his rights were violated when detectives questioned him in the stairwell outside his girlfriend’s apartment without reading him Miranda warnings. Because Medina was not “in custody” at this time, there was no Miranda violation.
The detectives present at the stairwell encounter all testified that Medina was free to leave at any time. Medina was not surrounded by officers, was not handcuffed or physically restrained, and was not told that he could not leave. Although Medina was not permitted to return to his girlfriend’s apartment while his girlfriend was being questioned, the record demonstrates that Medina’s movements were not otherwise restrained.
Moreover, the questioning of Medina— which Detective Smith characterized as “casual” and “amicable” — consisted of a request for basic pedigree information and for any information that Medina had about the shooting that occurred outside his girlfriend’s apartment building. Medina stated that he had been in the lobby of the building and had seen nothing. The entire conversation lasted about ten minutes, at which point the detectives left and Medina returned to his girlfriend’s apartment.
A reasonable person would have felt free to leave the stairwell under these circumstances, and the NYPD’s encounter with Medina presents no “serious danger of coercion.” See Howes, 132 S.Ct. at 1189. *539Because Medina was not “in custody,” -no Miranda warnings were required, and the statements Medina made during this encounter will not be suppressed on the basis of a Miranda violation.
C. Post-Arrest Questioning of Medina
Medina also claims that post-arrest statements he made at the 47th Precinct must be suppressed because (1) he was not read Miranda warnings before he was questioned; (2) he did not knowingly waive his rights, as demonstrated by his “refusal” to answer and initial “Question 5” on the advice of rights form; (3) the length of his detention rendered any waiver involuntary; and (4) his statements were procured through an unlawful two-step interrogation technique. ' (See Nov. 16, 2013 Def. Br. (Dkt. No. 43) at 30-61).
1. Whether Medina Received Miranda Warnings Before Questioning
Medina claims that he was not read Miranda warnings before he was questioned by the three detectives at the 47th Precinct.14 (Id. at 30-44) According to Medina, after eight hours of detention, three detectives entered the interview room and questioned him for an hour before giving him Miranda warnings. (Medina Aff. ¶ 15) After this interrogation, Detective Crisfield read Miranda warnings to Medina and instructed him to sign the advice of rights form. (Id. ¶ 16) The detectives then asked additional questions about a particular phone number and a man shown in a photograph displayed to Medina. (Id. ¶ 18).
The Court concludes that the Government has met its burden of demonstrating by a preponderance of the evidence, see Lynch, 92 F.3d at 65, that Miranda warnings were given to Medina before he was questioned by the three detectives. Both Detectives Crisfield and Mullarkey testified that Medina was given Miranda warnings before he was questioned about the July 28, 2012 shootings. Both detectives also testified in detail about how Crisfield read each Miranda warning to Medina one by one, and how Medina answered “yes” as to each question. This Court finds their testimony credible. Moreover, aspects of Medina’s account are not credible. For example, it would make no sense for the detectives to interrogate Medina, then administer Miranda warnings, and then ask Medina additional questions. Finally, the detectives’ testimony on this point is entitled to more weight than Medina’s affidavit, because — as previously discussed — it was subject to cross-examination and the detectives gave consistent testimony and appeared credible.
Accordingly, Medina’s post-arrest statements will not be suppressed on the grounds that he was not given Miranda warnings until after he made these statements.
2. Failure to Respond to Question 5
Medina claims that his failure to respond to Question 5 on the advice of rights form demonstrates that he did not knowingly waive his rights. (Nov. 16, 2013 Def. Br. (Dkt. No. 43) at 58-60) Question 5 reads: “If you do not have an attorney available, you have the right to remain silent, until you have the opportunity to *540consult with one. Do you understand question # 5?” (GX 6) Detectives Cris-field and Mullarkey testified that Medina verbally answered “yes” to each question on the advice of rights form, and that none of the detectives noticed that he had not written a response to Question 5 on the advice of rights form. According to Medina, he intentionally “refused to acknowledge item ” and his refusal demonstrates that he did not fully understands his rights and/or did not waive his rights. (Medina Aff. ¶ 17; Nov. 16, 2013 Def. Br. (Dkt. No. 43) at 58-59) This Court concludes that the Government has demonstrated that it is more likely than not the case that Medina’s failure to print a response to Question 5 was an inadvertent oversight.
As an initial matter, and as discussed above, Detectives Crisfield and Mullarkey offered credible testimony that all six questions on the advice of rights form were read to Medina, and that he verbally answered “yes” to each question. Written confirmation of a verbal waiver is, of course, not required. See, e.g., North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) (“An express written or oral statement of waiver of the right to remain silent or of the right to counsel ... is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.”); United States v. Frank, 8 F.Supp.2d 284, 302 (S.D.N.Y.1998) (“[A] defendant can be found to have waived the right to counsel despite refusing to sign a waiver form.)”
Moreover, Medina wrote “yes” and signed his initials next to five of the six questions on the advice of rights form, including Question 3, which is very similar to Question 5. Question 3 states: “You have the right to consult an attorney before speaking to the police and have an attorney present during questioning now or in the future. Do you understand question # 3?” (GX 6) Question 5 states: “If you do not have an attorney available, you have the right to remain silent, until you have the opportunity to consult with one. Do you understand question # 5?” (GX 6) Both Questions 3 and 5 informed Medina that he had the right to remain silent until he had had the opportunity to consult with an attorney. (GX 6) Given that Medina understood Question 3 — as indicated by the word “yes” he wrote next to Question 3 — and given that he did not ask any questions or express any confusion about Question 5, or raise any objection to it, it is not credible for him to suggest that he did not understand Question 5 and did not intend to waive this right. Indeed, it is far more likely that his failure to answer Question 5 was simply an oversight.
The configuration of the advice of rights form lends itself to skipping over the line for a response to Question 5. There is a gap of 2/8 to 3/8 of an inch between the response lines for the other questions on the form. For Question 5, the space within which to write a response is 1/8 of an inch. (See GX 6) Under all the circumstances, this Court concludes that Question 5 was read to Medina, that he told the detectives that he understood this right, and that his failure to answer Question 5 in writing does not reflect a failure of understanding or an objection to Question 5, but simply an oversight. Given Medina’s verbal answers and his written answers to the other questions on the advice of rights form, this Court concludes that Medina understood his rights but nonetheless agreed to answer the detectives’ ques*541tions.15
3. Length of Detention
Medina argues that being “in police custody, and largely incommunicado, for over seven hours [before] the start of the final interrogation” “rendered his waiver [and subsequent statements] involuntary.” (Nov. 16, 2012 Def. Br. (Dkt. No. 43) at 57-61).
While it is undisputed that Medina was in custody for seven to eight hours before Detective Crisfield and his two colleagues provided Miranda warnings and obtained Medina’s oral and written waiver (see id.; Govt. Br. (Dkt. No. 46) at 9-10, 12), this fact is not dispositive as to whether his waiver was valid. Other courts in this Circuit have upheld waivers despite even longer delays. See Maldonado v. Greiner, No. 01 Civ. 0799(KMW)(AJP), 2003 WL 22435713, at *33 (S.D.N.Y. Oct. 28, 2003) (waiver voluntary where “[the defendant] was in the precinct for about twelve hours before receiving Miranda warnings”); Bastidas v. Henderson, 664 F.Supp. 51, 53-54 (E.D.N.Y.1987), aff'd, 842 F.2d 1287 (2d Cir.1988) (waiver found even though defendant had been held at the police station for ten hours before Miranda warnings were given); see also United States v. Heron, 564 F.3d 879, 881-82, 886-87 (7th Cir.2009) (finding voluntary waiver where Miranda warnings were not administered until more than thirty-two hours after arrest).
The circumstances here support a finding that Medina’s waiver was voluntary, despite the period of time he had been held in custody. Medina does not contend that he was threatened or coerced by the police, or that he was the subject of brutality, psychological duress, or unduly prolonged interrogation. Medina’s handcuffs were removed once he was placed in the interview room; he was fed; he was given a coat when he complained that he was cold; and he was taken to the bathroom as necessary. All of these facts weigh in favor of a finding of voluntariness. See United States v. Juvenile Male, 968 F.Supp.2d 490, 509-10 & n. 10 (E.D.N.Y.2013) (waiver voluntary where defendant was detained in precinct interview room for “many hours,” but detectives did not engage in repeated or prolonged questioning, defendant was permitted to use the bathroom, defendant was given the opportunity to eat and drink, and defendant’s handcuffs were periodically removed); United States v. Guzman, 879 F.Supp.2d 312, 317-18, 326 (E.D.N.Y.2012) (juvenile’s waiver voluntary where he was handcuffed to a bench for approximately four hours after his arrest but was offered food and drink and allowed to use the bathroom); see also Amaya-Ruiz v. Stewart, 121 F.3d 486, 494-95 (9th Cir.1997) (waiver voluntary after nine hours of detention where there was a bench on which defendant could sleep, defendant was given coffee and food, and the interrogating officers were calm and not threatening).
Finally, it was after fingerprinting and processing — and in response to Detective Crisfield’s comment that Medina would shortly be transferred to Central Booking — that Medina stated that he would answer questions. Medina’s decision to answer questions was not the product of repeated badgering by Crisfield or other detectives. Instead, it was a response to *542Crisfíeld’s observation that Medina was about to be transferred to Central Booking, and that if he wished to make a statement to Crisfield, the time within which to do that was coming to an end.
Under the totality of the circumstances, it cannot be said that Medina’s will was overborne, or that his waiver was involuntary. Accordingly, the Court concludes that both Medina’s waiver and the statements he made were voluntary.
4. Two-Step Interrogation
Medina argues that his post-arrest statements should be suppressed because they were obtained as the result of a deliberate two-stage interrogation in violation of Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) (plurality opinion). (Nov. 16, 2013 Def. Br. (Dkt. No. 43) at 45-57) Medina points to two encounters with the NYPD as constituting “first stage” interrogation: (1) the questioning at the stairwell outside his girlfriend’s apartment; and (2) Detective Cris-fíeld’s one-on-one questioning at the 47th Precinct. (Id. at 48-51) Having determined that Medina was not “in custody” at the stairwell, and that Miranda warnings were therefore not required, this Court will only address that aspect of Medina’s Seibert argument that is based on Detective Crisfíeld’s one-on-one questioning of Medina.
a. Legal Standard: Two-Stage Interrogation
The Supreme Court addressed two-stage interrogation in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), and Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) (plurality opinion). “Elstad involved a situation in which a suspect made a [pre-Miranda] self-incriminating statement while two police officers were at his home investigating a robbery.” United States v. Capers, 627 F.3d 470, 474 (2d Cir.2010). “The officers transported the suspect to a police station where they gave him a Miranda warning prior to obtaining both an oral and written confession.” Id. “[When] the defendant moved to suppress the postwarning confessions ... [t]he Supreme Court ... held that ‘[t]hough Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.’ ” Id. (quoting Elstad, 470 U.S. at 309, 105 S.Ct. 1285). Finding that “the police did not employ any coercive tactics to elicit either confession and that the defendant made his postwarning confession voluntarily ... [t]he Court concluded that ‘the dictates of Miranda and the goals of the Fifth Amendment proscription against use of compelled testimony [were] fully satisfied in the circumstances of th[e] case.’ ” Id. at 475-76 (quoting Elstad, 470 U.S. at 318, 105 S.Ct. 1285).
“Whereas Elstad involved a good-faith effort by the police to administer a proper Miranda warning, Seibert addressed the use of a two-step interrogation strategy designed to elicit a post-Miranda waiver and confession after the defendant had already confessed before he was given Miranda warnings.” Id. at 475. “In Seibert, the Supreme Court found unconstitutional ‘a police protocol for custodial interrogation that call[ed] for giving no warnings of the rights to silence and counsel until interrogation ha[d] produced a confession.’ ” United States v. Williams, 681 F.3d 35, 40 (2d Cir.2012) (quoting Seibert, 542 U.S. at 604, 124 S.Ct. 2601). Under this protocol, “arresting officers were taught to intentionally omit Miranda warnings until their interrogation produced a confession, administer the warnings, and then question the defendant based on his pre-Miranda *543confession, in order to get him to restate it.” Id. at 38.
The Second Circuit has characterized Seibert as “lay[ing] out an exception to Elstad for cases in which a deliberate, two-step strategy was used to obtain [a] postwarning confession.” Id. at 41. “[A] court should review ‘the totality of the objective and subjective evidence surrounding the interrogations in order to determine deliberateness.’” Id. (quoting Capers, 627 F.3d at 479). Because “ ‘the intent of the officer will rarely be ... candidly admitted!,]’ ... [the Second Circuit has] recognifzed] that in most instances the inquiry will rely heavily, if not entirely, upon objective evidence.” Capers, 627 F.3d at 479 (quoting Seibert, 542 U.S. at 616 n. 6, 124 S.Ct. 2601). “[T]he Government bears the burden of disproving by a preponderance of the evidence that it employed a deliberate two-step strategy.” Williams, 681 F.3d at 41.
With respect to objective evidence, courts “are guided by, but not limited to, ... five factors identified by the plurality in Seibert.” Id. at 44. These factors include:
(1) “the completeness and detail of the questions and answers in the first round of interrogation,” (2) “the overlapping content of the two statements,” (3) “the timing and setting of the first and the second,” interrogations, (4) “the continuity of police personnel” doing the questioning, and (5) “the degree to which the interrogator’s questions treated the second round as continuous with the first.”
United States v. Moore, 670 F.3d 222, 228 (2d Cir.2012) (quoting Seibert, 542 U.S. at 615, 124 S.Ct. 2601).
As to subjective evidence of intent, a court should conduct “a somewhat closer scrutiny of an investigator’s testimony ... when the proffered rationale is not a ‘legitimate’ reason to delay or where it ‘inherently lacks credibility’ in view of the ‘totality of the circumstances.’ ” Id. at 229 (quoting Capers, 627 F.3d at 484 n. 5) “Such scrutiny is not ordinarily required when the reason for delay is legitimate, such as officer or community safety or when delay is a product of a ‘rookie mistake,’ miscommunication, or ‘a momentary lapse in judgment.’ ” Id. (quoting Capers, 627 F.3d at 484 n. 5). “Moreover, if it is found, after weighing the investigator’s credibility, that the investigator’s intent was not ‘calculated ... to undermine Miranda,’ delay will not require exclusion of the later, warned statement even if the court finds that the delay was for an illegitimate reason and even in the absence of curative measures.” Id. (quoting Capers, 627 F.3d at 482) (alteration in original); see also Williams, 681 F.3d at 43-44.
b. Application
As an initial matter, it must be acknowledged that the conduct at issue here does not involve “[t]he quintessential two-step [interrogation] technique [at issue in Seibert].” Williams, 681 F.3d at 45. Medina was not given Miranda “ Varn-ings only in the aftermath of interrogation and just after making a confession,’ with the police ‘leading him over the same ground again’ ” in a second interrogation. Id. (quoting Seibert, 542 U.S. at 613, 124 S.Ct. 2601). Medina did not confess to committing a shooting on July 28; to the contrary, he denied any knowledge of the July 28 shootings. See Carter, 489 F.3d at 536 (“This stands in stark contrast to the Seibert case, where the defendant gave a full confession before receiving the [Miranda ] warning and then was essentially cross-examined about her confession into a tape recorder after having been given the warning.”).
*544As to the objective and subjective factors discussed in Seibert and its progeny, the objective evidence here does not indicate that Detective Crisfield engaged in a deliberate two-stage interrogation. As to “the completeness and detail of the questions and answers in the first round of interrogation,” and the “overlapping content of the two statements,” Crisfield’s one-on-one questioning of Medina concerned almost exclusively the June 2012 shooting in which Medina was a victim. Medina merely confirmed information that he had provided to the NYPD in June 2012, correcting the record to the extent that the file indicated that the shooter was “Bush” rather than “Push.” Medina denied knowing anything about the shootings on July 28 and did not provide any information concerning these shootings. (Hearing Tr. 169-70) In contrast, the focus of the second interview was on the July 28 shootings. (See GX 7) Medina provided a detailed account of the sequence of events on July 28, 2012, and his role in those events — matters which he had not discussed at all with Detective Crisfield during the earlier interview. (See id.) In sum, there is little overlap between the two statements, and the detail in the first interrogation is not comparable to the detail of the second statement.
As to the remaining objective factors, while Crisfield’s one-on-one interview and the later interrogation conducted by Cris-field and his two colleagues took place in the same interview room at the 47th Precinct, the two interviews were separated by several hours. There was likewise not continuity of personnel; Crisfield was alone at the first interview, but was joined by two other detectives at the second interview. The significant break in time and the difference in personnel weigh against a finding of deliberateness. See Williams, 681 F.3d at 44-45.
As to “the degree to which the interrogator’s questions treated the second round as continuous with the first,” the second interrogation began with questions about the June 2012 shooting in which Medina was a victim. Medina repeated that he had been shot by “Push,” and added that he had been shot at on other occasions since June. (Hearing Tr. 191, 410-11) Medina also explained that the dispute between himself and his assailants was related to drug trafficking. (Hearing Tr. 389, 412-13) The detectives’ questioning then turned to the shootings that day, however, and remained focused on that issue. (Hearing Tr. 191).
A consideration of the objective factors does not suggest that the detectives engaged in conduct that runs afoul of Seibert and its progeny. Medina did not provide any information concerning the July 28 shootings to Detective Crisfield at the earlier interview, and there was no confession or admission of wrongdoing concerning the July 28 shootings in Crisfield’s initial interrogation. Moreover, the limited information Medina did provide concerning the June 2012 shooting- — in which he was a victim — was already in the NYPD’s file, albeit with the shooter as “Bush” rather than “Push.” Finally, “the narrowness of overlap between the subjects of the two interrogations, the participation of different officers, and the elapse of [time] between the interrogations ... points against concluding that the government engaged in a deliberate two-step process designed to undermine [Medina’s] Fifth Amendment rights.” Moore, 670 F.3d at 231.
As to subjective factors, there is no direct evidence “of an intent to use a two-step technique, nor any evidence that such intent was reflected in a police report.” Id. at 230. To the contrary, Crisfield testified that he did not administer Miranda *545warnings to Medina at the first interview because he was “treating [Medina] as witness and victim at that point.” (Hearing Tr. 166-68, 229, 231-82) Whatever Cris-field’s view as to Medina’s status, however, the fact is that Medina was under arrest for the July 28 shooting outside Scotty’s. Given that Medina was in custody and that Crisfield intended to question him, inter alia, about the July 28 shooting outside Scotty’s, it seems apparent that Miranda warnings should have been administered. Accordingly, consideration of subjective factors weighs in favor of a finding of deliberateness.
Considering the totality of the objective and subjective evidence, this Court concludes that Medina’s admissions during the second interrogation were not the product of a deliberate, two-step interrogation technique. Critical to the Court’s determination is the fact that Medina made no admissions concerning the July 28 shootings during Crisfield’s initial interrogation. The later interrogation did not involve a re-plowing of ground already plowed by Crisfield. Moreover, the information Cris-field discussed with Medina during the. first interview was already known to the NYPD, as a result of detectives’ earlier investigation of the June 2012 shooting. For these reasons, the detectives’ conduct does not require suppression under Seibert and the Second Circuit cases that have interpreted Seibert.
* * *
The Court further concludes that Medina’s statements to the three detectives during the second interview at the 47th Precinct were voluntary. As found above, Medina was advised of his rights before the later interrogation and he agreed both orally and in writing to waive his rights. There is no allegation that Medina’s statements during the second interrogation were the product of brutality, psychological pressure, threats, or unduly prolonged interrogation. See Moore, 670 F.3d at 233. Accordingly, Medina’s statements to Detective Crisfield and his colleagues will not be suppressed on the grounds that the detectives’ questioning of Medina during the second interview at the 47th Precinct violated Miranda and Medina’s Fifth Amendment rights.
IV. REQUEST FOR COUNSEL
Finally, Medina argues that the NYPD did not “scrupulously honor” his “clear requests for counsel” before questioning him on July 28, 2012. (Nov. 16, 2012 Def. Br. (Dkt. No. 43) at 28-30).
A. Legal Standard
“The Fifth Amendment provides that no person ‘shall be compelled in any criminal case to be a witness against himself ... [and] allows a person to express his desire ... to remain silent until he has the assistance of an attorney.” United States v. Okatan, 728 F.3d 111, 116 (2d Cir.2013). “[A]n accused ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
“For a suspect to invoke his Miranda right to counsel, he must at a minimum make ‘some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation.’ ” United States v. Oehne, 698 F.3d 119, 122-23 (2d Cir.2012) (quoting McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991)) (emphasis omitted). “ ‘If an accused *546makes a statement concerning the right to counsel that is ambiguous or equivocal or makes no statement, the police are not required to end the interrogation, or ask questions to clarify whether the accused wants to invoke his or her Miranda rights.’ ” Id. at 123 (quoting Berghuis v. Thompkins, 560 U.S. 370, 381, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010)).
B. Analysis
In his affidavit, Medina claims that he requested counsel repeatedly, both at the time of his arrest and at the 47th Precinct. The police officers who testified at the suppression hearing, however, all testified that Medina never requested counsel. The Court finds the testimony of these officers credible on this point. Moreover, Medina’s assertions concerning his alleged requests for counsel are contradicted by his execution of the advice of rights form, in which he acknowledges being advised of his right to speak with counsel before answering any questions, and agrees to answer questions without the advice or presence of counsel. The Court concludes that Medina did not invoke his right to counsel.
CONCLUSION
For the reasons stated above, Defendant Medina’s motion to suppress is denied in its entirety. The Clerk of the Court is respectfully directed to terminate the motion (Dkt. No. 11).
SO ORDERED.
. Medina states that he had been in a relationship with his girlfriend — Ivette Rodri-gues — for about two months, and that he "often stayed overnight at her apartment.” (Medina Aff. ¶ 3).
. As is discussed below, the Miranda form (GX 6) includes six questions concerning the suspect’s rights and his willingness to answer questions. Printed next to five of the questions is the word "yes” and Medina’s initials. Medina does not address whether this printing is his.
. Question 5 on the Miranda form states: “If you do not have an attorney available, you have the right to remain silent, until you have the opportunity to consult with one. Do you understand question # 5?” (GX 6).
. It is not clear which detective Lieutenant Fitzpatrick spoke to. Smith did not recall any such conversation with Fitzpatrick, and Cris-field testified that he did not learn any details *527about the prior shooting of Medina until after Medina’s arrest. (Hearing Tr. 166-67, 401-02).
. Smith testified that Medina never asked to leave the building or go anywhere other than his girlfriend's apartment to retrieve a sweatshirt. Medina was not permitted to return to the apartment while his girlfriend was being questioned. (Hearing Tr. 381-83).
. Fitzpatrick testified that he had been working with the Cl for about eight months prior to July 28, 2012, and that he knew that the Cl was familiar with the 228th Street neighborhood. (Hearing Tr. 43-45, 128) Fitzpatrick also testified that he had been able to corroborate information that the Cl had provided in the past. (Hearing Tr. 43-45, 128).
. Fitzpatrick did not recall that any officer threatened to break down the door, but he conceded that such a statement might have been made. (Hearing Tr. 133).
. Crisfield testified that he did not give Miranda warnings to Medina because he was "treating [Medina] as [a] witness and victim at that point.” (Hearing Tr. 166, 168, 229, 231-32) Medina was, of course, already under arrest for the shooting earlier that morning outside Scotty’s.
. Fitzpatrick testified that police sometimes leave an arrestee alone to "stew” for a period of time before questioning. (Hearing Tr. 118) Crisfield acknowledged this interrogation technique, but testified that "in this instance when [detectives were] working on a nonfatal shooting and homicide, there [was] a lot of stuff going on,” and the delay was not a ploy to induce Medina to answer questions. (Hearing Tr. 224-25).
. Detective Smith could not recall whether he was present when Medina was given Miranda warnings, but testified that he saw the signed advice of rights form. (Hearing Tr. 387).
. Medina has a lengthy criminal record, which includes approximately thirteen arrests, four felony convictions — three for robbery, and one for criminal possession of marijuana in the third degree — and misdemeanor convictions for criminal mischief, theft of services, criminal contempt, criminal possession of marijuana in the fifth degree, criminal sale of marijuana in the fourth degree, and assault in the third degree, between 1996 and the July 28, 2012 arrest in the instant case. (3503-0) Accordingly, he was not a novice as to the criminal justice system.
. Medina argues that the Cl's criminal record and outstanding bench warrants require a finding of unreliability. (Nov. 16, 2013 Def. Br. (Dkt. No. 43) at 18-19) These factors are not dispositive, however, given the reliable information that the Cl had provided in the past, his first-hand knowledge of the shooting outside Scotty’s, and the details and observations he provided about the shooting that were corroborated by Lieutenant Fitzpatrick’s observations and the ongoing NYPD investigation. Cf. United States v. Fermin, 32 F.3d 674, 676-77 (2d Cir.1994) (finding informant who was discussed in wiretap application reliable, despite misstatements and omissions in the supporting affidavit regarding informant’s criminal history, where informant had provided reliable information in the past and his account was corroborated by other evidence described in the affidavit).
. In considering Medina’s claim that he was forcibly removed from his girlfriend’s apartment, this Court has weighed both Medina’s affidavit and the officers’ testimony. As a general matter, credible testimony at a hearing is entitled to more weight than an affidavit, because testimony has been subjected to cross-examination. See, e.g., United States v. Fuentes, No. 07 Cr. 329(SHS), 2007 WL 2319142, at *4 (S.D.N.Y. Aug. 10, 2007) (crediting hearing testimony over defendant's affidavit regarding whether he gave consent to search); United States v. Robles, 253 F.Supp.2d 544, 549 n. 14 (S.D.N.Y.2002) ("[C]ourts ‘give greater weight to [witness] testimony, which was subject to cross examination, than to [sworn] affidavits.’ ”) (quoting United States v. Gardner, 611 F.2d 770, 774 n. 2 (9th Cir.1980)) (second and third alterations in original); United States v. Long Huang You, 198 F.Supp.2d 393, 400-01 n. 8 (S.D.N.Y.2002) (same); United States v. Juliano, No. 99 Cr. 1197(AGS), 2000 WL 1206745, at *3 n. 1 (S.D.N.Y. Aug. 24, 2000) (affording less weight to defendant’s affidavit, because the court could not assess the defendant’s credibility and the testimony of Government witnesses was "forthright and truthful”); United States v. Frank, 8 F.Supp.2d 284, 291 n. 2 (S.D.N.Y.1998) (crediting hearing testimony over defendant’s affidavit because the affidavit was not subject to cross examination and the testifying witnesses were credible).
. The Government has represented that it will not seek to introduce any of Medina’s statements to Detective Crisfield during their one-on-one encounter at the 47th Precinct. (Hearing Tr. 442-43; Nov. 16, 2013 Def. Br. (Dkt. No. 43) at 38) The Court considers below, however, whether Crisfield’s admittedly un-Mirandized questioning of Medina about the June 2012 shooting outside Scotty's violates Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004).
. United States v. Scott, 624 F.Supp.2d 279, 283 (S.D.N.Y.2008), cited by Medina, is distinguishable. In Scott, the defendant was read Miranda warnings and verbally stated that he was willing to answer questions. The defendant wrote "no” on the advice of rights form, however, when asked whether he was willing to answer questions. Here, Medina never stated during the interrogation conducted by the three detectives — either verbally or in writing — that he did not wish to answer questions. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217134/ | MEMORANDUM**
William A. Cram entered a conditional guilty plea to possession of marijuana, in violation of 21 U.S.C. § 844. He appeals the district court’s denial of his motion to suppress evidence. We have jurisdiction under 28 U.S.C. § 1291, and we review the denial of the motion to suppress de novo. See United States v. Jones, 286 F.3d 1146, 1150 (9th Cir.2002).
“[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (footnotes omitted). Cram was told he was under arrest for trespassing, was handcuffed, and was placed in the back of the police vehicle for five to seven minutes. Even after he was allowed to leave the vehicle for his own comfort, he remained handcuffed until his processing was complete. This was a lawful custodial arrest. See United States v. Ricardo D., 912 F.2d 337, 340 (9th Cir.1990) (defendant who was patted down, gripped by the arm, told not to run and placed in a police vehicle was under custodial arrest). The search was pursuant to the arrest, and was not a violation of the Fourth Amendment.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217135/ | MEMORANDUM**
Silviano Lopez-Palomino (“Petitioner”) appeals the district court’s denial of his habeas corpus petition, filed pursuant to 28 U.S.C. § 2241, seeking relief from the Board of Immigration Appeals’s (“BIA’s”) decision affirming the Immigration Judge’s denial of his motion to reopen. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.
We review de novo a district court’s decision to grant or deny a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Angulo-Dominguez v. Ashcroft, 290 F.3d 1147, 1149 (9th Cir.2002). An alien who is ordered deported in absentia may have the deportation order rescinded upon a motion to reopen if the failure to appear was caused by “exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i). “The term ‘exceptional circumstances’ refers to exceptional circumstances (such as serious illness of the alien or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circum*508stances) beyond the control of the alien.” 8 U.S.C. § 1229a(e)(l).
In the totality, the only circumstances relevant to Petitioner’s failure to appear at the hearing are (1) proper notice of the hearing sent to and received by his attorney, and (2) the failure of his relatives to give him his mail. Those are not “exceptional” circumstances. See Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir.2000) (holding that an alien’s claim of inadequate notice is not grounds for rescinding a deportation order when notice was properly served on the alien’s attorney); Farhoud v. INS, 122 F.3d 794, 796 (9th Cir.1997) (holding that the alien failed to demonstrate exceptional circumstances when notice was mailed to his address of record and receipt was acknowledged by someone at that address). The lack of exceptional circumstances is particularly pronounced in Petitioner’s case since the problem with his relatives was ongoing and easily corrected.
Contrary to Petitioner’s assertion, INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), is not a relevant change in the law. Under St. Cyr, Petitioner was entitled only to what the BIA already granted him, a hearing on whether discretionary relief under INA § 212(c) (repealed 1996) would be granted. St. Cyr, 533 U.S. at 326.
Finally, denial of Petitioner’s motion to reopen is not unconscionable under Singh v. INS, 295 F.3d 1037 (9th Cir.2002). Unlike Mr. Singh, Petitioner was not the beneficiary of an approved visa petition and the INS has not conceded that he would not have been deported had he appeared for the hearing. Id. at 1039. Rather, Petitioner’s case is more like Valencia-Fragoso v. INS, 321 F.3d 1204 (9th Cir.2003), and Sharma v. INS., 89 F.3d 545 (9th Cir.1996), because, “at best,” his “only possibility of relief from deportation” was discretionary. Valencia-Fragoso, 321 F.3d at 1206.
The district court’s denial of Petitioner’s habeas corpus petition is
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217136/ | MEMORANDUM*
The district court did not abuse its discretion in dismissing on grounds of forum *509non conveniens. Because Koschei is a foreign plaintiff, her selection of a California forum is entitled only to limited deference. Lueck v. Sundstrand Corp., 236 F.3d 1137, 1145 (9th Cir.2001). The district court reasonably determined that, in light of this standard, the private- and public-interest factors favor dismissal.
The private interest factors point strongly to an Alberta forum. The parties are residents of Alberta, and most of the key witnesses—including many not under the parties’ control—are also from Alberta. As to potential witnesses from California, Alberta’s commission procedure will allow Koschei to secure their testimony without significant hardship. Finally, the prospect of joining the BLM as a defendant has some relevance but, in light of its speculative character, the district court did not abuse its discretion in attaching little weight to it.
The court also adequately evaluated the public interest factors. Alberta’s interest in adjudicating a dispute among its residents is substantial, and the district court did not abuse its discretion in determining that this interest predominated. The court was not required to make a choice of law determination because no statute compels venue in the United States and the other factors independently justify dismissal. See Leetsch v. Freedman, 260 F.3d 1100, 1103 n. 1 (9th Cir.2001).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts *509of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217138/ | MEMORANDUM***
Petitioner concedes deportability but argues that he is entitled to asylum. The Board of Immigration Appeals (“BIA”) found that Petitioner had not suffered past persecution based on a protected statutory ground and, further, that Petitioner did not have a well-founded fear of future persecution. We review for substantial evidence and must uphold the BIA’s decision unless the evidence compels a contrary conclusion. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
*511The BIA was not compelled to find that Petitioner suffered past persecution. He lost his government job and was barred from future government employment because he led an allegedly illegal strike of air traffic controllers. He testified that persons unknown threatened him by telephoning his parents about four times per year. He also testified that someone “nearly” tried to abduct him, but he was neither followed nor harmed when he left the scene. These incidents do not rise to the level of persecution. See, e.g., Lim v. INS, 224 F.3d 929, 936 (9th Cir.2000) (holding that, although the petitioner had received death threats and had been followed, and although a number of similarly situated colleagues had been murdered, the petitioner had not suffered past persecution).
Additionally, the BIA was not compelled to find that Petitioner has a well-founded fear of future persecution. Petitioner can only guess who made the telephone calls and who tried to abduct him. Petitioner knew of no severe consequences to the other leaders of the strike, who remained in the Philippines. Finally, Petitioner’s bar from future government employment does not necessarily preclude him from finding other work in the Philippines. Thus, the evidence does not compel a conclusion that Petitioner’s fear of future persecution is objectively reasonable.
PETITION DENIED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217185/ | SUMMARY ORDER
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.
John Doe appeals from the January 3, 2003, judgment of the United States District Court for the Southern District of *771New York (Gerard E. Lynch, Judge), revoking his bail. Upon consideration of the record, we conclude that the district court had ample grounds for revoking bail and for declining to set new conditions of release. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224335/ | MEMORANDUM OPINION
KEVIN McNULTY, District Judge.
Plaintiff, E.A. Sween Company, Inc. (“E.A. Sween”), asserts five causes of action related to infringement of its trademarks. This matter comes before the Court on E.A. Sween’s unopposed Motion for Default Judgment (Docket No. 11) against Defendant, Deli Express of Tenafly, LLC (“Defendant” or “Tenafly”), pursuant to Fed.R.Civ.P. 55(b)(2). The summons and complaint were duly served, no answer or motion was filed in response, and the clerk entered default on December 5, 2013.
E.A. Sween brings this action against Defendant for Trademark Infringement and Unfair Competition under the Lanham Act, 15 U.S.C. § 1051 et seq., and New Jersey statutory and common law. Docket No. 1 (“Compl.”). For the reasons set forth below, I find that entry of a default judgment is appropriate. I will grant E.A. Sween’s request for an injunction against further infringement of its trademark and will grant its request for fees and costs, subject to further proofs.
I. BACKGROUND
E.A. Sween is a Minnesota corporation that markets and sells convenience food products, such as sandwiches, bakery products, burritos, breakfast foods, and coffee, under its DELI EXPRESS trademark. The products are available through a wide variety of retail outlets, including convenience stores, delicatessens, drug stores, gas stations, truck stops, and vending machines. Compl. ¶ 10. E.A. Sween owns numerous registered United States trademarks and service marks that include the term “DELI EXPRESS.” Id. ¶ 11; Compl., Exh. B (Cease and Desist Letter to Defendant enclosing proof of 19 federal registrations). Additionally, Sween owns three New Jersey state registrations for DELI EXPRESS in connection with food-related products and services. Id. ¶ 12; Compl. Exhibit C (State Renewal Certificates). E.A. Sween also owns many DELI EXPRESS internet domain names. Id. ¶ 14. Defendant has operated a restaurant business under the name DELI EXPRESS OF TENAFLY in Tenafly, New Jersey. Id. ¶¶ 2, 5.
Before filing suit, E.A. Sween informed the Defendant of its brand registrations and its objection to the continued use of DELI EXPRESS OF TENAFLY or any marks confusingly similar to the DELI EXPRESS mark. Id. ¶ 17. As of June 13, 2013, Defendant continued to use the DELI EXPRESS mark on the exterior of its store and on its take-out and delivery menus. Id. ¶ 18; Compl. E.A. Sween’s counsel continued to contact Defendant from May 14, 2012 to the filing of this action in an attempt to resolve the dispute. Id. ¶ 19.
*566On July 11, 2012, E.A. Sween’s counsel first received a communication from Oliver Carona-Vidal, Defendant’s CEO and registered agent, and an unidentified female employee. Through these individuals, the Defendant informed E.A. Sween’s counsel that the name of the restaurant and deli had been changed to “The Bagel Shop” six months earlier. Id. ¶20. From July 11, 2012, through early 2013, E.A. Sween requested photographs and other evidence from the Defendant in order to confirm that it was no longer using the DELI EXPRESS or DELI EXPRESS OF TE-NAFLY marks. Defendant did not comply with these requests. Id. ¶¶ 21-22. In June 2013, E.A. Sween confirmed that the Defendant continued to use the DELI EXPRESS mark on its exterior awning and on promotional items, and that it held itself out to the public as “Deli Express.” Id. ¶22; Exhibit E (Photographs taken June 2013). Plaintiffs counsel spoke to Corona-Vidal on July 25, 2013. During the conversation, Corona-Vidal informed E.A. Sween’s counsel that he did not plan to change the name of the business or amend the promotional materials. Id. ¶¶ 23-24.
On October 23, 2013, Plaintiff filed a five-count Complaint, alleging claims of Federal Trademark Infringement, pursuant to 15 U.S.C. Section 1114; Unfair Competition, pursuant to 15 U.S.C. Section 1125(a); Trademark Dilution, pursuant to 15 U.S.C. Section 1125(c); Trademark Dilution under New Jersey law, pursuant to N.J.S.A. 56:3-13.20; and Unfair Competition under New Jersey, pursuant to N.J.S.A. 56:4-1, 56:4-2, and the common law. Plaintiff requests the entry of judgment in its favor in the form of injunctive relief as well as attorneys’ fees and costs. Docket No. 11 (“PI. Br.”) at 17-18.
E.A. Sween alleges that Defendant used the DELI EXPRESS mark without authorization in connection with the promotion and retail sale of sandwiches and other food products, in violation of Lan-ham Act §§ 32, 43 and New Jersey law. Plaintiff alleges that the DELI EXPRESS mark is well known, famous, and distinctive. Compl. ¶ 13. In 2001, DELI EXPRESS was voted “Vendor of the Year” and inducted into the Convenience Store Industry Hall of Fame. Id. The DELI EXPRESS brand has been co-branded with other food industry marks such as Jimmy Dean meats, Armour ham, Butterball turkey, and Hot Pockets pizza. Id.
On October 28, 2013, Plaintiff personally served Oliver Corona-Vidal, as registered agent for Defendant, with the Complaint and Summons. Docket No. 9. Pursuant to Fed.R.Civ.P. 12(a)(1), Defendant had twenty-one days, ie., until November 25, 2013, to answer or otherwise respond to the complaint. Defendant failed to do so, then or subsequently. On December 4, 2013, Plaintiff requested that the Clerk enter default pursuant to Fed.R.Civ.P. 55(a). On December 5, 2013, the Clerk entered default against the Defendant, Deli Express of Tenafly, LLC. On January 21, 2014, Plaintiff filed the pending Motion for Default Judgment. Docket No. 11.
II. DISCUSSION
A. Entry of Default Judgment
“[T]he entry of a default judgment is left primarily to the discretion of the district court.” Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir.1984) (citing Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir.1951)). Because the entry of a default judgment prevents the resolution of claims on the merits, “this court does not favor entry of defaults and default judgments.” United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194 (3d Cir.1984). Thus, before entering default judgment, the Court must deter*567mine whether the “unchallenged facts constitute a legitimate cause of action” so that default judgment would be permissible. Directv, Inc. v. Asher, 03-cv-1969, 2006 WL 680533, at *1 (D.N.J. Mar. 14, 2006) (citing Wright, Miller, Kane, 10A Federal Practice and Procedure: Civil 3d § 2688, at 58-59, 63).
“[Defendants are deemed to have admitted the factual allegations of the Complaint by virtue of their default, except those factual allegations related to the amount of damages.” Doe v. Simone, CI.A. 12-5825, 2013 WL 3772532, at *2 (D.N.J. July 17, 2013). While “courts must accept the plaintiffs well-pleaded factual allegations as true,” they “need not accept the plaintiffs factual allegations regarding damages as true.” Id. (citing Chanel, Inc. v. Gordashevsky, 558 F.Supp.2d 532, 536 (D.N.J.2008)). Moreover, if a court finds evidentiary support to be lacking, it may order or permit a plaintiff seeking default judgment to provide additional evidence in support of the allegations. Doe, 2013 WL 3772532, at *2.
Before a court may enter default judgment against a defendant, the plaintiff must have properly served the summons and complaint, and the defendant must have failed to file an answer or otherwise respond to the complaint within the time provided by the Federal Rules, which is twenty-one days. See Gold Kist, Inc. v. Laurinburg Oil Co., Inc., 756 F.2d 14, 18-19 (3d Cir.1985); Fed.R.Civ.P. 12(a).
Here, Defendant DELI EXPRESS OF TENAFLY was properly served and has failed to respond to the complaint. Defendant’s time to respond to the Complaint has long since expired. Accordingly, I am satisfied that the prerequisites to filing a default judgment are met. See Gold Kist, Inc., 756 F.2d at 18-19.
I must now evaluate the following three factors: (1) whether the party subject to default has a meritorious defense, (2) the prejudice suffered by the party seeking default, and (3) the culpability of the party subject to default. Doug Brady, Inc. v. N.J. Bldg. Laborers Statewide Funds, 250 F.R.D. 171, 177 (D.N.J.2008) (citing Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 74 (3d Cir.1987)). The factors weigh in favor of entry of a default judgment.
1. Whether Defendant has a Meritorious Defense
As to the first factor, I am disadvantaged, of course, by the lack of any submission by the Defendant, but I will review the record that is before me. See Coach, Inc. v. Bags & Accessories, CIV.A. 10-2555 JBS-J, 2011 WL 1882403, at *6 (D.N.J. May 17, 2011) (“Because the Defendants did not respond, the Court cannot determine whether the Defendants had meritorious defenses that are not reflected in the record.”). I am satisfied that Plaintiff has stated claims for relief for Counts I, II, III, IV, and V. Accepting the factual allegations as true, as I must, it appears that Plaintiff has stated claims for trademark infringement under federal law; unfair competition under federal and state law; and dilution under federal and state law. My independent review of the record has not revealed any reason to believe that these claims are legally flawed or that there is a meritorious defense to them. See Doe, 2013 WL 3772532, at *5;
a. Trademark Infringement and Unfair Competition under the Lanham Act (Counts I and II)
Under the Lanham Act Section 32, 15 U.S.C. Section 1114(1):
(1) Any person who shall, without the consent of the registrant—
*568(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive ...
Shall be liable in a civil action by the registrant ....
15 U.S.C.A. § 1114(l)(a). Furthermore, the Lanham Act Section 43(a) proscribes unfair competition or, as the statute refers to it, “false designation of origin” or “false description.” 15 U.S.C.A. § 1125(a). The statute provides that:
(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person ...
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
15 U.S.C.A. § 1125(a)(1)(A).
To state a claim for trademark infringement, 15 U.S.C. § 1114(1), and unfair competition, 15 U.S.C. § 1125(a)(1), under the Lanham Act, a plaintiff must show three elements: “(1) it has a valid and legally protectable mark; (2) it owns the mark; and (3) the defendant’s use of the mark to identify goods or services causes a likelihood of confusion.” A & H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 237 F.3d 198, 210 (3d Cir.2000) (“We measure federal trademark infringement, 15 U.S.C. § 1114, and federal unfair competition, 15 U.S.C. § 1125(a)(1)(A), by identical standards”). A plaintiff bears the burden of proving these elements. Id.
Here, E.A. Sween has provided evidence of the first and second elements. That evidence consists of trademark registrations establishing ownership of a valid and legally protectable mark. Compl. ¶¶ 30-72; Compl., Exhibit B (copies of 19 Federal Registration Certificates); Compl., Exhibit D (copies of three state renewal certificates). A “certificate of registration issued by the United States Patent and Trademark Office constitutes prima facie evidence of the validity and ownership of a disputed mark” and is therefore sufficient to establish the first and second elements of trademark infringement and unfair competition claims. Coach, Inc. v. Cosmetic House, No. 10 Civ. 2794, 2011 WL 1211390, *2 (D.N.J. Mar. 29, 2011) (citing 15 U.S.C. §§ 1057(b), 1115(a)). E.A. Sween also alleges that it has continuously used the marks at issue and has used its various registration notices in association with the DELI EXPRESS marks on its goods, in connection with its service, and in its advertising. Compl. ¶¶ 30-72; see Compl., Exhibit A. I am satisfied that the first two elements are met here.
As to the third element, a “likelihood of confusion” exists where “consumers viewing the mark would probably assume that the product or service it represents is associated with the source of a different product or service identified by a similar mark.” Coach, Inc. v. Cosmetic House, 2011 WL 1211390, at *3 (quoting Ford Motor Co. v. Summit Mo*569tor Prods., Inc., 930 F.2d 277, 292 (3d Cir.1991)). Courts consider a variety of factors when assessing whether two marks are likely to cause consumer confusion. In this Circuit these factors include, but are not limited to
(1) the degree of similarity between the owner’s mark and the alleged infringing mark; (2) the strength of the owner’s mark; (3) the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase; (4) the length of time the defendant has used the mark without evidence of actual confusion arising; (5) the intent of the defendant in adopting the mark; (6) the evidence of actual confusion; (7) whether the goods, though not competing, are marketed through the same channels of trade and advertised through the same media; (8) the extent to which the targets of the parties’ sales efforts are the same; (9) the relationship of the goods in the minds of consumers because of the similarity of function; (10) other factors suggesting that the consuming public might expect the prior owner to manufacture a product in the defendant’s market, or that he is likely to expand into that market.
Freedom Card, Inc. v. JPMorgan Chase & Co., 432 F.3d 463, 471 (3d Cir.2005) (quoting Interpace Corp. v. Lapp, Inc., 721 F.2d 460, 463 (3d Cir.1983)). The Third Circuit has “repeatedly insisted that the Lapp factors are not to be mechanically tallied, but rather that they are tools to guide a qualitative decision.” A & H Sportswear, Inc., 237 F.3d at 216. Reviewing those factors, I find that the Defendant’s use of the allegedly infringing marks is likely to cause consumer confusion.
“The single most important factor in determining likelihood of confusion is mark similarity.” Id. Plaintiff submits evidence that Defendant continues to use the DELI EXPRESS and DELI EXPRESS OF TENAFLY marks with the intent to confuse or deceive consumers. Compl. ¶ 76. Put most simply, confusion is likely because Defendant has used a mark almost identical to Plaintiffs valid and legally protectable mark. I cannot disagree. Marks are confusingly similar if “ordinary consumers would likely conclude that [the two products] share a common source, affiliation, connection, or sponsorship.” A & H Sportswear, Inc., 237 F.3d at 216 (quoting Fisons Horticulture, Inc. v. Vigoro Indus., Inc., 30 F.3d 466, 477 (3d Cir.1994)). Where the goods or services are in direct competition, as is the case here, the degree of similarity required to prove likelihood of confusion is less than is required for dissimilar products. Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 713 (3d Cir.2004) (citation omitted). Here, Defendant continues to use the term “DELI EXPRESS” and “DELI EXPRESS OF TENAFLY” on its store exterior and in its promotional materials to promote and sell its food products and services — products and services that are, of course, similar in nature to those provided by Plaintiff. I find that the marks are identical (with “OF TENAFLY” appended), and are therefore likely to cause confusion to an unsuspecting consumer.
Plaintiff also alleges that the marks are “well known, famous, and distinctive.” Compl. ¶ 13. To evaluate this factor, a court must “examine: (1) the mark’s distinctiveness or conceptual strength (the inherent features of the mark) and (2) its commercial strength (factual evidence of marketplace recognition).” Freedom Card, Inc., 432 F.3d at 472 (citation omitted). “The conceptual strength of a mark is measured by classifying the mark in one of four categories ranging from the strongest to the weakest: “(1) *570arbitrary or fanciful (such as “KODAK”); (2) suggestive (such as “COPPERTONE”); (3) descriptive (such as “SECURITY CENTER”); and (4) generic (such as “DIET CHOCOLATE FUDGE SODA”).” ” Id. To determine commercial strength, courts examine the marketplace recognition of the trademark.
I find that DELI EXPRESS is conceptually and commercially strong. Though I do not find that the mark is fanciful, it is certainly not merely generic. It could be seen as suggestive, but at the very least, DELI EXPRESS is a descriptive mark. It describes “the intended purposed, function, or use of the goods; of the size of the goods, of the class of users of the goods, of a desirable characteristic of the goods, or of the end effect upon the user.” Ford Motor Co. v. Summit Motor Products, Inc., 930 F.2d 277, 292, n. 18 (3d Cir.1991) (quoting 1 McCarthy, Trademarks and Unfair Competition at § 11:5).
While “generic marks do not receive trademark protection, arbitrary, suggestive and descriptive marks with a demonstrated secondary meaning are entitled to trademark protection.” Checkpoint Sys., Inc. v. Check Point Software Technologies, Inc., 269 F.3d 270, 282-83 (3d Cir.2001). However, “[i]f the mark at issue is federally registered and has become incontestible, then validity, legal protecta-bility, and ownership are proved.” Commerce Nat. Ins. Servs., Inc. v. Commerce Ins. Agency, Inc., 214 F.3d 432, 438 (3d Cir.2000). “If the mark has not been federally registered or, if registered, has not achieved incontestability, then validity depends on proof of secondary meaning, unless the unregistered or contestable mark is inherently distinctive.’ ” Id. (quoting Ford Motor Co. v. Summit Motor Prods., 930 F.2d 277, 292 (3d Cir.1991) (footnotes omitted)). A distinctive mark is one that is fanciful, arbitrary, or suggestive. Id. at n. 5.
E.A. Sween’s federally registered trademarks, Compl. ¶¶ 31-66, are registered on the Principal Register and are incontestable pursuant to 15 U.S.C. Sections 1065 and 1115(b).1 Therefore, Plaintiff need not establish secondary meaning in order to be entitled to trademark protection.2
*571Further, E.A. Sween offers proof of its marks’ commercial strength. For example, in 2001, DELI EXPRES was voted “Vendor of the Year” and inducted into the “Convenience Store Industry Hall of Fame.” Id. ¶ 13. Further, each week, more than one million DELI EXPRESS' brand sandwiches are sold across the country. Id. ¶ 10. DELI EXPRESS products are available through a variety of retail outlets, including convenience stores, delicatessens, drug stores, gas stations, truck stops, and vending machines. Id. Accordingly, I am satisfied that the DELI EXPRESS mark is both conceptually and commercially strong.
As to the third factor (purchasers’ care and sophistication), I do not think that relevant consumers — presumably the general, hungry public — would exercise such heightened care as to undermine a finding of likely confusion. See Sabinsa Corp. v. Creative Compounds, LLC, 609 F.3d 175, 186 (3d Cir.2010) (reasoning that where “the relevant products are expensive, or the buyer class consists of sophisticated or professional purchasers, courts have generally not found Lanham Act violations,” but “where the group of buyers is a combination of professionals and ordinary consumers, the class as a whole is not held to the higher standard of care”) (internal quotations and citation omitted). At issue is the purchase of an ordinary, on-the-go breakfast, lunch or dinner. Accordingly, I will not apply a heightened standard of care to the buyer class.3
In regard to the fifth factor, E.A. Sween alleged that Defendant “continued to use the DELI EXPRESS mark and brand with the intent to confuse and to deceive consumers and to unjustly enrich Defendant at the expense of the public and *572Plaintiff.” Compl. ¶ 76. There is evidence that Defendant used the marks on their promotional materials and on the exterior of the store, Compl., Exhibit E. See A & H Sportswear, Inc., 237 F.3d at 225-26 (holding that “defendant’s intent will indicate a likelihood of confusion only if an intent to confuse consumers is demonstrated via purposeful manipulation of the junior mark to resemble the senior’s”). To be sure, it would not be so unusual for a restaurant or delicatessen to have independently hit on the idea of using the words “deli” and “express” in naming or promoting its products and services. Nevertheless, I have evidence before me that Defendant continued to use Plaintiffs marks after notification of E.A. Sween’s trademark registrations. Moreover, Plaintiff submits that Defendant continued to use the DELI EXPRESS mark as it affirmatively misled Plaintiff into believing that it had changed its name to “The Bagel Shop.” Compl. ¶¶ 20-22. Because Defendant has adopted a substantially identical mark and was offering products similar to those of E.A. Sween, it is plausible that Defendant’s intent was to confuse customers in order to profit from the goodwill associated with the well-known DELI EXPRESS brand.
The seventh, eighth, and ninth factors address the “nature of the services provided, the customers targeted, and the methods used to reach those customers.” Primepoint, L.L.C. v. PrimePay, Inc., 545 F.Supp.2d 426, 444 (D.N.J.2008) (addressing these factors together). These tend to weigh in E.A. Sween’s favor, but at worst, are neutral. The “greater the similarity in advertising and marketing campaigns, the greater the likelihood of confusion.” Checkpoint Sys., Inc., 269 F.3d at 288-89. “When the parties target their sales efforts to the same group of consumers, there is a greater likelihood of confusion between two marks.” Sabinsa Corp. v. Creative Compounds, LLC, 609 F.3d 175, 188 (3d Cir.2010). The services and products offered by Plaintiff and Defendant are described very similarly. Moreover, it does not appear that the parties target their sales efforts to a different market segment, or that the parties use different methods of promotion to target these consumers. The parties operate in the same industry, though certainly on a different scale, and offer similar products at the retail level. It is therefore reasonable to believe that consumers would be confused by Defendant’s use of the marks and would believe Defendant to be associated with E.A. Sween.
Upon review of the relevant factors, I find that the there is a likelihood that customers would be confused by the Defendant’s use of the marks. I therefore find E.A. Sween’s claims of trademark infringement and unfair competition under the Lanham Act to be legally sufficient.4
b. Dilution under the Lanham Act
I will now address Plaintiffs claim for dilution, pursuant to 15 U.S.C. Section 1125(c) of the Lanham Act, Section 43. The statute provides that:
Subject to the principles of equity, the owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner’s mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or ab-*573senee of actual or likely confusion, of competition, or of actual economic injury.
15 U.S.C. § 1125(c)(1). The statute defines a famous mark as a mark that is “widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark’s owner.” § 1125(c)(2)(A). Furthermore, Section 1125(c)(2)(B) defines “dilution by blurring” as “association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark.”
“The federal cause of action for trademark dilution grants extra protection to strong, well-recognized marks even in the absence of a likelihood of consumer confusion — the classical test for trademark infringement — if the defendant’s use diminishes or dilutes the strong identification value associated with the plaintiffs famous mark.” Times Mirror Magazines, Inc. v. Las Vegas Sports News, L.L.C., 212 F.3d 157, 163 (3d Cir.2000). The Third Circuit has provided that a plaintiff must prove the following elements to establish a prima facie claim under the federal dilution statute:
1. The plaintiff is the owner of a mark that qualifies as a “famous” mark in light of the totality of the eight factors listed in § 1125(c)(1),
2. The defendant is making commercial use in interstate commerce of a mark or trade name,
3. Defendant’s use began after the plaintiffs mark became famous, and
4. Defendant’s use causes dilution by lessening the capacity of the plaintiffs mark to identify and distinguish goods or services.
Id.
As to the first element, the Third Circuit has considered the following factors when determining whether a mark is distinctive or famous:
(A) the degree of inherent or acquired distinctiveness of the mark; (B) the duration and extent of use of the mark in connection with the goods or services with which the mark is used; (C) the duration and extent of advertising and publicity of the mark; (D) the geographical extent of the trading area in which the mark is used; (E) the channels of trade for the goods or services with which the mark is used; (F) the degree of recognition of the mark in the trading areas and channels of trade used by the marks’ owner and the person against whom the injunction is sought; (G) the nature and extent of use of the same or similar marks by third parties.
Id. (citing 15 U.S.C. § 1125(c)(1)(A)-(H)).
As I determined above in connection with the trademark claims, the DELI EXPRESS marks are distinctive and well known. Plaintiff has asserted that Plaintiffs DELI EXPRESS brand is recognized national, and that consumers widely recognize the brand’s services and products. For example, Plaintiff alleges that the DELI EXPRESS mark is well known, famous, and distinctive. Compl. ¶ 13. In 2001, DELI EXPRESS was voted “Vendor of the Year” and inducted into the “Convenience Store Industry Hall of Fame.” Id. The brand has been co-branded with other food industry marks such as Jimmy Dean meats, Armour ham, Butterball turkey, and Hot Pockets pizza. Id. Further, over 1 million DELI EXPRESS sandwiches are purchased by consumers every week. Compl. ¶ 10. Plaintiffs food products are available through a variety of retail outlets throughout the country, including convenience stores, delis, drug stores, gas stations, truck stops, resorts, and vending machines. Id. E.A. Sween protects its *574mark through trademark and service mark registration and owns numerous registered United States trademarks and service marks including the DELI EXPRESS mark Compl. ¶ 11. DELI EXPRESS marks have been in continuous use in commerce beginning, at the latest, on the date of the 1982 registration and continuing to the present. In light of the foregoing, I find that the DELI EXPRESS marks are famous marks under the statute.
The second element is use of the mark “in interstate commerce.” See Times Mirror Magazines, Inc., 212 F.3d at 163. Even in the case of a default judgment, there must be some showing, but the “quantum of commercial activity needed to demonstrate interstate commerce is not great,” Coach, Inc. v. Bags & Accessories, 2011 WL 1882403, at *4. Congress intended to regulate to the Constitutional limit. See 15 U.S.C. § 1127 (“The word ‘commerce’ means all commerce which may lawfully be regulated by Congress”). Thus even intrastate activity that affects commerce may be reached. See McCarthy on Trademarks §§ 25:53, 54 & 55. In particular, Congress may address practices that act “to the injury of interstate commerce or to the hindrance or defeat of congressional policy regarding it.” Id. § 23:55 (emphasis in original; quoting Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 68 S.Ct. 996, 92 L.Ed. 1328 (1948)). So, for example, the Second Circuit reversed the dismissal of an action involving local infringing sales at a Carvel ice cream franchise store, because “the sale of unauthorized products at individual Carvel stores has a potentially adverse effect on the entire Carvel chain.” Franchised Stores of New York, Inc. v. Winter, 394 F.2d 664 (2d Cir.1968). In short, even an intrastate infringement may be reached under the Lanham Act if it has “a substantial effect, economic or otherwise, upon plaintiffs interstate use of the mark.” Id. § 25:56. Here, Plaintiff has made a substantial showing that its mark, and the good will associated with the mark, are an essential element of its nationwide sales. The mark is nationally famous, and federally registered. An erosion of that mark, even if local in nature, will thus affect interstate commerce.
I also am satisfied that the third and fourth elements of Plaintiffs prima facie case for federal dilution are met. Defendant began using the Plaintiffs mark after it became famous. Compl. ¶ 94. As the record reflects, Defendant did not begin using the mark until May 2012, while the DELI EXPRESS marks have been trademarked beginning in 1982. Likewise, I find that there is sufficient evidence to conclude that Defendant’s use of the DELI EXPRESS mark “causes dilution by lessening the capacity of the plaintiffs mark to identify and distinguish goods or services.” Times Mirror Magazines, Inc., 212 F.3d at 163; Compl. ¶ 95. This may be inferred from the fact that Defendant has used E.A. Sween’s exact marks to promote and sell the same sort of food products promoted and sold under the DELI EXPRESS marks.
c. Dilution and Unfair Competition under New Jersey law
E.A. Sween also moves for the entry of default judgment on its state law claims for trademark dilution and unfair completion.
N.J.S.A. 56:3-13.20, which governs dilution under New Jersey law, provides that: “The owner of a mark which is famous in this State shall be entitled, subject to the principles of equity, to an injunction, commencing after the owner’s mark becomes famous, against another person’s use of the mark which causes dilution of the distinctive quality of the *575owner’s mark, and to obtain other relief provided in this section.” N.J.S.A. 56:3-13.20. When determining whether a mark is famous, courts consider factors such as publicity of the mark, the extent of the use of the mark, and the extent of recognition of the mark. Id. See also Platypus Wear, Inc. v. Bad Boy Club, Inc., CUV, 08-02662NLHAMD, 2009 WL 2147843, at *3 (D.N.J. July 15, 2009).5
New Jersey’s unfair competition statute, N.J.S.A. 56:4-1, provides that: “No merchant, firm or corporation shall appropriate for his or their own use a name, brand, trade-mark, reputation or goodwill of any maker in whose product such merchant, firm or corporation deals.” N.J.S.A. 56:4-1.N.J.S.A. 56:4-2 provides that a person or business who violates N.J.S.A. 56:4-1 “shall be liable, at the suit of the maker of such branded or trade-marked products, or any other injured person, to an injunction against such practices, and shall be liable in such suit for all damages, directly or indirectly caused, to the maker by such practices, which damages may be trebled at the discretion of the court.”
“Courts in this district have found liability under federal law to be sufficient to establish liability under state law.” Coach, Inc. v. Cosmetic House, CIV. 10-2794 WHW, 2011 WL 1211390, at *5 (D.N.J. Mar. 29, 2011); see also 800-JR Cigar, Inc. v. GoTo.com, Inc., 437 F.Supp.2d 273, 294 (D.N.J.2006) (“Dilution claims under New Jersey law are subject to the same considerations as federal dilution claims.”); N.V.E., Inc. v. Day, No. 07 Civ. 4283, 2009 WL 2526744, at *2 (D.N.J. Aug. 18, 2009) (quoting Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1433 (3d Cir.1994)) (“By virtue of ... Lanham Act violations,” the defendant “also established its common law and state law claims for unfair competition.”).
Accordingly, as I have already found that E.A. Sween has sufficiently stated a claim for unfair competition and dilution under the Lanham Act, I also find that Plaintiff has sufficiently stated claims for unfair competition and dilution under New Jersey law.
2.Prejudice suffered by the party seeking default
Second, I am persuaded that Plaintiff would suffer prejudice if default judgment were denied. Defendant was properly served nearly seven months ago, yet failed to appear or defend itself in any manner. See Teamsters Pension Fund of Philadelphia & Vicinity v. Am. Helper, Inc., CIV. 11-624 JBS/JS, 2011 WL 4729023, at *4 (D.N.J. Oct. 5, 2011). Given Defendant’s continued infringement and refusal to offer and explanation or justification, I find that Plaintiff would suffer ongoing harm and prejudice if a default judgment were denied. Plaintiff has been prejudiced by Defendant’s failure to answer because it has incurred additional costs and attorneys’ fees associated with protecting its rights and because Defendant’s failure to appear has impeded E.A. Sween’s ability to proceed in this action, including its ability to gain access to relevant discovery. It would be inequitable to allow Defendant to preclude Plaintiffs requested relief by simply failing to appear.
3.Culpability of the party subject to default
Third, absent any evidence to the contrary, “the Defendant’s failure to answer evinces the Defendant’s culpability in its default. There is nothing before the *576Court to show that the Defendant’s failure to file an answer was not willfully negligent.” Teamsters Pension Fund of Philadelphia & Vicinity, 2011 WL 4729023, at *4 (citing Prudential Ins. Co. of America v. Taylor, No. 08-2108, 2009 WL 536408 at *1 (D.N.J. February 27, 2009) (finding that when there is nothing before the court to suggest anything other than that the defendant’s willful negligence caused the defendant to fail to file an answer, the defendant’s conduct is culpable and warrants default judgment)). Defendant was served with the complaint back on October 28, 2013. Docket No 9. Defendant has not responded in any manner. The obvious conclusion is that they are culpable for this failure and unable to offer a plausible defense.
Accordingly, I find that the entry of a default judgment is appropriate as to Counts I, II, III, IV, and V.
B. Remedies
i. Injunctive Relief
E.A. Sween requests that the Court enter a permanent injunction against Defendant enjoining it from any further infringement and dilution of the DELI EXPRESS marks as well as enjoining it from further unfair competition.
The Supreme Court requires, in general, that any plaintiff seeking a permanent injunction show
(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006) (citations omitted). The Court may issue a permanent injunction in the context of a default judgment where these requirements are met. See Coach, Inc. v. Ocean Point Gifts, CIV.A.09-4215 JBS, 2010 WL 2521444, at *10 (D.N.J. June 14, 2010). The Lanham Act in particular contains a specific statutory authorization for permanent injunctive relief to prevent or restrain trademark infringement. 15 U.S.C. § 1116(a).6 I find that a permanent injunction is warranted here.
First, I find that Plaintiff would suffer irreparable injury if Defendant were to continue use of the DELI EXPRESS marks. According to E.A. Sween, Defendant continues to infringe Plaintiffs marks by using them on the exterior of the store and in its promotional materials, all in connection with the sale of Defendant’s goods and services, which are similar to the goods and services sold by Plaintiff under its registered marks. This Circuit has recognized that “[g]rounds for irreparable injury include loss of control of reputation, loss of trade, and loss of good will.” Kos Pharm., Inc., 369 F.3d at 726 (quoting Pappan Enters., Inc. v. Hardee’s Food Sys., Inc., 143 F.3d 800, 805 (3d Cir.1998)). Further, “trademark infringement amounts to irreparable injury as a matter of law.” Id. (quoting S & R Corp. v. Jiffy Lube Int’l, Inc., 968 F.2d 371, 378 (3d Cir.1992)).
I also find that an injunction is appropriate here because monetary damages are inadequate to compensate E.A. Sween for trademark infringement, unfair competi*577tion, and dilution, particularly where they are ongoing. See Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 195 (3d Cir.1990) (reasoning, in the context of a preliminary injunction, that “[gjrounds for finding irreparable injury include loss of control of reputation, loss of trade, and loss of good will”). Defendant’s continued infringing activity threatens E.A. Sween’s reputation and goodwill. The remedy of injunctive relief will protect E.A. Sween against the threat of future infringement, a threat that cannot be averted by compensatory relief alone. See Coach, Inc. v. Bags & Accessories, CIV.A. 10-2555 JBS-J, 2011 WL 1882403, at *9 (D.N.J. May 17, 2011) (citation omitted) (concluding that while “a remedy at law would provide a degree of monetary relief,” it would “not compensate for the injury” to plaintiffs “reputation or necessarily prevent future trademark infringement”).
In balancing the hardships, I find that equity indeed warrants the relief Plaintiff seeks. Defendant will not be unduly burdened by an injunction. The only “hardship” imposed upon Defendant is that it refrain from engaging in unlawful conduct. Id. Moreover, Defendant has continued its infringing behavior even upon notification of Plaintiffs protected marks. Finally, I find that the public interest would not be disserved by issuing an injunction. To the contrary, the public can only benefit from the cessation of infringement. There is certainly a public interest in a truthful and accurate marketplace, while there is no public interest served by consumer confusion. See Kos Pharm., Inc., 369 F.3d at 730.
Accordingly, I will grant Plaintiff the following injunctive relief:
Defendant, its partners, officers, agents, servants, representatives, employees; shareholders, successors, and all other persons in active concert or participation with Defendant, are hereby permanently enjoined and restrained from the following:
a. Doing business under the name “DELI EXPRESS;”
b. Filing for any future corporate names that include the phrase “Deli Express” or confusingly similar variations thereof. Within thirty (30) days of the date of the order of the Court, the Defendant must take any and all actions necessary to cancel the registration or amend and remove the phrase “Deli Express” from its current registration for the name Deli Express of Tenafly, LLC, (Entity Number 0600309419);
c. Using, in any manner, the term “DELI EXPRESS” and/or any confusingly similar designation alone or in combination with other words or designs as a trademark, trade name component, or otherwise, to market, advertise, or identify any product and/or service not produced, offered, or authorized by E.A. Sween Company;
d. Using, in any manner, the “DELI EXPRESS” trademarks or any mark confusingly similar to the DELI EXPRESS® Marks in connection with Deli Express of Tenafly, LLC’s goods or services in such a manner that is likely to create the erroneous belief that the goods or services are authorized by, sponsored by, licensed by, or are in any manner associated with E.A. Sween Company;
e. Otherwise infringing upon the DELI EXPRESS® Marks;
f. Unfairly competing with E.A. Sween Company in any manner whatsoever;
g. Causing likelihood of confusion, injury to business reputation, or dilution of the distinctiveness of the DELI EXPRESS® Marks;
h. Committing any other act or making any other statement that infringes E.A. *578Sween Company’s trademarks and service marks, or constitutes an active trademark or service mark infringement, trademark dilution, unfair competition under federal common law or the common law of the State of New Jersey; and
i. Conducting business with, including, but not limited to, selling any sandwiches or other food products to any person, firm, or entity that Deli Express of Tenafly, LLC knows or has reason to believe is engaged in any of the following:
(1) Doing business under the name “DELI EXPRESS”;
(2) Using, in any manner, the term “DELI EXPRESS” and/or any confusingly similar designation alone or in combination with other words or designs as a trademark, trade name component, or otherwise, market, advertise, or identify any product and/or service not produced, offered or authorized by E.A. Sween Company; and
(3) Using, in any manner, the DELI EXPRESS® Marks in connection with any such person’s, firm’s, or entities’ goods or services in such a manner that is likely to create the erroneous belief that the goods or services are authorized by, sponsored by, licensed by, or are in any manner associated with E.A. Sween Company.
ii. Attorneys’ Fees and Costs
“Reasonable attorney’s fees may be awarded in exceptional cases; exceptional cases include those where the Court has made a finding of willfulness.” Chanel, Inc. v. Gordashevsky, 558 F.Supp.2d 532, 539 (D.N.J.2008) (citations omitted); see 15 U.S.C. § 1117(a) (“The court in exceptional cases may award reasonable attorney fees to the prevailing party”). The Third Circuit has indeed held that “a district court must make a finding of culpable conduct on the part of the losing party, such as bad faith, fraud, malice, or knowing infringement, before a case qualifies as ‘exceptional.’ ” Ferrero U.S.A., Inc. v. Ozak Trading, Inc., 952 F.2d 44, 47 (3d Cir.1991) (citing 15 U.S.C. § 1117(a)).
As discussed above, Defendant’s conduct constitutes willful infringement. Defendant continued to use the DELI EXPRESS and DELI EXPRESS OF TE-NAFLY marks long after Plaintiff notified Defendant of its federal and state registrations and of Plaintiffs objections to continued use of the marks. Moreover, Defendant knowingly misrepresented to Plaintiff that it had ceased improper use of the marks, when in fact, Defendant has continued its unauthorized use of the marks. These circumstances are sufficiently exceptional. Accordingly, I will award reasonable attorney’s fees. I will also award E.A. Sween costs. See 15 U.S.C. § 1117(a) (allowing for the award of costs); see also Fed. R. Civ. P. 54; St. Paul Fire & Marine Ins. Co. v. AVH Trucking LLC, CIV.A. 07-4802(WHW), 2008 WL 4601771, at *5 (D.N.J. Oct. 15, 2008) (“Pursuant to Federal Rule of Civil Procedure 54(d)(1), costs other than attorney’s fees should be allowed to the prevailing party on a motion for default judgment.”).
Plaintiff has not yet submitted proofs of attorneys’ fees and costs. The amount of fees and costs will be determined upon an application and accompanying affidavit of counsel pursuant to Local Rule 54.1, Fed. R. Civ. P. 55.
III. CONCLUSION
For the foregoing reasons, default judgment will be entered in favor of Plaintiff, E.A. Sween Company, Inc., including the granting of attorneys’ fees and costs, plus *579injunctive relief. Judgment will be filed separately after the determination of the amount of attorneys’ fees.
. In any event, I would find that DELI EXPRESS has a demonstrated secondary meaning and that it is, therefore, entitled to trademark protection. A mark is descriptive with a secondary meaning when the mark "is interpreted by the consuming public to be not only an identification of the product or services, but also a representation of the origin of those products or services.” Commerce Nat. Ins. Servs., Inc. v. Commerce Ins. Agency, Inc., 214 F.3d 432, 438 (3d Cir.2000) (citation omitted). "In general [a secondary meaning] is established through extensive advertising which creates in the minds of consumers an association between the mark and the provider of the services advertised under the mark.” Id. The Third Circuit has provided a "nonexclusive list of factors which may be considered,” including: “the extent of sales and advertising leading to buyer association, length of use, exclusivity of use., the fact of copying, customer surveys, customer testimony, the use of the mark in trade journals, the size of the company, the number of sales, the number of customers, and actual confusion.” Ford Motor Co. v. Summit Motor Products, Inc., 930 F.2d 277, 292 (3d Cir.1991).
As submitted by E.A. Sween, DELI EXPRESS sandwiches are among the top-selling *571brand of convenience food sandwiches in the United States and are sold nationwide. Compl. ¶ 10. Each week, more than 1 million sandwiches are sold across the country. Id. Plaintiff prominently displays the federally registered DELI EXPRESS trademark on its products, containers, and displays and its federally registered service marks in connection with the promotion and advertising of its services. Id. ¶ 29. E.A. Sween "has expended considerable time, effort, and sums of money in the development, preparation, promotional sale, and protection of its DELI EXPRESS branded food products and related services.” Id. ¶ 74. According to InfoScan Reviews data, DELI EXPRESS produces seven of the 10 highest-selling sandwiches in convenience stores nationwide. Compl., Exhibit A. Further, DELI EXPRESS has been in business for at least 55 years. Id. The date of the first service mark provided to the Court is dated December 14, 1982, over thirty years ago. Though the words "deli” and "express” describe the sort of product sold by E.A. Sween — namely sandwiches and other food items to be consumed "on-the-go” — I find that consumers are likely to perceive the DELI EXPRESS mark "as a signifier of origin, rather than as a mere identification of the type of product.” Checkpoint Sys., Inc., 269 F.3d 270, 283, n. 11 (3d Cir.2001). This evidence tends to show secondary meaning.
. The fourth and sixth factor, the length of time the defendant has used the mark without evidence of actual confusion arising and the evidence of actual confusion, may tend to weigh in favor of consumer confusion, but the Record before the Court is inconclusive. Though evidence of actual confusion is not required, such evidence is "highly probative of a likelihood of confusion.” Sabinsa Corp., 609 F.3d at 187.
Here, E.A. Sween alleges that it informed Defendant of its federal registrations and its objection to continued use of the DELI EXPRESS in May 2012 and that Defendant continued to use the marks at least as of the filing of this motion in January 2014. Compl. ¶¶ 17, 26. Because Defendant has not appeared in this case, Plaintiff has not had the opportunity to conduct discovery as to actual consumer confusion. Nevertheless, in light of the fact that Defendant has used Plaintiffs exact mark to promote and sell substantially the same sort of product sold by E.A. Sween for at least nineteen months and the absence of evidence that consumers were not confused, these factors are at worst neutral.
. As to the use in “commerce,” see the following section. That discussion applies equally here.
. Unlike the Lanham Act, a New Jersey statutory dilution claim does not require any threshold showing as to interstate commerce.
. N.J.S.A. § 56:4-2, governing the state unfair competition claim, and N.J.S.A. 56:3-13.20, governing the state dilution claim, also entitle a plaintiff to injunctive relief. Under N.J.S.A. 56:3-13.20, a plaintiff is entitled to injunctive relief where willful intent is shown. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217140/ | MEMORANDUM *
Cody Cortez Chapman (“Chapman”) appeals his jury trial conviction for attempted bank robbery and carrying and brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 2113(a)(d) and 18 U.S.C. § 924(c). He argues that the district court erred by precluding him from presenting a duress defense and by excluding evidence he says would have negated his specific intent to commit the crimes. We affirm.
Because Chapman had sufficient opportunity to escape from the gang members who allegedly threatened him, the district court did not err in excluding his proffered evidence of duress. See United States v. Shapiro, 669 F.2d 593, 597 (9th Cir.1982); United States v. Gordon, 526 F.2d 406, 408 (9th Cir.1975).
Chapman also argues the district court should have allowed him to testify to matters that he contends would have negated his specific intent to commit the crimes with which he was charged. The district court sustained objections to this proposed testimony, and Chapman did not argue its admissibility on the ground he now asserts on appeal. Accordingly, our review is for plain error. United States v. Chang, 207 F.3d 1169, 1176 (9th Cir.2000) (“If a party fails to state the specific grounds upon which evidence is admissible, the issue is not preserved for review, and the court of appeals will reverse only for plain error.”) (quotation omitted). Because evidence of Chapman’s intent to rob the bank was overwhelming, any error in excluding the proffered testimony would not have affected the outcome of the trial and does not require reversal. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
AFFIRMED.
GRABER, Circuit Judge, dissenting.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217141/ | GRABER, Circuit Judge.
I respectfully dissent. In my view, there was evidence from which a reasonable jury could have found each element of a duress defense. In particular, Defendant’s testimony, if believed, raised a jury question whether he had a reasonable opportunity to escape. Accordingly, I would reverse and remand for a new trial based on the district court’s exclusion of the proffered defense. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217142/ | ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217143/ | JUDGMENT
PER CURIAM.
This CAUSE having been heard and considered it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217144/ | PER CURIAM.
Axel V. Sabersky appeals from the final order of the Merit Systems Protection Board, 91 M.S.P.R. 210, in which the Board dismissed his appeal as barred by res judicata. We affirm.
BACKGROUND
Mr. Sabersky was employed as a District Adjudications Officer with the Immigration and Naturalization Service (“INS”). In June 1998, the INS dismissed Mr. Sabersky for cause while he was attending required training at the Immigration Officer Academy. The INS allowed Mr. Sabersky another attempt to complete the training but again dismissed him from the Academy for cause on October 29, 1998. The INS subsequently removed Mr. Sabersky from his position on charges of insubordination, effective December 15, 1999.
Mr. Sabersky appealed his removal to the Merit Systems Protection Board, which upheld the removal in a May 4, 2000, initial decision. The administrative judge *677assigned to his case stated that “I find that the agency has supported its charge by preponderant evidence. I find that appellant was insubordinate, as charged, and that his insubordination resulted in his being dismissed from the training academy.” The full Board then affirmed the initial decision. Mr. Sabersky appealed to this court, but on February 6, 2001, we dismissed the appeal for failure to pay the docketing fee.
Several months later, on August 3, 2001, Mr. Sabersky filed another claim with the Board challenging his removal under a different legal theory. This time Mr. Sabersky alleged that he was removed in retaliation for whistleblowing. The administrative judge dismissed Mr. Sabersky’s appeal for lack of jurisdiction, concluding that Mr. Sabersky had failed to present nonfrivolous allegations of whistleblowing. Noting that the Whistleblower Protection Act protects only specific and detañed disclosures, the administrative judge stated that “[gleneral aUegations do not support a finding of a protected disclosure.” Because the administrative judge concluded that “[ajppeñant’s amorphous and unspecific afiegations in this case do not establish the jurisdictional prerequisites,” he dismissed the appeal. Mr. Sabersky then appealed to the fufi Board.
On March 25, 2002, the fifil Board denied Mr. Sabersky’s petition for review, reopened his appeal on its own motion, and dismissed the appeal as barred by res judicata. The Board found that “the appeUant had an opportunity to raise his retaliation claim when he first chafienged his removal in 2000 ... and his faüure to do so does not entitle him to bring a second appeal based on the same removal.” The Board concluded that its final order from the first appeal precluded Mr. Sabersky “from now chaUenging the same personnel action under a new legal theory.” Acknowledging that the government did not raise the issue of res judicata, the Board determined that it had the authority to raise the issue sua sponte because it was “on notice that the Board had previously adjudicated the propriety of the appeüant’s removal.” Mr. Sabersky now petitions this court for review.
DISCUSSION
We have reviewed Mr. Sabersky’s submissions to this court and find them largely unintelligible and inapposite to the issues at hand. However, Mr. Sabersky does state, albeit in conclusory fashion, that the Board erred by dismissing his appeal as barred by res judicata even though the government had not argued for dismissal on that ground. We conclude that it was error for the Board to raise the issue of res judicata sua sponte. We further conclude, however, that the Board’s error in this regard was harmless, and we therefore affirm the Board’s decision dismissing the appeal.
The application of the doctrine of res judicata is a matter of law that we review de novo. United Techs. Corp. v. Chromalloy Gas Turbine Corp., 189 F.3d 1338, 1342-43 (Fed.Cir.1999). Under that doctrine, a final judgment on the merits prevents the same parties from relitigating claims or issues that were or could have been raised in a prior proceeding. Federated Dep’t Stores v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981); Steam v. Dep’t of the Navy, 280 F.3d 1376, 1380 (Fed.Cir.2002). A whistleblower claim can be raised in an employee’s challenge to a removal action. See 5 C.F.R. § 1209.2(b). Like other defenses, the fañure to raise a whistleblower claim as a defense in the original removal appeal ordinarily bars the employee from raising it in a subsequent challenge to the removal. Cf. Spears v. Merit Sys. Prot. Bd., 766 *678F.2d 520, 523 (Fed.Cir.1985) (“Having previously appealed her removal to the Merit Systems Protection Board on nondiscrimination grounds and lost, Spears is barred by res judicata from subsequently challenging her termination on the allegation of discrimination.”).
The problem with the Board’s invocation of res judicata is that the government did not raise the issue before the Board; instead, the Board raised the issue sua sponte. The Supreme Court has explained that tribunals normally should not base their decisions on res judicata if the parties have not raised that issue, although the Court has noted that a sua sponte finding of res judicata “might be appropriate in special circumstances.” Arizona v. California, 530 U.S. 392, 412, 120 S.Ct. 2304, 147 L.Ed.2d 374 (2000). “Most notably, ‘if a court is on notice that it has previously decided the issue presented, the court may dismiss the action sua sponte, even though the defense has not been raised.’” Id. The Court further stated, however, that “[wjhere no judicial resources have been spent on the resolution of a question, trial courts must be cautious about raising a preclusion bar sua sponte, thereby eroding the principle of party presentation so basic to our system of adjudication.” Id. at 412-13. We have likewise held that the Merit Systems Protection Board should not invoke res judicata sua sponte when the Board has not ruled on the same issue in the prior appeal. See Steam v. Dep’t of the Navy, 280 F.3d 1376, 1381 (Fed.Cir.2002) (“While the challenge to the regulation ‘could have been raised,’ in fact it was not and the Board did not actually decide the question of the validity of [the regulation] in the first appeal. Because the Navy failed to affirmatively plead, and thus waived, the res judicata defense, and because the Board had not actually ruled on the issue in the previous litigation, we find the ‘special circumstances’ needed to justify the Board’s sua sponte finding of res judicata absent----”).
In this case, the Board found that this appeal presented the requisite special circumstances for a sua sponte dismissal and sought to distinguish Steam. The Board stated that “[u]nlike in Steam, in which the court was asked to decide a purely legal question which had not been considered before, here the appellant essentially seeks a readjudication of his removal, clothed in a new legal theory. The same [administrative judge] heard both appeals, and was therefore on notice that the Board had previously adjudicated the propriety of the appellant’s removal.” The government advances essentially the same argument on appeal, contending that “[t]he board correctly found that Mr. Sabersky did not present, for example, a purely legal question, or challenge the validity of a regulation____ Instead, Mr. Sabersky was essentially seeking merely to relitigate the facts and circumstances underlying his removal, his intention to present a new legal theory notwithstanding.” We conclude, however, that the requisite special circumstances were not present in this case.
First, the Board characterizes the issue decided by the Board in the initial appeal too broadly. The Board indicates that the issue decided was the propriety of Mr. Sabersky’s removal. However, the issue actually decided in the initial appeal was whether preponderant evidence supported the agency’s conclusion that Mr. Sabersky was insubordinate and whether his conduct justified his removal. In contrast, the determinative issues with respect to a whistleblowing claim include whether the appellant made a protected disclosure as defined by 5 U.S.C. § 2302(b)(8) and whether the disclosure was a contributing factor in the agency’s personnel action. See 5 U.S.C. § 1221(e)(1); Kewley v. Dep’t of Health and Human Servs., 153 F.3d *6791357, 1361 (Fed.Cir.1998). Neither of those issues was decided in Mr. Sabersky’s initial appeal. It is not sufficient that the administrative judge in the initial appeal found “that the agency has supported its charge by preponderant evidence” and “that appellant was insubordinate, as charged, and that his insubordination resulted in his being dismissed from the training academy.” The judge reviewed the evidence only for a preponderance of evidence, but there is a different burden of proof in a whistleblowing case once a disclosure is found to be a contributing factor to the adverse action in question. In that situation, the burden of proof shifts to the agency to prove by clear and convincing evidence that it would have taken the same personnel action in the absence of the disclosure. See 5 U.S.C. § 1221(e); Kewley, 153 F.3d at 1361. Accordingly, we conclude that the issues in this whistle-blower appeal were not decided in the previous litigation before the Board.
Second, we do not believe that Arizona and Steam were limited to purely legal questions, as the Board suggested. Rather, the Supreme Court, focusing on the “avoidance of unnecessary judicial waste,” sought to prevent “the prospect of redoing a matter once decided.” Arizona, 530 U.S. at 394-95. That matter could be either a factual issue or a pure issue of law, but if the issue was not actually decided in the previous appeal, the policy of avoiding “redoing a matter” would not be served. In this case, as previously discussed, the Board’s resources were not expended in the first appeal on the issues that were presented by the second.
While we hold that the Board erred in ruling on the res judicata issue without hearing from the parties, we further conclude that the Board’s error was harmless under the circumstances of this case, and we therefore affirm the Board’s decision dismissing the appeal. Although Mr. Sabersky contends that the Board erred by addressing the res judicata issue sua sponte, there is no hint in any of his various filings in this court as to how the Board’s procedural error prejudiced him. He does not suggest how the case might have been resolved differently if the government had raised the res judicata issue before the Board and he had had an opportunity contest the applicability of res judicata to his case. Nor does he suggest any argument he might have made to the Board to show that res judicata should not apply to this case. In fact, this case presents what appears to be a straightforward application of the doctrine of res judicata, and it is difficult to imagine how a finding of res judicata could be avoided on the facts presented here.
In his second appeal, Mr. Sabersky sought the same relief as in the first: reversal of his removal action. The underlying claim, that he was improperly removed, was the same in both appeals, and the first appeal clearly raised and decided that issue against him. In his second appeal, he sought relief from the same decision on a different theory. His theory that he was removed because of prior acts of whistleblowing was presumably available to him at the time he filed his first appeal, and he does not suggest that there was any reason he could not have raised his whistleblower claim at the time he filed his initial appeal. Accordingly, Mr. Sabersky has failed to give us any reason to believe that the Board might have reached a different conclusion as to the res judicata issue if the government had raised the issue before the Board. Accordingly, this is an appropriate case in which to apply the principle, set forth in 28 U.S.C. § 2111, that in any appeal, a court of appeals “shall give judgment after an examination of the record without regard to errors or *680defects which do not affect the substantial rights of the parties.” See Giove v. Dep’t of Tramp., 230 F.3d 1333, 1338-39 (Fed.Cir.2000). Because we are fully persuaded that the Board’s error in addressing the res judicata issue sua sponte did not affect Mr. Sabersky’s substantial rights, we affirm the Board’s ruling dismissing Mr. Sabersky’s appeal. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217146/ | PROST, Circuit Judge.
Gillian L. Franklin (“Franklin”) petitions for review of the final order of the Merit Systems Protection Board (“Board”), No. DA-0752-98-0173-B-1, 2000 WL 1458798, dismissing Franklin’s appeal of her removal from the United States Postal Service. Franklin first appealed her removal in 1998, but settlement negotiations led to the dismissal of her appeal by an administrative judge on May 8, 1998. Franklin then filed a petition for review with the Board seeking to have the settlement invalidated because her attorney allegedly did not have the requisite authority to enter into the settlement and the settlement was involuntary. The Board granted the petition, vacated the dismissal, and remanded the case to allow Franklin an opportunity *687to rebut the presumption of her then-former attorney’s authority to settle the appeal. During the course of the remand, Franklin executed another settlement agreement and her appeal was again dismissed by the administrative judge. Franklin petitioned the Board for review of this dismissal, arguing that the settlement was involuntary and coerced. The Board denied the petition. Franklin now petitions us for review, arguing that she executed the settlement agreement under duress and that the settlement is invalid. We affirm, the dismissal.
I
This court is vested with jurisdiction to review a final order or decision of the Board by 5 U.S.C. § 7703(b)(1). The Board issued its final order in this case on August 31, 2000, and Franklin had 60 days from the date she received notice of the order to file a request for review with this court. Franklin did not do so. Instead, she filed a complaint in the United States District Court for the Eastern District of Arkansas on November 6, 2000, and an amended and substituted complaint on May 3, 2001. This complaint alleged that Franklin was unlawfully terminated from her position with the Postal Service because of her race. The complaint further alleged that “[although the plaintiff entered into a settlement of her case with the United States Postal Service, said settlement was not entered into voluntarily and was entered into under duress.” The district court dismissed Franklin’s complaint for lack of subject matter jurisdiction and transferred it to this court under 28 U.S.C. § 1631.
Franklin’s amended and substituted complaint seeks affirmative relief under 42 U.S.C. §§ 1981 and 1983, as well as the Fourteenth Amendment, for unlawful termination of her employment. While the complaint states that Franklin “filed an appeal of her termination with the United States Merit Systems Protection Board” and that the Board denied plaintiffs petition for review “requesting that the settlement be set aside,” Franklin’s complaint does not explicitly seek the district court’s review of the Board’s final decision. Rather, Franklin has filed an original action for damages and reinstatement based on discrimination. In response to a motion to dismiss, however, Franklin argued that her complaint was properly filed in district court as a “mixed” case according to the Guide for Pro Se Petitioners Filing Petitions for Review Of Merit Systems Protection Board Decisions. Franklin likewise argues on appeal that her complaint was an attempt to appeal from the Board’s final decision in a mixed case.
This court does not have jurisdiction to review the merits of a mixed case. Williams v. Dep’t of the Army, 715 F.2d 1485 (Fed.Cir.1983) (en banc); 5 U.S.C. § 7703(b)(2) (2000). However, the pleading of discrimination does not necessarily preclude the exercise of jurisdiction by this court for limited purposes. See Wallace v. Merit Sys. Prot. Bd., 728 F.2d 1456, 1458-59 (Fed.Cir.1984). This court has jurisdiction to consider, for example, whether the Board properly dismissed an appeal as being untimely, regardless of whether the appeal is mixed. Id. And, this court has jurisdiction over an appeal where the issue of discrimination has been eliminated from the case. Meehan v. United States Postal Serv., 718 F.2d 1069, 1073-74 (Fed.Cir.1983).
In this case, we have jurisdiction to review the Board’s dismissal of Franklin’s appeal because the controlling issue is a threshold one that, much like the issue of timeliness, does not depend on the merits of an underlying discrimination claim. The propriety of the Board’s dismissal turns instead on whether Franklin entered into a valid settlement agreement with the Postal Service. In addition, the govern*688ment does not contest our jurisdiction to consider Franklin’s petition for review of the Board’s dismissal of her appeal. We therefore conclude that we have jurisdiction to consider Franklin’s complaint to the extent it seeks review of the Board’s decision.
II
Franklin’s appeal of her removal from the Postal Service was dismissed (for the second time) on December 13, 1999. The administrative judge dismissing the appeal stated that she had “reviewed a facsimile copy of a the [sic] parties’ settlement, fully executed” and had “reviewed the terms of this agreement and [found] it lawful on its face and entered into freely by both parties.” Franklin v. United States Postal Serv., No. DA-0752-98-0173-B-1, slip op. at 2 (M.S.P.B. Dec.13, 1999). Franklin petitioned the Board for review of the dismissal, and the Board denied the petition. Franklin now seeks reversal of the Board’s decision and invalidation of the settlement agreement. According to Franklin, she did not voluntarily enter into the second settlement agreement and she was coerced into signing and agreeing to the terms of the settlement.
In reviewing the dismissal of Franklin’s appeal, this court
shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence;....
5 U.S.C. § 7703(c) (2000). As we understand the issue framed by Franklin’s appeal, we must determine whether there is substantial evidence supporting the administrative judge’s determination that the settlement agreement was “lawful on its face and entered into freely by both parties.” Certainly there is such substantial evidence, including Franklin’s signature on the settlement agreement, which was also signed by Franklin’s husband and her attorney who were both present during settlement discussions. On appeal, Franklin does not deny that the signature on the agreement is hers and she admits that at a hearing before the administrative judge she twice agreed that she accepted the terms of the settlement agreement.
Franklin nevertheless argues that the administrative judge, “off the record,” threatened, misled and intimidated Franklin and her husband into signing the settlement by stating that it was not possible for Franklin to receive compensatory damages in a case like this, and that if she did not sign the settlement agreement, she would lose out on her retirement. We rejected similar allegations of coercion in Tiburzi v. Department of Justice, 269 F.3d 1346, 1355 (Fed.Cir.2001). In Tiburzi, the petitioner argued that “his counsel and the administrative judge made certain statements to him off the record during the hearing to coerce his acceptance of the oral agreement.” Id. We ruled that even if those statements were made, they would not be sufficient to invalidate the settlement agreement. Quoting Asberry v. United States Postal Service, 692 F.2d 1378, 1380 (Fed.Cir.1982), we stated that “ ‘[t]hose who employ the judicial appellate process to attack a settlement through which controversy has been sent to rest bear a properly heavy burden of proof that the agreement was improperly obtained.’ ” Tiburzi, 269 F.3d at 1355. To carry this heavy burden, Franklin must “present evidence that [s]he involuntarily accepted the terms of another, that the circumstances permitted no other alternative, and that the circumstances resulted from the administrative judge’s coercive acts.” Lee v. United States Postal Serv., 48 M.S.P.R. 274, 280 (1991). The Board in Lee reject*689ed a claim of coercion because Lee, like Franklin: answered affirmatively when asked whether he accepted and understood the terms of the agreement; failed to raise any concerns about coercion until he filed a petition for review; and did not point to any evidence in the record or submit an affidavit or any other evidence to support his unsworn statements concerning the administrative judge’s actions. Id. We therefore conclude that Franklin has failed to carry the heavy burden of presenting evidence that would establish the possibility that she was coerced into signing the settlement agreement.
CONCLUSION
Because we find that substantial evidence supports a finding that Franklin freely entered into a settlement agreement with the United States Postal Service, the dismissal of Franklin’s appeal is affirmed. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217147/ | ORDER
LINN, Circuit Judge.
John W. Davis moves for reconsideration of the court’s order dismissing his petition for review for failure to file a brief and for an extension of time, until May 15, 2003, to file his brief. The Office of Personnel Management consents to the motion for reconsideration and to a brief extension of time.
Davis’s counsel states that before issuance of the court’s dismissal order, but after the deadline for filing Davis’s brief, he filed a motion for an extension of time to file a brief. However, the motion was rejected because, inter alia, counsel was not admitted to the bar of this court. The petition for review was then dismissed for failure to file a brief.
Counsel has now been admitted to the bar of this court. Based on these circumstances, the court grants Davis’s motion to reinstate his petition for review.
Accordingly,
IT IS ORDERED THAT:
(1) Davis’s motion for reconsideration is granted.
(2) The January 30, 2003 dismissal order is vacated, the mandate is recalled, and the petition for review is reinstated.
(3) Davis’s motion for an extension of time is granted in part. Davis’s brief is due within 30 days of the date of filing of this order. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217150/ | CLEVENGER, Circuit Judge.
Anylens Acquisition, LLC (“Anylens”) appeals the decision of the Trademark Trial and Appeal Board of the Patent and Trademark Office (“Board”), denying registration to the marks NATIONAL CONTACTS.COM and NATIONAL CONTACT LENSES.COM (Applications No. 75/702,714 and No. 75/702,715) as merely descriptive under 15 U.S.C. § 1052(e)(1). In re Sterling Vision, Inc., (Trademark Trial & Appeal Bd. Feb. 14, 2002), request for reconsideration denied (Apr. 3, 2002). We affirm the decision of the Board.
I
Anylens filed intent-to-use applications for the service marks NATIONAL CONTACTS.COM and NATIONAL CONTACT LENSES.COM. As amended, the applications identify the services for both marks as “on-line retail store services, mail order services, and retail stores featuring contact lenses, eyeglasses and accessories.” The Examining Attorney rejected both applications on the ground that the marks were merely descriptive, and thus unregisterable under 15 U.S.C. § 1052(e)(1).
Anylens appealed the Examining Attorney’s rejections to the Board. The Board concluded that Anylens’s marks “immediately and directly convey[] information about significant features” of the services identified in the applications. The Board based this conclusion on the following three determinations: (1) that “contacts” and “contact lenses” described at least a portion of the proposed services, namely sale of contact lenses and accessories; (2) that “national” did no more than describe the geographic extent of the offering of such services; and (3) that “.com” lacked any trademark significance at all, being nothing more than a reference to a top level domain designation that added nothing to the distinctiveness of the mark. Accordingly, the Board sustained the Examining Attorney’s rejections, and later denied Anylens’s request for reconsideration. Anylens chose to appeal the Board’s decision to this court pursuant to 15 U.S.C. § 1071(a). We exercise jurisdiction over Anylens’s appeal under 28 U.S.C. § 1295(a)(4)(B).
II
A mark lacking secondary meaning may be refused registration on the Principal Register if it is merely descriptive of the applicant’s goods or services. 15 U.S.C. § 1052(e)(1) (2000). The basic test for a descriptive mark is whether it conveys information about qualities, characteristics, or properties of the applicant’s goods or services. In re Abcor Dev. Corp., 588 F.2d 811, 813, 200 USPQ 215, 217-18 (CCPA 1978). However, a mark may transcend descriptiveness if it “requires imagination, thought, and perception to arrive at the qualities or characteristics” of the goods or services. In re Nett Designs, Inc., 236 F.3d 1339, 1341, 57 USPQ2d 1564, 1566 (Fed.Cir.2001). The placement of a mark on the fanciful-suggestive-descriptive-generic continuum is a factual determination. Id., 236 F.3d 1339, 57 USPQ2d at 1565. Accordingly, we review for substantial evidence the Board’s conclusion that NATIONAL CONTACTS.COM and NATIONAL CONTACT LENSES.COM are descriptive of Anylens’s services. See id.
III
Anylens first suggests that the Board erred analytically by “dissecting” the marks into their component words, rather than treating the marks as a whole. We *700do not take Anylens to suggest that the Board is forbidden from ascertaining the meaning of each of the words comprising the marks. A mark must be considered as a whole, but whether a mark is descriptive can scarcely be determined without considering what the individual words of the mark mean. Although a descriptive or generic term may form part of a valid mark, Sweats Fashions, Inc. v. Pannill Knitting Co., Inc., 833 F.2d 1560, 1564, 4 USPQ2d 1793, 1797 (Fed.Cir.1987), Any-lens has not shown how the words “national,” “contacts,” and “.com” cease to describe aspects of Anylens’s services when coupled with each other, aside from the argument (considered by the Board) that “national” and “.com” are incongruous with each other. We see no error in the Board’s mode of analysis.
IV
Anylens’s substantive challenge proceeds along two axes. Anylens first challenges the Board’s conclusion that “national” describes the geographic extent of Anylens’s services. According to Anylens, the definition of “national” is “of or belonging to a country,” as in national anthem. American Heritage Dictionary of the English Language (3d ed.1996). Under this definition, Anylens asserts that “national” is not a word that can describe the geographic extent of services.
The Director, however, points to another definition of “national”: “of, affecting or involving a nation as a whole esp. as distinguished from subordinate areas,” as in national newspapers or national advertising. Webster’s Third New International Dictionary 1505 (1993). This definition is perfectly consistent with the Board’s view that “national” can be an adjective connoting geographic extent, and therefore descriptive of services that are offered nationwide.
The cases cited by Anylens, such as World Carpets, Inc. v. Dick Littrell’s New World Carpets, 438 F.2d 482, 168 USPQ 609 (5th Cir.1971), and National Steel Construction Co. v. Matsushita Electric Industrial Co., 158 USPQ 464 (TTAB 1968), are not to the contrary. Prior cases have relatively little bearing on the factual question of whether a particular mark is descriptive or not. See Abcor, 588 F.2d at 815, 200 USPQ at 219 (Rich, J., concurring). Regardless, as the Director points out, in these cases the question was whether terms like “national” were primarily geographically descriptive, or primarily geographically deceptively misdescriptive. In other words, World Carpets and National Steel stand for the proposition that words like “national” may not describe the source of goods. Here, “national” concededly does not describe where Anylens’s contact lenses originate, but it may describe the availability of Anylens’s contact lens services. Accordingly, “national” may describe a feature of the services for which Anylens is seeking registration of the marks.
Anylens also questions the Board’s conclusion that Anylens’s services will be offered on a nationwide basis, pointing to the Board’s concession that “[tjhere is no evidence of record whether applicant will sell and/or ship products nationally....” Nonetheless, Anylens does not actually dispute the Board’s finding that its services “will be at least nationwide in scope.” Further, registration under the Lanham Act is aimed at establishing exclusive rights to use the mark “in commerce”whieh 15 U.S.C. § 1127 defines as “all commerce which may lawfully be regulated by Congress.” Registration thus provides nationwide exclusivity for use of the mark in connection with the proposed goods or *701services.1 We therefore think it correct for the Board to presume that services described without limitation in the application are nationwide in scope.
Lastly, Anylens sets forth several third-party registrations that include the word “national.” We are uncertain what conclusion Anylens would have us draw from these registrations. Anylens has not argued that the Director acted arbitrarily or capriciously in denying registration to Anylens’s marks while granting it to these others. In any event, even if we excuse Anylens’s failure to submit these registrations to the Examining Attorney, or to the Board in its initial appeal, third-party registrations that include one or more terms found in the applicant’s marks have little persuasive value. The Board is charged with evaluating each application on its own merits. Nett Designs, 236 F.3d at 1342, 57 USPQ2d at 1566. Furthermore, as the Director points out, all but two of the third-party registrations are for goods, and “national” is unlikely to describe features or attributes of goods. Of the two service marks, the firsL-NATIONALCARDREGISTRY.COM-is listed only on the Supplemental Register, while the second-NATIONAL LIGHTNING DETECTION NETWORK-leaves considerable room for imagination about the services provided. We conclude that substantial evidence supports the Board’s determination that “national” describes an attribute of Anylens’s services.
V
Anylens’s second axis of attack is on the Board’s treatment of the “.com” portion of the marks. The Board found this designation to be lacking in trademark significance altogether. However, Anylens argues that if “national” be descriptive of the geographic scope of its services, then “,com”-which could connote worldwide scope-creates an incongruity that would give a consumer pause upon encountering the marks NATIONAL CONTACTS.COM and NATIONAL CONTACT LENSES.COM.
We are not persuaded. We agree with the Board that “.com” is merely a reference to a top level domain indicator. As such, it connotes nothing more than a commercial organization or enterprise.2 While a “.com” designation may distinguish a commercial organization from an educational (.edu) or governmental (.gov) organization, the suffix “.com” itself connotes no geographical indication whatsoever. Put another way, “national” and “.com” are simply incommensurable, since one connotes geographic scope and the other connotes purpose. They are not opposites, and each relates to a different aspect of the services in question. Because there is no conflict or incongruity between nationwide scope and commercial purpose, the juxtaposition of “national” and “.com” does not require the consumer to exercise imagination, thought, or perception to arrive at the characteristics of *702Anylens’s services. Accordingly, the marks remain descriptive.
CONCLUSION
In sum, we find supported by substantial evidence the Board’s finding that “national” can describe the geographic extent of services, and that Anylens’s services may be presumed to be at least nationwide in scope. With these two premises in place, the Board’s determination that NATIONAL CONTACTS.COM and NATIONAL CONTACT LENSES.COM describe features or characteristics of Anylens’s services is also supported by substantial evidence. While even a finding of incongruity between “national” and “.com” might not negate the Board’s conclusion, we agree with the Board that no such incongruity exists. The Board’s decision to sustain denial of registration under 15 U.S.C. § 1052(e)(i) is affirmed.
AFFIRMED
. The ultimate protection accorded to a mark may be less than nationwide in scope if the registrant’s operations remain geographically limited. See Dawn Donut Co. v. Hart’s Food Stores, Inc., 267 F.2d 358, 364-65, 121 USPQ 430, 435 (2d Cir.1959).
. Anylens attacks the Director’s proposition that ".com” refers to a commercial organization as a "new argument” lacking any evidentiary support. However, the Board’s opinion cites to a section of a treatise arguing that ".com” should be treated no differently than designations like “Inc.” and "Co.” See 1 McCarthy on Trademarks & Unfair Competition § 7:17.1 (4th ed.2000). To the extent that the Board’s citation still fails to anchor this conclusion in the record, we take judicial notice of the universal use of ".com” to indicate a commercial organization. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217151/ | MICHEL, Circuit Judge.
ORDER
Abbott Laboratories moves to dismiss the appeal filed by Alra Laboratories, Inc. Alra opposes in part.* Abbott replies. Alra moves for leave to file a surreply, with surreply attached.
Abbott sued Alra for infringement due to Alra’s filing of an abbreviated new drug application (ANDA). The district court ruled in Abbott’s favor and Alra appealed. The parties inform this court that the ANDA has been deemed withdrawn. Abbott argues that the appeal is moot and that the appeal should be dismissed. Alra also argues that the appeal is moot, that any dismissal of the appeal should be without prejudice to reinstatement should the status of the ANDA change, and that we should vacate the judgment below and remand with instructions to dismiss the complaint. Abbott opposes vacatur or dismissal of the complaint. In sum, both parties argue that the appeal should not go forward on the merits, but they disagree on how this court should resolve the appeal.
In this situation, U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994) provides guidance concerning what course this court may take. In that case, the Supreme Court discussed in what circumstances vacatur of a judgment may or may not be appropriate due to an asserted mootness of the appeal. “Of course, even in the absence of, or before considering the existence of, extraordinary circumstances, a court of appeals presented with a request for vacatur of a district-court judgment may remand the case with instruc*703tions that the district court consider the request....” Bancorp, 513 U.S. at 29, 115 S.Ct. 386. Thus, on remand, the district court may consider the parties’ arguments on which course to pursue.
Accordingly,
IT IS ORDERED THAT:
(1) Abbott’s motion to dismiss is denied.
(2) Alra’s motion for leave to file a surreply is granted.
(3) This appeal is remanded to the United States District Court for the Northern District of Illinois for further proceedings.
Alra’s motion for an extension of time to file the opposition is granted. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217159/ | PER CURIAM.
Dawn F. Sherman seeks review of the decision of the United States Court of Appeals for Veterans’ Claims, Sherman v. Principi, No. 00-2064 (Vet.App. June 26, 2002), affirming the referral of her claim for dependency and indemnity compensation (“DIC”) to the appropriate Veterans’ Affairs regional office. We dismiss for lack of jurisdiction.
Sherman filed a claim with the regional office that was adjudicated as if it were a claim for accrued benefits. She appealed the denial of her claim to the Board of Veterans’ Appeals arguing that she had *708not filed a claim for accrued benefits; rather she filed a claim for DIC. The board referred the matter back to the regional office for an adjudication of her DIC claim. Sherman appealed that order to the court arguing that it should remand the matter back to the board, rather than affirm the referral back to the regional office, and require the board to decide the DIC claim because it had all relevant evidence. The court declined, affirming the Board decision referring the matter to the regional office for an initial adjudication of the DIC claim. Sherman now appeals the referral order here, arguing that we should remand the matter to the court and require it to determine the merits of the claim.
Our jurisdiction over judgments of the court is limited to the review of final decisions, which usually does not include remands. Allen v. Principi, 237 F.3d 1368, 1372 (Fed.Cir.2001). This “‘final judgment’ rule ordinarily limits our jurisdiction to appeals from a decision or order that ‘ends the litigation on the merits and leaves nothing for the court to do but execute judgment.’ ” Id. at 1372 (internal citation omitted). No decision has been entered on Sherman’s DIC claim; it has been referred to the regional office for an initial adjudication. Therefore, we lack jurisdiction to hear this case. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217160/ | JUDGMENT
PER CURIAM.
This CAUSE having been heard and considered it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217161/ | PER CURIAM.’
Lauren Harden seeks review of the September 4, 2002, decision of the Merit Systems Protection Board, No. CH0752020472-I-1, sustaining the Department of Veterans Affairs action to remove him from federal service. Because substantial evidence supports the board’s findings that Harden misappropriated and caused the loss of government property, and that the removal was reasonable, we affirm.
Harden was employed as a laborer in the facility management unit of the North Chicago Veterans Administration Medical Center. Effective May 10, 2002, the Department of Veterans Affairs removed him from his position based on three separate charges: (1) making intimidating statements to co-workers; (2) misappropriating government property; and (3) losing government property. Harden appealed his removal to the board, and it sustained his removal based on the misappropriation and loss of government property charges.
We must affirm the decision of the board unless it is: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2000).
Harden argues that the board failed to consider various facts and circumstances that allegedly absolve him. However, he points to no specific evidence that the board failed to consider, and merely challenges the board’s credibility determinations, which we review with deference. See Hambsch v. Dep’t of the Treasury, 796 F.2d 430, 436 (Fed.Cir.1986). The board made findings of fact based on witness testimony and affidavits from a number of Harden’s co-workers. Because credibility determinations are virtually unreviewable, and the board’s decision was supported by substantial evidence, we will not disturb the decision. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217162/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. See Fed. RApp. P. 34(a)(2); D.C.Cir. R. 34(j). It is
ORDERED and ADJUDGED that the judgment of the district court be affirmed for the reasons stated in the memorandum accompanying this judgment.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. RApp. P. 41(b); D.C.Cir. R. 41.
MEMORANDUM
Appellant Melvin Knight, who entered a conditional plea of guilty under Rule 11(a)(2) of the Federal Rules of Criminal Procedure, appeals the district court’s refusal to dismiss his indictment under the Speedy Trial Act, 18 U.S.C. § 3161 et. seq. The Act requires that no more than 70 days elapse from indictment or arraignment to trial, other than days properly excluded from the computation. 18 U.S.C. § 3161(c)(1). Knight challenges the district court’s exclusion of time for defense counsel’s consideration of the need for a motion to withdraw from representation (which ultimately was not filed), and for the government’s preparation of a motion to disqualify defense counsel (which was filed and denied by the court).
In United States v. Wilson, 835 F.2d 1440 (D.C.Cir.1987), we held that the Speedy Trial Act permits the district court to exclude time allotted for preparation of a defense motion. Although Wilson left open the question of whether the Act permits the exclusion of time for preparation of a prosecution motion, see id. at 1444, Knight does not contest the exclusion of time on that basis. Instead, he asserts that exclusions for motion preparation are proper only where the motion involves “novel issues, which was not the case below.” Appellant’s Br. at 7. He apparently makes this argument in reliance on the following legislative history of the Speedy Trial Act, quoted in dictum by the Supreme Court in Henderson v. United States: “ ‘[I]n routine cases, preparation time should not be excluded where the questions of law are not novel and the issues of fact simple. However, the Committee would permit ... reasonable preparation time for pretrial motions in cases presenting novel questions of law or complex facts.’” Henderson, 476 U.S. 321, 328 n. 8, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986) (quoting Sen. Rep. No. 96-212, at 34 (1979)).
We need not decide in this case whether the exclusion of preparation time must be limited to non-routine, complex, or novel *711issues. The motions in question here involved potential conflicts of interest in defense counsel’s representation of Knight. The issues were not routine, were factually complex, and had serious implications for Knight’s Sixth Amendment rights. Because Knight has given us no reason to conclude that the time required to prepare those motions should have been excluded from the Speedy Trial Act computation, we affirm the judgment of the district court. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217163/ | JUDGMENT
PER CURIAM.
Consolidated with 02-1296
This petition for review and cross-application for enforcement were considered on the briefs and appendix filed by the parties, and were argued by counsel. For the reasons set forth in the memorandum accompanying this judgment, it is
ORDERED and ADJUDGED that the petition for review be denied and the cross-application for enforcement be granted.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
MEMORANDUM
The petitioner, Bolivar Tee’s Manufacturing Company, challenges the National Labor Relations Board’s (NLRB’s) findings that petitioner committed a number of unfair labor practices.
We begin with petitioner’s oblique suggestion that the Board’s order may be moot because petitioner has gone out of business. Petitioner alleges that it was dissolved (without filing for bankruptcy), that there is no successor, and that its assets are now nonexistent. Due to the absence of record evidence supporting these bare assertions, we cannot dismiss the Board’s order as moot. See Cap Santa Vue, Inc. v. NLRB, 424 F.2d 883, 886 (D.C.Cir.1970). Under these circumstances, we have discretion to enforce the Board’s order, leaving it to the Board to determine through its compliance proceedings whether and how the order’s provisions can be carried out. See id.; see also Southport Petroleum Co. v. NLRB, 315 U.S. 100, 104-05, 62 S.Ct. 452, 86 L.Ed. 718 (1942) (upholding a Court of Appeals decision to enforce a Board order under similar circumstances); NLRB v. Globe Security Servs., Inc., 548 F.2d 1115, 1117 (3d Cir.1977) (discussing a “long line of *712cases holding that a Labor Board order may properly be enforced even though the party to whom it is directed claims to have gone out of business”); NLRB v. Maywood Plant of Grede Plastics, 628 F.2d 1, 7-8 (D.C.Cir.1980).
On the merits, we hold that the Board’s findings that petitioner committed several unfair labor practices are amply supported by “substantial evidence on the record considered as a whole.” 29 U.S.C. § 160(e). Petitioner’s arguments to the contrary amount to nothing more than disagreements with the credibility determinations of the administrative law judge. We, however, must uphold such determinations, when adopted by the Board, unless they are “patently unsupportable.” Frazier Indus. Co., Inc. v. NLRB, 213 F.3d 750, 756 (D.C.Cir.2000). Petitioner raises one challenge to the Board’s legal reasoning, arguing that the Board incorrectly identified floor supervisor Dianne Jones, who circulated an anti-union petition to employees, as an agent of the company. We conclude that, in determining that Jones was the company’s agent, the Board properly applied common law principles of agency, relying on Jones’ apparent authority to act for the company. See Overnite Transp. Co. v. NLRB, 140 F.3d 259, 265-66 (D.C.Cir.1998); see also id. at 265 (holding that “ ‘the existence of an agency relationship is a factual matter’ ” subject only to substantial evidence review (quoting Local 1814, Int’l Longshoremen’s Ass’n v. NLRB, 735 F.2d 1384, 1394 (D.C.Cir.1984))). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217165/ | COFFIN, Senior Circuit Judge.
These are two appeals from judgments of conviction for possession of more than five kilograms of cocaine, with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Each of the defendants, Basilio Inirio-Castro and Isidro Rosario, has raised a challenge to the sufficiency of the evidence. Inirio-Castro also asserts a separate issue based on the alleged inconsistency between the jury’s general verdict and its answer to a special interrogatory that Inirio-Castro claims was improperly submitted to the jury.
Despite an able and spirited defense in both cases, we affirm.
Both appellants and the government agree, as do we, that our task in evaluating sufficiency is to consider whether all the evidence, circumstantial as well as direct, taken in the light most favorable to the prosecution, including reasonable inferences, enables a rational jury to reach a judgment of guilty beyond a reasonable doubt. See, e.g., United States v. Ortiz de Jesus, 230 F.3d 1,5 (1st Cir.2000). Appellants, however, argue that this is a case where the evidence for and against guilt is so nearly equal that a reasonable jury could not have found guilt beyond a reasonable doubt. See United States v. Morillo, 158 F.3d 18, 22 (1st Cir.1998). But, as Morillo and the case law on which it relies make clear, all the evidence—that pointing to innocence as well as that pointing to guilt—must be reviewed in the light most favorable to the prosecution. Id. With this in mind, we set forth the essentials.
On September 5, 2000, appellant InirioCastro returned from visiting family members in the Dominican Republic and, with his cousin, appellant Rosario, left at a little after 6 p.m. from Fajardo on the east coast of Puerto Rico ostensibly to go fishing. Their destination was the area of Las Paulinas beach, between Luquillo and Fajardo.
At about 9:30 p.m., a U.S. Customs officer using aircraft infrared radar spotted a small boat powered by twin outboards, showing no running lights but bearing two individuals, moving slowly some 50 to 75 feet from shore. He maintained radar contact with this vessel as it moved further away from the beach. Turning his attention to the beach, he observed people moving large packages away from the shoreline, and others moving packages toward a van. Later in the evening, a police officer on land discovered eight bales of cocaine on the beach and, the next morning, seventeen more bales were found near the truck.
Meanwhile, a unit of the Puerto Rico Rapid Action United Forces pursued the target vessel and boarded it at about 11 p.m., about one half to three quarters of a mile off shore. It was anchored but showed no anchor light; the two occupants were apparently fishing. It had started raining intensely. There was some fishing gear aboard (two rods, a reel, ten to fifteen *716bait fish) but no weights, nets, fishing flyers, or gloves ... and no caught fish. The boat bore a Virgin Islands registration and both appellants had fishing licenses. Inirio-Castro said that he earned from $1000 to $3000 a month from fishing. The boat carried no cell phones, radios, GPS (Global Positioning System) or other navigational aid, and no firearms. Appellant Rosario was found to have sand in his pocket and the two appellants were carrying cash totaling almost $1000.
A gaff, used to land fish and retrieve other objects from the water, was found to have a white powdery substance on its tip. This was subjected to a field test and reacted positively to cocaine. Fourteen of the twenty-five bales were found to have been punctured or pierced by a sharp object. White plastic burlap strips found on the gaff, under a seat, around wiring, tubing, hoses, battery line, and engine were given laboratory testing, which revealed similar physical and chemical characteristics to those on five bales found on the beach.
Appellants seek to characterize their case as one of equal or near equal weight to that of the prosecution, making the following arguments. They point out that they were not at the beach, that others could have delivered the packages, and that they were being prosecuted for “mere presence.” They point out that the only special equipment on the boat was consistent with fishing, the boat carried a registration, both appellants had valid fishing licenses, no equipment associated with drug smuggling was on board, and that, unlike an outlaw boat, the vessel was proceeding very slowly. Finally, field tests were known sometimes to register “false positive” results and the white plastic strips had not been subjected to the further lab analysis that could positively identify them as coming from the bales on the beach.
Without in any way denigrating the efforts and competence of appellants’ counsel, we think that there are just too many bridges to cross and too many assumptions to be made for these observations and arguments to rise to the point where we could say that a rational jury must have a reasonable doubt. The temporal and spatial proximity of the boat and the beach operations may not be conclusive, but it is significant, particularly in the absence of evidence suggesting any other source of delivery of the bales. A reasonable jury might question the presence, so close to shore, in a reef-surrounded area, of a boat bent solely on fishing. It might also find significance in the fact that sand was found in one appellant’s pocket.
A rational jury might also question the likelihood of appellants fishing for several hours and, without any visible success, continuing despite heavy rain. And it might further give considerable weight to the positive reaction of the field test on the gaff and the chemical and physical comparability of the strips found on the vessel to materials from the bales, even though testing for a positive identification of source was not undertaken. Finally, it might also infer that the holes punched in the bales had, in the absence of other explanation, been made by the gaff.
We therefore conclude that the judgments of conviction are supported by sufficient evidence.
What remains is Inirio-Castro’s argument that the verdicts are vulnerable based on the special interrogatory answered by the jury. The facts relevant to this issue are the following. During the trial, the jury was read a stipulation signed by all parties that the twenty-five bales seized on the beach, after chemical analysis, had been found to contain more than 150 kilograms of cocaine. When the case was given to the jurors, they received a
*717verdict form. There were two items requiring jury action. The first was registration of its finding of guilt or acquittal:
WE, THE JURY, FIND DEFENDANT: [NAME] _ as charged in COUNT ONE of the Indictment GUILTY/NOT GUILTY
Count One of the Indictment described the offense as possession with intent to distribute five kilograms or more of cocaine.
Secondly, at the bottom of the form was this instruction and question:
If you find the defendant guilty, then proceed to answer the following question:
Do you find that the amount of cocaine involved in the offense charged was in an amount of 150 kilograms or more?
YES NO
The jury returned the form with “Guilty” in the blank of the first item and “No” as the answer to the question. Appellant Inirio-Castro contends that submitting this question and permitting this answer amounts to a constructive amendment of the indictment, violating both the Grand Jury Clause of the Fifth Amendment and the Sixth Amendment requirement of a jury verdict. He further argues that the response invalidates the verdict of guilty, signifying a rejection of all the evidence of the twenty-five bales on the beach.
The argument relies on our decision in United States v. Spook, 416 F.2d 165 (1st Cir.1969), where we underscored the general inappropriateness of submitting special questions in criminal cases. In that case, ten special questions were put to the jury, resulting “in a progression of questions each of which seems to require an answer unfavorable to the defendant, [leading] a reluctant juror ... to vote for a conviction which, in the large, he would have resisted.” Id. at 180-82.
We recognized, however, the existence of an exception for cases in which “the determination of a particular fact will be crucial to sentencing,” id. at 182 n. 41. We have subsequently made it clear that there is no “mechanical per se rule of unconstitutionality ... for all special questions in criminal cases,” Heald v. Mullaney, 505 F.2d 1241, 1245 (1st Cir.1974). We have also reaffirmed our recognition that special questions may be permissible in federal criminal proceedings, “usually in connection with sentence,” id. We have noted the existence of this genre of cases specifically in connection with firearms prosecutions where the severity of sentence would be related to the specific firearm possessed by a defendant. See United States v. Ellis, 168 F.3d 558, 562 n. 2 (1st Cir.1999); United States v. Melvin, 27 F.3d 710, 716 (1st Cir.1994).
We think the special question asked in this case was of this nature. The court apparently was seeking what it thought was necessary guidance under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to determine a fact crucial to sentencing. Moreover, we can see no reasonable possibility of prejudice. The jury had registered its finding that defendants had possessed over five kilograms of cocaine with the intent to distribute. This finding obviously stemmed from the evidence of the twenty-five bales and the stipulation that they contained more than 150 kilograms. Now the jury was being given an opportunity to limit responsibility to a lower amount. This choice clearly benefitted appellants, since the court, while recognizing that it could impose sentence based on a much higher quantity of cocaine, respected and followed the jury’s finding in his sentencing calculations.
Appellants, however, urge that the answer to the special question implied a rejection of all the evidence of bales found *718on the beach, leaving only the evidence of a trace of cocaine on the gaff—enough only to justify conviction for simple possession. This leap of reasoning assumes that the jury was not only reneging on its verdict of guilt for possession of more than five kilograms with intent to distribute, but also was ignoring the comparability of materials found in the boat and on the beach, the punctured bales, the actions of appellants in the boat, and the absence of any other explanation for the trace of cocaine found on the gaff. We do not think that this collection of assumptions falls within the range of the rational.
We therefore conclude that the special question and the jury’s answer did not invalidate the verdict.
Affirmed. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217166/ | PER CURIAM.
This court previously affirmed the lower court’s judgment dismissing the instant employment discrimination suit pursuant to Fed.R.Civ.P. 12(b)(6). After this court affirmed, appellant Carolyn E. O’Connor (“O’Connor”) filed a timely petition for a writ of certiorari with the United States Supreme Court. On June 17, 2002, the Supreme Court issued a summary order granting O’Connor’s petition and remanding the matter to this court for further review in light of that Court’s recent decision in Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Accordingly, we directed the parties to submit supplemental briefing on the issue of whether Swierkiewicz required a different result here. The parties have briefed the issue, and the matter is now ready for decision.
After a thorough review of the submissions, the record and the Supreme Court’s decision in Swierkiewicz, we again affirm the district court’s dismissal of the Complaint. Swierkiewicz held that a Complaint in an employment discrimination lawsuit need not set out the elements *724of a prima facie case as spelled out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), in order to survive a motion to dismiss pursuant to Fed.R.CivJP. 12(b)(6). This court did not hold O’Connor’s Complaint to that heightened pleading standard when it affirmed the dismissal of her lawsuit. Rather, this court concluded that the Complaint failed to state a valid claim for religious discrimination because it did not allege that she was fired for a reason prohibited by Title VII, i.e., that she was fired because of her religion. Indeed, the Complaint seems to admit that no one with decision-making authority had any knowledge of O’Connor’s religious affiliation. The fact that one who lacked authority to fire her may have—unbeknownst to management—harbored animosity toward her because of her religion is insufficient to state a claim that she was fired in violation of Title VII. See Shorette v. Rite Aid of Maine, Inc., 155 F.3d 8, 13 (1st Cir.1998) (motivations or remarks of those who lack hiring and firing authority over the plaintiff cannot form the basis for an employment discrimination claim absent a hostile work environment claim); see also Weston-Smith v. Cooley Dickinson Hosp., Inc., 282 F.3d 60, 64 (1st Cir.2002) (postSwierkiewicz; approving rule from Shorette ). Thus, O’Connor’s Complaint failed to satisfy the requirement of Fed.R.Civ.P. 8 and of Swierkiewicz that it include “a short and plain statement of the claim showing that the pleader is entitled to relief.” For this reason, it was properly dismissed.
Likewise, nothing in Swierkiewicz alters this court’s conclusion that to the extent O’Connor attempted to state a claim that she was subjected to a hostile work environment, her claim was legally insufficient. See O’Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir.2001). Finally, it remains true that her age and sex discrimination claims were properly dismissed for failure to include them in her administrative charge. See 29 U.S.C. § 626(d); 42 U.S.C. § 2000e-5(f); Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir.1996).
The judgment of the lower court is affirmed. Appellant’s motion to go forward with discovery is denied. Appellant’s motion for reimbursement of filing fee is denied, as not properly directed to this court. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217167/ | PER CURIAM.
Plaintiffs-appellants Luis A. Lugo, his wife, and their conjugal partnership appeal from the district court’s decision granting summary judgment to defendants-appellees on appellants’ political discrimination claims. We review the district court’s decision de novo, see ATC Realty, LLC v. Town of Kingston, 303 F.3d 91, 94 (1st Cir.2002), but find no error.
Appellant Lugo was the Supervisor of Internal Auditing in the Internal Auditing Office of the Puerto Rico Electric Power Authority (PREPA) in 1997, when a reorganization caused him to be transferred to a supervisory position in a different department, at a higher pay grade with generally the same responsibilities, but at a lower classification level. Appellants alleged that the reorganization was effectuated in order to demote Lugo due to hostility to his affiliation with the Popular Democratic Party (PDP) by management aligned with the New Progressive Party. The court held that, assuming Lugo’s transfer was a demotion, appellants had not produced evidence to show that appellees knew of, much less were motivated by, Lugo’s political persuasion in causing his transfer.
On appeal, appellants make three arguments. First, they contend that they pro*726vided sufficient evidence to allow a reasonable fact finder to determine that appellees were aware of Lugo’s political affiliation. Second, they argue that they adduced sufficient evidence to show that the reorganization was not legitimate. Third, appellants suggest that the district court erred in making a factual finding that the 1997 reorganization was approved by PREPA’s Governing Board.
The district court appropriately began its analysis from the premise that appellants “would have to point to evidence in the record, that if credited, would permit the rational fact finder to conclude that the challenged adverse action occurred and stemmed from a politically based discriminatory animus,” in order to overcome appellees’ summary judgment motion, citing Rivera-Cotto v. Rivera, 38 F.3d 611, 613-14 (1st Cir.1994). The court specifically addressed the first two contentions made by appellants on appeal, holding that they did not produce sufficient evidence for a fact finder to conclude either that appellees knew of Lugo’s PDP affiliation or that the reorganization was illegitimate. Reviewing the record, we agree with the district court and find no need to elaborate on its thorough treatment of these two points.
Appellants’ final argument is that the court incorrectly held that the 1997 reorganization was approved by the Governing Board. The district court precisely held that the Governing Board had approved the reorganization plan promulgated in February 1994. Reviewing this finding for clear error, see Fed.R.Civ.P. 52(a), we find none, as it is evidenced by the Governing Board’s Resolve Number 2487, appended to appellees’ motion for summary judgment. Although appellants characterize the 1997 reorganization, not separately approved by the Governing Board, as distinct from the 1994 plan, the 1997 reorganization appears to have been the full implementation of the 1994 plan.
For the reasons stated above, the decision of the district court is AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217168/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 7th day of March, two thousand three.
AFTER ARGUMENT AND UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the petitions for review of the orders of the Board of Immigration Appeals be and they hereby are DENIED.
Petitioner Guang Lin petitions for review of two decisions of the Board of Immigration Appeals (“BIA”): (1) the BIA’s dismissal of Lin’s appeal from a decision of an Immigration Judge (“IJ”) denying Lin’s motion to reconsider the IJ’s earlier denial of Lin’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”); and (2) the BIA’s denial of Lin’s motion to reopen the removal proceedings. We deny both petitions.1
I.
Lin, a citizen of the People’s Republic of China, attempted to enter the United States at John F. Kennedy International Airport on July 19,1999 using a fraudulent passport. In February 2000, after passing a credible fear interview, Lin applied for asylum and withholding of removal under the Immigration and Nationality Act (“INA”), and for relief under the CAT (collectively “asylum application” or “application”). He claimed to fear persecution at the hands of the Chinese government because he had violated China’s “one-family-one-child” policy by fathering two children with his wife. Deeming Lin’s testimony inconsistent and non-credible, the IJ *731denied Lin’s application on April 20, 2000, and ordered Lin removed to China.
Rather than appeal the denial of his asylum application, Lin submitted to the IJ a motion for reconsideration. The IJ denied the reconsideration motion on May 26, 2000 on the grounds that Lin-contrary to the requirements of INA § 240(c)(5)(C) and 8 C.F.R. § 3.23(b)(2)-neither specified any error of fact or law extant in the prior decision, nor supported his motion with pertinent authority.2
Lin appealed the denial of his motion to reconsider to the BIA, arguing that the IJ erred in finding him not credible and in failing to grant his asylum application. On October 20, 2000 the BIA dismissed Lin’s appeal, agreeing with the IJ that Lin’s failure to specify any errors of fact or law, or to provide legal authority to support the contentions in his reconsideration motion, were proper grounds for denying the reconsideration motion. In its opinion, the BIA noted that because Lin was appealing the IJ’s May 26 denial of his motion to reconsider and not the IJ’s April 20 denial of his asylum application, it was inappropriate for him to call into question the merits of the IJ’s findings regarding his credibility. The BIA went on to explain, however, that the April 20 denial would withstand a challenge on the merits even if it were appropriate for Lin to make one, because Lin’s testimony was vague, confusing and inconsistent.
On December 29, 2000 Lin moved for his case to be reopened based on new evidence. The BIA denied this motion on February 9, 2001 on the ground that Lin failed to follow 8 C.F.R. § 3.2(c)(1), which requires movants for reopening to explain how the additional evidence was material to his claim and why it was unavailable for presentation during prior proceedings.
II.
INA § 240(c)(5)(C) mandates that a motion to reconsider “shall specify the errors of law or fact in the previous order.” Similarly, 8 C.F.R. § 3.23(b)(2) requires that a “motion to reconsider shall state the reasons for the motion by specifying the errors of fact or law in the Immigration Judge’s prior decision.” This court reviews for abuse of discretion a decision by the BIA dismissing an appeal from an IJ’s denial of a motion to reconsider. Brice v. U.S. Dep’t of Justice, 806 F.2d 415, 419 (2d Cir.1986).
In his motion to reconsider, Lin did not allege errors in the IJ’s decision with any specificity, but instead stated only that the “court denied [his] applications for relief on legally insufficient grounds.” This wholly conclusory assertion falls far short of a statutory requirement that errors be specified. See Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90-91 (2d Cir.2001) (agreeing with BIA that failure to identify legal or factual error in the previous decision did not meet specification requirement of 8 C.F.R. § 3.2(b)(2), the provision governing motions for reconsideration directed to the BIA and containing specification requirement identical to that contained in 8 C.F.R. § 3.23(b)(2)); Nascimento v. INS, 274 F.3d 26, 28 (1st Cir.2001) (same). We thus find that the BIA did not abuse its discretion in dismissing Lin’s appeal.
III.
Despite having appealed to the BIA the IJ’s denial of his motion to recon*732sider, Lin’s brief to this court addresses the merits of the IJ’s April 20 decision to deny Lin’s asylum application. The date by which Lin was required to appeal that decision-May 20, 2000, see 8 C.F.R. § 3.88 (“The Notice of Appeal to the Board of Immigration Appeals ... shall be filed ... within 30 calendar days after the stating of an Immigration Judge’s oral decision.”); id. § 3.39 (“[T]he decision of the Immigration Judge becomes final upon waiver of appeal or upon expiration of the time to appeal if no appeal is taken whichever occurs first.”)-has expired, and this court thus lacks the authority to review the underlying merits of Lin’s asylum application. See Zhao, 265 F.3d at 89-90.
IV.
8 C.F.R. § 3.2(c)(1) provides that “[a] motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” We review denials of motions to reopen for abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Here, the BIA properly concluded that the evidence Lin submitted with his motion to reopen could have been presented at the time Lin first applied for asylum. The majority of the documents and articles discussing China’s “one-family-one-child” policy are without exception dated before the date of Lin’s original asylum application. Furthermore, while it may be true that the need for a supplemental affidavit from former U.S. Census Bureau demographer John Aird could not have been fully known until after Lin testified at the IJ hearing regarding the family planning officials’ alleged threat to sterilize Lin, this merely begs the question of why Lin did not mention the sterilization threat in his original asylum application.
V.
_ For all of the foregoing reasons, the petitions for review of the orders of the Board of Immigration Appeals are hereby DENIED.
. On August 1, 2002, Lin filed a third petition for review of a BIA decision. Lin v. Immigration and Naturalization Service, Docket No. 02-4355. In that petition, Lin seeks review of the BIA’s denial of an additional motion to reopen, this time alleging ineffective assistance by Attorney Cox-the counsel that represented Lin in all of his immigration proceedings before the IJ and BIA, and that is currently representing Lin with respect to the two petitions for review we consider in this summary order.
We ordered Lin's third petition consolidated with his prior two petitions on November 21, 2002, and argument in the consolidated appeal was scheduled for February 24, 2003. However, because the parties were unable to file their briefs with respect to the third petition before the date of argument, we sever the third petition from the instant appeal. We grant the severance after being advised by counsel for Lin on the third petition that Lin consented both to severance and to having Attorney Cox continue to represent him as to the two petitions that are the subject of this summary order. Feb. 12, 2003 Ltr. from Jeffrey E. Baron, Esq. to Roseann B. MacKechnie, Clerk of Court. The government also informed this court that it did not object to the severance.
. In his denial of Lin’s reconsideration motion, the IJ mistakenly noted that it is 8 C.F.R. § 3.23(b)(3) that requires a movant for reconsideration to specify the errors of fact and law in the prior decision and to support his motion with pertinent authority. It is actually 8 C.F.R. § 3.23(b)(2) that contains these requirements. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217170/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 18th day of March, two thousand and three.
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.
Harold Bridges appeals from the May 24, 2001, judgment of the United States District Court for the Southern District of New York (Harold Baer, Jr., Judge) sentencing him to life imprisonment after a jury had convicted Bridges of conspiracy to distribute PCP. The district court held a seven day jury trial in which the Government presented testimony from Errol Card, a cooperating witness who was a customer of Bridges, and from law enforcement officers who had stopped or surveilled Bridges and other members of the conspiracy. The government also presented recordings of conversations between Bridges and Card. The defense did not call any witnesses at trial. Besides the general verdict of guilty, the jury also returned a finding pursuant to a special verdict form that Bridges’s offense involved over one kilogram of PCP. At sentencing, the district court sentenced defendant to life imprisonment in accordance with the recommendation in the Pre-sentence Investigation Report (“PSR”). Two previous felony informations filed against Bridges, combined with a finding that the offense involved at least one kilogram of PCP, resulted in a mandatory minimum sentence of life imprisonment for Bridges. Bridges makes a claim of improper admission of evidence, alleges that errors in the judge’s findings on the amount of PCP involved led to an improper sentence, and argues that the government turned over certain evidence late in violation of its discovery obligations under the Federal Rules of Criminal Procedure.
Bridges first contends that the district court improperly admitted evidence regarding discovery of a handgun. One of the arresting officers testified that he had found a .357 caliber handgun in a closet in Bridges’s residence. Bridges and his com*738mon law spouse both lived at the residence and the closet contained both men’s and women’s clothing. Bridges argues that the government introduced the existence of the gun solely for the improper purpose of demonstrating Bridges’s criminal propensity. See United States v. Muniz, 60 F.3d 65, 69 (2d Cir.1995). Bridges admits that this Court has approved testimony on the existence of weapons in narcotics cases because weapons are often tools of the trade in the narcotics business, see, e.g., United States v. Vegas, 27 F.3d 773, 778-79 (2d Cir.1994). However, Bridges contends that Vegas and other cases are distinguishable, because in his case, the link between the handgun and his involvement in narcotics trafficking was too tenuous. In support of this argument, Bridges notes that 1) there was no evidence in the record that Bridges carried a gun; 2) there were no narcotics or other drug paraphernalia found near the gun; 3) cash found near the gun belonged not to Bridges, but to his common law wife; and 4) the handgun was not loaded and no ammunition was recovered. The district court was initially reluctant to allow testimony about the gun, but agreed that it had probative value after Card’s testimony, which included a description of how he and Bridges had once been robbed of drug trafficking money at gunpoint. The district court explained that it had “rethought this gun situation” and believed that Card’s testimony implicated Bridges “as a larger player engaged in significant PCP transactions and having been part of at least one robbery of drug proceeds where guns were utilized.”
We review a district court’s decision to admit evidence for an abuse of discretion. United States v. McDermott, 245 F.3d 133, 140 (2d Cir.2001). We find that the district court did not abuse its discretion in admitting testimony on the existence of the gun, since the probative value of the gun in linking Bridges to narcotics trafficking outweighs any prejudicial effect from the testimony, especially since the gun itself was not admitted into evidence.
Bridges also challenges the district court’s finding on the amount of PCP involved in the conspiracy. Bridges argues that the district court failed to make the required independent findings on the amount of PCP involved and instead relied on the PSR’s recommendation that the conspiracy involved at least 30 kilograms of PCP. He also cites Card’s testimony suggesting that the PCP delivered by Bridges was of poor quality, and possibly not even PCP at all. In addition, Bridges claims that the district court erroneously believed that it could not reconsider the jury’s special verdict on the quantity of PCP involved.
The PSR recommended a life sentence since this was the mandatory minimum sentence required because of Bridges’s two prior felony informations and the instant offense involving at least a kilogram of PCP. Early in the sentencing colloquy, the district court acknowledged that a life sentence would be appropriate given a finding that the offense involved any amount of one kilogram or more. The court indicated that it believed the evidence supporting the jury’s finding was very clear, noting that the jury “found over one kilo because it was necessary in terms of what the sentencing might turn out to be. It had nothing to do with how many they had found. If I had put on there an interrogatory saying how many had [t]he[y] found, which I didn’t do because there was no need to do it, I assure you it would not have been one.” The district court, in approving the PSR’s recommendation that the conspiracy included the distribution of over 30 kilograms, noted:
*739[I]t was pretty clear to me that you were ... a significant player in what transpired during this period of the conspiracy, involving hundreds of gallons of at least the major ingredients, if not the material itself, for a controlled substance PCP. And since the government need only to have proven, in order to reach, accompanied by your criminal history category, this offense level of 38, need only have shown that there was a conspiracy in which you participated and that that conspiracy included the distribution of more than 30 kilos, it seems to me that we really don’t have to get into the nitty-gritty of whether there were any kinds of extenuating circumstances insofar as the specific ingredients of what you, on occasion, transported because the evidence is ample and accompanied by a variety of consensual telephone conversation transcripts.”
We reject Bridges’s sentencing challenge. Bridges’s arguments about the district court’s failure to make independent findings and to reconsider the jury verdict find no factual support in the record. The district court independently considered the jury’s finding, since it found that the offense involved a great deal more than the one kilogram found by the jury. Moreover, the court did not impermissibly rely on the PSR when it found that the offense involved 30 kilograms, a finding which finds ample support in the trial record, as noted by the district court. Nor does Card’s testimony about the poor quality of the PCP delivered by Bridges cast doubt on the court’s finding, since the PCP need not be of the finest quality and the statute requires only a “detectable amount” of PCP in the “mixture or substance.” 21 U.S.C. § 841(b)(l)(A)(iv). Moreover, other evidence besides Card’s testimony about the PCP delivered by Bridges also demonstrates that the conspiracy involved large amounts of PCP.
Finally, Bridges seeks a new trial because the Government allegedly failed to turn over discoverable material in a timely fashion, and because after the turnover of the material, the district court failed to grant a recess to allow defense counsel to review the material. The discoverable material consisted of audiotapes of conversations between Card and a then-unindicted co-conspirator Brian Williams. Bridges points to the district court’s observation that the tapes “are really discoverable and [the government] should have give them to [defendant] six months ago.” However, because the tapes did not contain exculpatory material, they were not discoverable under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,10 L.Ed.2d 215 (1963). Nor did Fed. R.Crim.P. 16 grant Bridges the right to receive the tapes, since they were not “material to preparing the defense” and “the government [did not] intend [ ] to use the item in its case-in-chief at trial.” Fed. R.Crim.P. 16(a)(1)(E).
The tapes were discoverable as “3500 material” under the Jeneks Act, which requires the government to produce statements made by government witnesses “[a]fter a witness called by the United States has testified on direct examination.” 18 U.S.C. § 3500(b); see also Fed. R.Crim.P. 26.2(a). However, since the defendant’s right to Jeneks Act material does not arise until after the witness’s testimony, the Government’s production of the tapes, which occurred prior to Card’s testimony, was not untimely. Nor did the district court abuse its discretion in declining to grant a continuance. See Grotto v. Herbert, 316 F.3d 198, 206 (2d Cir.2003).
For the reasons stated above, we affirm the judgment of the district court. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217171/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the twenty-first day of March, two thousand three.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED that the judgment of the district court be AFFIRMED.
Plaintiff-appellant Azam Saeed appeals from an order entered in the United States District Court for the District of Connecticut (Dorsey, /.) on May 14, 2002, granting summary judgment to his former employer, defendant Warner-Lambert Company (‘WL”), and dismissing all of his claims. Saeed sued under 42 U.S.C. § 1981, alleging discrimination on the basis of his race and Pakistani heritage, and asserting several claims under New Jersey state law. Saeed appeals the dismissal of his § 1981 claim, his claim for breach of the covenant of good faith and fair dealing, and his intentional infliction of emotional distress claim.1
We review the district court’s grant of summary judgment de novo. See Young v. County of Fulton, 160 F.3d 899, 902 (2d Cir.1998). In doing so, we construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Maguire v. Citicorp Retail Servs., Inc., 147 F.3d 232, 235 (2d Cir.1998). Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c).
1. Section 1981: In order to state a claim under 42 U.S.C. § 1981, plaintiff must first establish a prima facie case of discrimination, showing “(1) that he belongs to a protected class, (2) that he was performing his duties satisfactorily, (3) that he was discharged, and (4) that his discharge occurred in circumstances giving rise to an inference of discrimination on the basis of his membership in that class.” McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir.1997). Such showings create a presumption of discrimination, which defendant must rebut by “artieulat[ing] a legitimate, clear, specific and non-discriminatory reason for discharging the employee.” Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir.1995); see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Plaintiff must then prove that this reason was merely pretextual, ie., that it was “false and that discrimination was the real reason.” Quaratino, 71 F.3d at 64 (emphasis omitted).
Without deciding whether Saeed states a prima facie case of discrimination, *742we affirm because he fails to raise any genuine issue of material fact as to whether WL’s proffered reason for his termination was pretextual. WL terminated Saeed’s employment on the ground that he resisted and refused assignments. After several months of discussions about his role with the company, WL terminated Saeed two days after he informed management by e-mail that “[t]he current alternative being offered [in Italy] is the same that I have already turned down.... I am certain that prolonging the status quo will only create further misunderstanding. ... [T]he best solution in this case would be to move me to a different location.”
The disparaging remarks Saeed attributes to two of his regional supervisors do not create a material issue as to pretext. See O’Connor v. Viacom Inc./Viacom Int’l Inc., No. 93 CIV. 2399(LMM), 1996 WL 194299, at *5 (S.D.N.Y. Apr.23, 1996) (“stray remarks in the workplace ... without a demonstrated nexus to the complained of personnel actions, -will not defeat the employer’s motion for summary judgment”). As Saeed concedes, “[n]either Green nor Montanari participated directly in the decision to terminate [his] employment.” (Pl.’s Br. at 29.) Dr. Wild and the other WL managers were no mere “rubber stamp” for alleged racism by subordinates. See Collins v. New York City Transit Auth., 305 F.3d 113, 115 (2d Cir.2002) (affirming summary judgment for defendant “[w]here an employee’s ultimate termination depend[ed] upon, and [was] allowed by, a decision of an independent and unbiased arbitrator based on substantial evidence after a fair hearing”); see also Corcoran v. GAB Bus. Servs., Inc., 723 F.Supp. 966, 968-69 (S.D.N.Y.1989). Cf. Shager v. Upjohn Co., 913 F.2d 398, 402 (7th Cir.1990). Saeed’s pretext argument is further undermined by the fact that WL did not terminate him until after moving him to Italy, training him, and trying for months to find an assignment that would please him.
2. Good Faith and Fair Dealing: New Jersey law recognizes an implied covenant of good faith and fair dealing in all contracts.2 See Wilson v. Amerada Hess Corp., 168 N.J. 236, 773 A.2d 1121, 1126 (N.J.2001). That is, one party may not impair the other party’s right to receive contractual benefits by bad faith conduct that violates community standards of fairness. See id. (citing Restatement (Second) of Contracts § 205 cmt. a (1981)). To establish a breach of this covenant, plaintiff must show that defendant acted with an improper motive. See id. at 1130.
The district court dismissed this claim on the ground that Saeed fails to establish any genuine issue of material fact to suggest that WL acted with an improper motive. We agree. Saeed’s employment in WL’s global associates program entitled him to at-will employment in a series of temporary assignments with increasing responsibility based upon his individual performance. WL sent Saeed to Italy, trained him, and provided him with multiple assignments. Saeed’s refusal of assignments was a proper motive for his dismissal. As to arrangements for Saeed’s relocation, he offers no evidence that he was entitled by contract to relocation expenses or to any other benefits upon his termination.
3. Infliction of Emotional Distress: In order to state a claim for intentional infliction of emotional distress (“IIED”) under *743New Jersey law, plaintiff must show (1) intentional and outrageous conduct by the defendant, (2) proximate cause, and (3) severe emotional distress. See Griffin v. Tops Appliance City, Inc., 337 N.J.Super. 15, 766 A.2d 292, 296 (N.J.Super.Ct.App.Div.2001). The emotional distress must be “so severe that no reasonable man could be expected to endure it.” Id. (internal quotation marks omitted).
As the district court observed, Saeed’s only evidence of distress is hair loss and difficulty sleeping for “a number of months.” (Tr. of Saeed Deposition, dated June 5, 2001, at 558-60.) He conceded that he was able to engage in normal daily activities and did not take any medication, ■undergo any tests, or seek treatment of any kind beyond consulting his physician wife. (See id.) New Jersey courts have rejected such vague and unsubstantiated maladies as insufficient to establish IIED. See, e.g., Buckley v. Trenton Sav. Fund Soc’y, 111 N.J. 355, 544 A.2d 857, 864-65 (N.J.1988); Griffin, 766 A.2d at 298. Saeed offered no proof of psychological trauma or any lasting problems. He argues that we should take into account his unique personal circumstances, including the stoicism bred by his military training, but “people cannot recover for idiosyncratic emotional distress that would not be experienced by average persons.” Taylor v. Metzger, 152 N.J. 490, 706 A.2d 685, 697 (N.J.1998) (emphases added).
For the reasons set forth above, the judgment of the district court is hereby AFFIRMED.
. Saeed does not challenge the district court's dismissal of his other claims (breach of contract, negligent misrepresentation, negligent infliction of emotional distress, and promissory estoppel).
. We assume, as the district court did, that New Jersey law applies based upon agreement of the parties. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217173/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 28th day of March, Two Thousand and Three.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the decision of said district court be and it hereby is AFFIRMED in part and DISMISSED in part.
Defendant-appellant Marcelo Almeida appeals from a April 9, 2002 judgment, subsequent to his plea of guilty, sentencing him to imprisonment of 26 months, followed by three years of supervised release, a special assessment of $100, and restitution in the amount of $3000 for violating 18 U.S.C. § 844(e) by making a false bomb threat.
In his appeal, Almeida argues that (1) the government violated the plea agreement when it moved for an upward departure; and (2) the district court abused its discretion in failing to grant him a downward departure.
“In reviewing a sentence imposed under the Sentencing Guidelines, we ‘accept the findings of fact of the district court unless they are clearly erroneous,’ 18 U.S.C. § 3742(e), and will not overturn the court’s application of the Guidelines to the facts before it unless we conclude that there has been an abuse of discretion. However, where a sentencing court’s application of the Guidelines approaches a purely legal question, we employ a de novo standard of review.” United States v. Deming, 269 F.3d 107, 109 (2d Cir.2001) (per curiam) (citations omitted).
The defendant’s appeal is completely without merit. ‘We review interpretations of plea agreements de novo and in accordance with principles of contract law. To *747determine whether a plea agreement has been breached, we look[ ] to the reasonable understanding of the parties as to the terms of the agreement.” United States v. Riera, 298 F.3d 128, 133 (2d Cir.2002). The plea agreement makes no mention of motions for departure, but does include a provision that there are “[n]o promises, agreements or conditions other than those set forth in the agreement.” During the plea proceedings, and before Almeida had formally pleaded guilty, the government clearly announced its intention to move for an upward departure. The government’s subsequent motion for a departure could not be a violation of the plea agreement; no agreement existed regarding departures.
Furthermore, granting a downward departure is within the district court’s discretion and is unreviewable on appeal, United States v. Miller, 263 F.3d 1, 3-4 (2d Cir.2001) (per curiam), unless it is shown “that a violation of law occurred, that the Guidelines were misapplied, or that the refusal to depart was based on the sentencing court’s mistaken conclusion that it lacked authority to depart,” United States v. Kalust, 249 F.3d 106, 110 (2d Cir.), cert. denied sub nom., 534 U.S. 894, 122 S.Ct. 213, 151 L.Ed.2d 152 (2001) (internal quotations omitted). The defendant has not even argued that one of these grounds applies, and the record indicates that they do not. As a result, we do not have jurisdiction to review this claim and that part of the appeal is dismissed.
The judgment of the district court concerning the upward departure is AFFIRMED and the remainder of the appeal is DISMISSED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217174/ | SUMMARY ORDER
UPON DUE CONSIDERATION of this appeal from the United States District Court for the Southern District of New York (Berman,./.), it is hereby
ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
Defendant Goris appeals from the judgment of conviction entered in the Southern District of New York (Berman, /.) following his guilty plea. He alleges that his counsel’s failure to object to an error in his Presentence Investigation Report (“PSR”) constituted ineffective assistance of counsel and resulted in the violation of his right to due process. The PSR erroneously stated that Goris pled guilty in May 1996 to criminal possession of a weapon in the second degree rather than criminal possession of a controlled substance in the second degree. Defense counsel did not object in writing or orally at sentencing to this erroneous statement.
It is well established that a defendant, to establish ineffective assistance of counsel requiring reversal of his conviction, must demonstrate both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Defendant argues that trial counsel’s failure to object to the error in the PSR left the District Court
with the impression that Goris had a prior conviction for criminal possession of a weapon in the second degree in 1995, rather than for criminal possession of a controlled substance in the second degree based essentially on the same narcotics conspiracy underlying the federal charges.... The outcome of the sentencing may well have been different *749had trial counsel objected to this error in the report.
We need not decide whether counsel’s failure to object to the error in the PSR was deficient within the meaning of Strickland’s performance prong because there is no reasonable probability that but for the error the result of defendant’s sentencing would have been different. United States v. Chin, 224 F.3d 121, 125 (2d Cir.2000). We note at the outset that the error did not affect the calculation of defendant’s offense level or criminal history. Furthermore, the District Court fully explained that the basis for its sentencing decision was the seriousness of the charged offenses, the need for deterrence and punishment, and the countervailing need to recognize the defendant’s cooperation. Nowhere did it reference an alleged weapons conviction. Rather, the District Court was concerned that the murder in aid of racketeering count, which is unrelated to the error in the PSR, was a serious crime for which defendant had not yet been sentenced. There is no reason to believe that correction of the PSR would have affected the Court’s judgment with respect to the need to punish defendant for this murder.
Nor is there any basis for speculating, as defendant urges, that the District Court “might well have imposed,” a lower sentence if it had known that Goris’ prior conviction was for substantially the same conduct underlying defendant’s federal narcotics count. Despite the error in the PSR, the District Court determined the extent of departure with full knowledge that defendant had pled guilty in 1996 in state court to manslaughter and narcotics possession and that the defendant maintained that these state convictions were for substantially the same conduct underlying his federal narcotics count.2
Because we find that defendant has not demonstrated a reasonable probability that but for counsel’s failure to object to the error in the PSR his sentence would have been different, defendant has failed to es*750tablish that he suffered prejudice from the alleged deficient conduct of counsel, and his ineffective assistance of counsel claim must fail.
Defendant also alleges, albeit in summary fashion, that counsel’s error resulted in a due process violation because he “was sentenced based upon material misinformation in the probation report.”
We have held that “[a] sentence based in part on material misinformation may not stand.” United States v. McDavid, 41 F.3d 841, 844 (2d Cir.1994) (emphasis in original). There is no basis in the record to support a conclusion that the District Court believed conviction for possession of a weapon, as distinguished from narcotics, was a material fact in its sentencing determination. As discussed above, the District Court was aware that defendant had pled guilty in 1996 in state court to manslaughter and narcotics possession, and there is no reason to believe that it operated under a misapprehension of fact in sentencing the defendant.3 Thus, we find that defendant was not denied due process at his sentencing.
We have considered all of defendant’s arguments and find them to be without merit.
The judgment of the District Court is AFFIRMED.
. For example:
(1) at sentencing, the government informed the Court that defendant was serving a state sentence related to the murder of Sanchez and possession of narcotics;
(2) defense counsel at sentencing argued that defendant was indicted federally for “essentially the same conduct that resulted in the state court conviction back in 1995.... At that time he was convicted of possession in the second degree for possession of 3 ounces of heroin. As your Honor is aware, since you recently presided over the [co-conspirator’s] trial, those were the overt acts that were referenced for Mr. Goris in this indictment” (emphasis added);
(3) again at sentencing defense counsel argued to the Court that defendant pled guilty in state court to manslaughter in the first degree and possession of narcotics in the second degree and that the sentence he received at that time contemplated the conduct that he committed, i.e., the homicide and narcotics possession;
(4) in its motion pursuant to United States Sentencing Guideline § 5K1.1 and 18 U.S.C. § 3553(e) ("5K motion”), the government reported to the Court that Goris had pled guilty in 1995 to manslaughter in the first degree and criminal possession of a controlled substance in the second degree;
(5) even though the PSR falsely characterized Goris’s 1996 state conviction as possession of a weapon, it also reported that, ”[a]ccording to the Government, this criminal conduct is encompassed in the narcotics conspiracy charged in the instant offense” (emphasis added);
(6) defense counsel stated in its sentencing letter to the Court that defendant had pled guilty to homicide and narcotics trafficking with respect to the Sanchez murder and that he had already been sentenced in state court to a substantial amount of time “for the same conduct for which he was indicted in this matter” (emphasis added); and
(7) the sentencing court had presided over trial and thus was especially familiar with the facts of this case.
. We note that defendant does not allege that he was denied his right, pursuant to Rule 32 of the Federal Rules of Criminal Procedure, to contest facts in his PSR. In fact the District Court specifically cautioned the defendant at his plea allocution to review the PSR very carefully and to raise any errors therein "before the sentence so that [the Court does not] proceed on the basis of mistaken information.” At sentencing, the Court specifically asked the defendant and his counsel whether they had reviewed the PSR and whether they had any objections to it. Defendant answered that he had reviewed the report with counsel, and counsel responded on behalf of himself and defendant that they had no objections other than to the sentence recommendation. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217175/ | SUMMARY ORDER
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.
Defendant-appellant Jairo Herrera-Benavides appeals from a July 2, 2001 judgment of the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge), convicting him, after a jury trial, of one count of conspiracy to distribute and possess with intent to distribute heroin and cocaine, in violation of 21 U.S.C. § 846, and one count of distribution and possession with intent to distribute heroin and cocaine, in violation of 21 U.S.C. § 841(a)(1). The District Court sentenced Herrera-Benavides to concurrent terms of 188 months’ imprisonment and five years of supervised release and imposed a $200 special assessment.
Herrera-Benavides raises two arguments on appeal: (1) that the jury’s verdict was not supported by legally sufficient evidence and (2) that the District Court improperly enhanced his sentence for obstruction of justice. Both of these arguments lack merit.
A defendant challenging his conviction for the sufficiency of the evidence “faces a ‘heavy burden.’ ” United States v. Glenn, 312 F.3d 58, 63 (2d Cir.2002) (quoting United States v. Matthews, 20 F.3d 538, 548 (2d Cir.1994)). In order to succeed, Herrera-Benavides must show that, “viewing the evidence in the light most favorable to the Government and drawing all reasonable inferences in its favor, ... ‘no rational trier of fact’ could have concluded that the Government met its burden of proof.” Id. (quoting United States v. Mor*752rison, 153 F.3d 34, 49 (2d Cir.1998)). Herrera-Benavides cannot meet this heavy burden.
The trial evidence amply supports Herrera-Benavides’s convictions on both counts. Isaías Diaz, a drug dealer, testified that between 1997 and 1998 he received from Herrera-Benavides a total of approximately four kilograms of heroin and an unspecified amount of cocaine. Diaz’s girlfriend Aceneth Cardozo, also a drug dealer, also received cocaine and heroin from Herrera-Benavides. The Government’s evidence also included $8000 in cash and an electronic scale that had been seized from Herrera’s apartment, the transcript of the plea allocution of one of Herrera-Benavides’s co-conspirators, and eight recorded telephone conversations between Herrera-Benavides and Cardozo. Diaz testified that these conversations involved coded references to various drug transactions. Although Herrera-Benavides attacks Diaz’s credibility, the jury clearly believed the latter’s testimony, and we must defer to the jury’s assessment of witness credibility. See United States v. Bala, 236 F.3d 87, 93-94 (2d Cir.2000). In light of the foregoing, we conclude that the evidence was sufficient to sustain the convictions on both counts.
We also conclude that the District Court did not err in enhancing HerreraBenavides’s sentence for obstruction of justice pursuant to § 3C1.1 of the Sentencing Guidelines. An obstruction-of-justice enhancement is appropriate where the defendant has provided perjured testimony. U.S.S.G. § 3C1.1, cmt. n. 4(b). Here, the District Court found that Herrera-Benavides’s testimony was “mottled through with perjury.” The District Court had ample basis for concluding that HerreraBenavides lied when, inter alia, he testified that he had never sold drugs to Diaz or Cardozo. Thus, the District Court was well within its discretion in concluding that Herrera-Benavides willfully gave false testimony as to a material matter, justifying the two-level enhancement for obstruction of justice. See, e.g., United States v. Dunnigan, 507 U.S. 87, 94-95, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993).
Accordingly, the judgment of the District Court is AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217176/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 2nd day of April, Two Thousand and Three.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court is VACATED and REMANDED, in part.
Defendantr-Appellant Jon Kenneth Major appeals from a judgment of conviction entered July 3, 2002 in the United States District Court for the Eastern District of New York (Reena Raggi, Judge). The judgment convicted appellant, pursuant to a guilty plea, of one count of possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1), and imposed a sentence of 71 months imprisonment, three years of supervised release, a $20,000 fine, and a $100 special *754assessment. This appeal is limited to the portion of the written judgment reflecting imposition of an unconditional fine which, Appellant maintains, is inconsistent with the district court’s oral sentence imposing a conditional fine thereby requiring modification of the judgment.
Because the record is unclear whether the district court intended to impose a conditional or unconditional fine at oral sentencing, we cannot discern whether the oral sentence is inconsistent with the written judgment requiring modification, see United States v. A-Abras, Inc., 185 F.3d 26, 29 (2d Cir.1999) (inconsistency between unambiguous oral sentence and written judgment resolved in favor of oral sentence), or whether the written judgment merely clarifies the oral sentence requiring no corrective action, see also United States v. Truscello, 168 F.3d 61, 62-63 (2d Cir.1999) (absent obvious conflict, written judgment may operate to clarify any ambiguity in oral sentence) (citations omitted).
More importantly, we are concerned that the district court may have misunderstood the appropriate scope of its sentencing authority when it promised to forgive, or at least consider forgiving, the fine. Indeed, it is unclear whether the fine represented a condition of supervised release, in which case the district court may later modify it on its own accord pursuant to 18 U.S.C. § 3583(e), or whether the fine represented an independent sentence term, in which case the district court may modify or remit the fine only upon a government petition pursuant to 18 U.S.C. § 3573. Our uncertainty suggests that meaningful appellate review is not possible, which is particularly problematic when confronted with two statutory provisions that have such palpably distinct effects on Appellant’s sentence. We find it significant that the government does not seriously oppose a remand for the purpose of obtaining clarification of the district court’s intent. Accordingly, we vacate that portion of the judgment pertaining to the fine and remand to the district court for resentencing.
For the reasons stated above, the portion of the district court’s judgment imposing the fine is hereby VACATED and REMANDED for resentencing. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217177/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 2nd day of April, Two Thousand and Three.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court is AFFIRMED in part, and VACATED and REMANDED in part.
Defendant-appellant-cross-appellee Vincent Sicurella appeals from a judgment of conviction entered June 21, 2002 in the United States District Court for the Western District of New York (John T. Elfvin, Judge), following a jury trial at which Sicurella was convicted of using extortionate means to collect an extension of credit in violation of 18 U.S.C. § 894. Sicurella maintains on appeal that the evidence was insufficient to support his conviction, that the district court abused its discretion in refusing to investigate potential juror misconduct, and that the district court abused its discretion in not admitting certain evidence on his behalf. The United States cross-appeals one aspect of the sentence, alleging the district court abused its discretion in failing to apply a specific offense characteristic for Sicurella’s possession of *756a dangerous weapon during the commission of a crime that, if imposed, would have resulted in a three-point increase on Sicurella’s base offense level.
Reviewing claims of insufficiency of evidence de novo, United States v. Autuori, 212 F.3d 105, 114 (2d Cir.2000), we consider all evidence “in the light most favorable to the government, crediting every inference that the jury might have drawn in favor of the government,” United States v. Velasquez, 271 F.3d 364, 370 (2d Cir.2001). In light of what we perceive to be overwhelming proof of guilt, we are quite certain that “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Sicurella argues there was insufficient evidence on which a jury could conclude that he made threats of violence in connection with collection of the debt. Sicurella further argues that mere threats of economic harm, standing alone, cannot establish a violation of 18 U.S.C. § 894. Because we conclude that there was ample evidence from which the jury could have found that Sicurella made threats of violence in connection with his attempt to collect a debt, we need not reach his argument that threats of economic harm alone cannot establish a § 894 violation.
Sieurella’s challenge to the district court’s failure to investigate potential juror misconduct fails as well. “The decision to investigate jury misconduct allegations rests within the sound discretion of the district court.” United States v. Rosario, 111 F.3d 293, 299 (2d Cir.1997). In this case, we recognize that the district court took no action to investigate the allegations to ensure that no taint occurred. Nor did it provide a cautionary instruction to ensure any taint that might have occurred did not operate to muddy the entire jury pool. On the other hand, there is no evidence in the record to show that any actual taint did occur. Failure by the court to inquire further is troubling, but defense counsel failed to timely demand a mistrial or new trial—the only viable relief available to Sicurella at this point—resulting in waiver of the issue. See United States v. Blume, 967 F.2d 45, 48 (2d Cir.1992). Accordingly, we are without authority to review this claim or award any relief on appeal. See United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (waiver permanently extinguishes the right to raise claim on appeal). Even if counsel’s failure to object or demand a mistrial constituted forfeiture rather than waiver, thereby permitting limited appellate review, see id. at 731, 113 S.Ct. 1770, we conclude the district court’s inaction is not likely to have affected Sicurella’s substantial rights in fight of the overwhelming proof of guilt in this case, see id. at 734, 113 S.Ct. 1770. Accordingly, we find no plain error.
Sicurella’s challenge to the district court’s evidentiary ruling fares no better. Even if the district court erred by excluding the defense’s documentary evidence, and even assuming that the evidence was relevant and probative other than to impeach a government witness, the error was harmless in fight of overwhelming proof of guilt. See United States v. Tropeano, 252 F.3d 653, 659 (2d Cir.2001) (“harmless error analysis applies to evidentiary errors ....”)
Finally, we turn to the government’s cross appeal. Despite the great deference afforded district courts in sentencing, see United States v. Ahmad, 202 F.3d 588, 590 (2d Cir.2000), and the broad, fact-finding discretion during sentencing, United States v. Pico, 2 F.3d 472, 475 (2d Cir.1993), this deference and discretion are not unlimited. It is axiomatic that a sentencing court must make some factual findings, “with sufficient clarity to permit *757appellate review.” United States v. Gambino, 106 F.3d 1105, 1111 (2d Cir.1997). In this case, the district court made no factual findings in connection with its denial of the government’s request for a three-point increase under U.S.S.G. § 2E2.1(b)(l)(C). Unable to discern whether and to what extent the district court might have relied upon either incorrect legal principles or erroneous factual considerations, we must vacate and remand for findings and resentencing.
For the reasons stated above, the judgment of the district court is AFFIRMED in part, and VACATED and REMANDED in part. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217178/ | SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Order of the district court is AFFIRMED.
Plaintiffs-appellants Cheng Yong Wang and Xingqi Fu, a/k/a Frank Fu, appeal from a final judgment entered March 27, 2002 in the United States District Court for the Southern District of New York (Harold Baer, Jr., Judge), dismissing for lack of subject matter jurisdiction Plaintiffs’ complaint alleging claims for malicious prosecution and false arrest under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 and 2671, et seq. (“FTCA”). Plaintiffs’ claims arise in connection with their arrest on February 20, 1998 and indictment on March 6,1998 for conspiring “to acquire, receive and otherwise transfer human organs ... from executed Chinese prisoners, for valuable consideration for use in human transplantation” in violation of 18 U.S.C. § 371. After dismissal of the indictment pursuant to the government’s request, Plaintiffs filed an action in federal court against the United States under the FTCA, but not before filing an administrative claim with the U.S. Attorney’s Office on March 1, 2000. In two separate Orders, the district court dismissed Plaintiffs’ claims for lack of subject matter jurisdiction. We agree.
Reviewing de novo the district court’s dismissal for lack of subject matter jurisdiction, see Jaghory v. New York State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir.1997), we examine the complaint on its face to determine whether Plaintiffs’ factual al*759legations establish federal jurisdiction over claims grounded in the FTCA. On appeal, the gravamen of Plaintiffs’ malicious prosecution claim focuses on the conduct of both the investigative agents and of the informants Paul Risenhoover and Harry Wu.1
Conduct taken by law enforcement agents involving an element of discretion, which discretion is based on “considerations of public policy,” Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), is bulletproof from liability under the operative discretionary function exception, 28 U.S.C. § 2680(a). Plaintiffs failed to meet their burden of pleading facts which would support a finding that the conduct of the investigative agents fell outside the scope of the exception. See United States v. Gaubert, 499 U.S. 315, 324-25, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). Accordingly, the district court lacked subject matter jurisdiction and dismissal was proper.
For the United States to be held liable for the conduct of the informants under an intentional tort claim, the informants must be both employees acting within the scope of their employment, see 28 U.S.C. § 2679(b)(1), and “investigative or law enforcement officials,” see id. § 2680(h). We need not reach the former question, see B & A Marine Co., Inc. v. American Foreign Shipping Co., Inc., 23 F.3d 709, 713-14 (2d Cir.), cert. denied, 513 U.S. 961, 115 S.Ct. 421, 130 L.Ed.2d 336 (1994) (defining an employee for the purposes of the FTCA by reference to the principles of common law agency and looking for either the “power to control” or actual “day-to-day” supervision), because Plaintiffs’ complaint fails to allege any facts that could satisfy the latter, see 28 U.S.C. § 2680(h) (defining “investigative and law enforcement officials” as only those officers “empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law”). Accordingly, dismissal of the malicious prosecution claim was proper.
Plaintiffs’ false arrest claim fares no better. Stating a claim under the FTCA requires a claimant to first present a tort claim to the appropriate federal agency within two years of the claim accruing. 28 U.S.C. § 2401(b). Section 2401’s filing requirement is strictly construed, United States v. Kubrick, 444 U.S. 111, 113, 117-18, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), and non-compliance may operate as a jurisdictional bar to proceeding in federal court, Williams v. United States, 947 F.2d 37, 39 (2d Cir.1991), cert. denied, 504 U.S. 942, 112 S.Ct. 2277, 119 L.Ed.2d 203 (1992). Plaintiffs bear the burden of pleading and proving compliance with Section 2401(b). Johnson v. The Smithsonian Institution, 189 F.3d 180, 189 (2d Cir.1999).
Here, we find that the false arrest claim accrued, as it ordinarily does under federal law, at the time of Plaintiffs’ arrest on February 20, 1998. Plaintiffs allege no facts to support accrual upon an event later in time, cf. Covington v. City of New York, 171 F.3d 117, 122 (2d Cir.1999) (accrual of § 1983 action for false arrest on conclusion of criminal proceedings where successful claim would necessarily imply invalidity of conviction), nor are we inclined to entertain a request for equitable tolling, as no such request was raised below, see Amalgamated Clothing & Textile *760Workers Union v. Wal-Mart Stores, Inc., 54 F.3d 69, 73 (2d Cir.1995) (“Generally, a federal appellate court does not consider an issue not passed upon below.”) Ultimately, Plaintiffs failed to file an administrative claim within two years of accrual. Accordingly, the district court lacked subject matter jurisdiction and dismissal was proper.
For the reasons stated above, the district court’s dismissal of Plaintiffs’ claims for want of jurisdiction is hereby AFFIRMED.
. Plaintiffs concede on appeal that the conduct of the prosecuting attorneys is shielded by the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a), from imputing liability to the United States. Having abandoned this avenue on appeal, we need not address it in this order. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217179/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 2nd day of April, Two Thousand and Three.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the decision of said district court be and it hereby is AFFIRMED.
Plaintiff-appellant Rutherford Best appeals the district court’s April 24, 2002 judgment dismissing Best’s case in its entirety. Best sought compensatory and punitive damages for false arrest, assault and battery, excessive force, malicious prosecution, and deliberate indifference to serious medical needs under both 42 U.S.C. § 1983 and state tort law from the Town of Clarkstown, New York, the Clarkstown Police Department, the Clarkstown Chief of Police, William Collins, and two Clarkstown police officers, Allen Armstrong and “John Doe.” These claims result from an incident where Best, who was found dazed and incoherent wandering away from the scene of a head-on car crash, was arrested for, among other things, driving while under the influence of drugs, all of which charges were eventually dropped. After a number of motions filed before and during trial, by the time this civil case went to the jury Armstrong was the only remaining defendant, and the only remaining claims were for: 1) excessive force; 2) false arrest, based on a charge of failure to produce an insurance card; 3) malicious prosecution, also based on the failure to produce an insurance card charge; and 4) deliberate indifference to serious medical needs. The jury found for Armstrong on the first three claims, but returned a verdict for Best on *762the deliberate indifference count, awarding $50,000 in compensatory damages and $250,000 in punitive damages. After the jury verdict, the district court granted Armstrong’s motion for judgment as a matter of law, finding that Best failed to prove that he suffered a sufficiently serious injury to support a constitutional claim for deliberate indifference to serious medical needs. On appeal, Best challenges four of the district court’s rulings.
First, Best argues that the district court erred by granting Armstrong’s motion for judgment as a matter of law on Best’s deliberate indifference to serious medical needs claim. In order to prevail on his deliberate indifference claim, Best had to prove, among other things, that he suffered from “a condition of urgency, one that may produce death, degeneration, or extreme pain” at the time of Armstrong’s alleged indifference. See Morales v. Mackalm, 278 F.3d 126, 132 (2d Cir.2002). Best’s claim rested entirely on his contention that he suffered from a diffuse cerebral edema, caused by the car crash. The district court found that the evidence presented at trial did
not support a reasonable inference that Best suffered a cerebral edema. [Best’s medical expert’s] testimony was not based upon his own reading and evaluation of the CAT scan films; instead [Best’s expert] testified as to what he believed the radiologist concluded in his report. [Best’s expert’s] conclusion that [Best] suffered a cerebral edema is, therefore, speculative.
After conducting a de novo review of the evidence, we agree with the district court’s conclusion that there was no evidence from which a jury could reasonably conclude that Best actually suffered a cerebral edema. See This Is Me, Inc. v. Taylor, 157 F.3d 139, 142 (2d Cir.1998) (judgment as a matter of law is only appropriate where “there can be but one conclusion as to the verdict that reasonable persons could have reached” (internal quotations omitted)).
Notably, although there was evidence in the record that Best was suffering from an acute psychosis while he was in Armstrong’s custody, Best has not claimed that Armstrong was deliberately indifferent to that condition. Instead, Best argued (for the first time on appeal in his reply brief) that Armstrong’s deliberate indifference to Best’s head injury caused Best’s psychosis by contributing to the evolution of an “anxiety disorder” into “psychotic episodes.” See Appellant’s Reply Br. at 6 (“Best was not psychotic before [the day of the accident] and ... the subsequent psychosis was triggered by the arrest and detention of Best, including Best’s failure to receive medical care at the scene of the accident.” (internal citations omitted)). Therefore, we have not considered the evidence that Best was suffering from an acute psychosis while he was in Armstrong’s custody in our assessment of the severity of the medical condition to which Armstrong was allegedly indifferent.
Second, Best argues that the district court erred by granting, in its March 15, 2001 order, the defendants’ motion to amend their answer to add the defense of legal justification. “Leave to amend shall be freely given, and this court reviews the district court’s actions for abuse of discretion. Parties are generally allowed to amend their pleadings absent bad faith or prejudice.” Commander Oil Corp. v. Bario Equip. Corp., 215 F.3d 321, 333 (2d Cir.2000) (internal citations omitted). Best contends that he was prejudiced by the defendants’ amendment because he conducted discovery under the assumption that legal justification would not be an issue. But there is no indication in the record that Best sought to reopen discovery, and Best has failed to identify any *763lines of inquiry he might have pursued if allowed further discovery.2 Therefore, the district court did not abuse its discretion by granting the defendants’ motion because Best failed to establish that he was prejudiced by the amendment.
Third, Best argues that the district court erred by granting the defendants’ motion for summary judgment on Best’s false arrest and malicious prosecution claims related to the charges that Best: 1) drove while his ability was impaired by drugs; 2) left the scene of an accident; and 3) failed to keep right. The district court granted the motion because it concluded that the undisputed evidence established that probable cause existed to justify the arrests. In light of the evidence, summarized by the district court in its March 15, 2001 order, there was no error in the district court’s conclusion. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996) (“The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest whether that action is brought under [New York] law or under § 1983.” (internal quotations and citations omitted)); see also Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir.2003) (noting lack of probable cause is an element of a prima facie case of malicious prosecution).
Fourth, Best argues that the district court erred by denying his motion to amend his complaint in order to add a claim that Best’s counsel characterized as “a negligence count ... revolving around medical treatment, transport to the scene, etc.” The district court denied Best’s motion to amend because it found that Best’s Notice of Claim (which New York law requires a plaintiff to file before suing a police officer, see New York Gen. Mun. Law § 50j) did “not adequately set forth the medical claims and it would be unfair surprise to the defendants.” Best has not challenged the district court’s conclusion that the claim he sought to add would have been barred by New York procedural law. Therefore, we find no error in the district court’s denial of Best’s motion. See Jones v. New York State Div. of Military & Naval Affairs, 166 F.3d 45, 55 (2d Cir.1999) (no abuse of discretion where district court denied leave to amend complaint, where “proposed amended complaint would be subject to immediate dismissal” for failure to meet procedural requirements).
For these reasons, the judgment of the district court is AFFIRMED.
. Best contends that his counsel did request additional discovery in response to the defendants’ motion to amend their answer, but he concedes that there is nothing in the record before this Court to support this contention. See Letter from Paul W. Verner to the Court of Mar. 19, 2003 (acknowledging that Best "alluded to the need for additional discovery” in his written submissions to the district court, but did "not specifically request this relief”); see also id. (asserting that ”[t]he undersigned attorney is fairly sure that his memory is correct and that additional discovery was requested during oral argument ... [but a] transcript was not ordered of that hearing”). Without more, we cannot conclude that Best’s counsel ever made such a request, or, correspondingly, that the district court erroneously disregarded it. See Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir.2000) ("The plaintiff’s failure to provide these transcripts deprives this Court of the ability to conduct meaningful appellate review.”). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217180/ | SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED.
Alfred H. Mattikow appeals from a final judgment entered in the United States District Court for the Eastern District of New York (Boyle, M.J.). Following a bench trial, the court found that Mattikow had failed to pay sums due under a promissory note and awarded the plaintiff-appellant $100,557.29. We affirm for substantially the reasons in the court’s opinion. See Aaron v. Mattikow, 146 F.Supp.2d 263 (E.D.N.Y.2001).
The judgment in this case turned on whether the obligation to pay a 24% rate of interest pursuant to a promissory note, which was discharged in exchange for the promissory note at issue, was usurious. See N.Y. General Obligations Law §§ 5— 501, 5-521. Resolution of this issue required a factual finding as to whether the original obligation was incurred by Mattikow in his personal capacity (in which case the rate of interest was usurious) or by the Maypat Realty Corp., of which he was the President (in which case it was not). Mattikow’s theory of usury was supported primarily by his own testimony, which was contradicted by documentary evidence. The court’s decision to disregard that testimony was not clearly erroneous. See Thyssen. Inc. v. Calypso Shipping Corp., S.A., 310 F.3d 102, 104 (2d Cir.2002) (per curiam).
For the foregoing reasons, we affirm the judgment. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217181/ | SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED.
Petitioner-appellant Timothy Kirby was convicted in 1986 by a jury in New York County Supreme Court (Altman, /.), of murder, attempted murder, and assault, following three mistrials that ended with hung juries. Kirby appeals from the denial, by the United States District Court for the Southern District of New York (Chin, /.), of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Kirby v. Senkowski, 141 F.Supp.2d 383 (S.D.N.Y.2001).
On appeal, Kirby argues that (1) a remand is required for an evidentiary hearing as to whether his trial counsel was constitutionally ineffective for not calling certain witnesses at the fourth trial, and (2) the introduction of certain eavesdropped statements at trial violated Title III of the Omnibus Crime Control Act of 1968 (“Title III”), 18 U.S.C. § 2510, et seq., and this violation amounted to the denial of Kirby’s rights under the federal Constitution.1
(1) According to Kirby, an evidentiary hearing under 28 U.S.C. § 2254(e)(2) is necessary to determine why his trial counsel failed to call at the fourth trial two witnesses, Anthony Keith and Gregory Stevens, who had given testimony favorable to Kirby at his first trial. To obtain such a hearing, however, Kirby was required to show that he was reasonably diligent in developing the factual record, as to his ineffective assistance claim, in state *766court. See 28 U.S.C. § 2254(e)(2); Williams v. Taylor, 529 U.S. 420, 437, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (“Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings.”). Since Kirby appears to have made no effort whatever to develop the relevant factual record in state court, and offers no excuse for the lack of diligence, he does not satisfy the requirements for obtaining the hearing he seeks.2
(2) Kirby’s argument that the admission of eavesdropped statements violated Title III was not raised before the state courts, and the claim is therefore procedurally defaulted. Kirby’s trial counsel objected to admission of the statements under the Fourth and Fifth Amendments but failed to raise Title III, and on direct appeal, the government argued that any potential Title III claim was unpreserved as well as meritless. The First Department affirmed without opinion, and we “presume that [such] silence in the face of arguments asserting a procedural bar indicated that the affirmance was on state procedural grounds.” Quirama v. Michele, 983 F.2d 12, 14 (2d Cir.1993). Having conceded at oral argument that trial counsel did not render ineffective assistance with regard to admission of the eavesdropped statements, Kirby cannot show cause for the failure to object on Title III grounds, and we see no fundamental miscarriage of justice. We therefore do not reach Kirby’s arguments as to whether the alleged federal statutory violation would qualify as the denial of a constitutional right under 28 U.S.C. § 2253(c). See generally Coleman v. Thompson, 501 U.S. 722, 749-50, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Fama v. Comm’r of Corr. Servs., 235 F.3d 804, 809 (2d Cir.2000) (“Federal courts may not review state court decisions that rest on an adequate and independent state procedural default unless petitioner can show both cause and prejudice or a fundamental miscarriage of justice”).
For the reasons set forth above, the judgment of the district court is hereby AFFIRMED.
. In his brief, Kirby also argued that his trial counsel was constitutionally ineffective for failing to challenge admission of the eavesdropped statements based on Title III, but Kirby withdrew this contention at oral argument.
. The government has represented that Kirby still has remedies available in state court, namely the filing of a motion to vacate his conviction under N.Y.Crim. Proc. Law § 440.10, and that such a motion will not be opposed on procedural grounds. Thus, it appears that the state courthouse is still open to Kirby. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217183/ | SUMMARY ORDER
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the sentence of the district court is hereby AFFIRMED.
In 1999, Plaintiff-Appellant Malik filed a 42 U.S.C. § 1983 complaint against the appellees. Malik alleged that the physical restraints placed on him by the appellees at various times during his incarceration were wrongful, impaired his ability to exercise, and caused him pain and suffering. We affirm the grant of summary judgment to the appellees and denial of partial summary judgment to Malik substantially for the reasons given by the magistrate judge.
We have considered all of Appellant’s arguments and find them meritless. We therefore AFFIRM the judgment of the district court. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217186/ | SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.
Evonne Capers appeals the district court’s (Eaton, Magistrate Judge) dismissal, pursuant to a jury verdict, of her employment discrimination action against John E. Potter, the Postmaster General and Chief Executive Officer of the United States Postal Service.
Capers argues that the charge to the jury was erroneous. The pertinent questions on the special verdict form that was given to the jury were as follows:
Did the Plaintiff prove that she requested a reasonable accommodation from the Postal Service for her disability?
Did the Postal Service prove that it offered Plaintiff or actually provided her with a reasonable accommodation for her disability?
The form provided that if the jury answered ‘Yes” to the second question, it should skip the remaining questions and sign the form as a defense verdict. Capers argues that the second question was unclear because in answering ‘Yes” to it, the jury was not required to specify which term of the disjunct it found to be true. But this fact does not render the verdict erroneous, since Capers’ discrimination claim failed if either term of the disjunct was true, that is, if she was offered reasonable accommodation or if she was actually provided reasonable accommodation. The charge to the jury was, therefore, correct.
We have considered all the other arguments that Capers’ brief arguably raises *772and find them to be without merit. We therefore AFFIRM the judgment of the district court. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217188/ | SUMMARY ORDER
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the order of the Board of Immigration Appeals be and it hereby is AFFIRMED.
Petitioner Bélé Dembélé appeals from an order of the Board of Immigration Appeals affirming, without opinion, an immigration judge’s decision which denied Dembélé’s applications for asylum and withholding of deportation. Having carefully reviewed the record, we affirm substantially for the reasons stated in the immigration judge’s careful and well reasoned opinion.1
The order of the Board of Immigration Appeals is AFFIRMED.
. We note, parenthically, that one might dispute one of the immigration judge's findings-specifically, his determination that Dembélé's "role as an assistant manager ... does not put him in [the] category [of persons subject to arrest and detention following the 1991 regime change in Mali].” But this questionable finding did not ultimately matter to the disposition of Dembélé’s application, as the immigration judge also found-and we agree-that "if, indeed, [Dembélé] is wanted for questioning or if the government is still interested in arresting him at this point in time, some seven years after the arrest warrant was issued [in 1991], that it would be solely for ... interrogation and investigation regarding illegal transactions that [Dembélé] took part in ...." (emphasis added). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217189/ | OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before this court on an appeal from an order entered in the district court on December 26, 2001, revoking the term of supervised release previously imposed on appellant Juanita Sanchez and imposing a custodial term of 37 months in accordance with the district court’s memorandum opinion dated December 20, 2001. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. *775§ 1291 and exercise plenary review. See United States v. Barbosa, 271 F.3d 438, 452 (3d Cir.2001).
The circumstances leading to this appeal are as follows. A grand jury indicted Sanchez in 1995 for three counts of distribution of heroin on three different days in the amounts of 48 grams, 30 grams, and 36 grams, respectively, and on one count of distributing 151 grams of cocaine base. Pursuant to a plea agreement Sanchez pleaded guilty to all four counts. The plea agreement stated the amount of the drugs involved and set forth, as particularly germane here, that “Count Four charges [Sanchez] with distributing approximately 151 grams of cocaine base, in violation of Title 21, United States Code Section 841(a)(1).” The plea agreement stated with respect to the cocaine count which it indicated “charges distribution of approximately 151 grams of cocaine base” that the court could impose “a mandatory minimum term of imprisonment of 10 years, a maximum term of life imprisonment, a fíne of $4,000,000, five years supervised release, and a $50 special assessment.” At the time that Sanchez pleaded guilty the prosecutor stated, inter alia, that on December 1, 1994, Sanchez sold a “bag of crack con-tainting] a hundred fifty-one grams of crack.” The court immediately asked Sanchez “do you agree with the prosecutor’s summary of what you did?” to which Sanchez responded “Yes.”
Notwithstanding the mandatory minimum sentence the government moved for a downward departure from the guidelines pursuant to U.S.S.G. § 5K1.1 and from the statutory mandatory minimum sentence pursuant to 18 U.S.C. § 3553(e). The district court granted the motion and sentenced Sanchez to a 60-month custodial term to be followed by a five-year term of supervised release. Sanchez did not appeal from the conviction or the sentence and she never has moved to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 or otherwise directly or collaterally attacked the sentence.
Subsequently, after Sanchez served her custodial term, she began serving her term of supervised release but promptly violated its terms by committing various drug offenses to which she pleaded guilty in the Philadelphia Common Pleas Court leading that court to impose custodial terms on her. The United States Probation Office accordingly petitioned in the district court to revoke her supervised release. At a hearing on this petition, Sanchez stipulated to the violation but argued that the court could not impose a custodial term of more than two years because the quantity of the drugs involved in the original offenses had not been established beyond a reasonable doubt. In this regard, she contended that when she pleaded guilty she had not been advised in accordance with the later opinion in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that in her attorney’s words stated to the district court, the quantity of drugs involved “had to be pleaded and proved beyond a reasonable doubt at the time she was convicted, and she pleaded guilty.” App. at 56. Sanchez’s argument was that inasmuch as the quantity of cocaine base had not been established she had been convicted of a class C felony subject to the penalty in 21 U.S.C. § 841(b)(1)(C) rather than a class A felony subject to the penalty in 21 U.S.C. § 841(b)(1)(A). The distinction was critical because even though the custodial term to which she had been sentenced, ie., 60 months, was authorized for a class C felony and had been served, a term of imprisonment imposed for violation of a condition of supervised release for a class C felony is limited to two years. 18 U.S.C. § 3583(e)(3). The district court did not accept her argument as it held that she had pleaded guilty to a class A felony and *776it imposed a 87-month term, a sentence authorized by 18 U.S.C. § 3583(e)(3) for a class A felony. Sanchez then appealed.
Sanchez repeats her contentions on this appeal. The government answers that Sanchez in fact pleaded guilty to a class A felony and admitted to the quantities involved, thus waiving her right to have a jury make that determination. It also argues that she never sought to have her sentence vacated or set aside under 28 U.S.C. § 2255 and cannot use these proceedings for that purpose. Finally it argues that, in any event, Apprendi is inapplicable here as it “does not apply retroactively to cases on collateral review.” Br. of appellee at 8.
We will affirm. There can be no doubt that Sanchez pleaded guilty to a class A felony as she pleaded guilty to the distribution of 151 grams of cocaine base and, indeed, acknowledged that the quantity involved was 151 grams. See 21 U.S.C. § 841(b)(1)(A); 18 U.S.C. § 3559. Furthermore, the plea agreement provided that she was pleading guilty to an offense carrying a term of life imprisonment, a sentence authorized for a class A but not a class C felony under 21 U.S.C. § 841(b). Thus, the 37-month custodial term was completely proper. In the circumstances we have no need to consider the government’s other arguments.
The order of December 26, 2001, will be affirmed. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217190/ | OPINION
AMBRO, Circuit Judge.
I. Background
Appellant Kevin Rucker, a previously convicted felon, was arrested on December 26, 2000, after a traffic stop. He subsequently pleaded guilty to possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Pre-Sentence Investigation Report recommended a two-level sentence enhancement under § 2K2.1(b)(4) of the U.S. Sentencing Guidelines (“U.S.S.G”) because the gun found in Rucker’s automobile at the time of his arrest was stolen. At Rucker’s sentencing hearing, the Government offered an April 13, 1992 Wilkins-*777burg, Pennsylvania police report showing that a handgun of the same make, model, and serial number as the gun in Rucker’s possession at the time of his arrest had been stolen from Braverman’s Gun Shop. Rucker offered no evidence or testimony to rebut the police report. Rather, he argued that a § 2K2.1(b)(4) enhancement was not supported by a preponderance of the evidence because the Government failed to establish that the gun was not returned to Braverman’s Gun Shop after the 1992 theft. Therefore, according to Rucker, the Government failed to prove that the gun was stolen at the time of Rucker’s arrest.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
At sentencing, the Government was required “to prove by a preponderance of the evidence the facts in support of a sentence enhancement....” United States v. Evans, 155 F.3d 245, 253 (3d Cir.1998). On appeal, this Court reviews the District Court’s factual determination whether the gun was stolen for clear error. United States v. Katora, 981 F.2d 1398, 1401 (3d Cir.1992).
III. Discussion
U.S.S.G. § 2K2.1(b)(4) mandates a two-level sentence enhancement if any firearm in the offense charged has been stolen. The adjustment is based on strict liability. The defendant need not have stolen the weapon or even know or have reason to know that it was stolen. U.S.S.G. § 2K2.1(b)(4) cmt. n. 19.
In this case, the Government produced a police report to prove that the gun in Rucker’s possession was stolen. Having made out a prima facie case, “the burden of production shift[ed] to the defendant ... to come forward with evidence tending to cast doubt on the Government’s evidence.” Evans, 155 F.3d at 253. Rucker failed to produce that evidence. He merely criticized the Government for failing to conduct a follow-up investigation to determine whether the stolen gun had ever been returned to Braverman’s Gun Shop. The Tenth Circuit has held, albeit in an unpublished opinion, that a police report is sufficient evidence that a gun was stolen for purposes of a § 2K2.1(b)(4) sentence enhancement. See United States v. Wilson, No. 97-8024, 1997 WL 784818, at *5-*6 (10th Cir. Dec. 22,1997); see also United States v. Polson, 285 F.3d 563, 567 (7th Cir.2002) (“[W]hen the evidence submitted by the prosecution at trial contains ‘sufficient indicia of reliability,’ the defendant must come forward with some evidence other than an unsupported denial to establish its inaccuracy.”); United States v. Washington, 146 F.3d 219, 222 (4th Cir.1998) (rejecting the defendant’s attempt “to raise a host of potential shortfalls [in a report that served as a basis for his sentence] that he cannot prove” because the defendant “failfed] to articulate a single concrete challenge”). Because Rucker produced no contrary evidence, we cannot say that the District Court committed clear error in finding that the Government had established, by a preponderance of the evidence, that the gun in Rucker’s possession was stolen. Accordingly, we affirm. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217191/ | OPINION OF THE COURT
SLOVITER, Circuit Judge.
Nancy L. Drejka appeals from the order of the District Court1 granting summary judgment to the Commissioner denying Drejka’s claim for disability benefits and supplemental security benefits (SSI). Because the parties are familiar with the facts and procedural background, we need discuss them only briefly.
I.
Drejka filed an application for supplemental security income on October 26, 1999, alleging disability since October 15, 1998 due to an inability to handle stress, depression, and borderline intellectual functioning. Her initial claim and motion for reconsideration were denied by the Commissioner. Following a hearing before an Administrative Law Judge (ALJ), the ALJ concluded that Drejka was not disabled as she was able to perform past substantial relevant work. The Appeals Council denied Drejka’s request for review and the decision of the ALJ is thus the final decision of the Commissioner. The Magistrate Judge found that the decision of the ALJ was supported by substantial evidence and granted the Commissioner’s motion for summary judgment. Drejka appeals to this Court.
Drejka was 38 years old at the time of the ALJ hearing. She has a tenth grade education and attended special education classes. Her past work experience includes periodic employment as a dishwasher, housekeeper, and newspaper inserter. She states that she has become disabled from all substantial gainful activity due to depression, an inability to handle stress, and her temper, which she has to control with medication.
Drejka has been married twice and has ten children. Nine of her children were removed from her care after one or more of them had been sexually abused by her husband or husbands. She then suffered a serious depression. The tenth child was *781removed from her care by the State of Delaware which had determined that she was unable to care for it.
Drejka’s employment history consists of work as maid at the Dover Budget Inn in 1996, earning $2,284.23, and work as a dishwasher at the Colony Inn in 1998, earning $2,786.49. Drejka contends that she left that job because there was too much pressure as they tried to rush her. She contends she has been unable to work more recently because her medication makes her sleep a lot.
Our review of the ALJ’s decision is limited to determining whether there is substantial evidence to support the decision. 42 U.S.C. § 405(g); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.1999). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)).
The ALJ applied the five-step inquiry, as required by the Social Security Act, to determine whether Drejka was disabled. The elements are (1) whether the claimant is engaged in substantial gainful activity; (2) whether claimant has a severe impairment; (3) whether claimant’s impairment meets or equals a listed impairment; (4) whether the claimant’s impairment prevents the claimant from doing past relevant work; and (5) whether claimant’s impairment prevents the claimant from doing any other work. 20 C.F.R. §§ 404.1520 and 416.920 (2002).
The ALJ found that Drejka was not presently engaged in substantial gainful activity and did suffer from a severe impairment but that her impairments did not prevent her from doing past relevant work as a housekeeper, dishwasher, and newspaper inserter. In the alternative, the ALJ also determined that Drejka’s impairments did not prevent her from doing other work. We must decide whether these findings are supported by substantial evidence.
A. Credibility of Claimant
Drejka argues that the ALJ’s finding that her testimony was not credible is unsupported by the evidence. She contends that the ALJ improperly discounted the credibility of her testimony, especially her claim that her anger occurred in all settings, and not just social settings as the ALJ decided.
The ALJ cited inconsistencies in the record as a reason for discounting Drejka’s testimony. For example, there is conflicting evidence in the record relating to whether Drejka was able to read or write. At the hearing, Drejka testified that she could read a little but could not write at all. As the Magistrate Judge explained, the ALJ found that Drejka’s testimony was directly contradicted by her lengthy written responses to a questionnaire in connection with a 1996 psychological examination. The ALJ also noted Dr. Bugglin’s evaluation that mentioned the possibility that Drejka was reading legal texts. Mag. Op. at 14. In addition, Drejka alleged for the first time at the ALJ hearing that she was also disabled due to physical impairments. The ALJ stated that the record lacked medical support for this allegation.
Although Drejka’s ability to read or write has no bearing on the state of her emotional and psychological conditions, contradictions as to this fact bear on her credibility. It is precisely because the ALJ is best situated to make credibility decisions that the findings of the ALJ are given deferential review. The ALJ has the duty to be the fact-finder. As the Magistrate Judge stated, “[i]n light of this contradictory objective evidence, the ALJ *782[ ] assigned limited credibility to Drejka’s allegations, based on the lack of medical support for her purportedly disabling mental impairments.” Mag. Op. at 14.
We thus conclude that there is substantial evidence to support the ALJ’s finding that portions of Drejka’s testimony were not credible and that she only angered in social settings.
B. Weight Given to the Opinion of the Treating Physician
Drejka argues that the ALJ improperly disregarded the opinion of her treating physician, Dr. Graff. We have recognized that greater weight should be given to the findings of the treating physician than to a physician who has examined a claimant as consultant or who has not even seen the claimant. Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir.1993). However, when faced with conflicting medical records the ALJ is not under a mandate to accept the opinion of the treating physician as the final and only determination.
Drejka argues that the ALJ erroneously relied upon earlier assessments of her impairments that were made either by consultive examiners or examiners who never met her. She contends that when the opinion of the treating physician is based upon medical and psychological evidence found in the record, the ALJ is bound to follow it. She also contends that the opinion of her treating physician should have been afforded far greater weight than the ALJ gave to it, and that instead the ALJ made lay observations about her medical condition.
We do not agree that the ALJ made his own determinations of her medical condition. Instead, the ALJ evaluated the medical evidence and determined which was more persuasive. The ALJ was entitled to review the record in totality and to discount the treating physician’s opinion. See 20 C.F.R. § 416.927(d)(2) (allowing treating physician’s opinion to be discounted where that opinion is inconsistent with other substantial evidence in the record). Drejka’s treating physician made the determination that she was disabled only in a form report. We have characterized such a form report, in which the physician’s only obligation was to fill in blanks, as “weak evidence at best.” Mason, 994 F.2d at 1065.
The ALJ found that other medical evidence in the record established that although Drejka does suffer from severe impairments, those impairments are not severe enough to disable her from all forms of substantial gainful activity. Unlike the situation in Morales v. Apfel, 225 F.3d 310, 318 (3d Cir.2000), where we held that an ALJ’s credibility judgments alone cannot override a treating physician’s medical opinion that is supported by the evidence, here the ALJ relied upon more than personal observations and credibility determinations in discounting the treating physician’s finding of disability. Such other evidence is in the form of records from Dr. Bugglin, a clinical psychologist who examined Drejka (finding Drejka’s depression to be situational in nature); Dr. Seltzer, the primary care treating physician (reporting Drejka’s condition improves with medication); Dr. Lifrak, of Delaware Disability Determinations Service who interviewed Drejka (finding Drejka not disabled although she suffers from major depression and post-traumatic stress disorder because her condition improves with medication); and the state agency disability expert psychologists (impairments not of disabling severity).
The ALJ’s findings constitute substantial evidence upon which the District Court could appropriately uphold the ALJ’s decision.
*783C. Analysis Under Steps Four and Five
Drejka argues that the ALJ improperly applied step four of the Social Security Act’s analysis, which provides that an individual is not disabled if able to perform “past relevant work.” 20 C.F.R. § 416.920(e). Past relevant work must be substantial work. Drejka contends that because her past work is not substantial gainful activity, it cannot be considered past relevant work.
Under the applicable regulations, past relevant work will satisfy the definition of substantial gainful activity if it yielded earnings of a certain amount and lasted long enough for the claimant to learn to do the job. 20 C.F.R. §§ 416.965 and 416.972. Drejka’s work as a newspaper inserter and housekeeper were not too brief to be considered past relevant work. Athough Drejka held no job that lasted for more than three months, the duration requirement is met if the length of the employment was
sufficient for the worker to have learned the techniques, acquired information, and developed the facility needed for average performance in the job situation. The length of time this would take depends on the nature and complexity of the work.
Social Security Ruling 82-62, 1975-1982 Soc. Sec. Rep. Serv. 809, 1982 WL 31886 (1982).
Drejka’s jobs were unskilled with a low vocational rating, but she worked at them long enough to learn how to do them. See Feliciano v. Sullivan, No. 87-4380, 1990 WL 118053, at *4 (E.D.Pa. Aug. 10, 1990) (holding that three months as cleaning lady sufficient to constitute past relevant work).
As to the earnings requirements, the regulations provide that for the months January 1990 through June 1999, the time period at issue, earnings averaging more than $500 per month presumptively establish substantial gainful activity; average monthly earnings less than $300 will not be considered substantial gainful activity. 20 C.F.R. §§ 416.974(b)(2)(i) and (b)(3).
Athough Drejka’s earnings did not satisfy the regulations’ earnings requirements for substantial gainful employment, earnings can only “presumptively establish” the presence or lack of substantial gainful activity. The regulations are only guidelines. The fact that Drejka voluntarily left an unskilled job because she did not want to be rushed, thereby failing to meet the presumptive earnings figure, does not mean that she is not capable of doing unskilled work on a sustained basis.
Even if we were to agree with Drejka that the ALJ’s finding that she was not disabled under step four was not supported by substantial evidence, we must turn to the ALJ’s application of step five. This step provides that a claimant is not disabled unless suffering from an impairment that prevents him or her from doing any other work. Based upon a hypothetical posed to a vocational expert, the ALJ determined that “considering claimant’s age, educational background, work experience, and residual functional capacity, she is capable of making a successful adjustment to work that exists in significant numbers in the national economy.” ALJ Op. at 7. As a result, the ALJ found that Drejka was not disabled.
Drejka argues that because the testimony of the vocational expert contains numerous inaudibles, we must, at a minimum, remand. We do not agree. As the Magistrate Judge persuasively explained in her comprehensive opinion:
[Biased on the remainder of the vocational expert’s testimony, the “inaudibles” are immaterial to the ALJ’s *784finding that plaintiff was not disabled under the regulations. The remainder of vocational expert’s testimony sufficiently supported the ALJ’s finding that Drejka could perform work as a housekeeper, dishwasher, or other jobs which are light exertionally and unskilled, [citation omitted]. It was this testimony that the AL J utilized in making the determination that the plaintiff was not disabled, not the hypothetical. Therefore, the mere fact that there were “inaudibles” in the transcript did not make it fatally flawed to require remand.
Mag. Op. at 19.
II.
For the reasons set forth, we will affirm the order of the Magistrate Judge granting summary judgment to the Commissioner.
. The case was heard by a Magistrate Judge pursuant to the consent of the parties as provided in 28 U.S.C. § 636(c).
(Amended per the Clerk’s Order dated 7/11/02). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217192/ | OPINION
McKEE, Circuit Judge.
NVF Company appeals from the district court’s grant of summary judgment to New Castle County. For the reasons that follow, we will affirm.
I.
This action originally began as a Chapter 11 bankruptcy in the bankruptcy court. NVF filed an objection to a proof of claim by New Castle County and a complaint for breach of contract against New Castle County. NVF manufactures industrial laminated plastics, vulcanized fiber and paper products. New Castle County provides sewer utility service to NVF. New Castle County’s proof of claim was for unpaid sewer service fees and NVF’s breach of contract action alleged that New Castle County breached a 1970 agreement to make repairs to a sewer that NVF built but later transferred to New Castle County. On June 14, 2000, the reference to the bankruptcy court was withdrawn and the case proceeded in the district court. In time, the district court granted summary judgment to New Castle County. Our review of the district court’s grant of summary judgment is plenary. Huang v. BP Amoco Corp., 271 F.3d 560, 564 (3d Cir.2001).
Because the district court has already set forth the factual and procedural history of this case, it is unnecessary for us to repeat that history. NVF Co. v. New Castle County, 276 B.R. 340 (D.Del.2002). Moreover, in its Memorandum Opinion, the district court has carefully and completely explained its reasons for granting summary judgment to New Castle County. We can add nothing to the district court’s thoughtful and searching analysis. Therefore, it unnecessary for us to gild the lily and engage in a separate analysis simply to reach the same result.
II.
Accordingly, we will affirm the district court substantially for the reasons set forth in the district court’s opinion without further elaboration. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217193/ | OPINION OF THE COURT
DEBEVOISE, Senior District Court Judge.
Appellant, Barbara A. Alston, appeals from a judgment of the District Court that affirmed the decision of the Administrative Law Judge (ALJ) denying Alston’s claim for disability insurance benefits and supplemental security income. We conclude that the ALJ’s finding that Alston was not disabled because she was capable of performing medium work and her past relevant work as a hospital nutritionist was supported by substantial evidence, and we will affirm.
I. Background
At the time of the ALJ decision Alston was fifty-five years of age. She had worked for 22 years as a nutritionist for a hospital, preparing food, arranging catering and preparing memos. She last worked on July 7,1998 when her employer terminated her after smelling alcohol on her breath. Alston asserts that her disability commenced the same day. She filed an application for a period of disability benefits on May 20, 2000, which was denied by the Pennsylvania State Agency. Alston appealed and a hearing was held before an ALJ. The ALJ determined at step 4 of the evaluation process that Alston has the residual functional capacity for medium work and was able to perform her past relevant work as a hospital nutritionist. He held, therefore, that she was not entitled to a period of disability or Disability Insurance Benefits.
Alston testified that pain in her neck, back and legs and arthritis in her hands precludes her from working. She formerly took Motrin which helped her pain and started taking Relafen a week before the hearing. She takes medication to control her blood pressure, cholesterol and diabetes. Alston began treating at the Western Psychiatric Institute and Clinic in October 2000 to help her deal with her feelings of depression, attributed to the deaths of several family members. She takes Buspar as needed for nervousness and Zoloft to help her sleep. She testified that the medications help her depression, and therapy helps her a “great deal.”
There is evidence that Alston walked a mile every day, took care of household chores and went grocery shopping, although at the hearing she testified that she could stand for only a half hour and walk about two blocks. She lives with a friend/landlord who has had a stroke and for whom she cooks and renders care. She can use public transportation.
Alston’s treating physician is John C. Hairston, M.D. who has attended to her since 1991 for hypertension, diabetes and high cholesterol. In July 1999 Alston was referred to West Penn Comprehensive Health Care where she was examined by Frank H. Kush, M.D. who prescribed additional blood pressure medication and reported a normal neurological examination. Further examinations disclosed discogenic and degenerative changes at C4-5 and C-6, diffuse scattered para-cervical tenderness and minimal para-thoracic tenderness, no tenderness in her cervical spine and adequate grip strength and range of motion in her neck with some pain produced at extreme ranges.
*786When Alston next returned to West Penn in May 2000 she sought papers needed for welfare benefits, and John Baron, M.D. reported that she was permanently disabled due to diabetes, hypertension, gout, anxiety and arthritis.
In June, 2000 she underwent further examinations which disclosed nothing new or remarkable. In July 2000 Alston reported feeling stressed and depressed due to her friend’s recent stroke. Thereafter she received several psychiatric examinations during which Hari VemulapaUi, M.D., a psychiatrist, declined to restart Alston on Zoloft because she seemed to be doing fairly well. In January 2001 Alston was again prescribed Zoloft by another physician and her mood improved.
II. The ALJ’s Decision
The ALJ, finding that Alston had not engaged in substantial gainful activity since July 7, 1998 when she was discharged from her job, concluded that “[a] review of the medical evidence confirms that Ms. Alston has arthritis and hypertension, impairments which are ‘severe’ in that they have more than a minimal effect on her ability to meet some of the basic demands of work.” (Record, p. 9). However, at step 3 of the evaluation process the ALJ found that there was no evidence of an impairment or combination of impairments meeting or equaling the requirements of conditions listed in Appendix 1 to Subpart P. Regulations Number 4.
The ALJ found Alston’s allegations regarding her physical limitations to be not totally credible, and he gave little weight to the form that Dr. Baron completed which indicated that Alston was permanently disabled. He concluded that Alston had the residual functional activity for medium work and (at step 4 of the evaluation process) that Alston was able to perform her past relevant work as a food nutritionist at a hospital.
III. Alston’s Contentions
Alston contends that the ALJ’s findings that she had the ability to perform a full range of medium work and that she could return to her past relevant work as a food nutritionist were not supported by substantial evidence. Alston points to the litany of ailments and disabilities from which one or another of the medical reports confirm that she suffered, i.e., discogenic degenerative changes of the cervical spine at C-4, C-5 and C-6, arthritic disease of the neck, back and hands, hypertension and anxiety and depression. She relies heavily on Dr. Baron’s opinion that she was permanently disabled, noting that the opinion of a treating physician is entitled to more weight than that of a consultative examiner, Adorno v. Shalala, 40 F.3d 43 (3d Cir.1994). Further, Alston, by implication, if not explicitly, challenges the ALJ’s finding that she was not fully credible.1
IV. Discussion
We have jurisdiction of this appeal under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. The scope of review is limited to whether the Commissioner’s decision is supported by substantial evidence.
We have reviewed the ALJ’s decision and the record and conclude that his findings were supported by substantial evi*787dence. The ALJ referred to significant evidence for rejecting Dr. Baron’s opinion of total permanent disability. Dr. Baron’s opinion, which was given by checking a box on the form he was asked to complete, is inconsistent with the reports of other physicians who were also treating physicians and physician’s assistants and with the reports of consulting physicians. Dr. Gleason stated that Alston had a full range of motion in her neck and in all of her extremities and demonstrated no neurological deficits. He further found that her grip strength was normal and full and she had no problems with fine manipulation. Alston reported that the medication Dr. Dhawan gave her for arthritis worked well for her, and he prescribed Zoloft which improved her mood and enabled her to sleep through the night.
Alston’s hypertension and diabetes were reasonably controlled with medication. When Dr. Vemulapalli evaluated Alston in November 2000 he found her to be cooperative, pleasant and in a good mood. Her speech was spontaneous, her thoughts were organized, and she denied any depressive symptoms.
The ALJ had grounds in the records to conclude that Alston’s testimony concerning her discomforts and abilities was not fully credible. There were inconsistencies between it and statements she had given on earlier occasions. It was not totally supported by the medical reports. Credibility determinations as to a claimant’s testimony regarding pain and other subjective complaints are for the ALJ to make. Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir.1983).
V. Conclusion
For the reasons set forth above we conclude that substantial evidence supported the ALJ’s determination that Alston is able to perform her past relevant work and thus is not under a disability. Accordingly we will affirm the district court’s order granting the Commissioner’s motion for summary judgment.
. Alston's reliance on the Medical Vocational Guidelines is misplaced. The grids, which take into account vocational factors such as age, education and work background are only relevant at step five of the evaluation process in determining whether other work exists in the national economy that a claimant can perform. 20 C.F.R. §§ 404.1560, 1569. The ALJ did not reach step five, because he decided at step 4 that Alston can perform her past relevant work. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217194/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
George Walker appeals the District Court’s affirmance of the Commissioner of Social Security’s denial of Social Security Disability benefits. We will affirm.
The District Court had jurisdiction under 42 U.S.C. § 405(g) (2002), and we exercise jurisdiction over the Court’s final order pursuant to 28 U.S.C. § 1291 (2002). We review the Commissioner’s factual findings for substantial evidence. Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.1999).
To establish a disability under the Social Security Act, a claimant must demonstrate there is some “medically determinable basis for an impairment that prevents him from engaging in any ‘substantial gainful activity’ for a statutory twelvemonth period.” Stunkard v. Sec’y of Health and Human Servs., 841 F.2d 57, 59 (3d Cir.1988); 42 U.S.C. § 423(d)(1). A claimant is considered unable to engage in any substantial activity “only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).
The Social Security Administration has promulgated regulations incorporating a sequential evaluation process for determining whether a claimant is under a disability. 20 C.F.R. § 404.1520; Plummer, 186 F.3d at 428. In step one, the Commissioner must determine whether the claimant is currently engaging in substantial gainful activity. 20 C.F.R. § 1520(a). If a claimant is found to be engaged in substantial activity, the disability claim will be denied. Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). In step two, the Commissioner must determine whether the claimant is suffering from a severe impairment. 20 C.F.R. § 404.1520(c). If the claimant fails to show that his impairments are “severe,” he is ineligible for disability benefits. Plummer, 186 F.3d at 428.
Here, the Commissioner denied benefits at step two. The Administrative Law Judge found that although Walker had some anxiety and depression, the impairment was not severe. The District Court affirmed. Walker challenges the ALJ’s failure to discuss every single piece of evidence presented, including his doctor’s reports that he was depressed, the State agency physician’s report indicating a few moderate limitations, the etiology of his anxiety, the fact that he was taking Paxil and Klonopin, and his subjective complaints at the hearing. Walker argues that under Cotter v. Harris, 642 F.2d 700, 705 (3d Cir.1981), the ALJ has an obligation to discuss all of the evidence.
We find that the ALJ sufficiently reviewed and discussed the evidence presented and his conclusion was supported *789by substantial evidence. An ALJ is required to review the evidence presented and explain why he rejects probative conflicting evidence. See Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir.1983). But the ALJ here did not reject any evidence, therefore he was not required to further explain his findings. He fully credited the medical reports of Walker’s treating physician. The medical records do not indicate that his anxiety was severe, and in fact, reveal that Walker’s overall mood, except for a few brief periods, was fine and continually improving.
Furthermore, the evidence that Walker wanted discussed is either not probative or not conflicting. His doctor’s reports and the fact that he was on medication simply indicate that he did have some depression, but do not conflict with the ALJ’s findings that the depression was not severe. The State agency physician’s report is not conflicting or probative because that physician found only a few moderate limitations and concluded that Walker had no disability. The etiology of his anxiety is irrelevant, and the ALJ properly concluded that his subjective complaints were not supported by objective medical evidence.
Because we agree with the District Court that substantial evidence supports the Commissioner’s denial of benefits, we will affirm. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217195/ | OPINION OF THE COURT
FUENTES, Circuit Judge.
Appellant Joseph Booker appeals from the 97 month sentence imposed on him by the District Court after he pled guilty to two counts of the five count indictment then pending against him. Booker asserts that the District Court erred by (1) imposing a four-level enhancement for his alleged leadership role in the offense pursuant to U.S.S.G. § 3Bl.l(a); (2) adopting the loss calculation contained in the Presentence Report rather than the amount the government was seeking as restitution, *791resulting in a ten-level sentencing enhancement under U.S.S.G. § 2Fl.l(b)(l)(K); (3) finding a criminal history category of VI; and (4) imposing a two-level enhancement for obstruction of justice. Discerning no error in any of the District Court’s determinations, we will affirm.
I. Facts and Procedural Background
The facts and circumstances underlying this case are well known to the parties, and therefore, they are not detailed here, except to the extent that they directly bear upon the analysis. As relevant to this appeal, Booker was charged by a grand jury with a five count indictment in which he was accused of engaging in fraudulent acts in order to obtain mortgage loans from various lenders in the names of his nephews, Dwight Drakeford and Darnell Locke a/k/a Darnell Booker. Counts One through Four of the Indictment charged Booker with using interstate wire communications on various dates in order to obtain money and property by means of false and fraudulent pretenses, in violation of 18 U.S.C. §§ 1342 and 1343. Count Five charged Booker with conspiracy to devise a scheme and artifice to defraud using interstate wire communications, contrary to 18 U.S.C. § 1343 and in violation of 18 U.S.C. § 371.
On October 12, 2000, Booker appeared before the District Court and entered a plea of guilty to Counts Three and Five of the Indictment. At issue during sentencing were defendant’s acceptance of responsibility, the amount of monetary loss, defendant’s role in the offense, calculation of criminal history, and whether it overstated the defendant’s actual criminal history. The parties agreed to a two point reduction for acceptance of responsibility. The Court ruled in favor of the government on the remaining issues. The Court sentenced Booker to a term of 60 months on Count Three and 37 months on Count Five, to be served consecutively. Additionally, the Court placed Booker on supervised release for a term of 3 years on each Count, terms to run concurrently, imposed restitution of $316,880, a fine of $15,000 and a special assessment of $100. Booker filed a timely Notice of Appeal.
II. Jurisdiction
The District Court exercised jurisdiction over this case pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
III. Discussion
A. The four-level enhancement for Booker’s leadership role in the offense under U.S.S.G. § 3Bl.l(a)
In reviewing adjustments under the sentencing guidelines, “[w]e exercise plenary review over legal questions about the meaning of the sentencing guidelines, but apply the deferential clearly erroneous standard to factual determinations underlying their application.” United States v. Inigo, 925 F.2d 641, 658 (3d Cir.1991) (citing United States v. Ortiz, 878 F.2d 125, 126-27 (3d Cir.1989)). Whether a defendant receives an increased offense level based on his role in the offense is a factual determination which is reviewable under the clearly erroneous standard. See United States v. Badaracco, 954 F.2d 928, 933 (3d Cir.1992), reh’g and reh’g en banc denied Feb. 19, 1992 (citing United States v. Salmon, 944 F.2d 1106, 1126 (3d Cir.1991)).
U.S.S.G. § 3Bl.l(a) provides for a four-level enhancement “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive[.]” U.S.S.G. § 3Bl.l(a) (2000). The burden of *792proving that an upward adjustment is warranted by a preponderance of the evidence rests with the government. See Badaracco, 954 F.2d at 935. In order to be considered a participant under the sentencing guidelines, “an individual must be criminally responsible, ie., s/he must have committed all of the elements of a statutory crime with the requisite mens rea. ” Id. at 934-35.
Booker argues that the District Court erred by considering as participants in his criminal activities Michael Bassillo and John Bigley, two appraisers who overstated the fair market value of properties involved in his mortgage fraud. Booker asserts that, although the appraisals received from Bassillo and Bigley were a necessary part of his criminal activities, these individuals did not act in a manner that makes them criminally responsible because they did not understand the scheme with which they were involved. Accordingly, Booker asserts that the District Court should have assessed a two-level enhancement under U.S.S.G. § 3Bl.l(c), rather than the four-level enhancement of U.S.S.G. § SBl.fra).1
The government counters that, irrespective of whether or not Bassillo and Bigley are considered to be participants, the four-level enhancement imposed by the District Court was warranted because it was based on alternative findings made by the Court. Indeed, the Court observed as follows:
However you define the group, whether you define it as the Defendant!,] Drake-ford, Darnell Booker, Robert Saypol and Maureen Del Sole, or whether you define it to include the [Djefendant, Drake-ford, Darnell Booker, and the two appraisers, Basilio [sic] and Bigley, you have a basis for the finding of five participants. There is no question that Mr. Booker was the organizer and leader of a criminal enterprise that involved them. * * * *
In addition to counting the number of participants it is abundantly clear to me that the criminal conduct that brings us here today was “otherwise extensive.” And I so find. Accordingly, the guidelines issue of role in the offense is resolved as probation resolved it.
Appellee’s App. at 49-50 (quotation marks added).
Booker does not dispute that Drakeford, Darnell Booker, Saypol, and Del Sole were all participants in the criminal activities for which he was convicted. Our review of the record indicates that appellant’s nephews, Darnell Booker and Drakeford, each pled guilty to a one-count information charging them with conspiracy to commit wire fraud. Presentence Report at ¶¶ 5-6. Saypol, formerly an attorney admitted to practice law in New Jersey and an indicted co-conspirator, pled guilty to a one-count information charging him with misprision of a felony for his role in the fraudulent loan transactions, which included misleading lenders by falsely certifying his receipt of down payment checks. Id. at ¶¶ 6 & 38. Del Sole was not charged, but testified before a grand jury that she knowingly *793participated in Booker’s mortgage fraud scheme and acted under his direction while serving as a vice president for his company by signing false documents which were submitted to lenders. Id. at ¶ 39. Booker himself counts as a fifth participant. See United States v. Colletti, 984 F.2d 1339, 1346 (3d Cir.1992) (defendant was properly counted as a participant because “there is no requirement that there be five persons in addition to their leader, merely a criminal activity ‘that involved five or more participants[.]’ ”).
We conclude that the District Court’s finding that the criminal activity which Booker organized involved five or more participants was not clearly erroneous. It is therefore unnecessary for us to reach the issue of whether the District Court’s imposition of the four-level enhancement was not clearly erroneous in light of its alternate finding that the conduct before it was “otherwise extensive” within the meaning of U.S.S.G. § 3Bl.l(a).
B. The ten-level enhancement for fraud loss involving more than $500,000 under U.S.S.G. § 2Fl.l(b)(l)(K)
“[0]ur review of the district court’s interpretation of ‘loss’ under [U.S.S.G.] § 2F1.1 is plenary, and our review of the district court’s application of the guidelines is governed by the clearly erroneous standard.” United States v. Evans, 155 F.3d 245, 252 (3d Cir.1998) (citing United States v. Collado, 975 F.2d 985, 990 (3d Cir.1992)). “[L]oss need only be a reasonable estimate, based on available information.” United States v. Hayes, 242 F.3d 114, 117 (3d Cir.2001) (citing U.S.S.G. § 2F1.1(b)(1), Application Note 9). Pursuant to U.S.S.G. § 2Fl.l(b)(l)(K) (2000), a defendant’s base offense level is increased by ten levels when the amount of loss resulting from fraudulent conduct is more than $500,000 but less than $800,000. See U.S.S.G. § 2Fl.l(b)(l)(K) (2000).
Booker argues that the District Court should have found a loss of $316,880, the amount of restitution he was ordered to pay by the Court. He reiterates the argument he made at sentencing that the fact that some of the banks which had made mortgage loans to his nephews were not seeking restitution indicated that they had not been harmed and, moreover, had incurred a tax advantage by writing off the unpaid loans. The government counters by explaining how the probation office calculated that Booker was responsible for an actual loss of $554,415. The Presentence Report indicates: “The actual loss was calculated by determining how much of the principal loan amount was not recovered, following a foreclosure by the lender or third-party investor. Foregone interest, unpaid real estate taxes, and expenses incurred in the foreclosure sales have not been included in the actual loss figure for each property.” Presentence Report at ¶ 29 n. 2.
We agree with the government that the Presentence Report’s calculation of loss was conservative. The loss calculation was conservative because it did not include foregone interest. See United States v. Sharma, 190 F.3d 220, 228 (3d Cir.1999) (“[I]n determining the amount of the actual loss sustained by the victim in a criminally fraudulent loan the sentencing court may include the contractually bargained-for interest.”). Also, the probation office used a zero loss value for 6 of the 23 loans for which it lacked some supporting documentation rather than approximating the amount of those losses.2
*794We therefore conclude that the District Court’s finding of a loss in the amount of $554,415 was not clearly erroneous.
C. The finding of Criminal History Category VI
A defendant’s criminal history category is calculated by adding criminal history points for prior criminal convictions. See U.S.S.G. § 4A1.1 (2000). U.S.S.G. § 4A1.2(a)(2) provides that “[p]rior sentences imposed in related cases are to be treated as one sentence” for purposes of determining the appropriate criminal history category. U.S.S.G. § 4A1.2(a)(2) (2000). “[P]rior sentences are considered related if they resulted from offenses that (1) occurred on the same occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing.” U.S.S.G. § 4A1.2(a)(2) (2000), Application Note 3.
In this case, the offenses at issue did not occur on the same occasion and they were not consolidated for trial or sentencing. The parties’ dispute is over whether they were part of a common scheme or plan. The burden is on the defendant to establish that his prior convictions were part of a common scheme or plan. See United States v. Beckett, 208 F.3d 140, 147 (3d Cir.2000). The focus is on the defendant’s intent, which is a question of fact, the resolution of which we review for clear error. See id.
Booker asserts that a Criminal History Category VI finding was not warranted. He argues that his conviction in Alabama in March of 1979 for making a false statement on a bank loan application was related to his conviction in New Jersey in September of 1979. Booker argues that the Alabama and New Jersey offenses were part of a common scheme or plan because he fraudulently purchased real property in New Jersey then used the property as security to enable him to fraudulently obtain a loan in Alabama, which he used to purchase a club there. He notes that the same investigation uncovered both crimes. In response, the government asserts that the two frauds were not part of a common scheme or plan because they occurred four months apart, had separate victims in separate states, and had completely different modus operandi.
The District Court recognized that whether the offenses were part of a common scheme or plan was addressed by this Court in United States v. Beckett, 208 F.3d 140 (3d Cir.2000). In Beckett, we adopted the Seventh Circuit’s holding that “ ‘scheme’ and ‘plan’ are words of intention, implying that [the two offenses] have been jointly planned, or at least that it would have been evident that the commission of one would entail the commission of the other as well.” Beckett, 208 F.3d at 147 (citing United States v. Ali, 951 F.2d 827, 828 (7th Cir.1992)).
After setting forth the controlling legal standard, the District Court found:
There has been no showing that the conviction of one would lead to conviction for the other. There has been no showing that at the time of the commission of the first offense there was a plan to commit the second offense. Indeed, there is nothing indicating that at the time of the commission of the first offense the defendant even intended to open a restaurant in Alabama, and it is the financing of that restaurant that is the subject matter of the second offense.
*795Exhibit D to the government’s sentencing memorandum is referred to by the government, and does support the government’s position in that Mr. Booker stated that he had never planned to defraud the bank ... It is difficult to see how if he didn’t plan to defraud the victim in that offense, there could be a common plan to defraud arising from that April, 1978, offense, and the August, 1978 Alabama offense.
So my analysis of the criminal history is that probation is correct, and paragraphs 81 and 94 [of the Presentence Report, describing, respectively, the Alabama and New Jersey convictions] were each correctly assigned criminal history points, the number of points is not challenged.
Appellee’s App. at 42-44. On appeal, Booker has not come forward with record evidence supporting a conclusion that the District Court’s finding was clearly erroneous. We conclude that the District Court did not err in finding that the Alabama and New Jersey convictions were not related for sentencing purposes.
Next, Booker argues that the District Court should have granted his motion for downward departure on the basis that the inclusion of his conviction in April of 1980 for escape from a federal institution in the calculation of his criminal history category resulted in his Criminal History Category of VI, which overstates the seriousness of his actual criminal history. We review a district court’s decisions concerning departures from the Sentencing Guidelines for an abuse of discretion. See, e.g., United States v. Abuhouran, 161 F.3d 206, 209 (3d Cir.1998) (citing United States v. Sally, 116 F.3d 76, 78 (3d Cir.1997)). However, “[w]e lack jurisdiction to review a refusal to depart downward when the district court, knowing it may do so, nonetheless determines that departure is not warranted.” United States v. McQuilkin, 97 F.3d 723, 729 (3d Cir.1989) (citing United States v. Denardi, 892 F.2d 269, 272 (3d Cir.1989)).
The District Court recognized that it had the authority to grant a downward departure on the basis that Criminal History Category VI overstated Booker’s actual criminal history. The Court noted that:
taken together [the Alabama and New Jersey convictions and the escape from a federal institution conviction] do not form a basis for a downward departure as a significant over-representation of criminal history ...
[T]hey are all separately dealt with, and appropriately so. And insofar as a likelihood of recidivism is concerned, this offense that we are dealing with here today makes it abundantly clear to me that there has been no over-representation of the likelihood of recidivism inherent in [the offenses for which Booker was previously convicted].
Appellee’s App. at 44-45. Because the District Court recognized that it had the authority to grant a downward departure and concluded that a departure was not warranted, we lack jurisdiction to review this ruling.
For the foregoing reasons, we conclude that the District Court properly determined that a Criminal History Category of VI was appropriate.
D. The two-level enhancement for obstruction of justice
We apply a clearly erroneous standard in reviewing the District Court’s factual determination that a defendant willfully obstructed justice. See United States v. Belletiere, 971 F.2d 961, 964 (3d Cir.1992). U.S.S.G. § 3C1.1 provides:
*796If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant’s offense of conviction and any relevant conduct; or (ii) a closely related offense, increase the offense level by 2 levels.
U.S.S.G. § 3C1.1 (2000). The Application Notes provide that one way to trigger this enhancement is by “providing materially false information to a judge or magistrate.” U.S.S.G. § 3C1.1 (2000), Application Note 4(f).
On March 6,1996, after learning that his nephews had confessed to the FBI, Booker made a series of inculpatory statements to special agents of the FBI. He subsequently moved to suppress those statements. In support of his motion to suppress, Booker averred that, when he was being questioned by the FBI, he did not understand that he was free to leave, could remain silent, or could terminate the questioning. He also averred that he believed that he was going to be questioned about matters in which there were no allegations of wrongdoing against him. Additionally, in paragraph 3 of his affidavit, Booker averred that, although his attorney told him that he signed an “Interrogation and Advice of Rights Form,” he did not understand that the statements he made to the FBI could be used against him. After briefing on the suppression motion, the Court denied the motion to suppress.
During the sentencing hearing, the District Court heard testimony from Postal Inspector Robert Krut, who was present when Booker made inculpatory statements on March 6, 1996. Krut testified that Booker was advised that he was the target of an investigation and was advised of his rights in detail before he signed the waiver. Krut also testified that, when Booker told the authorities that he wished to leave later in the afternoon in order to make another appointment he had scheduled, they told him he could do that and thereby gave him control over the duration of the interview. Krut described Booker as being relaxed, cordial, and cooperative. See Appellee’s App. at 86-91. After hearing Krut’s testimony and that of FBI Agent Scott Marino, the District Court ruled:
Now, I denied the suppression motion to which this affidavit, paragraph 3, that we are all referring to was an adjunct, it was submitted in support of that suppression motion, found I did not believe the defendant.
I now go further. Not only do I not believe paragraph 3. I find that it was a deliberate lie. I do not implicate counsel in that____
So the fact that the affidavit was prepared by counsel does not implicate counsel in this. But it certainly implicates the defendant whose position it is, whose statement it is, and who swore to it, and he swore to it in an effort to have evidence that he willingly gave in the March 6 meeting suppressed. So I find an obstruction of justice based upon Inspector Krut’s testimony.
Appellee’s App. at 141-42. Booker asserts that, because the statements he made in his affidavit in support of his motion to suppress related to his state of mind and level of understanding of his constitutional rights, they are not sufficiently factual to meet the materiality requirement of U.S.S.G. § 3C1.1. We disagree. Material information is defined by the Application Notes as meaning “evidence, fact, statement, or information that, if believed, would tend to influence or affect the issue under determination.” U.S.S.G. § 3C1.1 (2000), Application Note 6. Here, Booker’s *797sworn statement was material because, if believed, it would “tend to influence” whether or not the Court suppressed the inculpatory statements he made to the authorities.
We discern no error in the District Court’s imposition of a two-level enhancement for obstruction of justice.
IV. Conclusion
After carefully considering the arguments discussed above and all other arguments advanced by the appellant in support of his assertion that the District Court erred with respect to his sentencing, we affirm the District Court’s judgment.
. U.S.S.G. § 3B1.1 provides:
Based on the defendant's role in the offense, increase the offense level as follows:
(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.
(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.
(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.
U.S.S.G. § 3B1.1 (2000).
. See U.S.S.G. § 2F1.1 (2000), Application Note 9 ("The court need only make a reasonable estimate of the loss, given the available information. This estimate, for example, may *794be based on the approximate number of victims and an estimate of the average loss to each victim, or on more general factors, such as the nature and duration of the fraud and the revenues generated by similar operations. The offender’s gain from committing the fraud is an alternative estimate that ordinarily will underestimate the loss.”). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217196/ | OPINION OF THE COURT
PER CURIAM.
Dameon Berry appeals the order of the district court denying his motion for post-conviction relief under 28 U.S.C. § 2255. We granted a certificate of appealability to review Berry’s claims. We now affirm the order of the district court.
I.
Inasmuch as we are writing only for the parties and the district court, we need not set forth the factual or procedural background of this matter except insofar as may be helpful to our brief discussion.
On November 15, 1996, a jury'convicted Berry of conspiracy to commit carjacking, carjacking and using a firearm'in relation to a crime of violence. The evidence presented at trial established that between January 6 and January 14, 1996, Berry and two co-defendants carjacked one car and attempted to carjack two additional cars. During each incident either co-defendant Tevin Lewis or Tyrone Briggs brandished and fired a gun at the carjacking victims. On March 14, 1997, the district court sentenced Berry to a total term of imprisonment of 397 months. We subsequently affirmed the district court’s judgment, United States v. Briggs, 135 F.3d 767 (3d Cir.1997), and the Supreme Court thereafter denied certiorari. Berry v. United States, 523 U.S. 1131, 118 S.Ct. 1824, 140 L.Ed.2d 960 (1998).
On April 15, 1999, Berry filed his pro se motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255, alleging, in part, ineffective assistance of counsel during the plea bargaining phase of the criminal proceedings. On December 7, 2000, the district court denied Berry’s motion but we thereafter granted a certificate of appealability to determine whether Berry’s counsel rendered constitutionally ineffective assistance and whether the district court erred in not holding a hearing on Berry’s claim of ineffective assistance of counsel. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
II.
Berry first argues that his trial counsel was ineffective in incorrectly advising him that he faced a maximum penalty of ten years imprisonment but “stood a good chance of prevailing at trial” as well as informing Berry that “he could not plead guilty unless he agreed to cooperate.” Berry claims that had he been fully aware that he was facing 397 months imprison*799ment if convicted at trial, he would have pled guilty, and had a more favorable sentence imposed. Berry’s second argument is that the district court abused its discretion by denying his § 2255 motion without first holding an evidentiary hearing with regard to his ineffective assistance of counsel claim. We address each of Berry’s contentions in turn.
A.
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court set forth the two pronged standard used to evaluate claims of ineffective assistance of counsel. In order to prevail on a claim of ineffective assistance the defendant must show that “counsel’s performance was deficient” and “that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052; see also United States v. Kauffman, 109 F.3d 186, 190 (3d Cir.1997).
To demonstrate that counsel’s performance was deficient, the defendant must establish that “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052.
[The court] must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omission of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.
Id. at 690,104 S.Ct. 2052.
The prejudice inquiry requires the defendant to establish that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. “Our inquiry must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like. A defendant has no entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed.... It should not depend on the idiosyncracies of the particular decision-maker, such as unusual propensities toward harshness or leniency.” Id. at 695, 104 S.Ct. 2052.
The defendant must establish both prongs of the inquiry for “[f]ailure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Strickland, 466 U.S. at 700, 104 S.Ct. 2052.
Berry’s claim of ineffectiveness can not succeed because his counsel’s assessment that Berry “stood a good chance of prevailing at trial” was a realistic assessment of his case that did not fall below the standard of performance necessary to establish an ineffectiveness claim. Defense counsel knew that only one prosecution witness could identify Berry, and that only tied him to the January 6, 1996 carjacking. Moreover, that eyewitness, David Keane, only briefly observed Berry at night when the opportunity to observe was not optimal. The victims of the other two attempted carjackings never saw Berry at all. Given this evidence, Counsel’s assessment of Berry’s chances at trial was indeed reasonable.
Counsel’s advice that Berry “not plead guilty unless he agreed to cooperate” with law enforcement authorities was also objectively reasonable. Berry was unwilling to cooperate with the government or *800plead guilty to all of the pending charges. His denial of any involvement in the criminal conduct, and his failure to offer any cooperation would likely have precluded the government from recommending favorable sentencing treatment had he pled guilty.
However, the government does concede that if, as Berry alleges, his attorney advised him that he faced a maximum sentence of ten years imprisonment upon conviction, counsel’s advice was erroneous and therefore breached his duty “to advise his client fully on whether a particular plea to a charge appears to be desirable,” Boria v. Keane, 99 F.3d 492, 496 (2d Cir.1996). However, even assuming that counsel’s performance was deficient, Berry cannot establish prejudice because he has not shown that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. As the district court pointed out, because Berry would not plead guilty to all of the charges, the court would have been unlikely to find that he had clearly demonstrated acceptance of responsibility. Therefore, Berry would not have received the three level downward adjustment to his offense that might otherwise have applied pursuant to U.S.S.G. § 3E1.1. Clearly, the government would not have moved for a downward departure from the applicable guideline range under U.S.S.G. § 5K1.1 because of Berry’s steadfast refusal to provide “substantial assistance in the investigation or prosecution” of his co-defendants. Accordingly, Berry cannot prove that a guilty plea would have resulted in a different sentence, and therefore he has not established the necessary prejudice under Strickland.
B.
Berry also challenges the propriety of the district court’s decision to dismiss his § 2255 motion without first holding an evidentiary hearing on counsel’s effectiveness. The decision to conduct an evidentiary hearing is committed to the sound discretion of the district court. Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir.1989). We review the dismissal of a petition brought under § 2255 for abuse of discretion. Solis v. United States, 252 F.3d 289, 293 (3d Cir.2001). While the court must accept the allegations of the defendant’s § 2255 motion as true in such a case, it may deny the petition without a hearing if the “files and records of the case show conclusively that the movant is not entitled to relief.” Forte, 865 F.2d at 62. Otherwise, where facts are in dispute, an evidentiary hearing is required. Solis, 252 F.3d at 294.
Here, the district court properly found that Berry was not entitled to relief, based upon uncontested facts, and accepting Berry’s contested allegations as true. We will therefore affirm the order of the district court. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217197/ | OPINION OF THE COURT
NYGAARD, Circuit Judge.
Appellant, John W. Dreher, was convicted in the New Jersey state courts of murdering his wife. He is currently serving a sentence of life imprisonment with a minimum term of thirty years before eligibility for parole. He sought a writ of habeas corpus in the U.S. District Court for the District of New Jersey alleging violations of his rights under the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution, which was denied. Dreher v. Pinchak, No. 98-4816 (D.N.J. filed July 17, 2001). The District Court granted Dreher a certificate of appealability. We conclude that there are unexhausted issues and will remand the matter to the District Court for it to vacate its order and dismiss the petition without prejudice.
I. Factual and Procedural Background
The facts and procedure of this case are detailed at great length in two opinions of the Appellate Division of the New Jersey Superior Court, and in the District Court’s opinion. See State v. Dreher, 302 N.J.Super. 408, 695 A.2d 672 (1997) (Dreher II), cert. denied, sub nom Dreher v. New Jersey, 524 U.S. 943, 118 S.Ct. 2353, 141 L.Ed.2d 723 (1998); State v. Dreher, 251 N.J.Super. 300, 598 A.2d 216 (1991) (Dreher I); Dreher v. Pinchak, No. 98-4816 *802(D.N.J. filed July 17, 2001). Therefore, we need only summarize the factual background relevant to our discussion.
Petitioner’s wife, Gail Dreher, was found dead in the basement of the couple’s home on January 2, 1986. That afternoon, John Dreher reported the crime to the Chatham Township Police Department as a burglary and murder. The autopsy revealed that the cause of death was ligature strangulation, and that Gail Dreher also sustained several head wounds and stab wounds to the back and neck. The autopsy also revealed a single sperm cell in the victim’s nose. The time of the victim’s death was disputed at trial, with the state medical examiner estimating that the victim died between 7:00 and 8:00 a.m., and petitioner contending that death occurred closer to 11:00 a.m.
As the investigation into Gail Dreher’s murder progressed, Petitioner and his mistress, Nance Seifrit, became the primary suspects. Seifrit was arrested in August of 1986, received a grant of immunity, and became the key witness in the prosecution’s case against Petitioner. At trial, Seifrit testified that she and the Petitioner had agreed to confront the victim with the news of their affair on the morning of the murder. Seifrit testified that this confrontation did not go well; that the Petitioner attacked and killed his wife; and that she and the Petitioner removed items from the house to make the crime appear as a burglary. Petitioner’s theory of the case is that Nance Seifrit and a male accomplice, possibly her brother Nathan Seifrit, murdered the victim so that Seifrit could then marry the Petitioner.
Petitioner was convicted in his first trial. The conviction, however, was reversed on appeal and remanded for a new trial because the trial court erred by admitting hearsay statements and allowing improper references to hearsay to be made during the prosecutor’s closing argument. Dreher I, 598 A.2d at 216. Petitioner was indicted a second time and again convicted. This second conviction was confirmed on appeal. Dreher II, 695 A.2d at 672.
II. Exhaustion
Before addressing the merits of a petition for writ of habeas corpus, we have an obligation to determine whether we have appropriate jurisdiction and whether the claims set forth in the petition have been properly exhausted. Federal courts have jurisdiction to review petitions for habeas corpus filed by persons in state custody claiming that they “[are] in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). We exercise this jurisdiction only where it “appears that the applicant has exhausted the remedies available in the courts of the State.” McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir.1999) (citing Walker v. Vaughn, 53 F.3d 609, 614 (3d Cir.1995)).
Although exhaustion can be waived, a State “shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirements unless the State, through counsel, expressly waives the requirement.” 28 U.S.C. § 2254(b)(3). The requirement that the State “expressly waive” exhaustion is a new one. See Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir.2002). Indeed, 28 U.S.C. § 2254(b)(3) specifically mentions exhaustion as the only defense the State must expressly waive. See also Lurie v. Wittner, 228 F.3d 113, 123 (2d Cir.2000). After oral argument, we ordered additional briefing on the question of whether the State had expressly waived the exhaustion requirement in this case. Although the State admitted that it conceded exhaustion in its answer to the petition for writ of habeas corpus, on appeal *803the State argued that it has not expressly waived exhaustion within the meaning of 28 U.S.C. § 2254(b)(3). The Petitioner maintains all his claims have been properly exhausted. We are therefore faced with the initial question of whether the State’s actions can be considered an express waiver.
We have previously noted that “under AEDPA, a District Court may no longer infer that a state has waived the nonexhaustion defense from its failure to invoke the defense expressly.” Lambert v. Blackwell, 134 F.3d 506, 514 (3d Cir.1997). In George v. Sively, a case involving the appeal of a defendant’s conviction under Virgin Islands territorial law, we stated in a footnote that “the United States Attorney has argued that we should hear this appeal and should not require George to exhaust his territorial remedies, but because counsel has not in so many words waived exhaustion, we cannot deem the requirement waived.” 254 F.3d 438, 441 n. 4 (3d Cir. 2001). This language would indicate that, for waiver to be effective, something more than a concession in an answer is required. While we have yet to encounter a situation such as this one (where exhaustion was conceded before the District Court but contested on appeal), our precedent suggests that the standard for proving an express waiver is fairly stringent.
A stringent standard for proving waiver of exhaustion is squarely in line with the underlying purposes of the exhaustion requirement. We recently reviewed these policy justifications in Lambert, where we noted that the Supreme Court has endorsed “rigorous enforcement” of the total exhaustion rule because of “the preference among federal jurists to allow state courts the initial opportunity to review and correct alleged violations of federal constitutional rights.” 134 F.3d at 513. This preference is rooted in principles of comity and judicial efficiency. As we have said, “the doctrine of comity ‘teaches that one court should defer action on causes within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.’ ” Id. at 513 n. 18 (quoting Rose v. Lundy, 455 U.S. 509, 519, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982)). As for judicial efficiency, “adoption of a total exhaustion rule causes a reduction in piecemeal litigation, thereby increasing the likelihood that all claims will be reviewed in single proceeding.” Id. at 513.1 These policy justifications counsel against holding that the State of New Jersey expressly waived the defense of nonexhaustion.
Moreover, the exhaustion doctrine also requires that habeas petitioners “fairly present” federal claims to state courts before bringing them into federal court. See Duncan v. Henry, 513 U.S. 364, 366, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Keller v. Larkins, 251 F.3d 408, 413 (3d Cir.2000); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir.1997). To “fairly present” a federal claim to a state court, a petition must have presented the claim’s factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted. McCandless, 172 F.3d at 261. The Supreme Court has instructed that “it is not sufficient that all the facts necessary to support the federal claim *804were before the state courts.” Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3, (1982). Likewise, a “mere similarity” of claims is not sufficient to satisfy exhaustion. See Duncan, 513 U.S. at 366. As the Court explained:
Exhaustion of state remedies required that petitioners “fairly present” federal claims to the state courts in order to give the State the opportunity to pass upon and correct alleged violations of its prisoners’ federal rights. If state courts are to be given the opportunity to correct alleged violations of prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.
Id. at 365-66 (citations and quotations omitted).
The District Court found all of the claims raised by the Petitioner to have been fairly presented: “Petitioner has properly exhausted his state remedies. All of the grounds asserted by petitioner in support of his application for habeas corpus were previously presented in his appeal to the New Jersey state courts, triggering the standard of review provided by 28 U.S.C. § 2254(d).” This determination is subject to plenary review. See Whitney v. Horn, 280 F.3d 240, 249 (3d Cir.2002) (citing Schandelmeier v. Cunningham, 819 F.2d 52 (3d Cir.1986)). After a detailed review of the state court record in this case and of the additional submissions we requested of the parties, we find one claim raised in Dreher’s petition which has not been fairly presented to the state courts. Therefore, this claim is not exhausted.
III. The Unexhausted Claim: admission of Dr. Tucker’s testimony on time of death.
Scientific research has demonstrated that after death has occurred, the cells in the retina and tissue surrounding the eye begin to break down. This cellular degradation releases potassium in the vitreous humor. Dr. John I. Coe developed a test and devised a graph using this process, which has since become widely accepted and distributed to all medical examiners in the United States. See Dreher II, 659 A.2d at 462. It is possible to estimate the time of death by comparing the amount of vitreous potassium found in the eye to Dr. Coe’s graph.
Petitioner argues that the trial court erred in allowing the Morris County Medical examiner, Dr. Ernest Tucker, to testify concerning the time of Gail Dreher’s death because Tucker used a methodology for which there was no scientific basis. Coe’s graph assumed a linear degradation whereas Dr. Tucker maintains that the coordinates resulting from the research do not form a straight line, but instead form a curve which suggests a larger range of possible times of death. Using his own methodology, Dr. Tucker insisted that Gail Dreher died at approximately 7:40 a.m., plus or minus four hours. This supported Nance Seifrit’s testimony. Dr. Coe’s graph would have placed Gail Dreher’s time of death at 11:00 a.m. and would have had a far smaller range of possible times for her expiration. Petitioner argues that admitting this testimony violated his constitutional right to a fair trial and his right to due process of law.
The District Court was clearly concerned about the admission of Dr. Tucker’s testimony, writing that “[e]ven under the liberal standards of the Federal Rules of Evidence, Dr. Tucker’s testimony should not have made it past the ‘gatekeeping *805role’ of the trial judge.” Dreher v. Pinchak, Slip Op. at 25 (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). The District Court was likewise alarmed that the trial court “permitted Dr. Tucker to present his findings, despite the fact that his method of applying the vitreous potassium test fails to satisfy” the traditional indicia of reliability. Id. Finally, the District Court opined that “[w]ere it a question of first impression for this Court to decide, the admission of this testimony might well be considered a violation of petitioner’s rights of due process.” Id. Then, after recognizing that “it is well established that due process may be violated by the admission of certain categories of unreliable and prejudicial evidence,” the District Court concluded that, “standing alone, the admission of Dr. Tucker’s testimony did not violate petitioner’s right to due process.” Dreher v. Pinchak, Slip Op. at 26, 27.
Accepting that the District Court’s concerns were valid, it was nonetheless error for the Court to consider the merits of this claim, because the record demonstrates that the alleged due process violation resulting from the admission of Dr. Tucker’s testimony was not “fairly presented” to the New Jersey state courts. To satisfy exhaustion, a petition must present every claim raised in the federal petition to each level of the state courts. Pi-card, 404 U.S. at 270, 92 S.Ct. 509 (1971). Specifically, a habeas petitioner’s state court pleadings must demonstrate that he or she has presented the legal theory and supporting facts asserted in the federal habeas petition in such a manner that the claims raised in the state courts are “substantially equivalent” to those asserted in the federal court. Doctor v. Walters, 96 F.3d 675, 678 (3d Cir.1996) (citing Bond v. Fulcomer, 864 F.2d 306, 309 (3d Cir.1989)).
The state court pleadings and briefs in this case demonstrate no such equivalency. Dreher’s brief to the New Jersey Appellate Division does discuss Dr. Tucker’s testimony. The issue, however, was framed entirely as one of state evidentiary law. Dreher’s brief states the issue thus: “The trial court erroneously permitted the state to elicit a purported expert opinion concerning time of death that was based on arbitrary and unscientific methodology.” Supplemental Joint Appendix at 49. The issue is presented as one of state evidentiary law. Furthermore, Dreher’s brief limits its discussion to the prejudicial effects of this testimony, without reference to federal law or reference to his rights to a “fair trial” or to “due process.” Dreher’s presentation and discussion of this issue in the state courts amount to a garden variety evidentiary issue and this is how the New Jersey courts reviewed it.2
We have noted, however, that there are ways in which habeas petitioners may communicate that they are asserting a federal claim without explicit references to the Constitution or federal statutes. In Evans v. Court of Common Pleas, Del. County, Pa., we held that the required constitutional message may be communicated through “(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that are well within the mainstream of constitutional litigation.” 959 F.2d 1227, 1232 (3d Cir.1992) (quoting *806Daye v. Attorney General of New York, 696 F.2d 186, 194 (2d Cir.1982) (en banc)).
Even by these means, the Petitioner did not serve fair notice on the New Jersey courts that he was asserting a constitutional due process claim. Petitioner did not refer to a constitutional or federal right and only cited the state courts to New Jersey cases which considered New Jersey evidence law without employing any federal constitutional analysis. Dreher’s briefs to the New Jersey Appellate Division and to the New Jersey Supreme Court do not assert this claim in any terms “so particular as to call to mind a Constitutional right,” nor does his discussion of this claim “allege a pattern of facts well within the mainstream of Constitutional litigation.” The “fair trial” and “due process” claims he brings to federal court in connection with Dr. Tucker’s testimony are not exhausted because they were not fairly presented to the state courts.
V. Dismissal of a “Mixed Petition.”
As Dreher’s habeas petition now contains at least one unexhausted claim, it is a “mixed petition.”3 The Supreme Court has made clear that a section 2254 petition which includes unexhausted as well as exhausted claims, i.e., “a mixed petition,” must be dismissed without prejudice. Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379, (1982). Under the Antiterrorism Act, we may not grant a petition containing unexhausted claims except in a narrow range of special circumstances, not present here, or unless the State explicitly waives the exhaustion requirement, which it has not done in this case. See 28 U.S.C. § 2254(b). We therefore will remand the cause to the District Court with instructions for it to vacate its order and dismiss the petition for habeas corpus without prejudice.
. The exhaustion doctrine is something of a paradox. Its justifications—comity and judicial efficiency—primarily involve safeguarding the interests of courts. But, the fact that states may waive the exhaustion requirement necessarily means that, in operation, one party may determine whether a petition must be fully exhausted in the state courts (as well as the federal district courts).
. The Appellate Division decided this issue solely on state evidentiary precedent. See Dreher II, 695 A.2d at 698.
. Having found one unexhausted claim, we express no opinion as to whether all claims have been properly exhausted. We likewise express no opinion on the merits of Dreher’s petition. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217198/ | O’NEILL, District Judge,
concurring in part and dissenting in part.
I concur in the result reached by the majority and agree that petitioner did not exhaust with respect to his claim regarding the admission of Dr. Tucker’s testimony. However, I do not agree with the majority’s conclusion that the State did not expressly waive its right to challenge exhaustion.
AEDPA provides: “A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.” 28 U.S.C. § 2254(b)(3). In the answer to the petition counsel for the State stated that the state was “admitting that petitioner is in state custody and that he has exhausted his available state remedies except with respect to one issue.... ” The one issue that the State reserved was not the issue of Dr. Tucker’s testimony. In my view, counsel’s affirmative admission of exhaustion was an express waiver.
The majority opinion holds that for waiver to be effective something more than a concession in an answer is required. The opinion does not suggest language which would constitute an express waiver; indeed, it is difficult to conceive of any language which would be more express than that which appears in the answer.
The opinion cites Lambert v. Blackwell, 134 F.3d 506 (3d Cir.1997) and George v. Sively, 254 F.3d 438 (3d Cir., 2001) in support of its conclusion. With respect, neither of these cases presents the ques*807tion which we have before us on this appeal.
In Lambert v. Blackwell the Commonwealth continuously maintained at all stages of the proceedings that Lambert had failed to exhaust her state remedies and the Court held that, given that fact, a statement by counsel that Lambert was entitled to some relief, made without the benefit of a prior ruling on the exhaustion defense, did not constitute a waiver. See 134 F.3d at 511.
In George v. Sively the Court found there was no express waiver when the U.S. Attorney merely argued that the court should hear the appeal and should not require the petitioner to exhaust his territorial remedies. See 254 F.3d 438, 441 n. 4.
In the District Court the State did not ask to be relieved from its waiver; in this Court the State has requested such relief. I believe that we have the power to grant the State relief from its waiver and would do so.
I agree with the conclusion of the majority because I believe that the overriding interests of comity and judicial efficiency are crucial elements of our federalism that provide federal courts with the inherent power to overlook express waivers in instances where the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have not had an opportunity to pass upon the matter.1 See Lambert, 134 F.3d at 513 n. 18 (noting that exhaustion of state remedies addresses federalism and comity concerns by affording the state courts a meaningful opportunity to consider allegations of legal error without interference from the federal judiciary); see also Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 401 U.S. 37 (1971) (“[T]he notion of ‘comity,’... is a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.”).
. Although I recognize that the following cases pre-date AEDPA, three Courts of Appeals have recognized that federal courts have the power to accept or reject a state’s waiver of exhaustion. See Graham v. Johnson, 94 F.3d 958, 970 (5th Cir.1996) ("[Cjlearly, however, federal courts, trial and appellate, are not obliged to accept a state's waiver of exhaustion, though ordinarily the waiver will be honored.”); Hampton v. Miller, 927 F.2d 429, 431 (8th Cir.1991) (”[I]t was within the district court’s discretion whether to accept or reject the State’s waiver of the exhaustion requirement....”); Purnell v. Missouri Dept. of Corrections, 753 F.2d 703, 710 (8th Cir.1985) ("Since principles of comity are involved, it ordinarily will be appropriate for federal district courts to have the discretionary power to accept or reject a waiver of exhaustion.”); Thompson v. Wainwright, 714 F.2d 1495, 1509 (11th Cir.1983) ("Strong federal interests may exist that, balanced against those of the state in the particular case, will permit the district court in its discretion to decline a waiver and require state exhaustion.”). I see no reason why the rule enunciated in these cases, which if applied will benefit the State, does not continue to be good law post AEDPA. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224336/ | *584
AMENDED MEMORANDUM OPINION
NORA BARRY FISCHER, District Judge.
I. INTRODUCTION
Defendant Arthur J. Smith (“Smith”) is charged by way of a Superseding Indictment with allegedly committing thirteen separate criminal offenses, including: one count of wire and bank fraud conspiracy, in violation of 18 U.S.C. § 1349; five counts of wire fraud, in violation of 18 U.S.C. § 1343; three counts of bank fraud, in violation of 18 U.S.C. § 1344(1); one count of money laundering conspiracy, in violation of 18 U.S.C. § 1956(h); and three counts of failure to file income tax returns, in violation of 26 U.S.C. § 7203. (Docket No. 92). Presently before the Court are Smith’s: Motion to Dismiss the Superseding Indictment; Motion to Sever; and Motion to Compel, (Docket Nos. 133, 151, 153), all of which are opposed by the Government, (Docket No. 180). In short, Smith moves to dismiss the Superseding Indictment based upon alleged prosecuto-rial misconduct committed by Government counsel; requests that the Court sever the tax counts from the fraud counts if the Superseding Indictment is not dismissed; and, further seeks an order compelling the Government to locate and produce alleged Brady materials, including suspicious activity reports (“SAR”) which the Government has acquired during its investigation. (Docket Nos. 133, 151, 153, 191, 250). The Government strongly denies any allegations that its counsel has committed prose-cutorial misconduct and that dismissal of the Superseding Indictment is appropriate; advocates that the tax and fraud counts are sufficiently related to be joined and tried together; and contends that the alleged Brady materials identified by Smith are neither exculpatory nor improperly withheld under the applicable Rules of Criminal Procedure and the SAR regulations. (Docket Nos. 180, 251).
Smith’s Motions have been fully and exhaustively briefed by the parties, including responses and replies as to each motion, along with documentary evidence with respect to the Motion to Dismiss and Motion to Compel. (Docket Nos. 133-34; 151— 154; 180; 191). The Court also heard oral argument at a motion hearing conducted on December 2, 2013 and the transcript of those proceedings has been filed of record and reviewed by the Court. (Docket No. 248). The parties then filed post-hearing briefs on the applicability of the SAR regulations, (Docket Nos. 245, 247), as well as proposed findings of fact and conclusions of law and responses thereto regarding Defendant’s Motion to Dismiss, (Docket Nos. 250, 251, 256, 257).
After reviewing the relevant filings and further consideration of the contested issues concerning the discoverability of the SARs, and whether they constitute Brady material, the Court accepted the Government’s invitation to conduct an in camera review of the SARs to determine if the SARs and/or information contained therein should be produced to Smith. (Docket No. 258). In response to the Court’s Order, the Government produced the requested documents in camera under a cover letter dated April 4, 2014. See klUHk Letter from AUSA Conway to Court. Smith then submitted a second SAR filed by National City Bank regarding the activity in Smith’s escrow account and relevant attachments for the Court’s examination in camera. (Docket No. 259). The Government confirmed in its response to Smith’s submission that the SAR filed by National City was previously provided to the Court and thus, asserted no objection to the Court’s examination of the materials submitted by Smith. (Docket No. 260). The Government then filed a Supplement on May 12, *5852014, further advising the Court of its discovery production to Defendants. (Docket No. 261).
Having received and reviewed all of the foregoing materials,1 briefing, and the transcript of oral argument, Smith’s Motions are now ripe for disposition. Upon consideration of all of the parties’ submissions and for the following reasons, Smith’s Motion to Dismiss and Motion to Sever are DENIED and his Motion to Compel is GRANTED, IN PART, and DENIED, IN PART, with the Court reserving its final ruling as to one particular issue on the Motion to Compel.
II. FACTUAL BACKGROUND
a. Investigation and Charges
The instant prosecution of Smith and codefendants George Kubini, Dov Ratch-kauskas, and Sandra Svaranovie, (collectively, “Defendants”), arises out of a wide ranging investigation by the Western Pennsylvania Mortgage Fraud Task Force, which has already resulted in convictions of, among others: real estate brokers: Robert Arakelian, Eric Hall, Rhonda Roscoe, and Rochelle Roscoe; closing attorneys: James Steiner and Daniel Sporrer; closing agent, Karen Atkison; appraisers: Jason Moreno, Joel Reck and Howard Reck; and bank employees: Bartholomew Matto, Cynthia Pielin and Crystal Spreng. See Crim. Nos. 09-198 (Arakelian); 09-202 (Spreng); 09-223 (Atkison); 09-811 (Sporrer); 10-106 (Hall); 10-117 (Moreno); 10-232 (Howard Reck); 11-15 (Mat-to); 11-16 (Rhonda Roscoe); 11-17 (Rochelle Roscoe); 11-221 (Joel Reck); 11-255 (Pielin). This case was initially brought against Kubini and Ratchkauskas only on January 18, 2011, with the grand jury charging them with a single count of wire fraud conspiracy in violation of 18 U.S.C. § 1349. (Docket No. 1). While the Indictment was pending, the Government’s investigation continued and culminated in the filing of a twenty-count Superseding Indictment on March 26, 2013, which includes charges of wire fraud conspiracy, wire fraud, bank fraud, and wire and bank fraud conspiracy against all Defendants, and separate tax counts against Kubini and Smith. (Docket No. 92). In short, the Government alleges that Defendants participated in a mortgage fraud scheme from November 2005 through December 2008, which involved 109 separate fraudulent loan transactions, violating a host of federal laws in the process. (Docket No. 154-7). According to the Government, real estate investors Kubini and Ratch-kauskas and entities they controlled were involved as sellers of nearly all of the 109 properties; appraiser Svaranovie provided appraisals overstating the value of forty-nine (49) of the properties; and real estate attorney Smith knowingly participated in the fraud, acting as a closing agent for at least forty-three (43) of the deals.2 (Id.).
*586
b. Search/Seizure Warrants and Execution Thereof at Smith’s Law Office
On January 16, 2011, a few days before the grand jury returned its Indictment against Kubini and Ratchkauskas, Special Agent Daniel Fisher of the United States Secret Service obtained a search and seizure warrant for Smith’s Law Office in order to obtain evidence of violations of federal law.3 (Docket No. 154-2). In his supporting affidavit, Special Agent Fisher noted that, among other things, the evidence obtained at Smith’s Law Office would likely include: disbursement sheets; copies of checks and wire transfer information; instructions and correspondence with lenders; closing documents; title insurance documents; correspondence with mortgage brokers related to transactions; sales agreements; and evidence of payments for the settlement of the transactions. (Docket No. 154-2 at ¶ 119). Exhibit “A” to the affidavit details twenty-five specific transactions which Smith closed for Kubini and Ratchkauskas and the agents believe were fraudulent. (Id. at 154-2 at 40-2). The affidavit explains with specificity the general mortgage and bank fraud scheme, advising that the agents had obtained evidence that numerous fraudulent documents were used during the twenty-five listed transactions, including: fake Uniform Residential Loan Applications (“1003s”); false verification of deposit forms (“VODs”); appraisals significantly misrepresenting the value of the properties and the conditions of same; and settlement statements, (“HUD-ls”), which did not properly inform the lenders of the true facts of the transactions. (Docket No. 154-2 at ¶¶ 20-21). In brief summary, Special Agent Fisher averred that the lenders were deceived into believing that they were financing eighty percent (80%) of the values of the properties in question and that buyers were making twenty percent (20%) down payments on each deal. (Id. at ¶¶ 24-27). The lenders were also misled to believe that the properties were appropriately valued and in the condition stated on the appraisals and that the buyers were financially qualified for the loans they obtained. (Id.). However, the “reality of the transactions,” which was not disclosed to the lenders, was that the lenders were financing 100% of the purchases of the properties, many of which were in very poor condition and worth far less than stated on the appraisals and approving loans for buyers who did not have the financial wherewithal to qualify for the loans. (Id.).
Special Agent Fisher asserted that because the agents’ search of Smith’s Law Office necessitated review of an attorney’s files, “law enforcement officers will encounter materials that may be covered by the attorney-client privilege or work product doctrine.” (Id. at ¶ 106). He further advised that the search of any such materials would be conducted by a “Privileged Review Team” consisting of an attorney and agent “who are not involved in the underlying investigation.” (Id. at ¶ 107). The affidavit also notes the procedures for dealing with privileged materials which may be uncovered, including that “[a]ll obviously privileged documents will remain at the Office, or if inadvertently seized they will be immediately returned to Smith. Those documents that are not obviously privileged will be seized pursuant to the terms of the search warrant. Those *587documents which are open to questions as to the applicability of a privilege will be set aside for further review.” (Id. at ¶ 109). He continued that “materials that appear as if they may be protected by attorney-client privilege or work product doctrine will be immediately segregated without review pursuant to a written protocol,” that potentially privileged documents “will be set aside for further review,” and “will be shown to counsel for Smith in an attempt to resolve any lingering disputes about whether material is covered by a privilege.” (Id. at ¶¶ 108-110). The affidavit also states that the agents were not seeking any evidence from Smith’s computers. (Id. at ¶ 120).
Special Agent Fisher led a team to execute the warrant at Smith’s Law Office at 9:00 a.m. on January 19, 2011, which included Special Agent Christopher Watson and Assistant United States Attorney (“AUSA”) James Wilson, whom the Government proffers headed the privilege review during the search.4 (Docket No. 251-7 at 17). After their arrival, Special Agent Fisher spoke to Bonnie Harrison, who identified herself as Smith’s paralegal and office manager. Crim. No. ll-mj-33, Docket No. 1-1. Harrison advised Fisher that the types of files which the warrant sought were located in a locked file room outside of the central office and in the hallway of the office building. (Id.). Special Agent Fisher then returned to the courthouse and obtained a second search and seizure warrant which authorized the specific search of “the file room for the law offices of Arthur J. Smith located on the ninth floor of the office building” and seizure of files located therein. Crim. No. ll-mj-33, Docket No. 1. While Special Agent Fisher was off site, Special Agent Watson approached Smith, advised him that Secret Service agents were executing a warrant to search his office for files related to his closings of properties involving Kubini and Ratchkauskas, provided him with a copy of the initial warrant and permitted him an opportunity to read it. (Docket No. 251-7 at 17). Special Agent Watson also informed Smith that he was not under arrest, was free to leave and that he was under no obligation to speak to the agents. (Id.). Despite these instructions, Smith purportedly told Special Agent Watson that he stopped doing business with Kubini and Ratchkauskas because he received too many complaints from buyers, many of the loans they brought to his office did not close and they were too difficult for him and his staff to deal with. (Id.). Special Agent Fisher returned after securing the second warrant to search the file room and Smith repeated the same statements in his presence as well. (Id.).
The Government proffers that Special Agent Fisher did not directly participate in the search of Smith’s Law Office or the file room and lead trial counsel AUSA Conway was not present during the searches. It is also uncontested that AUSA Wilson performed the privilege review during the searches and that he prepared and left two post-it notes on certain of the files which were seized and are now located in the Secret Service’s local office. The first note states that “(2) Removed letter + copy of same; see #2 on master list. JRW 19 Jan. 2011.” (Def. Ex. 3, Docket No. 251-4). The second note states that “(2) see JRW Master list; letter Atty Smith to Kubini and Ratchkauskas.” (Def. Ex. 4, Docket No. 251-5). Smith has repeatedly *588requested that the Government produce the referenced “Master List”, any log prepared by AUSA Wilson denoting the privileged materials encountered during the search, and the referenced letters. (Docket No. 154-5). According to Smith’s counsel, AUSA Wilson advised him in a telephone conversation that Wilson “gave any pulled documents to [AUSA Conway] in a sealed envelope or file.” (Id.). AUSA Conway has responded that AUSA Wilson did not prepare a “Master List” or privilege log, never provided a sealed envelope to him and that any privileged materials which were located by AUSA Wilson during the search were simply left at Smith’s Law Office in accordance with the procedures outlined in the affidavit.5
Special Agent Fisher filed two inventory return forms which detail the materials seized from Smith’s Law Office and file room. Crim. No. ll-mj-22 at Docket No. 6. The inventory return for the search of the office details that the agents’ search commenced at 9:05 a.m. and concluded at 12:30 p.m. (Id. at 3). The agents seized five boxes of documents from the office which are described as “closing documents”; “mise, documents”; “George Ku-bini and Dave Ratchkauskas file, Admiral Capital file”; and “policy inventory registers.” (Id. at 3-4). The inventory return for the file room search states that the agents’ search of that area commenced at 10:40 a.m. and concluded at 11:45 a.m. Crim. No. ll-mj-33 at 5. The agents seized nine boxes of documents from the file room which are described as: “Box 2007 Putoti-[R]athkauskas, eleven (11) loan closing files”; “Box 2007 Ratchkaus-kas-Richter, twenty-four (24) loan closing files”; and numerous other boxes of loan closing files without more specific descriptions. (Id.). There is no mention of any privileged materials, a privilege log and/or a “Master list” on either inventory return. See Crim. No. ll-mj-22 at Docket No. 6; see also Crim. No. ll-mj-33 at Docket No. 5. Of note, Smith admits that he has been granted access to search his own files at the Secret Service office both before and after the Superseding Indictment was returned against him. (Docket Nos. 154-5; 251).
c. Smith’s Interviews with Law Enforcement and Attorney Levenson
Shortly after the execution of the warrants, Smith retained Attorney Stanton Levenson to represent him. (Docket No. 251-7). Smith voluntarily participated in meetings with AUSA Conway and Special *589Agent Fisher on February 19, 2011 and February 22, 2011.6 (Id.). Levenson represented Smith at these meetings. (Id.). By the time of the meetings, the search warrants, applications and affidavits had all been unsealed and produced to Smith and his counsel. See Crim. No. ll-mj-22; see also Crim. No. ll-mj-33. Smith agrees that the interviews were “wide-ranging” and “the topics included the transactions that would later form the basis for the fraud counts in the superseding indictment now pending against [him].” (Docket No. 251 at ¶¶ 9,10).
The Memoranda of Interviews prepared by Special Agent Fisher as well as his notes and the notes of Agent Galson describe Smith’s statements to law enforcement during these meetings to include, among other things, all of the following.
• Smith closed approximately 50 deals for Ratehkauskas, Kubini and entities they controlled but there were also 19 cancelled deals. The 50 closings represented 4.5% of Smith’s closing business and 3.4% of his net income. His gross earnings on closings for the years in question consisted of: $488,000 from 397 closings in 2007; $734,000 from 341 closings in 2008; and $693,000 in 2009 based on an unspecified number of closings;
• Smith explained that he had worked with Ratehkauskas for 20 years, closing many loans for him when he was working as a mortgage broker rather than as an investor;
• Around 2006 or 2007, Ratehkauskas told Smith that he was going into business with Kubini as real estate investors “flipping foreclosures.” Smith informed the agents that Ku-bini supposedly was doing the repairs and Ratehkauskas was providing the funding for the deals. He added that Kubini and Ratehkauskas would be working with a new brokerage firm, Riverside Mortgage, in their house flipping venture;
• Smith advised the agents that in early 2007, he attended a meeting at Riverside Mortgage with Kubini, Ratehkauskas and Rochelle Roscoe of Riverside where they all discussed the potential of doing business together. Smith stated that someone at the meeting other than he proposed that the deals should be financed by using the seller’s “gross proceeds to fund the buyer’s down payment as a gift of equity,” which Smith advised he felt was “very creative” and he agreed to participate;
• With respect to the transactions, Smith explained that he was told that the down payment would be gifted by the sellers and that a letter must be provided to the lender by the broker. He believed that it was not his responsibility to tell the lender about the gifts of equity or to show this aspect of the transaction on the HUD-1 forms because the gifts of equity were not part of the closing process. He confirmed that he always supplied 1099 forms to the sellers in these deals which showed the entire proceeds of line 603 of the HUD-1 forms. Smith also told the agents that they were wrong in their opinions that the deals as written on the HUD-1 forms — which all stated that cash down payments were made by the buyers — constituted material misrepresentations to the lenders.
*590• Smith next informed them that he always followed the lenders’ closing instructions and always informed the buyers of the gifts of equity at the closings. However, he admitted that he never called the lenders to clarify any issues with the gifts of equity or to inquire with the lenders as to how the gifts of equity should be noted on the HUD-1 forms. He likewise acknowledged that he never researched the propriety of the gifts of equity deals or consulted with his title insurance carrier about same but proceeded to close the deals, as he explained, based on his 29 years of experience as a real estate closing attorney.
• Smith articulated that he made a mistake in judgment in dealing with Kubini, Ratchkauskas and Riverside but that he believed he had acted in good faith and without criminal intent. He told the agents at the first meeting that he knew nothing about other fraudulent documents involved in the transactions that they questioned him about, including, VODs, 1003s, 2nd HUD forms or appraisals. At the second meeting, he added that he did not maintain copies of appraisals in his loan files, never read mortgage applications, and believed that gift letters were likely in the broker’s files. He stated that he was “naive” and made a mistake of judgment.
• The agents also inquired about an audit of Smith by his title insurer, Land America Title, and Smith explained that it was a routine audit which uncovered a $93,000 shortfall in his escrow account. He told them this resulted from an accounting error which occurred because his bookkeeper was ill and said error required him to pay $20,000 of his own money to make up the shortfall, close the account and start a new one.
• Smith also recounted conversations and correspondence he had with Alfred Watterson of Land America. He told the agents at the first meeting that a May 2008 letter by Rochelle Roscoe to Mr. Watterson (the “Roscoe Letter”) was unprompted and unconnected to the audit. At the second meeting, he admitted that this was incorrect and that the letter was requested by Watterson, explaining that he misspoke and was trying to answer the questions as best he could. According to Smith, the letter was provided to Mr. Wat-terson to explain the process of the gifts of equity deals. He added that he had repeatedly asked Ms. Roscoe for such a letter throughout their business dealings and admitted that he had received a draft of the letter which he edited for her “because it was poorly written” and she then signed and sent the revised version to Watterson. Smith believed that Watterson was satisfied with the letter but told him to stop doing the deals with Kubini, Ratchkauskas and Riverside. He clarified that Land America was still his title insurer even after the problems with the escrow account and the questioning about the gifts of equity deals.
• The agents’ notes reflect that Smith was also asked about a number of particular closings during the meetings. In the first meeting, he was asked about two closings involving Ratchkauskas as the seller and David Kashi as the buyer. Smith reviewed the HUD-1 forms and told the agents that they were related and involved a cash sale of two properties. The agents questioned him *591why Ratchkauskas supplied the buyers’ funds and Smith replied that he recalled that Ratchkauskas owed Ka-shi money and in exchange for the debt he gave him both properties and $60,000. The agents then asked if that was the case, why Ratchkaus-kas received $55,000 in cash back on the deals and how the transactions did not constitute money laundering. The report notes that Mr. Levenson then reviewed the documents and commented that it “looked like money laundering to him.” According to the agents, Smith eventually conceded that he could not explain the deals.
(Docket No. 251-7).
Ultimately, Smith declined to cooperate with law enforcement and their investigation of his conduct and pursuit of criminal charges against him continued. There is no other evidence of record concerning the scope of Attorney Levenson’s continuing representation of Smith beyond the February 2011 meetings with law enforcement agents as the present record discloses no subsequent information about any further meetings between Smith and law enforcement. (See Docket Nos. 250, 251, 256, 257).
d. Attorney Levenson’s Representation of James Steiner
Around this same time, Attorney Le-venson was separately retained by another target of the investigation, James Steiner (“Steiner”), who was also a real estate attorney and had closed six fraudulent transactions for Kubini and Rateh-kauskas. (Docket No. 154-7). It is undisputed that Smith and Steiner closed separate transactions and neither worked together nor communicated about their respective dealings with Kubini and Ratchkauskas. (Docket Nos. 154-7; 250; 251; 256; 257). Steiner agreed to cooperate with the Government’s investigation and signed a cooperation letter with the United States Attorney for the Western District of Pennsylvania on May 6, 2011. (Docket No. 154-8). Among other things, Steiner agreed to “provide complete and truthful information in connection with an investigation into violations of federal laws related to mortgage fraud by George Ku-bini, Dov Ratchkauskas, and others during the period from January 2007 to the present.” (Id.). Such agreement was executed by Steiner and Levenson, as counsel for Steiner, on May 6, 2011. (Id.).
Steiner was debriefed by law enforcement agents concerning his involvement on May 9, 2011. (Docket No. 251 at ¶ 12). According to Smith’s current counsel, Stephen Stallings, Esquire,7 the agents’ mem-oranda and notes from that session include facts that:
• Steiner sent one or more HUD-ls to the lender advising the lender of the fact that these transactions did involve “gifts of equity”;
• Steiner possessed email correspondence with Chase showing that he’d sent HUD-ls to them showing the gifts of equity.
• Ratchkauskas told Steiner that everyone, including Riverside Mortgage and Chase, knew what was *592really going on in these transactions (i.e. the buyer was not bringing the funds to the closing that were represented on the HUD-1 as Cash From Borrower and that these amounts were just being subtracted from the seller’s proceeds).
(Docket No. 233-1 at ¶ 9(c)).
It is undisputed that Government counsel brought the potential issue of a conflict arising from Levenson’s representation of both Smith and Steiner to his (Levenson’s) attention prior to either of the closing attorneys being charged. (Docket Nos. 250; 251). As a result, in June of 2012, Levenson withdrew as counsel for Smith but continued to represent Steiner. (Docket No. 251 at ¶¶ 13). AUSA Conway proffers that he told Levenson that he had a potential conflict of interest if there was a joint trial against Smith, Kubini and Ratchkauskas because if Levenson continued to represent Smith, he could be put in a position where he was forced to cross-examine his other client, Steiner.8 (Docket No. 250 at ¶¶ 111-115). The factual circumstances surrounding Levenson’s withdrawal have not been fully developed as neither Smith nor Levenson have testified as to same. Smith proffers that he was never told that Levenson also represented Steiner or the reasons for Leven-son’s withdrawal, including the purported conflict with the representation of both Smith and Steiner. Smith further claims that he was unaware that Steiner was cooperating with the Government until after his own indictment and did not waive any conflict of interest by Levenson.
On September 24, 2012, Steiner was charged by Information with one count of bank fraud and aiding and abetting bank fraud, in violation of 18 U.S.C. §§ 1344(a) and 2. See United States v. Steiner, Crim. No. 12-242, Docket No. 1. This charge was voluntarily dismissed because a document containing the wrong charge was inadvertently filed by the Government. (Docket Nos. 7, 8). A second Information was filed at a new criminal case number (Crim. No. 12-257) on October 15, 2012, charging Steiner with one count of wire fraud conspiracy, in violation of 18 U.S.C. § 1349. See United States v. Steiner, Crim. No. 12-257, Docket No. 1. With Levenson’s assistance and counseling, Steiner waived indictment and pled guilty to wire fraud conspiracy on November 13, 2012. (Docket No. 9). The Court recalls that Steiner admitted to closing six fraudulent loans as a part of this scheme and accepted his guilty plea as knowingly and voluntarily made.9
e. Smith’s Retention of Attorney Stallings and Pre-Grand Jury Appearance Activities
After Attorney Levenson withdrew as Smith’s counsel in June of 2012, Smith retained his present counsel, Stallings, who was formerly an Assistant United States Attorney in this District and worked alongside both AUSA Wilson and AUSA Conway in the division of the U.S. Attorney’s Office for the Western District of Pennsylvania which prosecuted white col*593lar fraud-type cases.10 (Docket No. 251-6 at ¶ 6). Stallings quickly proceeded to actively and aggressively represent his new client, Smith. On June 19, 2012, Stallings wrote to AUSA Conway, advising him that he now represented Smith and asked for a meeting with AUSA Conway to sit down and discuss the matter with him. (Docket No. 251-13). AUSA Conway purportedly responded that unless Smith was interested in pleading guilty, that the requested meeting was better put off until after an indictment was returned and they had the opportunity to review discovery. (Id.).
Stallings separately set up a polygraph examination for Smith with William Barrett 11 of Assured Polygraph Sendees, Inc., which occurred on June 28, 2012. (Def. Ex. 11, Docket No. 251-11). A “Privileged & Confidential Polygraph Report” authored by Mr. Barrett sets forth his opinions that Smith demonstrated “no deception” during the polygraph he administered to him including with respect to the following questions and answers:
1. Regarding if you have engaged in fraudulent activities to defraud lenders, do you intend to answer all of these questions truthfully?
ANSWER: Yes
2. Did you ever issue checks from your escrow account to deceive lenders into mistakenly believing that borrowers were providing their own funds as down payments?
ANSWER: No
3. Did you ever conduct a real estate closing knowing that the lenders issued the loan based on fraudulent loan applications?
ANSWER: No
4. Did you ever agree with Dov Ratch-kauskas or George Kubini to defraud lenders?
ANSWER: No
(Def. Ex. 10, Docket No. 251-11).
Stallings proceeded to review the materials which were seized from Smith’s Law Office and file room while they were being *594maintained in the Secret Service’s office. During these efforts, Stallings located the post-it notes of AUSA Jim Wilson on certain of the files which were seized. On August 27, 2012, Stallings contacted AUSA Conway via email and requested that he locate any documents which were pulled for potential privilege during the search. (Docket No. 154-5). Two days later, Stall-ings wrote AUSA Conway again, further elaborating on his request for any potentially privileged documents and/or any privilege log related to same. (Id.). In this email, Stallings also recounts a telephone conversation that he had with AUSA Jim Wilson wherein Wilson told him that he had given AUSA Conway “any pulled documents ... in a sealed envelope or file.” (Id.). AUSA Conway responded to Stallings twenty minutes later, stating succinctly that he did “not intend to do anything related to this aspect of the case prior to indictment.” (Id.). Stallings then asked if there was a date for the return of an indictment “in mind” and advised that Smith would like to have a meeting with AUSA Conway before indictment and that he “may want to request the opportunity to testify before the grand jury as well.” (Id.).
Stallings recounts that he also submitted a formal written request to AUSA Conway on August 29, 2012 that he “notify us a reasonable time before seeking indictment in order to afford Mr. Smith the opportunity, should he wish to do so, to testify before the Grand Jury.” (Docket No. 251-13 at 2). Stallings avers that AUSA Conway responded to him two days later, stating that “I have not focused on that and do not intend to focus on it anytime in the next couple of weeks. I will let you know as we get closer to the date.” (Id.). Six weeks later, on October 15, 2012, Stallings sent another email to AUSA Conway, reiterating that Smith would like advance notice of the return of an indictment, advising that Smith would like the opportunity to address the grand jury, and noting that “there is information we are preparing to make available to you that you are likely not aware of that goes to his innocence of charges related to [Dov Ratchkauskas] and [George Kubini], including definitive polygraph results.” (Id.). According to Stall-ings, seven days later, AUSA Conway responded to this inquiry noting that he received the emails and that Smith “will certainly be invited to provide his side of the story to the grand jury when the time comes.” (Id.).
There was no additional correspondence between counsel for the parties between October, 2012 and Thursday, February 14, 2013. At 8:42 p.m. on that date, AUSA Conway emailed Stallings, advising that “[i]f he wants to still come into the grand jury, it looks like it will have to be on 2/19. Will that work?” (Docket No. 251-13 at 1). The next day, Friday, February 15, 2013, Stallings drafted a four-page letter to AUSA Conway,12 alleging that he violated “local custom and practice, not to mention simple common sense and decency” along with Department of Justice Policy which requires that a target of an investigation be given notice “a reasonable time before seeking an indictment in order to afford him or her an opportunity to testify before the grand jury.” (Docket No. 251-13 at 3 (quoting U.S. Attorney’s Manual, § 9-11.153)). Stallings complained that AUSA Conway’s email
constitute^] one (1) business day’s13 [sic] notice after nearly eight months of *595you rebuffing our efforts to discuss this investigation with you, and after nearly six months have elapsed since we requested advance notice of your planned indictment so he [Smith] could testify before the Grand Jury and so we could meet with your office and discuss potential resolutions. Your refusal to discuss this investigation with me and your lack of reasonable notice to Mr. Smith violate the spirit, if not the actual provisions of the United States Attorney’s Manual, is contrary to the longstanding practice of the Office of the United States Attorney for the Western District of Pennsylvania, and is inconsistent with common civility and courtesy.
(Id.). Stallings then reiterated all of the above correspondence between him and AUSA Conway since he took over the case in June of 2012. (Id.).
In his letter, Stallings acknowledges that AUSA Conway previously provided him notice that Smith “faces a potential indictment for bank fraud, wire fraud and conspiracy” and that he would “supersede later on to add failure to file his tax return charges.” (Id. at 1). Stallings argues that the tax charges are “very different from, and wholly unrelated to, the fraud allegations.” (Id.). He asserts that Smith was “ready, willing and able” to meet with AUSA Conway to resolve “the tax matters” but that such efforts had been rebuffed by the government. (Id.).
With respect to the threatened fraud charges, Stallings writes that Smith proclaims his actual innocence, never intended to deceive lenders, never closed a real estate transaction he believed was funded based upon a fraudulent loan application and never agreed with Ratchkauskas or Kubini to defraud lenders. (Id. at 3). He quoted the entirety of Mr. Barrett’s findings in the polygraph examination and attached the report and his curricula vitae to his letter, as Exhibits “A” and “B”. (Id. at 4). Stallings also stated that “Smith is prepared to submit to a polygraph on these same questions administered by a polygrapher of the government’s choice at your convenience.” (Id.). Stallings next stated that Smith did not intend to defraud lenders but believed that the lenders were aware of and approved gifts of equity to the buyers. (Id.). He also quoted portions of the May 15, 2008 letter from Roscoe to Watterson as stating that “for each of the above closings a gift of equity was provided by the seller. These loans were approved by the investor [the lender]14 on this basis. Accordingly, the gift of equity was not shown on the settlement sheet, nor is it ever shown on the settlement sheet.” Stallings also attached a copy of the Roscoe Letter as Exhibit “C.” (Id.). Stallings further advocates that the Government had no evidence against his client that he had any involvement in the other aspects of the fraud committed on the lenders, such as elevating the appraisal values, producing false loan applications or *596engaging in other fraudulent activity. (Id.). Stallings concludes stating that the U.S. Attorney should decline to prosecute the fraud charges; meet with them on the tax issues; give Smith reasonable notice to appear before the grand jury; and, permit him to introduce the attachments (i.e., the polygraph examination report, Barrett’s c.v. and the Roscoe letter) to the grand jury. (Id.).
The attorneys also engaged in correspondence on the morning of Smith’s February 19, 2013 grand jury appearance. (Docket No. 191-6). Stallings wrote the following at 9:45 a.m.:
Dear Mr. Conway,
Please let me know if you are able to briefly respond, this morning if at all possible, to the following questions:
1. Do you intend to seek return of an indictment against Arthur Smith today?
2. If so, what are the charges you will seek?
3. If so, do you intend to seek issuance of a summons or a warrant?
4. If you intend to charge fraud and tax issues, is it your intention to charge them in one indictment or two?
5. If Mr. Smith chooses to testify, how, logistically, do you anticipate his testimony will be permitted? In narrative form? In response only to your questions? Or some combination thereof? Thank you,
Stephen S. Stallings, Esq.
(Id.). AUSA Conway promptly responded to this inquiry at 10:19 a.m.:
Mr. Stallings:
I do not intend to respond to questions one through four. If Mr. Smith wants to testify, he will have to respond to my questions and questions from the grand jury. I will, however, certainly give him the chance to explain why he believes he did not act with the intent to defraud. The letter you wrote to me contains mainly extraneous information of no relevance to the grand jury and therefore will not be admitted. He will, however, be permitted to relate the relevant information from the letter — i.e., his claim that he did not act with the intend to defraud. If he has contemporaneous letters or other exhibits that he wants admitted, like, for example, Exhibit C of your letter, I would be happy to consider those of [sic] potential admission.
Please let me know when you have made a decision about whether he will testify.
Best regards,
Brendan Conway
(Id.). AUSA Cessar was copied on both Stallings’ email and AUSA Conway’s response. (Id.).
f Smith’s Voluntary Appearance before the Grand Jury
Smith decided to testify before the grand jury as scheduled on February 19, 2013. (Docket No. 154-11). Later that day, Smith and Stallings met with AUSA Conway along with Special Agents Fisher and Galson in a conference room outside of the grand jury room. (Docket Nos. 250, 251). They discussed the parameters of Smith’s testimony during this meeting. (Id.). The parties agree that AUSA Conway specifically advised Smith and Stall-ings that the polygraph report and Mr. Barrett’s c.v. would not be marked and admitted as exhibits. (Docket No. 251 at ¶¶ 18-19). The parties dispute whether AUSA Conway agreed to admit the Roscoe Letter into evidence during Smith’s testimony. (Docket No. 248 at 41-42). Stall-ings states in his affidavit that AUSA Conway “did not [¶]... ] retract his promise to *597permit Mr. Smith to admit the May 15, 2008 letter from Roscoe or to testify regarding the other information referenced in our letter to AUSA Conway; rather, he reaffirmed that Mr. Smith could offer the May 15, 2008 letter into evidence.” (Docket No. 251-6 at ¶2). The Government proffers that AUSA Conway never agreed to admit the letter into evidence in his emails, that he made no oral agreement with Smith or his counsel that he would enter the letter into evidence during the meeting, and that Special Agents Fisher and Galson would testify consistent with this position. (Docket No. 250 at ¶¶ 20-26). At most, the contested record demonstrates that Stallings and Smith believed that Smith would be permitted to introduce the Roscoe Letter into evidence during his grand jury appearance. But, the record is also clear that Smith and his counsel were explicitly told by AUSA Conway that Stallings February 15, 2013 letter, the polygraph examination report and Mr. Barrett’s c.v. would not be admitted into evidence. (Docket No. 250 at ¶ 21; 251-6 at 2). Despite same, Smith entered the grand jury room with a packet of documents, stapled together, consisting of: Stallings’ February 15, 2013 letter, the polygraph examination report, Mr. Barrett’s c.v. and the Roscoe Letter. (Govt. Ex. “D”, Docket No. 237-4).
The grand jury examination of Smith commenced at 4:02 p.m. with Smith taking the oath administered by the grand jury foreperson. (Docket No. 154-11 at 1). AUSA Conway proceeded to notify Smith that he was a target of the grand jury’s investigation and that the Government intended to ask the grand jury to indict him for a “number of different allegedly fraudulent activities,” which Smith acknowledged. (Id. at 1-3). Smith confirmed that he had not been subpoenaed to testify and that he was voluntarily appearing before the grand jury. (Id. at 4). AUSA Conway next advised Smith of his Fifth Amendment right against self-incrimination, which Smith stated that he understood as he was an attorney and was also represented by counsel. (Id.). Smith affirmed that he was “certainly” waiving his Fifth Amendment rights voluntarily, knowingly and intentionally and was willing to answer any questions posed to him. (Id. at 4-5). Smith testified that he understood that his counsel was not permitted to be in the grand jury room but that he was permitted to stop the questioning at any time in order to exit the grand jury room and confer with his counsel, and then later return and finish his testimony. (Id. at 5). Finally, Smith stated that he “absolutely” understood that he was required to provide truthful and complete information to the members of the grand jury. (Id.).
The first portion of Smith’s grand jury examination focused on his failure to file income tax returns for the years of 2007 through 2011. After some probing by government counsel,15 Smith admitted that he has not filed federal, state or local (City of Pittsburgh) income taxes for all of those years, either personally or for his S Corporation. (Id. at 6-10). Smith confirmed that he has not paid “a dime” toward his income tax liabilities in any of the tax periods in all of these jurisdictions and that no money was withheld from his salary and paid toward his income tax liabilities. (Id.). AUSA Conway provided Smith with the opportunity to “explain *598away” why he had not filed his income tax returns or paid his taxes, despite his ac-knowledgement of his obligations to do so and the fact that “everybody else” had to pay their taxes. (Id. at 11). Smith responded:
Of course I have an obligation, just like each and every one of you, and Mr. Conway, and this gentleman here to my right, to file tax returns.
And, for a number of months — for a number of months we have been in contact with Mr. Conway, we have told him that we are prepared to file tax returns, and to resolve the tax issues, and his response has been, categorically, without question, without issue, is, “I am not going to discuss your tax issues, unless you plead guilty to fraud,” and I can’t do that, because I have never committed a fraud, there has been no deception at any time, and I say that under oath, on my — on my — on the hand of my children’s head, and my wife’s head.
And, these tax problems are prepared to be resolved, there has been correspondence by my counsel to U.S. Attorney’s Office for months, and months, saying, “We are prepared to deal with this, and to resolve it, and move on.”
But I have received no cooperation from the U.S. Attorney’s Office to sit down and discuss it, without me pleading guilty to fraud, which I can’t do, which I won’t do, which in fact — in fact, would be acknowledging something that is not true.
And not true by the very fact of what I have said, and not true by the very fact that my counsel provided this earlier to Mr. Conway, the U.S. Attorney’s Office—
AUSA Conway: Sir, you can stop talking now, that is your explanation is that you attempted to resolve these issues with the United States Attorney’s Office—
Smith: That’s correct.
AUSA Conway: — and you haven’t been able to, because we basically are saying we are not going to let you plead guilty — -we are not going to waive our— the right to file fraud charges against you, and have you plead guilty simply to the taxes?
Smith: No, there has been no discussion at all. There has been nothing. There has been — “I don’t want to discuss”— and this is my — I am just paraphrasing, “I don’t” — I am paraphrasing what we have heard from Mr. Conway’s office, and Mr. Conway specifically, is, “I don’t want to address the tax issues until Mr. Smith is willing to plead guilty to fraud.”
AUSA Conway: And that explains your failure to file your state tax returns, or failure to make any payments to your state tax returns how?
Smith: There is no defense.
I want to make this very clear. There is no defense that I should not have filed those returns.
But again, I am no different, just because I’m an attorney, everyone has an obligation.
All I can say to you is that from the time I began practicing law in 1974, I have faithfully filed my tax returns from 1974 through 2006.
And the fact that I have not during the period of 2006 through 2011, is predicated on the fact that — excuse me, let me take a step back — the fact that I have not filed is no indication that I have no intent to file.
My intention is to file, I want to file, but I have been given a condition, a contingency, and the contingency is, “We will talk to you, but you got to come” — “you got to plead to fraud.”
*599Now, see, what Mr. Conway — well, this is my understanding. If I went unilaterally, and filed these tax returns today, that may have certain implications to me, to my detriment, and on the advice of counsel, and on—
AUSA Conway: We are not asking you—
Smith: — advice of counsel—
AUSA Conway: — about your—
Smith: I am just saying—
AUSA Conway: — conversation with counsel.
Smith: I am saying to you, is I am prepared to resolve any tax issues today, yesterday and tomorrow, but I can’t do it with the threat of having to plead to something that I am innocent of, have always been innocent of, and something that I can’t say any more strongly than I am right now.
(Id. at 11-14). AUSA Conway next attempted to ask Smith if he admitted that he “willfully” failed to file his federal income tax returns. (Id. at 14-15). Smith reiterated his same lengthy response and would not admit that he had “willfully” failed to file his tax returns, even upon repeated questioning by AUSA Conway and rephrasing of similar questions as to the federal, state and local taxes.16 (Id. at 15).
Despite his persistence, AUSA Conway was only able to get Smith to admit that he would not directly answer a question about whether he “willfully” failed to file his returns and moved on to examining Smith about his financial condition during those years. (Id. at 16-18). Smith initially provided the same response to questioning about his financial condition, but after AUSA Conway advised that his purpose in pursuing this line of questioning was because the information “goes more to your motive for committing the fraud,” Smith provided ■ information about his finances during the relevant period. (Id.). Smith admitted that his real estate closing business was not financially strong during this timeframe and that his interests in investment properties in Florida and Myrtle Beach, South Carolina had lost money, although he was unable to provide specific details on the amounts, even after reviewing his 2006 tax returns. (Id. at 19-24).
AUSA Conway then circled back to inquiring about Smith’s tax liabilities and Smith testified that he did not blame his accountant for the failure to file his tax returns, and even acknowledged that his accountant had repeatedly told him of his obligation to file the returns. (Id. at 25). Smith apologized for not making his filings and added that if he was given the opportunity to file, he “would love to do it.” (Id.). He again divulged into his explanation that:
... you are asking me to plead guilty to another charge, or another matter, having nothing to do with the tax situation. In fact, we haven’t even talked about the fraud situation, we are just talking about the tax situation. I’m sure you will ask questions about that. And I apologize for being argumentative, but the fact of the matter is, that I cannot, and will not admit to something that I didn’t do. I did not file those tax returns for the years 2000, 2011,1 admit it openly, I say to you, that I request—
AUSA Conway: Sir, I am going to instruct you to answer my question.
Smith: I am.
AUSA Conway: All right?
Smith: I—
*600AUSA Conway: Instead of making speeches for every question that is being asked, you have to answer my questions.
(Id. at 26). At this point during the examination, the transcript reflects that there was a “knock on the door,” AUSA Cessar said “time out” and AUSA Conway asked Smith to exit the grand jury room, to which he obliged. (Id.). Smith was outside the grand jury room for 20 minutes and returned. (Id.).
AUSA Conway resumed his questioning but moved into Smith’s dealings with Ratchkauskas, Kubini and Roscoe. (Id.). Smith was asked if he agreed to do some closing work on behalf of them and he responded “yes” and then started to explain his answer. (Id. at 27). AUSA Conway interrupted Smith and told him to just answer the question he was asked, stating “I ask that you respond to my questions, rather than make a speech, and be here until 7:30 tonight. Okay? You understand? And you are in agreement to doing that?” (Id.). Smith agreed saying, “as best I can, sir.” (Id.). The examination proceeded with some back and forth about the number of transactions that Smith closed for these individuals, with Smith contesting initially that it was 50 total transactions but ultimately admitting that it was between 20 and 30 deals where all three of these individuals were involved and that he closed a number of additional “cash” deals for Ratchkauskas and Kubini, which altogether would likely total 50 deals. (Id. at 28).
Smith then advised that he was acting as a title insurance agent for Land America when he closed these transactions. (Id.). He acknowledged that he had a contract with Land America which granted it the light to audit his closing files. (Id. at 29). As such, the files which were subject to audit did not contain any attorney-client privileged information. (Id.). Land America also required him to operate a trust account containing third party funds necessary to close the transactions. (Id.). Hence, he was obligated to act as a responsible fiduciary to safeguard the funds which were not his. (Id.). Smith confirmed that in a typical transaction, he would receive funds from the lender, any down payment from the buyer and then disburse the funds pursuant to the instructions from the lender, ensuring that all of the parties to the transactions and any other vendors were paid accordingly, as noted on the settlement sheet. (Id.).
The examination moved on to an audit of Smith’s closing flies by Land America in March of 2008. (Id. at 31). Smith agreed that Land America uncovered a shortage of approximately $93,000 during the audit. (Id.). When he was asked what caused the shortage, Smith requested a break to confer with his counsel, which request was granted. (Id. at 32). He returned a few minutes later and the questioning resumed. (Id.). AUSA Conway attempted multiple times to ask Smith if, at that time of the audit, he had investigated and learned where the $93,000 “went” and Smith provided various answers that did not directly address the question, such as: “we were short”; “The money was short. The money — it was an accounting problem”; “very simply, we had our bookkeeper was being treated for cancer, she was out — ” and “we could not locate the problem.” (Id. at 33-34). AUSA Conway rephrased the question to ask if Smith “now” knew where the money “went,” to which Smith provided very similar responses, again without directly responding to the question. (Id. at 34-35). The following exchange then occurred:
AUSA Conway: Are you telling me you don’t know where the $93,000 went?
Smith: I just don’t recall. It’s been— sorry. It’s 2013,1 just don’t recall.
*601AUSA Conway: Well, how come I asked that question a minute ago, you got all nervous, and went to talk to counsel?
Smith: Excuse me. Wait a minute. I think — I think I have the right — I don’t have the right to have counsel here to represent me, and the fact of the matter is, I am going to be judicious and ask questions, just like you are going to ask questions, because ultimately, I’m going to do ultimately—
AUSA Conway (interrupting): But sir—
Smith: — the best, to do the best I could.
AUSA Conway: Sir, did you not get nervous a minute ago—
Smith: I was—
AUSA Conway: — when I asked you about the $93,000?
Smith: I was — I—I wasn’t — I was trying to recall what took place, because it’s five years ago, and I didn’t have the specifics, and I wanted to just consult with counsel, which I am allowed to do.
AUSA Conway: So you weren’t nervous at all, when I asked you about that $93,000 shortfall in your account?
Smith: I was only concerned because I didn’t remember exactly what all if the specifics were.
But, yes, of course, I would be concerned if one penny was out of the account.
AUSA Conway: The fact is, that the money went to fund your payroll account, and it went to fund your lifestyle during that time frame—
Smith: Absolutely—
AUSA Conway: — because you were in such financial affairs?
Smith: Absolutely not.
AUSA Conway: Where did—
Smith: If it—
AUSA Conway: — it go then?
Smith: — asked the question — you want to ask the question, you have asked it, the answer is absolutely not.
AUSA Conway: Where did the money go then?
Smith: I tell you what. I tell you what.
AUSA Conway: You don’t know. All right. We will move on.
Smith: Please.
(Id. 35-36).
Upon additional inquiry, Smith acknowledged that he rebalanced the escrow account and personally paid $20,000 into the account with funds he had separately acquired through a fee he earned in his law practice. (Id. at 38-39). He also admitted that he was instructed to close his escrow account at National City by Land America and did as instructed. (Id.). He then operated out of other escrow accounts he maintained. (Id.). Smith was next asked whether Alfred Watterson at Land America had told him to stop doing deals with Ratchkauskas and Kubini. (Id. at 40-41). In response, Smith propounded lengthy answers explaining that he had discussed the matter with Watterson on several occasions, during which he had informed Watterson of the “gifts of equity” involved in the deals. (Id.). Smith added that Watterson had told him that he should be “more conservative” given the lending climate amid the recession such that Smith should “stop doing deals with these folks.” (Id.). The questioning then progressed into Smith’s contractual relationship with Land America, which prompted the following:
AUSA Conway: And [Alfred Watterson] began proceedings, you were aware, to cut you off, to make sure you were no longer a title insurance agent for Land America; are you aware of that?
Smith: Cut me off?
*602AUSA Conway: Yes. To terminate your relationship with Land America, so that you could no longer represent them in terms of issuing title
Smith: You will have to speak to Mr. Watterson, I have never been terminated by Lawyer’s Title.
AUSA Conway: And he never told you that he was beginning the process of terminating you?
Smith: No, not at all.
And obviously, it never — all I can tell you, I have never been terminated by anybody, I never had a title claim, I have never had a problem.
(Id. at 41-42).
Once again, AUSA Conway refocused his questions on other areas, turning to the importance of settlement statements. (Id. at 42). Smith concurred with his examiner that settlement statements or HUD-ls are some of the most important documents in a real estate closing. (Id. at 42). He agreed that settlement statements are “basically a summary of the ins and outs of the money associated with the transaction.” (Id.). AUSA Conway asked Smith whether he had previously attended meetings with himself and agents. (Id.). Smith responded “yes” and attempted to further elucidate his answer but was interrupted by AUSA Conway, who again told Smith that the question posed to him was “simple” and counseled him that “[w]e don’t need a speech every time you answer a question.” (Id. at 43). He next probed Smith’s recollection of the fact that he had “changed his story” about the origins of the Roscoe Letter between his two meetings with law enforcement. (Id. at 44). Smith conceded that he initially told the Government that he had requested the letter from Roscoe independent of any involvement of Watterson at Land America but “clarified” at the second meeting that he was previously incorrect, telling them that Watterson had requested that Smith get the letter from Roscoe. (Id. at 44-45). Smith stated that he made a mistake and misspoke due to the passage of time between the interview and the underlying conversations he was recounting. (Id. at 46).
Smith was next asked why he told the agents during the interviews that he had filed 1099 forms with the IRS for all of the closings when the IRS had no record of any 1099s being filed for those transactions. (Id. at 47). Smith said that he could not explain why the IRS had no record of the 1099s being filed or why he had maintained no records of them in his own closing files because he always filed 1099s with the transactions. (Id. at 47-48). Smith continued:
... [a]ll I can tell you is the paralegals issue the 1099’s, I issue them today, I issued them yesterday, I can’t answer the question any more than I have already done.
AUSA Conway: Except in connection with these transactions, why is that, Mr. Smith?
Smith: Why is that?
AUSA Conway: Why in connection with all of the other transactions, you issued 1099’s, but when it comes to Dov Ratch-kauskas, and these deals, you didn’t issue 1099’s?
Smith: Oh, I am glad you brought it up, it just hit me like a ton of bricks. You don’t issue 1099’s when the seller is a corporation. Okay? And you can check that out. So whenever a seller is a corporation, or an LLC, or some type of legal entity, there is no 1099’s issued.
AUSA Conway: Even if the lender instructions require you to issue a 1099? Smith: You are not permitted. You are not permitted to do it. And that is your answer.
*603AUSA Conway: And your legal authority for that, Mr. Smith, is what?
Smith: Is the fact, that is the — I don’t have a statute in front of you — in front of me, but I have received bulletins from the title companies, as to when to issue 1099’s or not. So if the individual is a seller, the seller is an individual, we issue the 1099’s. If there is some legal entity, we do not. I’m sorry, I didn’t think of that a little bit earlier, but that’s the answer to the question and I certainly challenge you to check that out.
(Id. at 48).
AUSA Conway next attempted to ask Smith a question concerning whether he was precluded from issuing checks from his escrow account to borrowers at a closing and not reflecting it on settlement statements but was interrupted by Smith, who commented, “are you asking a question.” (Id. at 49). Smith then said “[a]ll right. I am going to answer the question, because I can’t answer it yes or no,” to which AUSA Conway retorted that “I seriously doubt you are going to answer the question.” (Id.). AUSA Conway then completed his statement/question, “whether this settlement statement is supposed to reflect the reality of the transaction? Or is it supposed to reflect some sort of falsehood made up by you?”
Smith: Okay. Certainly, there is no question that the four corners of the settlement sheet should reflect everything that went on between buyer and seller. However, when you have gifts of equity, and if you would check your— you know, check the regulations, gifts of equity are taken, are never on the settlement sheet, as a matter of standard operating procedure, they are taken care of outside the closing. Now, in this situation, where it was between seller and buyer, there was. There was a gift of equity from the seller to the buyer, of whatever the number was that they needed at closing.
(Id. at 49-50). Smith admitted that the parties to the particular transaction they were discussing were not related. (Id. at 50). AUSA Conway then followed up:
So your understanding of these transactions is somebody completely unrelated to any of these borrowers, would just give these people 15 to 25 thousand dollars out of the kindness of their heart? Smith: No, not at all.
AUSA Conway: Right?
Smith: Not at all. And this is how it happened. These guys, they bought properties at foreclosure sales, they bought them cheap, they went in and did some renovations, I understand, I don’t know for sure, and then they flipped them.
So if they bought a property for $10,000, and now were selling it for $60,000, and they put five or ten thousand, that’s just my thought, and could get the property appraised at $60,000, they are willing to give a gift of equity of $20,000, because that would be 40, and they would make $20,000 on the deal.
That’s exactly what took place. That’s exactly what took place.
And the fact of the matter is, since gift of equities don’t appear on the settlement sheet, it was funded at the closing.
If they were related, which they weren’t, then it would be funded outside of closing by money being deposited by some relative into the buyer’s checking account, or savings account, so they could use it at closing.
The reason they didn’t do it, was how did they know if they put five or ten thousand dollars in the buyer’s account, that the buyer would ultimately close.
*604AUSA Conway: When you are done with your speech, let me know, because I have a question here for you on this settlement statement.
Smith: Sure.
AUSA Conway: Are you done with your speech, whatever speech you are saying there?
Smith: Your question, sir.
(Id. at 51-52).
Smith was thereafter presented with an actual HUD-1 form that he had signed for one of the transactions at issue. (Id. at 52). He admitted that the HUD-1 form indicated on the line on the bottom left hand corner marked “cash from borrower” that the buyer in the deal had paid $18,504.37. (Id. at 58). He also conceded that there was no “gift of equity” indicated on the settlement sheet. (Id.). AUSA Conway then asked him to confirm that he had not received $18,504 cash from the borrower when he closed the deal. Smith responded:
That’s not correct.
I received a check from the buyer, who received a check from the seller, for that amount of money, endorsed over to me, into my escrow account, which was open, notorious and, in fact, your people indicated, in your reports, that it was open and notorious and transparent.
If I wanted to hide something, I would have hid it. I didn’t hide anything, I had no reason to hide it, that’s what it was.
(Id.). AUSA Conway next presented Smith with a check that he made out to the buyer in the same transaction and Smith confirmed that he issued the check. (Id. at 56). AUSA Conway asked why Smith had issued the check to the buyer when the settlement statement set forth that she brought cash to the transaction. (Id.). Smith responded:
I am not — I am telling — I am going to answer that question in two respects.
Number one, a letter has been given to me, and a letter has been given to the U.S. Attorney’s Office, that I received from the lender, that said that these types of gifts of equity were okay.
AUSA: Show it to me. Show it to me from the lender. It is not from the lender, now, is it?
Smith: Excuse me, I dealt with the broker directly. Okay?
AUSA Conway: It is not from the lender. You just told the grand jury it is from the lender.
Smith: Okay.
AUSA Conway: But that’s not true, now, is it?
Smith: Okay. I — from the broker. I never — whenever there is a broker—
AUSA Conway: There is a big difference between the mortgage broker and the lender, now, isn’t there?
Smith: Yeah, there is, absolutely.
And I deal directly with the broker, and the broker made it very clear, I asked the question, “Is the lender aware of this?”
The answer is, “Yes.”
I have a letter to that effect from the broker, I relied on that broker letter, which has been delivered to the U.S. Attorney, I don’t know whether or not he has shown this to members of the grand jury, I am happy to give them a copy of this, if I can do that.
AUSA Conway: Well, we will do it at the end. Now, this — now, this letter— Smith: And also — and also, I submitted voluntarily—
AUSA Conway: That is not admissible, sir, so we are not going to discuss that. Smith: Well, I’m sorry I—
*605AUSA Conway: You are instructed not to do that, Your Honor — sir, and you are not permitted to do it.
Smith: Well, this is—
AUSA Conway: This is not — you are not permitted to go into that.
Smith: Well, there is no deception in this, I have submitted myself to a polygraph test, that specifically says that there was no deception and, of course, these ladies and gentlemen are allowed to ask questions, and ask for documentation.
We have submitted to you, I believe you probably have not shown this to the grand jury members here today, nor the letter, maybe you have, maybe you haven’t, but you haven’t done the polygraph as well, and the fact of the matter is, that is what it is all about, there is no deception, there is no fraud, there never has been, there never would be, and in their own documentation, it says that these escrow accounts were transparent, it was easy to follow, and that’s because there was no deception, there was no intent to — for there to be deception.
AUSA Conway: And did they ask you in the polygraph examination whether you willingly failed to file your tax returns?
Smith: This had to do with fraud.
AUSA Conway: That wasn’t my question, sir.
Did they ask you in the polygraph examination, “Did you willfully fail to file your tax returns?”
Smith: There was [sic] no questions to that effect.
AUSA Conway: And this is all arranged by your defense counsel; right?
Smith: Yes, and from a source that is highly reputed here in Western Pennsylvania, who deals with law enforcement agencies, and the U.S. Attorney’s Office and the FBI.
(Id. at 56-58).
AUSA Conway continued examining Smith with use of closing documents, returning to the check he had previously shown him. (Id. at 59-60). Smith admitted that there was no statement on the settlement sheet that the buyer had received a check issued from his escrow account. (Id.). Smith was next presented with closing instructions from Chase Bank on another deal which stated that Chase had verified a down payment of $14,250 and a sales price of $95,000 and instructed the settlement agent, Smith, that any variances to those figures must be made on the settlement sheet and that he must have written approval from Chase Bank prior to closing the loan if any variances were present. (Id. at 61). The instructions further state that if the settlement agent had any knowledge that the source of the funds was other than described in the closing instructions, that he was not authorized to disburse loan proceeds and was required to contact the lender for additional instructions. (Id.). Smith confirmed that the language was correct, but expounded:
See, the — the—what you are not — what you are not telling anybody, is the fact is the investor relies on the broker, and I rely on the broker.
I assumed the broker did her job, set this — all of these, the settlement sheet is sent over to the investor to review, and the fact of the matter is, I have a letter stating how these transactions were to be worked.
I relied on these, and I had every reason to rely on those — on that letter.
AUSA Conway: And that letter is dated May of 2008; right?
Smith: That, I think so, sir. Just — May 15th, 2008.
*606AUSA Conway: And this transaction is dated 7-24 of 2007?
Smith: That’s correct.
AUSA Conway: It is pretty hard to rely on a letter that you haven’t received; right?
Smith: I testified earlier that I requested a letter, I had not received a letter, I did very little business with these folks, that was my mistake, but ultimately when push came to shove, I asked for the letter, and I received the letter.
(Id. at 62).
AUSA Conway later asked about the lender’s instructions to Smith to issue 1099s which appeared on the same form. In response, Smith told him that “y°u don’t do it, and I — I suggest that you check with your IRS agent, you don’t issue them when the seller is a corporation.” (Id.). AUSA Conway then pointed out that Kubini and Ratchkauskas sold the property in question personally, rather than through one of their many entities and Smith was forced to concede that he did not know why a 1099 was not issued but his paralegal should have done so. (Id. at 62-63). He followed up by asking Smith if he did not issue the 1099s in order to hide what was going on from the IRS, which Smith denied. (Id.). AUSA Conway immediately retorted that Smith was “not afraid to hide stuff from the IRS by not filing [his] tax returns.” (Id.). And Smith again told him to “look at the polygraph test, it says specific questions, and it says there is no deception.” (Id.).
The contentious “back and forth” between examiner and witness continued as they discussed numerous additional exhibits, primarily checks that Smith confirmed he had written from his escrow account to the buyers on the various deals, which were endorsed by the buyer and returned to him and settlement statements which all stated that down payments were made by buyers and did not state that “gifts of equity” were made by the sellers. At times, Smith continued to attempt to provide additional explanations in response to questioning, and was admonished by AUSA Conway to only answer the questions he posed and told “[i]f you want to make speeches, you can do that outside.” (Id. at 65). When discussing one of the deals wherein Real Estate Choice Investments, Inc. was the seller, AUSA Conway chided Smith, “So on this one you wouldn’t have to issue a 1099, according to tax law by Mr. — Mr. Smith; true?” (Id.). Smith answered the question without any retort, stating simply, “correct.” (Id.). During these exchanges, Smith pointed out that the corresponding vouchers to the checks issued to the sellers in these deals all stated “less gift of equity to the buyer” which he explained was to note the “net proceeds of the settlement statement.” (Id. at 67). But, Smith also advised that he was rarely ever required to provide the buyer’s down payment check to the lender in connection with real estate transactions he closed and that he never provided the lender copies of the checks he issued to sellers. (Id. at 68).
Smith testified that his paralegal prepared the settlement sheets for all of the transactions but admitted that he “absolutely” reviewed every one of them and personally participated in 98 to 99 percent of all closings that were completed at his office. (Id. at 70). He also conceded that he signed the instructions from the lenders which stated that he complied with all of the instructions and similar forms from his title insurance carrier. (Id. at 72-74). Smith recognized that in one of the transactions, a check issued out of his escrow account was deposited into the buyer’s account prior to the closing and then a certified check was written out of the buyer’s *607account in order to conform with the lending instructions. (Id. at 74). He added:
That’s what the instruction is, and that is why the checks were deposited into the buyer’s account, and the buyer then had the checks written out of that account.
You know the answer, Mr. Conway.
I followed the instructions, and I followed the gifts of equity.
Either you buy into the gift of equity, or you don’t buy into the gift of equity, and I did what the written instructions were from the broker, which again I’m happy to share that letter with you.
You already have seen it, but these folks have not.
(Id. at 74). Smith confirmed that the certified check presented by the buyer in that deal was not really her money, again, stating that:
.. these were all gifts, none of these folks had the moneys, except through the gifts of equity from the seller, which was fully disclosed to the buyer, before they even signed the agreement of sale, and at time of closing, when the check was presented to them, to endorse it over, it was all indicated to them.
(Id. at 75). He next conceded that the buyer was not related to the seller but continued to add that all of the buyers in these deals were thankful for the opportunity to become homeowners. (Id. at 76-77). AUSA Conway again asked Smith if he was done “making a speech” and further commented “[d]o you want to be here until midnight, or do you want to answer my questions?” (Id. at 77). Smith responded that he would be there “as long as it takes.” (Id.).
AUSA Conway proceeded to inquire with Smith about two closings he did for the same property, 657 Jackson Street, on the same day, June 13, 2008. (Id. at 78-82). Smith explained that the first deal was a “cash” transaction -where Real Estate Choice Investments purchased the property out of foreclosure and the second deal was a sale by Real Estate Choice Investments to individual purchasers in a “gift of equity” transaction. (Id.). Smith advised that he did not require the buyer on the first deal to present any funds at the initial closing but waited to close that deal until he had received the loan proceeds for the second deal, after which he disbursed the funds for the two transactions simultaneously. (Id. at 81). When questioned about the propriety of the back-to-back closings conducted in this manner, Smith responded that he “saw no problem with that at all.” (Id.). Smith confirmed that he closed a few other “gifts of equity” deals after which a recess was taken as one of the grand jurors needed a break. (Id. at 84).
AUSA Conway resumed his examination of Smith focusing on whether he had closed any of the “gifts of equity” deals after Watterson had told him to stop. (Id. at 84). Smith conceded that this discussion with Watterson and his instruction was a “significant event.” (Id. at 89). Smith admitted that he had told the agents during the prior interviews that he “hoped he had stopped” doing such deals after reviewing one of the reports from the interview. (Id. at 85). Smith then testified that he could not say definitively if he continued to close these types of deals after that conversation. (Id.). Smith could not recall specifically when the conversation occurred, although he admitted that the audit was conducted in March of 2008 and that the Roscoe Letter was dated May 15, 2008. (Id. at 87). He was unable to confirm or deny if Watterson had independently told the agents that this conversation took place in April of 2008. (Id.). *608Smith reiterated that he was unsure of whether he conducted these types of closings after the discussion with Watterson. (Id. at 87). Thus, he was provided with an opportunity to review his own records to determine if he had. (Id.). After a “quick look” through his own files, Smith testified that he closed three separate deals for Kubini and Ratchkauskas in July and August of 2008, but that none of them involved “gifts of equity.” (Id. at 88). Upon further questioning designed to have Smith respond to the previously posed direct question, Smith explained that he “said two things. One, that these type of deals I hoped that I had stopped doing. I then just also said that I did three deals later, after that, that had nothing to do with the structure that took place with Riverside Mortgage.” (Id. at 90).
AUSA Conway then proceeded to review a series of “gift of equity” transactions that Smith admitted he closed in June and July of 2008. (Id. at 90-94). During this questioning, Smith provided another lengthy answer and pointed out that the conversation with Watterson must have occurred after the May 15, 2008 letter from Roscoe. (Id. at 93). AUSA Conway concluded his examination with a few questions about deals that he had closed involving Ratchkauskas, David Kashi and Victorian Finance, as the broker. Smith asserted that these were not “gift of equity” deals. (Id. at 97). He added that this was a “different loan product” and reiterated that he had no idea that there were fraudulent appraisals, etc. and never would have forwarded Ratchkauskas’ deals to a reputable firm like Victorian Finance if he knew they were fraudulent. (Id.). AUSA Conway abruptly ended his questioning, but Smith apparently wanted to continue and to introduce exhibits, resulting in the following:
AUSA Conway: All right. Mr. Smith, I have no further questions for you, and you are excused.
Smith: I would also like to submit this.
AUSA Conway: you are excused now, sir.
WITNESS: Well, I am going to leave these documents over here,17 this has the polygraph test, this has the letter that was sent by the lender and I guess I am not allowed to tell you anything about this. Is that right?
MR. CONWAY: You are excused, sir.
Smith: Okay. If you want to, you have the right to take a look at these documents, each of you, with the exhibits.
I thank you for your time, and sorry it’s so late. But, the long and the short of it is, that—
AUSA Conway: Sir, you are excused.
Smith: I am excused. I am.
AUSA Conway: You can stop talking now.
Smith: Well—
AUSA Conway: The ladies and gentleman are ready to go. So you can leave. Smith: Well, just don’t know why you won’t share the polygraph information.
AUSA Conway: Sir, there is no question before you, we are asking you to leave. Smith: I’m leaving, I’m leaving. I’m also going to be outside.
AUSA Conway: Sir, there is no question before you.
Smith: I know. I am just going to be outside if [sic] case anybody has any questions, the grand jury should have any.
*609Do they have questions at all? They are allowed to ask questions.
AUSA Conway: I should have asked you, whether members of the grand jury have any questions for Mr. Smith, before we excuse him.
(Id. at 98-99).
Despite this exchange, certain grand jurors requested that Smith stay and proceeded to ask him a number of appropriate questions about the propriety of the transactions. (Id. at 99). The first grand juror asked Smith how he explained the “gifts of equity” transactions to the buyers at the closings because it appeared that the lender was “out of the loop” and the check endorsement process Smith had explained would likely raise “a red flag” with the buyers. (Id. at 99-100). Smith responded that this was an “excellent question” and told the grand jurors that he was informed at the initial meeting with Ratchkauskas, Kubini and Roscoe that all of the buyers were first time home buyers and were advised at the time of the execution of the sales agreement that they did not have to bring any funds to the closing and only a photo ID. (Id. at 100). A grand juror politely interrupted Smith and essentially propounded questions about a hypothetical deal to Smith, asking him to explain how he would tell the buyer about the transaction in the hypothetical situation. (Id. at 101). Smith obliged, reiterating that the sellers were willing to enter into the “gifts of equity” deals because they had bought the properties so cheap out of foreclosures and were flipping them for substantial profits even without the additional funds which were instead “gifted” to the buyer. (Id.). He further advised that all of his closings take about an hour to an hour and fifteen minutes and that he went over every document with the buyers. (Id. at 102). Smith demonstrated that he would show the checks payable to the buyers he had issued out of the escrow account to the buyers and tell them that they needed to endorse it back to him so that he could balance his account. (Id.). Smith moved into another lengthy explanation, without any interruptions, and throughout posed questions to himself as follows:
With regard to the lender, let’s talk about the lender, there are two financial arms here, one is the broker, Riverside and one is JP Morgan Chase in most of those deals.
So, I have a letter that stated that this was approved by the investor.
Now, this letter, and I never got the opportunity to answer this, or give this to you, but it’s right here, this is a letter that’s written by Rochelle Roscoe to Mr. Watterson at Lawyer’s Title, because he asked for it.
This letter was originally drafted by Miss Roscoe, and she sent it over to me to take a look at, and I helped her revise it, because it was [sic] grammatical mistake, that were typos in there, and I figured, you know, it should be cleaned up.
You will see certain things in there that I, in my — neither you, nor me, would have ever known to say, other than the fact that it was authorized to do that.
That was a document that was created by the broker.
I relied on the broker.
Why did I rely on the broker? You don’t say, “Mr. Smith, weren’t there some other intents, some red flags out there?”
Well, look, these guys, these buyers, they got a fixed rate mortgage. It wasn’t an adjustable rate loan. It wasn’t — they weren’t paying five, ten points, they were paying pretty much *610market rates, so there wasn’t anything out there that said that these people were being ripped off.
Did I know that fraudulent loan applications were filed? Did I know that there were fraudulent appraisals, verification of employment, credit reports? Heck no.
And, if I would have known — if I would have known, no way would I have put 33 years on the line, for that. No way. It was only approximately four and a half percent of my income from June of 2007 through 2000 of 8. So there is no way I was going to do it.
The other reason that I didn’t come up — one second. The other reason why it was — we were getting ready to terminate them. They had become very rude to my personnel. My personnel were being very uncomfortable. They were fighting with everybody, Mr. Ratchkaus-kas and Kubini, they were fighting with the lender, the — the broker, they were fighting with our office, they were just fighting with everybody, and it was starting to get a little tiresome. And for the few deals that I did, as I said, 25 or 30 over a 12-month period, it wasn’t worth it, and when Mr. Watterson said, “You know what, we don’t need this any more, wind it down, get done with them,” that’s what we principally did.
I don’t know if that answered your question, but I really tried [to].
(Id. at 101-104).
AUSA Conway then asked Smith a series of questions about the loan applications and Smith stated that he did not look at them substantively because the lender had approved the loan, adding that he only instructed the buyers to sign and initial the applications during the closing. (Id. at 104-105). Another grand juror questioned Smith about what would happen if one of the buyers in these “gifts of equity” deals had simply taken the check payable to him or her and left Smith’s office. (Id. at 106-07). Smith articulated that he would have instructed the buyer to stay and if they did not listen, he would have stopped payment on the check. (Id.). On follow-up questioning, Smith articulated that the “gift of equity” was a separate contract between the buyer and seller but was handled as part of the closing so as to avoid the buyers attempting to take the funds. (Id.). Yet another grand juror asked Smith if the “gifts of equity” were always the same percentage and Smith explained that there were often other closing fees but they were generally twenty-percent, or equivalent to the amount of the required down payment. (Id. at 108). He added that the funds from the “seller assists” on the deals were used to cover closing costs and the “gifts of equity” would cover any remaining closing costs and the down payment. (Id.).
One of the other grand jurors asked Smith why he did not think that his client giving $30,000 or so to an unrelated person was “fishy”? (Id. at 109). Smith provided another verbose response, pointing out that the buyers often called his office and asked what was needed for the closing and his paralegal would tell them to bring their photo ID. (Id.). If there were questions at the closings from the buyers, he would remind them of their earlier conversations with his paralegal. (Id.). Smith also added that the buyers were getting fixed rate mortgages, at what he deemed to be good rates, and they were not subprime mortgages or other loan products which would have prompted additional scrutiny from him. (Id. at 110). Once again, he reiterated that he was unaware of the other aspects of the alleged fraud. (Id.). The same grand juror pointed out that Smith had not answered his question and asked Smith the following more directly, “you *611are telling me you are selling someone, who doesn’t have the funds, a hundred thousand dollar home, and these people are giving them 20 grand to put down; is that what you are saying?” (Id. at 111). Smith responded “Yes, through a gift of equity. Yes. Okay.” (Id.). The grand juror said that Smith had answered his question. (Id.).
At this point, AUSA Conway asked if there were any other questions from the grand jury and Smith attempted to interrupt and provide an additional explanation of his last answer. (Id.). The grand juror reaffirmed that Smith had answered his question. (Id.). AUSA Conway again told Smith he was excused. Smith then asked the grand jurors if they had any more questions. (Id. at 112). Hearing no response, he thanked the grand jurors for their time and stated the following “[a]nd again, I encourage you to take one of these documents, because I think they are very — they would be very enlightening to you.” (Id.). It is undisputed that Smith then exited the grand jury room, leaving his packet of materials containing Stall-ings’ February 15, 2013 Letter, the polygraph report, Mr. Barrett’s c.v., and the Roscoe Letter behind for the grand jurors. However, it appears that Smith’s packet of materials was not marked as an exhibit to the proceedings.
g. Grand Jury’s Continuing Investigation and Return of Superseding Indictment Against Smith, et al.
The grand jury’s investigation continued after Smith’s appearance on February 19, 2013. According to the parties, the grand jury called a number of additional witnesses, including, James Steiner, Rochelle Roscoe, and Alfred Watterson. (Docket No. 248 at 42-43, 56). Smith has not contested the Government’s proffer that the Roscoe Letter was made an official exhibit and provided to the grand jurors during the examinations of these additional witnesses.18 (Docket No. 251). The grand jury returned its Superseding Indictment against Kubini, Ratchkauskas, Smith and Svranovic on March 26, 2013. (Docket No. 92).
h. Smith’s Discovery Demands, the Government’s Responses Thereto and Its Ongoing Production of Discovery Materials to Smith
At the time of the Superseding Indictment, this Court had presided over the cases of Kubini and Ratchkauskas for nearly two years. See generally Crim. No. 11-14. Several status conferences were held and the Court was advised on several different occasions by counsel for these parties about the voluminous evidence in the case, some of which was in electronic form and some in hard copy form which were contained in numerous boxes at the Secret Service’s Office. (Docket Nos. 77, 80, 102). Neither counsel for Ratchkaus-kas nor Kubini lodged any objections to the discovery production by the Government. (Id.). Instead, they repeated on each occasion before the Court, and in their motions for extensions of time to file pretrial motions, that they needed additional time to complete their review of the Government’s voluminous material so that they could make informed decisions as to how to proceed with their cases. (Docket Nos. 26, 35, 39, 41, 43, 45, 47, 51, 53, 55, 57, 59, 61, 63, 65, 67, 69, 71, 73). The Court was also generally informed that the grand *612jury’s investigation was ongoing and that tax charges were likely to be added against one or both of Ratchkauskas and Kubini. (Docket Nos. 77, 80, 102). The Court held a previously scheduled status conference in Ratchkauskas’ case two days after the grand jury returned its Superseding Indictment and was informed that the discovery for the additional charges was now available for counsel to review. (Docket No. 102). Again, no objections by anyone were made to the form of production of the discovery materials. (Id.).
Arraignments for Ratchkauskas and Ku-bini on the Superseding Indictment were separately held on April 2, 2013 and April 4, 2013.19 (Docket Nos. 103) 107). Magistrate Judge Eddy reported that discovery was “completed” in her reports on both cases. (Id.). Yet, on the morning of April 16, 2013, Smith filed his “Initial Discovery Demands” wherein he set forth all of the materials he was requesting that the Government produce to him, including, among other things, any records of prior statements made by him, all relevant documents in the Government’s control, all Brady materials, impeachment materials, and any privileged materials seized by the Government during the search of his Law Office and/or a privilege log identifying such materials. (Docket No. 115).
Based on the docket, Magistrate Judge Kelly held a joint arraignment with Smith, his counsel and codefendant Svaranovic and her counsel, William Kaczinski, Esquire. (Docket Nos. 117, 123). AUSA Gregory Melucci substituted for AUSA Conway at these proceedings. (Id.). Magistrate Judge Kelly’s report on Svara-novic’s arraignment reflects that discovery was “completed” in her case. (Docket No. 117). The report as to Smith’s case, however, noted that discovery was “incomplete,” “but to be made available this week to defense counsel.” (Docket No. 123). The receipt of Rule 16.1 material20 filed in Smith’s case adds the following Order by Magistrate Judge Kelly, “[t]he government is directed to make available all discovery material to defense counsel on April 16,17, 18,19, 2013.” (Docket No. 126 at 2).
Stallings and AUSA Conway continued their email correspondence after the Superseding Indictment was returned. To this end, although he was not present at the arraignment, AUSA Conway immediately forwarded Stallings the grand jury exhibits by email at 12:36 p.m. on April 16, *6132013. (Docket No. 191-4 at 1). Stallings then proceeded to review the third party discovery which had been made available to him and emailed AUSA Conway and Special Agent Fisher on April 17, 2013 at 5:33 p.m. (Docket No. 191-2 at 3-4). In this email, Stallings states that he was reviewing his notes and was unsure how much of the material he would need copied. (Id.). He farther comments that a “good initial step” would be to obtain all of the electronically stored materials first which were available. (Id.). AUSA Conway responded to counsel for all of the parties, copy to Agents Galson and Fisher, the next morning, advising that they had not scanned all of the documents and had only received some documents electronically. (Id. at 3). He continued that the agents were willing to make copies of all of the scanned documents they had. (Id.). Stallings quickly replied that he wanted all of the scanned documents. (Id. at 2). AUSA Conway sent another email explaining that not all of the documents were scanned and that certain of the documents would not be made available to Smith, such as Ratchkauskas’ tax records, given privacy concerns. (Id.). He asked Stallings to identify which records he wanted and the agents would make electronic copies for him. (Id.). In his final email, Stallings accuses the government of a “document dump” and that the discovery was not “adequate under law, rule or local practice.” (Id. at 1). He complains that there was no index of what was produced, no bates numbers, and 30-50 boxes of unsorted, unindexed, often mislabeled materials. (Id.).
Despite these complaints, Smith and his counsel continued to review the third party discovery at the Secret Service’s Office and during their review located certain documents which they claim constitute Brady materials that were not identified by the Government.21 To this end, Smith located a SAR filed by JP Morgan Chase on July 11, 2007 with respect to a loan application for a sale of 1135 Pennsylvania Avenue which was not approved. (Docket No. 191-9). The SAR notes that the appraisal conducted by Joel Reck of Platinum Appraisal Services, Inc. misrepresented the value of the property by overvaluing the property thirty-two percent (32%) more than a review appraisal which was conducted by a third party. (Id.). The SAR investigator also noted that he was concerned that he had uncovered a house flipping scheme involving Riverside Mortgage and Platinum Appraisal, among others, and by the fact that the sales agreement identified different sellers than the other documents in the file. (Id.). No losses were realized by JP Morgan Chase as a result of this particular transaction because the loan was not funded and the deal did not close. (Id.). However, it is undisputed that JP Morgan Chase funded a loan for the sale of the same property by Kubini and Ratchkauskas to a different borrower, William Brown, a few months later. (Docket No. 154-7). While Riverside remained the broker on this subsequent deal, Svaranovic provided an appraisal which stated that the value of the property was $95,000 and Smith closed the deal. (Id.).
Smith also found internal correspondence from Land America, which disclosed the findings of the audit of Smith’s accounts, including that:
• Smith had “loaned” money from his escrow account to his operating ae-*614count at a time when his bookkeeper was out for a few months, his business line of credit was “maxed out” and he was not able to refinance his personal residence or investment properties in Florida and Pittsburgh in order to cover liabilities in his operating account;
• Smith later replenished the escrow account with fees earned through his law practice;
• Smith had not provided a full explanation as to how the “loaned” funds were disbursed from the operating account but assured Watterson that no payments were made to Real Estate Choice Investments outside of the real estate closings;
• Land America’s audit found 27 files where Smith closed deals for Real Estate Choice Investments/Dov Rátchkauskas as the seller and Riverside Mortgage Services as the broker;
• The auditors reviewed only two of these files in depth, i.e., the “Osborne file” and the “Carter file.”22 Watterson states that a review of both of these files demonstrated that the HUD settlement statements contained material misrepresentations because they failed to disclose that the seller had contributed funds toward the buyer’s down payment;
• Watterson commented that there was “little value” in completing a “full review” of the remaining 25 files because they were advised by Smith that each deal followed a “similar pattern”; and,
• In response to a question of whether Smith would remain an officer of Land America, Watterson stated that two other individuals (Bob Spez-ialetti and Jim Sindoni) would make that decision but that he (Watterson) “would recommend that [Smith] be kept as 30 years of affiliation with very minimal claims over that period.”
(Docket Nos. 191-1 at 1-2; 191-7).23
The Government’s rolling production of materials to the defense has continued throughout these proceedings. Prior to his indictment, Smith was provided with the search warrants and affidavits authorizing the searches at his Office and file room; he was granted access to review the materials seized by the agents during those searches; and he received copies of the agents’ reports of his subsequent interviews with law enforcement. (Docket Nos. 154-5; 251-7). Later, the Government produced Smith’s grand jury testimony *615and the exhibits which were admitted during that proceeding. (Docket Nos. 123; 191-4). Since the Superseding Indictment was filed, the Government has made the third party discovery available for inspection at the Secret Service’s Office and also provided all Defendants with a spreadsheet detailing 109 loans it intends to prove at trial. (Docket No. 154-7). In October, 2013, the Government disclosed its Jencks Act and Giglio impeachment material to all Defendants, making this information available on a stand-alone computer in the U.S. Attorney’s Office but has not permitted copying of such materials by Defendants or their counsel to this point. (See Docket No. 213). In March of 2014, the Government produced 1,700 marked trial exhibits to Defendants, including a searchable exhibit list and promised to update such information prior to the trial. (Docket Nos. 256-1; 256-2; 256-3). These materials derive from, among other sources, the exhibits from the search of Smith’s Office and file room which the Government plans to introduce at trial. (Docket Nos. 256-2; 256-3). As promised, the Government produced additional exhibits and a revised exhibit list to Defendants on May 9, 2014, detailing additional categories of documents it has marked and will seek to admit in its case at trial. (Docket No. 261-1).
Smith remains the only codefendant in this case to have objected to either the form or method of the Government’s discovery production to this point. Indeed, each of Smith’s codefendants (Svranovic, Kubini, Ratchkauskas) filed and/or joined motions for discovery but withdrew them at the Court’s Motion Hearing, stating that the Government’s production was adequate. (See Docket No. 248).
III. MOTION TO DISMISS INDICTMENT
Smith seeks dismissal of the Superseding Indictment based on alleged prosecuto-rial misconduct which he contends occurred during the grand jury proceedings and in the proceedings before the District Court. (Docket Nos. 153, 191, 251, 257). The Government argues that the record is insufficient to demonstrate prosecutorial misconduct warranting dismissal under either theory. (Docket Nos. 180, 250, 256). The Court turns initially to Smith’s claim seeking dismissal of the Superseding Indictment based on the alleged prosecutorial misconduct of the assigned prosecutor before the grand jury.
a. Alleged Prosecutorial Misconduct before the Grand Jury
1. Legal Standard
The Fifth Amendment to the United States Constitution provides that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury_” U.S. Const. Amd. V. The grand jury serves as a referee or buffer between the government and the people. United States v. Williams, 504 U.S. 36, 47, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992). It is an accusatory body that sits “not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge.” Id. at 51, 112 S.Ct. 1735; Bracy v. United States, 435 U.S. 1301, 1302, 98 S.Ct. 1171, 55 L.Ed.2d 489 (1978). In light of “the grand jury’s singular role in finding the probable cause necessary to initiate a prosecution,” courts generally lack authority “for looking into and revising” the grand jury’s judgment. Kaley v. United States, — U.S. -, 134 S.Ct. 1090, 1097-98, 188 L.Ed.2d 46 (2014) (citing Costello v. United States, 350 U.S. 359, 362-63, 76 S.Ct. 406, 100 L.Ed. 397 (1956)).
A defendant who seeks to set aside an indictment bears a heavy burden. *616United States v. Fenton, Crim. No. 98-01J, 1998 WL 356891, *4 (W.D.Pa. June 29, 1998) (Brooks, J.). A district court generally lacks supervisory power over grand jury proceedings. Williams, 504 U.S. at 47, 112 S.Ct. 1735 (“as a general matter at least, no such ‘supervisory’ judicial authority exists”). Courts may exercise this narrow degree of authority only “if it is established that the violation substantially influenced the grand jury’s decision to indict or if there is grave doubt that the decision to indict was free from the substantial influence of such violations.” Bank of Nova Scotia v. United States, 487 U.S. 250, 255-56, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988) (citing United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986)).24 Well-developed case law establishes that “only where violations of positive law embodied in a rule of criminal procedure, a statute or the Constitution are raised may a court review an indictment with a view toward possible prejudice in the grand jury proceedings.” Fenton, 1998 WL 356891, at *6 (citing In re Grand Jury, 103 F.3d 1140, 1145 (3d Cir.1997) (“Judicial supervision and interference with grand jury proceedings should always be kept to a minimum.”)). “Whatever supervisory power does exist, it does not permit judicial review of errors which impact only upon the quality and reliability of the evidence considered by the grand jury.” Id.
2. Discussion
Smith points to a number of instances of alleged improper behavior by AUSA Conway, including his: refusal to permit Smith to present exculpatory evidence to the grand jury; suggesting that Smith’s consultation with his counsel implied guilt; subordination of a known conflict of interest by allowing Steiner to testify before the grand jury while he was represented by his former counsel; repeated interruptions of Smith’s testimony and numerous comments that Smith stop making “speeches” rather than directly answering questions; and misleading comments as to the law and facts on the issuance of 1099 forms in connection with closings, whether he was terminated as a title agent by Land America and the admissibility of polygraph evidence in grand jury proceedings. (Docket Nos. 151, 191, 251, 256). While Smith frames his arguments broadly as “prosecutorial misconduct” in an effort to avoid the import of the Supreme Court’s decisions in United States v. Williams and Bank of Nova Scotia, the Court agrees with the Government that Smith’s challenges are neither sufficient to warrant the exercise of its supervisory power over the grand jury proceedings nor to dismiss the Superseding Indictment.
At the outset, there is simply no evidence of any prejudice to Smith caused by the grand jury’s return of the Superseding Indictment against him because the Court finds that the misconduct allegedly perpetrated by AUSA Conway, even if such misconduct was conclusively proven by Smith, neither “substantially influenced” the grand jury’s decision to indict him nor *617demonstrates that there is “grave doubt that the decision to indict was free from the substantial influence of such violations.” Bank of Nova Scotia, 487 U.S. at 255-56, 108 S.Ct. 2369. Prior to his grand jury appearance, Smith was repeatedly advised, through his counsel, that he was a target of the Government’s investigation and that the Government intended to seek an indictment against him. See e.g., Docket No. 251-13 (June 19, 2012 email from AUSA Conway to Stallings advising that a meeting between the parties was best put off until after an indictment was returned and Smith and his counsel first had the opportunity to review discovery); Docket No. 154-5 (August 27, 2012 email from AUSA Conway to Stallings advising that he did not intend to do anything with Stallings’ requests for privileged documents until after indictment was returned); Docket No. 251-13 at 2 (Stallings’ February 13, 2013 letter outlining his email communications with AUSA Conway requesting that Smith be notified of the return of an indictment because he may wish to testify before the grand jury, on various dates, including August 29, 2012, October 15, 2012, February 14, 2013, February 15, 2013). Indeed, the Government notified Smith, again through his counsel, that he “face[d] a potential indictment for bank fraud, wire fraud and conspiracy” and “failure to file his tax return charges.” (Docket No. 251-13 at 1). AUSA Conway provided a similar warning to Smith at the beginning of his voluntary grand jury appearance, advising him yet another time that the Government intended to ask the grand jury to indict him, which he acknowledged. (Docket No. 154-11 at 3-4).
As far as the Court can tell, the sole purpose of Smith’s grand jury appearance was to persuade the grand jury to not indict him for charges of bank fraud, wire fraud, conspiracy and failure to file tax returns. “[T]he grand jury returns indictments in the overwhelming majority of cases,” United States v. Budd, 496 F.3d 517, n. 9 (6th Cir.2007),25 and District Courts generally lack the authority to review the grand jury’s determination that there is probable cause to indict by reviewing the reliability and competence of the Government’s evidence presented to the grand jury, see Costello, 350 U.S. at 362-63, 76 S.Ct. 406. Thus, the fact that the grand jury returned an indictment charging Smith with the same offenses the prosecution advised him he would be charged with prior to his grand jury appearance significantly undermines his position that he was prejudiced by what occurred during his actual appearance before the grand jury. See Bank of Nova Scotia, 487 U.S. at 255-56, 108 S.Ct. 2369. Additionally, the parties do not dispute that Smith was not the only witness who testified before the grand jury; thus, the grand jurors’ decision to indict Smith was not premised solely on his own testimony and the grand jury likely would have proceeded to indict him if he had not voluntarily appeared and testified.26 Id. Nevertheless, Smith’s challenges to the grand jury proceedings are *618legally flawed because they are beyond the scope of this Court’s narrow supervisory authority over grand jury proceedings, i.e., he asks the Court to fashion and enforce rules of grand jury procedure which do not challenge the structure of the composition of the grand jury and/or complains about the reliability and competence of evidence which was presented to the grand jury by the Government.
Through his Motion, Smith essentially seeks to enforce: certain provisions of the U.S. Attorney’s Manual which counsel prosecutors to generally admit evidence favorable to the accused in grand jury proceedings and to permit targets of investigations to testify upon request; an alleged oral agreement by AUSA Conway to allow Smith to introduce exculpatory documents into the proceeding; the Rules of Professional Conduct which he contends prohibit his former counsel from representing a cooperating witness who testified before the grand jury; his right to consult with his counsel during the grand jury proceedings; and, general standards setting forth the appropriate methods of examination of witnesses. (Docket Nos. 151, 191, 251, 256). In this Court’s opinion, the establishment and enforcement- of any of these purported rules, agreements or standards vis-a-vis grand jury proceedings would run afoul of clear Supreme Court precedent which limits the Court’s supervisory authority over the grand jury and the prosecutor’s conduct before it.
On this issue, the Supreme Court of the United States has reasoned that:
... any power federal courts may have to fashion, on their own initiative, rules of grand jury procedure is a very limited one, not remotely comparable to the power they maintain over their own proceedings. It certainly would not permit judicial reshaping of the grand jury institution, substantially altering the traditional relationships between the prosecutor, the constitutional court and the grand jury itself.
Williams, 504 U.S. at 50, 112 S.Ct. 1735. Consistent with this pronouncement, the Supreme Court has declined to permit courts to invoke their supervisory powers to adjudicate challenges to the following well settled constitutional protections which are afforded to defendants in a trial setting:
• the refusal of the government to present substantial exculpatory evidence, see Williams, 504 U.S. at 50, 112 S.Ct. 1735;
• the introduction of evidence obtained in violation of a defendant’s Fourth Amendment rights, see United States v. Calandra, 414 U.S. 338, 349, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974);
• the admission of evidence secured in violation of a defendant’s Fifth Amendment rights against self-incrimination, see id. at 346, 112 S.Ct. 1735; and,
• the return of an indictment predicated on hearsay evidence in violation of the Rules of Evidence, see Costello, 350 U.S. at 364, 76 S.Ct. 406.
The Supreme Court has likewise recognized that the Sixth Amendment right to counsel does not attach prior to the grand jury’s return of an indictment. See Williams, 504 U.S. at 49, 112 S.Ct. 1735 (citation omitted). Thus, a person’s Sixth Amendment right to counsel cannot be violated during grand jury proceedings. See Baylson v. Disciplinary Bd. of Supreme Court of Pennsylvania, 975 F.2d 102, 106 (3d Cir.1992) (“Though the Board may be correct in arguing that attorney subpoenas raise Sixth Amendment right to counsel concerns, the fact remains that a *619person does not have a right to counsel prior to indictment by a grand jury.”).
Following Williams and Bank of Nova Scotia, the United States Court of Appeals for the Third Circuit has refused to import and enforce the Rules of Professional Conduct in grand jury proceedings. See Baylson, 975 F.2d at 106 (“[T]he district court may not under the guise of its supervisory power or its local rule-making power, impose the sort of substantive restraint on the grand jury that is contemplated by Rule 3.10.”). Our Court of Appeals has further recognized that an Assistant United States Attorney “did not have a constitutionally mandated obligation to advise [a grand jury witness] that he could remain silent and that anything he said could be used against him” and rejected a request to invoke the supervisory power to consider such challenge. United States v. Gomez, 237 F.3d 238, 241 (3d Cir.2000) (citation omitted). Additionally, the Third Circuit has cited, with approval, decisions of other courts of appeals which have held that the supervisory power may not be used to enforce purported violations of provisions of the U.S. Attorney’s Manual because such provisions do not create any judicially enforceable rights in grand jury proceedings. See e.g., Gomez, 237 F.3d at n. 1 (noting that any contention that the U.S. Attorney’s Manual creates any rights before the grand jury, the violation of which entitles a defendant to dismissal of an indictment is “against the weight of judicial authority”); United States v. Jarrett, 447 F.3d 520, 529 (7th Cir.2006) (“Case law, not internal handbooks, provides the guidance for whether a prosecutor has crossed the line in pursuing an indictment.”); see also United States v. Gross, 41 F.Supp.2d 1096, 1098 (C.D.Cal.1999), aff'd, 40 Fed.Appx. 397 (9th Cir.2002) (U.S. Attorney’s Manual did not create enforceable rights). Therefore, this Court’s supervisory power over grand jury proceedings is limited and not generally invoked to remedy the types of activities before the grand jury Smith complains occurred here.
The Court acknowledges that Smith is correct that the pre — Williams and Bank of Nova Scotia precedent of the Third Circuit generally commented that prosecutorial misconduct before the grand jury may warrant the dismissal of an indictment. (See Docket Nos. 152, 191, 251, 256). However, in United States v. Martino, the Court of Appeals made clear that even prior to those decisions of the Supreme Court, our Circuit required a showing of prejudice to the defendant before dismissal could be deemed an appropriate sanction for the asserted misconduct. United States v. Martino, 825 F.2d 754, 759-60 (3d Cir.1987). Moreover, the Mar-tino decision specifically comments that “in none of the Third Circuit cases in which we found prosecutorial misconduct before the grand jury did we order dismissal of the indictments.... In almost all cases, we determined that the misconduct was harmless error and not prejudicial.” Id. The Court of Appeals noted that it had “condemned as improper” the following prosecutorial actions: threats to a grand jury witness and descriptions of the witness as a “racketeer” and “thief,” United States v. Bruzgo, 373 F.2d 383, 386 (3d Cir.1967); statements to the grand jury that a potential witness was unavailable because the defendants were connected to organized crime and could harm the witness, United States v. Riccobene, 451 F.2d 586, 587 (3d Cir.1971); “a Justice Department special attorney’s appearance before the grand jury in the dual role of prosecutor and witness in violation of the American Bar Association’s professional standards,” United States v. Birdman, 602 F.2d 547 (3d Cir.1979); and “graphic and *620misleading references associating the defendants with organized crime,” United States v. Serubo, 604 F.2d 807, 818 (3d Cir.1979). But, again, the Court of Appeals did not dismiss indictments in any of those cases and although it characterized the misconduct in Serubo as “extreme,” it merely remanded the matter to the district court for further proceedings. Martino, 825 F.2d at 759.
This Court has also reviewed with interest the decision by the United States District Court for the Eastern District of Pennsylvania in United States v. Breslin, 916 F.Supp. 438 (E.D.Pa.1996), which is cited by Smith, and is an instance where the District Court dismissed an indictment, without prejudice, based upon a finding of both prosecutorial misconduct and prejudice to the defendants. However, Breslin is non-binding on this Court and distinguishable. In Breslin, the District Court found that the cumulative ef-' feet of many instances of prosecutorial misconduct substantially influenced the grand jury’s decision to indict. Id. at 446. The District Court commented that it was “an unusual case” but believed that the “cumulative unfairness” in the grand jury proceedings was evidenced by, among other things, the prosecutor’s:
• provision of donuts to the grand jurors in an effort to “bond” with them;
• repeated comments that he had a limited amount of time to present the case to them;
• insertion of his characterization of the evidence and his opinions on the weight to be given to certain evidence and the credibility of witnesses;
• numerous references which “improperly led the jury to believe that it was not entitled to request live witness testimony or that live testimony was unavailable”;
• comments that the statute of limitations was set to run so that an indictment needed returned immediately, with the Government admitting that the grand jury’s deliberations lasted 15 minutes; and,
• advice to the grand jurors that they did not need to agree with the entirety of the indictment but only the “critical parts,” which the District Court found was counter to the instructions provided to the grand jurors upon their swearing at the outset of their service.
Id. at 443-46. Smith asks this Court to follow Breslin and take the “cumulative unfairness” approach here, but none of Smith’s complaints about AUSA Conway’s actions rise to the level of prosecutorial misconduct committed ,in Breslin or the types of misconduct which involved the prosecutor’s improper influence over the grand jurors, subversion of the grand jury procedures and legally flawed instructions as to how the grand jury should conduct its deliberations and reach its probable cause determination. Id. The other decisions cited by Smith in support of his requested dismissal of the Superseding Indictment are similarly non-binding and unavailing. {See generally Docket Nos. 152,191, 251, 256).
Although the Court holds that it is without authority to exercise its supervisory power in this case, it will briefly explain why it believes that Smith has failed to meet his burden to warrant the extreme sanction of dismissal of the Superseding Indictment based on the present record. See Fenton, 1998 WL 356891, at *7 (holding that the alleged errors were beyond the Court’s review but further explaining why “none of the prosecutor’s actions constituted misconduct”).
*621First, the prevailing caselaw is clear that the Government was under no obligation to introduce evidence which was exculpatory to Smith or even to invite him to testify before the grand jury as a target of the investigation. See Williams, 504 U.S. at 50, 112 S.Ct. 1735. While the Department of Justice instructs its assistants to do both and has set guidelines for the grand jury examination of targets in certain provisions of the U.S. Attorney’s Manual, those provisions are unenforceable in judicial proceedings and courts properly decline to exercise their supervisory authority over a defendant’s challenges to prosecutorial misconduct framed upon asserted violations of the U.S. Attorney’s Manual. See Gomez, 237 F.3d at n. 1. Accordingly, this Court will not exercise its supervisory authority to enforce the cited provisions of the U.S. Attorney’s Manual.
Second, Smith testified at length about the exculpatory evidence he complains was improperly excluded from the grand jury proceedings. With respect to the polygraph results,27 Smith admits that AUSA Conway expressly told him and his counsel prior to the grand jury appearance that the polygraph report and results would not be discussed during his examination but he proceeded to testify at length about the results of the polygraph over the protestations of AUSA Conway. (Docket Nos. 251 at ¶¶ 18-19; 154-11 generally ). The Court also finds that AUSA Conway did not commit misconduct by stating that the polygraph report and results were “not admissible” in the grand jury proceedings in light of Smith’s ac-knowledgement that he violated the instructions of his examiner by testifying about the results. (Docket No. 154-11 at 56-58).
Further, Smith’s contention that the polygraph results could be properly admitted in a judicial proceeding via expert testimony in light of Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), has no applicability in the context of his own grand jury examination. (See Docket Nos. 152, 191, 251, 256). Again, this Court lacks the authority to enforce the Rules of Evidence in grand jury proceedings, and, even if it was permitted to do so, this Court is aware of no prece-dential support for the proposition that an individual who is a non-expert and the subject of a polygraph examination should be permitted to testify as to the results of same or be a competent witness to authenticate a third party’s expert report. See e.g., United States v. Lee, 315 F.3d 206, 213, n. 6 (3d Cir.2003) (stating in dicta that “this Court has not adopted a per se exclusionary rule regarding polygraph evidence” and noting a split of judicial decisions on the issue of whether polygraph evidence could be admitted through expert testimony) (citations omitted). As such, AUSA Conway simply cannot be faulted for instructing Smith that the polygraph examination was inadmissible in the grand jury proceedings.
Smith also contends that AUSA Conway violated an alleged oral agreement reached with his counsel, Stall-ings, wherein the Government purportedly agreed to admit the Roscoe Letter into evidence during his grand jury testimony. (Docket Nos. 251, 256). But, the aforementioned precedent makes clear that this Court may not exercise its supervisory authority to enforce the alleged oral agreement, even if the Court assumes that it *622existed and was breached by AUSA Conway. See Williams, 504 U.S. at 50, 112 S.Ct. 1735. Again, this Court is unable to “fashion rules of grand jury procedure” which precludes it from enforcing fundamental constitutional rights of the accused and even the Department of Justice’s internal operating policies in grand jury matters. Id.; see also Gomez, 237 F.3d at n. 1. Hence, the Court undoubtedly lacks the ability to exercise its supervisory authority to enforce a breach of an oral contract between counsel, see id. In any event, it is uncontested that the Roscoe Letter was admitted through the testimony of subsequent witnesses who appeared before the grand jury. (Docket No. 248 at 35-36, 43, 56). Smith also left a copy of same in the grand jury room before he was excused as a witness. (Docket No. 154-11 at 112). Accordingly, there is no prejudice to Smith by the refusal of the Government to admit the letter as an official exhibit during Smith’s examination.
Third, AUSA Conway’s isolated comment about Smith’s nervousness and consultation with his counsel does not implicate any fundamental constitutional right of Smith because the Sixth Amendment right to counsel does not attach until after an indictment is returned. See Williams, 504 U.S. at 49, 112 S.Ct. 1735. While the Court believes that the comment was unnecessary and would be improper if made during a trial, the appropriate remedy at that stage of the proceedings would be for the Court to grant a motion to strike the question and provide a limiting instruction advising the jurors that the question was improper and should not be considered by the jurors. See Fed.R.Evid. 103 (motion to strike). Here, Smith himself challenged AUSA Conway’s statement by reminding him of the instructions he was provided at the outset of the grand jury appearance that he was permitted to stop the questioning and meet privately with his counsel. (Docket No. 154-11 at 3, 35-36). The grand jurors presumably heard both the initial instructions by AUSA Conway to Smith authorizing him to consult with his counsel and Smith’s subsequent reference to same. Jurors are generally presumed to be able to follow instructions. See Zafiro v. United States, 506 U.S. 534, 540-41, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Therefore, Smith was not prejudiced by the offending comment.
Fourth, the purported issue with the Government’s calling Steiner as a witness before the grand jury is likewise beyond this Court’s reach because Smith seeks to have the Court enforce Rules of Professional Conduct before the grand jury. See Baylson, 975 F.2d at 106. Additionally, Smith has not sufficiently established that a conflict of interest even exists in the present circumstances vis-a-vis Attorney Levenson’s continued representation of James Steiner and he has cited no conclusive authority demonstrating that the Rules of Professional Conduct have been violated. (Docket Nos. 251, 256). To this end, the cases are legion that an actual conflict of interest arises between a lawyer and a former client when the lawyer is put in a position to cross examine the former client because the lawyer may be forced to reveal confidential information he learned through the representation of the former client during his cross examination of the former client-witness in order to effectively represent the current client. See e.g., United States v. Moscony, 927 F.2d 742, 749 (3d Cir.1991) (“Usually, the various rights and duties of the attorney clash when a defendant seeks to waive his right to conflict-free representation in circumstances in which the counsel of his choice may have divided loyalties due to concurrent or prior representation of ... a government witness.”). Courts have rou*623tinely disqualified counsel from representing the current client in these situations. Id. Many months before Smith was indicted, AUSA Conway advised Attorney Le-venson that his continued representation of both Smith and Steiner may result in such a conflict because he intended to file a joint indictment against Smith, Kubini and Ratchkauskas. (Docket No. 250 at ¶ 111). After this discussion, Attorney Le-venson promptly withdrew as counsel for Smith, avoiding any such potential conflict years before it could arise. (Docket No. 251 at ¶ 13). Further, Smith has not meaningfully contested the Government’s proffer that Steiner and Smith played separate roles in the mortgage/bank fraud schemes because they both acted as closing attorneys on a number of different transactions and Steiner did not provide evidence directly against Smith during his challenged grand jury testimony. {See Docket Nos. 154-7; 251, 256). Nor has Smith alleged that Levenson revealed any attorney-client privileged information obtained during his consultations with Smith to the Government but merely advocates that the same may be presumed. (Docket Nos. 152, 191, 251, 256). Hence, there is no demonstrated violation of the Rules of Professional Conduct on this record.
Fifth, this Court is similarly unable to adjudicate Smith’s objections to AUSA Conway’s interruptions of his testimony and repeated references to his making “speeches” rather than answering direct questioning as well as his challenges to AUSA Conway’s alleged misrepresentations of fact and law concerning the filing of 1099 forms and whether Land America had initiated proceedings to terminate his contract. See Williams, 504 U.S. at 50, 112 S.Ct. 1735. AUSA Conway avers that the methods he employed during his examination of Smith were permissible because Smith failed to follow the ground rules established for the examination by propounding lengthy explanations for his answers rather than succinct responses and further contends that he was merely questioning Smith about inconsistent information he had provided to the agents during interviews and his grand jury appearance. (Docket No. 250). In trial proceedings, the Court controls the mode and order of the examination of witnesses on direct and cross consistent with the Rules of Evidence and may appropriately strike questions and answers and reprimand counsel for questioning which the Court deems improper. See e.g., Fed.R.Evid. 103 (court may strike testimony); 611 (“The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.”). But, the Court has no role in fashioning rules for the mode and order of an Assistant United States Attorney’s examination of a witness in an investigative grand jury setting, where the Assistant United States Attorney’s role is arguably different. See Williams, 504 U.S. at 50, 112 S.Ct. 1735. To this end, the Supreme Court has recognized that:
Under the pressures and tensions of interrogation, it is not uncommon for the most earnest witnesses to give answers that are not entirely responsive. Sometimes the witness does not understand the question, or may in an excess of caution or apprehension read too much or too little into it.
It is the responsibility of the lawyer to probe; testimonial interrogation, and cross-examination in particular, is a probing, prying, pressing form of inquiry. If a witness evades, it is the lawyer’s responsibility to recognize the evasion and to bring the witness back to the *624mark, to flush out the whole truth with the tools of adversary examination.
Bronston v. United States, 409 U.S. 352, 358-59, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973).
Upon review of the grand jury transcript of Smith’s testimony in its entirety, (Docket No. 154-11), the Court believes that AUSA Conway’s examination of Smith did not rise to the level of prosecutorial misconduct. In fact, the Court finds that AUSA Conway conducted appropriate cross examination of Smith on the issues of the filing of 1099 forms and whether Land America had initiated termination proceedings. (Id. at 41-42; 47-48). The questioning regarding the 1099 forms merely referenced prior inconsistent statements Smith had made to the agents that he always filed 1099 forms in conjunction with the closing of real estate transactions and challenged Smith with the fact that the IRS had no record of him filing 1099 forms with any of the deals. (Docket Nos. 154-11 at 47-48; 251-7). In addition, the Land America probe referenced other evidence that the Government had obtained during its investigation, including an internal email from Watterson which explicitly states that individuals within Land America would decide whether Smith would be kept on as agent or not, plainly evidencing that proceedings had been initiated to determine if his contract would be terminated. (Docket Nos. 154-11 at 41-42; 191-1; 191-7). AUSA Conway likewise was well within his rights to interrupt Smith’s non-responsive and lengthy answers in an effort to bring Smith “back to the mark” and “to flush out the whole truth,” Bronston, 409 U.S. at 358-59, 93 S.Ct. 595, particularly in light of the fact that Smith and his counsel were explicitly advised by AUSA Conway about the methods of the examination in the emails prior to his appearance. (See Docket No. 196-1 (“If Mr. Smith wants to testify, he will have to respond to my questions and questions from the grand jury.”)). The Court is also mindful of the fact that Smith is a seasoned lawyer, represented by able criminal defense counsel.
Despite same, this Court does not countenance AUSA Conway’s repeated references to Smith’s making “speeches” and his condescending remark about whether 1099 forms needed to be filed with the IRS pursuant to the “tax laws according to Mr. Smith.” (See e.g., Docket No. 154-11 at 26-27, 51-52, 62, 65). This Court cannot, however, conclude that such remarks were so inappropriate that they constitute acts of prosecutorial misconduct, individually or collectively. See Martino, 825 F.2d at 759-60. The alleged offensive comments simply are not of the same degree as those that the Third Circuit has held constituted prosecutorial misconduct, such as: calling a suspect a “thief’ and “racketeer”; implying that a witness was associated with organized crime; and/or suggesting that a witness could not appear and testify because he may be harmed by the suspects. See e.g., Bruzgo, 373 F.2d at 386; Riccobene, 451 F.2d at 587; Serubo, 604 F.2d at 818. AUSA Conway also did not imply that Smith committed unrelated offenses, advocate that the grand jury abandon its sworn oath, or suggest that the grand jury must return the indictment immediately, substantially influencing the length and quality of their deliberations. See Breslin, 916 F.Supp. at 446. At most, AUSA Conway’s comments were inappropriate and similar statements made at trial would warrant the striking of the questioning and possibly a reprimand from the Court, rather than a more severe sanction such as an acquittal or mistrial. See United States v. Brennan, 326 F.3d 176, 182 (3d Cir.2003) (quoting United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)) (“a criminal conviction is not to be lightly *625overturned on the basis of a prosecutor’s comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor’s conduct affected the fairness of the trial.”).
Finally, the Court reiterates that Smith has not been prejudiced by the grand jury’s finding of probable cause to indict him for the charges of wire fraud, bank fraud, conspiracy and failure to file his tax returns. See Bank of Nova Scotia, 487 U.S. at 255-56, 108 S.Ct. 2369. The Court is not permitted to review the sufficiency of the evidence presented by the Government to the grand jury but it appears to the Court that Smith admitted many critical facts concerning the charges during his appearance which significantly narrowed the grand jury’s inquiry to determining whether there was probable cause to conclude that he acted with the necessary intent to commit the crimes at issue. (See Docket No. 154-11). On these points, Smith stated that there was “no defense” to his failure to file his tax returns, acknowledged that he had the duty to file his tax returns and his only explanation for failing to file was that he wanted to resolve his tax issues with the Government but was not willing to plead to fraud charges in order to have the tax matters concluded. (Id. at 11-14). As to the fraud and conspiracy counts, Smith admitted that: he closed the real estate transactions in dispute; issued checks to borrowers in specific amounts equal to the funds they needed to make down payments on the houses; the borrowers endorsed the checks and returned them to him at the closings; represented on the HUD-1 forms that borrowers had paid “cash” at the closings, without advising the lenders of the “gifts of equity” made by the sellers; and, never personally disclosed to lenders that down payments were not made during any of the transactions he closed. (Id. at 28, 47-62). Smith testified that he acted without the intent to defraud, relied on the broker’s representation that the lenders were aware that “gifts of equity” were made in all of the deals and that he did not believe it was his role to communicate the “gifts of equity” to the lenders. (Id. at 56-58). At one point during his lengthy testimony, Smith even commented that “[either you buy into the gift of equity, or you don’t buy into the gift of equity,” seemingly acknowledging that his defense that he relied on the broker to communicate the “gifts of equity” to the lender is the central issue in his case. (Id. at 74).
Again, the grand jury was not tasked with assessing Smith’s guilt or innocence but only with evaluating whether “there is [an] adequate basis for bringing [¶]... ] criminal charge[s].” Williams, 504 U.S. at 47, 112 S.Ct. 1735. Having fully considered these matters, this Court cannot find that the grand jury’s decision to indict Smith was substantially influenced by the actions of AUSA Conway during the examination. See Bank of Nova Scotia, 487 U.S. at 255-56, 108 S.Ct. 2369. If he desires to exercise his right to trial, Smith will have the opportunity to present his case to a petit jury, which will be tasked with ultimately deciding whether the Government has proven his guilt beyond a reasonable doubt on all of the charges.
3. Conclusion
For these reasons, the Court denies Smith’s Motion to Dismiss premised on alleged prosecutorial misconduct during the grand jury proceedings and further holds that an evidentiary hearing is not warranted to more fully develop the record on these issues.
b. Alleged Prosecutorial Misconduct During District Court Proceedings
The Court next briefly addresses Smith’s Motion to Dismiss the Superseding *626Indictment to the extent that he alleges that prosecutorial misconduct has occurred during proceedings before this Court based upon alleged Due Process violations. (Docket Nos. 154, 191, 251, 256). Once again, the Government argues that no such misconduct has occurred and that dismissal is not an appropriate remedy at this stage of the case. (Docket Nos. 180, 250, 257). The Court agrees with the Government that Smith has failed to meet his burden to demonstrate that the extreme sanction of dismissal of the Superseding Indictment is warranted based on the alleged conduct of AUSA Conway during these proceedings.
1. Legal Standard
It is well settled that dismissal of an indictment may only be ordered in narrow circumstances and upon a finding of willful prosecutorial misconduct which violates the Due Process clause and causes prejudice to the defendant. Gov’t of Virgin Islands v. Fahie, 419 F.3d 249, 255 (3d Cir.2005); see also United States v. Lashley, 524 Fed.Appx. 843, 846 (3d Cir.2013) cert. denied, — U.S. -, 134 S.Ct. 307, 187 L.Ed.2d 218 (2013). Willful prosecuto-rial misconduct may be demonstrated through “a constitutional violation that results from a reckless disregard for a defendant’s constitutional rights,” or a pattern of constitutional violations showing recklessness on behalf of the prosecution. Id. at 255-56. The Court of Appeals has made clear that “the challenged conduct must be shocking, outrageous, and clearly intolerable ... it is clear that this is an extraordinary defense reserved for only the most egregious circumstances.” United States v. Nolan-Cooper, 155 F.3d 221, 230-31 (3d Cir.1998) (internal citations omitted). “[T]his principle is to be invoked only in the face of the most intolerable government conduct, not each time the government acts deceptively or participates in a crime that it is investigating.” United States v. Lakhani, 480 F.3d 171, 180 (3d Cir.2007) (internal citations omitted).
2. Discussion
Smith claims that dismissal of the Superseding Indictment is warranted based on AUSA Conway’s:, failure to timely produce exculpatory Brady information to him; commission of other violations of the discovery rules through the Government’s “document dump” of materials on the defense including the fact that the voluminous discovery is unorganized, unsorted, and unindexed in numerous boxes at the Secret Service’s Office; alleged misrepresentations to the Court during these proceedings, such as, the factual circumstances surrounding the execution of search and seizure warrants at Smith’s Law Office and file room and the alleged handling of privileged materials which were encountered during the search; and, purported lack of candor to the Court on the state of the law on certain legal issues which have been extensively litigated in these matters. (Docket Nos. 152, 191, 251, 256). In this Court’s opinion, none of these claims are sufficient to demonstrate the type of egregious, willful misconduct which our Court of Appeals has deemed sufficient to warrant the extreme sanction of dismissal of the Superseding Indictment. See Fahie, 419 F.3d at 255-56.
The Court more fully describes the parties’ alleged Brady dispute in connection with its discussion of Smith’s Motion to Compel below. See § V, infra. However, the claimed Brady violations in this case are generally that Smith and his counsel located materials they deem to be exculpatory during their review of the third party discovery maintained by the Government at the Secret Service’s Office and their later evaluation of the Jencks Act and *627impeachment materials which were made available to them on the Government’s stand-alone computer in the U.S. Attorney’s Office. (Docket Nos. 251, 256). From these discoveries, Smith posits that Government counsel misunderstands his Brady obligations and that there must be additional Brady materials which have been withheld by the Government in the voluminous discovery materials. (Id.). The Government argues that the challenged documents do not constitute Brady materials and Smith has failed to establish prejudice because he has the challenged documents and/or access to them. (Docket Nos. 250, 257).
The law is firmly established that “[n]o denial of due process occurs if Brady material is disclosed to [a criminal defendant] in time for its effective use at trial.” United States v. Higgs, 713 F.2d 39, 44 (3d Cir.1983), cert. denied, 464 U.S. 1048, 104 S.Ct. 725, 79 L.Ed.2d 185 (1984). Further, “the government is not obliged under Brady to furnish a defendant with information which he already has or, with any reasonable diligence, he can obtain himself.” United States v. Starusko, 729 F.2d 256, 262 (3d Cir.1984) (internal quotation omitted). The Court of Appeals has also recognized that it is “unwise to infer the existence of Brady material based on speculation alone.” United States v. Ramos, 27 F.3d 65, 71 (3d Cir.1994); see also United States v. Havey, 227 Fed.Appx. 150, 154 (3d Cir.2007) (quoting same). Accordingly, this Court cannot dismiss an indictment on the mere possibility that Smith located exculpatory materials within the discovery produced by the Government and his ■ speculation that he believes the Government has withheld additional exculpatory evidence.
In addition, as the Court commented at the motion hearing in this matter, Smith has had the alleged Brady information for many months (i.e., he has had the SAR and the Land America emails since July of 2013 and access to the witness statements and grand jury testimony as of October of 2013),28 and this Court has not yet even established a deadline for the Government to disclose all Brady material to the defense or set a trial date. (Docket No. 248 at 6). As such, there is no established Brady violation on this record and certainly not an egregious violation which would warrant dismissal of the Superseding Indictment. See Fahie, 419 F.3d at 255.
The Court next holds that Smith’s complaints about the form of the discovery do not warrant dismissal of the Superseding Indictment or demonstrate “egregious misconduct” by the Government. Id. Again, there is no demonstrated prejudice to Smith given the early stage of these proceedings and his failure to offer anything beyond his bald assertions that the form of the discovery has thwarted his ability to present a defense at trial. (See Docket Nos. 251, 257). It is also compelling that none of Smith’s codefendants, Ratchkauskas, Kubini and Svaranovic, have complained that the state of the same discovery materials is even deficient.29 In*628deed, counsel for each of these Defendants asserted at the Motion Hearing that they were satisfied with the Government’s production of discovery. (Docket No. 248 at 8-9). As such, the Court cannot find egregious government misconduct on this record.30
Finally, the issues pertaining to whether AUSA Conway has misrepresented facts and/or the law to the Court in the context of the instant motions practice are woefully insufficient to demonstrate prose-cutorial misconduct or a violation of Smith’s due process rights. (Docket Nos. 251; 256). The Court has carefully considered all of the parties’ arguments, and the evidence which has been presented and arrived at its rulings based on its evaluation of the relevant precedent cited above. Further, the one issue where the Court believes that some clarification from the Government is needed concerns the alleged privileged documents encountered by AUSA Wilson during the searches of Smith’s Law Office and file room and an explanation of the hand written post-it notes which to this point has not been produced. However, as the Court discusses below, the appropriate remedy which results from the inconsistent information provided by the Government is simply to order the Government to produce any such materials rather than to order the extreme sanction of dismissal. Accordingly, there is no basis to dismiss the Superseding Indictment.
3. Conclusion
For these reasons, the Court rejects Smith’s contention that the Superseding Indictment should be dismissed based on alleged prosecutorial misconduct committed during the proceedings before this Court.
c. Conclusion
Based on the foregoing, Smith’s Motion to Dismiss [153] is DENIED.
IV. MOTION TO SEVER COUNTS
The next issue for the Court to resolve is whether the failure to file tax charges should be severed from the fraud charges. Smith claims that the tax and fraud charges are unrelated and should be tried separately because a joint trial would cause him prejudice. (Docket Nos. 133-134). The Government responds with a detailed proffer setting forth its position as to why the tax charges are related to the fraud counts, i.e., that the tax and fraud charges relate to the same time period and that Smith’s failure to file his tax returns, along with evidence of his poor financial condition, provide a motive for his alleged commission of the fraud offenses. (Docket No. 180). At the motion hearing, Smith’s counsel argued that the information provided in the Government’s responsive brief was insufficient because it was not presented in the Superseding Indictment, a Bill of Particulars or a formal proffer. (Docket No. 248 at 10-11). However, Smith’s counsel largely conceded at oral argument that the facts asserted by the Government in its response would likely suffice to meet the Third Circuit’s stan*629dard for a joint trial of the charges.31 (Id. at 11). Having fully considered these matters, the Court will deny Smith’s motion to sever because his arguments elevate form over substance and the Government’s proffer, along with the substantial evidence the Court has considered as to Smith’s Motion to Dismiss and Motion to Compel, clearly demonstrate that joinder of the tax and fraud charges for trial is appropriate in this case and that any prejudice to Smith can be eliminated with an appropriate limiting instruction to the jury to guide their evaluation of such evidence.
a. Legal Standard
Rule 8(a) sets forth that “[t]he indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged— whether felonies or misdemeanors or both — are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” Fed. R.Ceim. P. 8(a). There must be a “transactional nexus” between the counts for them to be properly joined. United States v. Riley, 621 F.3d 312, 334 (3d Cir.2010). There is a preference in the federal system for joint trials of defendants who are indicted together and for charges set forth in the same indictment. Zafiro, 506 U.S. at 537, 113 S.Ct. 933.
Under Rule 14(a), severance of charges may be ordered by the Court if “the joinder of offenses or defendants in an indictment ... appears to prejudice a defendant.” Fed.R.Crim.P. 14. “Severance should only be granted ‘if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.’ ” Riley, 621 F.3d at 335 (citing Zafiro, 506 U.S. at 539, 113 S.Ct. 933). “A defendant must ‘pinpoint clear and substantial prejudice resulting in an unfair trial.’” Riley, 621 F.3d at 335 (citing United States v. McGlory, 968 F.2d 309, 340 (3d Cir.1992)). It is not enough to argue that the jury is unable to compartmentalize a limiting instruction regarding the evidence because juries “are presumed to follow their instruction.” Zafiro, 506 U.S. at 540-541, 113 S.Ct. 933; see also Riley, 621 F.3d at 335 (strict instructions to jury that it “must separately consider the evidence against each defendant on each offense charged, and ... must return a separate verdict for each defendant on each offense” removed serious risk of compromising a specific trial right).
b. Discussion
The United States Court of Appeals for the Third Circuit has recognized that “joinder of tax and non-tax claims is not unusual,” and that “[i]t is appropriate to combine the tax charges against one defendant with fraud charges against that same defendant and other codefendants if the tax [...] charges arise directly out of the common illicit enterprise.” Riley, 621 *630F.3d at 334 (internal quotations omitted). Here, the tax and fraud charges against Smith are appropriately joined because Smith failed to file his tax returns for the tax periods of 2007, 2008, and 2009, and the Government alleges that he engaged in the wire and bank fraud conspiracy and schemes during 2007 and 2008. (Docket Nos. 92; 180; 248 at 14-18). In addition, the Government contends that Smith’s motive for committing both the fraud and tax crimes was his poor financial condition during 2006-2009. (Docket Nos. 180; 248 at 14-18). For support, the Government points to evidence uncovered during the Land America audit of Smith’s closing files and escrow account which it argues shows that Smith allegedly embezzled money (approximately $93,000) from the escrow account and deposited such funds into his operating account, which he used to make his payroll around this time. (Id.). The Government further contends that the money from the operating account was later deposited into Smith’s personal account and used to pay his personal mortgage obligations. (Docket Nos. 180; 248 at 18). As part of its tax case, the Government will seek to prove that Smith willfully failed to file his tax returns so as to avoid further criminal liability by filing false tax returns which may have resulted if he failed to disclose the income generated by his alleged embezzlement of the funds from his escrow account in 2007. (Id.). Such allegations present a “transactional nexus” between the fraud and tax charges and Smith’s failure to file his tax returns in the subsequent tax periods of 2008 and 2009 are sufficiently related to these allegations to support joinder. See Riley, 621 F.3d at 334. Accordingly, the Court agrees with the Government that the charges are properly joined for trial.
With respect to prejudice, Smith has not pointed to any specific trial right which will be compromised by a joint trial of the tax and fraud charges. (Docket Nos. 134; 248 at 14). Instead, Smith simply claims that the jury will be practically unable to evaluate and compartmentalize the evidence for the tax and fraud counts, a showing which his counsel admits runs directly counter to Third Circuit precedent. (Id.). But, juries “are presumed to follow their instructions,” see Riley, 621 F.3d at 335, and after consulting with the parties, the Court will provide the jury with appropriate instructions as to how they should evaluate all of the evidence on the various charges in this case and to arrive at their verdict.
c. Conclusion
For all of these reasons, Smith’s Motion to Sever [133] is DENIED.
V. MOTION TO COMPEL
The Court now addresses the remaining issues as to Smith’s Motion to Compel. (Docket No. 151). As filed, Smith’s Motion to Compel sought an order compelling the Government to produce a significant amount of information under various case-law and statutory authority. (Id.). At the motion hearing, the Court described its typical trial procedures and deadlines it intends to set forth in its Pretrial Order, including setting deadlines for the production of Rule 404(b), Brady materials, Gig-lio materials and impeachment evidence. (Docket No. 248 at 6). Upon consideration of same, Smith’s counsel agreed that the Court’s procedures were acceptable and significantly limited the materials he now seeks. (Docket No. 248 at 54).32 In short, *631the remaining matters for the Court to address are Smith’s Motion: (1) to set a deadline in its Pretrial Order for the Government to produce to him all Brady evidence consistent with his definition that any evidence as to the “gifts of equity” involved in the instant real estate transaction constitutes Brady evidence; (2) to order the Government to produce copies of SARs generated by lenders in connection with any of the properties involved in the instant case; and (3) to compel the Government to produce any privileged documents seized from the search of his Law Office and file room, any privilege log and/or any “Master List.” (Docket Nos. 151; 248; 247). The Government responds that the “gifts of equity” information is not exculpatory but actually highly incriminating to Smith; that SARs are properly withheld from criminal discovery by law enforcement under the applicable regulations; and that any potentially privileged materials uncovered from the searches were simply left at Smith’s Law Office and no privilege log or Master List was ever created. (Docket Nos. 180; 248; 245).
Smith’s first and second requests as described above are related because he has claimed throughout these proceedings that the JP Morgan Chase SAR constitutes Brady material. The Court has already decided that the Government has not committed any Brady violations because Smith cannot demonstrate prejudice at this early stage of the proceedings, i.e., the Court has neither set a deadline for the disclosure of Brady materials nor set the matter for trial. See United States v. Starusko, 729 F.2d 256, 262 (3d Cir.1984) (“There can be no violation of Brady unless the government’s non-disclosure infringes the defendant’s fair trial right.”). In essence, the Government still has the opportunity to cure any errors in its withholding of evidence which is later deemed to be within the scope of Brady to this point by simply producing the materials to the defense in sufficient time for Smith (and his codefendants) to make use of the information at trial. See id. (“No denial of due process occurs if Brady material is disclosed in time for its effective use at trial.”). For the same reasons, Smith’s request for the Court to specifically define Brady material in this case remains premature and could be denied, without prejudice. However, as the issues of the scope of Brady evidence have now been raised twice by the defense (including the earlier subpoena litigation involving JP Morgan Chase), the Court will provide some preliminary guidance to the parties on its view of the scope of Brady material in this case based on the information that has been presented to date.
During these proceedings, Smith has referenced two separate forms of alleged Brady evidence. He first raised the JP Morgan Chase SAR, which he deemed to constitute Brady evidence as to the elements of materiality on the wire and bank fraud charges because the SAR states that JP Morgan Chase became aware of a scheme to defraud involving Riverside Mortgage, denied a loan application for a borrower seeking to purchase 1135 Pennsylvania Avenue and reported such activity. (See Docket No. 218). Smith next argued that the memoranda of interviews of Rochelle Roscoe and James Steiner constitute Brady materials, rather than Jencks Act or Giglio impeachment materials because the agents reported that both Roscoe and Steiner told agents during in*632terviews that the “gifts of equity” were communicated to lenders, which Smith believes is relevant to his defense that he did not act with intent to defraud in this case. (Docket Nos. 251, 256). The Government continues to maintain its position that neither category of evidence is exculpatory to Smith or subject to immediate disclosure under Brady. (Docket Nos. 250, 257).
This Court “has general discretionary authority to order the pretrial disclosure of Brady material ‘to ensure the effective administration of the criminal justice system.’ ” Starusko, 729 F.2d at 261 (quoting Higgs, 713 F.2d at 44, n. 6). “Under Brady, the government has an obligation to disclose all evidence that is favorable to the accused and material either to guilt or punishment.” United States v. Suastegui, 529 Fed.Appx. 129, 131-32 (3d Cir.2013), cert. denied, — U.S. -, 134 S.Ct. 353, 187 L.Ed.2d 245 (2013). “Evidence is ‘material’ if there is a reasonable probability that, ‘had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” United States v. Maury, 695 F.3d 227, 249 (3d Cir.2012) cert. denied, — U.S. -, 133 S.Ct. 1600, 185 L.Ed.2d 581 (2013) (quotation omitted). “Material evidence can include evidence that may be used to impeach a witness.” United States v. Friedman, 658 F.3d 342, 358 (3d Cir.2011) (citation omitted). However, “it is difficult to analyze, prior to trial, whether potential impeachment evidence falls within Brady without knowing what role a certain witness will play in the government’s case.” Starusko, 729 F.2d at 261.
The Court first evaluates the materiality of the impeachment evidence from Roscoe and Steiner, which has been made available to Smith (and his codefendants) on the stand-alone computer in the U.S. Attorney’s Office. (See Docket Nos. 251, 256). At this point of the case, the roles of both Roscoe and Steiner are clear because both have pled guilty to participating in the instant mortgage fraud scheme and will testify as key prosecution witnesses at trial consistent with their admissions that they acted with intent to defraud in conjunction with the real estate transactions. See Starusko, 729 F.2d at 260 (“[A]s a key prosecution witness, his credibility may well be determinative of guilt or innocence.”). As the Court has already alluded to above, Smith’s defense in this case— which he has consistently and repeatedly communicated to Government counsel and law enforcement agents starting at their initial meetings in February of 2011 — is that he did not act with intent to defraud, was unaware of the fraud and was told that the broker (Roscoe and Riverside) advised the lenders of the “gifts of equity.” Intent to defraud is explained to jurors as a “means to act knowingly and with the intention or the purpose to deceive or to cheat.” See Third Circuit Model Criminal Jury Instruction § 6.18.1341-4. The Government will also undoubtedly request that the jury be charged with a willful blindness instruction, through which the Government may prove that Smith acted with the intent to defraud through evidence that he: “actually, subjectively believed that there was a high probability” that the information he supplied to lenders was inaccurate and “consciously took deliberate actions to avoid learning about the existence” of such inaccuracies. See Third Circuit Model Criminal Jury Instruction § 5.03; see also United States v. Tai, 2014 WL 1687814, at *3-4, 750 F.3d 309, 314-16 (3d Cir.2014) (expressly approving Third Circuit Model Jury Instruction § 5.03 on willful blindness).
Having fully considered these matters, the Court agrees with Smith that the prior statements to the agents by Roscoe and Steiner, which are consistent with Smith’s *633position that he was advised that the lenders were made aware of the “gifts of equity,” are material evidence on the central issue of whether he acted with intent to defraud in this case. In this Court’s opinion, this information “is particularly solid impeachment evidence because it goes against the thrust of the prosecution’s case.” Starusko, 729 F.2d at 261. Although the Government proffers that Roscoe and Steiner later retracted those statements, the fact that the prior statements may be used to impeach the witnesses does not alter the character of the evidence under Brady if it is material to the determination of defendant’s guilt or innocence at trial, as is the case here. See Friedman, 658 F.3d at 358. To the extent that Smith’s counsel’s summary of the information in the agents’ memoranda is accurate, which the Court has no reason to doubt, the same is the type of information which should be produced under Brady in accordance with the Court’s deadline for same which will be set in its Pretrial Order.
The next issue is whether the information contained in the JP Morgan Chase SAR is “material” under Brady as to whether Smith agreed to and/or participated in a scheme or artifice to defraud under the wire and bank fraud statutes and related conspiracy charges. Both fraud statutes require a “scheme or artifice to defraud” that is achieved “by means of false or fraudulent pretenses, representations, or promises.” 18 U.S.C. §§ 1343, 1344. The Government must prove beyond a reasonable doubt that the false statement communicated during the scheme was material. See also Neder v. United States, 527 U.S. 1, 25, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (“Materiality of falsehood is an element of the federal mail fraud, wire fraud, and bank fraud statutes.”). “To be material, the statement must have a natural tendency to influence, or [be] capable of influencing, the decision making body to which it is addressed.” United States v. McBane, 433 F.3d 344, 350 (3d Cir.2005) (internal citations omitted). “It is also clear that a statement may be material even if no agency actually relied on the statement in making a decision.” Id. “In other words, [¶]... ] the relevant inquiry [is] whether the falsehood was of a type that one would normally predict would influence the given decisionmaking body.” Id. at 351.
Although the issues with the JP Morgan Chase SAR were previously argued in the subpoena litigation, they were not decided by the Court at that time. (Docket No. 213). Now that the Court has had an opportunity to further study the matter, the Court does not believe that the SAR which was discovered by Smith and his counsel is “material” to Smith’s guilt or innocence under Brady. The Government’s recitation of the law is entirely correct that its burden at trial is to prove beyond a reasonable doubt that Smith joined a conspiracy to commit bank and/or wire fraud and/or participated in the schemes to defraud. The relevant and critical factors at trial will be the Government’s proof of Smith’s intent to defraud the lenders, and whether the fraud schemes contained material falsehoods which were “reasonably calculated to deceive persons [i.e., lenders] of ordinary prudence and comprehension.” Third Circuit Model Criminal Jury Instruction § 6.18.1341-1.
Smith stretches the facts contained in the JP Morgan Chase SAR beyond their ordinary reach in his advocacy that JP Morgan Chase could not have been defrauded in the transactions he closed after the SAR was prepared because it was fully aware of the scheme to defraud. (Docket Nos. 251, 256). As the Govern*634ment argues, the SAR simply does not state that much. (Docket Nos. 250, 257). Instead, it only suggests that JP Morgan Chase denied a loan application because the appraisal prepared by Joel Reck overstated the value of the property at 1135 Pennsylvania Avenue, inconsistent information was provided about the sellers in the sales agreement and other documents in the loan file and the SAR investigator was concerned that there may be a “house flipping” scheme involving Riverside Mortgage. (Docket No. 191-9). The SAR does not mention who the closing attorney was on the cancelled deal and there is no mention of Smith on the SAR. (Id.). Given same, such evidence is not material to the determination of whether Smith acted with the intent to defraud a few months later when he closed a “gift of equity” deal for the same property involving Kubini and Ratchkauskas as sellers, a different buyer (William Brown), supported with an appraisal produced by Svranovic, and brokered by Riverside. (Docket No. 154-7). The Court reserves any further ruling as to whether the JP Morgan SAR is admissible at trial as direct evidence or can be used for impeachment purposes.
The Court now moves on to the parties’ disputes surrounding the discover-ability of SARs generally. (Docket Nos. 245; 247). The Government maintains that the SARs are properly withheld from discovery as such documents are not otherwise discoverable under Rule 16, Brady, Giglio or the Jencks Act and that SARs are also protected from disclosure under the pertinent statutes, 31 U.S.C. § 5318 and regulations, 12 C.F.R. § 563.180. (Docket No. 245). The Government continues that in the event that the SARs contain Brady information, the more persuasive caselaw demonstrates that the Brady information should be reduced to writing by the Government and forwarded to the defendant rather than producing the SARs themselves. (Id.). Although the Government has taken this position, it has not sought to “claw-back” the JP Morgan Chase SAR and/or the National City SAR that Smith has already obtained through discovery, but points to both as further evidence that it has met its discovery obligations in this case. (Docket No. 260). Smith opposes the Government’s blanket position that SARs can be withheld from criminal discovery. (Docket No. 247).
In an effort to resolve these disputes, the Court ordered the Government to produce the SARs in camera. (Docket No. 258). The Court has conducted its review of same and agrees with the Government’s position that the SARs were properly withheld in this case. Further, the Court’s review demonstrates that the Government has already produced to Smith the only contemporaneous SAR in its possession involving any relevant transactions for the properties at issue in this case during the timeframe of the conspiracies and fraud schemes as well as the only SAR related to his escrow account. In light of the fact that the remaining SARs are not relevant, and contain no Brady information as to Smith which has not yet been produced, any discussion of the applicability of the pertinent statutes and regulations would be purely academic. Accordingly, Smith’s Motion to Compel will be denied to the extent that he seeks production of the additional SARs, as moot.
The final issue for disposition by the Court is the outstanding matters related to the searches of Smith’s Law Office and file room. (Docket Nos. 250; 251; 256; 257). The Court has already determined that the facts related to the searches and seizures are not sufficient to demonstrate prosecu-torial misconduct warranting dismissal of the Superseding Indictment but the factual issues remain unresolved because AUSA Wilson did not testify at the motion hear*635ing, although he was present and ready to do so, if called as a witness. See § IV, supra.
In support of his position seeking the documents, Smith points to handwritten post-it notes which he asserts were produced by AUSA Wilson, who headed the privilege review, and suggest that documents were pulled during the searches, with corresponding references to a “Master List.” (Docket Nos. 251, 256). Smith also argues that he cannot locate email correspondence and/or facsimile communications between him and Rochelle Roscoe which precipitated the transmission of the Roscoe Letter to Watterson and believes that these documents may have been seized by the Government. (I'd). The Government responds that no privileged materials were seized, no privilege log was produced and there is no “Master List.” (Docket Nos. 250, 257).
There is no legal dispute between the parties that the documents, if seized by the Government from Smith’s Law Office or file room, should be made available for inspection by Smith under Rule 16. (Docket Nos. 250; 251; 256; 257). The only remaining issues are purely factual and remain outstanding solely because the parties did not present AUSA Wilson’s testimony at the hearing to clarify what occurred during the searches. (Id.). It also appears that resolution of such facts by the Court would have no bearing on any matters presently in dispute between the parties but further clarification from the Government may be helpful to Smith and his counsel in their trial preparation. Because of same, the Court will order the Government to produce to Smith any privileged materials seized during the searches, any privilege log detailing same and, any “Master List.” To the extent that the Government continues to take the position that no such documents, privilege logs or “Master List” exists, the Government shall produce to Smith an affidavit by AUSA Wilson describing what occurred during his privilege review and also explaining the information handwritten on the post-it notes. As AUSA Wilson was prepared to testify at the December, 2013 Hearing, the Court believes that he should be just as willing to provide such an affidavit in order to finally resolve these disputes between the parties and that this procedure is in the interests of judicial economy. Therefore, the Court will reserve its ruling on this final aspect of the Motion to Compel until the affidavit is produced and any objections to same are decided by the Court.
VI. CONCLUSION
Based on the foregoing, Smith’s Motion to Dismiss [153] and Motion to Sever [133] are
DENIED. Smith’s Motion to Compel [151] is GRANTED, IN PART, and DENIED, IN PART, and the Court reserves ruling on the issue outlined above. An appropriate Order follows.
. The Court notes that Smith submitted the entire transcript of his grand jury testimony and filed it on the public docket, and that the parties have made several proffers with respect to other evidence (witness testimony and documents) which were presented to the grand jury. The Court recognizes that such matters are generally secret and placed under seal if submitted to the Court. See Fed. R.Crim.P. 6(e). However, in this instance, the parties have freely argued these matters in their various briefings, Smith himself attached his grand jury testimony in support of his Motion to Dismiss, and the parties argued the same points in open court at the Motion Hearing. While the Court identifies certain evidence which has been withheld by the Government under the grand jury rules, there has been no objection to the Court’s consideration of the remainder of these matters which are discussed herein.
. The mortgage brokers involved in the 109 transactions include Robert Arakelian and Riverside Mortgage, previously operated by Rochelle and Rhonda Roscoe; all of said indi*586viduals have pled guilty to fraud charges arising from their participation in these schemes. (Docket No. 154-7).
. The agents simultaneously obtained search warrants for the residences of Kubini and Ratchkauskas based upon the same affidavit. See Crim. Nos. 1 l-mj-23; 1 l-mj-24.
. The inventory return forms filed with the Court indicate that agents Mark Kernan, Brian Morris, William Steen, Deborah Osborne and Matt Davey were also involved in the searches. Their precise titles and agencies are not provided although it is believed that they are either Secret Service or IRS agents as those agencies headed the investigation.
. The Court notes that these disputes remain unresolved because AUSA Wilson has not presented an affidavit setting forth his version of the facts or testified as to what occurred during the search and privilege review. However, AUSA Wilson was present at the Court’s hearing on December 2, 2013 and prepared to offer testimony on these points. (Docket No. 248 at 32-33). The Court did not proceed to an evidentiary hearing after lengthy oral argument was presented and the parties raised numerous objections to their counterpart’s presentation, including the affidavit by Attorney Stallings, which the Government asserted would require his testimony, cross-examination by the Government, and possibly result in the Government bringing a motion to disqualify Stallings from continuing to represent Smith. (Id. at 88-92). With the agreement of the parties, the Court determined that it would first issue a ruling on whether additional evidence was necessary to resolve the pending motions or if such motions could be decided based on the undisputed facts in the present record. (Id.). Further, as the Court fully explains in its discussion below, even if these disputed facts are resolved in Smith's favor, they would not support dismissal of the Superseding Indictment because Smith has not been prejudiced by the Government’s execution of the search in the manner he describes. But, the Court will order the Government to procure an affidavit from AUSA Wilson on these issues in its ruling on Smith's motion to compel.
. IRS Special Agent Amanda Galson also participated in the February 22, 2011 meeting. (Docket No. 251-7). •
. The referenced memoranda and notes were produced by the Government on a standalone computer in the U.S. Attorney’s Office along with other Jencks Act and Giglio impeachment materials and have not been reviewed by the Court as of this time. (See Docket No. 213). The Court denied a prior motion filed by Smith seeking hard copies of these documents, without prejudice, given the Court’s finding that the parties had not met and conferred on the issues and that Smith’s general assertion that all of the documents constituted Brady materials was too broad for meaningful judicial review. (Id.).
. Smith suggests that AUSA Conway has taken inconsistent positions with respect to whether he advised Levenson to withdraw from "both representations” or to remove himself from representing only one of them. The Court does not believe any such discrepancy exists as it understood AUSA Conway to have explained that he had told Attorney Le-venson that he should remove himself from the dual role of representing both, not that Attorney Levenson could no longer continue to represent Steiner or Smith.
. Steiner’s sentencing is presently scheduled for May 23, 2014 at 1:00 p.m. (Docket No. 32). In addition to Attorney Levenson, Steiner is also represented by Alexander H. Lindsay, Jr., Esquire.
. The Court understands that the name associated with this section of the Criminal Division of the United States Attorney’s Office is now the Civil Rights, Exploitation & Fraud and Corruption Section. See http://www. justice.gov/usao/paw/divisions.html# crim (last visited 5/1/14). This section previously had a different name, which was changed when U.S. Attorney David J. Hickton restructured the U.S. Attorney’s Office after he was appointed to serve in his current position by President Barack Obama.
. Mr. Barrett’s curricula vitae discloses that he earned a Bachelor of Science in criminal justice/law enforcement from Point Park University and a Master of Arts in social science from California University of Pennsylvania. (Def. Ex. 11, Docket No. 251-12). Mr. Barrett has obtained the following certifications: certified-polygraph examiner from the Maryland Institute of Criminal Justice; certified-post convicted polygraph sexual offender testing / monitoring from the Academy for Scientific Investigative Training; certified-advanced post convicted sex offender testing, American International Institute of Polygraph; advanced certification — certified sex offender treatment and monitoring, American Polygraph Association; and advanced certification — forensic law enforcement examiner from the American Association of Police Poly-graphists. (Id.). He is presently a chief polygraph examiner at Assured Polygraph Services, Inc., a police officer/detective/sergeant with the Ross Township Police Department, a municipal police instructor at the Allegheny County Police Academy and an adjunct professor at Point Park, California University of Pennsylvania and the Community College of Allegheny County. (Id.). Mr. Barrett touts that he has "over twenty-five years of law enforcement experience; [has conducted] [approximately 3,500 polygraph tests; issues ranging from criminal homicide to personal fidelity; [and has] [i]n excess of 3900 hours of specialized training. (Id.). Noticeably absent from Mr. Barrett’s curricula vitae is any list of cases wherein he has testified as a polygraph expert. (Id.).
. Stallings also provided a copy of his February 15, 2013 letter to AUSA Conway’s direct supervisor, AUSA Robert Cessar, Fraud and Corruption Section Chief. (Docket No. 251-13).
. Apparently, Stallings’ reference to one business day separating the notification and *595the date of the proposed grand jury appearance accounted for the fact that AUSA Conway’s email was sent in the evening on Thursday, Februaiy 13, 2013, and the proposed appearance on Tuesday, February 19, 2013 was separated by a holiday weekend for the President's Day observance on Monday, February 18, 2013.
. Stallings repeatedly injects “[the lender]” into his quotations of the contents of this letter throughout his briefs submitted in this case to apparently provide his (and Smith’s) belief that "the investor” referenced in Roscoe’s letter actually means “the lender”. However, there is no evidence before this Court which demonstrates that Roscoe actually intended "the investor" to mean the "the lender,” as he suggests. Again, the Court has not been provided nor reviewed Roscoe’s grand jury testimony.
. From the outset of the examination, Smith would not answer yes or no questions posed by the AUSA; instead, he would seek to interject his explanation of his tax “problems” or “situation.” (Docket No. 154-11 at 6-9). AUSA Conway was able to focus Smith by asking him to first answer the questions he posed and explaining to Smith that he would be provided an opportunity to "explain away.” (Id. at 9).
. Amid this questioning, Smith was granted the opportunity to leave the grand jury room and consult with his counsel, upon "his request. (Docket No. 154-11 at 16).
. As is noted below, the materials that Smith left for the grand jurors included: Stallings’ February 15, 2013 Letter, the polygraph report, Mr. Barrett's c.v., and the Roscoe Letter. See pp. 610-11, infra.
. The grand jury testimony of Rochelle Roscoe, James Steiner and Alfred Watterson have not been presented to the Court but Smith (and his codefendants) has had access to these and other materials the Government has identified as Jencks/Gigh'o materials by viewing them on a stand-alone computer in the U.S. Attorney’s Office since October of 2013. (See Docket No. 213).
. AUSA Brendan Conway had substitute counsel for him appear at both arraignments given that he was before this Court trying United States v. Catherine Slane, Criminal No. 11-81.
. Stallings executed the Rule 16.1 material receipt, after noting “NOT # 4” on the ac-knowledgement above his signature. (Docket No. 126 at 4). Number 4 on the receipt states that "at a time convenient to all parties, the attorney for the defendant will be permitted to inspect and copy all tangible objects, books, papers, documents ... in possession, custody or control of the government and (a) are material to preparation of defendant’s defense, (b) are intended for use by the government as evidence in chief at trial, or (c) were obtained from or belong to the defendant.” (Id.). Underneath this provision, the Government indicates that it had previously provided search warrants, affidavits in support of search warrants and search warrant returns to Smith. (Id.). It also referenced that voluminous discovery was available for inspection such as bank records, records from lenders and records from various search warrants and other seizures. (Id.). As there is no further objection noted on this form, Stallings apparently agreed that he had previously been provided with all of the following: any written or recorded statements of Smith; his grand jury testimony; a CD containing expert appraisal reviews conducted in connection with the case; and an attached report where Smith had denied that he acted with intent to defraud. (Id.).
. These items were discovered by Smith pri- or to July 15, 2013, when they were filed with the Court and the defense has had access to them continuously throughout this time period.
. The Court notes that the corresponding spreadsheet detailing the transactions that the Government intends to demonstrate are fraudulent at trial indicates the following with respect to the "Osborne” and "Carter” files. (Docket No. 154-7). The "Osborne file” relates to the December 3, 2007 transaction wherein Theresa Osborne purchased property at 4561/209 Parnell Street from Ratchkauskas for a sales price of $110,000. (Id.). The purchase was funded by a loan obtained by Ms. Osborne from J.P. Morgan Chase in an amount of $99,000 and line 303 indicates that the "cash from borrower” was $22,606.97. (Id.). The "Carter file” is a reference to the February 13, 2008 sale of 6527 Jackson Street by Realty Choice Investments to Carter Da-mara for a sales price of $125,000. (Id.). This deal was funded by a loan obtained by Carter from JP Morgan Chase in an amount of $100,000 and it was represented to the lender that the "cash from borrower” was $30,780.77 at the closing. (Id.). Riverside Mortgage was the broker listed on both deals and Smith closed the transactions. (Id.).
. The Court notes that, despite Smith’s claims that none of the documents are "bates stamped,” the internal Land America emails are marked with bates stamp numbers on the bottom right hand corners. (Docket Nos. 191-1; 191-7).
. The Supreme Court further identified "isolated exceptions” wherein harmless-error analysis is unnecessary because the grand jury's structural protections have been so compromised that that the proceedings are "fundamentally unfair, allowing the presumption of prejudice.” Bank of Nova Scotia, 487 U.S. at 257, 108 S.Ct. 2369. The Court identified racial and gender discrimination in grand jury composition as warranting this exception. Id. (citing Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury); Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946) (women excluded from grand jury pool)). These exceptions are not at issue here.
. The latest statistics provided by the Department of Justice indicate that during the period of October 1, 2009 through September 30, 2010, U.S. Attorneys declined to prosecute 30,670 suspects of federal crimes but reported that only 11 suspects were not prosecuted as a result of the grand jury failing to return a true bill against him or her. See U.S. Department of Justice, Federal Justice Statistics 2010 — Statistical Tables, at Table 2.3 (Dec. 2013), available at: http://www.bjs.gov/ content/pub/pdi/fjs 10st.pdf (last visited 5/6/14). It has long been said that an effective prosecutor could convince a grand jury to "indict a ham sandwich." Budd, 496 F.3d at n. 9.
. In fact, Smith concedes that at least Rochelle Roscoe, James Steiner and Alfred Wat-terson testified during those proceedings.
. The Court notes that the U.S. Attorney’s Manual expressly states that polygraph results should not be admitted in grand jury proceedings.
. Smith also has the National City SAR and relevant attachments concerning the activity in his escrow account which he has submitted to the Court for its in camera review. (Docket No. 259).
. The Court notes that none of the Defendants in the related cases claimed that the state of discovery constituted prosecutorial misconduct. In any event, this Court is aware that issues regarding the state of discovery in complex matters has engendered disputes among the U.S. Attorney’s Office, the Public Defender's Office and the private defense bar and recognizes that the costs attendant to the production and review of discovery in such matters can be exceptional. As a consequence, Chief Judge Conti has commissioned a court subcommittee chaired by the *628undersigned Judge to explore a potential resolution of these issues in the most fair and cost effective manner and Magistrate Judge Cynthia Reed Eddy has been tasked with heading those efforts. The Court is aware that Magistrate Judge Eddy has convened several conferences with representatives from the U.S. Attorney’s Office and the Public Defender’s Office in order to achieve these mutual goals.
. The Court further notes again that Smith is an attorney. He should be able to work with his counsel to review the necessary documents.
. Specifically, Defense counsel stated that:
We concede, Your Honor, that if the government were to formally proffer evidence or attach a bill of particulars to this superseding indictment that make the allegations of evidence that they refer to in their argument in the brief, that the case law of this circuit would say that under the Rule 8 standard, joinder might be appropriate of those tax charges to those fraud charges, but they have not yet done that, Your Hon- or.
And, Judge, again, we concede that if they are able to proffer that kind of a nexus in an evidentiary way, a bill of particulars or some kind of formal way, that they can join under at least Rule 8, but they have not yet done that.
(Docket No. 248 at 11, 13).
. Defense counsel stated the following:
So, to come full circle, Your Honor, at the beginning of this hearing, I believe you said your traditional practice is to issue a pretrial order that requires production of Brady by a date certain. Frankly, that would *631satisfy us in response to the motion to compel, at least the Brady portion, so long as we understood that Mr. Conway and the government were really understanding what Brady is.
(Docket No. 248 at 54). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217201/ | PER CURIAM.
Sheila H. Kershaw appeals the district court’s order dismissing her complaint with prejudice for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) based on the doctrine of res judicata. We have reviewed the record and find no reversible error. Accordingly, we affirm on the reasoning of the district court. See Kershaw v. Commissioner, No. CA-02-131-1-T (W.D.N.C. Aug. 28, 2002). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217202/ | PER CURIAM.
Wilfredo Gonzalez Lora appeals the district court’s orders denying relief on his Bivens* complaint pursuant to 28 U.S.C. § 1915A(b)(l) (2000), and denying his motion filed under Fed.R.Civ.P. 59(e). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Lora v. Hollenhorst, No. CA-02-757-2 (E.D. Va. Sept. 30, 2002; Dec. 11, 2002). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217204/ | PER CURIAM.
Joseph and Mary Hart appeal from the district court’s order dismissing their complaint sua sponte for lack of subject matter jurisdiction. We have reviewed the record and find no reversible error. Accordingly, we affirm. We also deny Appellants’ motion for the appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately *895presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217205/ | PER CURIAM.
Lindsay Jenkins appeals the district court’s order denying her motion to quash a John Doe summons issued by the Internal Revenue Service, and denying her motion for sanctions. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Does, No. CA-02-42-MC (E.D.Va. filed Dec. 20, 2002; entered Dec. 31, 2002). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217206/ | PER CURIAM.
Anthony Lee Thames petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his 28 U.S.C. § 2255 (2000) motion. He seeks an order from this court directing the district court to act. As the district court recently took significant action in the case by issuing an order to show cause on March 17, 2003, and Thames filed his response to the motion on April 9, 2003, we deny Thames’ petition as moot. We deny leave to proceed in forma pauperis. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217207/ | PER CURIAM.
Earl Sylvester Turner seeks to appeal the district court’s order denying relief on his motion filed under 28 U.S.C. § 2255 (2000). An appeal may not be taken to this court from the final order in a § 2255 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability mil not issue for claims addressed by a district court on the merits absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). We have independently reviewed the record and conclude that Turner has not made a substantial showing of the denial of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). Accordingly, we deny a certificate of appealability and dismiss the appeal. See 28 U.S.C. § 2253(c) (2000). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224339/ | MEMORANDUM OPINION AND ORDER
JOSEPH R. GOODWIN, District Judge.
In West Virginia, lender liability suits have taken a strange turn that threatens to uproot basic principles of contract law. The plaintiffs in these suits, homeowners tied to mortgages, have concocted a novel theory of injury. That theory is as follows: refinancing a home for more than its fair market value is one-sided and overly harsh against the borrower, justifying rescission of a home loan. I have concluded that this theory is absurd. But it has been repeatedly accepted by other judges. Therefore, with some trepidation, I will explain my view, beginning with the bald statement that neither West Virginia law nor cases outside of this state support the notion that lending too much money is unfair.
Before the court is Defendants Wells Fargo Bank, N.A.’s and U.S. Bank National Association’s Motion for Summary Judgment [Docket 46]. For the reasons stated below, the motion is GRANTED in part and DENIED in part. Counts I, III, and IV are DISMISSED.
I. Background
In June 2006, the plaintiff refinanced his home and entered into two new loan agreements secured by his home. In the first agreement, the plaintiff signed an adjustable rate note with a principal amount of $181,800 in favor of Wells Fargo Bank, N.A. (‘Wells Fargo”). In the second agreement, the plaintiff signed a note for a home equity line of credit with a principal amount of $20,000 in favor of Greentree Mortgage Corporation (“Greentree”). I will refer to these loans collectively as “the loan.”
By late 2007, the plaintiff was struggling to keep up with payments on the notes and reached out to Wells Fargo for assistance. The plaintiff alleges that Wells Fargo offered to modify his loan in March 2008, June 2009, and October 2009. Each time, however, Wells Fargo allegedly refused to honor the modification agreements after the plaintiff accepted the offers and signed the contracts.
On May 8, 2010, the plaintiff finally obtained a loan modification, but he was unable to meet his obligations under the modified loan. By 2012, Wells Fargo initiated foreclosure proceedings and the plaintiff brought the instant lawsuit. The Complaint alleges four counts: Count I against Greentree, Wells Fargo, and U.S. Bank National Association (“U.S. Bank”) for unconscionable contract; Count II against Greentree for breach of fiduciary duty; Count III against Greentree, Wells Fargo, and U.S. Bank for joint venture and agency; Count IV against Wells Fargo and U.S. Bank for illegal fees; and Count V *668against Wells Fargo and U.S. Bank for misrepresentation and unconscionable conduct in debt collection. (See Compl. [Docket 1-2] ¶¶ 39-57).
II. Legal Standard
To obtain summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In considering a motion for summary judgment, the court will not “weigh the evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Instead, the court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Although the court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the non-moving party nonetheless must offer some “concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.” Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Likewise, conclusory allegations or unsupported speculation, without more, are insufficient to preclude the granting of a summary judgment motion. See Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987); Ross v. Comm’ns Satellite Corp., 759 F.2d 355, 365 (4th Cir.1985), abrogated on other grounds by Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).
III. Analysis
A. Count I — Unconscionable Contract
The plaintiff alleges that the loan is procedurally and substantively unconscionable and seeks, among other remedies, a release of the deed of trust securing the loan. (See Compl. [Docket 1-2], at 9). In support of substantive unconscionability, on which I focus here, the plaintiff brings two arguments: “(1) that the loan far exceeded the value of the property and (2) that the loan did not provide a net tangible benefit to Mr. McFarland, and instead placed him in a worse situation.” (Pl.’s Resp. in Opp. to Def. Wells Fargo and Def. U.S. Bank’s Mot. for Summ. J. (“Pl.’s Resp.”) [Docket 54], at 15; see also Compl. [Docket 1-2] ¶ 42). I will address each of these arguments. Because I find that the plaintiff failed to present evidence in support of substantive unconscionability, I do not address the parties’ arguments on procedural unconscionability.
In West Virginia, “[t]he doctrine of unconscionability means that, because of an overall and gross imbalance, one-sidedness or lop-sidedness in a contract, a court may be justified in refusing to enforce the contract as written.” Syl. Pt. 4, Brown v. Genesis Healthcare Corp., 229 W.Va. 382, 729 S.E.2d 217, 220 (2012). Although un-conscionability was traditionally an equitable defense to enforcement of a contract (see 8 Williston on Contracts § 18:1 (4th ed.2013)), it may be asserted as a cause of action in West Virginia. See W. Va.Code §§ 46A-2-121, 46A-5-101.
*669Unconseionability may arise in two distinct ways: procedurally or substantively. “Procedural unconseionability is concerned with inequities, improprieties, or unfairness in the bargaining process and formation of the contract. Procedural unconseionability involves a variety of inadequacies that results in the lack of a real and voluntary meeting of the minds of the parties, considering all the circumstances surrounding the transaction.” Syl. Pt. 10, Genesis Healthcare Corp., 729 S.E.2d at 221. Courts often analyze “whether the imposed-upon party had meaningful choice about whether and how to enter into the transaction[.]” 8 Williston on Contracts, supra § 18:10.
In contrast, “[s]ubstantive uncon-scionability involves unfairness in the contract itself and whether a contract term is one-sided and will have an overly harsh effect on the disadvantaged party.” Syl. Pt. 12, Genesis Healthcare Corp., 729 S.E.2d at 221. In determining whether contract terms are substantively unconscionable, courts consider “the commercial reasonableness of the contract terms, the purpose and effect of the terms, the allocation of the risks between the parties, and public policy concerns.” Syl. Pt. 8, State ex rel. Johnson Controls, Inc. v. Tucker, 229 W.Va. 486, 729 S.E.2d 808, 812 (2012).
A claimant must prove both procedural and substantive unconscionability to render a contract term unenforceable. See Syl. Pt. 9, Genesis Healthcare Corp., 729 S.E.2d at 221; Syl. Pt. 6, Tucker, 729 S.E.2d at 812. “However, both need not be present to the same degree. Courts should apply a ‘sliding scale’ in making this determination: the more substantively oppressive the contract term, the less evidence of procedural unconseion-ability is required to come to the conclusion that the clause is unenforceable, and vice versa.” Syl. Pt. 9, Genesis Healthcare Corp., 729 S.E.2d at 221.
“Unconseionability is an equitable principle, and the determination of whether a contract or a provision therein is unconscionable should be made by the court.” Syl. Pt. 7, id. (quoting Syl. Pt. 1, Troy Mining Corp. v. Itmann Coal Co., 176 W.Va. 599, 346 S.E.2d 749, 750 (1986)). “Whether a contract is unconscionable will necessarily turn upon the facts of each particular case. See Genesis Healthcare Corp., 729 S.E.2d at 229 (“[CJourts should assess whether a contract provision is substantively unconscionable on a case-by-case basis.”); Quicken Loans, Inc. v. Brown, 230 W.Va. 306, 737 S.E.2d 640, 659 (2012) (affirming finding of unconscionability “given the particular facts involved in this case”).
If a court finds a contract or its terms to be unconscionable, the court “may refuse to enforce the contract, enforce the remainder of the contract without the unconscionable clause, or limit the application of any unconscionable clause to avoid any unconscionable result.” Syl. Pt. 8, Genesis Healthcare Corp., 729 S.E.2d at 221.
The plaintiffs first argument is that the loan is substantively unconscionable because it exceeds the value of his home. The plaintiff cites a retrospective appraisal finding his home to be worth only $120,000, far less than the defendants’ appraisal value of $202,000. (See Appraisal [Docket 54-18]). The plaintiff argues that the high value of his loan renders it difficult or impossible to refinance or sell his home. (See Pl.’s Resp. [Docket 54], at 14). In response, the defendants argue that a loan worth more than the value of a home is not one-sided because such a loan is as much of a disadvantage to the lender as it is to the borrower.
*670I FIND that a refinanced loan exceeding the value of a home is not evidence of substantive unconscionability. It is not “overly harsh” or “one-sided” against the plaintiff that he received more financing than he was allegedly entitled to receive. See Corder v. Countrywide Home Loans, Inc., No. 2:10-cv-0738, 2011 WL 289343, at *9 (S.D.W.Va. Jan. 26, 2011) (Copenhaver, J.). The notion that the plaintiff was harmed by this fact is ridiculous. Consumers using credit cards to incur more charges than they can repay are not disadvantaged by their high credit limits. Students financing their education are not disadvantaged by their ability to obtain such financing. The plaintiff obviously owes a larger debt than he otherwise would if he accepted a smaller loan. But that is exactly how loans work, and there is nothing unfair about it.
If any party is disadvantaged here, it is the lender. When a lender makes a loan with inadequate security, the lender cannot recover the loan principal by foreclosing on the home. While the plaintiff received extra financing, the lender incurred an extra risk of loss at default. Therefore, receiving extra financing is not one-sided against the borrower.
The plaintiff argues that his loan is unconscionable because he allegedly cannot obtain refinancing or sell his home. {See PL’s Resp. [Docket 54], at 14). Although the plaintiff does not explain, I assume he means that he is without sufficient security with which to refinance or sell his home. But the plaintiff has not presented any evidence that he was prevented from refinancing or selling his home because it is underwater. And even if he presented such evidence, insufficient security cannot make a loan unconscionable. There is nothing unfair about a homeowner not being able to refinance or sell because he converted his equity into debt. Borrowers do not have a right to refinance or sell their homes. In fact, natural market forces may — and frequently do — push a home’s market value below the value of a loan, making it difficult to refinance or sell.
Following the plaintiffs logic, all unsecured loans are substantively unconscionable because the borrower is without security with which to refinance his obligation. That cannot be. Neither unsecured loans nor partially secured loans are unconscionable to either the borrower or the lender.
Not only was the plaintiff not harmed by receiving extra financing, but the plaintiff admits that he received several benefits from it. The plaintiff paid off an approximately $25,000 student loan and a $15,775 car loan. (See McFarland Dep. [Docket 54-1], at 30-31, 139; Pl.’s Resp. [Docket 54], at 5, 6).
For the sake of clarity, I should make a distinction. Merely receiving a loan for any amount of money, without more, cannot be unconscionable. It is not unfair to receive money that must be paid back. But, after receiving a loan, it may be substantively unconscionable to overpay for a product. Paying an unreasonable price for a product is a classic unconscionability argument. Although it may be unconscionable to overpay for a product, it is not substantively unconscionable merely to receive the financing that enabled one to overpay. Simply receiving a loan for any value — without indications that the loan was otherwise unfair in the amount of interest charged, the timing of payments, or the like — cannot be substantively unconscionable.
The West Virginia Supreme Court of Appeals has not found that a loan exceeding the value of a home can support a finding of substantive unconscionability. Instead, in Quicken Loans, Inc. v. Brown, *671230 W.Va. 306, 737 S.E.2d 640 (2012), the court found that the total cost of a loan supported a finding of unconscionability combined with other factors. In that case, the plaintiff originally purchased her home in East Wheeling, West Virginia, in 1988 for $35,000. Brown, 737 S.E.2d at 647. In 2006, after refinancing her home several times and taking out a series of smaller loans, the plaintiff consolidated all of her debts under a loan for $144,800. See id. at 647-50. The circuit court rescinded the loan, finding that it contained several unconscionable terms, “including loan discount points of $5,792, without a fully corresponding reduction in the interest rate or any benefit to Plaintiff; a $107,015.71 balloon payment that was not properly disclosed ...; and a loan which was based on an inflated appraisal of $181,700 when the proper fair market value of the Property was $46,000.” Brown, 737 S.E.2d at 658 (quotation marks omitted). The circuit court also found that the lender “converted Plaintiffs previously-unsecured debt of approximately $25,000 into secured debt ... thus, putting Plaintiffs home at risk.” Id.
Without explicitly adopting the reasoning of the circuit court, the Supreme Court of Appeals affirmed. See id. at 659. The court then explained:
This is not a close ease. Plaintiff was a single mother to three children who earned $14.36 an hour and who had a well-documented poor credit history. She was not a sophisticated borrower. Quicken’s own records describe her as “timid,” “fragile” and needing to be handled with “kid gloves.” When Plaintiff declined the original $112,000 loan because the payments were too high, Quicken continued to pursue her. It tried to contact her numerous times especially after Mr. Guida’s appraisal came in at almost four times the actual fair market value of the property. Furthermore, as previously established, the loan contained a $107,015.71 balloon payment (of which Plaintiff was not aware prior to closing). The total cost of the loan was exorbitant, costing Plaintiff an additional $319, 000 in monthly payments as compared to her prior mortgage and debts. From this and all of the evidence presented at trial, we conclude that the circuit court correctly found that, given the particular facts involved in this case, the terms of the loan described above and the loan product, in and of itself, were unconscionable.
Id. (emphasis added).
It is important to note what the court did not do. The court did not hold that a loan that exceeds the value of a home is per se substantively unconscionable. Rather, the court found that the total cost of a loan may, as one factor among many, indicate substantive unconscionability. The total cost of a loan incorporates much more than the principal value. Total cost includes the interest rate, fees, and the timing of payments, in addition to the initial principal value.
The instant case differs from Quicken Loans, Inc. v. Brown because the plaintiff identifies as substantively unconscionable only the loaned amount in relation to the fair market value of his home. {See Pl.’s Resp. [Docket 54], at 15; Compl. [Docket 1-2] ¶ 42 (“the loan is for an amount that dramatically exceeded the value of the property that it is secured by”)). The plaintiff does not argue or present evidence regarding the total cost of the loan. The instant case also differs in that there are no allegations of unfair interest rates or balloon payments.
“[W]hether a contract provision is substantively unconscionable” should be decided “on a case-by-case basis.” Brown v. Genesis Healthcare Corp., 229 W.Va. 382, *672729 S.E.2d 217, 229 (2012). I predict that the Supreme Court of Appeals would recognize the absurdity of finding substantive unconscionability based solely on a loan exceeding the value of a home and would reject such a claim. Quicken Loans, Inc. v. Brown does not require a different result in this case.
Even though West Virginia law does not recognize that a loan exceeding the value of a home may be substantively unconscionable, several judges on our court find that to be the case. See, e.g., O’Brien v. Quicken Loans, Inc., No. 2:12-cv-5138, 2013 WL 2319248, at *6-7 (S.D.W.Va. May 28, 2013) (Copenhaver, J.); Petty v. Countrywide Home Loans, Inc., No. 3:12-cv-6677, 2013 WL 1837932, at *5-6 (S.D.W.Va. May 1, 2013) (Chambers, C.J.); Hatcher v. Bank of Am., N.A., No. 2:12— cv-5793, 2013 WL 1776091, at *4 (S.D.W.Va. Apr. 25, 2013) (Copenhaver, J.); Carroll v. JPMorgan Chase Bank, N.A., No. 3:12-cv-5985, 2013 WL 173728, at *5 (S.D.W.Va. Jan. 16, 2013) (Chambers, C.J.); Robinson v. Quicken Loans Inc., No. 3:12-cv-0981, 2012 WL 3670391, at *2-3 (S.D.W.Va. Aug. 24, 2012) (Chambers, C.J.). For example, in Petty and Hatcher this court denied motions to dismiss where the only claim in support of substantive unconscionability was that the refinanced loans exceeded the value of the plaintiffs’ homes. See Petty, 2013 WL 1837932, at *5; Hatcher, 2013 WL 1776091, at *4.
I am puzzled that my esteemed colleagues have reached such conclusions. West Virginia law does not require such conclusions, and I can find no cases outside of West Virginia wherein loans exceeding the value of a home are unconscionable. In fact, I can find only one reported case outside this state wherein a litigant made an argument — ultimately unsuccessful— similar to the plaintiffs. See In re Sullivan, 346 B.R. 4, 30 (Bankr.D.Mass.2006) (finding plaintiff failed to present evidence of substantive unconscionability where plaintiff alleged, inter alia, that the value of her refinanced mortgage exceeded the value of her equity).
Even though I believe the federal cases cited above incorrectly apply the law of unconscionability, they are nonetheless distinguishable from the instant case. The court in O’Brien, Petty, Hatcher, Carroll, and Robinson identified an inflated loan value as unconscionable before the parties conducted discovery, whereas discovery is complete in the instant case. See, e.g., O’Brien, 2013 WL 2319248, at *6-7, Petty, 2013 WL 1837932, at *3-6; Hatcher, 2013 WL 1776091, at *3-4; Carroll, 2013 WL 173728, at *2-5; Robinson, 2012 WL 3670391, at *2-31. This is significant because the West Virginia Consumer Credit and Protection Act (“WVCCPA”) encourages courts to allow unconscionability claims to proceed through discovery when plaintiffs merely claim that a contract is unconscionable. The relevant WVCCPA provision reads: “If it is claimed or appears to the court that the agreement or transaction or any term or part thereof may be unconscionable, the parties shall be afforded a reasonable opportunity to present evidence as to its setting, purpose and effect to aid the court in making the deter*673mination.” W. Va.Code § 46A-2-121(2) (emphasis added). Several cases explicitly cite this WVCCPA provision in denying motions to dismiss. See, e.g., O’Brien, 2013 WL 2319248, at *6 (“[T]he WVCCPA emphasizes the need for discovery in assessing unconscionability claims[.]”); Hatcher, 2013 WL 1776091, at *3 (same); Petty, 2013 WL 1837932, at *4 (“[I]t is clear that unconscionability claims should but rarely be determined based on the pleadings alone[.]”) (internal quotation omitted).
Having determined that a loan exceeding the value of a home is not evidence of substantive unconscionability, I turn to the plaintiffs second argument. The plaintiff maintains that the loan is substantively unconscionable because it “did not provide a net tangible benefit to Mr. McFarland, and instead placed him in a worse situation.” (Pl.’s Resp. in Opp. to Def. Wells Fargo and Def. U.S. Bank’s Mot. for Summ. J. (“Pl.’s Resp.”) [Docket 54], at 15). This argument also fails. There is no requirement that a contract provide a “net tangible benefit” to either party. Whether a contract is unconscionable does not turn on whether a party receives a net tangible benefit from the contract. Rather, to be unconscionable, the contract must be “one-sided and ... have an overly harsh effect on the disadvantaged party.” Syl. Pt. 12, Genesis Healthcare Corp., 729 S.E.2d at 221. Further, the plaintiff must point to a particular term or aspect of the contract that he believes is unconscionable. It is not enough to vaguely assert that the contract fails to provide a net tangible benefit. See id. at 229 (“[C]ourts should assess whether a contract provision is substantively unconscionable on a case-by-case basis.”) (analyzing fairness of arbitration clause) (emphasis added); Tucker, 729 S.E.2d at 820-22 (arbitration clauses); Quicken Loans, Inc. v. Brown, 737 S.E.2d at 659 (balloon payment and total cost of the loan). Therefore, whether the loan provided a net tangible benefit is irrelevant.
It is the court’s responsibility to determine whether a contract or provision therein is unconscionable. Syl. Pt. 7, Genesis Healthcare Corp., 729 S.E.2d at 221 (quoting Syl. Pt. 1, Troy Mining Corp. v. Itmann Coal Co., 176 W.Va. 599, 346 S.E.2d 749, 750 (1986)). On the facts of this case, I FIND that the plaintiff has failed to present any evidence that the loan is substantively unconscionable. Because a plaintiff is required to establish both substantive and procedural unconscionability (see Syl. Pt. 9, Genesis Healthcare Corp., 729 S.E.2d at 221; Syl. Pt. 6, Tucker, 729 S.E.2d at 812), and the plaintiff has failed to establish substantive unconscionability, I do not address whether the loan is procedurally unconscionable. The defendants’ motion for summary judgment on Count I for unconscionable contract is GRANTED, and Count I is DISMISSED.2
B. Count III — Joint Venture & Agency
In Count III, the plaintiff argues that the defendants are vicariously liable for each other’s actions. (See Compl. [Docket 1-2] ¶¶ 49-55). This vicarious liability is premised on two separate theories: joint venture and agency. The defendants move for summary judgment, arguing that the plaintiff has failed to present evidence in support of either theory.
It is difficult to understand how joint venture and agency can be asserted *674as independent claims for relief. Joint venture and agency are vehicles for assigning liability to parties who did not themselves commit a wrong. See Armor v. Lantz, 207 W.Va. 672, 535 S.E.2d 737, 742-43 (2000) (“Members of a joint venture are ... jointly and severally liable for all obligations pertaining to the venture, and the actions of the joint venture bind the individual co-venturers.”); Bailey v. Firemen’s Ins. Co., 108 W.Va. 75, 150 S.E. 365, 365 (1929) (“A judgment binding an agent will also bind his principal, where, under authority of the latter, his rights were asserted by the agent.”).
Nonetheless, West Virginia courts recognize that joint venture and agency may be asserted as independent claims as long as they are based on other underlying claims. See, e.g., Croye v. GreenPoint Mortg. Funding, Inc., 740 F.Supp.2d 788, 799-800 (S.D.W.Va.2010) (Copenhaver, J.) (rejecting argument that claim for joint venture, agency, and conspiracy is not independently cognizable); see also Carroll v. JPMorgan Chase Bank, N.A., No. 3:12-cv-5985, 2013 WL 173728, at *5-6 (S.D.W.Va. Jan. 16, 2013) (Chambers, C.J.); Proffitt v. Greenlight Fin. Servs., No. 2:09-cv-1180, 2011 WL 1485576, at *4 (S.D.W.Va. Apr. 19, 2011) (Copenhaver, J.). The Supreme Court of Appeals has repeatedly analyzed claims of joint venture and agency in depth without dismissing them for failure to state a claim. See, e.g., Herrod v. First Republic Mortg. Corp., 218 W.Va. 611, 625 S.E.2d 373, 383 (2005) (joint venture, agency, and conspiracy); Price v. Halstead, 177 W.Va. 592, 355 S.E.2d 380, 383-84 (1987) (joint venture). Additionally, the court in Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009), determined that a claim for civil conspiracy — another form of vicarious liability-— could stand as an independent claim, even though the court recognized that “[a] civil conspiracy is not a per se, stand-alone cause of action; it is instead a legal doctrine under which liability for a tort may be imposed on people who did not actually commit a tort themselves but who shared a common plan for its commission with the actual perpetrator(s).” 689 S.E.2d at 269.
In light of these authorities, the court will assume that West Virginia law permits joint venture and agency to be asserted as an independent claim, provided that such a claim is based upon some other underlying wrong. Therefore, in order to survive summary judgment, the plaintiffs joint venture and agency claim must be based upon an allegation and evidence of some underlying wrong. The court thus examines the Complaint to determine which underlying claims are vicariously attributed to which defendants. Count I for unconscionable contract is directed to “All Defendants,” Count II for breach of fiduciary duty is directed to “Defendant Greentree,” and Counts IV and V under WVCCPA for illegal fees and misrepresentations are directed to ‘Wells Fargo & U.S. Bank.” Therefore, the only substantive claims against defendants Wells Fargo and U.S. Bank are unconscionable contract, illegal fees, and misrepresentations.
Here, joint venture and agency may not be used to impose liability for unconscionable contract in Count I, as that claim is dismissed. Additionally, the plaintiff has not presented any evidence that there existed a joint venture or agency relationship as to Counts IV and V, which relate to the servicing of the loan. And the plaintiff did not direct Count II for breach of fiduciary duty to U.S. Bank or Wells Fargo; that claim is only asserted against Greentree. Therefore, without a viable underlying claim premised on agency or joint venture asserted against them, Wells Fargo and U.S. Bank cannot be vicariously liable as a *675result of an agency or joint venture relationship.
If there is any doubt about whether the plaintiff sought to hold Wells Fargo and U.S. Bank liable for Greentree’s alleged breach of fiduciary duty, the plaintiff failed to present evidence supporting the existence of any fiduciary relationship. In West Virginia, a plaintiff seeking to recover for a breach of fiduciary duty must first establish that a fiduciary relationship exists. See Elmore v. State Farm Mut. Auto. Ins. Co., 202 W.Va. 430, 504 S.E.2d 893, 898 (1998) (defining fiduciary relationship and determining that no such relationship runs from an insurance carrier to a third-party claimant).
Fiduciary relationships do not exist as a matter of course. In determining whether a fiduciary relationship exists, the court should determine whether a lender has created a special relationship by performing extraordinary services. See White v. AAMG Const. Lending Ctr., 226 W.Va. 339, 700 S.E.2d 791, 798 (2010) (“[W]here the lender and borrower have a ‘special relationship’ that extends beyond the contract, the borrower may recover tort-type damages.”); Syl. Pt. 6, Glascock v. City Nat. Bank of W. Va., 213 W.Va. 61, 576 S.E.2d 540, 541 (2002) (“Where a lender making a construction loan to a borrower creates a special relationship with the borrower by maintaining oversight of, or intervening in, the construction process, that relationship brings with it a duty to disclose any information that would be critical to the integrity of the construction project”). Further, “the law does not generally recognize a fiduciary relation between creditor and debtor[.]” Knapp v. Am. Gen. Fin. Inc., 111 F.Supp.2d 758, 766 (S.D.W.Va.2000); see also Wittenberg v. First Indep. Mortg. Co., No. 3:10-cv-58, 2011 WL 1357483, at *18 (N.D.W.Va. Apr. 11, 2011) (“West Virginia does not recognize a fiduciary duty between a lender and borrower unless a special relationship has been established.”).
Here, the plaintiff has presented no facts indicating that his relationship with Greentree was anything more than that of a typical creditor/broker and borrower. In fact, the plaintiff himself admitted that he did not ask Greentree to “do anything special” for him other than refinance his house. (McFarland Dep. [Docket 54-1], at 82:1-12). The plaintiff merely alleges that he was unsophisticated about finance and unsure of the precise terms of the loan. But those facts do not give rise to a fiduciary relationship between the plaintiff and Greentree or a vicarious fiduciary relationship between the plaintiff and Wells Fargo or U.S. Bank.
For these reasons, the defendants’ motion for summary judgment on Count III is GRANTED and Count III is DISMISSED.
C. Count IV — Illegal Fees under WVCCPA
The plaintiff alleges that Wells Fargo charged fees in violation of the WVCCPA. (See Compl. [Docket 1-2] ¶¶ 56-57). Specifically, the plaintiff contends that Wells Fargo improperly charged 32 property inspection fees and three broker price opinion fees between February 2008 and August 2011. (See PL’s Resp. [Docket 54], at 19).
West Virginia Code § 46A-2-115 limits the fees a lender may assess upon default. In relevant part, it provides as follows:
(a) Except for reasonable expenses including costs and fees authorized by statute incurred in realizing on a security interest, the agreement with respect to a consumer credit sale or a consumer loan may not provide for charges as a *676result of default by the consumer other than those authorized by this chapter, (b) A consumer loan secured by real property ... which includes in the loan agreement a reinstatement period beginning with the trustee notice of foreclosure and ending prior to foreclosure sale, may, in addition to those authorized by this chapter, permit the recovery of the following actual reasonable reinstatement period expenses paid or owed to third parties: (i) Publication costs paid to the publisher of the notice; (ii) appraisal fee when required by the circumstances or by a regulatory authority and only after the loan has been referred to a trustee for foreclosure; (iii) title check and lienholder notification fee not to exceed two hundred dollars, as adjusted from time to time by the increase in the consumer price index for all consumers published by the United States Department of Labor; and (iv) certified mailing costs.
W. Va.Code § 46A-2-115.3
According to the plaintiff, Wells Fargo’s fees were illegal because “they were not assessed after a notice of sale, and they were not assessed for publication costs, appraisals, title fees, or mailing costs.” (Pl.’s Resp. [Docket 54], at 19). The plaintiff argues that all default fees are prohibited except for those expressly enumerated by statute. (See id. at 18-19). In response, Wells Fargo contends that the fees were permissible because they were assessed after default for work actually performed in order to “realize on their security interest.” (Defs. Wells Fargo and U.S. Bank’s Reply in Supp. of Their Mot. for Summ. J. (“Defs.’ Reply”) [Docket 65], at 18).
The plaintiffs argument that all fees are prohibited, save those expressly enumerated by statute, is without merit. Section 46A-2-115 indicates that “reasonable expenses” may be charged by a lender as a result of default, including those expressly authorized by statute. Thus, reasonable expenses are permitted, as well as those authorized by statute. This interpretation is consistent with dicta in Kesling v. Countrywide Home Loans, Inc. See No. 2:09-cv-588, 2011 WL 227637, at *5 (S.D.W.Va. Jan. 24, 2011) (Copenhaver, J.) (observing that § 46A-2-115(a) “expressly permits consumer loan agreements that provide for recovery of ‘reasonable expenses’ incurred as a result of ‘realizing on a security interest’ ”).
Although the fees assessed to the plaintiff are not per se prohibited by § 46A-2-115, they still must (1) be incurred “in realizing on a security interest” and (2) be reasonable. First, the fees were incurred in realizing on a security interest. It is undisputed that once the plaintiff was in default, Wells Fargo had a right to foreclose on the property. Therefore, the fees were incurred “in realizing on a security interest.” Cf. Banks v. Paul White Chevrolet, Inc., 218 W.Va. 733, 629 S.E.2d 792, 796 n. 7 (2006) (finding that lender was not “realizing on a security interest” where it had no legal or contractual right to do so).
Second, I FIND that the plaintiff has not presented evidence that the fees were *677unreasonable. Wells Fargo contends that “[c]onducting inspections of secured property where a loan is in default ensures that the property remains occupied and in good repair.” (Defs.’ Reply [Docket 65], at 18). Further, Wells Fargo’s corporate representative testified that it is the bank’s regular practice to review property inspection reports to ensure that the work was actually performed. (See Ferguson Dep. [Docket 54-5], at 68:15-20).
In response, the plaintiff argues that the fees were unreasonable because the plaintiff was in regular contact with the bank, negating any need for Wells Fargo to inspect the property. (See Pl.’s Resp. [Docket 54], at 19). This assertion is not evidence in support of the plaintiffs claim, and therefore it is not considered for purposes of summary judgment. Next the plaintiff argues that there is no evidence that Wells Fargo received or reviewed reports of the inspections. (See id.). But the burden of proof is on the plaintiff. The defendants are not required to negate the plaintiff’s assertions. Rather, the defendants satisfy their burden of production at the summary judgment stage by demonstrating that the “evidence is insufficient to establish an essential element of the [plaintiffs’] claim.” Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Brennan, J. dissenting). The defendants have done that here. In any event, the plaintiff does not dispute the testimony of Wells Fargo’s corporate representative that Wells Fargo regularly reviews property inspection reports to ensure that work is actually performed.
Therefore, the defendants’ motion for summary judgment on Count IV for illegal fees is GRANTED, and Count IV is DISMISSED.
D. Count V — Misrepresentations under the WVCCPA
The plaintiff alleges that Wells Fargo made misrepresentations in attempting to collect debt in violation of West Virginia Code § 46A-2-127. (See Compl. [Docket 1-2] ¶ 60). That section provides in relevant part that “[n]o debt collector shall use any fraudulent, deceptive or misleading representation or means to collect or attempt to collect claims or to obtain information concerning consumers.” W. Va. Code § 46A-2-127. The plaintiff further alleges that Wells Fargo engaged in unconscionable means, to collect debt in violation of West Virginia Code § 46A-2-128. (See Compl. [Docket 1-2] ¶ 59). That section provides in relevant part that “[n]o debt collector shall use unfair or unconscionable means to collect or attempt to collect any claim.” W. Va.Code § 46A-2-128.
In support, the plaintiff asserts that Wells Fargo misrepresented that it was approving him for loan modifications on March 8, 2008, and June 20, 2009. (See Loan Modification Agreements [Dockets 54-14 and 54-15]). Both agreements purported to reduce the plaintiffs monthly payments. The plaintiff and Wells Fargo signed each agreement.4 (See id.). However, it is undisputed that Wells Fargo never honored the agreements. (See Ferguson Dep. [Docket 54-5], at 72:2-5; 76:3-7; 77:16-20). Viewing this evidence most favorably to the plaintiff, a reasonable jury could conclude that Wells Fargo violated West Virginia Code §§ 46A-2-127 and *67846A-2-128. Cf. Ranson v. Bank of Am., N.A., No. 3:12-cv-5616, 2013 WL 1077093, at *9 (S.D.W.Va. Mar. 14, 2013) (Chambers, C.J.) (finding that plaintiff stated claims under §§ 46A-2-127 and 46A-2-128 where plaintiff alleged, among other things, that bank defendant “told him he qualified for loan modification and would receive one if he completed the requested financial information”); Koontz v. Wells Fargo, N.A., No. 2: 10-cv-00864, 2011 WL 1297519, at *5-6 (S.D.W.Va. Mar. 31, 2011) (Johnston, J.) (finding plaintiff stated a claim under § 46A-2-127 where plaintiff alleged bank defendant misrepresented that it was providing a loan modification).5 Accordingly, the defendants’ motion for summary judgment on Count V is DENIED.
IV. Conclusion
As set out above, the defendants’ motion for summary judgment [Docket 46] is GRANTED in part and DENIED in part. Accordingly, Counts I, III, and IV are DISMISSED.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. The court further DIRECTS the Clerk to post a copy of this published opinion on the court’s website, www.wvsd.uscourts.gov.
. Robinson later proceeded through discovery and the court denied the defendant's motion for summary judgment, stating that "numerous material issues of fact are in genuine dispute.” Robinson v. Quicken Loans, Inc., 988 F.Supp.2d 615, 624, No. 3:12-cv-0981, 2013 WL 6817643, at *5 (S.D.W.Va. Dec. 24, 2013). Among those disputed facts were that Quicken Loans "pressured" the plaintiff into a larger loan than she requested and placed her into a "higher interest rate loan than that for which she qualified.” Id. The court did not identify or explain which facts related to procedural unconscionability and which facts related to substantive unconscionability.
. The defendants also argue that Count I is time-barred. Because I find that the plaintiff failed to present evidence in support of Count I, I do not discuss whether Count I is time-barred.
. Count IV also alleges that Wells Fargo assessed fees in violation of West Virginia Code §§ 46A-2-127 ("Fraudulent, deceptive or misleading representations”) and 46A-2-128 ("Unfair or unconscionable means”). It appears to the court that these sections merely address the means of collecting fees, not the legality of the underlying fees. The plaintiff does not explain how these sections render Wells Fargo's fees per se illegal. Therefore, the court addresses §§ 127 and 128 in relation to Count V for "Misrepresentations & Unconscionable Conduct in Debt Collection.”
. Confusingly, Wells Fargo asserts that the plaintiff failed to present evidence "that Wells Fargo actually signed any loan modification agreement or forbearance plan prior to the loan modification dated May 8, 2010.” This statement flies in the face of the March 8, 2008, agreement [Docket 54-14] and the June 20, 2009, agreement [Docket 54-15], which clearly display signatures from Wells Fargo representatives.
. The plaintiff also contends that Wells Fargo misrepresented to the office of the West Virginia Attorney General the fact that it approved the plaintiff for loam modifications on March 8, 2008, and June 20, 2009. (See Letter to WV Attorney General [Docket 46-8], at 2). Neither party explains how alleged misrepresentations to a third party are collections or attempts to collect debt or obtain financial information concerning consumers under West Virginia Code §§ 46A-2-127 or 46A-2-128. I therefore did not consider that evidence here. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224340/ | ORDER AND REASONS
SARAH S. VANCE, District Judge.
Plaintiff Jerry Landerman moves the Court to remand this matter to state court.1 Because the Court has removal jurisdiction over this case under the Outer Continental Shelf Lands Act, the Court DENIES plaintiffs motion, except insofar as it concerns his Jones Act claim. The Court severs that claim from the rest of this lawsuit and remands it to state court, pursuant to 28 U.S.C. § 1441(c).
I. BACKGROUND
On January 15, 2014, plaintiff Jerry Landerman filed this lawsuit in Louisiana state court against six defendants: Tarpon Operating and Development, L.L.C.; Shamrock Energy Solutions, L.L.C.; Na-bors Offshore Corporation, Rene Offshore, L.L.C.; Pan Ocean Energy Services, L.L.C.; and Hoplite Safety, L.L.C.2 Plaintiff asserted claims under the Jones Act and the general maritime law based on injuries he sustained while working on an offshore platform. The facts surrounding the incident, as alleged in the complaint, are as follows.
In May 2013, Landerman was working for Pan Ocean as a welder/cutter on the West Cameron 661 “A” Platform, which is in the Gulf of Mexico on the Outer Continental Shelf.3 Tarpon and Shamrock allegedly owned the platform at issue,4 and Hoplite served as a safety consultant for operations on the platform.5 According to Darren Herpin, the Chief Operating Officer of Hoplite, “Platform A in the West Cameron Block 661 is engaged in drilling operations to produce oil and gas.”6
While performing his work, Landerman had lodging on the vessel MTV RENE, which was allegedly owned and operated by Rene Offshore.7 A Pan Ocean executive stated, however, that the vast majority *681of plaintiffs actual work offshore took place on fixed platforms.8 Plaintiff “did not perform any welding, cutting, or other work on ... vessels which provided transportation and lodging.”9
On May 20, 2013, Landerman was being transferred from the platform to the M/V RENE by means of a personnel basket that was hanging from a crane on the platform.10 The crane operator, who was allegedly employed by either Tarpon, Shamrock, or Nabors Offshore, set the personnel basket down on top of equipment on the deck of the MTV RENE.11 The basket then allegedly tipped over, causing plaintiff to fall to the deck of the vessel and sustain serious injuries.12
Landerman alleges that his injuries were a direct result of the unseaworthiness of the MTV RENE and the negligence of all defendants.13 He seeks damages for lost wages and diminished earning capacity, medical expenses, pain and suffering, disability, “loss of household services,” loss of enjoyment of life, and “permanent disfigurement,” as well as maintenance and cure.14 In addition to the Jones Act and the general maritime law, the complaint also invokes as possible theories of recovery the Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331 et seq.; the Long-shore and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901 et seq.; and the general negligence laws of Louisiana.15
On February 19, 2014, Hoplite timely removed the lawsuit to this Court “pursuant to 28 U.S.C. §§ 1331, 1441, and 1446”16 with the consent of all defendants.17 In its Notice of Removal, Hoplite alleges that “[tjhis action is removable pursuant to 28 U.S.C. § 1441(a) because it is a civil action over which this Court has original jurisdiction under 28 U.S.C. § 1333.”18 Plaintiff now moves to remand the case to state court, arguing that cases brought in state court under the general maritime law are not removable.19 Hoplite, Pan Ocean, Rene Offshore, Nabors Offshore, and Tarpon have filed memoranda in opposition to plaintiffs motion.20
II. LEGAL STANDARD
Unless a federal statute expressly provides otherwise, a defendant may remove a civil action filed in state court to federal court if the federal court would have had original jurisdiction over the case. 28 U.S.C. § 1441(a). The removing party “bears the burden of showing that federal jurisdiction exists and that removal was proper.” Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir.2013) (citing Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.2002)). In assessing whether removal was *682appropriate, the Court is guided by the principle, grounded in notions of comity and the recognition that federal courts are courts of limited jurisdiction, that “removal statute[s] should be strictly construed in favor of remand.” Manguno, 276 F.3d at 728 (citing Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir.2000)).
III. DISCUSSION
Plaintiff argues that the Court does not have removal jurisdiction over this case because cases brought in state court under the general maritime law are unremova-ble. Hoplite responds that the Court would have original jurisdiction of this case on two independent bases, and hence that removal of the action was proper under § 1441. First, Hoplite argues, the Court would have federal question jurisdiction over the case under the Outer Continental Shelf Lands Act. See 43 U.S.C. § 1349(b)(1) (providing for jurisdiction “of cases and controversies arising out of, or in connection with ... any operation conducted on the outer Continental Shelf which involves exploration, development, or production of the minerals[] of the subsoil and seabed of the outer Continental Shelf’); see also 28 U.S.C. § 1331 (providing for jurisdiction “of all civil ae-tions arising under the Constitution, laws, or treaties of the United States”). Second, Hoplite contends that the Court would have original jurisdiction under 28 U.S.C. § 1333, which grants the district courts original jurisdiction over admiralty and maritime cases.21 Hoplite concedes that plaintiffs claim under the Jones Act is not removable, see 46 U.S.C. § 30104; 28 U.S.C. § 1445(a), but it contends that this claim should be severed and remanded to state court pursuant to § 1441(c). Pan Ocean, Rene Offshore, Nabors Offshore, and Tarpon make substantially the same arguments as Hoplite in opposing plaintiffs motion to remand.
Pan Ocean also argues that plaintiff fraudulently pleaded his Jones Act claim and accordingly requests that this claim be dismissed. Pan Ocean contends that, because plaintiff worked as a welder on an offshore platform rather than as a crew-member on a vessel or identifiable group of vessels, he lacks seaman status and cannot maintain a Jones Act claim.
For the reasons that follow, the Court holds that it has removal jurisdiction over this case under OCSLA, but that plaintiffs Jones Act claim should be severed and remanded to state court pursuant to § 1441(c).22
*683A. The Court Has Removal Jurisdiction Under OCSLA.
Removal of civil actions to federal court is governed by 28 U.S.C. § 1441, which provides in relevant part:
(a) Generally.—Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
District courts have original federal question jurisdiction of cases brought under OCSLA, and hence such cases can be removed to federal court under § 1441. See Barker v. Hercules Offshore, Inc., 713 F.3d 208, 220-21 (5th Cir.2013). This is true regardless of whether federal, state, or maritime law provides the substantive rule of decision in the case, and regardless of the citizenship of the parties. Id. at 220-22. Thus, if the Court has jurisdiction over this case under OCSLA, removal was unquestionably proper.
To determine whether a plaintiffs claim arises under OCSLA, “the Fifth Circuit applies a but-for test, asking whether: (1) the facts underlying the complaint occurred on the proper situs; (2) the plaintiffs employment furthered mineral development on the OCS; and (3) the plaintiffs injury would not have occurred but for his employment.” Id. at 213 (citing Demette v. Falcon Drilling Co., 280 F.3d 492, 496 (5th Cir.2002); Recar v. CNG Producing Co., 853 F.2d 367, 369 (5th Cir.1988)); see also Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 350 (5th Cir.1999). The Court finds that all three elements of the test are satisfied in this case.
It is clear from the face of plaintiffs petition that his alleged injuries occurred on a OCSLA situs. OCSLA covers, inter alia, “all artificial islands ... permanently or temporarily attached to the seabed [of the OCS], which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom.” 43 U.S.C. § 1333(a)(1). When plaintiff was injured, he was in a basket hanging from a crane that was located on a platform on the OCS.23 “It is well established that a platform is an ‘artificial island’ within the meaning of OCSLA.” Hollier v. Union Tex. Petroleum Corp., 972 F.2d 662, 664 (5th Cir.1992) (citing Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352, 361-66, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969)), overruled on other grounds by Grand Isle Shipyard, Inc. v. Seacor Mar., LLC, 589 F.3d 778 (5th Cir.2009) (en banc). Courts have held that when, as here, an individual is “physically connected” to an offshore platform at the time of the accident giving rise to the suit, the OCSLA situs requirement is satisfied. See Wells v. Abe’s Boat Rentals Inc., Civil Action No. H-13-1112, 2013 WL 3110322, at *4 (S.D.Tex. June 18, 2013) (plaintiffs claim arose under OCSLA because his state court petition alleged that he was injured when a crane fixed to a platform “lifted [him] off [a] vessel deck by his arm, resulting in spinal and other injuries”); Dennis v. Bud’s Boat Rental, Inc., 987 F.Supp. 948, 950 (E.D.La.1997) (when *684plaintiffs injury occurred while he was in a personnel basket attached to a crane on a platform, OCSLA situs was “present because of the plaintiffs physical connection to the platform via the personnel basket attached to the crane”); cf. Hollier, 972 F.2d at 665-65 (OCSLA situs requirement satisfied because the plaintiff “was in physical contact with the platform at the time of his injury”).
It is likewise clear that plaintiffs employment furthered mineral development on the Outer Continental Shelf. According to Herpin’s uncontroverted affidavit, the platform upon which plaintiff was working when he was injured “is engaged in drilling operations to produce oil and gas.”24 Cf. Hufnagel, 182 F.3d at 350 (finding that plaintiff’s “employment furthered mineral production on the shelf’ because his “injuries occurred on a stationary [oil] drilling platform” located on the shelf).
Finally, plaintiffs injury would not have occurred but for his employment. Plaintiff alleges that, at the time of his injury, he was being transferred from the platform, where he was working, to the M/V RENE, where his living quarters were.25 Had plaintiff not been employed to perform welding work on the platform, he would not have been in the personnel basket and thus would not have been injured. Cf. Hufnagel, 182 F.3d at 350 (plaintiffs claim that he was struck by a chain while working on a fixed platform arose under OCS-LA because the injury would not have occurred but for his work on the platform).
Accordingly, the Court finds that this lawsuit arises under OCSLA and hence was properly removed pursuant to 28 U.S.C. §§ 1331 and 1441(a). '
B. Plaintiffs Jones Act Claim Should Be Severed and Remanded.
Jones Act claims filed in state court are not removable to federal court. Huf-nagel, 182 F.3d at 345; Lackey v. Atl. Richfield Co., 990 F.2d 202, 207 (5th Cir.1993) (noting that the Jones Act “incorporates the general provisions of the Federal Employers’ Liability Act, including 28 U.S.C. § 1445(a), which in turn bars removal”). But, under the federal removal statute, a civil action that includes a claim arising under federal law and “a claim that has been made nonremovable by statute” may be removed to federal court if the action would have been removable absent the latter claim. 28 U.S.C. § 1441(c)(1). The statute directs that, after removal of such an action, “the district court shall sever from the action all claims [made nonremovable by statute] and shall remand the severed claims to the State court from which the action was removed.” 28 U.S.C. § 1441(c)(2).
Pan Ocean contends that remand of plaintiffs Jones Act claim is not required here because the claim was fraudulently pleaded. It is generally true that, if a defendant argues that the plaintiff “fraudulently pleaded [a Jones Act claim] to prevent removal,” the court may pierce the pleadings to determine whether there is any possibility that the plaintiff would be able to succeed on the merits of that claim. Lackey, 990 F.2d at 207. If not, the case is removable notwithstanding the presence of the nonremovable Jones Act claim, and the court may dismiss the latter cause of action.
The Court finds, however, that in this case it is unnecessary to inquire into the merits of plaintiffs Jones Act claim. *685Instead, that claim should simply be remanded to state court.
The rationale behind the rule articulated in Lackey is that plaintiffs should’ not be able to include in their complaint “parties — or claims — [that] are baseless in law and fact and ‘serve[ ] only to frustrate federal jurisdiction.’ ” Lackey, 990 F.2d at 207 (second alteration in original) (quoting Dodd v. Fawcett Publ’ns, Inc., 329 F.2d 82, 85 (10th Cir.1964)). In order to prevent this from occurring, federal courts may conduct a limited inquiry into the validity of those claims and dismiss them if they have no merit. See id. But here, that plaintiff’s complaint includes a Jones Act claim does not affect the Court’s jurisdiction of this case. Under § 1441(c), this suit is removable notwithstanding the presence of the Jones Act claim. Thus, regardless of whether plaintiffs Jones Act claim is valid or defective, it cannot “frustrate federal jurisdiction.” The Lackey rationale is inapplicable to such a situation.
Put slightly differently, the Court has jurisdiction over this case, period. The validity vel non of plaintiffs Jones Act claim is irrelevant. Therefore, it would serve no purpose for the Court to reach Pan Ocean’s argument that plaintiffs Jones Act claim is meritless. Instead, in accordance with the mandatory language of § 1441(c), the Court simply severs that claim and remands it to state court. See 28 U.S.C. § 1441(c) (“[T]he district court shall sever from the action [the claims made nonremovable by statute] and shall remand the severed claims to the State court from which the action was removed.” (emphasis added)). If Pan Ocean believes that plaintiffs Jones Act claim should be dismissed, it may address that argument to the state trial court.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES plaintiffs motion to remand, except insofar as it concerns his Jones Act claim. That claim must be severed from this case and remanded to state court.
. R. Doc. 12.
. R. Doc. 1-1 at 2-3.
. Id. at 3; R. Doc. 15-1 at 1.
. R. Doc. 1-1 at 3.
. R. Doc. 15-1 at 1.
. Id.
. R. Doc. 1-1 at 3.
. R. Doc. 16-1 at 2 "([B]eginning in July 2011, Landerman began to work sporadically offshore_Pan Ocean Energy’s records indicate that the vast majority of Landerman’s offshore work was performed as a welder on fixed platforms.”).
. Id.
. R. Doc. 1-1 at 3.
. Id.
. Id. at 3, 5-6.
. Id. at 4-5.
. Id. at 5-6.
. Id. at 6.
. R. Doc. 1 at 1.
. See id. at 5-9.
. Id. at 2.
. R. Doc. 12.
. R. Doc. 15 (Hoplite); R. Doc. 16 (Pan Ocean); R. Doc. 17 (Rene Offshore); R. Doc. 19 (Nabors Offshore and Tarpon).
. As noted above, Hoplite identified § 1331 and § 1333 as possible bases of removal jurisdiction in its Notice of Removal. See R. Doc. 1 at 1-2.
. In light of this disposition, the Court need not decide whether general maritime law claims are removable under § 1441 absent a separate and independent ground of federal subject matter jurisdiction. Under the former version of § 1441, the answer to that question was unequivocally no. See, e.g., In re Dutile, 935 F.2d 61, 62-63 (5th Cir.1991) ("[Ajdmi-ralty and maritime claims may be removed to federal court only by non-forum defendants and only where there is complete diversity of citizenship.”). But the removal statute was amended in 2011, and district courts across the country have sharply divided on whether the amendments to § 1441 rendered general maritime law claims removable to federal court. Compare Coronel v. AK Victory, 1 F.Supp.3d 1175, 1178-79, No. C13-2304, 2014 WL 820270, at *2-11 (W.D.Wash. Feb. 28, 2014), and Barry v. Shell Oil Co., Civil Action No. 13-6133, 2014 WL 775662, at *1-3 (E.D.La. Feb. 25, 2014) (cases brought under the general maritime law are not removable), with Garza v. Phillips 66 Co., Civil Action No. 13-742, 2014 WL 1330547, at *4-5 (M.D.La. Apr. 1, 2014), and Harrold v. Liberty Ins. Underwriters, Inc., Civil Action No. 13-762, 2014 WL 688984, at *3-4 (M.D.La. Feb. 20, 2014), and Corrigan v. M/V AMC AMBASSADOR, Civil Action No. H-13-03208, 2014 WL 358353, at *2 (S.D.Tex. Jan. 31, 2014), *683and Bridges v. Phillips 66 Co., Civil Action No. 13-477, 2013 WL 6092803, at *4-5 (M.D.La. Nov. 19, 2013), and Wells v. Abe’s Boat Rentals Inc., Civil Action No. HI3-1112, 2013 WL 3110322, at *1-4 (S.D.Tex. June 18, 2013), and Ryan v. Hercules Offshore, Inc., 945 F.Supp.2d 772, 774-78 (2013) (cases brought under the general maritime law are removable).
. See R. Doc. 1-1 at 3; R. Doc. 15-1 at 1.
. R. Doc. 15-1 at 1.
. R. Doc. 1-1 at 3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224341/ | ORDER AND REASONS
KURT D. ENGELHARDT, District Judge.
Before the Court is a Motion for Partial Summary Judgment Regarding Plaintiffs Claim of Misrepresentation (Rec. Doc. 66), filed by defendant State Farm Mutual Automobile Insurance Company (“State Farm”). Opposition and reply memoranda are filed at Rec. Docs. 67 and 72.
I. BACKGROUND:
This case arises out of a ear accident on September 26, 2011, in which the plaintiff rear-ended a vehicle driven by Qiana Sykes in the Crescent City Connection toll plaza. Plaintiffs insurer, State Farm Mutual Automobile Insurance Company (“State Farm”), settled without litigation the personal injury and property damage claims filed by Ms. Sykes. One year after the accident, on September 25, 2012, plaintiff filed suit in the Civil District Court, Parish of Orleans, against Sykes, her insurer (Geico Indemnity Company), and State Farm, alleging that Sykes was at fault for the accident and that State Farm owes him underinsured motorist (“UM”) *687coverage. (Rec. Doc. 4-8). On December 7, 2012, the plaintiff filed a motion to dismiss Sykes and Geico after settling with Geico for policy limits of $30,000. (Rec. Docs. 4-5 at 7, 4-6). Upon receiving notice of the dismissal, in March 2013, State Farm removed the case to this Court on the basis of diversity.
In addition to seeking payment of UM benefits from State Farm, the plaintiff has sought statutory penalties1 against State Farm on two grounds: (1) an alleged misrepresentation by a State Farm representative regarding plaintiffs right to make a claim under his UM policy; and (2) State Farm’s failure to tender UM benefits in response to medical records provided to State Farm after suit was filed. See Rec. Docs. 14-5 at 8 of 9, 14-6. The Court has already dismissed the latter of these two claims on partial summary judgment. See Rec. Doc. 34. State Farm now moves to dismiss the former.
II. LAW AND ANALYSIS:
“The Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[T]he burden on the moving party may be discharged by ‘showing1 — that is, pointing out to the district court — that there is an absence of evidence to support the nonmov-ing party’s case.” Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225, 234 (5th Cir.2010) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Once the moving party has carried this burden, the nonmov-ing party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “[T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” Id. (quoting Matsushita, 475 U.S. at 587, 106 S.Ct. 1348). “[Tjhere is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Although the Court must draw in favor of the nonmoving party all reasonable inferences that may be drawn from the evidence submitted, “a party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or ‘only a scintilla of evidence.’ ” Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 343 (5th Cir.2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)); Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir.2012). If the nonmoving party cannot produce admissible evidence sufficient to establish an essential element as to which the nonmoving party would bear the burden at trial, entry of summary judgment is mandated. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548.
State Farm moves for dismissal of the misrepresentation claim based oh two grounds: (1) the misrepresentation established by plaintiffs evidence does not relate to a “coverage issue,” and thus cannot support a claim for statutory penalties; and (2) alternatively, plaintiff is limited to the $5,000 statutory penalty because plaintiff cannot establish that he sustained any general or special damages .as a result of the alleged misrepresentation.
A. Does the Plaintiff’s Evidence Establish a Misrepresentation Relating to a “Coverage Issue”?
The bad faith penalty statute provides in pertinent part:
*688A. An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A of this Section:
(1) Misrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue.
# *
La.Rev.Stat. § 22:1973(A) and (B). “A ‘misrepresentation’ occurs when an ‘an insurer either makes untrue statements to an insured concerning pertinent facts [of a policy] or fails to divulge pertinent facts to the insured.’ ” Versai Management Corp. v. Clarendon America Ins., 597 F.3d 729, 740 (5th Cir.2010) (quoting McGee v. Omni Ins. Co., 840 So.2d 1248, 1256 (La.Ct.App. 3rd Cir.2003)). “The terms of the statute require that the misrepresentations relate to a ‘coverage issue’ which would ‘involve facts about the policy itself, such as the amount of coverage, lapse or expiration of the policy, or exclusions from coverage.’ ” Id. (quoting Imperial Trading Co. v. Travelers Prop. Cas. Co., No. 06-4262, 2009 WL 2356290, at *3 (E.D.La. July 27, 2009)).
Here, plaintiff testified in his deposition as follows:
Q.Your allegations in your pleading say that a State Farm adjustor made a misrepresentation in its handling of the claim to you. What was that misrepresentation?
A. She told me that I was at fault, and that you couldn’t get paid nothing on UM. So that’s when I seeked out an attorney.
Q. So the misrepresentation that you believe the State Farm agent made from the beginning of the handling of the claim to your last direct involvement with the agents was that they assessed fault, determined fault in a way that you disagreed with; correct?
A. (Witness nodded head in the affirmative.)
Q. Is that right?
A. Yes.
Q. Was there any other misrepresentation that you can report to me that you personally know of from your dealings with State Farm?
A. There wasn’t many dealings. I only talked to her once or twice. I couldn’t get her back on the phone.
Q. So the answer is, that’s the only misrepresentation that you’re aware of?
A. Right.
Rec. Doc. 66-6 at 2-3 of 7. From this, State Farm argues: “Based on the Plaintiffs own testimony, State Farm’s alleged misrepresentation relates solely to the liability of the Plaintiff in causing the accident and does not relate to any issue of coverage.” Rec. Doc. 66-1 at 7-8. In so arguing, State Farm relies heavily on Strong v. Farm Bureau Ins. Co., 743 So.2d 949, 953 (La.Ct.App. 2nd Cir.1999). However, the Court finds the facts in Strong to be materially different. There, the sole representation at issue was the following statement, contained in a letter sent by a claims representative to the plaintiff: “Our records indicate that our insured had al*689ready pre-empted the intersection on a green turn arrow at which time she was in the process of turning, the green arrow disappeared giving you the green light on your side.” Id. Given that the statement related solely to facts about the accident, the Strong court found that, while the representative had “arguably misrepresented a pertinent fact about liability ..., she never misrepresented a fact about coverage.” Id. Here, however, the alleged statement is not limited to facts about the accident. According to the plaintiffs deposition testimony, the representative stated that Drago “was at fault” and that he “couldn’t get paid nothing on UM.” Rec. Doc. 66-6 at 2 of 7 (emphasis in original). Drawing all reasonable inferences in the plaintiffs favor, as the Court must,2 the Court finds that a reasonable jury could conclude from his testimony that the representative’s statements were not restricted to facts about liability for the accident, but also included a representation about the coverage at issue, i.e., that he “couldn’t get paid nothing on UM.” Accordingly, the Court finds that State Farm has failed to establish that it is entitled to judgment as a matter of law dismissing this claim.
B. Can Plaintiff Establish that He Sustained Any General or Special Damages as a Result of the Alleged Misrepresentation, or Is He Limited to the $5,000 Statutory Penalty?
The penalty provision of the bad faith statute provides:
C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.
La.Rev.Stat. § 22:1973(C). State Farm argues that the plaintiff cannot establish that he suffered any damages as a result of the alleged misrepresentation and, therefore, is limited to recovering the $5,000 penalty provided in the statute. The Court agrees. As set forth above, the plaintiff promptly sought the services of counsel upon allegedly being told by State Farm that he could not be paid benefits under his UM coverage. See Rec. Doc. 66-6 at 2 of 7 (“She told me that I was at fault, and that you couldn’t get paid nothing on UM. So that’s when I seeked out an attorney.”). It is uncontested that the plaintiffs notice of claim was timely and that he filed this lawsuit before any prescriptive period had expired. See Rec. Doc. 66-1 at 8 of 11. Further, in his deposition, the plaintiff testified as follows:
Q. My question to you, sir, you told me you think State Farm misrepresented something to you. How were you damaged by that misrepresentation? How has it hurt you? How has it affected you either economically or in any fashion?
A. Because they haven’t paid for my medical bills.
# #
Q. Other than their failure to pay, which you believe they owed you, which you say was the medical bills and for pain and suffering associated with your problems—
A. Correct.
Q. —did State Farm’s misrepresentation damage you in any other way?
*690A. That’s all I can think of.
See Rec. Doc. 66-6 at 4-5 of 11. Crediting this testimony fully and drawing all reasonable inferences in the plaintiffs favor, no reasonable jury could conclude that the plaintiff sustained any damages as a result of the alleged misrepresentation. To the contrary, it is clear from his testimony that his only damages are those for which he seeks recovery under the UM provisions of his policy.
Contrary to his deposition testimony, in opposition to the instant motion, the plaintiff has submitted an affidavit stating that he was “disappointed and confused” upon hearing that he could not recover under his UM policy and that he felt “anxious and stressed” as a result. Rec. Doc. 67-2 at 5-6 of 6. Thus, he argues, he can establish damages resulting from the misrepresentation. However, a non-moving party cannot raise a dispute of material fact simply by submitting an affidavit contradicting his own prior testimony. Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir.2000); see also Bacon v. EDS, 219 Fed.Appx. 355 (5th Cir.2007); Albertson v. T.J. Stevenson & Co., Inc., 749 F.2d 223, 228 (5th Cir.1984) (“Although the court must resolve all factual inferences in favor of the nonmovant, the nonmovant cannot manufacture a disputed material fact where none exists.... Thus, the nonmov-ant cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without explanation, his previous testimony.”). Defense counsel’s questions to the plaintiff were clear (“How were you damaged by that misrepresentation? How has it hurt you? How has it affected you either economically or in any fashion?”), and the plaintiffs answers under oath were equally clear. He cannot now defeat summary judgment with an affidavit to the contrary. Thus, State Farm is entitled to judgment as a matter of law limiting bad faith penalties to the $5,000 statutory amount. Accordingly;
IT IS ORDERED that the Motion for Partial Summary Judgment Regarding Plaintiffs Claim of Misrepresentation (Rec. Doc. 66), filed by defendant State Farm Mutual Automobile Insurance Company is hereby GRANTED IN PART, in that plaintiffs claim for damages arising from the alleged misrepresentation is dismissed, and plaintiff shall be limited to recovering the statutory penalty of $5,000 for that claim, and DENIED IN PART, in that it is denied in all other respects.
. See La.Rev.Stat. §§ 22:1892 and 22:1973.
. E.g., Turner, 476 F.3d at 343. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224342/ | ORDER & REASONS
ELDON E. FALLON, District Judge.
Before the Court is Defendant Allstate Insurance Company’s motion for summary judgment. (Rec. Doc. 20). Having considered the parties’ memoranda and the applicable law, the Court now issues this order.
I. UNCONTESTED FACTS
This action arises out of a flood insurance claim made by Plaintiffs Diane and Bobby Stevens for damage their house sustained during Hurricane Isaac. The property, which is located in LaPlace, Louisiana, was inundated with about a foot of water for approximately a day. The Stevens’ insurer, Allstate, is a write-your-own program (“WYO”) carrier participating in the National Flood Insurance Program (“NFIP”), and it issued a standard flood insurance policy (“SFIP”). The SFIP covers a term lasting from November 22, 2011, to November 22, 2012, and has coverage limits of $165,000.00 for structural damage and $26,300.00 for contents damage, each of which is subject to a $1,000.00 deductible.
After the Stevens submitted a claim, Allstate initiated the adjustment process. In doing so, it assigned an independent *692adjuster, Rich Christie, through Pilot Catastrophe Services, who inspected the property on September 7, 2012. Specifically, the estimate included cost of replacing drywall, doors, trim, vinyl windows, the water heater, electrical outlets, several refrigerators, a stove, a fireplace, insulation, countertops, cabinets, a bathtub, a shower, blinds, doors, and part of a garage door. It also included the cost of services for remodeling, demolition, drying out the house, and eradicating mold. Based on the adjuster’s estimate, Allstate paid the Stevens $84,132.76 for structural damage. (It also paid them $21,300.00 for contents damage, which is the policy limit.) Subsequently, the Stevens and Allstate both sought additional estimates. Kevin Ma-nale, hired by the Stevens, provided an estimate of $89,499.80 and John Crawford, hired by Allstate, provided one of $96,422.60.
The Stevens used the funds that had been paid to conduct some essential repairs. They have produced documentation of $49,711.94 spent on repairs, but state that they are unable to document the remainder of what was spent (although they allege that they spent the entire amount Allstate paid).1 The Stevens state that they do not know exactly how much they have spent on repairs, nor do they know exactly how much will need to be spent.
II. PRESENT MOTION
Allstate now moves for summary judgment. (Rec. Doc. 20). Specifically, Allstate argues that the amount the Stevens spent on repairs is less than the amount it paid them and that its liability should not be determined by an estimate when the actual amount is known. Further, Allstate argues that the Stevens bear the burden of proving that the actual amount of damage was greater than the amount paid and that the Stevens are unable to meet this burden.
The Stevens respond in opposition. (Rec. Doc. 26). Specifically, they note that Allstate’s second estimate demonstrates that they were underpaid by $13,298.84 and that other estimates may indicate they were underpaid by an even greater amount. In addition, they suggest that the “builder board,” which sits between the brick veneer and studs, was contaminated during the flood and must be replaced, increasing the amount of structural damage. In sum, they argue that, even though they did not document all of their repairs, those repairs would exceed what Allstate paid and also that there are additional repairs yet to be made.
Allstate replies. (Rec. Doc. 32). It argues that the Stevens “do not dispute that their home has been completely repaired (except for three doors)” or “any of the facts” in its motion for summary judgment. (Id. at 2). With regard to the builder board, it suggests that, if the repairs are complete, “it is obvious that this work will never be done.” (Id. at 3). Further, it states: “A claim for the [builder board] is in every single one of [the Stevens’ attorney’s] cases. Every one. Its sole purpose is to pay the fees of the attorney and public adjuster.” (Id. at 3 n. 4). Next, it argues that the proof-of-loss requirement, which is dispositive of a claim, “hold[s] the exact same legal status” as the language allowing payment of the amount actually spent because both are contained “within the exact same section of the SFIP (Article VII — General Conditions).” (Id. at 4). Additionally, Allstate argues, again, that the Stevens have “not even specified] repair costs for which they claim to have “lost’ receipts,” and thus are only entitled to those costs for which they have receipts *693and which is less than the amount already paid by Allstate. (Id. at 5). Nor, it argues, have the Stevens provided any specifics about the “ ‘substantial flood damages’ not yet repaired.” (Id. at 7). Last, Allstate contends that any estimate is irrelevant in assessing structural damage “because only the homeowners know what they actually repaired.” (Id. at 8).
III. LAW & ANALYSIS
A. Standard
Summary judgment is appropriate if the moving party can show “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.CivP. 56(a). Under Federal Rule of Civil Procedure 56(c), the moving party bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the moving party has met its Rule 56(c) burden, the non-moving party cannot survive a motion for summary judgment by resting on the mere allegations of its pleadings. See Prejean v. Foster, 227 F.3d 504, 508 (5th Cir.2000). “The 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 v. Liberty Lobby, Inc., 477 U.S. 242, 253, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Furthermore, “[t]he non-movant cannot avoid summary judgment ... by merely making ‘conclusory allegations’ or ‘unsubstantiated assertions.’ ” Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th Cir.2002) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)). In deciding a summary judgment motion, the court reviews the facts drawing all reasonable inferences in the light most favorable to the non-movant. Id. at 255, 106 S.Ct. 2505.
B. Analysis
Here, it is necessary to consider the SFIP that was issued by Allstate to the Stevens. SFIPs are governed by statute and Federal Emergency Management Agency (“FEMA”) regulations. Worthen v. Fid. Nat’l Prop. & Cas. Ins. Co., 463 Fed.Appx. 422, 426 (5th Cir.2012) (citing 42 U.S.C. § 4011(a)). Any interpretation of those regulations by FEMA also governs, as long as that interpretation is not inconsistent with the regulations or plainly erroneous. Id. (citing Stinson v. United States, 508 U.S. 36, 45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993)). SFIPs must be “ ‘strictly construed and enforced.’ ” Id. (quoting Gowland v. Aetna, 143 F.3d 951, 954 (5th Cir.1998)). “In addition, the insured is charged with constructive knowledge of the policy provisions and of the NFIP ... ‘regardless of actual knowledge of what is in the [regulations or of the hardship resulting from innocent ignorance.’ ” Id. (quoting Fed. Crop. Ins. Corp. v. Merrill, 332 U.S. 380, 385, 68 S.Ct. 1, 92 L.Ed. 10 (1947) (alteration in original)). Although federal law governs SFIPs, “general principles of state insurance law may be useful” in interpreting them. Id. at 425. Those general principles include:
(1) if the language of a policy is clear and unambiguous, it is accorded its natural meaning; (2) if the meaning of a policy provision is susceptible to different constructions, the one most favorable to the insured prevails; (3) insurance contracts are to be reasonably construed in accordance with the objective and intent of the parties; (4) in determining the most reasonable con*694struction of contested provisions, the court may draw from the provisions, the policy as a whole, and the apparent objectives of the parties in entering the contract; and (5) in the end, if the meaning of the policy terms remains unclear, the policy is generally construed in the insured’s favor to promote the policy’s objective of providing coverage.
Id. at 425-26.
Although the SFIP issued to the Stevens by Allstate “provides three methods for settling losses,” only the “replacement cost” provision is applicable in this instance. See 44 C.F.R. pt. 61, app. A(l), art. V(l). That provision is something of a misnomer in that it incorporates both a “replacement cost” approach and an “actual cash value” approach in settling claims.2 It provides:
The following loss settlement conditions apply to a single-family dwelling ...:
(a) [The insurer] will pay to repair or replace the damaged dwelling after application of the deductible and without deduction for depreciation, but not more than the least of the following amounts:
(1) The building limit of liability ...;
(2) The replacement cost of that part of the dwelling damaged, with materials of like kind and quality and for like use; or
(3) The necessary amount actually spent to repair or replace the damaged part of the dwelling for like use.
(c) When the full cost of repair or replacement is more than $1,000, or more than 5% of the whole amount of insurance that applies to the dwelling, [the insurer] will not be liable for any loss under [subsection (a) ] above ... unless and until actual repair or replacement is completed.
(d) [The insured] may disregard the replacement cost conditions above and make claim under this policy for loss to dwellings on an actual cash value basis. [The insured] may then make claim for any additional liability according to [subsections (a) and (c) ] above, provided [the insured] notifies the insurer] of [their] intent to do so within 180 days after the date of loss.
Id. art. VII(V)(2)(a)-(d).
Allstate asserts that its liability to the Stevens arises under subsection (a), without considering the other applicable subsections.3 In particular, subsection (c) provides that, if the repair or replacement cost is more than $1,000.00 or more than 5% of the policy limit, an insurer’s liability for that cost under subsection (a) will not accrue “unless and until actual repair or replacement is completed.” Id. art. VII(V)(2)(c). For this reason, Allstate’s interpretation of subsection (a) appears to be flawed, because subsection (a) is only applicable after the repair or replacement *695has been completed.4 As estimated by Allstate, the replacement cost of the damaged part of the Stevens’ house exceeds both $1,000.00 and $8,250.00 (that is, 5% of the $165,000.00 policy limit). Further, there is evidence and testimony to suggest that the replacement is not entirely complete. Accordingly, Allstate is not yet liable to the Stevens for the replacement cost under subsection (a). Thus, summary judgment is inappropriate under subsection (a).
That said, there may be another basis for its liability. Specifically, subsection (d) permits an insured to “disregard the replacement cost conditions [in subsections (a) and (c) ] and make a claim ... for loss to dwellings on an actual cash value basis.” Id. art. VH(V)(2)(d). The term “actual cash value” means the repair or replacement cost “less the value of physical depreciation.” Id. art. 11(B)(2). Under subsection (d), an insured may make a claim and receive the actual cash value of the damaged property immediately after the damage occurs. If the insured does not intend to repair or replace that property, the insurer’s liability will have been entire*696ly resolved. If the insured does intend to repair or replace it (and notifies the insurer of that intent within 180 days after the damage occurs), the insured may then make another claim for the difference between the actual cash value, under subsection (d), and the repair or replacement cost, under subsection (a). Although Allstate may later become liable to the Stevens for the replacement cost, it is currently only liable to them for the actual cash value.
Allstate argues that, because it paid the estimated replacement cost, only the conditions of subsection (a) apply. Ignoring the fact that there is nothing to suggest Allstate intended to make that payment pursuant to subsection (a), subsection (c) clearly indicates that an insurer’s liability for the replacement cost does not accrue until after that replacement is complete. Whatever Allstate called that payment, it must have been made under subsection (d) and been a payment for actual cash value of the damaged part of the property. At the time the damage occurred, Allstate estimated that the replacement cost would be $90,731.76 and, by subtracting $14,231.56 in depreciation, it estimated the that the actual cash value was $76,500.20. (Rec. Doc. 20-7 at 4). Taking the actual cash value of $76,500.20, it then subtracted the $1,000.00 deductible and added $8,632.56 in “recoverable” depreciation to reach $84,132.76, which was the amount it paid to the Stevens. (Id.).
For Allstate to prevail in a motion for summary judgment, it must demonstrate that there is no genuine issue that the actual cash value is less than the amount it paid.5 Because the actual cash value is ordinarily determined soon after damage occurs, it ordinarily is established via an estimate. The Stevens allege they have spent — and will need to spend — even more to restore the structure than the actual cash value that was paid by Allstate. Although they do not have documentation for everything they have spent so far, they have supplied testimony and evidence that demonstrates there is — at least — an issue of fact as to whether Allstate underpaid them for the actual cash value of the damaged part of their house.
Precedent makes clear that it is possible for the Stevens to rely on an estimate, as well as evidence and testimony, in establishing the actual cash value of the damaged part of their house. For instance, in Williams v. Allstate Indemnity Co., an insured sought an additional payment on its claim because repair costs had exceeded what the insurer had already paid. 359 Fed.Appx. 471, 474 (5th Cir.2009). The United States Court of Appeals for the *697Fifth Circuit found that summary judgment was appropriate where the only evidence or testimony the insured had provided merely established that a fraction of that amount had been spent on repair costs. Id. Without more, the insured was unable to overcome the insurer’s assertion that there was an absence of any evidence or testimony showing a genuine issue of material fact sufficient to defeat summary judgment. Id. In fact, the insured had also provided an estimate prepared by an expert and an affidavit that it could “not precisely estimate the structure damage loss but ... that, despite spending all the money from [the insurer], [they had ‘run] out of money to complete the repairs.’” Id. However, the Fifth Circuit did not consider the affidavit or estimate because each had been excluded by the district court.
Allstate relies on Lacroix v. State Farm Fire & Casualty Co. as support for the proposition that, once repairs are complete, estimates become irrelevant. No. 09-0609, 2010 WL 2265577 (E.D.La. June 2, 2010) (Duval, J.). However, in Lacroix, another section of this Court considered a motion in limine — not, as here, a motion for summary judgment — and decided to exclude part of an estimate prepared by an expert. Although it found the expert’s “failure to consider the actual cost of the [interior] repairs ... or to explain why those costs were not relevant in estimating the [interior] damages [was] troubling,” it was careful to explain that “those failures [did] not render his methodology unreliable.” Id. at *4. Instead, it premised its decision to exclude that part of the estimate because the party offering the estimate “conceded that the [interior] repairs ... had been completed” and further “did not assert that the [interior] repairs as completed had not restored the home to its condition prior to the storm.” Id. Thus, it excluded the part of the estimate concerning interior damage, which the parties agreed had been completely repaired, but allowed the part concerning exterior damage “which ha[d] not been repaired.”6 Id.
In Hillard v. Bankers Specialty Insurance, yet another section of this Court addressed a more analogous situation to that which is presented here. No. 13-0200, 2013 WL 5961104, *2 (E.D.La. Nov. 7, 2013) (Lemmon, J). In Hillard, the insured “paid less to repair her house than the amount [the insurer] paid her for the damage, and the policy cap[ed] recovery at ‘the necessary amount actually spent to repair or replace the damaged part of the dwelling for like use.’ ” Id. That section of this Court denied summary judgment on the basis that the insured’s contention “that the repairs were not completely of like kind and quality” and a “dispute regarding the builder’s board” formed genuine issues of material fact. Id. This, to the extent that parties dispute whether completed repairs have restored a house to its pre-damaged condition, the decision in La-croix suggests that an estimate is admissible and the decision in Hillard suggests that summary judgment is inappropriate.
Here, the Stevens have at least raised a question as to whether the repairs are complete, as Mr. Stevens’ testimony demonstrates:
Q: Okay. What work remains to be done on your house?
A: Well, I have to — well, there’s still some painting that needs to be done. I need to have the rest of *698those windows replaced, and let me think. I need to replace my appliances that’s running on one leg, I guess you could say. Let’s see. I got to get my water softener. I got to get that replaced. We still have some trim work to do.
Q: Anything else that still needs to be done?
A: I got to replace them two doors. I got to replace the sliding door in the garage and that walk-in door. I got to replace that, and the framing work for it, the walk-in door, because all that is falling apart now.
Q: Anything else?
A: Well, if I miss, I’m sure she’ll bring it up.
(Ree. Doc. 20-11 at 44-45). This testimony, as well as the rest of the record before the Court, demonstrates that there is a genuine issue of material fact as to whether the repairs the Stevens made to their house have completely restored it to its pre-damaged condition. Further, the Stevens have provided competent evidence and testimony — in the form of their depositions and other materials — that demonstrates a dispute as to whether the actual cash value of their house exceeded the amount that Allstate paid.
Neither is the Court persuaded by Allstate’s argument that judicial economy necessitates shifting the burden in this case and others like it. Specifically, Allstate states in its reply:
Today, there are approximately 180 Hurricane Isaac NFIP cases pending in the Eastern District of Louisiana. Approximately 75 of these are set for trial within just the next four months. The great majority of these cases involve claims where the home has already been repaired, and repaired for a cost that is lower than what has already been paid in federal funds under the NFIP. Yet the plaintiffs in these cases still persist in claiming that they are entitled to recover even more federal funds under this Program. It is the crux of this Motion for Summary Judgment to test the propriety of such claims, and to test when those claims have been sufficiently presented so as to establish a plaintiffs’ right to trial upon the merits in federal court.
(Rec. Doc. 32 at 1).
Specifically, Allstate suggests that the insureds should be required to establish— presumably through receipts and similar documentation — that the damage to their houses exceeded what they were paid by the insurer. It asks whether allowing the insureds to simply testify as to what they have spent or -will need to spend is “a proper foundation for more than 100 NFIP trials.” (Id. at 4). The import of its argument is that it would be onerous to require that the repair cost, which is a material fact, be established at trial.
The Court is disinclined to increase the Stevens’ burden on summary judgment simply because it would be more convenient for Allstate — or, for that matter, the Court. The fact that there are more than 100 similar cases pending does nothing to alter the significance of each. The Stevens seek only to recover that which they are owed under their contract with Allstate. They have been placed in the unenviable position of having to repair their own house after a catastrophic event and, if their allegations are sound, they have painstakingly worked to repair that house with less than the necessary resources. This is not to say that there may be instances in which an insured is incapable of meeting its burden on summary judgment, *699only that the Stevens’ burden should not be — nor could be — increased merely because they are two among many others.
IV. CONCLUSION
For these reasons, IT IS ORDERED that Allstate’s motion for summary judgment (Rec. Doc. 20) is DENIED.
. They also have indicated that they largely performed the repairs themselves.
. Customarily, the actual cash value approach allowed immediate payment regardless of whether repairs had been made or would be made, whereas the replacement cost approach allowed payment only after repairs had actually been made. See Need for Replacement to Actually Be Made, 12 Couch on Ins. § 176:59 (3d ed.). Stated differently, the actual cash value approach is unlike the replacement cost approach because it "makes the insured responsible for bearing the cash difference necessary to replace old property with new property.” Introduction; Types of Provisions, 12 Couch on Ins. § 176:56 (3d ed.). Further, the replacement cost may well exceed the actual cash value. Id.
. Neither subsection (b), which addresses circumstances where a "dwelling is rebuilt at a new location,” nor subsection (e) are applicable here. Id. art. VII(V)(2)(b), -(2)(e).
. Subsection (a) permits the payment of the lesser of these amounts: first, the policy limit; second, “[t]he replacement cost of that part of the dwelling damaged, with materials of like kind and quality and for like use”; and third, "[t]he necessary amount actually spent to repair or replace the damaged part of the dwelling for like use.” 44 C.F.R. pt. 61, app. A(l), art. VII(V)(2)(a). Setting aside the first condition, the distinction between the others cannot be, as Allstate suggests, that the second condition is used to determine the cost before the repair or replacement occurs and the third applies after. Subsection (c) precludes consideration of any of these conditions unless and until the repair or replacement is complete, therefore each must apply after the repair or replacement occurs.
Instead, there must be some other distinction that exists. Importantly, the second condition contemplates the repair or replacement of the damaged part of the dwelling "with materials of like kind and quality and for like use," whereas the third condition contemplates the same merely "for like use." Id. art. VII(V)(2)(a). The principle unius est ex-clusio alterius — that is, the expression of one thing necessitates the exclusion of the other— dictates that the phrase “with materials of like kind and quality” is intended to apply to the second condition and not the third. Couch on Insurance bolsters this reading, explaining that, "[w]hen the provision provides alternate recoveries, and only one specifically contemplates similarity and the like, that requirement is not imported into the other alternatives.” Similarity Between Original and Replacement Property, 12 Couch on Ins. § 176:65 (3d ed.). The other significant difference between the second and third conditions is that the latter uses the phrase "necessary amount actually spent” to describe the amount, whereas the second condition does not. In addition to the language itself, it is useful to consider the purpose of subsection (a), which is to hold the insurer's liability for the repair or replacement cost to the lesser amount.
Considering all this, the meaning of the second and third conditions is apparent. The second condition limits the insurer’s liability to an estimated cost, calculated with materials of like kind and quality, instead of an imprudent insured's actual cost, amassed using materials of better kind and quality. For this reason, the term "actually spent” is omitted from the second condition because that condition only considers what the insured should have spent, not what the insured actually spent. The third condition limits the insurer’s liability to the insured's necessary, actual costs. This condition seems to contemplate a situation in which the estimated cost under the second condition is larger than the actual cost, but where the actual cost includes some costs not covered by the policy. For instance, a situation in which an insured has repaired the damaged part of their house using materials of worse kind and quality and then made improvements to undamaged part of their house. In such an instance, the insurer's liability may be limited to the necessary amount actually spent, not the amount actually spent. Thus, the term "necessary” is inapplicable to the second condition, which contemplates the estimated cost of repairing or replacing the damage.
. Allstate seems to suggest that the Stevens, not it, carry the burden of proof. In so suggesting, Allstate draws not from the precedent of the United States Eastern District of Louisiana or the United States Court of Appeals for the Fifth Circuit, but instead from a report and recommendations by a special master in the United States District Court for the District of Maryland. That may be so at trial, however it is not with regard to summary judgment. In considering a motion for summary judgment, the facts are construed in the view most favorable to the non-movant (that is, the Stevens). Accordingly, any genuine issue of material fact will preclude summary judgment. That said, if the movant has established an absence of any evidence or testimony supporting the non-movant’s claim, the non-movant bears the limited burden of "identify[ing] evidence [or testimony] showing a genuine issue of material fact sufficient to preclude summary judgment.” Williams v. Allstate Indem. Co., 359 Fed.Appx. 471, 474 (5th Cir.2009). At trial, the Stevens will need to establish the actual or estimated costs for which they seek additional recovery from Allstate beyond what it has already paid. On summary judgment, the Stevens merely need to identify some evidence or testimony in support of their claim for additional recovery beyond what was already paid.
. It is not clear whether the unexcluded part of the estimate concerned damage for which repairs had begun (but not completed) or for which repairs had not begun. The order only states that "the damages, except some exterior damage to the siding had been repaired." Lacroix, 2010 WL 2265577, at *1 (emphasis added). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217210/ | PER CURIAM.
Claude Gerald Dennis seeks to appeal the district court’s order denying relief on his motion filed under 28 U.S.C. § 2255 (2000). An appeal may not be taken from the final order denying a motion under § 2255 unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue for claims addressed by a district court on the merits absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). We have independently reviewed the record and conclude that Dennis has not made the requisite showing. See Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003).
Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217211/ | PER CURIAM.
Varden M. Grandison appeals the district court’s order denying his February 2003 motion for reconsideration of a sentence imposed in March 2002.* We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Grandison, No. CR-01-126 (E.D.Va. Feb. 18, 2003). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
To the extent Grandison’s informal brief raises additional claims not directly related to the denial of his motion for reconsideration, this court is without jurisdiction to consider them. See Browder v. Director, Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) (holding that period for filing notice of appal is "mandatory and jurisdictional”). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217212/ | PER CURIAM.
Frank Robert Schlaepfer, Jr., a state prisoner, seeks to appeal the district court’s order denying relief on his petition filed under 28 U.S.C. § 2254 (2000). This Court may only grant a certificate of appealability if the appellant makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2) (2000). We have independently reviewed the record and conclude Schlaepfer has not made a substantial showing of the denial of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Accordingly, we deny a certificate of appealability and dismiss the appeal. We deny Schlaepfer’s motion to proceed in forma pauperis on appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217213/ | PER CURIAM.
Dr. James Zelch appeals the district court’s grant of summary judgment to Americorp Financial enforcing personal guaranties signed by Zelch. Americorp Financial, a Michigan corporation, is in the business of providing “finance leases” for funding the acquisition of medical equipment. Americorp filed an action in district court to enforce three personal guaranties signed by Zelch. These guaranties were used to secure finance leases from Ameri*926corp in order to provide equipment for two start-up medical imaging companies in which Zelch had an interest.
Zelch, a medical doctor who is board certified in radiology, has owned or had an interest in over twenty magnetic imaging companies organized and operated in ten different states. In May of 1996 Zelch signed a Master Lease Guaranty personally guaranteeing the debt of Tri-Imaging, Inc., a new start-up, in the event it defaulted. Zelch signed this Master Lease Guaranty, drafted on Americorp letterhead, to enable a business promoter, Randy Mont-rose, to engage in lease negotiations on behalf of Tri-Imaging. Although Zelch signed this guaranty, Zelch states that he told Montrose not to deliver the guaranty until all of the business details for starting the operation of the imagining center had been completed. Zelch did not, however, convey this limitation on Montrose’s authority to anyone other than Montrose himself. Apparently ignoring Zelch’s instructions, Montrose delivered the signed guaranty and secured lease financing with Americorp for the equipment to be used by Tri-Imaging, Inc.
On receiving a request from Americorp in August of 1996 to execute another guaranty in order to secure a lease supplement, Zelch signed a second guaranty and sent it to Montrose with a cover letter stating he thought he was a twenty-five percent owner of Tri-Imaging, Inc., and that his signature was conditioned on the accuracy of this assumption. Although this Master Lease Guaranty was also on Americorp letterhead, Zelch never notified Americorp of any limitation on or condition attached to his guaranty.
Finally, several months later a third guaranty on Americorp letterhead and signed by Zelch was executed to secure lease financing for a second start-up, Medical Imaging Systems of Binghamton. Though Medical Imaging Systems of Binghamton never formally came into existence, a lease between Americorp and Medical Imaging Systems was executed in January of 1997. This time another promoter, Anthony Defoe, negotiated with Americorp. Zelch denies having any recollection of guaranteeing this specific lease. He does admit, however, that he may have signed a Master Lease Guaranty at the request of his business partners that could have been used for this purpose. Zelch was also aware in 1995 that Anthony Defoe, and perhaps others, were interested in developing an imaging center in either Ithaca, Huntington, or Binghamton, New York.
Both Tri-Imaging and Medical Imaging defaulted on their lease obligations. Americorp did not act to enforce the personal guaranties until a year and a half later when it filed this action. The amount of indebtedness at issue is approximately two million dollars.
This court reviews the district court’s grant of summary judgment de novo. Monette v. Electronic Date Sys., 90 F.3d 1173, 1176 (6th Cir.1996). “Summary judgment is appropriate where there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a mater of law.” Fed.R.Civ.P. 56(c). In determining whether summary judgment is proper, we view the facts and any reasonable inferences drawn from those facts in a light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).
Because this is a diversity action, Michigan law governs the interpretation of the three guaranties. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Under Michigan law, a “contract of guaranty” is interpreted according to the rules of contract. First *927Nat’l Bank of Ypsilanti v. Redford Chevrolet Co., 270 Mich. 116, 258 N.W. 221, 223 (1935). On examining all three Master Lease Guaranties, we find no ambiguity. They are straightforward, clear, concise and complete on their face. There are no allegations that Americorp either participated in or was aware of any fraudulent activity on behalf of any of the beneficiaries of the lease agreements. Zelch signed all three guaranties indicating assent, and Americorp provided consideration. Thus, the contracts were duly executed; therefore they are enforceable. See Director of Bureau of Workers’ Disability Comp. v. Durant Enters., Inc., 195 Mich.App. 626, 491 N.W.2d 584 (1992) (holding when a guaranty is properly executed, a guarantor is liable for his guaranty); see also Amtower v. William C. Roney Co., 232 Mich.App. 226, 590 N.W.2d 580, 583-84 (1999) (holding that “where the language of a contract is clear and unambiguous,” the contract is executed according to its plain sense and meaning).
These Master Lease Guaranties signed by Zelch did not have any express language noting the oral conditions that Zelch allegedly placed on Montrose and/or Defoe. This is true, moreover, despite the fact that Zelch was aware that all of the guaranties were on Americorp letterhead and on at least one occasion, Zelch received the guaranty from Americorp directly and returned the executed guaranty directly to Americorp. Furthermore, Americorp asserts that it is unaware of any new conditions arguably modifying the signed written agreement, and Zelch offers nothing to rebut that assertion. It is a basic principle that if delivery of the agreement is conditional, the lender is bound by those conditions only if the lender knows about them. See Wilson Leasing Co. v. Seaway Pharmacol Corp., 53 Mich.App. 359, 220 N.W.2d 83, 85 (1974) (holding if a guaranty is unilaterally amended without notifying the other parties, the original guaranty still controls).
These purported oral conditions of which Americorp was unaware in no way challenge the fact that there was mutual assent to the signed written guaranty. Rather, a meeting of the minds is necessary to modify a binding contract. See Port Huron Educ. Ass’n MEA/NEA v. Port Huron Area School Dist., 452 Mich. 309, 550 N.W.2d 228, 238 (1996). Here, there was no meeting of the minds between Americorp and Zelch concerning the oral conditions Zelch placed on Montrose.
Zelch offers several arguments in his defense. First, Zelch argues that, according to the rules of agency, Montrose and/or Defoe had no authority to bind Zelch. This argument is misplaced. A question of agency would come into the analysis if Zelch were challenging the specifics of Montrose’s negotiations with Americorp, or if Zelch had somehow authorized Montrose to sign the personal guaranty on his behalf. However, Americorp’s action does not concern the substance of what Montrose negotiated on Zelch’s behalf. Rather, Americorp’s action involves the enforcement of contracts of guaranty knowingly signed by Zelch. Certainly, Zelch may have a valid claim against Montrose and Defoe; however, these disputes do not concern what is at issue in Americorp’s enforcement action.
Zelch also argues that Americorp’s failure to conduct due diligence before entering the lease transactions and after the default released Zelch from the guaranties. There is no authority under Michigan law for this novel proposition. Furthermore, on reviewing the record, it is clear that Americorp did examine the commercial reasonableness of these leasing transactions before it executed them. As for the post-default due diligence argument, the *928language of the guaranty states “each of the undersigned waives notice of acceptance hereof and of presentment, demand, protest, and notice of nonpayment or protests as to any note or obligation signed, accepted, endorsed or assigned to you by said lessee.” This language indicates that Americorp had no duty to conduct post-default due diligence or to notify Zelch of any lack of performance under the lease.
Finally, Zelch argues that the district court lacked subject matter jurisdiction because there was not complete diversity among the defendants—defendant Defoe is domiciled in the State of Michigan. Americorp voluntarily dismissed Defoe when Defoe filed for Chapter Seven bankruptcy proceedings. Consequently, this issue is moot and the alleged diversity defect has been cured by Americorp’s actions. Even so, a diversity defect may be cured by dismissing a dispensable party, and both district and appellate courts have the authority to do this. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832-836, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989). Defendant Defoe did not sign the personal guaranties which Americorp is seeking to enforce. Under Rule 19 of Federal Rule of Civil Procedure, Defoe is a dispensable party and thus would be appropriately dismissed from the action.
The judgment is affirmed. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217214/ | ORDER
Anthony Boyd, a Michigan prisoner proceeding pro se, appeals a district court order denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
On May 6, 1994, a jury found Boyd guilty of second-degree murder and felony firearm. Boyd was sentenced to serve two years of imprisonment for felony firearm and twenty to forty years of imprisonment for murder, to be served consecutively in that order. The Michigan Court of Appeals affirmed Boyd’s convictions on July 23, 1996, and denied his petition for rehearing on October 4, 1996. On July 25, 1997, the Michigan Supreme Court denied Boyd’s application for leave to appeal. Boyd did not pursue post-conviction relief.
In his § 2254 petition for a writ of habeas corpus, signed on September 15, 2000, and filed on October 19, 2000, Boyd raised eight grounds for relief. A magistrate judge filed a report recommending that Robinson’s motion for summary judgment be granted based upon the magistrate judge’s determination that Boyd’s petition was barred by the AEDPA’s statute of limitations. Over Boyd’s objections, the district court accepted the magistrate judge’s report and recommendation and denied Boyd’s habeas corpus petition. Boyd filed a notice of appeal. The district court subsequently denied Boyd’s motion for reconsideration and granted a certificate of appealability “on the question of whether [Boyd’s] counsel’s outrageous behavior provides a basis for equitable tolling of the statute of limitations for his habeas petition.” Boyd’s motion to alter or amend the judgment was subsequently denied by the district court.
We review de novo the district court’s disposition of a habeas corpus petition. Cook v. Stegall, 295 F.3d 517, 519 (6th Cir.2002); Payton v. Brigano, 256 F.3d 405, 407-08 (6th Cir.2001). Such review indicates that the district court properly denied Boyd’s petition.
The AEDPA contains a one-year statute of limitations period during which a § 2254 federal habeas corpus petition must be filed. 28 U.S.C. § 2244(d)(1). The statute of limitations begins to run from the latest of four circumstances, one of which is “the date on which the [state court] judgment became final by the conclusion of direct review.” 28 U.S.C. § 2244(d)(1)(A). The ninety-day period during which a petitioner may seek review of his conviction in the United States Supreme Court is counted under § 2244(d)(1)(A). Lambrix v. Singletary, 520 U.S. 518, 527, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997); Isham v. Randle, 226 F.3d 691, 695 (6th Cir.2000). The one-year period of limitations is tolled, however, by the amount of time that “a properly filed application for State post-conviction or oth*930er collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2).
Boyd’s state court convictions became final on October 25,1997, ninety days after the Michigan Supreme Court denied his application for leave to appeal on July 25, 1997. Thus, Boyd had one year from October 26, 1997, see Bronaugh v. Ohio, 235 F.3d 280, 285 (6th Cir.2000) (the one-year statute of limitations begins to run the day after a petition for writ of certiorari was due in the United States Supreme Court), or until October 26,1998, to file his habeas corpus petition. See 28 U.S.C. § 2244(d)(1). Boyd’s habeas corpus petition was not signed until September 15, 2000, see Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), well beyond the one-year time period permitted for filing such a petition.
Boyd argues that the one-year limitations period should be equitably tolled due to retained counsel’s failure to perfect and file a state post-conviction motion on his behalf. The one-year statute of limitations period set forth in § 2244(d) is subject to equitable tolling. See Dunlap v. United States, 250 F.3d 1001, 1004-07 (6th Cir.2001) (habeas corpus petition filed pursuant to § 2255). However, “equitable tolling relief should only be granted sparingly” and the applicability of such relief “must be decided on a case-by-case basis.” Cook, 295 F.3d at 521.
Upon review, we conclude that Boyd is not entitled to equitable tolling of the AEDPA’s statute of limitations. First, Boyd does not argue that he was unaware of the time limitation for filing his federal habeas corpus petition. Second, despite his argument to the contrary, Boyd made no showing that he exercised diligence in pursuing § 2254 habeas corpus, as opposed to state post-conviction, relief. Third, there is no evidence that counsel’s alleged conduct prevented Boyd from filing his habeas corpus petition prior to the expiration of the AEDPA’s statute of limitations.
We further conclude that equitable tolling is not warranted in this case based upon Boyd’s contention that he is actually innocent of the crime for which he was convicted. In order to assert a colorable showing of actual innocence, Boyd must present “new rehable evidence” demonstrating his innocence “that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Even if the AEDPA’s statute of limitations could be excused because of a petitioner’s actual innocence, Boyd, admittedly, has not submitted any new rehable evidence demonstrating his innocence.
Boyd’s habeas corpus petition is barred by the AEDPA’s statute of limitations. Accordingly, the district court’s order is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217215/ | OPINION
MOORE, Circuit Judge.
Plaintiff-Appellee Dr. Francis Roy (“Roy”) entered a fixed-term employment contract with Defendant-Appellant Bledsoe Community Hospital, Inc. (“Hospital”). Pursuant to the contract, Roy was obligated to provide some emergency room coverage. Initially, he covered the emergency room during the daytime on weekdays only when he would be on-call in the evening, but he subsequently agreed to do so even when he was not on-call in the evening. According to Roy, he provided such coverage on a temporary, voluntary basis, as a favor to the Hospital. According to the Hospital, Roy was required to provide this coverage pursuant to a modification of his employment contract. When Roy refused to continue providing this coverage, the Hospital terminated him.
Roy brought suit against the Hospital for breach of contract and conversion. After a jury trial, the district court entered judgment for Roy on both counts. The Hospital appeals, claiming that there was *932insufficient evidence to support the jury’s verdict that the Hospital breached its contract with Roy. Because there is sufficient evidence on the record for the jury to accept Roy’s interpretation of the contract, we AFFIRM the district court’s judgment with respect to the breach of contract claim.
I. FACTS AND PROCEDURE
Roy and the Hospital entered a written agreement outlining the terms of his employment on November 5, 1999. William Keith Smith (“Smith”), the Hospital’s Chief Executive Officer, drafted the following agreement:
Welcome to Bledsoe and to The Family Care Center. The following points will summarize a final offer of employment with our facility:
• $120,000 per year salary as an employee income guarantee
• Benefit package for a full-time employee including medical insurance
• one year contract beginning January 1, 2000
• 20 days per year paid time off for vacation, holiday, sick leave, CME, etc.
• compensation every two weeks, with all applicable taxes withheld
• working full time in Clinic with FNP, arranging for some extended hours and Saturday A.M. coverage between the two Practitioners
• long range beeper provided for you at no cost
• paid Malpractice Insurance
• $10,000 up front money to cover sign-on bonus, moving expenses, and CME
• at end of 1 year you will be given the practice and presently existing equipment
• ER schedule/rotation
• at the end of the first year, a settlement will be made with profits from the Clinic being split on a 50/50 basis (all revenue of clinic—expenses). You will be given monthly report of statistics.
If you agree with the above terms, please sign both copies of this summary and return one to us.
J.A. at 17. Roy and Smith signed the “summary,” and it became a valid and binding contract. The parties agree, however, that the written contract did not set forth all terms of Roy’s employment.
The parties dispute the significance of Roy’s contractual obligation to participate in the “ER schedule/rotation.” According to Roy, Smith explained during negotiations that Roy would simply provide emergency room coverage on evenings and weekends as an independent contractor. According to Smith, Roy was required to provide weekday daytime emergency room coverage as well, at least when he was scheduled to cover the evening rotation. In fact, initially Roy provided only occasional emergency room coverage on nights and weekends.
The parties also disagree about whether they modified Roy’s employment contract to require additional emergency room coverage. Soon after Roy began work, Smith asked Roy to provide backup emergency room coverage regularly during weekdays. According to Roy, Smith indicated that this was a “temporary back-up measure,” and that Roy would be doing Smith a favor. J.A. at 110 (Roy Direct). According to Smith, Roy agreed to modify his employment contract to include this obligation. Although Roy would not receive additional compensation for the sendee, under Smith’s view, Roy would have an opportunity to develop his practice at the Hospital’s Family Care Center by working with emergency room patients.
*933Roy summarized the proposed arrangement in writing and submitted it in the form of handwritten notes to Smith:
[T]his will change the way that we have provided ER coverage in the past. The local doctors will be responsible for seeing their true emergency patients during the hours of 7:00 a.m. to 6:00 p.m. Dr. Roy will be available to provide coverage to the ER during those hours if there is no other coverage.
J.A. at 78-79 (Roy Notes). The Hospital maintains that this was a written modification of the employment contract. However, both parties concede that this was only Roy’s draft of a proposed Hospital policy, which was never formally implemented.
Shortly after Roy began providing additional emergency room coverage, he had disagreements with two hospital officials, Chief Financial Officer Stephanie Boynton (“Boynton”) and Chief Nursing Officer Frances Killian (“Killian”). Roy felt that Boynton and Killian had usurped his authority at the Hospital. One day Roy simply refused to come see emergency room patients, allegedly explaining to Killian “that since [she] had decided to micromanage everything, that [she] could just manage the emergency room patients, also.” J.A. at 219 (Killian Direct). Roy also informed Smith that “Dr. Stephanie” or “Dr. Fran” could see the patients. J.A. at 117-19 (Roy Direct). According to Smith, Roy “said he felt like [Boynton and Killian] had undermined his authority and usurped his authority to the point that he couldn’t treat patients in the emergency room any longer.” J.A. at 241 (Smith Direct). Smith instructed Roy twice to the see the patients, but Roy did not.
The Hospital terminated Roy’s employment the following day, identifying only Roy’s refusal to see emergency room patients as a cause for termination. The Hospital did not return any of Roy’s personal property for nearly two months, and allegedly has yet to return all of his property.
Roy brought suit in state court against the Hospital for breach of contract and conversion. The Hospital removed the case to federal court on diversity grounds.
A jury trial was held on May 29, 2001. Following the testimony of Roy, Smith, Boynton, and Killian, the trial judge submitted the case to the jury. The jury instructions stated, in part:
Roy claims that Bledsoe Community Hospital breached a one-year employment contract by terminating him without cause. To terminate a contract for a specific employment term, such as the one between Roy and Bledsoe Community Hospital, the terminating party must have good cause to do so....
.... The Hospital discharged Roy without good cause if the employment contract, either as written or as orally modified, did not require him to treat the Hospital’s emergency room patients during normal daytime work hours. If, on the other hand, you find the employment contract, either as written or orally modified, required Roy to perform emergency room services during normal daytime work hours, then you will find that Roy was discharged with good cause, and Roy cannot recover on his contract claim.
J.A. at 266-68 (Instr.).
The jury found that the Hospital was liable to Roy for $155,000 for breach of contract and $2,000 for conversion. The Hospital filed a motion for judgment as a matter of law or, in the alternative, a new trial, and the district court denied the motion. The Hospital appeals, arguing that *934there was insufficient evidence to hold the Hospital hable for breach of contract.1
II. ANALYSIS
A. Questions Submitted to the Jury
The Hospital argues that the district judge improperly submitted the issue of contract interpretation to the jury because it was a question of law, not a question of fact. Where a written contract is unambiguous, its interpretation is a question of law to be resolved by the court. Hibernia Bank & Trust Co. v. Boyd, 164 Tenn. 376, 48 S.W.2d 1084, 1086 (.1932). However, where a written contract is ambiguous, its interpretation is a question of fact that should be submitted to the jury. Hendrix v. City of Maryville, 58 Tenn. App. 457, 431 S.W.2d 292, 297 (1968).
The district judge “found the term ‘ER sehedule/rotation’ and the nature of Roy’s obligation to provide ER coverage ambiguous” and left the question for trial. J.A. at 57. We review this determination de novo because it is a question of law. Tennessee Consol. Coal Co. v. United Mine Workers of Am., 416 F.2d 1192, 1198 (6th Cir.1969), cert. denied, 397 U.S. 964, 90 S.Ct. 999, 25 L.Ed.2d 256 (1970). Under Tennessee law, the language of a contract is ambiguous if it “is susceptible of more than one reasonable interpretation.” Memphis Hous. Auth. v. Thompson, 38 S.W.3d 504, 512 (Tenn.), cert. denied, 534 U.S. 823, 122 S.Ct. 59, 151 L.Ed.2d 27 (2001). But ambiguity “does not arise in a contract merely because the parties may differ as to interpretations of certain of its provisions.” Johnson v. Johnson, 37 S.W.3d 892, 896 (Tenn.2001) (quotation omitted). “A contract is ambiguous only when it is of uncertain meaning and may fairly be understood in more ways than one.” Warren v. Metropolitan Gov’t, 955 S.W.2d 618, 623 (Tenn.Ct.App.1997).
The district court summarized the “widely divergent meanings” that Roy and the Hospital ascribed to the “ER schedule/rotation” clause as follows:
According to [the Hospital], “ER schedule/rotation” shows Roy agreed from the inception of his employment to see ER patients during the daytime hours on weekdays when he was scheduled for nighttime ER duty. Roy disagrees, maintaining he never agreed to any daytime ER coverage prior to beginning work. According to Roy, the term “ER sehedule/rotation” refers solely to his providing nighttime and weekend coverage on a rotating basis.
J.A. at 56 (D. Ct. Mem. Op. April 25, 2001). We agree that no certain meaning can be discerned from the phrase “ER schedule/rotation.” In fact, the parties’ divergent views demonstrate that the term can fairly be understood in at least two ways. Therefore, we agree with the district court that this written term is ambiguous and conclude that the issue of contract interpretation was properly submitted to the jury.2
B. Sufficiency of the Evidence
“[I]n diversity cases the federal courts are bound by state law in determining whether there is sufficient evidence to support a jury’s verdict.” Gold v. Nation*935al Sav. Bank, 641 F.2d 430, 434 (6th Cir.), cert. denied, 454 U.S. 826, 102 S.Ct. 116, 70 L.Ed.2d 100 (1981). Under Tennessee law, when a court evaluates the sufficiency of the evidence, “all the evidence for the prevailing party must be taken as true. Moreover, all reasonable inferences favorable to the prevailing party must be made and all countervailing evidence must be disregarded.” Id. If a court finds “evidence from which a trier of facts, if he were inclined to believe it, could reach the conclusion reached, then, the judgment based thereon must be affirmed.” Hohenberg Bros. Co. v. Missouri Pac. R. Co., 586 S.W.2d 117, 119-20 (Tenn.Ct.App.1979). An appellate court can reverse a verdict only if it “finds that a reasonable mind could reach only one conclusion and that conclusion is contrary to the verdict.” Holloway v. Collier, 969 S.W.2d 407, 408 (Tenn.Ct.App.1997).
The jury found that Roy “proved by a preponderance of the evidence defendant Bledsoe Community Hospital breached the employment contract by terminating him without good cause.”3 J.A. at 276 (Jury Verdict). Because the Hospital would not be in breach of contract for terminating an employee who failed to perform his contractually required duties, the jury must have concluded that Roy was not contractually obligated to provide daytime emergency room services. We conclude that, as a matter of law, there was sufficient evidence on the record for a jury to reach this conclusion.
The employment contract provides that Roy will participate in the “ER schedule/rotation,” but does not describe the obligation. According to Roy, Smith explained this provision to mean that Roy “would pull coverage in the evening and on weekends.” J.A. at 105 (Roy Direct). Roy and Boynton testified that the contract did not oblige Roy to provide emergency room coverage during weekday daytime hours. Furthermore, the Hospital stipulated that Roy had at all times “performed his duties under and pursuant to said contract, as a licensed, practicing physician.” J.A. at 62 (Final Pretrial Order). If the jury was inclined to believe this evidence, it could conclude that the initial contract did not require daytime emergency room services.
There is also sufficient material evidence to support the jury’s finding that the employment contract was not modified to require Roy’s provision of daytime emergency room coverage. Under Tennessee law, a contract can be modified by subsequent agreements, documents, or actions, as long as there was a meeting of the minds and consideration was present. Prudential Secs., Inc. v. Mills, 944 F.Supp. 631, 635 (W.D.Tenn.1996). Roy testified that he began to provide daytime emergency room coverage “when [Smith] came sort of on the side and asked me if I would do him a favor and take care of patients during the day but only as a temporary back-up measure.” J.A. at 110 (Roy Direct). Roy suggests that his conduct never manifested a meeting of the minds about modifying his employment obligations. Furthermore, Roy testified that his written plan for altering emergency room coverage was simply a proposal that might become policy if approved by the medical staff. Even Smith described Roy’s letter as “just sort *936of Ms ideas about how we couM work ... out” inefficiencies in daytime emergency coverage. J.A. at 170-71 (Smith Direct). Smith never formally implemented the policy. This evidence is sufficient for a reasonable juror to conclude that Roy was not obligated to provide daytime coverage in the emergency room and was therefore free to discontinue his voluntary service.
Therefore, we conclude that there was sufficient evidence for the jury to conclude that the Hospital lacked good cause to terminate Roy’s employment and breached the employment contract by doing so.
III. CONCLUSION
For the above reasons, we AFFIRM the judgment entered by the district court.
. The Hospital does not contest its liability for conversion or the amount of damages awarded by the jury.
. The district court also appropriately submitted to the jury the question of whether Roy’s employment contract was modified to require daytime emergency room coverage. "Whether a contract has been modified by the parties is a question of fact for the trier of fact.” Glanton v. Shelby Ins. Co., 1996 WL 82678, at *3 (Tenn.Ct.App. Feb.28, 1996) (quotation omitted).
. Neither party objected when the district court instructed the jury that a finding of good cause turned on whether the contract required Roy to perform weekday daytime emergency room services. Therefore, we need not consider the Hospital’s argument on appeal that, regardless of Roy’s contractual obligations, there was good cause because Roy disobeyed orders from his superior and refused to see patients requiring emergency medical attention. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217217/ | ORDER
Patrick Liddell, a pro se federal prisoner, appeals a district court order dismissing his petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2241. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. RApp. P. 34(a).
In 1997, Liddell pleaded guilty to violating 21 U.S.C. § 841(a)(1). He was sentenced to 168 months of imprisonment. Liddell’s direct appeal was dismissed for failure to pay the required filing fee. Lid-dell then filed a motion to vacate his conviction under 28 U.S.C. § 2255. That motion was denied and Liddell did not appeal the district court’s decision. Liddell subsequently filed a motion to correct and amend the judgment. That request was denied by the district court and Liddell did not appeal the decision.
Liddell then filed his request for habeas corpus relief under § 2241 claiming that: 1) his attorney was ineffective; 2) his plea was not knowingly and voluntarily made; 3) the government was bound by a plea agreement; 4) the government breached its plea agreement; 5) the district court misapplied the sentencing guidelines by not allowing him credit for acceptance of responsibility; 6) he was not entitled to have his sentence enhanced; 7) the district court erred by imposing a fine; and 8) the district court lacked jurisdiction to accept the plea as the indictment failed to include *944the amount of drugs involved. The district court dismissed the petition as meritless. In his timely appeal, Liddell raises the same issues which he presented to the district court.
The district court’s order is reviewed de novo. See Charles v. Chandler, 180 F.3d 753, 755 (6th Cir.1999).
The district court properly dismissed Liddell’s petition. Under highly exceptional circumstances, a federal prisoner may challenge his conviction and imposition of sentence under § 2241, instead of § 2255, if he is able to establish that his remedy under § 2255 is inadequate or ineffective to test the legality of his detention. Id. at 755-56. It is the prisoner’s burden to prove that his remedy under § 2255 is inadequate or ineffective. Id. at 756.
Charles concluded that the courts have permitted prisoners to submit claims of actual innocence that would otherwise have been barred under § 2255. Id. at 756-57. Because the petitioner had failed to submit a facially valid claim of actual innocence in Charles, the court withheld judgment as to whether a claim of actual innocence would permit a petitioner to have a second opportunity for § 2255 relief. Id. at 757.
Liddell has not satisfied this burden for two reasons. First, Liddell does not cite to an intervening change in the law which reflects that he may be actually innocent of his crimes. Unlike other prisoners who have obtained review of their claims because they did not have a prior opportunity to present their claims on appeal or in a prior § 2255 motion to vacate, Liddell has had opportunities to challenge his conviction and sentence. The district court properly dismissed Liddell’s § 2241 petition because his asserted claims do not constitute claims of actual innocence. Id.
Second, Liddell’s remedy under § 2255 is not rendered deficient for any other reason under the circumstances of this case. As the court explained in Charles, the remedy under § 2255 is not rendered inadequate or ineffective simply because the prisoner has been denied relief under § 2255, because the prisoner may be denied permission to file a second or successive motion to vacate, or because the prisoner has allowed the one-year statute of limitations to expire. Id. at 756-58. The remedy afforded under § 2241 is not an additional, alternative, or supplemental remedy to that prescribed under § 2255. Id. at 758.
Accordingly, we affirm the district court’s order. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217218/ | ORDER
Dwayne E. Wilson, Sr., an Ohio prisoner proceeding pro se, appeals the district court order denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
In January 2000, a jury convicted Wilson of intimidation. Ohio Rev.Code § 2921.03(A). The court sentenced him to three years of imprisonment. The Ohio Court of Appeals affirmed the conviction and sentence in March 2001, and the Ohio Supreme Court denied further review. The conviction resulted from Wilson’s conduct after his release on parole from a charge of gross sexual imposition. He violated the terms of his release by failing to report, changing his address without authorization, and threatening his parole officer. Wilson was returned to prison for ninety days, and his parole officer filed a criminal complaint charging him with intimidation.
After his direct appeal, Wilson filed a petition for a writ of habeas corpus in the district court. He raised four claims: (1) he was denied his Sixth Amendment right to equal protection and compulsory process; (2) the trial court lacked jurisdiction; (3) he was denied his right to a speedy trial; and (4) his conviction violated his Fifth Amendment right against double jeopardy, his rights to compulsory process and a speedy trial under the Sixth Amendment, and his rights under the Eighth, Thirteenth, and Fourteenth Amendments. The magistrate judge recommended denying the petition. The district court adopted the magistrate judge’s report and recommendation over Wilson’s objections, *946denied the petition, and granted Wilson a certificate of appealability on all of his claims.
In his timely appeal, Wilson reasserts his district court claims and argues that state agents conspired against him.
This court reviews de novo a district court’s legal conclusions in habeas corpus actions and reviews its factual findings for clear error. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.1999).
Upon review, we affirm the district court’s decision for the reasons stated by the district court. First, Wilson procedurally defaulted claims (1) and (2) and all but the double jeopardy portion of claim (4). See O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Neither Wilson’s counsel nor Wilson acting pro se raised claims in the Ohio Supreme Court that incorporated these habeas claims. Because Wilson sought review by both the Ohio Court of Appeals and the Ohio Supreme Court, he now has no remedies left to exhaust. See Hannah v. Conley, 49 F.3d 1193, 1195-96 (6th Cir.1995). Wilson is entitled to habeas review of his claims only if he can show cause to excuse his failure to present the claims in state court and actual prejudice to his defense at trial or on appeal, see Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), or if he submits new evidence showing that a constitutional violation has probably resulted in a conviction of one who is actually innocent. Murray v. Carrier, 477 U.S. 478, 495-96, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Wilson has made no such showing.
Second, we conclude that the district court properly denied Wilson’s remaining claims on the merits. In his speedy trial claim, Wilson contended that he was not tried within the time period established by Ohio law. See Ohio Rev. Code § 2945.71. The Ohio Court of Appeals reviewed the proceedings and held that the trial complied with Ohio law because Wilson’s requests for continuances and a delay by the trial court while conducting another trial extended the speedy trial deadline. State v. Wilson, No. 77758, 2001 WL 233398, at *4 (Ohio Ct.App. Mar. 8, 2001). Wilson’s speedy trial claim did not entitle him to habeas relief because the 124-day period between his arrest and trial was not presumptively prejudicial. See Doggett v. United States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992); Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Ohio Court of Appeals’ decision was neither contrary to nor an unreasonable application of decisions by the United States Supreme Court. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Moreover, Wilson did not rebut the presumption that the state court’s factual findings were correct. See 28 U.S.C. § 2254(e)(1); Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir.1998). Accordingly, Wilson’s speedy trial claim was without merit.
Wilson’s double jeopardy claim was also without merit. Wilson claimed that his conviction for intimidation violated the Double Jeopardy Clause because he had already been penalized for the same conduct when his parole was revoked. The Ohio Court of Appeals rejected this claim by holding that subsequent criminal charges based on conduct which resulted in a post-release control sanction do not constitute double jeopardy because post-release control is part of the original judicially imposed sentence. Wilson, 2001 WL 233398, at *2. The federal appellate decisions that address this issue hold uniformly that double jeopardy does not apply to revocation of parole. See, e.g., United States v. Pettus, 303 F.3d 480, 487 (2d *947Cir.2002); United States v. Hanahan, 798 F.2d 187, 189 (7th Cir.1986); United States v. Miller, 797 F.2d 336, 340-41 (6th Cir.1986). The Ohio Court of Appeals’ decision was not contrary to any decision of the Supreme Court, and the state court did not unreasonably apply the Court’s double jeopardy principles to the facts of Wilson’s case. See 28 U.S.C. § 2254(d); Williams, 529 U.S. at 412-13. Finally, Wilson did not identify any errors in the state court’s factual findings. See 28 U.S.C. § 2254(e)(1); Warren, 161 F.3d at 360-61.
Wilson’s arguments on appeal are completely unsupported and therefore without merit. For the foregoing reasons, we affirm the district court’s decision to deny Wilson’s petition for a writ of habeas corpus. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
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