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[ { "docid": "22647962", "title": "", "text": "or ?(2) the Morganza, if. they had-been privately owned; (3) if yes, whether the United States is liable fot the- amount of what would have been the lien; and (4) whether the United States is liable-for the personal indebtedness of the State'Steamship Corporation for supplies in respect of which no'maritime lien would have arisen if the vessel had been privately owned. We take up first questions 1 and 2. The Act of 1910, by which the transactions with the Clio were governed, after enlarging the right to a maritime lien' and providing who shall be presumed to have authority for the owner to procure supplies for .the vessel, qualifies the whole in § 3 as follows: “but nothing in .this Act shall be construed to confer a lien when the furnisher knew, or by the exercise of Reasonable diligence could have ascertained, that because of the terms of .a charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor.” We regard these words as too plain for argument. They do not allow the material-man to rest upon presumptions until he is put upon inquiry, they call upon him' to inquire. To ascertain is to find out by investigation. If by investigation with reasonable diligence the material-man could have found out that the vessel was under charter, he was chargeable with notice that there was a charter; if in the same way he could have found out its terms he was chargeable with notice of its terms. In this case it would seem that there would have been no difficulty in finding out both. The Ship Mortgage Act of Í920 repeats the words of the Act of 1910. But it is said that the eharter-party if known would have shown that the master at least, if not the agent who ordered the supplies, had authority to impose a lien, since the charter-party contemplated the possibility of one beiyg created and provided for its removal. The South Coast, 251 U. S. 519," } ]

[ { "docid": "13018281", "title": "", "text": "person tortiously or unlawfully in possession or charge of a vessel shall have authority to bind the vessel. 46 U.S.C. § 972. The lien granted by § 971 and the presumption granted by § 972 were a boon for the materialman, but in practice much of their utility was nullified by section 973 as it read prior to the 1971 amendment: The officers and agents of a vessel specified in [section 972] shall be taken to include such officers and agents when appointed by a charterer, by an owner pro hac vice, or by an agreed purchaser in possession of the vessel; but nothing in this section shall be construed to confer a lien when the furnisher knew, or by exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor. 46 U.S.C. § 973 (amended 1971). The duty of inquiry imposed by section 973 eventually became, through expansive judicial construction, a substantial hurdle for the materialman. The materialman was, in almost all cases, under a duty to ascertain the authority of the individual ordering supplies for a ship to incur liens on the vessel. The practical effect of this duty was to allow the vessel owner, by insertion of a prohibition of lien clause in a charter party, to frequently deny any lien to the materialman regardless of the materialman’s lack of actual knowledge of the clause. In 1971, reacting to concerns that the difficulty of obtaining a lien was causing crippling losses to stevedoring contractors and others supplying services and goods to vessels, Congress amended section 973 of the Lien Act by deleting the language imposing on the materialman a duty of inquiry. The 1971 amendment de leted the words “but nothing in this chapter shall be construed to confer a lien when the furnisher knew, or by exercise of reasonable diligence could have ascertained, that because of the terms of the charter party ..." }, { "docid": "13058880", "title": "", "text": "JOHN R. BROWN, Circuit Judge. On May 28, 1954, the S. S. Cortes, owned by Tampa Ship Repair & Dry Dock Co., Inc., was chartered under demise form with a ■ restricted purchase option to South Pacific Steamship Lines, Inc. The charter contained, in the usual and unmistakable language, a provision absolutely forbidding the creation of maritime liens. Esso Export Corporation, with knowledge both of ownership of the vessel by Tampa and the fact of some character of charter (with purchase option) to South Pacific, thereafter supplied bunkers to S. S. Cortes at several ports in June and July 1954 without inspecting a copy of the charter party then aboard the vessel or attempting, by any means, to ascertain the terms of the charter from the owner whose presence, in Tampa, Florida, was well known to it. Despite this the District Judge allowed a lien to Esso apparently on the theory that a previous exchange of letters somehow required the «owner to warn the prospective supplier. But when supplies have beeh furnished on the order of a charterer (or his ship Master) “* * * there is no question that the supplier is charged with knowledge of the provisions of the charter when he either knows them or by reasonable diligence could have ascertained them. * * * [and] When * * * the charter party, with knowledge of which the material-man is charged, prohibits the creation of a lien for supplies ordered by the charterer or * * * [his] representative, no lien will attach.” Dampskibsselskabet Dannebrog v. Signal Oil & Gas Co., 310 U.S. 268, 273, 275, 60 S.Ct. 937, 940, 84 L.Ed. 1197, 1940 A.M.C. 647. Oblivious as Esso was both to knowledge and the means of knowledge, the lien fell under the pungency of the Justice Holmes’ few, but power-packed words in United States v. Carver, 260 U.S. 482, 489, 43 S.Ct. 181, 182, 67 L.Ed. 361, 1923 A.M.C. 47: “We regard these words as too plain for argument. They do not allow the materialman to rest upon presumptions until he is put upon inquiry, they" }, { "docid": "10351634", "title": "", "text": "chapter shall be construed to confer a lien when the furnisher knew, 'or by exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor. In 1971, Congress passed amendments to the Ship Mortgage Act of 1920, Pub.L. No. 92-79, 85 Stat. 285 (1971), which removed the provisions prohibiting the construction of the chapter to confer a lien in the circumstances called for. In explaining its action, the Committee on Merchant Marine and Fisheries pointed out: The accepted practice of a “prohibition of lien” clause in a charter party and the above provision in Subsection R of the Ship Mortgage Act have created serious problems for American materialmen.... In order to protect themselves, the American materialman must ascertain whether a vessel requesting necessaries is under charter and if so, whether the charter contains á “no lien provision”. Alternatively, he can make a credit check on the financial responsibility of the vessel operator. Generally, a vessel requiring necessaries is unable to give sufficient notice so that the American materialman can do either, and he usually ends up assuming the risk that his bill will be paid. This has resulted in substantial losses, or in attempting to collect money due him, costly litigation. H.R.Rep. No. 92-340, 92d Cong., 1st Sess., reprinted in 1971 U.S.Code Cong. & Ad.News 1363, 1364. . We should also point out that by so holding, we necessarily dispose of Dempo’s claim for wrongful seizure of the vessel. By finding that the vessel was properly seized in rem on the basis of a maritime lien, we automatically hold that the owner can have no damages against the stevedore for wrongful seizure." }, { "docid": "12412017", "title": "", "text": "be set off by the bankrupt estate against claims secured by liens on the sub-freights. Accepting the second proposition as resting on a sound practical basis, cf. S & W Holding Company v. Kuriansky, supra, 317 F.2d at 666, we think the trustee’s case fails on the first. The trustee’s initial reliance is on the Maritime Lien Act, 46 U.S.C. § 971, which gives a maritime lien to “Any person furnishing * * * supplies * * * to any vessel * * * upon the order of the owner of such vessel, or of a person authorized by the owner * * *•” A claim for such a lien by the actual supplier of the fuel would not be precluded by the provision in Clause 2 of the charter that “the Charterers shall provide and pay for all the fuel except as otherwise agreed,” Dampskibsselskabet Dannebrog v. Signal Oil & Gas Co., 310 U.S. 268, 275, 60 S.Ct. 937, 941, 84 L.Ed. 1197 (1940), and if that were the only relevant provision the charterer might well argue that, having paid off the supplier, he is subrogated to the latter’s lien. See Rodriquez v. The G. K. Dauntless, 70 F.Supp. 958 (S.D.Fla.1947); The Maret, 145 F.2d 431, 444 (3 Cir. 1944). But 46 U.S.C. § 973 provides that “nothing in this chapter shall be construed to confer a lien when the furnisher knew * * * that because of the terms of a charter party, * * * the person ordering the * * * supplies * * * was without authority to bind the vessel therefor,” and Clause 18 of the present charter states that “Charterers will not suffer, nor permit to be continued, any lien or encumbrance incurred by them or their agents, which might have priority over the title and interest of the owners in the vessel.” Such a clause is,sufficient to preclude a lien in a supplier who knows or should know of its existence in the charter. United States v. Carver, 260 U.S. 482, 43 S.Ct. 181, 67 L.Ed. 361 (1923); Signal Oil, supra, 310" }, { "docid": "21473200", "title": "", "text": "(one purpose of amendment was “to ensure that any party to whom the management of the vessel is entrusted will be presumed to have authority to procure necessaries and supplies which may give rise to maritime liens”); Gulf Trading & Transp. Co. v. M/V Tento, 694 F.2d 1191, 1194 (9th Cir.1982), cert. denied, 461 U.S. 929, 108 S.Ct. 2091, 77 L.Ed.2d 301 (1983). Congress was concerned that the duty of inquiry had become a “substantial obstacle” for persons furnishing supplies. H.Rep. No. 92-340, 92d Cong., 1st Sess., reprinted in 1971 U.S. Code Cong. & Admin.News 1363, 1364-65. See Belcher Oil, 766 F.2d at 1511; Lake Union Drydock Co. v. M/V Polar Viking, 446 F.Supp. 1286, 1289-91 (W.D.Wash.1978); Ryan-Walsh Stevedoring Co., Inc. v. M/V Khalij Star, 507 F.Supp. 36, 38 (W.D.Wash.1980). [The] duty of inquiry became quite impractical in light of the various chartering and sub-chartering practices of foreign and domestic vessels. Furthermore, vessel owners and charterers engaged in subchartering activities began to insert “prohibition of lien” or “no lien” provisions in charter parties. This practice effectively shifted the risk of loss to the supplier.... Belcher Oil, 766 F.2d at 1511; see Atlantic, 608 F.2d at 201 & n. 7 (no lien provisions a primary concern of the amendments). The 1971 amendment obviously was directed at reducing the force of owners’ and charterers’ prohibition of lien clauses. Gilmore & Black, The Law of Admiralty § 9-39, at 669-70 (2d ed. 1975). However, Congress did not explicitly prohibit no lien clauses and the effectiveness of prohibition of lien clauses after the amendment has not been settled. See id. § 9-46a, at 685-86. This presents an issue of first impression in this circuit. Several courts have held that a no lien clause is not effective to rebut a statutory presumption of authority without proof of the supplier’s actual knowledge of the clause. See, e.g., Ramsay Scarlett & Co., Inc. v. S.S. Koh Eun, 462 F.Supp. 277, 284-85 (E.D.Va.1978); Lake Union Drydock, 446 F.Supp. at 1291. We agree. Even though a no lien clause is present, we conclude that the purposes of the Act," }, { "docid": "13058881", "title": "", "text": "of a charterer (or his ship Master) “* * * there is no question that the supplier is charged with knowledge of the provisions of the charter when he either knows them or by reasonable diligence could have ascertained them. * * * [and] When * * * the charter party, with knowledge of which the material-man is charged, prohibits the creation of a lien for supplies ordered by the charterer or * * * [his] representative, no lien will attach.” Dampskibsselskabet Dannebrog v. Signal Oil & Gas Co., 310 U.S. 268, 273, 275, 60 S.Ct. 937, 940, 84 L.Ed. 1197, 1940 A.M.C. 647. Oblivious as Esso was both to knowledge and the means of knowledge, the lien fell under the pungency of the Justice Holmes’ few, but power-packed words in United States v. Carver, 260 U.S. 482, 489, 43 S.Ct. 181, 182, 67 L.Ed. 361, 1923 A.M.C. 47: “We regard these words as too plain for argument. They do not allow the materialman to rest upon presumptions until he is put upon inquiry, they call upon him to inquire. To ascertain is to find out by investigation. If by investigation with reasonable diligence the materialman could have found out that the vessel was under charter, he was chargeable with, notice that there was a charter; if in the same way he' could have found out its terms he was chargeable with notice of its terms. In this case it would seem that there would have been no difficulty in finding out both.” The duty on Esso was plain and positive for, “* * * the statute places the burden of exercising diligence upon the furnisher of repairs, and not upon the owner or his agent * * * ”, The Western Wave, 5 Cir., 77 F.2d 695, 697, 1935 A.M.C. 985. Findley v. Red Top Super Markets (The Queen Anne), 5 Cir., 188 F.2d 834, 1951 A.M.C. 1113. As in Morse Dry Dock & Repair Co. v. United States, 2 Cir., 1 F.2d 233, 237-238, 1924 A.M.C. 1033, “* * * the Carver Case is decisive * * *." }, { "docid": "18501209", "title": "", "text": "not be necessary to állege or prove that credit was given to the vessel. “§ 972. Persons authorized to procure repairs, supplies, and necessaries - “The . following persons shall be presumed to have authority from the owner' to procure' repairs, supplies, towage, use of dry dock or marine railway, and other necessaries for the vessel: The managing owner, ship’s husband,--master, or any person to whom the management of the vessel at the port of supply is intrusted. No person tortiously or unlawfully in possession or charge of a vessel shall have authority to bind the vessel. “§ 973. Notice to person furnishing repairs, supplies, and necessaries “The officers aad agents of a vessel specified in section 972 of this title shall be taken to include such officers and agents when appointed by a charterer, by an owner pro hac vice, or by an agreed purchaser in possession of the vessel; but nothing in this chapter shall be construed to confer a lien when the furnish-er knew, or by exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor.” 41 Stat. 1005 (1920), 46 U.S.O.A. §§ 971-973. . Id. § 972. . “* * * but nothing in this chapter shall be construed to confer a lien when the furnisher knew, or by exercise of reasonable diligence could have ascertained, that because of the terms of a Charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor.” Id. § 973. . United States v. Carver, 1923, 260 U. S. 482, 43 S.Ct. 181, 67 L.Ed. 361. . The South Coast, 1920, 251 U.S. 519, 40 S.Ct. 233, 64 L.Ed. 386; Dampskibs-selskabet Dannebrog v. Signal Oil & Gas Co., 1940, 310 Ü.S. 268, 60 S.Ct. 937, 84 L.Ed. 1197. . “We are of the opinion that it" }, { "docid": "22270050", "title": "", "text": "be heard to complain when it appears that it is the charterer’s business to obtain supplies to keep the vessel on her way and the charter has not prohibited reliance upon the credit of the vessel. The judgment of the Circuit Court of Appeals is Affirmed. The Act of June 23, 1910, 36 Stat. 604, as amended by the Act of June 5, 1920, § 30, 41 Stat. 1005, 46 U. S. C. 971-973, provides: “ § 971. Persons entitled to lien. Any person furnishing repairs, supplies, towage, use of dry dock or marine railway, or other necessaries, to any vessel, whether foreign or.domestic, upon the order of the owner of such vessel, or of a person authorized by the owner, shall have a maritime lien on the vessel, which may be enforced by suit in rem, and it shall not be necessary to allege or prove that credit was given to the vessel. “ § 972. Persons authorized to procure repairs, supplies, and necessaries. The following persons shall be presumed to have authority from the owner to procure repairs, supplies, towage, use of dry dock or marine railway, and other necessaries'for the vessel: The managing owner, ship’s husband, master, or any person to whom the management of the vessel at the port of supply is intrusted. No person tortiously or unlawfully in possession or charge of a vessel shall have authority to bind the vessel. “§973. Notice to person furnishing repairs, supplies, and necessaries. The officers and agents of a vessel specified in section 972, shall be taken to include such officers and agents when appointed by a charterer, by an owner- pro hac vice, or by an agreed purchaser in possession of the vessel; but nothing in this chapter shall be construed to confer a lien when the furnisher knew, or by exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor.” Other provisions," }, { "docid": "13018280", "title": "", "text": "through with exceptions. In 1910, Congress enacted the Federal Maritime Lien Act, a concise piece of legislation intended to bring a degree of uniformity to the area of maritime liens. Section 971 of the Lien Act provides: Any person furnishing repairs, supplies, towage, use of dry dock or marine railway, or other necessaries, to any vessel, whether foreign or domestic, upon the order of the owner of such vessel, or of a person authorized by the owner, shall have a maritime lien on the vessel, which may be enforced by suit in rem, and it shall not be necessary to allege or prove that credit was given to the vessel. 46 U.S.C. § 971. Section 972 of the Act further provides: The following persons shall be presumed to have authority from the owner to procure repairs, supplies, towage, use of dry dock or marine railway, and other necessaries for the vessel: The managing owner, ship’s husband, master, or any person to whom the management of the vessel at the port of supply is intrusted. No person tortiously or unlawfully in possession or charge of a vessel shall have authority to bind the vessel. 46 U.S.C. § 972. The lien granted by § 971 and the presumption granted by § 972 were a boon for the materialman, but in practice much of their utility was nullified by section 973 as it read prior to the 1971 amendment: The officers and agents of a vessel specified in [section 972] shall be taken to include such officers and agents when appointed by a charterer, by an owner pro hac vice, or by an agreed purchaser in possession of the vessel; but nothing in this section shall be construed to confer a lien when the furnisher knew, or by exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor. 46 U.S.C. § 973 (amended 1971). The duty of inquiry imposed" }, { "docid": "10351633", "title": "", "text": "apparently universal agreement to the effect that where an agent’s duties to others prevent him from disclosing facts to the principal, TTT Stevedores here, the principal is not bound because of the agent’s knowledge. Moreover, since this knowledge did not benefit TTT Stevedores, the general exception to this rule also does not apply. Thus, we find that even if Garza had acquired knowledge of the no lien provision and of Clay’s participation prior to the time the agreement was entered into, such knowledge could not be imputed to TTT Stevedores. See Restatement, supra, appendix, § 281 at 483. . This view represents a significant alteration of the pre-existing law in the area. Prior to 1971, 46 U.S.C. § 973 provided: § 973. Notice to person furnishing repairs, supplies, and necessaries. The officers and agents of a vessel specified in § 972 shall be taken to include such officers and agents when appointed by a charterer, by an owner pro hac vice, or by an agreed purchaser in possession of the vessel; but nothing in this chapter shall be construed to confer a lien when the furnisher knew, 'or by exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor. In 1971, Congress passed amendments to the Ship Mortgage Act of 1920, Pub.L. No. 92-79, 85 Stat. 285 (1971), which removed the provisions prohibiting the construction of the chapter to confer a lien in the circumstances called for. In explaining its action, the Committee on Merchant Marine and Fisheries pointed out: The accepted practice of a “prohibition of lien” clause in a charter party and the above provision in Subsection R of the Ship Mortgage Act have created serious problems for American materialmen.... In order to protect themselves, the American materialman must ascertain whether a vessel requesting necessaries is under charter and if so, whether the charter contains á “no lien provision”. Alternatively, he can make a" }, { "docid": "13018282", "title": "", "text": "by section 973 eventually became, through expansive judicial construction, a substantial hurdle for the materialman. The materialman was, in almost all cases, under a duty to ascertain the authority of the individual ordering supplies for a ship to incur liens on the vessel. The practical effect of this duty was to allow the vessel owner, by insertion of a prohibition of lien clause in a charter party, to frequently deny any lien to the materialman regardless of the materialman’s lack of actual knowledge of the clause. In 1971, reacting to concerns that the difficulty of obtaining a lien was causing crippling losses to stevedoring contractors and others supplying services and goods to vessels, Congress amended section 973 of the Lien Act by deleting the language imposing on the materialman a duty of inquiry. The 1971 amendment de leted the words “but nothing in this chapter shall be construed to confer a lien when the furnisher knew, or by exercise of reasonable diligence could have ascertained, that because of the terms of the charter party ... the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel.” Gulfs argument is premised on the 1971 amendment’s deletion of the language negating a lien' when the furnisher of necessaries “knew” of a lack of authority, which leaves no indication on the face of the statute that knowledge will bar a lien. Thus, Gulf argues, the 1971 amendments were intended to render prohibition of lien clauses completely ineffectual, regardless of any knowledge possessed by the materialman. Gulf contends that the result in the POLAR VIKING case is contrary to the “clear, absolute language of the statute.” The language of the statute is actually not all that clear and absolute. Section 971 of the Lien Act grants a lien if necessaries are ordered by the owner “or a person authorized by the owner.” Section 972 states a presumption that certain individuals are authorized by the owner to order necessaries. Section 973, since the 1971 amendment, serves only to include certain other individuals in the class presumed to be authorized by" }, { "docid": "4492793", "title": "", "text": "create a valid lien, good against the vessel, unless the charter party contains an express prohibition against the charterer creating any such lien. Plenty of cases so hold. Dampskibsselskabet v. Ohio Oil Co., (cited as The Stjerneborg), 310 U.S. 268, 60 S.Ct. 937, 84 L.Ed. 1197; The South Coast, 251 U.S. 519, 40 S.Ct. 233, 64 L.Ed. 386; United States v. Carver, 260 U.S. 482, 43 S.Ct. 181, 67 L.Ed. 361. We think that the appellant cannot make those decisions carry so much weight here. What is said in those cases arises out of the necessity of an interpretation of §§ 972 and 973 of Title 46. § 972 lists the persons who are presumed to have authority to procure repairs, supplies, etc. § 973 enlarges this by stating that such persons “shall be taken to include such officers and agents when appointed by a charterer * * but nothing in this chapter shall be construed to- confer a lien when the furnisher knew, or * * * could have ascertained, that because of the terms of a charter party * * * the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor.” The cases thus relied upon by the appellant are no more than a construction and application of the language of these sections, and we see no reason for adding the requirements of a charter party prohibition stated in those cases to the statutory requirements of a preferred mortgage. What makes a preferred mortgage is a compliance with § 922 of Title 46. That compliance existed here. § 953 recites that \"the preferred mortgage lien shall have priority over all claims' against the vessel” except for certain types of liens not involved here. We are therefore of the opinion that the decision of the district court upholding the priority of the Bank’s mortgages was right. Accordingly, the judgment is affirmed. . There is language in Morse Dry Dock & Repair Co. v. Northern Star, infra, which considered apart from the actual decision in that case, might lend some comfort to appellants." }, { "docid": "14476093", "title": "", "text": "of this title shall be taken to include such officers and agents when appointed by a charterer, by an owner pro hac vice, or by an agreed purchaser in possession of the vessel. As summarized in Gilmore and Black, The Law of Admiralty, § 9-46a at 685 (2d Ed. 1975) (hereinafter referred to as “Gilmore and Black”), these Sections, which are part of the Federal Maritime Lien Act, today have the following effect: [C] on tract liens may arise when services are furnished to a vessel “upon the order of the owner * * * or of a person authorized by the owner”; (§ 971), and * * * the “managing owner, ship’s husband, master or any other person to whom the management of the vessel is intrusted” are presumed to have authority to create liens (§ 972) even though they may have been appointed by a “charterer * * * an owner pro hac vice or * * * an agreed purchaser in possession of the vessel” (§ 973). Significantly, the Lien Act was amended by Congress in 1971. As originally enacted, the second clause of § 973 greatly restricted the presumption of authority created by § 972 and the first clause of § 973. The second clause of § 973 previously provided as follows: [B]ut nothing in this chapter shall be construed to confer a lien when the furnisher knew, or by exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel. Questions arising under this provision were resolved by the courts against the supplier of necessaries so that “the duty to inquire provision was, in effect, allowed to swallow up the presumption of authority provisions.” Gilmore and Black, § 9-42 at 674. See, e. g., Dampskibsselskabet Dannebrog v. Signal Oil Co., 310 U.S. 268, 60 S.Ct. 592, 84 L.Ed. 998 (1940). It became standard practice to insert “prohibition of lien” or “no lien” provisions" }, { "docid": "10866504", "title": "", "text": "Coal Co. v. Seaboard Fisheries Co., 254 U.S. 1, 12, 41 S.Ct. 1, 65 L.Ed. 97 (1920) (\"The act relieves the libelant of the burden of proving that credit was given to the ship when necessaries are furnished to her upon order of the owner....”). . Under § 31342(a), Except as provided in subsection (b) of this section, a person providing necessaries to a vessel on the order of the owner or a person authorized by the owner— (1) has a maritime lien on the vessel; (2) may bring a civil action in rem to enforce the lien; and (3) is not required to allege or prove in the action that credit was given to the vessel. 46 U.S.C. § 31342(a). . That § 31342(a) and § 31341(a) refer to authority to procure necessaries on the vessel's account is also reflected in the law the MCILA replaced in 1988, the Federal Maritime Lien Act, 46 U.S.C. § 971 et seq., and in the 1971 amendments to that Act. Under the pre-1971 version of § 973 of the Federal Maritime Lien Act, [t]he officers and agents of a vessel specified in section 972, shall be taken to include such officers and agents when appointed by a charterer, by an owner pro hac vice, or by an agreed purchaser in possession of the vessel; but nothing in this chapter shall be construed to confer a lien when the furnish-er knew, or by exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor. (emphasis added). The 1971 amendments eliminated all language after the semicolon in order to remove from suppliers the obligation to investigate whether the entity ordering necessaries was, in fact, with authority to bind the vessel. See Atlantic & Gulf Stevedores, Inc. v. M/V Grand Loyalty, 608 F.2d 197, 201 (5th Cir.1979). This created a statutory presumption that certain entities (those listed in § 972 and the" }, { "docid": "18501210", "title": "", "text": "ascertained, that because of the terms of a charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor.” 41 Stat. 1005 (1920), 46 U.S.O.A. §§ 971-973. . Id. § 972. . “* * * but nothing in this chapter shall be construed to confer a lien when the furnisher knew, or by exercise of reasonable diligence could have ascertained, that because of the terms of a Charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor.” Id. § 973. . United States v. Carver, 1923, 260 U. S. 482, 43 S.Ct. 181, 67 L.Ed. 361. . The South Coast, 1920, 251 U.S. 519, 40 S.Ct. 233, 64 L.Ed. 386; Dampskibs-selskabet Dannebrog v. Signal Oil & Gas Co., 1940, 310 Ü.S. 268, 60 S.Ct. 937, 84 L.Ed. 1197. . “We are of the opinion that it would thwart the purpose of the statute to compel the material-man furnishing supplies to the vessel to resolve the ambiguities which may be found in such charters as those here involved. The, statute was intended to afford the material-man a reasonably certain criterion. The owner has a simple and ready means of protection. All that it is. necessary for him to do, as the material-man in dealing with the charterer is charged with notice of the charter, is to provide therein that the creation of maritime liens is prohibited. When the owner does not do so, he should not be heard to complain when' it appears that it is (he charterer’s business to obtain sup-' plies to keep the vessel on her way and the charter has not prohibited reliance upon the credit of the vessel.” Damp-skibsselskabet Dannebrog v. Signal Oil & Gas Co., 1940, 310 U.S. 268, 280-281, 60 S.Ct. 937, 943, 84 L.Ed. 1197. . Grening’s testimony as to the terms of the agreement, whether that agreement was written or oral, was clearly" }, { "docid": "2148225", "title": "", "text": "that the Krauss case was based on the fact that the contract of affreightment was made directly with the owner of the ship, and that when a charterer is involved, a lien exists only when allowed by the terms of the charter party. Claimant argues by analogy with the provisions of the statutory maritime lien created by 46 U.S.C. §§ 971-975. Sections 971-975 of 46 U.S.C., provide a statutory maritime lien for repairs, supplies, towage, use of dry dock or marine railway, or other necessaries. Officers and agents appointed by a charterer are presumed to have the authority to bind the ship, but the furnisher does not acquire a lien if the officer or agent has no actual authority and the furnisher could have so ascertained by exercise of reasonable diligence. Reasonable diligence includes inquiry into the terms of a charter party. Dampskibsselskabet Dannebrog v. Signal Oil & Gas Co. of California, 310 U.S. 268, 60 S.Ct. 937, 84 L.Ed. 1197 (1940). The non-statutory maritime lien on the vessel for performance of the contract of carriage can similarly be incurred by officers and agents appointed by a charterer. “The general owner * * * should not be allowed to say that he did not expect, or agree, that third persons, who have shipped merchandise and taken bills of lading therefor, would thereby acquire a lien on a vessel which he had placed under the control of another, for the very purpose of enabling him to make such contracts to which the law attaches the lien.” The Schooner Freeman v. Buckingham, 59 U.S. (18 How.) 182, 190, 15 L.Ed. 341 (1856). See also, The Poznan, 276 F. 418 (S.D.N.Y. 1921). Claimant argues that by analogy the non-statutory maritime lien should not arise unless the charterer has actual authority to incur the lien. However, there is no reason or authority indicating that the statutory provision putting a furnisher on notice of the terms of a charter party should have a parallel in the case of a shipper. The law has traditionally been very solicitous of goods and passengers transported on common carriers," }, { "docid": "21473199", "title": "", "text": "waived the lien by relying on the credit of persons other than the owners and charterers to the exclusion of that of the vessel. See, e.g., Farwest I, 769 F.2d at 624-25. We do not reach Marine Fuel’s argument that an in rem action survives even if Ken Lucky’s owners or charterers are not found liable. Second, Ken Lucky may attempt to rebut the presumption of authority on remand by relying on the no lien clauses in the charter agreements. We discuss this issue below because the district court evidenced some confusion in its ruling as to the effect of such clauses. C. Effect of the No Lien Clauses Ken Lucky admits that the purpose of the Act is to help suppliers determine who has authority to incur a lien. The Act’s presumption in favor of granting liens to suppliers “was enhanced in 1971 when Congress deleted the requirement that materi-almen inquire about the existence of any no-lien clauses before furnishing supplies.” Farwest I, 769 F.2d at 623; see Foss Launch, 808 F.2d at 700 (one purpose of amendment was “to ensure that any party to whom the management of the vessel is entrusted will be presumed to have authority to procure necessaries and supplies which may give rise to maritime liens”); Gulf Trading & Transp. Co. v. M/V Tento, 694 F.2d 1191, 1194 (9th Cir.1982), cert. denied, 461 U.S. 929, 108 S.Ct. 2091, 77 L.Ed.2d 301 (1983). Congress was concerned that the duty of inquiry had become a “substantial obstacle” for persons furnishing supplies. H.Rep. No. 92-340, 92d Cong., 1st Sess., reprinted in 1971 U.S. Code Cong. & Admin.News 1363, 1364-65. See Belcher Oil, 766 F.2d at 1511; Lake Union Drydock Co. v. M/V Polar Viking, 446 F.Supp. 1286, 1289-91 (W.D.Wash.1978); Ryan-Walsh Stevedoring Co., Inc. v. M/V Khalij Star, 507 F.Supp. 36, 38 (W.D.Wash.1980). [The] duty of inquiry became quite impractical in light of the various chartering and sub-chartering practices of foreign and domestic vessels. Furthermore, vessel owners and charterers engaged in subchartering activities began to insert “prohibition of lien” or “no lien” provisions in charter parties. This practice" }, { "docid": "931168", "title": "", "text": "the plaintiffs, thus barring their maritime lien claims. This is a question of first impression. Should it be resolved in favor of plaintiffs, claimant also asserts three affirmative defenses: 1) waiver; 2) laches; and 3) satisfaction of the underlying debt. If claimant succeeds on any one of such defenses, summary judgment must be granted in its favor. Alternatively, plaintiffs must succeed on all four of the legal issues before summary judgment can be granted in their favor. EFFECT OF THE 1971 AMENDMENT Prior to 1971 the law of materialmen’s maritime liens withdrew with one hand what it gave with the other. It authorized the assertion of a maritime lien against a chartered vessel when the services were requested by one with apparent authority. However, § 973 went on to state that “nothing in this section shall be construed to confer a lien when the furnisher knew, or by exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefore.” As developed by case law, “the duty to inquire provision was, in effect, allowed to swallow up the presumption of authority provisions.” In practice, a no-lien charter clause almost always prevented a maritime lien from attaching, the duty to inquire becoming “all but absolute.” In 1971 Congress deleted that portion of § 973 which barred the attachment of a maritime lien where the materialman “knew or could have ascertained” that the individual requesting the services was without authority to do so. While this appears to mean that a material-man’s lien vests absolutely as a matter of law, as plaintiffs suggest, the Congressional history clouds the picture. The committee report which accompanied the House bill (the version ultimately adopted) recites that the duty of inquiry has been eliminated. “The practical effect of the bill is to negate the operation of a ‘no lien provision’ in a charter to which the American materialism (sic) [materialman] was not a party and" }, { "docid": "14476094", "title": "", "text": "amended by Congress in 1971. As originally enacted, the second clause of § 973 greatly restricted the presumption of authority created by § 972 and the first clause of § 973. The second clause of § 973 previously provided as follows: [B]ut nothing in this chapter shall be construed to confer a lien when the furnisher knew, or by exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel. Questions arising under this provision were resolved by the courts against the supplier of necessaries so that “the duty to inquire provision was, in effect, allowed to swallow up the presumption of authority provisions.” Gilmore and Black, § 9-42 at 674. See, e. g., Dampskibsselskabet Dannebrog v. Signal Oil Co., 310 U.S. 268, 60 S.Ct. 592, 84 L.Ed. 998 (1940). It became standard practice to insert “prohibition of lien” or “no lien” provisions in charter parties, thus effectively shifting the risk of loss to the supplier. Because of the nature of the shipping business, suppliers rarely have enough time to review complicated charter provisions before entering into contracts for the furnishing of necessaries to a vessel which might be in a port for only a short period of time. Accordingly, the supplier “usually end[ed] up assuming the risk that his bill [would] be paid.” House Report No. 92-340, 1971 U.S.Code Cong. & Admin. News, pp. 1363, 1364. Making it easier for a supplier to assert a valid lien encourages the prompt furnishing of necessaries to vessels so that they may be speedily turned around and put to sea, an especially significant maritime goal today when the emphasis on vessel performance is reduced port time and increased speed. Idem, at p. 1365. In response to this problem, Congress in 1971 amended § 973 by deleting the provision placing a “duty to inquire” on the furnisher. P.L. 92-97, 85 Stat. 285. To properly construe the Lien Act, this Court must" }, { "docid": "2148224", "title": "", "text": "rate of ten dollars per thousand feet, with the condition that in the event “a regular intercoastal carrier moves a similar cargo at a lower rate,” such lower rate would govern. While the vessel was discharging her cargo the ten dollar rate was demanded and received although a regular inter-coastal carrier had carried a similar car go during the same period at eight and one-half dollars per thousand feet. An overpayment of freight was therefore established and the Supreme Court upheld in rem jurisdiction over the ship. The lien of the cargo on the ship was found to extend to secure repayment of the excessive freight charges. Claimant Schulte & Bruns argues that two distinctions between the Krauss case and the case at bar make the Krauss case inapplicable: (1) in Krauss there was no charterer, the contract of carriage being executed by the owner; (2) in Krauss the freight payment was made before the cargo was unloaded. As the ensuing discussion shows, neither distinction is of any substance. Participation by the Charterer. Claimant asserts that the Krauss case was based on the fact that the contract of affreightment was made directly with the owner of the ship, and that when a charterer is involved, a lien exists only when allowed by the terms of the charter party. Claimant argues by analogy with the provisions of the statutory maritime lien created by 46 U.S.C. §§ 971-975. Sections 971-975 of 46 U.S.C., provide a statutory maritime lien for repairs, supplies, towage, use of dry dock or marine railway, or other necessaries. Officers and agents appointed by a charterer are presumed to have the authority to bind the ship, but the furnisher does not acquire a lien if the officer or agent has no actual authority and the furnisher could have so ascertained by exercise of reasonable diligence. Reasonable diligence includes inquiry into the terms of a charter party. Dampskibsselskabet Dannebrog v. Signal Oil & Gas Co. of California, 310 U.S. 268, 60 S.Ct. 937, 84 L.Ed. 1197 (1940). The non-statutory maritime lien on the vessel for performance of the contract of" } ]

[ { "docid": "6751531", "title": "", "text": "judgment notwithstanding the verdict or a new trial and held that Wisconsin law was governing. This appeal followed. II Plaintiff selected Illinois as the forum for this lawsuit. In a diversity case, the governing choice-of-law principles are those of the forum state. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. Illinois applies the “most significant relationship” test of the Restatement (Second) of Conflict of Laws to determine the applicable law in tort actions. See Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593 (1970); see also In Re Air Crash Disaster Near Chicago, Illinois, on May 25, 1979, 644 F.2d 594 at 611 (7th Cir. 1981). As applied in Illinois, this test embodies a presumption that the local law of the state where the injury occurred governs the rights and liabilities of the parties unless another state has a “more significant relationship” to the occurrence or parties involved. Ingersoll, supra, 262 N.E.2d at 595. In determining whether another state has a more significant relationship with the litigation than does the place of injury, the contacts to be considered include the place where the conduct causing the injury occurred; the domicile, residence, nationality, place of incorporation and place of business of the parties; and the place where the relationship, if any, between the parties is centered. Ingersoll, supra, 262 N.E.2d at 596; Restatement (Second) of Conflict of Laws § 145(2). However, as this Court recently cautioned in In Re Air Crash Disaster, supra, at 610-11, “application of choice of law rules is not a mechanical process of cranking various factors through a formula.” The relative importance of all the alleged contacts, including the place of injury, must be independently evaluated on a case-by-case basis with respect to the particular issue involved, the character of the tort, and the relevant policies of the interested states. Ingersoll, supra, 262 N.E.2d at 596; Restatement (Second) of Conflict of Laws §§ 6 and 145. The three states alleged by the parties to have significant relationships with this litigation are Georgia, where the conduct causing the injury occurred" } ]

[ { "docid": "18648843", "title": "", "text": "487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In turn, Ingersoll v. Klein, 46 Ill.2d 42, 45, 262 N.E.2d 593, 595 (1970) states the Illinois conflicts rule in tort cases: “The local law of the State where the injury occurred should determine the rights and liabilities of the parties, unless Illinois has a more significant relationship with the occurrence and with the parties, in which case the law of Illinois should apply.” For that purpose Illinois courts follow the Restatement (Second) of Conflicts of Law, under Section 145 of which the following contacts are to be evaluated in accordance with their relative importance to the particular issues presented by the lawsuit: (a) the place where the injury occurred; (b) the place where the conduct causing the injury occurred; (c) the domicile, residence and nationality, place of incorporation and place of business of the parties; and (d) the place where- the relationship, if any, between the parties is centered. Effectively the Illinois (and the general) rule is that duplicate prizes are not awarded in case of ties. If the weighting of the several factors is equal, the conventional lex loci delicti approach that was once uniformly applied in torts cases prevails. Moreover, Section 158 of the same Restatement provides that in determining under Section 145 whether the interest affected is entitled to legal protection, “the applicable law will usually be the local law of the State where the injury occurred” (emphasis added). Here we have (a) a Kentucky accident (b) caused by Illinois conduct (c) where plaintiff is a corporation organized and doing all its business in Kentucky and defendant is a corporation organized elsewhere but having its principal place of business in Chicago. Factor (d) really does not apply, because it cannot be said that the single purchase transaction gave rise to a “centered” relationship between the parties. On an unweighted basis, then, the relevant factors balance, and Kentucky law (“where the injury occurred”) would apply. Evaluating the factors “in accordance with their relative importance” to the lawsuit’s issues does not lead to a different result: 1. Illinois has a" }, { "docid": "18648842", "title": "", "text": "substantially damaged and destroyed the entire aforesaid International Harvester Model TD-25C Pay Doz-er, chassis number 4350064U006339; that as a result of the foregoing extensive damage, the plaintiff has been unable to repair said bulldozer and the same has been scrapped; that as a result of the foregoing damage to the bulldozer unit, the plaintiff has been caused to incur substantial costs in order to remove said damaged bulldozer unit from the job site for analysis, repair evaluation and ultimate demolition; that as a result of the foregoing damage to the bulldozer unit, the plaintiff has been caused to rent at great expense replacement equipment in order to continue with its operation all at its own costs; that as a result of the foregoing damage to the bulldozer unit, the plaintiff has been required to expend additional sums to obtain permanent replacement equipment and has lost earnings and profits thereby.” Choice of Law Illinois choice of law doctrine of course applies under familiar Erie v. Tompkins principles, Kiaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In turn, Ingersoll v. Klein, 46 Ill.2d 42, 45, 262 N.E.2d 593, 595 (1970) states the Illinois conflicts rule in tort cases: “The local law of the State where the injury occurred should determine the rights and liabilities of the parties, unless Illinois has a more significant relationship with the occurrence and with the parties, in which case the law of Illinois should apply.” For that purpose Illinois courts follow the Restatement (Second) of Conflicts of Law, under Section 145 of which the following contacts are to be evaluated in accordance with their relative importance to the particular issues presented by the lawsuit: (a) the place where the injury occurred; (b) the place where the conduct causing the injury occurred; (c) the domicile, residence and nationality, place of incorporation and place of business of the parties; and (d) the place where- the relationship, if any, between the parties is centered. Effectively the Illinois (and the general) rule is that duplicate prizes are not awarded in case of" }, { "docid": "11578477", "title": "", "text": "verdict in favor of Maryland Casualty, and assessed damages in the amount of $635,893 against Therm-O-Disc. Therm-O-Dise renewed its motion for judgement as a matter of law, which the district court also denied. This appeal followed. Discussion I. Therm-O-Disc’s primary argument in this appeal is that the district court failed to apply the test for the admission of expert scientific testimony demanded by Daubert. Within this broad allegation, ThermO-Disc makes several specific arguments. We consider each in turn, and review the district court’s decision to admit the testimony for abuse of discretion. A. Therm-O-Disc first argues that the district court erred in placing on Therm-O-Disc the “burden of proof’ regarding the relevance and reliability of Rodems’s testimony. Such a shift constitutes error, Therm-O-Disc contends, because “Daubert requires the party proffering the expert testimony to meet its Rule 104(a)[of the Federal Rules of Evidence] burden by a preponderance of evi- denee.” Daubert, however, makes no mention of a burden of “proof’ regarding the decision to admit expert scientific testimony. We assume Therm-ODise misuses this term to denote Maryland Casualty’s burden of production—that is,, the burden of coming forward with evidence from which the trial court could determine, as Daubert demands, that (1) the expert will testify to “scientific knowledge,” and (2) the expert’s testimony “will, assist the trier of fact to understand or determine a fact in issue.” Nevertheless, in treating this as a “burden of proof,” Therm-O-Disc misreads Daubert. All Daubert demands is that the trial judge make a “preliminary assessment” of whether the proffered testimony is both reliable (i.e. based on “scientific knowledge”) and helpful (i.e. of assistance to the trier of fact in understanding or determining a fact in issue). As in all questions of admissibility, the proffering party must come forward with evidence from which the court can determine that the proffered testimony is properly admissible. ' However, there is no requirement in Daubert, or any other controlling authority, that the proffering party must “prove” anything to the court before the testimony in question can be admitted. In replacing the stricter “general acceptance” test of Frye v." }, { "docid": "11578485", "title": "", "text": "We next consider Therm-O-Disc’s contention that Maryland Casualty did not prove a causal link between the thermostat and the fire in the Gitelson home, and thus that Therm-O-Dise was entitled to judgment as a matter of law. Under Maryland law, which applies in this diversity case, to recover in strict liability for a manufacturing defect, a plaintiff .must establish, inter alia, a causal relationship between the claimed defect and the injury. There is no question that the offered proof must rise abové the level of speculation or conjecture. Any facts that establish proof greater than speculation or conjecture, however, create a question for the jury. Furthermore, proximate cause may be established by circumstantial evidence. In this case, \"the jury heard Rodems’s theory that the thermostat was defective and caused the fire. Maryland\" Casualty introduced other evidence that ruled out any other cause of the fire. Under these circumstances, it was left to the jury to determine the question of causation, which it resolved in favor of Maryland Casualty. Examining the evidence in the. light most favorable to Maryland Casualty, we hold that the jury properly reached its verdict. III. Finally, Therm-O-Disc disputes the district court’s admission of Mrs. Gitelson’s testimony concerning her damages. It argues that expert testimony was required to establish the value of Mrs. Gitelson’s household goods. Mrs. Gitelson testified as to the value of her household possessions, including the following: a $3,500 blouse, two $2,000 dresses, several dresses worth $1,000 or more, sixty sweaters and pairs of shoes valued at over $200 each, two sofas worth a total of $25,000, a shower curtain valued at almost $1,900, and other similarly expensive items. In Lakewood Engineering & Manufacturing Company v. Quinn, the Maryland Court of Appeals took note “of the long-standing rule that an owner of property can testify as to its value.” Under Maryland law, a homeowner can testify as to the fair market value of common consumer goods, which will usually be close or equal to their replacement cost. Expert testimony, however, is required to establish the value of unusual items such as rare books or" }, { "docid": "17632961", "title": "", "text": "an inherently unreasonable product in violation of the Restatement (Second) of Torts Section 389, and 4) strict liability under the Restatement (Second) of Torts Section 402A. The plaintiffs argue that these legal theories are capable of classwide proof and that, under Illinois’ choice of law principles, application of the laws of the states in which the defendants have their principal place of business is appropriate. A proper application of the Illinois choice of law principals, however, demonstrates that the laws of each of the 47 states would have to be applied. a. Choice of Law A district court sitting in diversity applies the forum state’s choice of law rules to determine which state’s substantive law applies. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); S.A. Healy Co. v. Milwaukee Metropolitan Sewerage District, 50 F.3d 476, 478 (7th Cir.1995). In tort eases, Illinois has adopted the “most significant relationship” test of the Restatement (Second) of Conflict of Laws. See Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593 (1970). As its name implies, the “most significant relationship” test looks for the state that bears the most significant relationship to the occurrence and the parties involved in the action, and then applies that state’s laws. Miller v. Long-Airdox Co., 914 F.2d 976, 978 (7th Cir.1990). The Restatement (Second) of Conflicts of Laws Section 145(2) lists several contacts a court should analyze when determining which state has the most significant relationship with the litigation, including: the place where the injury occurred; the place where the conduct causing the injury occurred; the parties’ domiciles, residences, places of incorporation, and places of business; and the place where the parties’ relationship, if any, is centered. Esser v. McIntyre, 169 Ill.2d 292, 214 Ill.Dec. 693, 661 N.E.2d 1138 (1996). “Generally, in a tort case, the two most important contacts are the place where the injury occurred .and the place where the conduct causing the injury occurred.” Miller, 914 F.2d at 978. Illinois law presumes that the law of the state where the injury occurred will govern “unless another" }, { "docid": "2486691", "title": "", "text": "1020, 85 L.Ed. 1477 (1941), this question must be resolved according to Illinois choice-of-law principles. When addressing choice-of-law issues in tort actions, Illinois courts apply the “most significant contacts” test. Palmer v. Beverly Enters., 823 F.2d 1105, 1112 (7th Cir.1987); Ingersoll v. Klein, 46 Ill.2d 42, 48, 262 N.E.2d 593, 596 (1970). Under the most significant contacts test, the court should apply the law of the state that has the most significant relationship with the occurrence and with the parties. Ingersoll, 46 Ill.2d at 47, 262 N.E.2d at 596. Several factors are relevant to this determination, including: (1) the place where the injury occurred; (2) the place where the conduct occurred; (3) the domicile, nationality, place of incorporation, and place of business of the parties; and (4) the place where the relationship of the parties is centered. Id. at 47-48, 262 N.E.2d at 596. After weighing the factors articulated in Ingersoll, supra, this court finds that Illinois has the most significant relationship to the cause of action. LT’s fraud claim is predicated on several misrepresentations allegedly made by Peterson during the course of the contract negotiations. All of the negotiations regarding the asset purchase agreement were conducted at Peterson’s offices, in Chicago, Illinois. Thus, any alleged fraudulent misrepresentations made by Fink (or any other representative of Peterson) necessarily occurred in Illinois. Illinois is also the place where the injury occurred. LT took possession of Peterson’s assets in Illinois and continued to manufacture, package, and ship Eyegel from that location. Moreover, the relationship between the parties was centered in Illinois, the place where the asset purchase agreement was negotiated, executed, closed, and performed. None of Peterson’s representatives went to Massachusetts in connection with the negotiation or performance of the asset purchase agreement. Although the remaining factor — i.e., the domicile, place of incorporation, and place of business of the parties — does not appear to conclusively favor one state over the other, the weight of the contacts dictates that Illinois law is to govern LT’s fraud claim. Under Illinois law, a party cannot maintain a fraud claim without alleging the following" }, { "docid": "11192322", "title": "", "text": "were staying. 1993 WL 12181 at *1, 1993 Ohio App. LEXIS 239, at *2-*3. The Michigan jury found Mr. Coffee, the maker of the defective appliance, guilty of: (1) willful and wanton misconduct; (2) negligence in the design and manufacture of the coffee maker; and (3) breach of an implied warranty of fitness. Id. at *1, 1993 Ohio App. LEXIS at *3. After a jury awarded plaintiffs $42 million, consent judgments were entered and a settlement was reached for over $20 million. Id. at *1,1993 Ohio App. LEXIS at *3-*4. The next year, Mr. Coffee and California Union Insurance filed a complaint for contribution in Ohio state court against Therm O Disc, the supplier of allegedly defective components for the coffeemaker. Id. at *2, 1993 Ohio App. LEXIS at *4. On appeal, the court determined that under the significant relationship test of sections 6 and 145 of the Restatement, the law of Michigan, instead of Ohio, should be applied. Id. at *7-8, 1993 Ohio App. LEXIS at *20-*21. In particular, the appellate court took into account fourteen factors related to the underlying tort claim in its choice-of-law analysis. Id. at *7-9, 1993 Ohio App. LEXIS at *21-*22. Because twelve of the factors related to the state of Michigan, the court found that “balancing these fourteen factors clearly establishes that the state of Michigan possessed the most significant relationship to the parties and events.” Id. at *8, 1993 Ohio App. LEXIS at *22. We find this case inapplicable to the present case for three reasons: (1) it was unreported and therefore has no prece-dential value; (2) the court considered several factors not outlined in the Restatement, for example, the place where the estates of the decedents were opened; the residency of the estate administrators; and the place where the wrongful death action was filed and; (3) the appellate court considered several factors that relied explicitly on the rule of lex loci delicti and the fact that the tort action was filed in Michigan, including for example, the place where the jury verdict was rendered; the place where the verdict was appealed;" }, { "docid": "1813868", "title": "", "text": "fell within the district court’s ancillary jurisdiction because it arose out of the “same occurrence or transaction” as Miller’s claim. See Hartford Acc. & Indem. Co. v. Sullivan, 846 F.2d 377, 381-82 (7th Cir.1988); see also Shields v. Consolidated Rail Corp., 810 F.2d 397, 398 (3d Cir.1987). Amax filed a summary judgment motion, contending that Indiana law applied to Long-Airdox’s contribution claim, and that Indiana law does not allow contribution among joint tortfeasors. See Elcona Homes Corp. v. McMillan Bloedell, Ltd., 475 N.E.2d 713, 715 (Ind.App.1985); Barker v. Cole, 396 N.E.2d 964, 971 (Ind.App.1979). The district court agreed with Amax and entered judgment dismissing Long-Airdox’s contribution claim. Long-Airdox appeals. Although Miller's claim against Long-Airdox remains to be resolved, the district court properly entered judgment under Fed.R.Civ.P. 54(b) so we have jurisdiction over this appeal. On appeal, Long-Airdox contends the district court erred by applying Indiana rather than Illinois law to Long-Airdox’s contribution claim. The parties agree that the choice-of-law rules of Illinois, the forum state in this action, govern which state’s law applies to Long-Airdox’s contribution action. See Klaxon Co. v. Stentor Electric Mfg. Co., 318 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Shields, 810 F.2d at 399; see also Pittway Corp. v. Lockheed Aircraft Corp., 641 F.2d 524, 526 (7th Cir.1981). In tort cases (including third-party actions for contribution), Illinois has adopted the “most significant relationship” test of the Restatement (Second) of Conflict of Laws. See Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593 (1970); Vickrey v. Caterpillar Tractor Co., 146 Ill.App.3d 1023, 100 Ill.Dec. 636, 638-39, 497 N.E.2d 814, 816-17 (4th Dist.1986); see also Pittway, 641 F.2d at 526. As its name implies, the “most significant relationship” test seeks to find which state bears the most significant relationship to the occurrence and the parties involved in the action, and then applies that state’s laws. Restatement (Second) of Conflicts of Laws § 145(2) sets out several contacts a court is to analyze to determine which state has the most significant relationship with the litigation. Those contacts include: the place where the injury occurred; the place where" }, { "docid": "12086489", "title": "", "text": "Moreover, under Illinois law, it is well-settled that in a tort action, the courts apply a most-significant-contacts test to determine which state’s laws apply. Under that test, “The local law of the state where the injury occurred should determine the rights and liabilities of the parties ...” Ingersoll v. Klein, 46 Ill.2d 42, 45, 262 N.E.2d 593, 595 (1970), unless another state has a more significant relationship to the occurrence or the parties. Id.; Pittway Cory. v. Lockheed Aircraft Corp., 641 F.2d 524, 526 (7th Cir.1981). In determining whether another state has a more significant relationship with the litigation than does the place of injury, the contacts to be considered include the place where the conduct causing the injury occurred; the domicile, residence, nationality, place of incorporation and place of business of the parties; and the place where the relationship, if any, between the parties is centered. Id. Applying these principles to French’s complaint in this case and construing the allegations in the complaint in a light most favorable to him, as is appropriate on an appeal of a decision granting a motion to dismiss, Ricci v. Chicago Mercantile Exchange, 447 F.2d 713, 715 (7th Cir.1971), aff'd on other grds., 409 U.S. 289, 93 S.Ct. 573, 34 L.Ed.2d 525 (1973), it is clear that Alabama law must be applied. The place of injury (the loss of French’s job) was Alabama. In Paragraph 15 of the complaint, French alleged that he returned to the Alabama plant and resumed working for Beatrice until April 30, 1982, at which time he was terminated. Both the actual loss of the job and the cause of the injury, the termination, occurred in Alabama. Additionally, the alleged events leading to the termination, the audit and plaintiff’s assistance to the auditor, occurred in Alabama. Although the statement made by Beatrice management in Chicago, regarding French’s future employment, coupled with French’s special assignment in Alabama clearly foreshadowed the end of his employment, French admits he returned to work in Alabama for two months before he was actually terminated. We, therefore, cannot avoid concluding that the job loss occurred" }, { "docid": "11578475", "title": "", "text": "Affirmed by published per curiam opinion, OPINION PER CURIAM: This appeal requires us to consider the sufficiency of an evidentiary determination made by the district court. Specifically, we are called upon to decide whether the district court properly carried out its function as evidentiary “gatekeeper” pursuant to the Supreme Court’s mandate in Daubert v. Mer-rell Dow Pharmaceuticals, Inc.. Because we find that the district court made its decision to admit certain expert testimony in accordance with the demands of Daubert and its progeny, we affirm its ruling. Facts and Procedural Background The underlying facts of this case are straightforward. On the evening of December 30, 1991, fire broke out in Eileen Gitel-son’s home in Potomac, Maryland. Mrs. Gi-telson’s insurance carrier, Maryland' Casualty Company (“Maryland Casualty”), paid Mrs. Gitelson for her loss, and was subrogated to any claims she had regarding the fire. Maryland Casualty then sued Appellant Therm-O-Disc, Inc. (“ThermO-Dise”) to recover for the damage, alleging that a defective thermostat, manufactured by Therm-O-Disc and contained in Mrs. Gitelson’s Whirlpool drier, caused the fire. At trial, Maryland Casualty sought to introduce the testimony of James Rodems (“Rodems”), an electrical engineer specializing in thermostats and other electrical switches. Rodems was expected to testify that, in his opinion, the fire that began in Mrs. Gitelson’s drier was indeed caused by a malfunction in the Therm-0 Disc thermostat. Therm-O-Disc objected to this profferred testimony, and moved in limine to exclude it. As a result of this objection, the district court held a “Daubert-type hearing” to determine whether Rodems’s testimony was admissible. This Daubert hearing lasted several hours, and resulted in the district court’s admission of Rodems’s testimony. At the close of all evidence in the case, Therm-O-Disc made a motion for judgement as a matter of law pursuant to Rule 50(a) of the Federal Rules of Civil Procedure, arguing that: (A) Ro-dems’s testimony was based on conjecture and speculation and was therefore not properly admitted, and (B) Maryland Casualty had failed to show a causal link between the allegedly defective thermostat and the fire. The district court denied this motion. The jury returned a" }, { "docid": "11414559", "title": "", "text": "talent on the football team he coaches. In his declaration, Newton stated that people who he met for the first time asked him whether he took his name from Burt Reynolds’s character. Based on the submitted evidence, the district court granted summary judgment in favor of Appellees. The district court also sanctioned Newton’s attorney Childress in the amount of $10,000 for filing Newton’s complaint in the Illinois district court and denied Appellees’ motion for attorneys’ fees. Newton and Childress appeal and Appellees cross-appeal. ANALYSIS 1. Newton’s Appeal of Summary Judgment We review de novo the district court’s grant of summary judgment. Smith v. Noo-nan, 992 F.2d 987, 989 (9th Cir.1993). Viewing the evidence in the light most favorable to Newton, as the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Botejur v. City of Eagle Point, 7 F.3d 152, 154 (9th Cir.1993). A. Applicable State and Federal Law Because the case was transferred under 28 U.S.C. § 1404(a) from the Northern District of Illinois, we apply the choice-of-law rules of Illinois. Muldoon v. Tropitone Furniture Co., 1 F.3d 964, 965 (9th Cir.1993) (citing Van Dusen v. Barrack, 376 U.S. 612, 642, 84 S.Ct. 805, 822, 11 L.Ed.2d 945 (1964), for the requirement that the transferee court follow the choice of law rules of the transferor court). Illinois choice of law requires that we apply California law to Newton’s state tort law right of publicity and unfair competition claims. Illinois uses the “most significant contacts” test to determine the applicable law in a tort case. Muldoon, 1 F.3d at 966 (citing Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593, 596 (1970)). This test balances four factors: (1) the place where the injury occurred; (2) the place where the conduct occurred; (3) the parties’ domicile, nationality, place of incorporation and place of business; and (4) the place where the parties’ relationship is centered. Anabaldi v. Sunbeam Corp., 651 F.Supp. 1343, 1344 (N.D.Ill.1987) (quoting Ingersoll, 262 N.E.2d at 596). In this case, the injury (broadcasting" }, { "docid": "12086488", "title": "", "text": "granted Beatrice’s motion to dismiss. On appeal, French argues the district court was required to accept all of the allegations of his complaint as true for purposes of deciding the motion to dismiss. French contends that because he never alleged he was fired in Alabama or that his employment relationship with Beatrice was centered in Alabama, the court must have relied on Beatrice’s characterization of the facts in reaching these conclusions. He argues that only by making findings contrary to the complaint was the district court able to dismiss plaintiff’s action. Additionally, French submits that the actual event which led to his injury, was his February 4, 1982, conversation with Illinois management. Thus, Illinois law should have been applied in any event. The parties agree that in a diversity action, the district court is required to look at the conflict of laws principles of the state in which it sits to determine which state’s substantive law is controlling. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Moreover, under Illinois law, it is well-settled that in a tort action, the courts apply a most-significant-contacts test to determine which state’s laws apply. Under that test, “The local law of the state where the injury occurred should determine the rights and liabilities of the parties ...” Ingersoll v. Klein, 46 Ill.2d 42, 45, 262 N.E.2d 593, 595 (1970), unless another state has a more significant relationship to the occurrence or the parties. Id.; Pittway Cory. v. Lockheed Aircraft Corp., 641 F.2d 524, 526 (7th Cir.1981). In determining whether another state has a more significant relationship with the litigation than does the place of injury, the contacts to be considered include the place where the conduct causing the injury occurred; the domicile, residence, nationality, place of incorporation and place of business of the parties; and the place where the relationship, if any, between the parties is centered. Id. Applying these principles to French’s complaint in this case and construing the allegations in the complaint in a light most favorable to him, as is appropriate on" }, { "docid": "11192320", "title": "", "text": "be evaluated according to their relative importance with respect to the particular issue. RESTATEMENT (SECOND) Of CONFLICT ÜF Laws § 145 (1971). Section 6 provides further guidance for analysis under the Restatement and describes several general principles to be considered when conducting a choice-of-law analysis. These principles include: the interests of each state in having its law applied; the relevant policies of the forum; certainty, predictability and uniformity of result; ease in the determination and application of the law to be applied; the promotion of interstate order; and the basic policies underlying the field of law. restatement (Second) Of Conflict Of Laws § 6 (1971). Furthermore, section 173 of the Restatement, which governs contribution and indemnity among tortfeasors, provides that “[t]he law selected by application of the rule of § 145 determines whether one tort-feasor has a right to contribution or indemnity against another tortfeasor.” restatement (Second) Conflict Of Laws § 173 (1971). C. Application of Ohio’s Choice-of-Law Rule to Muncie’s Claim The applicable law in this case determines whether Muncie is able to as sert a claim against UTA. In Ohio, joint-feasors may bring actions for contribution. ohio Rev.Code Ajsin. §§ 2307.31, 2307.32 (West 2002). Indiana, in contrast, does not recognize claims for contribution among joint tortfeasors. See Consol. Rail Corp. v. Allied Corp., 882 F.2d 254, 258 (7th Cir.1989) (“[T]here is no dispute that Indiana does not recognize actions for contribution among joint tortfeasors”) (citing Jackson v. Record, 211 Ind. 141, 5 N.E.2d 897 (1937)); see also Elcona Homes Corp. v. McMillan Bloedell, Ltd., 475 N.E.2d 713, 715 (Ind.Ct.App.1985) (“Indiana adheres to the long-standing rule prohibiting contribution among joint tort-feasors.”) (citations omitted). Because of the dearth of case law in this area, both parties had difficulties finding case support for their positions. In arguing that Ohio law should apply to this action, Muncie relies principally on California Union Insurance Co. v. Therm-O-Disc, Inc., 1993 WL 12181, 1993 Ohio App. LEXIS 239 (Ohio App. Jan. 21, 1993) (unreported). In Therm-O-Disc, four people were killed in Michigan when a coffeemaker caused a fire that destroyed the cabin in which they" }, { "docid": "2486690", "title": "", "text": "DeClassis. According to plaintiffs, LT and DeClassis mismanaged the Eyegel and Eyepac product lines, and failed to fully satisfy their contractual obligations. In addition, plaintiffs accuse LT and De-Classis of defamation. Shortly after plaintiffs commenced this action, defendants filed a counterclaim. Defendants also moved to transfer the case to the District of Massachusetts. This court subsequently denied the motion to transfer. See Fink v. DeClassis, 738 F.Supp. 1195 (N.D.Ill.1990). Fink and Peterson now move to dismiss most of the counts contained in defendants’ counterclaim. DISCUSSION Count I — Fraud In Count I, LT asserts a claim for common law fraud. Peterson has moved to dismiss that claim, arguing that LT has failed to plead the necessary elements of fraud under Illinois law. In response, LT contends that Massachusetts law governs the fraud claim and that the allegations are sufficient under Massachusetts law. As a preliminary matter, the court must determine whether Illinois law or Massachusetts law applies to LT’s fraud claim. Pursuant to Klaxon Corp. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), this question must be resolved according to Illinois choice-of-law principles. When addressing choice-of-law issues in tort actions, Illinois courts apply the “most significant contacts” test. Palmer v. Beverly Enters., 823 F.2d 1105, 1112 (7th Cir.1987); Ingersoll v. Klein, 46 Ill.2d 42, 48, 262 N.E.2d 593, 596 (1970). Under the most significant contacts test, the court should apply the law of the state that has the most significant relationship with the occurrence and with the parties. Ingersoll, 46 Ill.2d at 47, 262 N.E.2d at 596. Several factors are relevant to this determination, including: (1) the place where the injury occurred; (2) the place where the conduct occurred; (3) the domicile, nationality, place of incorporation, and place of business of the parties; and (4) the place where the relationship of the parties is centered. Id. at 47-48, 262 N.E.2d at 596. After weighing the factors articulated in Ingersoll, supra, this court finds that Illinois has the most significant relationship to the cause of action. LT’s fraud claim is predicated on several misrepresentations" }, { "docid": "11192321", "title": "", "text": "sert a claim against UTA. In Ohio, joint-feasors may bring actions for contribution. ohio Rev.Code Ajsin. §§ 2307.31, 2307.32 (West 2002). Indiana, in contrast, does not recognize claims for contribution among joint tortfeasors. See Consol. Rail Corp. v. Allied Corp., 882 F.2d 254, 258 (7th Cir.1989) (“[T]here is no dispute that Indiana does not recognize actions for contribution among joint tortfeasors”) (citing Jackson v. Record, 211 Ind. 141, 5 N.E.2d 897 (1937)); see also Elcona Homes Corp. v. McMillan Bloedell, Ltd., 475 N.E.2d 713, 715 (Ind.Ct.App.1985) (“Indiana adheres to the long-standing rule prohibiting contribution among joint tort-feasors.”) (citations omitted). Because of the dearth of case law in this area, both parties had difficulties finding case support for their positions. In arguing that Ohio law should apply to this action, Muncie relies principally on California Union Insurance Co. v. Therm-O-Disc, Inc., 1993 WL 12181, 1993 Ohio App. LEXIS 239 (Ohio App. Jan. 21, 1993) (unreported). In Therm-O-Disc, four people were killed in Michigan when a coffeemaker caused a fire that destroyed the cabin in which they were staying. 1993 WL 12181 at *1, 1993 Ohio App. LEXIS 239, at *2-*3. The Michigan jury found Mr. Coffee, the maker of the defective appliance, guilty of: (1) willful and wanton misconduct; (2) negligence in the design and manufacture of the coffee maker; and (3) breach of an implied warranty of fitness. Id. at *1, 1993 Ohio App. LEXIS at *3. After a jury awarded plaintiffs $42 million, consent judgments were entered and a settlement was reached for over $20 million. Id. at *1,1993 Ohio App. LEXIS at *3-*4. The next year, Mr. Coffee and California Union Insurance filed a complaint for contribution in Ohio state court against Therm O Disc, the supplier of allegedly defective components for the coffeemaker. Id. at *2, 1993 Ohio App. LEXIS at *4. On appeal, the court determined that under the significant relationship test of sections 6 and 145 of the Restatement, the law of Michigan, instead of Ohio, should be applied. Id. at *7-8, 1993 Ohio App. LEXIS at *20-*21. In particular, the appellate court took into" }, { "docid": "11578484", "title": "", "text": "discretion in admitting Rodems’s testimony. As Maryland Casualty notes in its brief, Rodems is an electrical engineer with over twenty-five years experience in analyzing switch failures. Through his testimony, Rodems established that .his opinion was based on his examination of the- conditions inside the disputed switch and the application of principles of electrical engineering to those conditions. Rodems was able to cite numerous works of technical literature that he alleged supported his mode of analysis, and testified that his opinion regarding electrical failures has been admitted by at least one other district court. Based on this evidence, we hold that the trial court did not abuse its discretion in admitting Rodems’s testimony. Maryland Casualty came forward with ample evidence from which the district court could have made its. “preliminary assessment” of reliability. and helpfulness, and the district court clearly did not find that Therm-O-Dise’s rebuttal was sufficient to overcome that evidence. As the matter was within the .district court’s sound discretion, we find that it committed no error in deciding to admit the testimony. II. We next consider Therm-O-Disc’s contention that Maryland Casualty did not prove a causal link between the thermostat and the fire in the Gitelson home, and thus that Therm-O-Dise was entitled to judgment as a matter of law. Under Maryland law, which applies in this diversity case, to recover in strict liability for a manufacturing defect, a plaintiff .must establish, inter alia, a causal relationship between the claimed defect and the injury. There is no question that the offered proof must rise abové the level of speculation or conjecture. Any facts that establish proof greater than speculation or conjecture, however, create a question for the jury. Furthermore, proximate cause may be established by circumstantial evidence. In this case, \"the jury heard Rodems’s theory that the thermostat was defective and caused the fire. Maryland\" Casualty introduced other evidence that ruled out any other cause of the fire. Under these circumstances, it was left to the jury to determine the question of causation, which it resolved in favor of Maryland Casualty. Examining the evidence in the. light most" }, { "docid": "7778408", "title": "", "text": "given, we have held that “the failure to do so does not necessarily mandate reversal where nothing else could have been raised to alter the entry of summary judgment.\" [citations omitted]. In light of our conclusion that Beam’s complaint does not rely on a valid legal theory, it is clear that further development of the facts would not have helped Beam. Id. at n. 2. Cf. Chicago-Midwest Meat Ass’n v. City of Evanston, 589 F.2d 278, 281-82 (7th Cir.1978), cert. denied, 442 U.S. 946, 99 S.Ct. 2895, 61 L.Ed.2d 318 (1979). Similarly, Russell has not established that further development of the facts in this instance would have sufficiently supported Russell’s malicious prosecution and abuse of process claims. . In a diversity action, a federal court must apply the choice-of-law principles of the state in which it sits to determine which state’s substantive law governs. French v. Beatrice Foods, Co., 854 F.2d 964, 966 (7th Cir.1988) (citing Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941)). In tort actions, Illinois courts embrace a \"most significant contacts” test, which presumes that the law of the state where the injury occurred governs unless another state has a more significant relationship to the occurrence or the parties involved. Id. (citing Ingersoll v. Klein, 46 I11.2d 42, 45, 262 N.E.2d 593, 595 (1970)); Pittway Corp. v. Lockheed Aircraft Corp., 641 F.2d 524, 526 (7th Cir.1981). Here, the fire which precipitated this entire dispute occurred in Michigan. The predicate lawsuit underlying Russell’s claims of malicious prosecution and abuse of process was filed, litigated and dismissed in Michigan. The only relationship Illinois has with this case is that it is the residence of Russell and principal place of business of Ron Russell and Associates. Michigan is indisputably the state with the most significant relationship. . The court maintained: A party who reasonably expects to have obtained his peace with another from the outcome of an initial lawsuit brought by the other suffers a special injury where he is forced a second time to litigate the same dispute, or another" }, { "docid": "23631228", "title": "", "text": "basis of our own independent research and analysis. For a general discussion of the scope of appellate review under Rule 44.1, see 9 Wright & Miller, Federal Practice and Procedure § 2446, at 414-15 (1971). III. In diversity cases, of course, a federal court applies the substantive law of the state in which it sits. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Where the laws of more than one jurisdiction are at least arguably in issue, the Erie reference to the law of the forum state includes that state’s choice of law rules. Klaxon Company v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Griffin v. McCoach, 313 U.S. 498, 61 S.Ct. 1023, 85 L.Ed. 1481 (1941). We think it clear, and neither party disagrees, that the Illinois courts would choose to apply the substantive law of Yugoslavia to this case. Yugoslavia was the site of the tort and the injury, and we can think of no argument that would demonstrate that Illinois has a more significant relationship with this case than has Yugoslavia. See Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593, 595 (1970). Moreover, the district court’s cogent analysis, 404 F.Supp. at 61— 63, demonstrates beyond any real question that this is the type of foreign cause of action that the courts of Illinois will enforce. See generally Hartness v. Aldens, Inc., 301 F.2d 228 (7th Cir. 1962); Clubb v. Clubb, 402 Ill. 390, 84 N.E.2d 366 (1949). Although only Count I is expressly rooted in Yugoslavian law, these conclusions apply with full force to Count II as well. Even if Illinois courts would apply the principles of Illinois equity jurisprudence to Kalmich’s constructive trust theory, the underlying premise of the theory, the asserted unlawfulness and tortiousness of Bruno’s seizure of Kalmich’s business, would have to be measured by Yugoslavian law. See Ingersoll v. Klein, supra. The choice of the applicable statute of limitations poses a different, and, in this case, a more difficult problem. State law barring an action because of" }, { "docid": "11578476", "title": "", "text": "Maryland Casualty sought to introduce the testimony of James Rodems (“Rodems”), an electrical engineer specializing in thermostats and other electrical switches. Rodems was expected to testify that, in his opinion, the fire that began in Mrs. Gitelson’s drier was indeed caused by a malfunction in the Therm-0 Disc thermostat. Therm-O-Disc objected to this profferred testimony, and moved in limine to exclude it. As a result of this objection, the district court held a “Daubert-type hearing” to determine whether Rodems’s testimony was admissible. This Daubert hearing lasted several hours, and resulted in the district court’s admission of Rodems’s testimony. At the close of all evidence in the case, Therm-O-Disc made a motion for judgement as a matter of law pursuant to Rule 50(a) of the Federal Rules of Civil Procedure, arguing that: (A) Ro-dems’s testimony was based on conjecture and speculation and was therefore not properly admitted, and (B) Maryland Casualty had failed to show a causal link between the allegedly defective thermostat and the fire. The district court denied this motion. The jury returned a verdict in favor of Maryland Casualty, and assessed damages in the amount of $635,893 against Therm-O-Disc. Therm-O-Dise renewed its motion for judgement as a matter of law, which the district court also denied. This appeal followed. Discussion I. Therm-O-Disc’s primary argument in this appeal is that the district court failed to apply the test for the admission of expert scientific testimony demanded by Daubert. Within this broad allegation, ThermO-Disc makes several specific arguments. We consider each in turn, and review the district court’s decision to admit the testimony for abuse of discretion. A. Therm-O-Disc first argues that the district court erred in placing on Therm-O-Disc the “burden of proof’ regarding the relevance and reliability of Rodems’s testimony. Such a shift constitutes error, Therm-O-Disc contends, because “Daubert requires the party proffering the expert testimony to meet its Rule 104(a)[of the Federal Rules of Evidence] burden by a preponderance of evi- denee.” Daubert, however, makes no mention of a burden of “proof’ regarding the decision to admit expert scientific testimony. We assume Therm-ODise misuses this term to" }, { "docid": "16662326", "title": "", "text": "litigants are governed by the same legal rules. Otherwise the class cannot satisfy the commonality and superiority requirements of Fed.R.Civ.P. 23(a)(b)(3).” In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1015 (7th Cir.2002). Differences in state law on theories presented in a putative class action have led the Seventh Circuit to hold that the actions may not proceed as a nationwide class. Id. Therefore, uniform law on invasion of privacy, intrusion into seclusion, and unjust enrichment is essential for certification of a requested nationwide class. Because the common law claims are pendant state law claims, this court applies the choice of law rules of the state in which it sits. Id.; Baltimore Orioles, Inc. v. Major League Baseball Players Ass’n., 805 F.2d 663, 681 (7th Cir.1986). For tort claims, Illinois follows the most significant relationship test of the Restatement (Second) of Conflicts of Law. Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593 (1970). “Under this test, the law of the place of injury controls unless Illinois has a more significant relationship with the occurrence and with the parties.” Id. at 45, 262 N.E.2d 593. When applying this test the court considers: (1) where the injury occurred; (2) where the injury causing conduct occurred; (3) the domicile of the party; and (4) where the relationship of the parties is centered. Id. at 47, 262 N.E.2d 593. The court must look at the contacts of the jurisdictions under these four factors and then evaluate those contacts in light of the policies underlying the laws of those jurisdictions. Esser v. McIntyre, 169 Ill.2d 292, 298, 214 Ill.Dec. 693, 661 N.E.2d 1138 (1996). In the instant case, the alleged injury occurred in all fifty states. Although it is unclear from the pleadings, the court will assume, for purposes of this motion, that the injury causing conduct occurred at Trans Union’s headquarters in Illinois. Plaintiffs are domiciled in all fifty states, Trans Union is domiciled in Illinois. To the extent there exists a relationship between Trans Union and plaintiffs, that relationship would be centered where plaintiffs are domiciled, which would be in all fifty states. To" } ]

[ { "docid": "21034454", "title": "", "text": "offense, the determination of whether the conduct rose to the level of abuse is largely in the hands of the jury.”) We can not say as a matter of law that Mr. Smith’s conduct was not sexual harassment. See' Breeding, 164 F.3d at 1159 (declining to hold supervisor’s conduct involving fondling his genitals and using lewd and sexually inappropriate language could not, as a matter of law, be actionable sexual harassment); Rorie v. United Parcel Serv. Inc., 151 F.3d 757, 762 (8th Cir.1998). What is more, there was sufficient evidence to support a reasonable jury finding that Mr. Smith’s conduct was based on Ms. Moring’s gender. “[T]he key inquiry is whether ‘members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’ ” Quick v. Donaldson Co., 90 F.3d 1372, 1378 (8th Cir.1996) (quoting Harris, 510 U.S. at 25, 114 S.Ct. 367 (Ginsburg, J., concurring)). Here, Mr. Smith engaged in conversation of a sexual nature on the drive to Calico Rock, he appeared barely clothed at the plaintiffs door, he sat on her bed, he touched her thigh and attempted to kiss her. A reasonable jury could find that this conduct would not have been directed at a male employee. Likewise, there was evidence that the conduct was uninvited. Ms. Moring asked Mr. Smith to leave her room several times, and she resisted his advance. She also testified that she was afraid and considered Mr. Smith’s behavior abusive and threatening. Furthermore, there was sufficient evidence to allow a reasonable jury to find that the work environment was objectively hostile and abusive. Whether a work environment is objectively hostile or abusive is a fact-intensive inquiry. Bales v. WalMart Stores, Inc., 143 F.3d 1103, 1109 (8th Cir.1998). Here, there was testimony that after the incident Ms. Moring often spoke of the incident and often cried at work. She avoided Mr. Smith and was under stress at her job. In addition, other ADC employees testified that Ms. Moring was visibly upset over the incident. Thus, we can not, as a matter" } ]

[ { "docid": "1780666", "title": "", "text": "sexual advances and unwanted touching); Barrett v. Omaha Nat’l Bank, 584 F.Supp. 22, 24, 30 (D.Neb.1983) (incident of physical touching inside the confined space of an automobile) (liability denied on other grounds), aff'd, 726 F.2d 424 (8th Cir.1984); Redman v. Lima City Sch. Dist. Bd. of Educ., 889 F.Supp. 288, 291, 293 (N.D.Ohio 1995) (plaintiff forced against wall and supervisor proceeded to fondle and rub against the plaintiff in a sexual manner). Cases involving physical contact that were not found to be sufficient to constitute sexual harassment were less severe than what has been alleged here. See, e.g., Quinn, 159 F.3d at 768 (two alleged incidents of hostile treatment, in which a supervisor made a comment about the plaintiffs body and touched her breasts with some papers); Koelsch v. Beltane Elecs. Corp., 46 F.3d 705, 706-08 (7th Cir.1995) (company president rubbed the plaintiffs leg, grabbed her buttocks, and asked her for dates); Saxton v. Am. Tel. & Tel. Co., 10 F.3d 526, 528, 534-35 (7th Cir.1993) (supervisor put his hand on the plaintiffs leg and kissed her until she pushed him away, and on another occasion the supervisor lurched at the plaintiff and tried to grab her); Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir.1993) (supervisor asked the plaintiff for dates, called her a “dumb blond,” put his hand on her shoulder several times, placed “I love you” signs in her work area, and attempted to kiss her). The cases relied upon by the Seabrook defendants, see Seabrook Mem. at 9-11, do not require a different outcome. Christoforou v. Ryder Truck Rental, Inc., 668 F.Supp. 294 (S.D.N.Y.1987), the primary case relied on by the Seabrook defendants, was a decision following a bench trial. While the court’s decision rejecting the sexual harassment claim recounted the plaintiffs testimony in detail, the court made clear that it had discredited much of her testimony, id. at 299, and, in the end, found only that there was “some sexual tension between” the plaintiff and the supervisor, id. at 300. In Saxton, 10 F.3d at 528, 534-35, there was an attempted" }, { "docid": "1408201", "title": "", "text": "889 (7th Cir.2001). Though infrequent, Lattanzio’s alleged outright solicitation of numerous sex acts from Quantock is considerably more “severe” than the type of “occasional vulgar banter, tinged with sexual innuendo” that has previously been deemed to fall short of the hostile workplace standard. See, e.g., McKenzie v. Ill. Dep’t of Transp., 92 F.3d 473, 480 (7th Cir.1996) (finding that three “sexually suggestive” comments by a co-worker did not “unreasonably interfere [ ]” with the plaintiffs working environment). Given that Lattanzio made his repeated requests for sex directly to Quantock, see Patt v. Family Health Sys., Inc., 280 F.3d 749, 754 (7th Cir.2002) (sexual innuendo not “severe” because made out of the presence of the claimant), and in light of Lattanzio’s significant position of authority at the company and the close working quarters within which he and Quantock worked, a reasonable jury could find the sexual propositions sufficiently “severe,” as an objective matter, to alter the terms of Quantock’s employment. Moreover, there remains a triable issue of fact as to whether Quantock herself viewed that conduct as “severe or pervasive” (the “subjective” component of the hostile environment analysis). Quantock has presented evidence that she reported the conduct to a supervisor, sought treatment from a psychologist, and was “humiliated” on account of Lattanzio’s actions. A reasonable jury could therefore conclude that she did, in fact, view Lattanzio’s alleged conduct as “severe,” and that she did, as a result, experience a “hostile” workplace. Quantock also submitted evidence establishing the remaining elements of her sexual-harassment claim — that the conduct was directed at her because of her sex, and that there was a basis for employer liability. See Hilt-Dyson, 282 F.3d at 462-63. Given the nature of the harassing conduct — a male supervisor’s direct requests for sex from his female subordinate — a reasonable jury could conclude that the harassment was directed at Quantock “because of her sex.” See Haugerud v. Amery School Dist., 259 F.3d 678, 695 (7th Cir.2001) (“[I]t would be reasonable to conclude that a male [employee] would not have been treated the same way.”). More over, Quantock’s evidence that" }, { "docid": "21595640", "title": "", "text": "the plaintiff asserts were sexual in nature over the period of late 2008 or early 2009 through .July 4, 2009. Such a “few isolated incidents of offensive conduct, do not amount to actionable harassment.” Stewart v. Evans, 275 F.3d 1126, 1134 (D.C.Cir.2002). Moreover, these interactions may have made the plaintiff uncomfortable but they were not so overt, constant and aggressive as to amount to severe or chronic abuse. See, e.g., Martinez v. P,R. Fed. Affairs Admin., 813 F.Supp.2d 84, 97 (D.D.C.2011) (finding numerous sexually inappropriate comments, heightened scrutiny, reassignment of job duties to othérs, creation of procedures that necessitated more contact not so pervasive, severe or abusive as to create a hostile work environment); Akonji v. Unity Healthcare, Inc., 517 F.Supp.2d 83, 97-98 (D.D.C.2007) (no hostile work environment where plaintiffs supervisor repeatedly touched plaintiff and made sexually suggestive comments); Coles v. Kelly Seros., Inc., 287 F.Supp.2d 25, 26-27, 31 (D.D.C.2003) (sending sexually explicit emails, mimicking sex, and after the plaintiff rejected sexual advances, making physically threatening gestees and swearing do not constitute hostile work environment). The four interactions occurring over seven months that are described by the plaintiff involved no aggressive or threatening physical contact or the type of chronic verbal abuse that has been found sufficient to defeat summary judgment. See, e.g., Regan v. Grill Concepts-D.C., Inc., 338 F.Supp.2d 131, 137-38 (D.D.C.2004) (denying summary judgment where supervisor repeatedly made sexually charged and degrading comments and. a fellow coworker exposed herself); Berman v. Wash. Times Corp., No. 92-2738, 1994 WL 750274, at *3 (D.D.C. Sept. 23, 1994) (denying summary judgment on DCHRA claims where supervisor “pursued [the plaintiff] around the office on numerous occasions, commented on her attractive appearance, and intentionally intimidated her[,]” and the “work environment was replete with misogynistic decorations, including degrading signs, pictures of scantily-clad women, and a pornographic game.”). Indeed, none of the plaintiffs interactions with Co-Worker 1 that she alleges were of a sexual nature were of sufficient seriousness to prompt the plaintiff to report the incidents to her supervisors until a month or more after the incidents occurred and only when her work performance" }, { "docid": "4816604", "title": "", "text": "employer, a plaintiff must demonstrate that (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was on the basis of membership in a protected class; (4) the harassment unreasonably interfered with the plaintiffs work performance and created an intimidating, hostile, or offensive working environment; and (5) the existence of respondeat superior liability. Davis v. Coastal Int’l Sec., Inc., 275 F.3d 1119, 1122-23 (D.C.Cir.2002). If undisputed, Byrd’s description of Thompson’s conduct during her employment at the DPR easily satisfies the first four elements of a hostile work environment claim. First, as a woman, Byrd is a member of a protected class. See Akonji v. Unity Healthcare, Inc., 517 F.Supp.2d 83, 97 (D.D.C.2007). Second, according to Byrd, Thompson engaged in unwelcome harassment at least once a day. She alleges that he constantly touched her breasts or buttocks, made comments sexual in nature, frequently requested sex or oral sex, and forcibly removed her clothing if she did not comply with his demands. Third, the severity of her allegations is plainly sufficient to rise to the level of pervasive harassment required to alter the terms or conditions of employment. See, e.g., Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 60, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (finding that the plaintiffs allegations that her supervisor repeatedly demanded sexual favors during and after business hours, fondled her in front of other employees, and forcibly raped her on several occasions were more than sufficiently severe to qualify as an actionable hostile work environment claim). Finally, when “challenged conduct typically involves explicit or implicit proposals of sexual activity” between members of the opposite sex, “it is reasonable to assume those proposals would not have been made to someone of the same sex” and therefore are made on the basis of sex. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Consequently, the parties’ dispute boils down to two issues. First, because the parties’ factual assertions sharply conflict in every important aspect regarding the extent and nature of" }, { "docid": "21595639", "title": "", "text": "839 F.Supp.2d 284, 299 (D.D.C.2012). At the same time, “a ‘hostile work environment claim is composed of a series of separate acts that collectively constitute one unlawful employment practice.... A court’s task is to determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice.’ ” Bergbauer v. Mabus, 934 F.Supp.2d 55, 70 (D.D.C.2013) (emphasis and ellipses in original) (quoting Morgan, 536 U.S. at 120, 122 S.Ct, 2061). Here, the plaintiff contends that Co-Worker l’s criticism of her work performance after July 5, 2009, stemmed from her rejection of his sexual advances and should be considered as part of the same actionable hostile work environment claim. PL’s July 9,2009, Email at 2. The Court need not resolve this argument, however.. Even considering all of Co-Worker l’s conduct together, the plaintiff still fails to make a sufficient showing that this conduct was sufficiently severe or pervasive as to’ create a hostile work environment. First, the incidents were isolated and infrequent occurrences — consisting of only four interactions that the plaintiff asserts were sexual in nature over the period of late 2008 or early 2009 through .July 4, 2009. Such a “few isolated incidents of offensive conduct, do not amount to actionable harassment.” Stewart v. Evans, 275 F.3d 1126, 1134 (D.C.Cir.2002). Moreover, these interactions may have made the plaintiff uncomfortable but they were not so overt, constant and aggressive as to amount to severe or chronic abuse. See, e.g., Martinez v. P,R. Fed. Affairs Admin., 813 F.Supp.2d 84, 97 (D.D.C.2011) (finding numerous sexually inappropriate comments, heightened scrutiny, reassignment of job duties to othérs, creation of procedures that necessitated more contact not so pervasive, severe or abusive as to create a hostile work environment); Akonji v. Unity Healthcare, Inc., 517 F.Supp.2d 83, 97-98 (D.D.C.2007) (no hostile work environment where plaintiffs supervisor repeatedly touched plaintiff and made sexually suggestive comments); Coles v. Kelly Seros., Inc., 287 F.Supp.2d 25, 26-27, 31 (D.D.C.2003) (sending sexually explicit emails, mimicking sex, and after the plaintiff rejected sexual advances, making physically threatening gestees and swearing do not constitute hostile work environment)." }, { "docid": "1408200", "title": "", "text": "Moreover, to qualify as “hostile,” the work environment must be “both objectively and subjectively offensive .... ” Hilt-Dyson, 282 F.3d at 463. The district court in this case found that Quantock had failed to establish a prima facie claim, insofar as the alleged harassment was not sufficiently “severe or pervasive.” Quantock v. Shared Marketing Servs., Inc., et al., No. 01 C 6571 (N.D.Ill. May 9, 2002). The district court noted that the incident of harassment was an isolated occurrence, short in duration, and that it involved no physical touching. Based on those observations, the district court concluded that there was no genuine issue of fact for trial on Quantock’s discrimination claim. In determining whether conduct is “severe or pervasive” enough to alter the conditions of employment, we look at “the totality of the circumstances, including ... the ‘frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’ ” Murray v. Chicago Transit Authority, 252 F.3d 880, 889 (7th Cir.2001). Though infrequent, Lattanzio’s alleged outright solicitation of numerous sex acts from Quantock is considerably more “severe” than the type of “occasional vulgar banter, tinged with sexual innuendo” that has previously been deemed to fall short of the hostile workplace standard. See, e.g., McKenzie v. Ill. Dep’t of Transp., 92 F.3d 473, 480 (7th Cir.1996) (finding that three “sexually suggestive” comments by a co-worker did not “unreasonably interfere [ ]” with the plaintiffs working environment). Given that Lattanzio made his repeated requests for sex directly to Quantock, see Patt v. Family Health Sys., Inc., 280 F.3d 749, 754 (7th Cir.2002) (sexual innuendo not “severe” because made out of the presence of the claimant), and in light of Lattanzio’s significant position of authority at the company and the close working quarters within which he and Quantock worked, a reasonable jury could find the sexual propositions sufficiently “severe,” as an objective matter, to alter the terms of Quantock’s employment. Moreover, there remains a triable issue of fact as to whether Quantock herself viewed that conduct" }, { "docid": "4816603", "title": "", "text": "U.S. 57, 65-67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). To be actionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive; that -is, both a reasonable person and the victim herself would find the workplace hostile or abusive. Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Whether an environment is sufficiently hostile “can be determined only by looking at all the circumstances,” including the frequency and severity of discriminatory conduct; whether the conduct is physically threatening or humiliating, or consists of a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. Hams, 510 U.S. at 23, 114 S.Ct. 367. In sum, the conduct must be so extreme as to amount to a change in the terms and conditions of employment. Faragher, 524 U.S. at 788, 118 S.Ct. 2275. To establish a prima facie hostile work environment claim against her employer, a plaintiff must demonstrate that (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was on the basis of membership in a protected class; (4) the harassment unreasonably interfered with the plaintiffs work performance and created an intimidating, hostile, or offensive working environment; and (5) the existence of respondeat superior liability. Davis v. Coastal Int’l Sec., Inc., 275 F.3d 1119, 1122-23 (D.C.Cir.2002). If undisputed, Byrd’s description of Thompson’s conduct during her employment at the DPR easily satisfies the first four elements of a hostile work environment claim. First, as a woman, Byrd is a member of a protected class. See Akonji v. Unity Healthcare, Inc., 517 F.Supp.2d 83, 97 (D.D.C.2007). Second, according to Byrd, Thompson engaged in unwelcome harassment at least once a day. She alleges that he constantly touched her breasts or buttocks, made comments sexual in nature, frequently requested sex or oral sex, and forcibly removed her clothing if she did not comply with his demands. Third, the severity of her allegations" }, { "docid": "1780665", "title": "", "text": "(co-worker held victim’s face in his hands, forced his tongue in her mouth, and began to unfasten her bra); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir.1998) (“single incident” in which a customer pulled waitress by the hair, grabbed her breast, and placed his mouth on it); Moring v. Ark. Dep’t of Corr., 243 F.3d 452, 454-55 (8th Cir.2001) (verbal sexual advances with touching of thigh and attempt to kiss in a motel room on an out-of-town trip); Rozell v. Ross-Holst, 2007 U.S. Dist. LEXIS 46450, at *1-2 (S.D.N.Y. June 21, 2007) (supervisor attempted to kiss a plaintiff at a Christmas party and subsequently hacked into plaintiffs private email account); Fall v. Ind. Univ. Bd. of Trustees, 12 F.Supp.2d 870, 873 (N.D.Ind.1998) (supervisor called employee into his office on pretext, closing door, and forcibly kissed her while groping her breasts); Prindle v. TNT Logistics of N. Am., 331 F.Supp.2d 739, 750-751 (W.D.Wis.2004) (one breast touching incident); Ferguson v. Chicago Hous. Auth, 155 F.Supp.2d 913, 916-17 (N.D.Ill.2001) (repeated but limited acts of verbal sexual advances and unwanted touching); Barrett v. Omaha Nat’l Bank, 584 F.Supp. 22, 24, 30 (D.Neb.1983) (incident of physical touching inside the confined space of an automobile) (liability denied on other grounds), aff'd, 726 F.2d 424 (8th Cir.1984); Redman v. Lima City Sch. Dist. Bd. of Educ., 889 F.Supp. 288, 291, 293 (N.D.Ohio 1995) (plaintiff forced against wall and supervisor proceeded to fondle and rub against the plaintiff in a sexual manner). Cases involving physical contact that were not found to be sufficient to constitute sexual harassment were less severe than what has been alleged here. See, e.g., Quinn, 159 F.3d at 768 (two alleged incidents of hostile treatment, in which a supervisor made a comment about the plaintiffs body and touched her breasts with some papers); Koelsch v. Beltane Elecs. Corp., 46 F.3d 705, 706-08 (7th Cir.1995) (company president rubbed the plaintiffs leg, grabbed her buttocks, and asked her for dates); Saxton v. Am. Tel. & Tel. Co., 10 F.3d 526, 528, 534-35 (7th Cir.1993) (supervisor put his hand on the plaintiffs leg and" }, { "docid": "4461453", "title": "", "text": "of a hostile workplace where a male supervisor grabbed a male employee’s genitals on two separate occasions, stalked the employee several times a day, and where the employee’s co-workers taunted him for making a harassment complaint. Likewise, in Williams, we found that a hostile work environment was shown when over four months, a male supervisor stared at the plaintiffs breasts and said;“[y]ou can rub up against me anytime ... you would kill me ... I don’t know if I can handle it, but I’d die with a smile on my face,” came up behind her, put his arm around her neck and told her that she “left the dick out of the hand” when she wrote “Hancock Furniture Company,” and came up behind her on another occasion while she was bending over and told her to back up into him. 187 F.3d at 562-64. In contrast, a hostile work environment was not shown where, over a two month period, a male supervisor continuously made sexually suggestive comments about the female plaintiffs appearance, touched her breast as he removed and replaced a pen from her shirt pocket, leered at her, and told her that if he had someone like her, he would never let her leave the house. See Stacy v. Shoney’s, Inc., No. 97-5393, 1998 WL 165139, at *1-3 (6th Cir.1998) (unpublished). The Seventh Circuit found that alleged harassment lacked severity where, over a two-year period, a male supervisor and co-workers, made sexual jokes about the plaintiff, commented on how she should eat a banana, told her not to wave at squad ears because people would think she was a prostitute, stared at her breasts, and touched her on the arms, fingers, and may have once poked at her buttocks. Adusumilli v. City of Chicago, 164 F.3d 353, 357 (7th Cir.1998). Although Knoop’s allegations of harassment by Brock could certainly be construed as offensive, they are simply not substantial enough to satisfy the prima facie showing. Her claims depict isolated instances rather than an ongoing situation. Appellants retort that the harassment of Knoop was much more pervasive, relying on the" }, { "docid": "22778905", "title": "", "text": "least once a week and often several times per day); Anderson v. Reno, 190 F.3d 930 (9th Cir.1999) (finding a hostile work environment where a supervisor repeatedly referred to the employee as “office sex goddess,” “sexy,” and “the good little girl” and where he humiliated the employee in public by drawing a pair of breasts on an easel while the employee was making a presentation and then told the assembled group that “this is your training bra session,” and where the employee received vulgar notes and was patted on the buttocks and told she was “putting on weight down there”), abrogated on other grounds in Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106; Draper v. Coeur Rochester, 147 F.3d 1104, 1109 (9th Cir.1998) (finding hostile work environment where plaintiffs supervisor made repeated sexual remarks to her, told her of his sexual fantasies and desire to have sex with her, commented on her physical characteristics, and asked over a loudspeaker if she needed help changing her clothes). We are certainly troubled by the “Lima incident” and by the racially offensive gesture made by Green and Correia. We also recognize that these events caused Manatt to suffer pain. If these actions had occurred repeatedly, Manatt may very well have had an actionable hostile environment claim. See Brooks v. City of San Mateo, 229 F.3d 917, 926 (9th Cir.2000) (noting that “the required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct”) (citations omitted). But these two regrettable incidents occurring over a span of two-and-a-half years, coupled with the other offhand remarks made by Manatt’s co-workers and supervisor, did not alter the conditions of Ma-natt’s employment. Her hostile work environment claim must fail. III We now address Manatt’s several retaliation claims. To make out a prima facie case of retaliation under Title VII, Manatt must establish that: (1) she engaged in a protected activity, such as the filing of a complaint alleging racial discrimination, (2) the Bank subjected her to an adverse employment action, and (3) “a causal link exists between" }, { "docid": "16353393", "title": "", "text": "Lindblom, but also that a reasonable employee in Lindblom’s position would have perceived as hostile or abusive. See Hams, 510 U.S. at 21, 114 S.Ct. 367; Saxton, 10 F.3d at 534. If the conduct was not so severe and pervasive as to create an objectively hostile work environment, the conduct “is beyond Title VII’s purview.” Harris, 510 U.S. at 21, 114 S.Ct. 367. Plaintiffs allegations have much in common with those in a recent case decided by the Seventh Circuit, Adusumilli, supra. In Adusumilli, the plaintiff, an administrative assistant at a police station, complained of a hostile work environment. She alleged that she was subjected to sexual joking and sexual comments by coworkers. She suffered several incidents in which coworkers stared at her breasts. She also experienced unwanted physical contact in the form of a touch on her upper arm, two instances of poking at her fingers, and one instance of poking at her buttocks. Adusumilli, 164 F.3d at 357. The Seventh Circuit held that the alleged conduct was “too tepid or intermittent or equivocal to make a reasonable person believe that [the plaintiff had] been discriminated against on the basis of her sex.” Adusumilli 164 F.3d at 362, quoting Galloway v. General Motors Service Parts Operations, 78 F.3d 1164, 1168 (7th Cir.1996). Similarly, in Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 337 (7th Cir.1993), the plaintiff complained of a hostile work environment caused by an overly amorous supervisor. On numerous occasions, the supervisor asked her for dates, called her a dumb blond, and put his hand on her shoulder. He attempted to kiss the plaintiff at a bar, and, on two occasions, he tried to kiss her in her office. The supervisor even placed an “I love you” sign in her work area. The Seventh Circuit held that these incidents did not amount to actionable sexual harassment because they were not sufficiently pervasive and severe from an objective perspective. Id. at 337. See also McKenzie v. Illinois Dept. of Transportation, 92 F.3d 473, 479-80 (7th Cir.1996) (holding that three sexually suggestive and offensive comments over a three-month period" }, { "docid": "23032478", "title": "", "text": "276 F.3d 249, 268 (7th Cir.2001) (“[W]e have often recognized that even one act of harassment will suffice [to create a hostile work environment] if it is egregious.”); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir.1998) (holding that a single incident of physically threatening and humiliating conduct can be sufficient to create a hostile work environment for a sexual harassment claim); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir.1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (“[E]ven a single incident of sexual assault sufficiently alters the conditions of the victim’s employment and clearly creates an abusive work environment for the purposes of Title VII liability.”). By contrast, under a conjunctive standard, infrequent conduct, even if egregious, would not be actionable because it would not be “pervasive.” Harvill alleges that Rogers’ harassment began in July 2001 and continued until Gina Fisher, the Director of Human Resources, confronted Rogers with the allegations in February 2002. In her deposition, Harvill testified that, during that seven-month period, Rogers grabbed her and kissed her on the cheek, popped rubber bands at her breasts, fondled her breasts “numerous times,” patted her on her buttocks “numerous times,” and came behind her and rubbed his body against her. At. one point, Harvill estimated that Rogers touched her breasts or her buttocks perhaps as often as once a week— although she later stated that it may not have been as often as once a week. She also claims that on one occasion Rogers made comments to her about her sex life and her abilities in bed. Harvill stated that she protested every time Rogers touched her breasts and she also protested when Rogers would pat her buttocks. Undoubtedly, the deliberate and unwanted touching of Harvill’s intimate body parts can constitute severe sexual harassment. See, e.g., Worth, 276 F.3d at 268 (“[D]irect contact with an intimate body part constitutes one of the most severe forms of sexual harassment.”). Viewing the evidence in the light most favorable to Harvill, the non-movant, we conclude" }, { "docid": "17888427", "title": "", "text": "this behavior became more aggressive over time, and escalated during the timeframe of John Uqdah’s retirement. At that point, Johnson claims that Pearson threatened her, Pl.’s Stmt, at 10 (“Plaintiff would have no one in the workforce to protect her”), and began a course of physical intimidation and contact with Johnson that included attempts to kiss her, uninvited visits to her office, solicitations for sex, grabbing and pinching of her breast, and grabbing and spanking of her behind. See PL’s Opp.’n to Def.’s Mot. for Summ. J. at 1-2; Guinta Dep. at 57:4-58:15; Pl.’s Dep. 105:11, 24 & 107:2-3. In response to this behavior, Johnson complained to her supervisors and eventually left the workforce and sought medical treatment “for the job stress created by the sexual harassment.” See P.’s Opp.’n to Def.’s Mot. for Summ. J. at 2 n. 2. Johnson did not return to the Department of Veterans Affairs until almost three years later — and only then on a part-time basis. Id.; see also Pl.’s Ex. 2. This conduct is certainly inappropriate for the workplace, and a jury could find that the escalating nature of Pearson’s harassment is evidence of a hostile work environment. See Baker v. Library of Congress, 260 F.Supp.2d 59, 67 (D.C.Cir.2003) (finding that sex-based comments that increased in frequency and severity over time were evidence of a hostile work environment); Simms v. Ctr. for Corr. Health & Policy Studies, Civ. No. 06-2178(RCL), 794 F.Supp.2d 173, 192-93, 2011 WL 2621325, *14 (D.D.C. July 5, 2011) (finding that harassment that escalated over time could constitute a hostile work environment). Moreover, “evidence of [Johnson’s] mental state during this period provides further proof upon which a jury could find the existence of a hostile work environment.” Simms, 794 F.Supp.2d at 193, 2011 WL 2621325, at *15. Johnson has alleged that Pearson verbally harassed her and that this harassment eventually escalated to physical harassment in 2005. Johnson has also presented evidence that this harassment caused her to leave the workplace in 2005 and seek medical help from mental counselors, which delayed her return to the workplace until 2008. See" }, { "docid": "20734897", "title": "", "text": "Lake’s advances were objectively hostile. We have acknowledged before that “[djrawing the line” between what is and is not objectively hostile “is not always easy.” Baskerville, 50 F.3d at 430. On one side lie sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers. Id. (citations omitted). Perhaps the most heavily emphasized factor in our cases is whether there was inappropriate touching. See Worth, 276 F.3d at 268 (“The fact that conduct ... involves touching as opposed to verbal behavior increases the severity of the situation.”). This is especially true when the touching is of “an intimate body part.” Id. (“We have previously recognized that direct contact with an intimate body part constitutes one of the most severe forms of sexual harassment.”). For example, we have affirmed a damages award or at least rejected summary judgment where there were allegations that a defendant placed his hand on the plaintiffs breast for several seconds, id., when a coworker forcibly kissed the plaintiff and nearly removed her brassiere, Hostetler, 218 F.3d at 807-08, when a manager slid his hand up the plaintiffs shorts, reaching her underwear, Patton, 455 F.3d at 814, and when the plaintiffs supervisor “hugged her fifty to sixty times, jumped in her lap ten times, [and] touched her buttocks thirty times,” Kampmier, 472 F.3d at 941. Indeed, in cases where we have held that the evidence was insufficient to establish an objectively hostile work environment, we have emphasized that no touching occurred, e.g., Baskerville, 50 F.3d at 431 (immediately after offering factors to consider, noting the “[supervisor] never touched the plaintiff’), or that the touching was “relatively limited,” Saxton, 10 F.3d at 534. Judged against these cases, Turner’s complaints are sufficient to survive summary judgment. Turner has identified at least five instances of explicit sexual harassment, three of which were aggressively physical. Turner’s claim that Lake grabbed his penis through" }, { "docid": "8998986", "title": "", "text": "the severity of the conduct, (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance, and (4) whether the conduct unreasonably interferes with the employee’s work performance.” Id. at 319 (citing Harris, 510 U.S. at 23, 114 S.Ct. 367). We conclude that the incidents alleged by plaintiff — her communications with Ziermann on December 27, 1999 and January 22, 2000, and the “write-up” she received on January 23 — were not sufficiently severe or pervasive to create a hostile work environment. The episodes of harassment, far from being pervasive, were few and occurred over a short span of time, most of which plaintiff spent on vacation. It is, of course, “well settled in this Circuit that even a single act can meet the threshold [of hostile work environment] if, by itself, it can and does work a transformation of the plaintiffs workplace,” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir.2002), but such a single act must be “extraordinarily severe,” Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir.2000); see also Richardson v. N.Y. State Dep’t of Correctional Serv., 180 F.3d 426, 437 (2d Cir.1999) (recognizing that a single sexual assault may be sufficient to alter the terms and conditions of the victim’s employment). The harassment alleged here is not sufficiently severe to overcome its lack of pervasiveness. Compare Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir.1998) (finding no triable issue of hostile work environment where plaintiffs supervisor allegedly made an appreciative comment about plaintiffs buttocks and deliberately touched her breasts with papers he was holding), with Holtz v. Rockefeller & Co., 258 F.3d 62, 70, 75-76 (2d Cir.2001) (finding a triable issue where a supervisor touched plaintiff in unwelcome manner on a “daily basis,” made “obscene leers at her,” “tried to peer down her blouse and up her skirt,” and made “approximately ten or twenty” remarks about her sex life), and Raniola v. Bratton, 243 F.3d 610, 621 (2d Cir.2001) (finding a triable issue where plaintiff proffered evidence that, over the course of two and one-half years, ’she was" }, { "docid": "23604698", "title": "", "text": "severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfered with the alleged victim’s work performance. Hostetler v. Quality Dining, Inc., 218 F.3d 798, 806-07 (7th Cir.2000). The “occasional vulgar banter, tinged with sexual innuendo of coarse or boorish workers” generally does not create a work environment that a reasonable person would find intolerable. Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir.1995). This Court has on many occasions distinguished between harassing and merely objectionable conduct. See, e.g., Hilt-Dyson v. City of Chi., 282 F.3d 456, 463-64 (7th Cir.2002) (holding that plaintiffs allegations that a supervisor rubbed her back, squeezed her shoulder and stared at her chest during a uniform inspection while telling her to raise her arms and open her blazer were isolated incidents that, even when taken together, did not create a sufficient inference of a hostile work environment); Patt v. Family Health Sys., Inc., 280 F.3d 749, 754 (7th Cir.2002) (holding that plaintiffs complaints of eight gender-related comments during the course of her employment, including that “the only valuable thing to a woman is that she has breasts and a vagina,” was insufficient to demonstrate a hostile work environment); Adusumilli v. City of Chi, 164 F.3d 353, 361-62 (7th Cir.1998) (holding that plaintiffs complaints of teasing; ambiguous comments about bananas, rubber bands, and low-neck tops; staring and attempts to make eye contact; and four isolated incidents where a co-worker briefly touched her arm, fingers, or buttocks did not constitute sexual harassment). In short, minor or isolated incidents are generally insufficient to rise to the level of objectively offensive conduct. By contrast, sustained physical contact can raise otherwise merely objectionable conduct to the level of objectively offensive conduct. For instance, in King v. Board of Regents of University of Wisconsin System, 898 F.2d 533, 535 (7th Cir.1990), this Court concluded that the defendant’s conduct rose to an objectionable level when he followed the plaintiff into a bathroom at an office holiday party, telling her that he “had to have her” and that “he would have her.” Despite the" }, { "docid": "9622805", "title": "", "text": "hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers.... It is not a bright line, obviously, this line between a merely unpleasant working environment on the one hand and a hostile or deeply repugnant one on the other .... Id. at 430-31 (internal citations omitted). Since our decision in Baskerville, we have on many occasions distinguished between harassing and merely objectionable conduct. See, e.g., Hilt-Dyson, 282 F.3d at 463-64 (holding that plaintiffs allegations that supervisor rubbed her back, squeezed her shoulder and stared at her chest during a uniform inspection while telling her to raise her arms and open her blazer were isolated incidents that, even when taken together, did not create a sufficient inference of a hostile work environment); Patt v. Family Health Sys., Inc., 280 F.3d 749, 754 (7th Cir.2002) (holding that plaintiffs complaints of eight gender-related comments during course of her employment, including that “the only valuable thing to a woman is that she has breasts and a vagina,” insufficient to demonstrate hostile work environment); Adusumilli v. City of Chicago, 164 F.3d 353, 361-62 (7th Cir.1998) (finding plaintiffs complaints of teasing, ambiguous comments about bananas, rubber bands and low-neck tops, staring and attempts to make eye contact and four isolated incidents where a co-worker briefly touched her arm, fingers or buttocks did not constitute sexual harassment). With these precedents in mind, we conclude that the incidents that occurred prior to Copenharve’s physical assault of McPherson on March 21, 2001, although boorish, do not constitute the severe or pervasive conduct necessary to create an objectively hostile work environment in violation of Title VII. While Copenharve’s inquiries about what color bra McPherson was wearing, his suggestive tone of voice when asking her whether he could “make a house call” when she called in sick and the one occasion when he pulled back her tank top with his fingers were lamentably inappropriate, we agree with the district court" }, { "docid": "17888426", "title": "", "text": "working environment.’ ” Akonji, 517 F.Supp.2d at 97 (quoting Harris, 510 U.S. at 21, 114 S.Ct. 367). The Secretary does not address the severity or persuasiveness of Pearson’s conduct, nor does he address the effect it had on the terms and conditions of Johnson’s employment and Johnson herself. Indeed, the Secretary does not consider at all whether Pearson’s conduct constituted harassment; instead, he contends that the Department is not liable even if the harassment occurred. See Def.’s Mot. for Summ. J. at 12 (“The Defendant does not discuss in this motion whether the alleged misconduct constitutes harassment. Even if the acts of alleged misconduct occurred and assuming, arguendo, they constitute harassment, the Defendant would not be liable for the alleged harassment.”). Johnson, however, has pointed to specific evidence from depositions, declarations, medical records, and other testimony in the record before this Court that raise a genuine factual dispute as to whether she experienced a hostile work environment. Johnson alleges that — beginning in 1997— Pearson made inappropriate comments to her, Pl.’s Dep. 108:3-22, and that this behavior became more aggressive over time, and escalated during the timeframe of John Uqdah’s retirement. At that point, Johnson claims that Pearson threatened her, Pl.’s Stmt, at 10 (“Plaintiff would have no one in the workforce to protect her”), and began a course of physical intimidation and contact with Johnson that included attempts to kiss her, uninvited visits to her office, solicitations for sex, grabbing and pinching of her breast, and grabbing and spanking of her behind. See PL’s Opp.’n to Def.’s Mot. for Summ. J. at 1-2; Guinta Dep. at 57:4-58:15; Pl.’s Dep. 105:11, 24 & 107:2-3. In response to this behavior, Johnson complained to her supervisors and eventually left the workforce and sought medical treatment “for the job stress created by the sexual harassment.” See P.’s Opp.’n to Def.’s Mot. for Summ. J. at 2 n. 2. Johnson did not return to the Department of Veterans Affairs until almost three years later — and only then on a part-time basis. Id.; see also Pl.’s Ex. 2. This conduct is certainly inappropriate for" }, { "docid": "9351077", "title": "", "text": "n. 1, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)); see also Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 (5th Cir.1999) (“All of the sexual hostile environment cases decided by the Supreme Court have involved patterns or allegations of extensive, long lasting, unredressed, and uninhibited sexual threats or conduct that permeated the plaintiffs’ work environment.”). It is not enough, furthermore, that the plaintiff feel intimidated or abused. To be actionable, the offensive conduct must create “an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive .... ” Harris, 510 U.S. at 21, 114 S.Ct. 367 (1993); see also Oncale, 523 U.S. at 81, 118 S.Ct. 998 (“the objective severity of the harassment should be judged from the perspective of a reasonable person in the plaintiffs position, considering all the circumstances”) (internal quotation and citation omitted). Assuming that Mr. Carter’s allegations that Ms. Edwards “caressed [him] on his knee,” “placed her breast on [his] arm,” and “placed her fingers on [his] buttocks” are true, as one must do at this stage, these three isolated incidents are not sufficiently severe in quantity or quality to unreasonably interfere with plaintiffs work performance or create a hostile work environment. Workplace sexual harassment claims based on such minor allegations are dismissed because “isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ ” Faragher, 524 U.S. at 788, 118 S.Ct. 2275. See, e.g., Hilt-Dyson v. City of Chicago, 282 F.3d 456, 463-64 (7th Cir.2002) (allegations that supervisor twice rubbed plaintiffs back and shoulders and stared at her inappropriately were insufficient to create hostile work environment); Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 585 (11th Cir.2000) (claim that coworker momentarily put his hand on plaintiffs knee, touched the hem of her dress, touched her ring and bracelet, and repeatedly asked her to lunch did not establish a hostile environment claim); Valentine-Johnson v. Roche, 238 F.Supp.2d 911, 917 (E.D.Mich.2003) (claim that supervisor put his arm around plaintiff without her consent and stood too close to her did" }, { "docid": "22141359", "title": "", "text": "stroked her hair, massaged her back and shoulders, fondled her legs,” “pinned [plaintiff] against a box and tried to kiss her,” persistently \"boasts ... about his sexual prowess, offers to promote her in exchange for dating him, and another offer of a hundred dollars if [plaintiff] would go to bed with him,” \"offered to reward [plaintiff's] son with a raise if he would convince his mother to go out with him,” \"[ejveiy time [plaintiff] encountered [harasser], he would either touch her or make vulgar comments or sexual advances to her or both”); Hathaway v. Runyon, 132 F.3d 1214, 1217 (8th Cir.1997) (the harasser \"stared at her with a menacing look,” but also was \"getting physically close and making peculiar comments, telling [plaintiff] that other workers believed they were romantically involved,” making \"physical sexual advances,” such as \"he hit her on the buttocks with a clipboard,” and a week later \"squeezed her buttocks”; plaintiff regularly had to interrupt her work in order to avoid encountering the harasser, and \"[a]fter [plaintiff] rebuffed the [harasser's] advances, he began to snicker and laugh at her, making guttural noises when she walked by him”); Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 780-81 (10th Cir.1995) (alleging \"threatening and intimidating stares” but also that the harasser was \"making verbal and written sexually offensive remarks propositioning [plaintiff] and attempting to touch her breast”; after plaintiff reported the harassment, he “grabbed [plaintiff] between her legs”; also made “persistent requests for sex [to two other females] and inquiries of their sexual conduct,” \"open-ended invitations to all female employees to satisfy his sexual desires,” \"passed a sexually explicit note” to another female employee, \"attempted to kiss [another female employee] on the neck and brushed her breast with his hand”); Steiner v. Showboat Operating Co., 25 F.3d 1459, 1461-63 (9th Cir.1994) (alleging \"stares, glares, snickers, and comments,\" but along with “habitually refer[ring] to [plaintiff] and to other female employees in a derogatory fashion using sexual explicit and offensive terms,” such as calling plaintiff \"dumb fucking broad,” \"cunt,” and \"fucking cunt”; also yelling \"why don't you go in the restaurant and" } ]

[ { "docid": "16687519", "title": "", "text": "well controlled with diet and medication.” Another doctor found that appellant could, during a normal day, stand and walk six or more hours, although she would have difficulty climbing, balancing, bending or stooping. That doctor also found that appellant’s diabetes was well controlled and that her arthritis was “not too severe.” Still another doctor, while recognizing that appellant was depressed, looked old for her age, and would have difficulty competing in the job market, concluded “that the patient does not meet social security standards for disability.” Finally, while pain alone can be disabling even when not supported by objective medical evidence, Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir. 1979), appellant’s own testimony concerning her pain is at best weak. While claiming that she suffers pain on various occasions, appellant conceded that such pain spells arise only a couple of times a month and that she is free from pain at other times. Appellant contends that even if we find no grounds for reversal, we should nonetheless remand in light of a medical report obtained by her in October of 1979. This Court is permitted to remand a Social Security case for additional fact finding if “good cause” is shown. 42 U.S.C.A. § 405(g). However, in this case, appellant has offered no explanation as to why the information was not gathered at the proper time. Moreover, after examining the additional evidence, a very brief report from a psychiatrist, we remain convinced that the Secretary’s decision was supported by substantial evidence. We do not mean to suggest that appellant is perfectly healthy. We merely hold that she has not met her burden in demonstrating that the finding that she is not disabled is unsupported by substantial evidence. AFFIRMED." } ]

[ { "docid": "8440707", "title": "", "text": "FLETCHER, Circuit Judge: Allen appeals from an order of the district court upholding the Secretary’s finding that Allen was not disabled. We reverse. FACTS Allen is 41 years old. He has worked as a plumber for several years, and has a bachelor’s degree in fine arts. He filed applications for disability insurance benefits in 1979, alleging disability since 1971 due to arthritis, back and respiratory problems. At the hearing before the Administrative Law Judge (ALJ), Allen also presented evidence of mental problems and an ankle injury. The ALJ found that Allen was capable of doing at least sedentary work in an environment where he would not be exposed to respiratory irritants. Applying the Secretary’s medical/vocational guidelines, the ALJ concluded Allen was not disabled. The Social Security Appeals Council affirmed. On review, the district court granted summary judgment for the Secretary and denied Allen’s motion for a remand to consider new psychiatric evidence. ISSUES Allen raises three issues on appeal. Allen contends, first, that the Secretary did not meet her burden of proving there were jobs in the economy which Allen could perform; second, that the Secretary’s finding that his mental problems did not limit his capacity for sedentary work is not supported by substantial evidence; and third, that two new psychiatric reports submitted to this court require remand. AVAILABILITY OF JOBS In reviewing the denial of a disability claim, this court must affirm if the Secretary’s findings are supported by substantial evidence in the record as a whole and the Secretary applied the proper legal standards. Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir.1982); Vidal v. Harris, 637 F.2d 710, 712 (9th Cir.1981). A claimant has the initial burden of establishing a pri-ma facie case of disability by showing that a physical or mental impairment prevents him from engaging in his previous occupations. The burden then shifts to the Secretary to show that other substantial work, for which the claimant is qualified, exists in the national economy. Bonilla v. Secretary, 671 F.2d 1245, 1246 (9th Cir.1982); Thompson, 665 F.2d at 939. Allen proved that, because of physical and respiratory" }, { "docid": "18830565", "title": "", "text": "reports, or at least not acquire them timely, with the idea of obtaining another “bite at the apple” if the Secretary decided that the claimant was not disabled. Id. at 252. The Court held that for a plaintiff to show good cause for the failure to incorporate new evidence into the administrative record, he or she should demonstrate some justification for the failure to acquire and present such evidence to the Secretary. Id., at 253. Because the claimant there had made no such justification, the court denied a motion for the taking of additional evidence. The court in Torres v. Harris, 502 F.Supp. 518 (E.D.Pa.1980) looked to cases applying the older version of 405(g) in deciding that the claimant there had not shown good cause under the amended form of the statute. Nevertheless, the court there held that when a claimant has made no explanation why the evidence was not presented at the administrative hearing, when the claimant was represented at that hearing by counsel, and where the claimant has made no showing that the new evidence would not be cumulative, the new version of § 408(g) would not permit a remand. Id., at 526-8. Congress has redefined the “good cause” requirement of § 405(g) by the 1980 amendments. Now a claimant must show the materiality of any new evidence and must also explain why such material evidence was not presented in any prior proceeding. Allen v. Schweiker, 700 F.2d 799 (5th Cir.1981) (affirming a district court refusal to remand for new evidence without explaining the nature of “good cause”); Barnard v. Secretary, Department of Health and Human Services, 515 F.Supp. 690 (D.Md.1981) (refusing to remand because any new evidence was not material.) While some of the legislative history of this amendment does indicate congressional concern with the multitude of remands by district courts, Senate Report No. 96-408 reprinted in 3 U.S.Code & Admin.News (1980) at pp. 1277, 1366, 96th Cong., 2d Sess., the Court has found only one explanation concerning the type of situation in which good cause requires the taking of new evidence. The conferees were told that" }, { "docid": "9692459", "title": "", "text": "district court should have remanded his case to the Secretary on the basis of new evidence submitted to the court. We review a district court’s refusal to remand to the Secretary on the basis of extra-record evidence for abuse of discretion. Russell v. Bowen, 856 F.2d 81, 84 (9th Cir.1984). A claimant seeking remand must demonstrate that there is “new evidence which is material, and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g); Sanchez, 812 F.2d at 511-12; Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir.1985) {Key). A claimant does not meet the good cause requirement simply by obtaining a more favorable report from an expert witness once his claim is denied. Key, 754 F.2d at 1551. The claimant must establish good cause for not seeking the expert’s opinion prior to the denial of his claim. Id. Clem submitted two notices of additional evidence involving a textbook excerpt, a disability determination, two psychological evaluations, and an alcoholic assessment. Yet Clem has failed to show good cause for not submitting this evidence earlier. His assertion that the evidence only turned up later, during another proceeding, is not sufficient to explain why it was not produced earlier in this proceeding. Clem’s situation is analogous to the one analyzed by us in Key, in which the claimant attempted to present a new medical report supporting his position. 754 F.2d at 1551. We declined to remand the case, since the claimant “offer[ed] no reason why he had not solicited this information from [the doctor] earlier.” Id. We opined that “the obvious explanation is that when Key failed to succeed on his disability claim ... he sought out a new expert witness who might better support his position. The ‘good cause’ requirement would ‘be mean ingless if such circumstances were sufficient to allow introduction of new evidence.’ ” Id., quoting Allen v. Secretary of Health and Human Services, 726 F.2d 1470, 1473 (9th Cir.1984). Similarly in Allen, we declined to remand for consideration of new psychological tests and psychiatric" }, { "docid": "23151555", "title": "", "text": "evidence in the legislature history that the new provisions of § 405(g) should not apply to cases pending in the courts on June 9, 1980. We think as well that no manifest injustice results from the application of the new provision. It was already the law of this circuit that new evidence could not be good cause for a remand to the Secretary under § 405(g) unless an explanation was given as to why it was not submitted previously, Watts v. Harris, 604 F.2d 515 (5th Cir.), cert. denied, 449 U.S. 863, 101 S.Ct. 168, 66 L.Ed.2d 80 (1980), and unless the evidence was relevant and probative. Williams v. Califano, 590 F.2d 1332 (5th Cir. 1979). We therefore apply the new provisions of § 405(g) to this case. Appellant has not submitted his 400 pages of medical testimony for our consideration. Nor is it our job as an appellate court to examine new evidentiary materials and find issues of fact. The best solution is to remand the case to the district court for a determination of whether a remand to the Secretary is appropriate. At such a determination, the appellant has the burden of showing that he had good cause for his failure to submit the evidence in a prior proceeding. See Allen v. Schweiker, 642 F.2d 799 (5th Cir. 1981); Watts v. Harris, supra (good cause not shown if appellant fails to explain why medical report was not obtained prior to administrative hearing). He must also show that the evidence is new and material. The requirement of materiality is an important one. The concept “material” suggests that the new evidence must be relevant and probative. However, not every discovery of new evidence, even if relevant and probative, will justify a remand to the Secretary, for some evidence is of limited value and insufficient to justify the administrative costs and delay of a new hearing. Thus we hold that a remand to the Secretary is not justified if there is no reasonable possibility that it would have changed the outcome of the Secretary’s determination. We vacate the judgment of the" }, { "docid": "23151557", "title": "", "text": "district court and remand for a determination of whether appellant’s new evidence meets the requirements of § 405(g). If the district court finds that the evidence does meet the requirements, the case should be remanded to the Secretary for further proceedings. If the court finds that the requirements are not met, remand should be denied and the district court should reinstate its original judgment. VACATED and REMANDED. . At the August 3 hearing, appellant testified that since February, 1978, he had been receiving outpatient treatment two to three times a week at Parkland for his disabled left side. He also stated that he had been given medication to ease the pain in his shoulder. . The house conference report on Section 307 of the 1980 amendments (the new version of § 405(g)) states that: “ ‘The conference agreement includes this provision [modification of the old ‘good cause’ requirement] of the House and Senate bills effective upon enactment.’ ” House Conference Report No. 944, 96th Cong., 2d Sess. 59, reprinted in [1980] 3 U.S.Code Cong. & Ad.News 1277, 1392, 1407. . In a case decided before the 1980 amendments, this circuit held that: [t]he Social Security Act is to be broadly construed and liberally applied. Consistent with the interpretation of the Act “[c]ourts have not hesitated to remand for the taking of additional evidence, on good cause shown, where relevant, probative, and available evidence was either not before the Secretary or was not explicitly weighed and considered by him, although such consideration was necessary to a just determination of claimant’s application.” Williams v. Califano, 590 F.2d 1332, 1334 (5th Cir. 1979) (quoting Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir. 1975)). See Epps v. Harris, 624 F.2d 1267, 1273 (5th Cir. 1980), Parks v. Harris, 614 F.2d 83, 84-85 (5th Cir. 1980); Johnson v. Harris, 612 F.2d 993 (5th Cir. 1980); Mann v. Gardner, 380 F.2d 182, 187 (5th Cir. 1967). . In construing the meaning of “material” as we do, we decline to endorse the position taken by the Fourth and Tenth Circuits that such evidence must be reasonably" }, { "docid": "12830100", "title": "", "text": "1233,1235 (5th Cir. 1979) (quoting Richardson v. Perales, 402 U.S. 389,401, 91 S.Ct. 1420,1427, 28 L.Ed.2d 842 (1971)). Furthermore, the reviewing court “may not decide the facts anew or substitute its judgment as to the credibility of the evidence for that of the Secretary.” Simmons v. Harris, 602 F.2d at 1235. Moreover, the burden of establishing a disability rests with the claimant. Simmons v. Harris, id. El, 2] On appeal, Hall challenges the legal standard applied to the evidence by the Secretary and the district court’s conclusion that the Secretary’s decision was supported by substantial evidence. A review of the record reveals, however, that the Secretary applied the proper legal standard in reaching his decision. Hall alleges that the administrative law judge (“ALJ”) did not properly consider her allegations of pain. The ALJ is required to consider the subjective symptoms of the claimant, as well as other objective evidence such as medical opinions, clinical findings and the like. De-Paepe v. Richardson, 464 F.2d 92 (5th Cir. 1972). A review of the ALJ’s opinion, however, indicates that the ALJ did consider Hall’s subjective symptomology. Furthermore, the medical evidence amply supports the Secretary’s findings. In fact, Hall failed to submit clinical findings. After viewing the evidence before the AU, we hold that a reasonable mind could conclude Hall was not disabled within contemplation of the Act. The Secretary based his decision on substantial evidence. Hall also challenges the district court’s finding that the new evidence — Dr. Mintz’ report — presented to the district court failed to provide a “good cause” for remand. The Act permits a court to remand a case for additional fact finding upon the showing of “good cause for the failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g). Hall argues that the failure to include the report of Dr. Mintz in the administrative proceeding stems from the fact that the Secretary failed to inform her of her right to counsel and to explain the hearing procedure as required by Social Security Ruling 79-19 (C.E.1979) (“Ruling 79-19”). In essence, Hall argues" }, { "docid": "22333485", "title": "", "text": "of the AU’s decision was sufficient to establish good cause. Id. at 1418; see Ward v. Schweiker, 686 F.2d 762, 764 (9th Cir.1982). Because Embrey’s additional evidence could not have been presented at the time of the administrative hearing, this requirement is also met. Accordingly we remand on this ground as well, and order the Secretary to consider Dr. Goldman’s June 1987 report. CONCLUSION We reverse the district court’s grant of summary judgment and remand the case with directions to remand to the Secretary for further proceedings consistent with this opinion. REVERSED AND REMANDED. . Embrey had previously submitted an application for disability benefits in October of 1982, based solely on his heart condition. That application was denied and Embrey did not appeal. . In this case, we find no support in the record for the AU’s assertion that the objective evidence \"preponderate[s] toward a finding” of no disability. To the contrary, the medical evidence appears to fully support the physicians’ opinions that Embrey is disabled. . The AU must either accept the opinions of Embrey’s treating physicians or give specific and legitimate reasons for rejecting them. Such reasons will, of course, be subject to further review by this court. . When Embrey’s attorney asked the expert if Embrey could work as a phone dispatcher if he needed to lie down during the day or could not read due to blurred vision, the expert responded no. . Dr. Goldman’s report could also not have been introduced in the district court, which granted summary judgment on April 29, 1987. See Allen v. Secretary of Health and Human Services, 726 F.2d 1470, 1473 (9th Cir.1984). The report is distinguishable from the evidence we rejected in Allen. Allen attempted to introduce the results of new tests and evaluations by new expert witnesses. Embrey’s evidence — like Burton's, see 724 F.2d at 1417 — consists of a recent letter from his doctor. Rather than attempting to raise new issues, the evidence represents the ongoing medical evaluation of a consulting physician who had already participated in the disability determination process. Therefore we find Burton rather" }, { "docid": "8440713", "title": "", "text": "shown good cause for his failure to provide these psychiatric evaluations earlier in the proceedings. Although the reports offered were not made until 1982, Allen was aware of his mental problems at the time of the hearing. The only explanation Allen has offered for his failure to obtain the evidence earlier is that he was not represented by an attorney at the administrative hearing. Even if we accept this argument, it would not excuse Allen’s failure to introduce the evidence in the district court. The obvious explanation is that when Allen was unsuccessful in the agency and district court hearings, he sought out new expert witnesses who might better support his disability claim. The “good cause” requirement would be meaningless if such circumstances were sufficient to allow introduction of new evidence. Our decision in Ward v. Schweiker, 686 F.2d 762 (9th Cir.1982), does not hold otherwise. In that case, doctors had failed to discover that the claimant had been suffering from myasthenia gravis until she was admitted to a hospital after the Secretary’s decision. Thus, the claimant could not have obtained the evidence at the time of her hearing. In our case, Allen knew of his mental problems and had had several prior psychiatric evaluations. The reports merely contain new interpretations of the same mental problems discussed in the earlier evaluations. He has not alleged that he could not have had these tests and evaluations made earlier. We reverse and remand to the district court with instructions to remand to the Secretary to take evidence as to whether jobs are available in the economy for a person with Allen’s limitations. . Our decision in Odle v. Heckler, 707 F.2d 439, 449 (9th Cir.1983) is inapplicable here. In Odie, we held the guidelines were applicable despite the claimant’s deafness, dizziness, and drug dependence. However, the deafness was essentially cured by a hearing aid and drug dependence was controlled by a treatment program. The dizziness was a recurring problem but was found not to limit the claimant’s ability to do light work. Unlike the environmental restriction involved in Allen’s case, dizziness would" }, { "docid": "9692460", "title": "", "text": "Clem has failed to show good cause for not submitting this evidence earlier. His assertion that the evidence only turned up later, during another proceeding, is not sufficient to explain why it was not produced earlier in this proceeding. Clem’s situation is analogous to the one analyzed by us in Key, in which the claimant attempted to present a new medical report supporting his position. 754 F.2d at 1551. We declined to remand the case, since the claimant “offer[ed] no reason why he had not solicited this information from [the doctor] earlier.” Id. We opined that “the obvious explanation is that when Key failed to succeed on his disability claim ... he sought out a new expert witness who might better support his position. The ‘good cause’ requirement would ‘be mean ingless if such circumstances were sufficient to allow introduction of new evidence.’ ” Id., quoting Allen v. Secretary of Health and Human Services, 726 F.2d 1470, 1473 (9th Cir.1984). Similarly in Allen, we declined to remand for consideration of new psychological tests and psychiatric evaluations because “Allen knew of his mental problems and had several prior psychiatric evaluations.” 726 F.2d at 1473. We pointed out that “[t]he reports merely contain new interpretations of the same mental problems discussed earlier in the evaluations. [Allen] has not alleged that he could not have had these tests and evaluations made earlier.” Id. The same is true of Clem’s attempt to submit his new evidence. Clem offers no convincing reason why the evidence could not have been made available to the Secretary earlier. We therefore hold that the district court did not abuse its discretion in not remanding the case to the Secretary. AFFIRMED." }, { "docid": "23273624", "title": "", "text": "was not disabled within the meaning of the Social Security Act, 42 U.S.C.A. § 423(d). This denial was approved by the Appeals Council, thereby making it the final decision of the Secretary. The district court affirmed. The findings and decision of the Secretary are conclusive if supported by substantial evidence. 42 U.S.C.A. § 405(g). The reviewing court thus has a very limited role, and may not decide the facts anew or substitute its judgment for that of the Secretary. See, e. g., Goodley v. Harris, 608 F.2d 234 (5th Cir. 1979); Simmons v. Harris, 602 F.2d 1233 (5th Cir. 1979). In this case, there is substantial evidence to support the Secretary’s decision. Medical reports by doctors who had examined Allen between 1974 and 1977 were introduced, including those of two neurologists, two psychiatrists, an ophthamologist, and a specialist in internal medicine and cardiology. As Allen concedes, none of these doctors found any physical or mental impairment which could conceivably cause his alleged pain, although both psychiatrists found Allen suffered from a mild “personality disorder.” The ophthamologist and one of the neurologists specifically concluded they believed Allen was capable of working. In addition, a vocational specialist testified that Allen, given his age, education, work experience, mental condition, and complaints of pain, could perform a number of jobs, including his former employment as a laborer. The only contrary evidence offered was testimony by Allen himself and by his former wife as to his “blackouts” and feelings of pain. Although the administrative law judge did not specifically evaluate the testimony of the ex-wife, he noted that Allen, a “difficult” witness, could not be given a high degree of credibility. After a review of the transcript, we cannot say the judge erred in discounting Allen’s testimony. An administrative law judge may properly challenge the credibility of a claimant who asserts he is disabled by pain. See Simmons v. Harris, supra, 602 F.2d at 1236; Gaultney v. Weinberger, 505 F.2d 943, 946 (5th Cir. 1974). In any event, the resolution of conflicting evidence is for the Secretary and the administrative law judge, rather than for" }, { "docid": "23273627", "title": "", "text": "failure to prove through testimony he suffered from disabling pain. Allen next asserts the administrative law judge failed to make adequate findings of fact, specifically with regard to whether he in fact had blackouts and feelings of pain, and whether his former wife was a credible witness. The ultimate findings of fact, however, adequately resolved these subordinate issues. The judge specifically found that Allen’s testimony, the primary evidence in support of his allegation of pain, was not credible. He also found that Allen’s “impairments [which included ‘a Personality Disorder and complaints of pain in his eyes’] do not prevent him from performing certain jobs.... ” Thus, there was a clear, though perhaps implicit, rejection of the subjective testimony as to the disabling nature of Allen’s pain. While the findings in this case could be improved upon, they are sufficient for this Court to determine the denial of benefits is supported by substantial evidence. Cf. Acevedo Ramirez v. Secretary of Health, Education and Welfare, 550 F.2d 1286 (1st Cir. 1977) (explicit finding rejecting claimant’s testimony as to his pain not required, in light of other findings); Baerga v. Richardson, 500 F.2d 309 (3d Cir. 1974) (while further findings concerning claimant’s pain would have been desirable, findings actually made were sufficient in view of the record); Collins v. Matthews, 456 F.Supp. 813 (S.D. Ga.1978) (unnecessary to make specific findings as to all the facts, since the basis for the denial was clear). Allén’s final contention is that the district court should have remanded the case to the Secretary for additional hearings in light of a new medical report. This report consists of a one-page physical capacities evaluation sheet prepared by a physician identified as G. Lopez, M. D. The district court held the new report did not, warrant a remand, in light of the medical reports that had already been presented to the administrative law judge. The court also noted the report gave no indication it was based on clinical tests or anything more than Allen’s complaints. To justify a remand to the Secretary for consideration of additional evidence, a claimant must" }, { "docid": "21011350", "title": "", "text": "In August 1986, Delrosa underwent a second examination after his regular physician referred him to neurologist Allen S. Boyd to determine the causes of Delrosa’s continuing complaints of pain and numbness in his left arm and leg, blurred vision, and severe headaches. Unable to explain Delrosa’s symptomatology, Dr. Boyd recommended that Delrosa undergo further testing including an EMG, a nerve conduction study, an EEG, and a CT scan. Tr. 261. Dr. Boyd indicated that he would attempt to make arrangements for the additional tests, however, they were never conducted. Id. Based on the testimony and medical evidence, the AU found that Delrosa suffered from residuals from tuberculosis; residuals from injuries sustained in the automobile accident; multiple physical complaints; a history of alcoholism; and complaints of anxiety and nervousness. However, the AU stated that (1) the record failed to support Dr. Holzner’s diagnosis of chronic anxiety depression, (2) Delrosa’s subjective complaints of pain were not credible, and (3) that the remaining impairments either individually or in combination did not constitute a severe impairment. Accordingly, the AU concluded that Delrosa was not disabled and rejected his application. The Appeals Council denied Delrosa’s request for review and the district court affirmed. This appeal followed. II. DISCUSSION A. Motion to Consider Additional Medical Evidence On appeal, Delrosa contends that the AU’s decision is not supported by substantial evidence and that the AU erroneously discredited his subjective complaints of pain. Before we review the record, we must first determine what the record includes. Delrosa has filed a motion asking us to consider the psychiatric report of Dr. W. Gerald Fowler following an examination of Delrosa in January 1990, over four years after the hearing before the AU and three and one-half years after the Appeals Council finalized the AU’s decision. The Social Security Act generally precludes consideration on review of evidence outside the record before the Secretary. 42 U.S.C. § 405(g) (1988); Williams v. Bowen, 790 F.2d 713, 715 (8th Cir.1986). The court, however, may remand to the Secretary for consideration of new evidence where such evidence is material and the claimant demonstrates good cause" }, { "docid": "23273625", "title": "", "text": "ophthamologist and one of the neurologists specifically concluded they believed Allen was capable of working. In addition, a vocational specialist testified that Allen, given his age, education, work experience, mental condition, and complaints of pain, could perform a number of jobs, including his former employment as a laborer. The only contrary evidence offered was testimony by Allen himself and by his former wife as to his “blackouts” and feelings of pain. Although the administrative law judge did not specifically evaluate the testimony of the ex-wife, he noted that Allen, a “difficult” witness, could not be given a high degree of credibility. After a review of the transcript, we cannot say the judge erred in discounting Allen’s testimony. An administrative law judge may properly challenge the credibility of a claimant who asserts he is disabled by pain. See Simmons v. Harris, supra, 602 F.2d at 1236; Gaultney v. Weinberger, 505 F.2d 943, 946 (5th Cir. 1974). In any event, the resolution of conflicting evidence is for the Secretary and the administrative law judge, rather than for this Court. See, e. g., Grant v. Richardson, 445 F.2d 656 (5th Cir. 1971); Celebrezze v. Maxwell, 315 F.2d 727 (5th Cir. 1963). Allen, however, asserts three grounds of error. He first contends the administrative law judge applied an improper legal standard by basing the denial solely on the lack of objective medical evidence and by disregarding his subjective symptoms of pain. He correctly argues that symptoms which are real to the claimant, although unaccompanied by objective medical data, may support a claim for disability. See, e. g., DePaepe v. Richardson, 464 F.2d 92 (5th Cir. 1972); Page v. Celebrezze, 311 F.2d 757 (5th Cir. 1963). A review of the opinion of the administrative law judge, however, indicates the judge did consider Allen’s symptomology. The judge stated only that “[i]n weighing the evidence, I must take into consideration the fact that [Allen’s] complaints have not been substantiated by any objective medical evidence” (emphasis supplied). The opinion clearly shows the judge based his decision not only on the lack of medical evidence but also on Allen’s" }, { "docid": "8440711", "title": "", "text": "impairment that results in environmental restrictions, and lists as an example, “an inability to tolerate dust or fumes.” 20 C.F.R. pt. 404, subpt. P. app. 2, § 200.00(e). We have held that a remand is necessary where the ALJ applies the guidelines without considering the restrictions on available jobs caused by the claimant’s inability to tolerate dust or fumes in the work environment. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir.1984). Accord Dellolio v. Heckler, 705 F.2d 123, 127 (5th Cir.1983); Roberts v. Schweiker, 667 F.2d 1143, 1145 (4th Cir. 1981). Because the ALJ’s conclusion that Allen’s respiratory problems were not a significant non-exertional limitation is not supported by any evidence, we remand for the consideration of evidence, including testimony of vocational experts if necessary, as to whether there are a significant number of sedentary jobs available to Allen despite this limitation. MENTAL DISORDER Allen contends that the Secretary erred in finding he did not have a significant mental impairment. It is the ALJ’s role to resolve evidentiary conflicts. If there is more than one rational interpretation of the evidence, the ALJ’s conclusion must be upheld. Richardson v. Perales, 402 U.S. 389,399, 91 S.Ct. 1420,1426,28 L.Ed.2d 842 (1971); Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982). Based on the reports of Drs. Patterson and Lunianski, and to a lesser extent, Dr. Heiman, the ALJ could rationally conclude that Allen’s emotional disorder was not disabling. Moreover, there was some evidence that his disorder was amenable to control. The psychiatric evidence Allen cites in support of his argument is selective and shows primarily that a disorder exists. It does not show that it was of disabling severity. The ALJ’s conclusion is supported by substantial evidence. NEW EVIDENCE Allen asks this court to remand for consideration of new evidence consisting of the results of objective psychological tests and psychiatric evaluations. A claimant seeking remand must show “thát there is' new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g). Allen has not" }, { "docid": "23151556", "title": "", "text": "of whether a remand to the Secretary is appropriate. At such a determination, the appellant has the burden of showing that he had good cause for his failure to submit the evidence in a prior proceeding. See Allen v. Schweiker, 642 F.2d 799 (5th Cir. 1981); Watts v. Harris, supra (good cause not shown if appellant fails to explain why medical report was not obtained prior to administrative hearing). He must also show that the evidence is new and material. The requirement of materiality is an important one. The concept “material” suggests that the new evidence must be relevant and probative. However, not every discovery of new evidence, even if relevant and probative, will justify a remand to the Secretary, for some evidence is of limited value and insufficient to justify the administrative costs and delay of a new hearing. Thus we hold that a remand to the Secretary is not justified if there is no reasonable possibility that it would have changed the outcome of the Secretary’s determination. We vacate the judgment of the district court and remand for a determination of whether appellant’s new evidence meets the requirements of § 405(g). If the district court finds that the evidence does meet the requirements, the case should be remanded to the Secretary for further proceedings. If the court finds that the requirements are not met, remand should be denied and the district court should reinstate its original judgment. VACATED and REMANDED. . At the August 3 hearing, appellant testified that since February, 1978, he had been receiving outpatient treatment two to three times a week at Parkland for his disabled left side. He also stated that he had been given medication to ease the pain in his shoulder. . The house conference report on Section 307 of the 1980 amendments (the new version of § 405(g)) states that: “ ‘The conference agreement includes this provision [modification of the old ‘good cause’ requirement] of the House and Senate bills effective upon enactment.’ ” House Conference Report No. 944, 96th Cong., 2d Sess. 59, reprinted in [1980] 3 U.S.Code Cong. &" }, { "docid": "23273628", "title": "", "text": "to his pain not required, in light of other findings); Baerga v. Richardson, 500 F.2d 309 (3d Cir. 1974) (while further findings concerning claimant’s pain would have been desirable, findings actually made were sufficient in view of the record); Collins v. Matthews, 456 F.Supp. 813 (S.D. Ga.1978) (unnecessary to make specific findings as to all the facts, since the basis for the denial was clear). Allén’s final contention is that the district court should have remanded the case to the Secretary for additional hearings in light of a new medical report. This report consists of a one-page physical capacities evaluation sheet prepared by a physician identified as G. Lopez, M. D. The district court held the new report did not, warrant a remand, in light of the medical reports that had already been presented to the administrative law judge. The court also noted the report gave no indication it was based on clinical tests or anything more than Allen’s complaints. To justify a remand to the Secretary for consideration of additional evidence, a claimant must establish “good cause.” 42 U.S.C.A. § 405(g). See also Johnson v. Harris, 612 F.2d 993 (5th Cir. 1980). We agree with the district court the new report does not provide good cause. The report is at best vague and inconclusive, and unlike the previous medical reports, does not appear to rest on clinical testing and observation. Moreover, Allen has failed to explain why the report was not obtained prior to the initial hearing before the administrative law judge. See Watts v. Harris, 614 F.2d 515, 516 (5th Cir. 1980). The district court acted within its discretion in denying the motion to remand. In upholding the denial of Allen’s application, we note Allen has already been examined by two psychiatrists. Neither found any signs of mental or emotional disturbance which could cause the symptoms of pain he alleges. The case is thus distinguishable from Davis v. Califano, 599 F.2d 1324 (5th Cir. 1979), where a remand was considered necessary for psychiatric evaluation of the claimant to determine whether the cause of his pain was psychosomatic. In" }, { "docid": "23273629", "title": "", "text": "establish “good cause.” 42 U.S.C.A. § 405(g). See also Johnson v. Harris, 612 F.2d 993 (5th Cir. 1980). We agree with the district court the new report does not provide good cause. The report is at best vague and inconclusive, and unlike the previous medical reports, does not appear to rest on clinical testing and observation. Moreover, Allen has failed to explain why the report was not obtained prior to the initial hearing before the administrative law judge. See Watts v. Harris, 614 F.2d 515, 516 (5th Cir. 1980). The district court acted within its discretion in denying the motion to remand. In upholding the denial of Allen’s application, we note Allen has already been examined by two psychiatrists. Neither found any signs of mental or emotional disturbance which could cause the symptoms of pain he alleges. The case is thus distinguishable from Davis v. Califano, 599 F.2d 1324 (5th Cir. 1979), where a remand was considered necessary for psychiatric evaluation of the claimant to determine whether the cause of his pain was psychosomatic. In addition, Allen was represented by counsel at the hearing, who was in a position to gather and present evidence in support of Allen’s application, as well as to challenge the medical reports introduced and the testimony of the vocational expert. There is no indication, then, he was deprived of a full and fair hearing on his claims. Cf. Brenem v. Harris, 621 F.2d 688 (5th Cir. 1980); Gaultney v. Weinberger, 505 F.2d 943 (5th Cir. 1974). AFFIRMED." }, { "docid": "23273623", "title": "", "text": "PER CURIAM: Joey Allen appeals from the denial by the Secretary of Health and Human Resources of his application for disability benefits and supplemental security income under the Social Security Act, 42 U.S.C.A. §§ 423(a); 1381a. The district court affirmed the denial. Allen challenges the legal standard followed and findings of fact made by the administrative law judge, as well as the district court’s denial of his motion to remand in light of new evidence. Finding no reversible error and the Secretary’s decision to be supported by substantial evidence, we affirm. Allen is a middle-aged male with a ninth grade education. He has been employed variously as a horse trainer, railroad freight conductor, carpenter, carpenter’s helper, and laborer. He was last employed in 1976 as a construction laborer. On November 18, 1976, Allen applied for disability benefits and supplemental security income, alleging a disability based on pain in and behind his eyes causing him to go unconscious several times a day. After a hearing, an administrative law judge denied the application on the ground Allen was not disabled within the meaning of the Social Security Act, 42 U.S.C.A. § 423(d). This denial was approved by the Appeals Council, thereby making it the final decision of the Secretary. The district court affirmed. The findings and decision of the Secretary are conclusive if supported by substantial evidence. 42 U.S.C.A. § 405(g). The reviewing court thus has a very limited role, and may not decide the facts anew or substitute its judgment for that of the Secretary. See, e. g., Goodley v. Harris, 608 F.2d 234 (5th Cir. 1979); Simmons v. Harris, 602 F.2d 1233 (5th Cir. 1979). In this case, there is substantial evidence to support the Secretary’s decision. Medical reports by doctors who had examined Allen between 1974 and 1977 were introduced, including those of two neurologists, two psychiatrists, an ophthamologist, and a specialist in internal medicine and cardiology. As Allen concedes, none of these doctors found any physical or mental impairment which could conceivably cause his alleged pain, although both psychiatrists found Allen suffered from a mild “personality disorder.” The" }, { "docid": "8440712", "title": "", "text": "one rational interpretation of the evidence, the ALJ’s conclusion must be upheld. Richardson v. Perales, 402 U.S. 389,399, 91 S.Ct. 1420,1426,28 L.Ed.2d 842 (1971); Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982). Based on the reports of Drs. Patterson and Lunianski, and to a lesser extent, Dr. Heiman, the ALJ could rationally conclude that Allen’s emotional disorder was not disabling. Moreover, there was some evidence that his disorder was amenable to control. The psychiatric evidence Allen cites in support of his argument is selective and shows primarily that a disorder exists. It does not show that it was of disabling severity. The ALJ’s conclusion is supported by substantial evidence. NEW EVIDENCE Allen asks this court to remand for consideration of new evidence consisting of the results of objective psychological tests and psychiatric evaluations. A claimant seeking remand must show “thát there is' new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g). Allen has not shown good cause for his failure to provide these psychiatric evaluations earlier in the proceedings. Although the reports offered were not made until 1982, Allen was aware of his mental problems at the time of the hearing. The only explanation Allen has offered for his failure to obtain the evidence earlier is that he was not represented by an attorney at the administrative hearing. Even if we accept this argument, it would not excuse Allen’s failure to introduce the evidence in the district court. The obvious explanation is that when Allen was unsuccessful in the agency and district court hearings, he sought out new expert witnesses who might better support his disability claim. The “good cause” requirement would be meaningless if such circumstances were sufficient to allow introduction of new evidence. Our decision in Ward v. Schweiker, 686 F.2d 762 (9th Cir.1982), does not hold otherwise. In that case, doctors had failed to discover that the claimant had been suffering from myasthenia gravis until she was admitted to a hospital after the Secretary’s decision. Thus," }, { "docid": "12177397", "title": "", "text": "§ 404.1520(c), and otherwise extensively modified the ALJ’s decision. Thus, we are presented with a record that shows an explicit finding (by the AU) concerning subjective evidence of pain, which finding has been nullified by the order of the Appeals Council, the final voice of the Secretary. See 20 C.F.R. §§ 404.981, 404.-993. Unless the issue of pain was finally settled by the AU’s initial decision, we must conclude that the Secretary made no finding concerning the subjective evidence of pain. The Social Security Act provides that the district court “may at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g); see also 20 C.F.R. § 404.983. The inquiry concerning “good cause” is directed at determining whether consideration of the additional evidence “[is] necessary to a just determination of claimant’s application.” Cutler v. Weinberger, 516 F.2d 1282, 1285 (2nd Cir.1975), quoted in Williams v. Califano, 590 F.2d 1332, 1334 (5th Cir.1979). After hearing the additional evidence on remand, “the Secretary shall ... modify or affirm his findings of fact or his decision, or both, and shall file with the court any such additional and modified findings of fact and decision.” 42 U.S.C. § 405(g). “Such additional or modified findings of fact and decision shall be reviewable only to the extent provided for review of the original findings of fact and decision.” Id. In Carry’s earlier appeal from the Secretary’s denial of her claim, the district court only remanded the case to the Appeals Council for reconsideration in light of the reports of Drs. Oates and Vadas. These reports obviously did not include new subjective evidence of pain. However, we observe that to the extent objective medical evidence can bolster the credibility of a claimant’s subjective complaints, for instance, by linking them with a medically determinable impairment, Dr. Oates’ report, referring as it did to tender anatomical regions, reflexive reactions, and symptoms" } ]

[ { "docid": "22381774", "title": "", "text": "the dura-tional residence requirement between August 1969, when the requirement was found unconstitutional by the Arizona Court of Appeals, Board of Supervisors, Pima County v. Robinson, 10 Ariz. App. 238, 457 P. 2d 951, and September 1970, when that judgment was vacated as moot by the Arizona Supreme Court, 105 Ariz. 280, 463 P. 2d 536. See appendix to this opinion, post, p. 274. Title 42 CFR § 53.111 (b) (8) defines that term to mean “a level of uncompensated services which meets a need for such services in the area served by an applicant and which is within the financial ability of such applicant to provide.” The waiver of such a requirement requires notice and. opportunity for public hearing. 42 CFR § 53.111 (c) (2). For the impact of “free” indigent care on private hospitals and their paying patients see Dept, of Health, Education, and Welfare (HEW) Report on Medical Resources Available to Meet the Needs of Public Assistance Recipients, House Committee on Ways and Means, 86th Cong., 2d Sess. (Comm. Print 1961). Foreword to an article on Medical Care and its Delivery: An Economic Appraisal by Judith R. Lave and Lester B. Lave in 35 Law & Contemp. Prob. 252 (1970). Mr. Justice Rehnquist, dissenting. I The State of Arizona provides free medical care for indigents. Confronted, in common with its 49 sister States, with the assault of spiraling health and welfare costs upon limited state resources, it has felt bound to require that recipients meet three standards of eligibility. First, they must be indigent, unemployable, or unable to provide their own care. Second, they must be residents of the county in which they seek aid. Third, they must have maintained their residence for a period of one year. These standards, however, apply only to persons seeking nonemergency aid. An exception is specifically provided for “emergency cases when immediate hospitalization or medical care is necessary for the preservation of life or limb . . . .” Appellant Evaro moved from New Mexico to Arizona in June 1971, suffering from a “chronic asthmatic and bronchial illness.” In July 1971" } ]

[ { "docid": "14853402", "title": "", "text": "Utah statute does not create a situation where the woman has no available choice but to bear the child or be subject to legal sanction. No criminal penalties at all apply to a woman who chooses to abort by going to another state that permits abortion. . The Utah Constitutional issues are discussed in a separate memorandum on plaintiffs’ Motion to Voluntarily Dismiss Claims Arising Under the Utah Constitution. .Additional provisions of the Utah Code claimed by plaintiffs to be facially unconstitutional remain under advisement pending the decision of the United States Supreme Court in Planned Parenthood v. Casey, 947 F.2d 682 (3rd Cir.1990), cert. granted, -U.S.-, 112 S.Ct. 931, 117 L.Ed.2d 104 (1992). These include: Utah Code Ann. §§ 76-7-307, 308 prescribing the standard of care to be used when aborting a potentially viable fetus; Utah Code Ann. § 76-7-315, waiving certain statutory requirements in a serious medical emergency where time does not permit compliance; and Utah Code Ann. § 76-7-304(2), requiring the attending physician, if possible, to notify a married woman's husband before she has an abortion. . See discussion on vagueness, supra. . See Margaret v. Edwards, 794 F.2d 994, 998-99 (5th Cir.1986); Lifchez v. Hartigan, 735 F.Supp. 1361 (N.D.Ill.1990). . This interpretation of the statute makes the same distinction as the University of Utah Medical Center's guidelines governing research on human subjects and is as readily understood. The Medical Center's guidelines define \"research\" as: a systematic investigation designed to develop or contribute to general knowledge. “Research” should be distinguished from \"innovative therapy.” Both may involve departures from customary professional practice, but the primary justification for research is acquisition of information, while that for innovative therapy is patient care. See Guidelines for Preparation of Application for Review by the Institutional Review Board (Health Sciences) at 1 (attached to Def.’s Mem. Supp.Summ.J. as exhibit X)." }, { "docid": "6894912", "title": "", "text": "in Mississippi at the time of the 1997 JAMA study, an abortion clinic was allowed to waive the notice-and-waiting requirement only in “medical emergencies to avoid the death of the woman or prevent peril of immediate or irreversible loss of major bodily functions.” Pro-Choice Miss. v. Fordice, 716 So.2d 645, 656 (Miss.1998). See also Utah Women’s Clinic Inc. v. Leavitt, 844 F.Supp. 1482, 1491-93 (D.Utah 1994) (similarly interpreting Utah Code Ann. § 76-7-301(2)). Cf. Stenberg v. Carhart, 530 U.S. 914, 938, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000). As we have pointed out above, because the statutory exception is much more expansive in Indiana than Mississippi, a greater number of Indiana women will be exempt from the limitation of their statute than similarly situated women in Mississippi, and thus I cannot agree that evidence of a 10 percent reduction in Mississippi’s abortion rate predicts that a similar reduction is on the horizon in Indiana. I cannot understand the dissent’s attempt to enlarge the scope of Indiana’s medical emergency exception by claiming that “the majority acknowledges [that] Indiana’s law has been construed to have an emergency by-pass provision that covers any kind of physical or psychological risk to the woman from any of its provisions, including presumably the ‘presence’ requirement.” Post at 708, n.2. In doing this, the dissent has mischaracterized the majority opinion as well as the Indiana Supreme .Court’s construction of the statute before us. We in the majority, when stating that Indiana’s emergency bypass has been “held to encompass any kind of threat to the woman’s health or safety,” ante at 691, are referring to the Indiana Supreme Court’s statement that the “medical emergency exception excuses a woman from the informed consent requirement when there is a significant threat to her life or health, physical and mental” but that “severe-but-temporary conditions in which an abortion is not the medically necessary treatment are not covered by the exception.” Newman, 671 N.E.2d at 111. “Federal courts must interpret a state statute as that state’s courts would construe it.” Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503, 507 (7th" }, { "docid": "22534867", "title": "", "text": "finds “that the minor is capable of making, and has made, an informed and reasonable decision to have an abortion,” he is entitled to withhold consent “in circumstances where he determines that the best interests of the minor will not be served by an abortion.” Ibid., 360 N. E. 2d, at 293. 4. As a general rule, a minor who desires an abortion may not obtain judicial consent without first seeking both parents’ consent. Exceptions to the rule exist when a parent is not available or when the need for the abortion constitutes “ ‘an emergency requiring immediate action.’ ” Id., at 750, 360 N. E. 2d, at 294. Unless a parent is not available, he must be notified of any judicial proceedings brought under § 12S. Id., at 755-756, 360 N. E. 2d, at 297. 5. The resolution of § 12S cases and any appeals that follow can be expected to be prompt. The name of the minor and her parents may be held in confidence. If need be, the Supreme Judicial Court and the superior courts can promulgate rules or issue orders to ensure that such proceedings are handled expeditiously. Id., at 756-758, 360 N. E. 2d, at 297-298. 6. Massachusetts Gen. Laws Ann., ch. 112, § 12F (West Supp. 1979), which provides, inter alia, that certain classes of minors may consent to most kinds of medical care without parental approval, does not apply to abortions, except as to minors who are married, widowed, or divorced. See 371 Mass., at 758-762, 360 N. E. 2d, at 298-300. Nor does the State’s common-law “mature minor rule” create an exception to § 12S. Id., at 749-750, 360 N. E. 2d, at 294. See n. 27, infra. C Following the judgment of the Supreme Judicial Court, appellees returned to the District Court and obtained a stay of the enforcement of § 12S until its constitutionality could be determined. Baird v. Bellotti, 428 F. Supp. 854 (Mass. 1977) (Baird II). After permitting discovery by both sides, holding a pretrial conference, and conducting further hearings, the District Court again declared § 12S unconstitutional" }, { "docid": "22561297", "title": "", "text": "minors with emergency health care needs, the Court fails to point to anything in the statute, the record, or Utah case law to the contrary. The Supreme Court of Utah addressed only one kind of emergency: where the parents cannot be physically located in sufficient time to permit performance of the abortion. 604 P. 2d, at 913. The court rejected any other emergency situation as an exception to the statute when it declined to afford a broad interpretation of the phrase, \"if possible,” which modifies the notice requirement. Even where the emergency is simply that the parents cannot be reached, the statute applies; the physician subject to its sanction merely has been granted an affirmative defense that he exercised “reasonable diligence” in attempting to locate and notify the parents. Ibid. The majority purports to draw support for its view of the Utah statute on this point from a Massachusetts statute, construed by the Massachusetts Supreme Judicial Court, see ante, at 407, n. 14. As one medical authority observed: “One can well argue that an adolescent old enough to make the decision to be sexually active . , . , and who is then responsible enough to seek professional assistance for his or her problem, is ipso facto mature enough to consent to his own health care.” Hofmann, supra n. 25, at 51. See Goldstein, 86 Yale L. J., at 633. Utah Code Ann. § 78-14-5(4) (f) (1977). Utah Code Ann. § 76-7-305 (1978) requires voluntary and informed written consent. See n. 36, supra. Cf. Wynn v. Carey, 582 F. 2d, at 1388." }, { "docid": "22286080", "title": "", "text": "Supp. 2005); Mass. Gen. Laws, ch. 112, §12S (West 2004); Mich. Comp. Laws Ann. §§ 722.902(b), 722.905 (West 2002); Miss. Code Ann. §41-41-57 (2005); Mont. Code Ann. §§50-20-203(5), 50-20-208 (2005); Neb. Rev. Stat. §71-6906(1) (2003); Nev. Rev. Stat. §442.255(1) (2003); N. J. Stat. Ann. §§9:17A-1.3, 9:17A-1.6 (West 2002); N. M. Stat. Ann. §30-5-1 (2004); N. C. Gen. Stat. Ann. §90-21.9 (Lexis 2003); N. D. Cent. Code Ann. §§14-02.1-03(1), 14-02.1-03.1(2) (Lexis 2004); Ohio Rev. Code Ann. § 2919.121(D) (Lexis 2003); Okla. Stat., Tit. 63, §1-740.2(B) (West Cum. Supp. 2006); 18 Pa. Cons. Stat. §§3203, 3206 (2002); R. I. Gen. Laws §23-4.7-4 (1996); S. C. Code Ann. §44-41-30(0(1) (2002); 2005 S. D. Laws p. 189; Tenn. Code Ann. § 37-10-305 (2005); Tex. Occ. Code Ann. § 164.052(a)(19) (West Cum. Supp. 2005), Tex. S. B. 419, § 1.42(a)(19) (2005) (enrolled); Utah Code Ann. §§76-7-301(2), 76-7-305 (Lexis Supp. 2005); Va. Code Ann. § 18.2-76 (2004); W. Va. Code § 16-2F-5 (Lexis 2001); Wis. Stat. §48.375 (2003-2004). Two States give physicians sufficient discretion to perform an abortion to protect minors’ health. Me. Rev. Stat. Ann., Tit. 22, §1597-A (2004); Md. Health Code Ann. §20-103 (2005). Four, including New Hampshire, make no exception for minors’ health in an emergency. N. H. Stat. § 132:26 (2005); Minn. Stat. § 144.343 (2004); Mo. Rev. Stat. §188.028 (2000); Wyo. Stat. Ann. §35-6-118 (2003). It is the sad reality, however, that young women sometimes lack a loving and supportive parent capable of aiding them “to exercise their rights wisely.” Hodgson, 497 U. S., at 444 (opinion of Stevens, J.); see id., at 450-451, and n. 36 (opinion of the Court) (holding unconstitutional a statute requiring notification of both parents, and observing that “the most common reason” young women did not notify a second parent was that the second parent “was a child- or spouse-batterer, and notification would have provoked further abuse” (citation omitted)).- See also Department of Health and Human Services, Administration on Children, Youth and Families, Child Maltreatment 2003, p. 63 (2005) (parents were the perpetrators in 79.7% of cases of reported abuse or neglect)." }, { "docid": "6894911", "title": "", "text": "in Mississippi The Supreme Court of Indiana in its decision broadly defines the term “medical emergency” as any physical or mental condition that is more severe and prolonged than those “lesser and regular conditions normally associated with pregnancy,” A Woman’s Choice v. Newman, 671 N.E.2d 104, 109 (Ind.1996), while the Mississippi legislature has narrowly defined “medical emergency ” as “that condition which, on the basis of the physician’s best clinical judgment, so complicates a pregnancy as to necessitate an immediate abortion to avert the death of the mother or for which a twenty-four-hour delay will create grave peril of immediate and irreversible loss of major bodily function.” Miss.Code Ann. § 41-41 — 31(b). In Indiana, an abortion clinic may disregard the notice-and-waiting requirements if “the attending physician, in the exercise of her clinical judgment in light of all factors relevant to a woman’s life or health, concludes in good faith that medical complications in her patient’s pregnancy indicate the necessity of treatment by therapeutic abortion” without delay. Newman, supra at 111. On the other hand, in Mississippi at the time of the 1997 JAMA study, an abortion clinic was allowed to waive the notice-and-waiting requirement only in “medical emergencies to avoid the death of the woman or prevent peril of immediate or irreversible loss of major bodily functions.” Pro-Choice Miss. v. Fordice, 716 So.2d 645, 656 (Miss.1998). See also Utah Women’s Clinic Inc. v. Leavitt, 844 F.Supp. 1482, 1491-93 (D.Utah 1994) (similarly interpreting Utah Code Ann. § 76-7-301(2)). Cf. Stenberg v. Carhart, 530 U.S. 914, 938, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000). As we have pointed out above, because the statutory exception is much more expansive in Indiana than Mississippi, a greater number of Indiana women will be exempt from the limitation of their statute than similarly situated women in Mississippi, and thus I cannot agree that evidence of a 10 percent reduction in Mississippi’s abortion rate predicts that a similar reduction is on the horizon in Indiana. I cannot understand the dissent’s attempt to enlarge the scope of Indiana’s medical emergency exception by claiming that “the majority acknowledges" }, { "docid": "22561295", "title": "", "text": "Four Members of this Court embraced the “mature minor” concept in striking down a statute requiring parental notice and consent to a minor’s abortion, regardless of her own maturity. Bellotti II, 443 U. S., at 643-644, and nn. 22 and 23. In Bellotti II, Justice Powell’s opinion for four Members of this Court suggested that a statute could withstand constitutional attack if it permitted case-by-case administrative or judicial determination of a pregnant minor’s capacity to make an abortion decision with her physician and independent of her parents. Ibid. Because this view was expressed in a case not involving such a statute, and because it would expose the minor to the arduous and public rigors of administrative or judicial process, four other Members of this Court rejected it as advisory and at odds with the privacy interest at stake. Id., at 654^656, and n. 4 (SteveNS, J., joined by BreNNAN, Marshall, and Blackmun, JJ.). Nonetheless, even under Justice Powell’s reasoning in Bellotti II, the instant statute is unconstitutional. Not only does it preclude case-by-case consideration of the maturity of the minor, it also prevents individualized review to determine whether parental notice would be harmful to the minor. E. g., Ky. Rev. Stat. § 214.185 (3) (1977); Utah Code Ann. § 26-31-8 (1976); 1979 Utah Laws, ch. 98, § 7. The need for emergency medical care may even overcome the religious objections of the parents. E. g., In re Clark, 21 Ohio Op. 2d 86, 89-90, 185 N. E. 2d 128, 131-132 (Com. PI., Lucas County 1962); In re Sampson, 65 Misc. 2d 658, 317 N. Y. S. 2d 641 (Family Ct.), aff’d, 37 App. Div. 2d 668, 323 N. Y. S. 2d 253 (1970); Mass. Gen. Laws. Ann., ch. 112, § 12F (West Supp. 1981); Miss. Code Ann. § 41-41-7 (1972). Delay in treating nonemergency health needs may, of course, produce an emergency, and for that reason, this Court found statutory provision for emergency but not nonemergency care illogical. Memorial Hospital v. Maricopa County, 415 U. S. 250, 261, 265 (1974). In asserting that the Utah statute would not apply to" }, { "docid": "22561296", "title": "", "text": "the maturity of the minor, it also prevents individualized review to determine whether parental notice would be harmful to the minor. E. g., Ky. Rev. Stat. § 214.185 (3) (1977); Utah Code Ann. § 26-31-8 (1976); 1979 Utah Laws, ch. 98, § 7. The need for emergency medical care may even overcome the religious objections of the parents. E. g., In re Clark, 21 Ohio Op. 2d 86, 89-90, 185 N. E. 2d 128, 131-132 (Com. PI., Lucas County 1962); In re Sampson, 65 Misc. 2d 658, 317 N. Y. S. 2d 641 (Family Ct.), aff’d, 37 App. Div. 2d 668, 323 N. Y. S. 2d 253 (1970); Mass. Gen. Laws. Ann., ch. 112, § 12F (West Supp. 1981); Miss. Code Ann. § 41-41-7 (1972). Delay in treating nonemergency health needs may, of course, produce an emergency, and for that reason, this Court found statutory provision for emergency but not nonemergency care illogical. Memorial Hospital v. Maricopa County, 415 U. S. 250, 261, 265 (1974). In asserting that the Utah statute would not apply to minors with emergency health care needs, the Court fails to point to anything in the statute, the record, or Utah case law to the contrary. The Supreme Court of Utah addressed only one kind of emergency: where the parents cannot be physically located in sufficient time to permit performance of the abortion. 604 P. 2d, at 913. The court rejected any other emergency situation as an exception to the statute when it declined to afford a broad interpretation of the phrase, \"if possible,” which modifies the notice requirement. Even where the emergency is simply that the parents cannot be reached, the statute applies; the physician subject to its sanction merely has been granted an affirmative defense that he exercised “reasonable diligence” in attempting to locate and notify the parents. Ibid. The majority purports to draw support for its view of the Utah statute on this point from a Massachusetts statute, construed by the Massachusetts Supreme Judicial Court, see ante, at 407, n. 14. As one medical authority observed: “One can well argue that an adolescent" }, { "docid": "22561292", "title": "", "text": "requirement. Finally, as Justice Stewart emphasized in his opinion concurring in the judgment in Parham, the pregnant minor has a “personal substantive . . . right” to decide on an abortion. Id., at 623-624, n. 6. Most States through their legislature or courts have adopted the common-law principle that a minor may become freed of the disabilities of that status — and at the same time release his parents from their parental obligations — prior to the actual date of his majority. Certain acts, in and of themselves, may occasion emancipation. See, e. g., Cal. Civ. Code Ann. § 62 (West 1954 and Supp. 1981) (emancipation upon marriage or entry in Armed Services); Utah Code Ann. § 15-2-1 (Supp. 1979) (emancipation upon marriage); Crook v. Crook, 80 Ariz. 275, 296 P. 2d 951 (1956) (same). A minor may become partially emancipated if he is partially self-supporting, but still entitled to some parental assistance. See Katz, Schroeder, & Sidman, Emancipating Our Children — Coming of Legal Age in America, 7 Fam. L. Q. 211, 215 (1973). Several States by statute permit emancipation for a specific purpose, such as obtaining medical care without parental consent, e. g., Cal. Civ. Code Ann. § 34.6 (West Supp. 1981); Mont. Code Ann. § 41-1-402 (1979) (woman of any age may consent to pregnancy-related medical care); Utah Code Ann. § 78-14-5 (4) (f) (1977) (same), § 26-6-39.1 (1976) (minor can consent to medical treatment for venereal disease); Tex. Rev. Civ. Stat. Ann., Art. 4447i (Vernon 1976) (person at least 13 years old may consent to medical treatment for drug dependency). See Pilpel, Minors’ Rights to Medical Care, 36 Albany L. Rev. 462 (1972). Several States provide for emancipation once the individual becomes a parent. E. g., Ky. Rev. Stat. § 214.-185 (2) (1977). In Utah, minors who become parents are authorized to make all medical care decisions for their offspring. Utah Code Ann. § 78-14-5 (4) (a) (1977). See generally Cohen v. Delaware, L. & W. R. Co., 150 Misc. 450, 453-457, 269 N. Y. S. 667, 671-676 (1934); L. R. v. Hansen, No. C-80-0078J (Utah," }, { "docid": "22286079", "title": "", "text": "part on remand, the Court of Appeals should address respondents’ separate objection to the judicial bypass’ confidentiality provision. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Forty-four States, including New Hampshire, have parental involvement (that is, consent or notification) laws. Thirty-eight of those laws have explicit exceptions for health or medical emergencies. Ala Code §26-21-5 (1992); Alaska Stat. § 18.16.060 (2004); Ariz. Rev. Stat. Ann. §36-2152(G)(2) (West 2003); Ark. Code Ann. §§20-16-802(2), 20-16-805(1) (2005 Supp.); Cal. Health & Safety Code Ann. § 123450 (West 1996); Colo. Rev. Stat. §12-37.5-103(5) (2004); Del. Code Ann., Tit. 24, §§ 1782(d), 1787 (1997); Fla Stat. Ann. §§390.01114(2)(d), (3)(b) (West Supp. 2006); Ga Code Ann. §15-11-116 (2005); Idaho Code § 18-609A(1)(a)(v) (Lexis Cum. Supp. 2005); Ill. Comp. Stat., eh. 750, §70/10 (West 2004); Ind. Code § 16-34-2-4 (West 2004); Iowa Code §135L.3 (2005); Kan. Stat. Ann. § 65-6705(j)(1)(B) (2002); Ky. Rev. Stat. Ann. §§311.720, 311.732 (West Supp. 2005); La. Stat. Ann. §40:1299.35.12 (West Supp. 2005); Mass. Gen. Laws, ch. 112, §12S (West 2004); Mich. Comp. Laws Ann. §§ 722.902(b), 722.905 (West 2002); Miss. Code Ann. §41-41-57 (2005); Mont. Code Ann. §§50-20-203(5), 50-20-208 (2005); Neb. Rev. Stat. §71-6906(1) (2003); Nev. Rev. Stat. §442.255(1) (2003); N. J. Stat. Ann. §§9:17A-1.3, 9:17A-1.6 (West 2002); N. M. Stat. Ann. §30-5-1 (2004); N. C. Gen. Stat. Ann. §90-21.9 (Lexis 2003); N. D. Cent. Code Ann. §§14-02.1-03(1), 14-02.1-03.1(2) (Lexis 2004); Ohio Rev. Code Ann. § 2919.121(D) (Lexis 2003); Okla. Stat., Tit. 63, §1-740.2(B) (West Cum. Supp. 2006); 18 Pa. Cons. Stat. §§3203, 3206 (2002); R. I. Gen. Laws §23-4.7-4 (1996); S. C. Code Ann. §44-41-30(0(1) (2002); 2005 S. D. Laws p. 189; Tenn. Code Ann. § 37-10-305 (2005); Tex. Occ. Code Ann. § 164.052(a)(19) (West Cum. Supp. 2005), Tex. S. B. 419, § 1.42(a)(19) (2005) (enrolled); Utah Code Ann. §§76-7-301(2), 76-7-305 (Lexis Supp. 2005); Va. Code Ann. § 18.2-76 (2004); W. Va. Code § 16-2F-5 (Lexis 2001); Wis. Stat. §48.375 (2003-2004). Two States give physicians sufficient discretion to perform an abortion to protect minors’" }, { "docid": "22561206", "title": "", "text": "minors in Massachusetts who have adequate capacity to give a valid and informed consent [to abortion], and who do not wish to involve their parents.” 443 U. S., at 626 (emphasis supplied). The courts considered the rights of “all pregnant minors who might be affected” by the statute. Id., at 627, n. 5. The record shows that the State unsuccessfully argued in the trial court that it should be permitted to inquire into appellant’s degree of maturity. Tr. 11. Justice Stevens and the dissent argue that the Utah Supreme Court held that the statute may validly be applied to all members of the class described in the complaint. Post, at 421, 430, 431, 432-433. However, as we have shown, neither of the state courts mentioned the scope or limits of the class. See n. 10, supra. Moreover, appellant’s counsel prepared the findings and conclusions. In addition to considerations of standing, we construe the ambiguity against appellant. There is no authority for the view expressed in the dissent that the statute would apply to \"minors with emergency health care needs.” Post, at 450-451. Appellant does not so contend, and the Utah Supreme Court in this case took pains to say that time is of the essence in an abortion decision. 604 P. 2d 907, 913 (1979). When the specific question was properly posed in Bellotti II, the Massachusetts statute was construed by the state court not to apply in such cases. 443 U. S., at 630. The same is true for minors with hostile home situations, a class referred to by appellant’s amici curiae and by the dissent, post, at 437-441. Bellotti II, 443 U. S., at 642-643, 653-656; Danforth, 428 U. S., at 74. Bellotti II, supra, at 640, 649; id., at 657 (dissenting opinion); Danforth, supra, at 90-91 (concurring opinion); see Bellotti v. Baird, 428 U. S. 132, 145, 147 (1976) (Bellotti I); cf. Carey v. Population Services International, 431 U. S. 678, 709-710 (1977). The main premise of the dissent seems to be that a requirement of notice to the parents is the functional equivalent of a requirement" }, { "docid": "22554780", "title": "", "text": "g., Martorell v. Ochoa, 276 F. 99 (CA1 1921). See, e. g., Jehovah’s Witnesses v. King County Hospital, 278 F. Supp. 488 (WD Wash. 1967), aff’d, 390 U. S. 598 (1968); In re Sampson, 65 Misc. 2d 658, 317 N. Y. S. 2d 641 (Fam. Ct. Ulster County, 1970), aff’d, 37 App. Div. 2d 668, 323 N. Y. S. 2d 253 (1971), aff’d, 29 N. Y. 2d 900, 278 N. E. 2d 918 (1972); State v. Perricone, 37 N. J. 463, 181 A. 2d 751 (1962). Similarly, more recent legal disputes involving the sterilization of children have led to the conclusion that parents are not permitted to authorize operations with such far-reaching consequences. See, e. g., A. L. v. G. R. H., 163 Ind. App. 636, 325 N. E. 2d 501 (1975); In re M. K. R., 515 S. W. 2d 467 (Mo. 1974); Frazier v. Levi, 440 S. W. 2d 393 (Tex. Civ. App. 1969). See Commonwealth v. Renfrew, 332 Mass. 492, 126 N. E. 2d 109 (1955); Meyerkorth v. State, 173 Neb. 889, 115 N. W. 2d 585 (1962), appeal dism’d, 372 U. S. 705 (1963); In re Weberman, 198 Misc. 1055, 100 N. Y. S. 2d 60 (Sup. Ct. 1950), aff’d, 278 App. Div. 656, 102 N. Y. S. 2d 418, aff’d, 302 N. Y. 855, 100 N. E. 2d 47, appeal dism’d, 342 U. S. 884 (1951). Murdock, Civil Rights of the Mentally Retarded: Some Critical Issues, 48 Notre Dame Law. 133, 138 (1972); Vogel & Bell, The Emotionally Disturbed Child as the Family Scapegoat, in a Modem Introduction to the Family 412 (1968). The National Institute of Mental Health has reported: “[Thousands upon thousands of elderly patients now confined on the back wards of . . . state [mental] institutions were first admitted as children thirty, forty, and even fifty years ago. A recent report from one state estimates that one in every four children admitted to its mental hospitals 'can anticipate being permanently hospitalized for the next 50 years of their lives.’ ” Joint Commission on Mental Health of Children, supra n. 9, at" }, { "docid": "12848153", "title": "", "text": "court noted, however, there are a number of other pregnancy complications the parties agree could pose major risks to the health of the pregnant minor, treatment for which may require an abortion as defined by the PNA and fer which the forty-eight-hour waiting period of the PNA (or any delay at all) could endanger the health of the pregnant minor. Planned Parenthood, 107 F.Supp.2d at 1277 n. 7. Thus, we need not address the ectopic pregnancy issue to resolve this case. . The following state laws which require parental notice or consent for a minor to obtain an abortion also provide a medical exception where the minor's life or health is at risk. See Ala.Code § 26-21-5 (requirements do not apply where medical emergency exists); Ariz. Rev.Stat. § 36-2152 (requirements do not apply where physician certifies immediate abortion necessary to avert death or serious risk of substantial and irreversible impairment of major bodily function of minor); Cal. Health & Safety Code § 123450 (consent not required if medical emergency exists); Del. Code Ann. tit. 24, § 1787 (requirements do not apply when medical emergency exists); Fla. Stat. ch. 390.01115 (notice not required when medical emergency exists and immediate abortion necessary to avert death or serious risk of substantial and irreversible impairment of major bodily function of minor); Ga. Code Ann. § 15-11-116 (requirements do not apply where medical emergency exists); Idaho Code § 18-609A (consent not required where medical emergency exists); 750 Ill. Comp. Stat. 70/20 (notice not required where medical emergency exists); Ind.Code § 16-34-2-4 (requirements do not apply where continuation of pregnancy provides immediate threat and grave risk to life or health of minor); Iowa Code § 135L.3 (requirements do not apply where physician determines medical emergency exists); Kan. Stat. Ann. § 65-6705 (notice not required where emergency exists that threatens health, safety, or well-being of minor); Ky.Rev.Stat. 311.732 (requirements do not apply when medical emergency exists); La.Rev.Stat. Ann. § 40:1299.35.12 (provisions do not apply where medical emergency exists and continuation of pregnancy poses immediate threat and grave risk to life or permanent physical health of minor); Md.Code" }, { "docid": "23346850", "title": "", "text": "obtain the consent of at least one of her parents or legal guardian before performing an abortion on a minor. See Wardle, “Time Enough”: Webster v. Reproductive Health Services and the Prudent Pace of Justice, 41 Fla. L. Rev. 881, 963-965 (1989) (collecting statutes). Five States, including Minnesota, appear to require, as a general rule, the notification of both parents before a physician may perform an abortion on a minor. See Ark. Code Ann. §§ 20-16-801 through 20-16-808 (Supp. 1989); Idaho Code § 18-610 (6) (1987); Tenn. Code Ann. § 39-15-202(f) (Supp. 1989); Utah Code Ann. §76-7-304 (1990). Another six States appear to require, with varying exceptions, the consent of both parents. See Del. Code Ann., Tit. 24, § 1790(b)(3) (1987); Ill. Rev. Stat., ch. 38, ¶81-54(3) (1989); Ky. Rev. Stat. Ann. §311.732 (Michie 1990); Mass. Gen. Laws §112:12S (1988); Miss. Code. Ann. § 41-41-53 (Supp. 1989); N. D. Cent. Code §14-02.1-03.1 (1981). Whether these statutes are more or less restrictive than the Minnesota statute is not the issue, although I pause to note that because the Court’s decision today turns upon its perception that the law’s requirements, despite its exceptions, are the most “stringent” in the country, see ante, at 459 (O’Connor, J., concurring in part and concurring in judgment), the. Court’s decision has no import for the validity of these other statutes. What is important is that Minnesota is not alone in acknowledging the vitality of these governmental interests and adopting laws that, in the legislature’s judgment, are best suited to serving them while protecting the minor’s welfare. On a more general level, the current trend among state legislatures is to enact joint custody laws making it the norm for divorced or separated parents to share the legal responsibility and authority for making decisions concerning their children’s care, education, religion, and medical treatment. See 2 H. Clark, Law of Domestic Relations in the United States §20.5 (2d ed. 1987); Folberg, Joint Custody Law — The Second Wave, 23 J. Family L. 1, 14-55 (1984-1985) (collecting statutes). Under Minnesota law, for example, there exists a presumption in divorce proceedings" }, { "docid": "22554779", "title": "", "text": "for the Mentally Retarded 22 (1969). See also Wheeler v. Glass, 473 F. 2d 983 (CA7 1973); Davis v. Watkins, 384 F. Supp. 1196 (ND Ohio 1974); Welsch v. Likins, 373 F. Supp. 487 (Minn. 1974). See J. Simmons, Psychiatric Examination of Children 1, 6 (1974); Lourie & Rieger, Psychiatric and Psychological Examination of Children, in 2 American Handbook of Psychiatry 19 (2d ed. 1974). See Joint Commission on Mental Health of Children, supra n. 9, at 267. See T. Seheff, Being Mentally Ill: A Sociological Theory (1966); Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Calif. L. Rev. 693 (1974). See Dept. of HEW, National Institute of Mental Health, Biometry Branch, Statistical Note 115, Children and State Mental Hospitals 4 (Apr. 1975). See generally S. Katz, When Parents Fail (1971); M. Midonick & D. Besharov, Children,- Parents and the Courts: Juvenile Delinquency, Un-governability, and Neglect (1972); Wald, State Intervention on Behalf of “Neglected” Children: A Search for Realistic Standards, 27 Stan. L. Rev. 985 (1975). See, e. g., Martorell v. Ochoa, 276 F. 99 (CA1 1921). See, e. g., Jehovah’s Witnesses v. King County Hospital, 278 F. Supp. 488 (WD Wash. 1967), aff’d, 390 U. S. 598 (1968); In re Sampson, 65 Misc. 2d 658, 317 N. Y. S. 2d 641 (Fam. Ct. Ulster County, 1970), aff’d, 37 App. Div. 2d 668, 323 N. Y. S. 2d 253 (1971), aff’d, 29 N. Y. 2d 900, 278 N. E. 2d 918 (1972); State v. Perricone, 37 N. J. 463, 181 A. 2d 751 (1962). Similarly, more recent legal disputes involving the sterilization of children have led to the conclusion that parents are not permitted to authorize operations with such far-reaching consequences. See, e. g., A. L. v. G. R. H., 163 Ind. App. 636, 325 N. E. 2d 501 (1975); In re M. K. R., 515 S. W. 2d 467 (Mo. 1974); Frazier v. Levi, 440 S. W. 2d 393 (Tex. Civ. App. 1969). See Commonwealth v. Renfrew, 332 Mass. 492, 126 N. E. 2d 109 (1955); Meyerkorth v. State, 173 Neb. 889," }, { "docid": "22561293", "title": "", "text": "Several States by statute permit emancipation for a specific purpose, such as obtaining medical care without parental consent, e. g., Cal. Civ. Code Ann. § 34.6 (West Supp. 1981); Mont. Code Ann. § 41-1-402 (1979) (woman of any age may consent to pregnancy-related medical care); Utah Code Ann. § 78-14-5 (4) (f) (1977) (same), § 26-6-39.1 (1976) (minor can consent to medical treatment for venereal disease); Tex. Rev. Civ. Stat. Ann., Art. 4447i (Vernon 1976) (person at least 13 years old may consent to medical treatment for drug dependency). See Pilpel, Minors’ Rights to Medical Care, 36 Albany L. Rev. 462 (1972). Several States provide for emancipation once the individual becomes a parent. E. g., Ky. Rev. Stat. § 214.-185 (2) (1977). In Utah, minors who become parents are authorized to make all medical care decisions for their offspring. Utah Code Ann. § 78-14-5 (4) (a) (1977). See generally Cohen v. Delaware, L. & W. R. Co., 150 Misc. 450, 453-457, 269 N. Y. S. 667, 671-676 (1934); L. R. v. Hansen, No. C-80-0078J (Utah, Feb. 8, 1980) (self-supporting minor seeking abortion is emancipated and mature); Goldstein, Medical Care for the Child at Risk: On State Supervention of Parental Autonomy, 86 Yale L. J. 645, 663 (1977) (recommending objective criteria to avoid case-by-case determination of emanicipation). The “mature minor” doctrine permits a child to consent to medical treatment if he is capable of appreciating its nature and consequences. E. g., L. R. v. Hansen, supra (this mature minor “is capable of understanding her condition and making an informed decision which she has done after carefully considering the alternatives available to her and consulting the persons with whom she felt she should consult” prior to abortion decision); Ark. Stat. Ann. §82-363 (g) (1976). See Lacey v. Laird, 166 Ohio St. 12, 139 N. E. 2d 25 (1956) (physician not liable for battery after acting with minor’s consent); Smith v. Seibly, 72 Wash. 2d 16, 21-22, 431 P. 2d 719, 723 (1967); Younts v. St. Francis Hosp. & School of Nursing, Inc., 205 Kan. 292, 300-301, 469 P. 2d 330, 337 (1970)." }, { "docid": "22561207", "title": "", "text": "emergency health care needs.” Post, at 450-451. Appellant does not so contend, and the Utah Supreme Court in this case took pains to say that time is of the essence in an abortion decision. 604 P. 2d 907, 913 (1979). When the specific question was properly posed in Bellotti II, the Massachusetts statute was construed by the state court not to apply in such cases. 443 U. S., at 630. The same is true for minors with hostile home situations, a class referred to by appellant’s amici curiae and by the dissent, post, at 437-441. Bellotti II, 443 U. S., at 642-643, 653-656; Danforth, 428 U. S., at 74. Bellotti II, supra, at 640, 649; id., at 657 (dissenting opinion); Danforth, supra, at 90-91 (concurring opinion); see Bellotti v. Baird, 428 U. S. 132, 145, 147 (1976) (Bellotti I); cf. Carey v. Population Services International, 431 U. S. 678, 709-710 (1977). The main premise of the dissent seems to be that a requirement of notice to the parents is the functional equivalent of a requirement of parental consent. See post, at 437-441. In Bellotti II, however, we expressly declined to equate notice requirements with consent requirements. 443 U. S., at 640, 657. Bellotti II, supra, at 637-639. The short shrift given by the dissent to “parental authority and family integrity,” post, at 447, runs contrary to a long line of constitutional cases in this Court. See cases cited supra, at 410. Bellotti II, supra, at 634-637. Abortion is associated with an increased risk of complication in subsequent pregnancies. Maine, Does Abortion Affect Later Pregnancies?, 11 Family Planning Perspectives 98 (1979). The emotional and psychological effects of the pregnancy and abortion experience are markedly more severe in girls under 18 than in adults. Wallerstein, Kurtz, & Bar-Din, Psychosocial Sequelae of Therapeutic Abortion in Young Unmarried Women, 27 Arch. Gen. Psychiatry 828 (1972); see also Babikian & Goldman, A Study in Teen-Age Pregnancy, 128 Am. J. Psychiatry 755 (1971). At least five States have enacted parental notification statutes containing brief mandatory waiting periods. See La. Rev. Stat. Ann. §40:-1299.35.5 (West Supp. 1981)" }, { "docid": "23427861", "title": "", "text": "practical point. It may be important legally, but [not] from a medical standpoint. . . .” Ibid. Given that Dr. Crist’s discordant testi mony is wholly unsupported, the State’s compelling interest in protecting a viable fetus justifies the second-physician requirement even though there may be the rare case when a physician may think honestly that D&E is required for the mother’s health. Legislation need not accommodate every conceivable contingency. There is no clearly expressed exception on the face of the statute for the performance of an abortion of a viable fetus without the second physician in attendance. There may be emergency situations where, for example, the woman’s health may be endangered by delay. Section § 188.030.3 is qualified, at least in part, by the phrase “provided that it does not pose an increased risk to the life or health of the woman.” This clause reasonably could be construed to apply to such a situation. Cf. H. L. v. Matheson, 450 U. S. 398, 407, n. 14 (1981) (rejecting argument that Utah statute might apply to individuals with emergency health care needs). See American College of Obstetricians and Gynecologists (ACOG) Technical Bulletin No. 56, p. 4 (Dec. 1979) (as high as 7% live-birth rate for intrauterine instillation of uterotonic agents); Stroh & Hinman, Reported Live Births Following Induced Abortion: Two and One-Half Years' Experience in Upstate New York, 126 Am. J. Obstet. Gynecol. 83, 83-84 (1976) (26 live births following saline induced-abortions; 9 following hysterotomy; 1 following oxtyocin-induced abortion) (1 survival out of 38 live births); 5 Record 728 (50-62% mortality rate for fetuses 26 and 27 weeks); id., at 729 (25-92% mortality rate for fetuses 28 and 29 weeks); id., at 837 (50% mortality rate at 34 weeks). A pathological examination is designed to assist in the detection of fatal ectopic pregnancies, hydatidiform moles or other preeancerous growths, and a variety of other problems that can be discovered only through a pathological examination. The general medical utility of pathological examinations is clear. See, e. g., ACOG, Standards for Obstetric-Gynecologic Services 52 (5th ed. 1982) (1982 ACOG Standards); National Abortion Federation" }, { "docid": "22561256", "title": "", "text": "with the limits traditionally placed on parental authority. Parental authority is never absolute, and has been denied legal protection when its exercise threatens the health or safety of the minor children. E. g., Prince v. Massachusetts, supra, at 169-170. Indeed, legal protection for parental rights is frequently tempered if not replaced by concern for the child’s interest. Whatever its importance elsewhere, parental authority deserves de minimis legal reinforcement where the minor’s exercise of a fundamental right is burdened. To decide this case, there is no need to determine whether parental rights never deserve legal protection when their as sertion conflicts with the minor’s rights and interests. I conclude that this statute cannot be defended as a mere reinforcement of existing parental rights, for the statute reaches beyond the legal limits of those rights. The statute applies, without exception, to emancipated minors, mature mi nors, and minors with emergency health care needs, all of whom, as Utah recognizes, by law have long been entitled to medical care unencumbered by parental involvement. Most relevant to appellant’s own claim, the statutory restriction applies even where the minor’s best interests — as evaluated by her physician — call for an abortion. The Utah trial court found as a fact that appellant’s physician “believed along with her that she should be aborted and that he felt it was in her best medical interest to do so but he could not and would not perform an abortion upon her without informing her parents prior to aborting her because it was required of him by that statute and he was unwilling to perform an abortion upon her without complying with the provisions of the statute even though he believed it was best to do so.” Civ. No. C-78-2719 (Dec. 26, 1978) (Findings of Fact ¶7). Even if further review by adults other than her physician, counselor, and attorney were necessary to assess the minor’s best interests, see Bellotti II, 443 U. S., at 640-641, 643-644 (opinion of Powell, J.), Utah’s rejection of any exception to the notice requirement for a pregnant minor is plainly overbroad. In Bellotti" }, { "docid": "20128699", "title": "", "text": "statute contains a broad and expansive exception which requires notice only “if possible.” In this Court’s opinion, the giving of notice by the woman’s physician rather than by the woman constitutes a distinction without a difference. The same abuse from violent and dangerous husbands could be expected whether the notice comes from the woman or the woman’s physician. As to the arguably broad “if possible” exception, the Utah Supreme Court interpreted the statute in effect to require notification not only if possible, but if at all possible. See H.L. v. Matheson, 450 U.S. 398, 405, 101 S.Ct. 1164, 1169, 67 L.Ed.2d 388 (1981) (citing H.L. v. Matheson, 604 P.2d 907, 913 (Utah 1979)). The Supreme Court analogized' the Pennsylvania spousal notification requirement, despite its extensive exceptions, to the spousal consent requirement invalidated in Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 74, 96 S.Ct. 2831, 2843, 49 L.Ed.2d 788 (1976). The majority of the Supreme Court then adopted what appears to be an unequivocal position on the unconstitutionality of spousal notification statutes, stating: The spousal notification requirement is likely to prevent a significant number of women from obtaining an abortion____ [I]t will impose a substantial obstacle. We must not blind ourselves to the fact that a significant number of women who fear for their health and safety as well as the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortions in all cases. Casey, — U.S. at —, 112 S.Ct. at 2829. The same principles apply to the Utah statute. Conceivably, a spousal notification statute with appropriate exceptions could be found to be constitutional. However, that situation is not presented here. In line with Casey, this Court holds section 76-7-304 to be an unconstitutional infringement upon the woman’s liberty interest. 5. Serious Medical Emergency The final provision at issue is the “serious medical emergency” statute. Utah Code Ann. § 76-7-315 (Supp.1991). When such an emergency exists, this statute excuses compliance with requirements otherwise mandated by the legislature, such as the notification requirements of subsection 76-7-304(2)," } ]

[ { "docid": "23519464", "title": "", "text": "determining his base offense level. Enhancement based on possession of a firearm by a co-conspirator Atkins next argues on appeal that the district court erred in enhancing his base offense level based on the possession of a firearm by Schreckhise. A district court’s finding that a defendant possessed a firearm for purposes of § 2Dl.l(b)(l) may only be overturned if clearly erroneous. See United States v. Payne, 81 F.3d 759, 763 (8th Cir.1996). However, at sentencing, “[t]he government bears the burden of proving by a preponderance of the evidence that [a firearm] was present and that [it] was probable that it was connected with the drug charge.” United States v. McCracken, 110 F.3d 535, 541 (8th Cir.1997) (citing Payne, 81 F.3d at 763). “Lack of proof of use or actual possession” does not preclude a § 2D1.1(b)(1) adjustment; constructive possession is sufficient. Id. Additionally, “ownership of either the weapon or the premises upon which the weapon is found is not required.” Payne, 81 F.3d at 762. Therefore, the fact that Atkins did not own the firearms recovered from Schreckhise’s car does not defeat an upward adjustment pursuant to § 2D1.1(b)(1) based on the recovery of this firearm. The government can meet its burden of proof for purposes of a § 2Dl.l(b)(l) enhancement by establishing that “a temporal and spacial relation existed between the weapon, the drug trafficking activity, and the defendant.” Id. at 763 (citing United States v. Bost, 968 F.2d 729, 732 (8th Cir.1992)). The crimes to which Atkins plead guilty were conspiracy to manufacture and distribute methamphetamine and aiding and abetting with others in possession of methamphetamine with intent to distribute. Therefore, in order to establish a nexus between these drug-related activities and the firearm, the government had to prove by a preponderance of evidence that the firearm was found in the same location where drugs or drug paraphernalia were located or where part of the conspiracy took place. See id. During the sentencing hearing, a drug enforcement officer, who worked on the investigation of Atkins, Ware, Deal and others, testified regarding the traffic stop of Schreckhise’s vehicle" } ]

[ { "docid": "10092851", "title": "", "text": "to “pack up and get out of his house.” In addition to Charles’s testimony that Savage distributed methamphetamine from his apartment during the summer of 2002, the district court considered other evidence that established continuous methamphetamine trafficking by Savage from January, 2003, until his arrest in August, 2003. In light of the events Charles described and other evidence concerning Savage’s methamphetamine distribution, the district court imposed the two-level § 2Dl.l(b)(l) enhancement to Savage’s base offense level, concluding that it was not clearly improbable the firearm was connected to Savage’s drug dealing. B. ANALYSIS This Court reviews the district court’s interpretation and application of the guidelines de novo and its findings of fact for clear error. United States v. Mashek, 406 F.3d 1012, 1016-17 (8th Cir.2005) (holding that Booker did not affect this Court’s standards of review for a sentencing court’s application of the sentencing guidelines); see also United States v. Atkins, 250 F.3d 1203, 1213 (8th Cir.2001) (holding that this Court reviews for clear error a district court’s finding that a defendant possessed a firearm during a drug trafficking offense). First, Savage contends that the district court clearly erred by applying the dangerous-weapon enhancement of § 2D1.1(b)(1) because of the time that elapsed between his possession of the gun and his arrest and the lack of direct evidence connecting the firearm to the drug trafficking offense to- which he pled guilty. We disagree. Section 2D1.1(b)(1) mandates a two-level enhancement if the Government can prove by a preponderance of the evidence that the defendant possessed “a dangerous weapon (including a firearm)” while violating 21 U.S.C. § 841(b). U.S.S.G. § 2D1.1(b)(1); see also United States v. McCracken, 110 F.3d 535, 541 (8th Cir.1997). The firearm must be connected with the criminal activity before its possession can- be used to enhance the defendant’s sentence. United States v. Turpin, 920 F.2d 1377, 1386 (8th Cir.1990). The mere presence of a firearm is an insufficient predicate for a § 2D1.1(b)(1) enhancement. United States v. Shields, 44 F.3d 673, 674 (8th Cir.1995); U.S.S.G. § 2D1.1, cmt. n. 3 (“For 'example, the enhancement would not be applied" }, { "docid": "15123891", "title": "", "text": "error by applying a two-level increase in his sentence pursuant to USSG § 2D1.1(b)(1) because he was in possession of a firearm when arrested. Application Note 3 to § 2D 1.1 provides that the enhancement “should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” USSG § 2D1.1, cmt. n. 3. The government, therefore, must first prove by a preponderance of the evidence that the defendant possessed the firearm. United States v. Thomas, 294 F.3d 899, 905-06 (7th Cir. 2002); United States v. Harris, 230 F.3d 1054, 1057 (7th Cir.2000). “Actual possession of the firearm need not be established in order to trigger the enhancement. Instead, proof of constructive possession, that is, that the defendant had the power and the intention to exercise dominion or control of the firearm, is sufficient to warrant the enhancement.” Thomas, 294 F.3d at 906 (internal citations omitted). Once possession is established, the burden shifts to the defendant to prove that it was clearly improbable that the firearm was possessed in connection with the offense. Harris, 230 F.3d at 1057. There is no question that Lopez did not physically possess the gun when arrested. He was found hiding under clothing in a closet; the gun was in the toilet tank in the bathroom. The issues before us, therefore, are: 1) whether the government proved that Lopez constructively possessed the gun found in the toilet tank; and 2) whether Lopez showed that it was clearly improbable that the gun was connected to the offense. 1. Whether Lopez “possessed” the gun In United States v. Singleton, this Court upheld application of the sentence enhancement when the defendants were arrested in a home they had transformed into a drug distribution center. United States v. Singleton, 125 F.3d 1097, 1109-10 (7th Cir.1997). Inside that home, police recovered a small arsenal of six weapons, ammunition, and drugs hidden strategically throughout. Id. We held that, while no gun was found in the hands of the defendants when arrested, the sentence en hancement in § 2Dl.l(b)(l) still applied because they constructively" }, { "docid": "12957740", "title": "", "text": "had rarely fired it. The other gun belonged to a friend. Atterson conceded that the guns were kept in a drawer next to a drawer containing a large amount of cash. Atterson advised the court that he had never carried the gun in connection with any of his drug-related activities. The government requested an enhancement based on Guideline Section 2Dl.l(b) which mandates a two-level increase for offenses involving drugs “[i]f a dangerous weapon (including a firearm) was possessed during the commission of the offense_” U.S. S.G. Section 2Dl.l(b). The commentary to Section 2D 1.1 provides in part: [t]he enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet. U.S.S.G. Section 2D1.1, comment, n. 3 (emphasis added). The district judge was obviously troubled by the “clearly improbable” standard set forth in the Guideline’s commentary. Ultimately, the court ruled that the Guideline did not apply since there was no evidence to suggest that Atterson had ever carried the gun in connection with any of his drug-related activities. In United States v. Franklin, 896 F.2d 1063 (7th Cir.1990), we rejected defendant’s argument that the mere presence of loaded firearms in his residence did not warrant the application of Section 2D1.1(b)(1) since the evidence did not suggest that the guns were used in connection with the drug charges he was convicted of. Id, at 1065-66. We rejected a similar claim in Durrive, 902 F.2d at 1231-32. In Durrive, we observed that the loaded weapon, which was found in the defendant’s home at the time of his arrest, “was stored in a location that was inaccessible to strangers and casual visitors but readily accessible to Durrive.” Id. at 1232. Moreover, we observed that Section 2Dl.l(b)(l) does not require that the government show a connection between the weapon and the offense, only that the weapon" }, { "docid": "23083596", "title": "", "text": "degree of scientific certainty what the items in Government Exhibit # 1 is? A. That each of the eight inner bags did contain cocaine. Q. Crack cocaine? A. Yes, sir. Green also claims the district court erred in increasing his base offense by two levels pursuant to Sentencing Guidelines § 2D1.1(b)(1). For offenses involving drugs, this section requires the court to increase the defendant’s base offense level by two “[i]f a dangerous weapon (including a firearm) was possessed.” “We review a district court’s factual determination to enhance a sentence under § 2D1.1(b)(1) for clear error only.” United States v. Wetwattana, 94 F.3d 280, 283 (7th Cir.1996). The district court found that Green possessed a dangerous weapon because a firearm loaded with six rounds was in a gym bag on the floor of the car next to the front passenger seat. This is sufficient to support an enhancement under 2Dl.l(b)(l) because, as Application Note 3 to this section explains, “[t]he enhancement for weapon possession reflects the increased danger for violence when drug traffickers possess weapons.” Application Note 3. “[T]he adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected to the offense.” Application Note 3. Given the proximity of the drugs and the firearm, it “is not clearly improbable that the weapon was connected to the offense.” United States v. Carmack, 100 F.3d 1271, 1280 (7th Cir.1996) (“Proximity between the firearm and drugs is an appropriate test for determining whether the gun was possessed in connection with the drug offense and whether the offender has [mixed] guns and drugs.”). Therefore, the district court did not err in increasing Green’s offense level by two. III. Conclusion The police violated the Fourth Amendment when they stopped the Green brothers. Yet any taint from this unconstitutional seizure was dissipated by the subsequent legal arrest of Avery pursuant to an outstanding warrant. Therefore, the evidence obtained during the search of the car was admissible as a search incident to a lawful arrest. Accordingly, we affirm the district court’s denial of David Green’s motion to suppress. We" }, { "docid": "1569813", "title": "", "text": "abundant evidence of Salado’s guilt. Moreover, the district court expressly informed Salado that his punishment range was from five to forty years. III. Did the district court err in enhancing Salado’s offense level for gun possession Lastly, Salado argues that the district court erroneously enhanced his sentence based on the possession of a firearm under U.S.S.G. § 2Dl.l(b)(l), which permits a two level increase in the offense level “if a dangerous weapon (including a firearm) was possessed.” United States v. Eastland, 989 F.2d 760, 770 (5th Cir.1993). “The commentary to 2Dl.l(b)(l) explains that the enhancement factor ‘reflects the increased danger of violence when drug traffickers possess weapons’, and should be applied ‘if the weapons was present, unless it was clearly improbable that the weapon was connected with the offense’.” Id. (quoting U.S.S.G. § 2D1.1 comment (n.3)). The Government has the burden of proof under § 2D1.1 of showing by a preponderance of the evidence that a temporal and spatial relation existed between the weapon, the drug trafficking activity, and the defendant. Id. Under this standard, the Government must show that the weapon was found in the same location where drugs or drug paraphernalia are stored or where part of the transaction occurred. We normally review this factual finding for clear error, however, because Salado failed to object we will review it for plain error. See United States v. Cabral-Castillo, 35 F.3d 182, 189 (5th Cir.1994). Salado’s argument that there is no connection between the firearm and his offense is unavailing. Although Salado argues that the gun was neither in his possession at the warehouse during the marijuana exchange nor was it in the vans where the marijuana was placed, he ignores the fact that the firearm was in his possession while he was acting as countersurvelliance for Gareia-Marines and Aguirre-Marines. Thus, we find that the sentencing enhancement was properly applied because it was “probable that the firearm was connected to the offense.” Eastland, 989 F.2d at 770. CONCLUSION For the foregoing reasons, we remand the case to the district court to conduct a Rule 44(c) hearing. We also affirm the" }, { "docid": "9457086", "title": "", "text": "cutting up large amounts of crack into smaller portions on a table nearby. The gun's proximity to Mr. Booker and to the drugs during Mr. Booker's sales to the informant gave Mr. Booker the ability to use the weapon in an instant if he felt his personal safety or his illegal product was threatened. It is this increased chance that firearms will be used if they are present during drug trafficking that the enhancement in § 2D1.l(b)(l) is designed to address. See U.S.S.G. § 2D1.1(b)(l), cmt. n. 3 (\"The enhancement for weapon possession reflects the increased danger of rio-lence when drug traffickers possess weapons.\"). Given the pre~umption that arises as a result of the proximity of the gun to Mr. Booker and to the drugs during the controlled buys, Mr. Booker has failed to demonstrate that it is clearly improbable that the gun was used in connection with the drug offense. Consequently, the district court did not clearly err in imposing § 2D1.l (b)(l)'s two-level enhancement. C. Acceptance of Responsibility Mr. Booker maintains that he should have received a three-level reduction in his base offense l~vel for acceptance of responsibility because he never challenged the facts underlying his convictions; instead, he merely raised good faith legal objections to the conclusions that should be drawn from those facts. Mr. Booker also points out that he voluntarily gave a statement to the police shortly after his arrest, he quickly informed the Government that he wished to plead guilt~j, he assisted the Government by providing information as to Doug's whereabouts, and he consistently admitted his guilt from the time of his arrest to the time of his sentencing. The district court, however, apparently did not believe that Mr. Booker's cooperation in these instances was sufficient to outweigh his other protests. The court concluded that Mr. Booker’s objections to the inclusion of the 19 grams as relevant conduct and to the imposition of the weapon enhancement were denials of relevant conduct that were incompatible with an acceptance of responsibility. We review the district court’s assessment for clear error. See United States v. Williams, 202" }, { "docid": "9766086", "title": "", "text": "he placed the gun in the room’s ventilation shaft after the DEA arrested Delgado so Delgado could retrieve the gun after being released from jail. Topete then claimed he moved out of the motel room and had nothing further to do with the gun. The Government proved at the sentencing hearing, however, that Topete’s story is factually impossible because Topete was arrested on October 4, 2001, and Delgado was not arrested until November 30, 2001. II. A. First, Topete argues the district court improperly enhanced his sentence for possession of a dangerous weapon because the Government did not prove that he had possession of the gun; or alternatively, that if he had possession of the gun, the Government failed to prove any proximity between the gun and drug offense. See U.S.S.G. § 2Dl.l(b)(l). The district court found Topete “had” and “controlled” the gun and pointed out that even under Topete’s factually impossible story, he still controlled the gun and hid it in the motel room for a co-conspirator. Thus, the district court found that Topete was entitled to the upward adjustment under either version of events. (R. Vol. 12 at 605-06). “We review factual findings under U.S.S.G. § 2Dl.l(b)(l) for clear error[.]” United States v. Vaziri, 164 F.3d 556, 568 (10th Cir.1999). If a defendant is convicted for an offense involving drugs, the Guidelines provide a two level enhancement “[i]f a dangerous weapon (including a firearm) was possessed[.]” U.S.S.G. § 2Dl.l(b)(l). The enhancement “should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” Id. § 2D1.1 comment. (n.3). “The government bears the initial burden of proving possession by a preponderance of the evidenee[.]” United States v. Smith, 131 F.3d 1392, 1400 (10th Cir.1997). In a conspiracy case, the Government is not required to prove that the defendant personally possessed the firearm. Id. Rather, the “sentencing court may ‘attribute to a defendant weapons possessed by his codefendants if the possession of weapons was known to the defendant or reasonably foreseeable to him.’ ” Id. (quoting United States v. McFarlane, 933" }, { "docid": "10092852", "title": "", "text": "during a drug trafficking offense). First, Savage contends that the district court clearly erred by applying the dangerous-weapon enhancement of § 2D1.1(b)(1) because of the time that elapsed between his possession of the gun and his arrest and the lack of direct evidence connecting the firearm to the drug trafficking offense to- which he pled guilty. We disagree. Section 2D1.1(b)(1) mandates a two-level enhancement if the Government can prove by a preponderance of the evidence that the defendant possessed “a dangerous weapon (including a firearm)” while violating 21 U.S.C. § 841(b). U.S.S.G. § 2D1.1(b)(1); see also United States v. McCracken, 110 F.3d 535, 541 (8th Cir.1997). The firearm must be connected with the criminal activity before its possession can- be used to enhance the defendant’s sentence. United States v. Turpin, 920 F.2d 1377, 1386 (8th Cir.1990). The mere presence of a firearm is an insufficient predicate for a § 2D1.1(b)(1) enhancement. United States v. Shields, 44 F.3d 673, 674 (8th Cir.1995); U.S.S.G. § 2D1.1, cmt. n. 3 (“For 'example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloáded hunting rifle in the closet.”). The enhancement, however, “should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1, cmt. n. 3; see also United States v. Moore, 184 F.3d 790, 794 (8th Cir.1999). Savage argues that the district court erred in applying the § 2Dl.l(b)(l) dangerous-weapon enhancement because of the break in time between the summer of 2002, when Charles observed the firearm in Savage’s apartment, and his arrest roughly one year later. We disagree because the dangerous-weapon enhancement applies if the firearm is present during “relevant conduct,” as defined by U.S.S.G. § lB1.3(a)(2), not merely during the offense of conviction. United States v. Barresse, 115 F.3d 610, 612 (8th Cir.1997). In other words, the dangerous-weapon enhancement applies if the weapon was used during acts that “were part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2); United States v. Moore," }, { "docid": "2851006", "title": "", "text": "needed; it created a reasonable inference that anybody present during the money discussions was probably involved in the deal. Since the police had probable cause to arrest Valencia, the district court did not err in refusing to suppress the evidence found in his apartment because his consent to search was the product of an illegal arrest. B. Sentencing Besides challenging his conviction, Valencia also argues that the district court erred by increasing his base sentencing level by two levels for possessing a firearm. Sentencing Guideline § 2Dl.l(b) provides for a two-level increase “[i]f a firearm or other dangerous weapon was possessed during the commission of [a drug] offense,.... ” As we have noted, police found two handguns in Valencia’s apartment, one of them a loaded .357 Magnum revolver. Valencia argues that the handguns’ mere presence in his apartment was not sufficient to call for § 2Dl.l(b)(l)’s enhancement. According to Valencia, the guns were not easily accessible, one being in a closet and the other in a drawer; no guns were displayed or mentioned during the entire discussion at the motel; and the actual sale was to occur at the motel, not at his apartment. Valencia’s argument is unpersuasive. Application Note 3 to § 2D1.1(b)(1) states in relevant part: The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.... (Emphasis added.) Though not formally binding, the Sentencing Commission’s notes are normally entitled to “substantial weight” when we interpret the guidelines. See United States v. McNeal, 900 F.2d 119, 123 n. 5 (7th Cir.1990); see also United States v. Pinto, 875 F.2d 143, 144 (7th Cir.1989). The application note indicates that § 2Dl.l(b)’s enhancement normally applies when weapons are present during a drug offense; the exception occurs when it is “clearly improbable that the weapon was connected with the offense.” Whether an event is “clearly improbable” is a fact question, so we will not overturn the district court’s decision to enhance a sentence" }, { "docid": "8806744", "title": "", "text": "a firearm during the commission of the offense pursuant to § 2D1.1(b)(1) of the Sentencing Guidelines. The notes to § 2D1.1(b)(1) indicate that “[t]he enhancement for weapon possession ... should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2Dl.l(b)(l), n. 3. The district court found that the pistol located in Lewis’ apartment could not be attributed to Turpin. The court credited the testimony of Anthony Whitehead, who stated that he saw a Smith & Wesson 9 millimeter pistol in the Beretta between Turpin and Williams. We give “due regard” to the district court’s determination of Whitehead’s credibility. 18 U.S.C. § 3742(e) (1988). Mere presence of the gun is not sufficient to justify sentence enhancement. The government must prove a connection between the gun and the criminal activity. United States v. Khang, 904 F.2d 1219, 1225 (8th Cir.1990). This does not require a showing that Turpin “ever used or even touched the [gun].” United States v. Luster, 896 F.2d 1122, 1129 (8th Cir.1990). Constructive possession will suffice to justify an upward adjustment for possession of a firearm during the commission of an offense. Id. Moreover, the single gun may justify an enhancement of the sentences of both Turpin and Williams, since possession of a gun by either would suffice to justify an upward adjustment of the other’s offense level if it was reasonably foreseeable that one of them would possess a gun in furtherance of the jointly undertaken criminal activity. United States v. Barragan, 915 F.2d 1174, 1179 (8th Cir.1990). We previously have upheld upward adjustments when guns have been present in automobiles or houses connected with drug activity. E.g., United States v. Figueroa, 900 F.2d 1211, 1218 (8th Cir.) (gun present under seat in car defendant was driving), cert. denied, 110 S.Ct. 3228 (1990); Luster, supra, 896 F.2d at 1128-29 (unloaded rifle in living room during drug transaction); United States v. Green, 889 F.2d 187, 189 (8th Cir.1989) (gun present in defendant’s apartment in which drug sales were transacted); United States v. Koonce, 884 F.2d 349," }, { "docid": "20395751", "title": "", "text": "during or in connection with a drug trafficking offense. He also challenges the court’s criminal history calculation. And, third, Statham argues that the court failed to adequately consider the § 3553(a) factors in determining his sentence. a. Possession of Firearm in Connection with Drug Crime The district court applied the § 2D1.1(b)(1) enhancement based on the two guns found in Statham’s home in the safe that also contained about $21,000. Statham admitted in his plea agreement that he possessed both firearms. He argues that the court should not have applied the two-level enhancement because no drugs were found in the safe or anywhere in his home when agents arrested him and found the guns. He also points to the PSR, which states that there was “no direct evidence linking said weapons to Statham’s drug activities, rather, the FBI strongly suspects that the guns were used in relation to the defendant’s drug activities.” We review the district court’s finding of a relationship between the weapon and drug offense for clear error. United States v. Perez, 581 F.3d 539, 546 (7th Cir.2009). U.S.S.G. § 2Dl.l(b)(l) provides: “If a dangerous weapon (including a firearm) was possessed, increase [the base offense level] by 2 levels.” Application Note 3 to § 2D1.1 states: The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet. Application of § 2D1.1 involves a shifting of burdens. United States v. Idowu, 520 F.3d 790, 793 (7th Cir.2008). The government bears the burden of first proving by a preponderance of the evidence that the defendant possessed the weapon. Id. (citing United States v. Bothun, 424 F.3d 582, 586 (7th Cir.2005)). The defendant need not have actual possession of the weapon; constructive possession is sufficient. Id. If the government carries its burden, then the defendant must show that it was" }, { "docid": "9766087", "title": "", "text": "was entitled to the upward adjustment under either version of events. (R. Vol. 12 at 605-06). “We review factual findings under U.S.S.G. § 2Dl.l(b)(l) for clear error[.]” United States v. Vaziri, 164 F.3d 556, 568 (10th Cir.1999). If a defendant is convicted for an offense involving drugs, the Guidelines provide a two level enhancement “[i]f a dangerous weapon (including a firearm) was possessed[.]” U.S.S.G. § 2Dl.l(b)(l). The enhancement “should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” Id. § 2D1.1 comment. (n.3). “The government bears the initial burden of proving possession by a preponderance of the evidenee[.]” United States v. Smith, 131 F.3d 1392, 1400 (10th Cir.1997). In a conspiracy case, the Government is not required to prove that the defendant personally possessed the firearm. Id. Rather, the “sentencing court may ‘attribute to a defendant weapons possessed by his codefendants if the possession of weapons was known to the defendant or reasonably foreseeable to him.’ ” Id. (quoting United States v. McFarlane, 933 F.2d 898, 899 (10th Cir.1991)). If the Government carries its burden, the enhancement is “ ‘appropriate unless the defendant proves the exception — that it is clearly improbable the weapon was connected with the offense.’ ” Vaziri, 164 F.3d at 568 (quoting Smith, 131 F.3d at 1400). On appeal, Topete ignores the story he told Probation and elects to proceed on the evidence introduced at the sentencing hearing. Topete argues the Government never proved he had possession of the gun and failed to demonstrate any proximity between the weapon and the offense. The Government, however, was not required to prove Topete had actual possession of the gun. The evidence at the sentencing hearing demonstrated Topete offered Delgado $300 to retrieve his gun from the Ranch House Motel. Law enforcement retrieved the gun from a room that had been rented by Martin. The introduction of this evidence satisfied the Government’s initial burden under § 2Dl.l(b)(l) because it demonstrates Topete had actual knowledge of the gun. Whether Martin, Topete, or Delgado placed the gun in the room’s" }, { "docid": "1423690", "title": "", "text": "the drugs found in the tool box. The court rejected his other objections, which are the subject of this appeal. II. A. Section 2Dl.l(b)(l) Enhancement Section 2D1.1(b)(1) of the Sentencing Guidelines provides for a two level increase in a defendant’s base offense level “[i]f a dangerous weapon (including a firearm) was possessed.” The Government has the burden at sentencing to show by a preponderance of the evidence that a weapon was present and that it is not clearly improbable that the weapon was connected with the criminal activity. United States v. Vaughn, 111 F.3d 610, 616 (8th Cir.1997), applying U.S.S.G. § 2D1.1, Application Note 3. The district court’s finding that a weapon was sufficiently connected to the offense is reviewed for clear error. United States v. Fairchild, 122 F.3d 605, 614 (8th Cir.1997), cert. denied, sub nom. Leisinger v. United States, ■—■ U.S. -, 118 S.Ct. 1086, 140 L.Ed.2d 142 (1998). Belitz contends that it was clearly improbable that the gun found in his living room had any connection with the drugs stored in his basement. In support of this contention Belitz first asserts that he had a legitimate and innocent reason for possessing the gun. At sentencing, Belitz offered testimony that the gun belonged to a friend of his and that Belitz, a gunsmith, had been given the gun for the purpose of making repairs. At the time the search warrant was executed, Belitz had completed the repairs and had told his friend that he could pick up his gun. He asserted that he left the gun on top of the television so that his friend could easily retrieve it, and that he loaded the gun because the weapon was loaded when he received it. Belitz stated he had directed the two people with whom he shared his residence to return the gun to his friend when he arrived. Belitz also contends that he should not receive an enhancement because he had no reason to use a weapon to protect the drugs and, when the opportunity arose to use a weapon against the police, he was nonviolent and cooperative." }, { "docid": "19897660", "title": "", "text": "of the same common scheme or plan as the offense for which he was convicted. The drugs were therefore properly used to enhance his sentence. B. Firearm Enhancement (2D1.1(b)(1)) [9,10] Perez also challenges his two-level sentencing enhancement pursuant to Guideline § 2D1.1(b)(1) for possession of a firearm in connection with his drug trafficking offense. At sentencing, Perez objected to the enhancement by stating that it was clearly improbable that the gun was used in connection with a drug offense. For the first time on appeal, Perez also objects that the government failed to establish that he had direct or constructive possession of the firearm used to enhance his sentence. Because he did not raise this latter argument during sentencing or in his written objections to the PSR, we review this challenge for plain error, as opposed to clear error. See United States v. Banks, 405 F.3d 559, 564 (7th Cir.2005) (issue not raised in district court is reviewed for plain error). The relationship (or lack of one) between the weapon and the underlying offense is a factual assessment, so we review the district court’s enhancement for clear error. See United States v. Bothun, 424 F.3d 582, 586 (7th Cir.2005). Guideline section § 2Dl.l(b)(l) provides for a two-level increase in the base offense level for a narcotics offense “if a dangerous weapon (including a firearm) was possessed.” Application Note 3 explains: The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet. United States Sentencing Commission, Guidelines Manual, Section § 2D1.1 cmt. n. 3. (Emphasis added). The government first must prove by a preponderance of the evidence that Perez possessed the gun in a place where drugs were present. See United States v. Idowu, 520 F.3d 790, 793 (7th Cir.2008). The evidence presented to the district court judge at the" }, { "docid": "6402269", "title": "", "text": "Hen-ning because they depended on Noble to supply their own drug habits. Noble exercised such psychological control over Burke that Burke agreed to go to jail for Noble. We agree with the district court’s assessment. Noble asserts that he was a mere distributor and notes that being a distributor by itself does not justify application of the enhancement, see United States v. Mustread, 42 F.3d 1097, 1104 (7th Cir.1994). But this protestation rings hollow. We agree with the district court’s finding that Noble exercised the requisite control over Spaeth, Jobe, Burke, Groff, and Henning to support the “organizer or leader” enhancement. b. Dangerous Weapon Enhancement Noble protests the two-level firearm enhancement applied under U.S.S.G. § 2Dl.l(b)(l). The firearm enhancement should be applied “if a dangerous weapon (including a firearm) was possessed” “unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2Dl.l(b)(l) & cmt. 3. Police found the gun in Henning’s closet in the bedroom Noble shared with her. A loaded clip lay next to the gun, and drug proceeds were present in the room. Noble argues that the evidence does not tie the gun to him and that it is clearly improbable that the gun was used in connection with drug distribution. The government must prove possession by a preponderance of the evidence; the burden to show a clearly improbable connection then falls on the defendant. See Berthiaume, 233 F.3d at 1003-04. The district court found that the gun belonged to Noble. The court credited Henning’s testimony that Noble placed the gun in her closet. We are reluctant to disturb this credibility judgment. In addition, the district court found that the connection between the gun and his offense was probable. “ ‘An enhancement under § 2Dl.l(b)(l) is appropriate for simple, and entirely passive, possession’ of a firearm. ... The proximity of a weapon to drug proceeds provides a sufficient nexus to conclude that ‘it was not clearly improbable that the gun was connected with the offense.’ ” Johnson, 227 F.3d at 814 (citations omitted). Given that the gun and the drug proceeds were located" }, { "docid": "997927", "title": "", "text": "guns were in taped boxes that had been brought to his house by Buff, who had allegedly asked Moses to store the weapons there. Moses maintained that the other firearms found in his house, as well as the rifle on the gun rack in his truck, were used only for hunting. The district court, however, did not give full credence to Moses’s testimony. Although the court stated that Moses might have used his rifles solely for hunting, it did not believe that Moses hunted with the .22 caliber Ruger pistol recovered from his house. The court concluded that it was not clearly improbable that Moses had possessed this pistol in connection with his offense, and therefore overruled Moses’s objection to the § 2Dl.l(b)(l) enhancement. This timely appeal followed. II. ANALYSIS A. Firearm enhancement Moses challenges the enhancement of his base offense level pursuant to United States Sentencing Guidelines § 2Dl.l(b)(l). This section provides for a two-point increase in a defendant’s offense level if a firearm is “possessed” during a drug-trafficking crime. An enhancement under § 2Dl.l(b)(l) is proper only if the government establishes, by a preponderance of the evidence, that (1) the defendant possessed a dangerous weapon (2) during the commission of a drug-trafficking offense. United States v. Hill, 79 F.3d 1477, 1485 (6th Cir.1996). If the government proves both of these elements, the weapon is presumed to have been connected to the defendant’s offense. United States v. Sanchez, 928 F.2d 1450, 1460 (6th Cir.1991). The defendant can rebut this presumption only by showing that it is “clearly improbable that the weapon was connected to the offense.” U.S. Sentencing Guidelines Manual § 2D1.1 comment, n. 3. In the present case, the district court found that Moses possessed several firearms while carrying out the marijuana-manufacturing conspiracy. Moses does not dispute this finding. Indeed, Moses acknowledged at the sentencing hearing that he kept firearms in his house during the period of the conspiracy. He further admitted that he used his house to perform acts in furtherance of the conspiracy; namely, drying and weighing the marijuana once it had been removed from the" }, { "docid": "20395752", "title": "", "text": "F.3d 539, 546 (7th Cir.2009). U.S.S.G. § 2Dl.l(b)(l) provides: “If a dangerous weapon (including a firearm) was possessed, increase [the base offense level] by 2 levels.” Application Note 3 to § 2D1.1 states: The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet. Application of § 2D1.1 involves a shifting of burdens. United States v. Idowu, 520 F.3d 790, 793 (7th Cir.2008). The government bears the burden of first proving by a preponderance of the evidence that the defendant possessed the weapon. Id. (citing United States v. Bothun, 424 F.3d 582, 586 (7th Cir.2005)). The defendant need not have actual possession of the weapon; constructive possession is sufficient. Id. If the government carries its burden, then the defendant must show that it was “clearly improbable” that the weapon was connected to the drug offense. Id. We have noted that when a gun is found in “close proximity” to illegal drugs the gun is presumed “to have been used in connection with the drug trafficking offense.” United States v. Souffront, 338 F.3d 809, 833 (7th Cir.2003). However, close proximity to drugs is not a requirement for application of the § 2Dl.l(b)(l) enhancement. We have upheld application of § 2D1.1 where the weapon was not found in the same place as illegal drugs. See, e.g., United States v. Parra, 402 F.3d 752, 767 (7th Cir.2005) (upholding the finding that it was not “clearly improbable” that gun was connected to drug offense where gun was found under the mattress in defendant’s bedroom and defendant was selling drugs out of her house); United States v. Grimm, 170 F.3d 760, 767-68 (7th Cir.1999) (concluding that § 2Dl.l(b)(l) could apply where defendant had a gun in the trunk of his car but no drugs were present where he had used the car to deliver" }, { "docid": "5393800", "title": "", "text": "Dangerous-Weapon Enhancement “Section 2Dl.l(b)(l) mandates a two-level enhancement if the Government can prove by a preponderance of the evidence that the defendant possessed ‘a dangerous weapon (including a firearm)’ while violating 21 U.S.C. § 841(b).” United States v. Savage, 414 F.3d 964, 966 (8th Cir.2005) (quoting § 2D1.1(b)(1)). The enhancement, which “reflects the increased danger of violence when drug traffickers possess weapons[,] ... should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1, cmt. n.3. “[T]he government need only prove a temporal and spatial nexus among the weapon, defendant and drug-trafficking activity.” United States v. Torres, 409 F.3d 1000, 1003 (8th Cir.2005). The district court applied the enhancement, relying on Leal’s trial testimony that Mathias showed him a gun during the course of one of their drug transactions at Mathias’s house. Leal testified that Mathias got the gun out of a hall closet and [H]e [Mathias] just show it to me and extend his hand and kind of hand it to me. So I grab it just for a few seconds and give it back to him, and I ask him if ... it was loaded. He say no. And then when he grabbed the gun back, he pulled the-the thing in the bottom, and it was loaded, like, with four bullets. Said, “Put that thing back,” because, you know, you can get hurt. Mathias argues that the district court erred in applying the enhancement because it was clearly improbable that the gun was connected with the drug transaction. Specifically, he contends that the incident amounted to nothing more than showing an acquaintance his gun. This argument is totally lacking in merit. Mathias’s seemingly innocent characterization of the incident with Leal falls apart when placed in the context of § 2D1.1(b)(1). The fact that the “acquaintance” was one of Mathias’s cocaine and marijuana suppliers and the fact that Mathias brandished a loaded gun to such an acquaintance during a drug buy, see United States v. Lopez, 416 F.3d 713, 716-17 (8th Cir.2005) (noting the fact that" }, { "docid": "19897661", "title": "", "text": "a factual assessment, so we review the district court’s enhancement for clear error. See United States v. Bothun, 424 F.3d 582, 586 (7th Cir.2005). Guideline section § 2Dl.l(b)(l) provides for a two-level increase in the base offense level for a narcotics offense “if a dangerous weapon (including a firearm) was possessed.” Application Note 3 explains: The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet. United States Sentencing Commission, Guidelines Manual, Section § 2D1.1 cmt. n. 3. (Emphasis added). The government first must prove by a preponderance of the evidence that Perez possessed the gun in a place where drugs were present. See United States v. Idowu, 520 F.3d 790, 793 (7th Cir.2008). The evidence presented to the district court judge at the sentencing hearing established that Perez owned the house where the firearm and the various quantities of drugs were recovered. Once that was established, the burden shifted to Perez to show that it was “clearly improbable” that the gun was connected to the offense. See id. The government did not need to prove that Perez had actual possession of the firearm; only that he had constructive possession of the weapon, that is, the power and the intention to exercise dominion or control over the weapon. See Bothun, 424 F.3d at 586. The officers located the .38-caliber Smith and Wesson gun in Perez’s bedroom in a home which he owned. In the same home where the gun was found, the officers also found over $550,000 worth of illegal narcotics and the materials to package and distribute the drugs. Perez never challenged ownership of the residence nor did he dispute that the drugs were retrieved from the same location where the gun was recovered. This evidence is sufficient to support the district court’s conclusion that Perez had constructive" }, { "docid": "2232268", "title": "", "text": "the firearm was related to the drug crime. We review a district court’s factual determination to enhance a sentence under section 2D1.1(b)(1) for clear error only. United States v. Vargas, 116 F.3d 195, 197 (7th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 584, 139 L.Ed.2d 421 (1997); United States v. Wetwattana, 94 F.3d 280, 283 (7th Cir.1996). The Sentencing Guidelines provide that, for certain offenses involving drugs, the court should increase the base offense level by two levels if a dangerous weapon, including a firearm, was possessed. U.S.S.G. § 2D1.1(b)(1); Wetwattana, 94 F.3d at 283. Application Note 3 to that section explains that the “enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it was clearly improbable that the weapon was connected with the offense.” As an example of an occasion when the enhancement would not apply, the Application Notes describe an arrest of a defendant at his residence, where police find an unloaded hunting rifle in the closet. The government must prove that this enhancement is warranted by a preponderance of the evidence. Wetwattana, 94 F.3d at 283. The government is not required to demonstrate that the weapon was connected to the offense, but rather only that the weapon was possessed during the offense of conviction or during relevant conduct as that term is defined in Sentencing Guideline section 1B1.3. Id. The government met this burden easily in the instant case because Cain admitted that the gun in the car was his, and also admitted at his plea hearing that he was using the car that day to drive Holmes to and from various drug deals. The burden then shifted to Cain to show that it was clearly improbable that the gun was connected to the offense. Cain offered his statement that he carried the gun for protection from kidnappers and not to facilitate drug deals. ’ The district court did not clearly err in finding that this explanation was not credible. Cain also faults the district court for declining to" } ]

[ { "docid": "22696436", "title": "", "text": "We can assume that a district court’s final judgment fully satisfying named plaintiffs’ private substantive claims would preclude their appeal on that aspect of the final judgment; however, it does not follow that this circumstance would terminate the named plaintiffs’ right to take an appeal on the issue of class certification. Congress has vested appellate jurisdiction in the courts of appeals for review of final decisions of the district courts. 28 U. S. C. § 1291. Ordinarily, only a party aggrieved by a judgment or order of a district court may exercise the statutory right to appeal therefrom. A party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it. Public Service Comm’n v. Brashear Freight Lines, Inc., 306 U. S. 204 (1939); New York Telephone Co. v. Maltbie, 291 U. S. 645 (1934); Corning v. Troy Iron & Nail Factory, 15 How. 451 (1854); 9 J. Moore, Federal Practice ¶ 203.06 (2d ed. 1975). The rule is one of federal appellate practice, however, derived from the statutes granting appellate jurisdiction and the historic practices of the appellate courts; it does not have its source in the jurisdictional limitations of Art. III. In an appropriate case, appeal may be permitted from an adverse ruling collateral to the judgment on the merits at the behest of the party who has prevailed on the merits, so long as that party retains a stake in the appeal satisfying the requirements of Art. III. An illustration of this principle in practice is Electrical Fittings Corp. v. Thomas & Betts Co., 307 U. S. 241 (1939). In that case, respondents sued petitioners for infringement of a patent. In such a suit, the defense may prevail either by successfully attacking the validity of the patent or by successfully defending the charge of infringement. In Electrical Fittings the decree of the District Court adjudged the patent valid but dismissed the complaint for failure to prove infringement. The respondents did not appeal, but petitioners sought review in the Court of Appeals of so much of the" } ]

[ { "docid": "17514958", "title": "", "text": "rise to plaintiffs’ solitary claim against Comerica for restitutionary relief stemming from Arctic’s alleged breach of trust. This is a novel issue. Comerica contends that while Arctic may have violated the terms of its contractual obligations by failing to return the maintenance escrow funds to the individual owner-operators, neither Arctic’s lease agreements nor the escrow provisions of the Truth-in-Leasing regulations refer to a “trust” in express terms; and, Comerica asserts, if Congress had intended to create a statutory trust for the benefit of the owner-operators, it would have explicitly incorporated the term “trust” into 49 C.F.R. § 376.12(k), as it has in other statutory schemes. Regulations promulgated to effect the purpose of a statute are to be construed in accordance with the well-established principles of statutory construction: As with all matters of regulatory interpretation, we look first to the plain and unambiguous meaning of the regulation, if any. See Henry Ford Health Sys. v. Shalala, 233 F.3d 907, 910 (6th Cir.2000) (quoting Bartlik v. U.S. Dep’t of Labor, 62 F.3d 163, 165-66 (6th Cir.1995)) (‘We read statutes and regulations with an eye to their straightforward and commonsense meanings,” and where the regulation’s language reveals an “unambiguous and plain meaning ..., our task is at an end.”). Baptist Physician Hosp. Org., Inc. v. Humana Military Healthcare Serv., Inc., 481 F.3d 337, 344 (6th Cir.2007). If the terms of a regulation are ambiguous, “[w]e next look to the regulatory scheme, reading the regulation in its entirety to glean its meaning.” Id. Although “[t]he common law of trusts is not binding on Congress,” Begier v. IRS, 496 U.S. 53, 62 n. 4, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990), it provides a useful “ ‘starting point’ for analysis in some situations,” so long as it is not “inconsistent with the language of the statute, its structure, or its purposes.” Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 447, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999) (internal citation and quotation marks omitted). “In the strict, traditional sense, a trust involves three elements: (1) a trustee, who holds the trust property and is subject to" }, { "docid": "17514957", "title": "", "text": "standards as the district court: whether, with the evidence viewed in the light most favorable to the non-moving party, there are no genuine issues of material fact, so that the moving party is entitled to a judgment as a matter of law.” United States v. Petroff-Kline, 557 F.3d 285, 290 (6th Cir.2009) (citation omitted); see Federal Rule of Civil Procedure 56(c)(2). On appeal, plaintiffs maintain that the statutory trust attached when customers made payments into the cash collateral account; therefore, any money paid from that account, including funds used to pay down Arctic’s loan obligations to Comerica, included trust assets. Plaintiffs contend that Arctic breached its fiduciary duties when it used plaintiffs’ trust property to reduce its loan balance, and never drew those funds from Comerica to return plaintiffs’ maintenance escrows, in violation of the Truth-in-Leasing regulations. We agree. However, it is necessary that we first reexamine the district court’s threshold determination — challenged by Comerica— that 49 C.F.R. § 376.12(k) impressed the maintenance escrow funds with a statutory trust for plaintiffs’ benefit, thereby giving rise to plaintiffs’ solitary claim against Comerica for restitutionary relief stemming from Arctic’s alleged breach of trust. This is a novel issue. Comerica contends that while Arctic may have violated the terms of its contractual obligations by failing to return the maintenance escrow funds to the individual owner-operators, neither Arctic’s lease agreements nor the escrow provisions of the Truth-in-Leasing regulations refer to a “trust” in express terms; and, Comerica asserts, if Congress had intended to create a statutory trust for the benefit of the owner-operators, it would have explicitly incorporated the term “trust” into 49 C.F.R. § 376.12(k), as it has in other statutory schemes. Regulations promulgated to effect the purpose of a statute are to be construed in accordance with the well-established principles of statutory construction: As with all matters of regulatory interpretation, we look first to the plain and unambiguous meaning of the regulation, if any. See Henry Ford Health Sys. v. Shalala, 233 F.3d 907, 910 (6th Cir.2000) (quoting Bartlik v. U.S. Dep’t of Labor, 62 F.3d 163, 165-66 (6th Cir.1995)) (‘We" }, { "docid": "16351759", "title": "", "text": "See Maytronics, Ltd. v. Aqua Vac Sys., Inc., 277 F.3d 1317, 1320 (11th Cir.2002). . Although we make this assumption, we express no opinion as to whether a district court has the authority to enter an aggregate judgment in a class action suit when the jury has not awarded aggregate damages. . We will address the dealers' arguments with respect to the statutes of limitations in Section III(C) and the set-off claims in Section 11(C). .There is a high probability that an aggregate award of damages would have resulted in a substantial pool of unclaimed funds at the conclusion of the claims process. Before the district court and on appeal, the dealers raised the issue of whether Exxon would be entitled to reverter of the funds remaining at the conclusion of the claims administration process. Because we determine that an ag- ' gregate final judgment is not appropriate in this case, we need not address this issue. . We note that this was not a case in which an aggregate award was authorized based upon the violation of a statute. See Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1306 (9th Cir.1990) (allowing the class to submit aggregate proof of damages for violations of the Farm Labor Contractor Registration Act where the class sought statutory rather than actual damages and individual proof of damages was not required for recovery). This also was not a case in which the precise aggregate damages of the class could be ascertained easily by a simple mathematical calculation. See Van Gemert v. Boeing Co., 553 F.2d 812, 813 (2d Cir.1977) (determining that the class’s aggregate damages could be calculated by multiplying the number of unconverted debentures by the difference between the value and redemption price of the stock). . Ordinarily, a party must assert a counterclaim in its pleadings. See Fed.R.Civ.P. 13. Rule 13, however, is inapplicable in class action suits, because \"absent class members are not opposing or litigating adversaries for purposes of Rule 13.\" Owner-Operator Indep. Drivers Ass’n v. Arctic Express, Inc., 238 F.Supp.2d 963, 967 (S.D.Ohio 2003) (internal quotation" }, { "docid": "17514951", "title": "", "text": "recovery of the loan balance in the event Arctic defaulted on its loan and the collateral had to be sold. Though accounts receivable collections were credited against Arctic’s loan balance, this collateral was never liquidated, as liquidation occurs in the event of a default, and there was no default by Arctic. Owner Operator Indep. Drivers Ass’n, Inc. v. Comerica Bank, 615 F.Supp.2d 692, 695-96 (S.D.Ohio 2009) (footnotes omitted). In January 2004, plaintiffs commenced an adversary proceeding against Arctic, D & A, and Comerica in the bankruptcy court, seeking return of the escrow funds owed to the Arctic Litigation class members. The bankruptcy court lifted the automatic stay to allow the district court to complete the Arctic Litigation and liquidate the class claims, and, in May 2004, plaintiffs entered into a $5.5 million settlement agreement with Arctic and D & A, which was approved by the district court in July 2004. The settlement equaled the total amount of maintenance escrow funds, plus interest, owed by Arctic and D & A to the owner-operators; however, the settlement agreement further provided that “[i]n no event shall the [owner-operators] recover or seek to recover more than $900,000 from Arctic.” After entry of the judgment and finalization of Arctic’s plan of reorganization, the district court withdrew the bankruptcy reference over the adversary proceeding, and plaintiffs’ action against Comerica seeking enforcement of the Arctic Litigation judgment was removed to the district court. Plaintiffs thereafter twice amended their complaint, ultimately setting forth a single count seeking restitution or disgorgement of the maintenance escrow funds deposited by Arctic into Comerica’s accounts and purportedly used by Comerica to pay down Arctic’s indebtedness. In denying, in part, Comerica’s motions to dismiss plaintiffs’ complaints, the district court opined that the funds held in escrow under 49 C.F.R. § 376.12(k) were subject to a statutory trust for plaintiffs’ benefit, and plaintiffs were entitled to pursue a common law claim against Comerica for restitution. Owner Operator Indep. Drivers Ass’n, Inc. v. Comerica Inc., No. 2:05-CV-00056, 2006 WL 1339427, at *4 (S.D.Ohio May 16, 2006) (unpublished) (footnote omitted); see also Owner Operator Indep. Drivers" }, { "docid": "17514950", "title": "", "text": "be available for Arctic to draw on through its line of credit. Arctic could request those funds be transferred into its depository/operating account and use them in any manner it saw fit and for any legitimate purpose necessary to run its business. Arctic automatically transferred money from the depository/operating account into its zero-balance account to cover checks it wrote. At all other times, the zero-balance account did not carry a balance. Arctic wrote checks from its zero-balance account for any purpose it deemed necessary. Arctic authorized Comerica to debit the depository/operating account once per month to pay for accrued interest and bank fees. Otherwise, the money in the depository/operating account was for Arctic’s unencumbered use and remained at its disposal. No loan payments to Comerica were ever deducted from the depository/operating account. Pursuant to the loan agreements, Arctic pledged as collateral for the loans, among other assets, all accounts receivable for motor carrier services provided to customers and proceeds from the accounts receivable. The primary purpose of the collateral was to provide a source for recovery of the loan balance in the event Arctic defaulted on its loan and the collateral had to be sold. Though accounts receivable collections were credited against Arctic’s loan balance, this collateral was never liquidated, as liquidation occurs in the event of a default, and there was no default by Arctic. Owner Operator Indep. Drivers Ass’n, Inc. v. Comerica Bank, 615 F.Supp.2d 692, 695-96 (S.D.Ohio 2009) (footnotes omitted). In January 2004, plaintiffs commenced an adversary proceeding against Arctic, D & A, and Comerica in the bankruptcy court, seeking return of the escrow funds owed to the Arctic Litigation class members. The bankruptcy court lifted the automatic stay to allow the district court to complete the Arctic Litigation and liquidate the class claims, and, in May 2004, plaintiffs entered into a $5.5 million settlement agreement with Arctic and D & A, which was approved by the district court in July 2004. The settlement equaled the total amount of maintenance escrow funds, plus interest, owed by Arctic and D & A to the owner-operators; however, the settlement" }, { "docid": "17514993", "title": "", "text": "as to whether Plaintiffs exercised reasonable diligence in discovering facts giving rise to the claim against Comeriea” and “[i]t is for a jury to decide whether Plaintiffs should have known of the need for inquiry into Arctic’s relationship with Comeriea over four years before Plaintiffs brought this suit, and therefore whether Plaintiffs’ claims are barred by the statute of limitations.” Id. Based upon this record, we agree with the district court that genuine issues of material fact exist which preclude a ruling, as a matter of law, on Comerica’s statute of limitations defense. The district court correctly ruled that this is a question for the trier of fact to resolve. VI. For the foregoing reasons, we affirm in part and reverse in part the district court’s judgment and remand for further proceedings consistent with this opinion. . As the vehicles aged during the lease term, the cost of maintenance rose. Thus, Arctic used the savings garnered from the flat fee at the front end of the lease to cover the higher costs of maintenance at the end of the lease term. . See Owner Operator Indep. Drivers Ass’n, Inc. v. Arctic Express, Inc., No. 2:97-CV-750, 2001 WL 34366624 (S.D.Ohio Sept. 4, 2001) certifying the Arctic Litigation as a class action). . In late 1998, Arctic transferred its loans to Congress Financial and terminated its banking relationship with Comerica. Id. at 696-97. Arctic used funds from its new line of credit with Congress Financial to pay off its outstanding loan balance of $4.7 million to Comerica. Id. at 697. . Plaintiffs are not seeking to recover any funds withheld before the 1993 loan was executed. . For other examples of statutory trusts, see generally G.G. Bogert & G.T. Bogert, The Law of Trusts and Trustees § 246 (rev. 2d ed. 1984). . The Intrenet court accurately observed that, consistent with trucking industry practices, \"the regulations contemplate an escrow regardless of who holds the funds.” In re Intrenet, Inc., 273 B.R. at 157 (citing 49 C.F.R. § 376.2(1)). . Comerica’s reliance on In re Brock, Nos. 08-01493-JDP, 08-6087, 2009 WL 1559528 (Bankr.D.Idaho" }, { "docid": "19447472", "title": "", "text": "634 F.2d 408, 419 (C.A.9 1980) ). This conclusion was not dictum. It was a necessary predicate to the Court's holding that \"prior to Congress' intervention, there was adequate Art. III adverseness.\" 462 U.S., at 939, 103 S.Ct. 2764. The holdings of cases are instructive, and the words of Chadha make clear its holding that the refusal of the Executive to provide the relief sought suffices to preserve a justiciable dispute as required by Article III. In short, even where \"the Government largely agree[s] with the opposing party on the merits of the controversy,\" there is sufficient adverseness and an \"adequate basis for jurisdiction in the fact that the Government intended to enforce the challenged law against that party.\" Id., at 940, n. 12, 103 S.Ct. 2764. It is true that \"[a] party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it.\" Roper,supra, at 333, 100 S.Ct. 1166, see also Camreta v. Greene, 563 U.S. ----, ----, 131 S.Ct. 2020, 2030, 179 L.Ed.2d 1118 (2011) ( \"As a matter of practice and prudence, we have generally declined to consider cases at the request of a prevailing party, even when the Constitution allowed us to do so\"). But this rule \"does not have its source in the jurisdictional limitations of Art. III. In an appropriate case, appeal may be permitted ... at the behest of the party who has prevailed on the merits, so long as that party retains a stake in the appeal satisfying the requirements of Art. III.\" Roper, supra, at 333-334, 100 S.Ct. 1166. While these principles suffice to show that this case presents a justiciable controversy under Article III, the prudential problems inherent in the Executive's unusual position require some further discussion. The Executive's agreement with Windsor's legal argument raises the risk that instead of a \" 'real, earnest and vital controversy,' \" the Court faces a \"friendly, non-adversary, proceeding ... [in which] 'a party beaten in the legislature [seeks to] transfer to the courts an inquiry as to the constitutionality of the legislative" }, { "docid": "19447473", "title": "", "text": "L.Ed.2d 1118 (2011) ( \"As a matter of practice and prudence, we have generally declined to consider cases at the request of a prevailing party, even when the Constitution allowed us to do so\"). But this rule \"does not have its source in the jurisdictional limitations of Art. III. In an appropriate case, appeal may be permitted ... at the behest of the party who has prevailed on the merits, so long as that party retains a stake in the appeal satisfying the requirements of Art. III.\" Roper, supra, at 333-334, 100 S.Ct. 1166. While these principles suffice to show that this case presents a justiciable controversy under Article III, the prudential problems inherent in the Executive's unusual position require some further discussion. The Executive's agreement with Windsor's legal argument raises the risk that instead of a \" 'real, earnest and vital controversy,' \" the Court faces a \"friendly, non-adversary, proceeding ... [in which] 'a party beaten in the legislature [seeks to] transfer to the courts an inquiry as to the constitutionality of the legislative act.' \" Ashwander v. TVA, 297 U.S. 288, 346, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345, 12 S.Ct. 400, 36 L.Ed. 176 (1892) ). Even when Article III permits the exercise of federal jurisdiction, prudential considerations demand that the Court insist upon \"that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.\" Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). There are, of course, reasons to hear a case and issue a ruling even when one party is reluctant to prevail in its position. Unlike Article III requirements-which must be satisfied by the parties before judicial consideration is appropriate-the relevant prudential factors that counsel against hearing this case are subject to \"countervailing considerations [that] may outweigh the concerns underlying the usual reluctance to exert judicial power.\" Warth, 422 U.S., at 500-501, 95 S.Ct. 2197. One consideration is the extent to which" }, { "docid": "17514994", "title": "", "text": "the end of the lease term. . See Owner Operator Indep. Drivers Ass’n, Inc. v. Arctic Express, Inc., No. 2:97-CV-750, 2001 WL 34366624 (S.D.Ohio Sept. 4, 2001) certifying the Arctic Litigation as a class action). . In late 1998, Arctic transferred its loans to Congress Financial and terminated its banking relationship with Comerica. Id. at 696-97. Arctic used funds from its new line of credit with Congress Financial to pay off its outstanding loan balance of $4.7 million to Comerica. Id. at 697. . Plaintiffs are not seeking to recover any funds withheld before the 1993 loan was executed. . For other examples of statutory trusts, see generally G.G. Bogert & G.T. Bogert, The Law of Trusts and Trustees § 246 (rev. 2d ed. 1984). . The Intrenet court accurately observed that, consistent with trucking industry practices, \"the regulations contemplate an escrow regardless of who holds the funds.” In re Intrenet, Inc., 273 B.R. at 157 (citing 49 C.F.R. § 376.2(1)). . Comerica’s reliance on In re Brock, Nos. 08-01493-JDP, 08-6087, 2009 WL 1559528 (Bankr.D.Idaho June 2, 2009) (unpublished) is misplaced. In that case, the bankruptcy court held that 49 C.F.R. § 376.12(f), which addresses written lease requirements related to paperwork and delivery documents, did not create a statutory trust relationship under the bankruptcy code. Subsection (f) is separate and distinct from the escrow provisions governing the administration of the owner-operators’ escrow deposits. . Our conclusion that the Truth-in-Leasing regulations create a statutory trust eliminates the need to consider plaintiffs’ alternative constructive trust theory and renders inappo-site plaintiffs’ comparison to the interline trust doctrine, pursuant to which \"transportation and freight charges, when collected [by one [interline] motor carrier on behalf of another for services that the latter has performed], are held in trust for the [latter carrier].” Parker Motor Freight, Inc. v. Fifth Third Bank, 116 F.3d 1137, 1140 (6th Cir.1997) (first and third alteration in original) (citation omitted); see also In re Ann Arbor R.R. Co., 623 F.2d 480 (6th Cir.1980). \"The methods of accounting and payment for interline services ... are not controlled by statute but by industry" }, { "docid": "17514953", "title": "", "text": "Ass’n, Inc. v. Comerica Bank, 540 F.Supp.2d 925, 931-32 (S.D.Ohio 2008). The parties filed cross-motions for summary judgment. Comerica disputed the existence and alleged breach of a statutory trust and asserted statute of limitations and bona fide purchaser defenses. It maintained that if a trust attached to any of Arctic’s bank accounts, it attached to funds in the depository/operating account when the nine cents per mile was deducted by Arctic from the owner-operator’s compensation; in other words, Arctic was withholding the maintenance fees, not Comerica. Comerica asserted that the funds it credited to the Arctic loan balance from the cash collateral account were not subject to the trust because the trust did not exist yet. Conversely, plaintiffs argued that the trust was created when funds were deposited by customers into the cash collateral account. Because the maintenance escrow fees were deducted from compensation, which was a percentage of the amount received in the cash collateral account, the escrow fees were a part of the payments deposited into the cash collateral account. Comerica, in turn, collected Arctic’s receivables, which included the maintenance escrow funds, and applied the receivables to pay down Arctic’s indebtedness. Plaintiffs therefore contended that Comerica unlawfully retained the maintenance escrow funds as a reduction on Arctic’s loan balance. In an Opinion and Order issued on March 16, 2009, the district court granted Comerica’s motion for summary judgment and denied plaintiffs’ cross-motion. See OOIDA v. Comerica Bank, 615 F.Supp.2d at 694. The court found, in pertinent part, that a genuine issue of material fact existed as to whether plaintiffs exercised reasonable diligence in discovering facts giving rise to the claim against Comerica, precluding summary judgment on the basis of the statute of limitations. Id. at 701. The district court further held that the statutory trust attached only to the funds in Arctic’s depository/operating account: This Court finds that the deposits by customers into the cash collateral account did not create an escrow fund, because until compensation was paid to owner-operators, nothing had been withheld from (or deposited by) them. Just because owner-operators’ compensation was calculated as a percentage of" }, { "docid": "4042575", "title": "", "text": "plaintiff must prove a “duty running from the defendant to the plaintiff, breach of duty by that defendant, damages suffered by the plaintiff, and a proximate cause relationship between the breach of duty and the damages.” Hester v. Dwivedi, 89 Ohio St.3d 575, 578, 733 N.E.2d 1161 (2000). Further, “ ‘[e]vidence of damages must be shown with a reasonable degree of certainty and speculative damages are not recoverable.’ ” Bobb Forest Prods. v. Morbark Indus., 151 Ohio App.3d 63, 90, 783 N.E.2d 560 (2002) (emphasis added) (citation omitted). This rule precludes recovery “where the fact of damage is uncertain, i.e., where the damage claimed is not the certain result of the wrong, not where the amount of damage alone is uncertain.” Broan Mfg. Co. v. Associated Distrib., Inc., 923 F.2d 1232, 1235 (6th Cir.1991) (citing Grantham and Mann, Inc. v. American Safety Prods., 831 F.2d 596, 601-02 (6th Cir.1987)). For a plaintiff to recover damages, she must present evidence “that provides the finder of fact with a reasonable basis upon which to calculate the amount of damages.” Sir Speedy, Inc. v. L & P Graphics, Inc., 957 F.2d 1033, 1038 (2d Cir.1992); see also Owner-Operator Indep. Drivers Ass’n, Inc. v. Arctic Express, Inc., 288 F.Supp.2d 895, 907 (S.D.Ohio 2003) (applying Sir Speedy). While a plaintiff is not required to prove her damages with absolute certainty, she must show that there is a reasonable basis for computing her alleged damages. Sir Speedy, 957 F.2d at 1038; Arctic Express, 288 F.Supp.2d at 907 (quoting Volasco Prods. Co. v. Lloyd A. Fry Roofing Co., 308 F.2d 383, 392 (6th Cir.1962)). In short, because a jury may not award damages based on mere conjecture, “people who want damages have to prove them.” Id. (quoting Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410, 415 (7th Cir.1992)) (emphasis added). Where a plaintiff alleges — as the plaintiff does in the instant case — that an investment manager invested in securities that were not suited to her investment strategy, the plaintiff must allege “ ‘which transactions and securities are involved and the reasons why these" }, { "docid": "16351760", "title": "", "text": "the violation of a statute. See Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1306 (9th Cir.1990) (allowing the class to submit aggregate proof of damages for violations of the Farm Labor Contractor Registration Act where the class sought statutory rather than actual damages and individual proof of damages was not required for recovery). This also was not a case in which the precise aggregate damages of the class could be ascertained easily by a simple mathematical calculation. See Van Gemert v. Boeing Co., 553 F.2d 812, 813 (2d Cir.1977) (determining that the class’s aggregate damages could be calculated by multiplying the number of unconverted debentures by the difference between the value and redemption price of the stock). . Ordinarily, a party must assert a counterclaim in its pleadings. See Fed.R.Civ.P. 13. Rule 13, however, is inapplicable in class action suits, because \"absent class members are not opposing or litigating adversaries for purposes of Rule 13.\" Owner-Operator Indep. Drivers Ass’n v. Arctic Express, Inc., 238 F.Supp.2d 963, 967 (S.D.Ohio 2003) (internal quotation marks omitted). As one commentator has explained, Rule 13 expressly is applicable only to opposing parties. A court may properly conclude that absent class members are not opposing or litigating adversaries for purposes of Rule 13, and therefore Rule 13 is inapplicable in a class context.- Because compulsory coun terclaims can only be potentially involved when Rule 13 applies, if absent class members are not opposing parties within the meaning of the rule, it follows that any counterclaims that may be permitted in a class action are not governed by Rule 13 and are purely discretionary with the court. 2 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 4:34, at 299-300 (4th ed.2002) (emphasis added). Thus, the district court had discretion to decide whether Exxon should be allowed to assert set-off claims against the dealers. . Exxon does not challenge the district court's finding that the class met the requirements of Rule 23(a). . Exxon also argues that the district court erred in submitting whether this case constituted a normal case under" }, { "docid": "17514969", "title": "", "text": "Court found [in the Arctic Litigation] that the only reason anyone could withdraw money from Arctic’s bank account that held the escrow funds was to pay for repairs and maintenance of the individual owner operator’s leased equipment. The nature of the relationship between Arctic and Plaintiffs put Arctic in the same position with respect to the individual drivers as a trustee has toward beneficiaries of an express trust. The owner operators entrusted their money to Arctic and relied upon Arctic to safeguard it and only to distribute it for legitimate purposes under the agreement. OOIDA v. Comerica Inc., 2006 WL 1339427, at *4 (citations omitted). In reaching this conclusion, the district court relied in part upon In re Intrenet, Inc., 273 B.R. 153 (S.D.Ohio 2002), in which the bankruptcy court held, in the context of a Chapter 11 adversary proceeding, that funds deposited by owner-operators into an escrow account established pursuant to § 376.12(k) were subject to a statutory trust and were not the property of the debtors-carriers’ bankruptcy estate. Noting that the Truth-in-Leasing regulations “were enacted for the protection of owner-operators from abusive practices of carriers, particularly with regard to escrow funds,” the bankruptcy court determined that the owner-operators were entitled to return of the escrow funds, even though the funds were not held with a third party. 273 B.R. at 156-57 (citing Lease and Interchange of Vehicles, 131 M.C.C. 141 (1979); Lease and Interchange of Vehicles, 129 M.C.C. 700 (1978)). In so holding, the Intrenet court rejected the defendants’ contention that “the Debtors simply made ‘accounting entries’ relative to the funds and that the Owner-Operators [were] ‘no more than potential unsecured creditors,’ ” opining that this argument “undermines a primary goal of the federal Truth-in-Leasing regulations.” Id. at 158. We agree with the district court and the Intrenet court that 49 C.F.R. § 376.12(k), when viewed in the historical context in which it was enacted, implicitly creates a statutory trust, for the benefit of owner-operators. The Truth-in-Leasing escrow provisions state that they “shall be adhered to and performed by the authorized carrier.” 49 C.F.R. § 376.12. They require" }, { "docid": "17514946", "title": "", "text": "2000). The district court granted partial summary judgment to plaintiffs on the issue of liability, holding that Arctic’s “transformation of the maintenance fund into ‘non-refundable’ monies [was] unrelated to the cost of maintenance of the [plaintiffs’ vehicles, and therefore [was] in violation of § 376.12(k),” because “the non-refundable nature of the maintenance fund [was] no more than an early termination penalty thinly disguised by [Arctic].” Owner Operator Indep. Drivers Ass’n, Inc. v. Arctic Express, Inc., 159 F.Supp.2d 1067, 1076 (S.D.Ohio 2001). The district court thus ordered Arctic to return the net unused balance in the escrow accounts to plaintiffs. See Owner-Operator Indep. Drivers Ass’n, Inc. v. Arctic Express, Inc., 288 F.Supp.2d 895 (S.D.Ohio 2003); Owner-Operator Indep. Drivers Ass’n, Inc. v. Arctic Express, Inc. 270 F.Supp.2d 990 (S.D.Ohio 2003). In October 2003, Arctic and D & A filed a voluntary petition for bankruptcy in the United States Bankruptcy Court for the Southern District of Ohio, thus halting the Arctic Litigation. Plaintiffs allege that in December 2003, through testimony given in the bankruptcy proceedings, they first learned of Arctic’s financing arrangement with Comerica and Comerica’s actions in transferring the maintenance escrow funds out of Arctic’s depository accounts to re pay amounts owed to it pursuant to its loan agreements with Arctic. The particulars of Arctic’s banking relationship with Comerica were accurately explained by the district court: Arctic and Comerica entered into three revolving credit loan agreements (which established a revolving line of credit), one dated February 4, 1991, one dated May 3, 1993, and the other dated April 29, 1998. The loan arrangement between Arctic and Comerica was in operation continuously from February 1991 through November 1998. For the 1991 loan agreement, Comerica agreed to lend Arctic up to $500,000 wherein several variables, including the amount of eligible collateral, determined how much Arctic could request be advanced by Comerica at any given time. By May 1993, the revolving loan agreement increased the commitment amount to $2,000,000. By April 1998, the revolving loan agreement increased the commitment amount to $5,500,000. D & A acted as a guarantor in the event of default by" }, { "docid": "4042576", "title": "", "text": "of damages.” Sir Speedy, Inc. v. L & P Graphics, Inc., 957 F.2d 1033, 1038 (2d Cir.1992); see also Owner-Operator Indep. Drivers Ass’n, Inc. v. Arctic Express, Inc., 288 F.Supp.2d 895, 907 (S.D.Ohio 2003) (applying Sir Speedy). While a plaintiff is not required to prove her damages with absolute certainty, she must show that there is a reasonable basis for computing her alleged damages. Sir Speedy, 957 F.2d at 1038; Arctic Express, 288 F.Supp.2d at 907 (quoting Volasco Prods. Co. v. Lloyd A. Fry Roofing Co., 308 F.2d 383, 392 (6th Cir.1962)). In short, because a jury may not award damages based on mere conjecture, “people who want damages have to prove them.” Id. (quoting Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410, 415 (7th Cir.1992)) (emphasis added). Where a plaintiff alleges — as the plaintiff does in the instant case — that an investment manager invested in securities that were not suited to her investment strategy, the plaintiff must allege “ ‘which transactions and securities are involved and the reasons why these securities are unsuitable.’ ” Craighead v. E.F. Hutton & Co., 899 F.2d 485, 494 (6th Cir.1990) (citation omitted). Finally, when a plaintiff is suing for damages related to investment mismanagement, the measure of damages is the plaintiffs gross economic loss reduced by the average decline in a “well recognized [market] index” such as the Dow Jones Industrial average, or the Standard & Poor’s Index. Rolf v. Blyth, Eastman Dillon & Co., 570 F.2d 38, 49 (2d Cir.1978). Plaintiffs own expert has not testified to or issued an opinion that calculates how plaintiff was damaged by the defendants’ alleged mismanagement of her portfolio. Indeed, plaintiffs expert testified in deposition that it was “quite possible that [plaintiff] would have suffered losses” in the down market anyway. Further, in his report, plaintiffs expert only indicates that defendants were negligent, not that they actually caused damage to plaintiff. Plaintiff wants damages, yet plaintiff has not brought forth evidence that she actually suffered damages as a result of defendants’ alleged breach of duty. Plaintiff insists that it does not matter," }, { "docid": "17514952", "title": "", "text": "agreement further provided that “[i]n no event shall the [owner-operators] recover or seek to recover more than $900,000 from Arctic.” After entry of the judgment and finalization of Arctic’s plan of reorganization, the district court withdrew the bankruptcy reference over the adversary proceeding, and plaintiffs’ action against Comerica seeking enforcement of the Arctic Litigation judgment was removed to the district court. Plaintiffs thereafter twice amended their complaint, ultimately setting forth a single count seeking restitution or disgorgement of the maintenance escrow funds deposited by Arctic into Comerica’s accounts and purportedly used by Comerica to pay down Arctic’s indebtedness. In denying, in part, Comerica’s motions to dismiss plaintiffs’ complaints, the district court opined that the funds held in escrow under 49 C.F.R. § 376.12(k) were subject to a statutory trust for plaintiffs’ benefit, and plaintiffs were entitled to pursue a common law claim against Comerica for restitution. Owner Operator Indep. Drivers Ass’n, Inc. v. Comerica Inc., No. 2:05-CV-00056, 2006 WL 1339427, at *4 (S.D.Ohio May 16, 2006) (unpublished) (footnote omitted); see also Owner Operator Indep. Drivers Ass’n, Inc. v. Comerica Bank, 540 F.Supp.2d 925, 931-32 (S.D.Ohio 2008). The parties filed cross-motions for summary judgment. Comerica disputed the existence and alleged breach of a statutory trust and asserted statute of limitations and bona fide purchaser defenses. It maintained that if a trust attached to any of Arctic’s bank accounts, it attached to funds in the depository/operating account when the nine cents per mile was deducted by Arctic from the owner-operator’s compensation; in other words, Arctic was withholding the maintenance fees, not Comerica. Comerica asserted that the funds it credited to the Arctic loan balance from the cash collateral account were not subject to the trust because the trust did not exist yet. Conversely, plaintiffs argued that the trust was created when funds were deposited by customers into the cash collateral account. Because the maintenance escrow fees were deducted from compensation, which was a percentage of the amount received in the cash collateral account, the escrow fees were a part of the payments deposited into the cash collateral account. Comerica, in turn, collected" }, { "docid": "17514945", "title": "", "text": "Southern District of Ohio, seeking monetary damages and other relief. The certified class of plaintiffs alleged that Arctic and D & A violated the Truth-in-Leasing regulations of the Motor Carrier Act, 49 U.S.C. §§ 14101-02, 14704; 49 C.F.R. § 376 et seq., by failing to return unused maintenance escrow fund balances to the class of owner-operators whose lease agreements with Arctic did not run full term. In a series of subsequent orders, the district court determined that the nine cents per mile collected for the purpose of maintaining leased equipment was an “escrow fund” as defined under 49 C.F.R. § 376.2(i) and, therefore, the maintenance escrow funds were subject to the requirements of the Truth-in-Leasing regulations; specifically, 49 C.F.R. § 376.12(k), which requires, inter alia, a lessee’s (the motor carrier’s) accounting of transactions related to the collected funds and the return of escrow balances to the lessor (the owner-operator) within forty-five days from the date of termination of the lease. See Owner-Operator Indep. Drivers Ass’n, Inc. v. Arctic Express, Inc., 87 F.Supp.2d 820, 830-31 (S.D.Ohio 2000). The district court granted partial summary judgment to plaintiffs on the issue of liability, holding that Arctic’s “transformation of the maintenance fund into ‘non-refundable’ monies [was] unrelated to the cost of maintenance of the [plaintiffs’ vehicles, and therefore [was] in violation of § 376.12(k),” because “the non-refundable nature of the maintenance fund [was] no more than an early termination penalty thinly disguised by [Arctic].” Owner Operator Indep. Drivers Ass’n, Inc. v. Arctic Express, Inc., 159 F.Supp.2d 1067, 1076 (S.D.Ohio 2001). The district court thus ordered Arctic to return the net unused balance in the escrow accounts to plaintiffs. See Owner-Operator Indep. Drivers Ass’n, Inc. v. Arctic Express, Inc., 288 F.Supp.2d 895 (S.D.Ohio 2003); Owner-Operator Indep. Drivers Ass’n, Inc. v. Arctic Express, Inc. 270 F.Supp.2d 990 (S.D.Ohio 2003). In October 2003, Arctic and D & A filed a voluntary petition for bankruptcy in the United States Bankruptcy Court for the Southern District of Ohio, thus halting the Arctic Litigation. Plaintiffs allege that in December 2003, through testimony given in the bankruptcy proceedings, they first learned" }, { "docid": "15639595", "title": "", "text": "two in contravention of Rules 9(b) and 12(b)(6). In a prior Ferron case, the undersigned judicial officer addressed whether Rule 9(b) applied to OCSPA claims and concluded that it did not. Ferron v. Search Cactus, L.L.C., No. 2:06-cv-327, 2007 WL 1792332, at *4 (S.D.Ohio June 19, 2007). That conclusion turned on the implicit rationale that unfair or deceptive acts under the OCSPA “ ‘need not rise to the level of fraud.’ ” Hacker v. Nat’l Coll, of Bus. & Tech., No. 23489, 186 Ohio App.3d 203, -, 927 N.E.2d 38, 44-45, 2010 WL 404844, at *6 (Ohio Ct.App. Feb. 5, 2010) (quoting Mannix v. DCB Serv., Inc., No. 19910, 2004 WL 2848921, at *3 (Ohio App. Nov. 24, 2004)). See also Shumaker v. Hamilton Chevrolet, Inc., 184 Ohio App.3d 326, 335, 920 N.E.2d 1023, 1031 (Ohio App. 2009). At least two other judicial officers in this District appear to disagree, however, and have concluded that “Rule 9(b) applies in cases such as this because actions for deceptive trade practices are, at their core, fraud claims.” Ferron v. SubscriberBase Holdings, Inc., No. 2:08-cv760, 2009 WL 650731, at *5 n. 4 (S.D.Ohio Mar. 11, 2009) (citing Ferron v. Zoomego, Inc., No. 2:06-cv-751, 2007 WL 1974946 (S.D.Ohio July 3, 2007)). The Sixth Circuit declined to reach the issue in Ferron v. Zoomego, Inc., 276 Fed.Appx. 473, leaving the potential application of Rule 9(B) unresolved. Assuming arguendo that the heightened pleading standard of Rule 9(b) applies here, this Court concludes that Plaintiffs complaints satisfy that standard. In discussing its “long-standing holding that, under Rule 9(b), a plaintiff must ‘allege the time, place, and content of the alleged misrepresentation ... the fraudulent scheme; the fraudulent intent of the defendants; and the injury resulting from the fraud’ ” the Sixth Circuit has “also made clear, however, [that] this requirement should be understood in terms of Rule 9(b)’s broad purpose of ensuring that a defendant is provided with at least the minimum degree of detail necessary to begin a competent defense.” U.S. ex rel. SNAPP, Inc. v. Ford Motor Co., 532 F.3d 496, 504 (6th Cir.2008) (quoting" }, { "docid": "78819", "title": "", "text": "Prime, 192 F.3d at 781, quoting H.R.Rep. No. 104-311, at 120-121 (1995), reprinted in 1995-2 U.S.C.C.A.N. 850, 906-907. Moreover, the Federal Highway Administration, the entity which administers the Truth-in-Leasing Regulations between motor carriers and owner-operators of truck tractors, refused to hear the plaintiffs’ collateral action for declaratory relief related to the New Prime litigation. Petition for Declaratory Order Regarding Application of Federal Motor Carrier Truth In-Leasing Regulations, 63 Fed.Reg. 31827 (June 10, 1998). The Federal Highway Administration stated that the ICCTA “expanded the rights and remedies of persons injured by carriers by providing for private enforcement of its provisions in court.” Id. at 31828; see also Owner-Operator Indep. Drivers Assoc. v. Mayflower Transit, Inc., 161 F.Supp.2d 948, 954 (S.D.Ind.2001). While the decision in Neiv Pñme is not binding on this Court, it is certainly persuasive. Furthermore, in a similar case regarding § 14704, see Owner-Operator Indep. Dñvers Assoc., Inc. v. Arctic Express, Inc., 87 F.Supp.2d 820 (S.D.Ohio 2000), the Sixth Circuit Court of Appeals originally transferred the appeal in the case to the Eighth Circuit to be consolidated with New Pñme. Although the Eighth Circuit denied the petition for review of Arctic Express, the Sixth Circuit’s action seems to evidence an intention to defer to the Eighth Circuit on this issue. Indeed, when Arctic Express returned to the Southern District of Ohio after the Eighth Circuit denied the petition for review, the district court relied entirely on New Pñme in arriving at its decision to allow a private right of action for damages under § 14704(a)(2). Arctic Express, 87 F.Supp.2d at 824-826. Finally, the Conference Report which accompanied the passage of § 14704 by both houses of Congress states, “The ability to seek injunctive relief for motor carrier leasing and lumping violations is in addition to and does not in any way preclude the right to bring civil actions for damages for such violations.” H.R. Conf. Rep. No. 104^422, at 222 (1995), repñnted in 1995 U.S.C.C.A.N. 851, 907. As this statement shows, Congress clearly anticipated that parties would bring civil actions in court for leasing violations. Accordingly, the Court holds" }, { "docid": "17514956", "title": "", "text": "or if funds in that account were unlawfully withdrawn. The evidence shows that: (1) the funds in the depository/operating account, other than the funds used to pay interest and bank fees, were freely available to satisfy outstanding obligations to Plaintiffs; and (2) the interest and fees charged [by Comerica] were commercially reasonable. Arctic’s deposits into the depository/operating account and Arctic’s allowance of Comerica to withdraw from that account to pay interest and fees were not in breach of trust. Comerica cannot be liable for receiving funds in breach of trust because the trustee’s transfer of funds did not constitute a breach of trust. Id. at 706-08. Plaintiffs now timely appeal the district court’s grant of summary judgment in favor of Comerica and the denial of their cross-motion for summary judgment. II. We conduct de novo review of the district court’s summary judgment order. Med. Mut. of Ohio v. K. Amalia Enters. Inc., 548 F.3d 383, 389 (6th Cir.2008). “In reviewing a grant of summary judgment on cross-motions seeking such relief, we apply the same legal standards as the district court: whether, with the evidence viewed in the light most favorable to the non-moving party, there are no genuine issues of material fact, so that the moving party is entitled to a judgment as a matter of law.” United States v. Petroff-Kline, 557 F.3d 285, 290 (6th Cir.2009) (citation omitted); see Federal Rule of Civil Procedure 56(c)(2). On appeal, plaintiffs maintain that the statutory trust attached when customers made payments into the cash collateral account; therefore, any money paid from that account, including funds used to pay down Arctic’s loan obligations to Comerica, included trust assets. Plaintiffs contend that Arctic breached its fiduciary duties when it used plaintiffs’ trust property to reduce its loan balance, and never drew those funds from Comerica to return plaintiffs’ maintenance escrows, in violation of the Truth-in-Leasing regulations. We agree. However, it is necessary that we first reexamine the district court’s threshold determination — challenged by Comerica— that 49 C.F.R. § 376.12(k) impressed the maintenance escrow funds with a statutory trust for plaintiffs’ benefit, thereby giving" } ]

[ { "docid": "8345726", "title": "", "text": "took place, (7) the practical problems indicating where the case can be tried more expeditiously and inexpensively, and (8) the interests of justice in general. National Union Fire Ins. Co. v. Landry, 677 F.Supp. 704, 708 (S.D.N.Y.1987) (citations omitted). In a motion for transfer, the presence of a forum selection clause is “a significant factor that figures centrally in the District Court's calculus”. Stewart, 487 U.S. at 29, 108 S.Ct. at 2243-44. “The district court must also weigh in balance the convenience of the witnesses and those public-interest factors of systemic integrity and fairness that, in addition to private concerns, come under the heading of ‘the interest of justice.’ ” Id. at 30, 108 S.Ct. at 2244. see also Red Bull Assoc,. v. Best Western Int’l, Inc., 862 F.2d 963, 966 (2d Cir.1988) (after Stewart, “§ 1404(a) transfer motions are not governed by the standard articulated in Bremen but by the terms of § 1404(a) itself”). The Shelton parties contend that the multiple factors to be considered on this motion—including the place of occurrence of the underlying events, the place where the parties’ contractual obligations were primarily to be performed, the relative convenience of the parties and the circumstances surrounding the parties’ entry into the relevant agreements—all compel disregard of the forum selection clauses. Even though Paribas has a small office in Texas, its principal office and the majority of its witnesses are in New York. All of the defendants reside and work in Texas, however, the Shelton Parties constitute only a handful of principal characters that control or represent all of the corporate defendants and thus cannot show that the balance of convenience favors the Shelton Parties. Moreover, several courts have found that the inconvenience of traveling to defend an action is not a reason to invalidate the plaintiff’s choice of forum, especially if sophisticated business people entered into the contract specifying a forum and such a result would be foreseeable. See First Interstate Leasing Serv., 697 F.Supp. at 747. The events at issue occurred in Texas, Florida, and New York and the material non-party witnesses live in all" } ]

[ { "docid": "497402", "title": "", "text": "added such excluding language. The clause could have, for example, provided that the parties consent to confer jurisdiction “solely” or “only” or “exclusively” on the courts of the state of Rhode Island, or that “all” litigation “must” be brought within the state of Rhode Island. Forum selection clauses which employ terms such as these have been deemed “mandatory.” See, e.g., Lambert v. Kysar, 983 F.2d 1110, 1112-13 (1st Cir.1993)(forum selection clause stating “[i]n the event any action is brought to enforce [such] terms and conditions, venue shall lie exclusively in Clark County, Washington” was deemed “mandatory”); Pelleport Investors, Inc. v. Budco Quality Theatres, Inc. 741 F.2d 273, 275, 280 (9th Cir.1984)(forum selection clause stating that “... any and all disputes arising out of or in connection with this Agreement shall be litigated only in the Superior Court for Los Angeles, California (and in no other)... ” was deemed “mandatory”). However, because the parties in the case at bar did not include language in the clause to the effect that Rhode Island was the only forum in which claims could be brought, the clause must be interpreted to be “permissive.” The defendant makes a secondary argument that the forum selection clause should be interpreted as “mandatory” because “if the parties were allowed to bring suit in any other jurisdiction, there would be no reason to state that objections to venue [in Rhode Island] are waived.” (#20, p. vi) However, a reason that the parties to the contract might have chosen to include a provision stating that objections to venue in Rhode Island are waived was that they wanted to ensure that parties to the contract would always have the option to litigate in Rhode Island without the possibility of another party objecting. In fact, it makes more sense that this provision would have been included as part of a “permissive” forum selection clause— if Rhode Island were the only state in which parties to the contract could bring suit, there would be no need for the parties to waive objections to litigation there. The defendant’s arguments therefore fail, and the forum" }, { "docid": "1361361", "title": "", "text": "court may decline to enforce a clause if “trial in the contractual forum [would] be so gravely difficult and inconvenient that [the resisting party] will for all practical purposes be deprived of his day in court,” or “if enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision.” Bremen, 407 U.S. at 18, 15, 92 S.Ct. 1907. For instance, we have declined to “adopt a per se rule that gives [forum selection clauses] dispositive effect where the civil rights laws are concerned,” observing that “a strong federal public policy favoring enforcement of the civil rights laws” requires that courts invalidate a forum selection clause where enforcement “would frustrate that purpose.” Red Bull Assocs. v. Best W. Int’l, Inc., 862 F.2d 963, 967 (2d Cir.1988) (finding denial of motion to transfer under 28 U.S.C. § 1404(a) proper, despite forum selection clause, since district court acted within its discretion in holding that transfer would undermine civil rights statutes); see also Roby v. Corp. of Lloyd’s, 996 F.2d 1353, 1365 (2d Cir. 1993) (federal courts would decline to enforce forum selection clause that undermined public policy of protecting American securities investors). The presumptive enforceability of forum selection clauses reflects a strong federal public policy of its own, which would likewise be undermined if another body of law were allowed to govern the enforceability of a forum selection clause. In the absence of a forum selection clause, a court applying the doctrine of forum non conve-niens weighs and balances the public and private interests identified in Gulf Oil Corp. v. Gilbert, keeping in mind that “the plaintiffs choice of forum should rarely be disturbed.” 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). In Bremen, however, the Supreme Court held that forum selection clauses require a substantial modification of the forum non conveniens doctrine, whereby the doctrine’s usual tilt in favor of the plaintiffs choice of forum gives way to a presumption in favor of the contractually selected forum. 407 U.S. at 6, 15, 92 S.Ct. 1907. Since forum" }, { "docid": "587080", "title": "", "text": "agreed' that the venue and place of trial of any dispute that may arise out of this Agreement ... shall be in Nassau County, New York,” would necessarily conclude that the parties intended that litigation take place in an appropriate venue in Nassau County and that this commitment was not conditioned on the existence of a federal courthouse in that county. Tyler Hill contends that nothing in the wording of the clause requires that a dispute be litigated in Nassau County State Supreme Court and, as a result, the clause does not on its face exclude federal jurisdiction. This may be true, but it misses the point. According to the Supreme Court, forum selection clauses “are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable’ under the circumstances.” M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). A forum selection clause may bind parties to either a specific jurisdiction or, as here, a specific venue. See Phillips, 494 F.3d at 386 (“A forum selection clause is viewed as mandatory when it confers exclusive jurisdiction on the designated forum or incorporates obligatory venue language.”). To the extent that a forum selection clause binds diverse parties by its express terms to a specific jurisdiction that is not federal, it waives a statutory right to remove. See 28 U.S.C. § 1441(b). However, where, as here, the clause merely contains obligatory venue language, it conveys nothing about the parties’ intent as to jurisdiction. As the Supreme Court has stated, we are obliged to give effect to the parties’ intentions regarding venue “by specifically enforcing the forum clause” absent a strong showing that it should be set aside. M/S Bremen, 407 U.S. at 12, 92 S.Ct. 1907. Given that the forum selection clause contains only obligatory venue language, we will effectuate the parties’ commitment to trial in Nassau County. Had there been a federal court located in Nassau County at the time of this litigation, remand would have been improper. But there was none. In addition, contrary to" }, { "docid": "8465744", "title": "", "text": "London. After the rig was heavily damaged in the Gulf of Mexico, Zapata brought suit in Florida. Unterweser simultaneously brought suit in London, as was mandated by the contract. Id. at 4, 92 S.Ct. 1907. The district court in Florida refused to enforce the forum selection clause and entered a preliminary injunction barring Unterweser from pursuing the London litigation. Id. at 5, 92 S.Ct. 1907. The Fifth Circuit affirmed. The Supreme Court reversed, holding that the forum selection clause should have been enforced: ■ There are compelling reasons why a freely negotiated private international agreement, unaffected by fraud, undue influence, or overweening bargaining power, such as that involved here, should be given full effect.... Manifestly much uncertainty and possibly great inconvenience to both parties could arise if a suit could be maintained in any jurisdiction in which an accident might occur or if jurisdiction were left to any place where the Bremen ... might happen to be found. The elimination of all such uncertainties by agreeing in advance on a forum acceptable to both parties is an indispensable element in international trade, commerce, and contracting. Id. at 12-14, 92 S.Ct. 1907 (footnotes omitted). The Court continued: “[I]n the light of present-day commercial realities and expanding international trade we conclude that the forum clause should control absent a strong showing that it should be set aside.” Id. at 15, 92 S.Ct. 1907. The Supreme Court reaffirmed its commitment to the enforcement of forum selection clauses in Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). “[A] clause establishing ex ante the forum for dispute resolution has the salutary effect of dispelling any confusion about where suits arising from the contract must be brought and defended....” Id. at 593-94, 111 S.Ct. 1522. It is therefore clear that the Supreme Court has established a strong policy in favor of the enforcement of forum selection clauses. Forum selection clauses are increasingly used in international business. When included in freely negotiated commercial contracts, they enhance certainty, allow parties to choose the regulation of their contract, and enable transaction" }, { "docid": "9889772", "title": "", "text": "& Dis trib., Inc., 22 F.3d 51 (2d Cir.1994). In Boutari, the Second Circuit overturned a dismissal based on a forum selection clause giving the courts of Greece jurisdiction because that contract could be read to permit, rather than insist on, Greece as a venue. Id. at 53. However, the court made clear that where, as here, “mandatory venue language is employed, the clause will be enforced.” Id. The contract from 2003, at issue here, states that “[any] dispute or claim arising out of or in connection with this Agreement shall be adjudicated in Santa Clara County, California.” (DiNucci Decl. Ex. B Sec. 15 (emphasis added).) Thus, it is clear that the venue clause at issue in this case was meant to be mandatory rather than permissive. According to the Supreme Court, mandatory forum selection clauses “should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable’ under the circumstances.” M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). The Second Circuit has made clear that reasonableness will be presumed unless the plaintiff can make a strong showing otherwise. This “presumption of validity” regarding a forum selection clause can only be overcome: (1) if [the clause’s] incorporation into the agreement was the result of fraud or overreaching ...; (2) if the complaining party “will for all practical purposes be deprived of his day in court,” due to the grave inconvenience or unfairness of the selected forum ...; (3) if the fundamental unfairness of the chosen law may deprive the plaintiff of. a remedy ...; or (4) if the clauses contravene a strong public policy of the forum state. Roby v. Corporation of Lloyds, 996 F.2d 1353, 1363 (2d Cir.1993) (quoting M/S Bremen, 407 U.S. at 18, 92 S.Ct. 1907). 1. Fraud or Overreaching Plaintiffs sole claim of contractual fraud is his allegation of false advertising by Defendant. (Pl.Compl.1ffl 152-58.) He claims that calling the process by which AdWords’ customers obtain keywords an “auction” is misleading because it fails to acknowledge the subjective component of Defendant’s selection of ads. (PI." }, { "docid": "587081", "title": "", "text": "F.3d at 386 (“A forum selection clause is viewed as mandatory when it confers exclusive jurisdiction on the designated forum or incorporates obligatory venue language.”). To the extent that a forum selection clause binds diverse parties by its express terms to a specific jurisdiction that is not federal, it waives a statutory right to remove. See 28 U.S.C. § 1441(b). However, where, as here, the clause merely contains obligatory venue language, it conveys nothing about the parties’ intent as to jurisdiction. As the Supreme Court has stated, we are obliged to give effect to the parties’ intentions regarding venue “by specifically enforcing the forum clause” absent a strong showing that it should be set aside. M/S Bremen, 407 U.S. at 12, 92 S.Ct. 1907. Given that the forum selection clause contains only obligatory venue language, we will effectuate the parties’ commitment to trial in Nassau County. Had there been a federal court located in Nassau County at the time of this litigation, remand would have been improper. But there was none. In addition, contrary to Tyler Hill’s contention, no reasonable reading of the clause permits the interpretation that the parties had agreed to trial in Suffolk County or Brooklyn because those courthouses were within the Eastern District of New York, which spans an area including Nassau County. Had the parties intended to provide for that result, they could, of course, have drafted a different forum selection clause that communicated that intent. We are free only to interpret and enforce the clause as written. CONCLUSION The decision of the district court is AFFIRMED. . We express no view as to whether a forum selection clause must stipulate a specific non-federal jurisdiction in order to require remand for jurisdictional purposes, as opposed to venue purposes." }, { "docid": "2637988", "title": "", "text": "be free to pursue its rights at law or equity in a court of competent jurisdiction in Fairfax County, Virginia,” was permissive because it merely permitted jurisdiction in one court without prohibiting jurisdiction in another through “specific language of exclusion.” Id. at 290. Here, the forum-selection clauses state that Defendant “irrevocably consent[ed]” to suit in Maryland. The phrase “irrevocably consents” clearly expresses the Defendants’ consent to suit in Maryland. See TECH USA Inc. v. Evans, 592 F.Supp.2d 852, 857 (D.Md.2009)(finding the phrase “[‘hereby consents’] unambiguously expresses the parties’ consent to suit”); see also RGC Int’l Inv., LDC v. ARI Network Serv., Inc., 2003 WL 21843637, at *1-2 (D.Del. July 31, 2003). Plaintiffs’ argument that the clauses are mandatory is further bolstered by the fact that Defendant agreed to Plaintiffs’ choice of forum in two separate agreements, the Terms of Use and the License Agreement. Having determined that the clause is mandatory, the court must decide whether enforcement would be “unreasonable.” The complaining party bears a heavy burden of demonstrating unreasonableness. Bremen, 407 U.S. at 15, 92 S.Ct. 1907 (“[T]he forum clause should control absent a strong showing that it should be set aside.”); see Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 592, 111 S.Ct. 1522, 113 L.Ed.2d 622 (“The party claiming [unfairness] should bear a heavy burden of proof.”). Enforcement is deemed unreasonable only when (1) agreement to the forum-selection clause was induced by fraud or overreaching, (2) “enforcement would contravene a strong public policy of the forum in which suit is brought,” or (3) “trial in the contractual forum will be so gravely difficult and inconvenient that [the complaining party] will for all practical purposes be deprived of his day in court.” Bremen, 407 U.S. at 12-19, 92 S.Ct. 1907. Defendant challenges the reasonableness of the clause by asserting that enforcement will be gravely difficult and inconvenient for her. However, as discussed above, Defendant has offered no proof of such hardship. As a result, enforcement of the clause is reasonable. 3. Dismissal for Improper Yenue Even if the forum-selection clauses-were not binding on Defendant, venue would still" }, { "docid": "4963492", "title": "", "text": "28 U.S.C. 1391(a)(2); see also Constitution Reinsurance Corp. v. Stonewall Ins. Co., 872 F.Supp. 1247,1249 (S.D.N.Y.1995) (venue may be proper in more than one district under 28 U.S.C. § 1391(a)(2)). The issue on this motion is the convenience of the parties and witnesses, and the interests of justice, rather than a claim that either California or New York would be an improper venue. Paladión argues that the lease that is the subject of the controversy contains a forum selection clause designating California as the appropriate venue for this action. S-Fer contends that the clause only covers actions for enforcement of the lease and that an action for fraudulent inducement directed at the validity of the lease does not fall within the meaning of the term “enforcement”. The parties also present opposing views on the balance of the factors enumerated above, particularly the convenience of the parties and potential witnesses. Forum selection clauses in contracts are regularly enforced. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991); Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988); The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972); see also Effron v. Sun Line Cruises, Inc., 67 F.3d 7, 9-10 (2d Cir.1995); Bense v. Interstate Battery System of America, 683 F.2d 718, 721-22 (2d Cir.1982); Weiss v. Columbia Pictures Television, Inc., 801 F.Supp. 1276, 1282 (S.D.N.Y. 1992). A forum selection clause is not itself dispositive on a motion to transfer, and the district court should still examine the “public policy ramifications of transfer decisions.” Red Bull, 862 F.2d at 967. Nevertheless, “the presence of a forum selection clause ... will be a significant factor that figures centrally in the district court’s [§ 1404(a) ] calculus.” Stewart, 487 U.S. at 29, 108 S.Ct. at 2244. In this case, however, the dispute at issue is not covered by the terms of the contractual forum selection clause. The forum selection clause in the lease provides: 32.12 Governing Law; Forum; Construction. The laws of the State" }, { "docid": "2497506", "title": "", "text": "not consider arguments about the parties’ private interests.” Rather, a court “must deem the. private-interest factors to weigh entirely in favor of the preselected forum.” “As a consequence,” the Supreme Court explained, “a district court may consider arguments about the public-interest factors only.” Third, “when a party bound by a forum-selection clause flouts its contractual obligation and files suit in a different forum, a § 1404(a) transfer of venue will not carry with it the original venue’s choice-of-law rules.” Under this revised analytical framework, the forum selection clause will usually control: When parties have contracted in advance to litigate disputes in a particular forum, courts should not unnecessarily disrupt the parties’ settled expectations. A forum-selection clause, after all, may have figured centrally in the' parties’ negotiations and may have affected how they set monetary and other contractual terms; it may, in fact, have been a critical factor in their agreement to do business together in the first place. In all but the most unusual cases, therefore, “the interest of justice” is served by holding parties to their bargain. Notably, although Atlantic Marne determined that a court should enforce a forum-selection clause pointing to a state forum through the doctrine of forum non conveniens, the Court never addressed its statement in Sinochem that “[t]he common-law doctrine of forum non conveniens ‘has continuing application in federal courts only in cases where the alternative forum is abroad,’ and perhaps in the rare instances where a state or territorial court serves litigational convenience best.” C. “Permissive” Forum Selection Clauses Although Atlantic Marine did not distinguish between different kinds of forum selection clauses, the Fifth Circuit— as well as the other circuits — recognizes both “mandatory” and “permissive” forum selection clauses. As the -Fifth Circuit explained in City of New Orleans v. Municipal Administrative Services, Inc.: A party’s consent to jurisdiction in one forum does not necessarily waive its right to have an action heard in another. For a forum selection clause to be exclusive, it must go beyond establishing that a particular forum will have jurisdiction and must clearly demonstrate the par ties’ intent" }, { "docid": "7875434", "title": "", "text": "that the parties’ choice of law and forum selection provisions will be given effect.”). Instead, plaintiff contends that the forum selection clause at issue is permissive, rather than mandatory, and therefore does not require litigation in Munich. See Citro Florida, Inc. v. Citrovale, S.A., 760 F.2d 1231, 1232 (11th Cir.1985) (noting that “[t]he Bremen court did not reach the distinctions between mere ‘consent to jurisdiction’ clauses and ‘mandatory’ clauses”). This court and others have “frequently classified” forum selection clauses “as either mandatory or permissive.” Excell, 106 F.3d at 321. “Mandatory forum selection clauses contain clear language showing that jurisdiction is appropriate only in the designated forum.” Id. (internal quotations omitted). “In contrast, permissive forum selection clauses authorize jurisdiction in a designated forum, but do not prohibit litigation elsewhere.” Id. (internal quotations omitted). In addressing the mandatory/permissive issue, the district court concluded there was “a distinct lack of cohesion among” federal circuit decisions, which the district court attributed to “semantic hairsplitting.” App. at 389 (internal quotations omitted). The district court therefore purported to rely exclusively on Tenth Circuit precedent in general, and our decision in Milk ‘N’ More, Inc. v. Beavert, 963 F.2d 1342 (10th Cir.1992), in particular. In Milk ‘N’ More, we concluded that a forum selection clause stating “venue shall be proper under this agreement in Johnson County, Kansas” was mandatory. 963 F.2d at 1346. Based upon our holding in Milk ‘N’ More, the district court concluded that the relevant language of the forum selection clause at issue here, i.e., “jurisdiction ... is Munich,” was unambiguous and mandatory. App. at 390. The district court also concluded that the choice of law provision contained in the parties’ confidentiality agreement “supported] the interpretation that jurisdiction is to be located exclusively in a court best suited to interpret and apply German law, e.g., Munich.” Id. at 391. Finally, in a footnote, the district court noted that defendant was a “sophisticated global company with ample legal resources to devote to its international contracts,” and “would be well-advised to study American jurisprudence and draft forum selection clauses including specific ‘exclusivity’ language, so as to" }, { "docid": "9836313", "title": "", "text": "of venue under § 1404(a). Coface v. Optique Du Monde, Ltd., 521 F.Supp. 500 (S.D.N.Y.1980). In Coface, the defendants, guarantors of the debtor’s company’s obligations, signed a contract in which they “eonsent[ed] to the jurisdiction [and venue] of the State and Federal Courts sitting in New York in any action arising out of or connected with this agreement.” Id. at 503. The contract also provided that its provisions were to be interpreted according to New York law. Id. at 502. In ordering a transfer of the case to the Northern District of Illinois regardless of the contract provision, Judge Conner considered the fact, among others, that it was more convenient for the guarantors themselves to defend the action in Illinois. Judge Conner concluded that all of the factors, including convenience of the parties, should be weighed by the court since, by its terms, the agreement did not establish “New York as the exclu sive forum for litigation” but rather as a “permissible forum” that may be subject to transfer depending on the application of the factors enumerated in § 1404(a). Id. at 506-07. See also First National City Bank v. Nam, Inc., 437 F.Supp. 184, 186-87 (S.D.N.Y.1975) (forum-selection clause which provided that New York courts “shall have jurisdiction of any dispute” was not by its terms mandatory). Plaintiffs cite Plum Tree, Inc. v. Stockment, 488 F.2d 754 (3d Cir.1973) as authority for the proposition that a party which consents to venue in one district is deemed to have waived its right to seek a transfer to another district for its own convenience under § 1404(a). Such a waiver occurs, however, only where that party’s preselected forum is one that by the terms of the agreement “is assigned exclusive jurisdiction of cases arising under the contract.” Id. at 758 n. 7. See also Full-Sight Contact Lens Corp. v. Soft Lenses, Inc., 466 F.Supp. 71, 72-3 n. 3 (S.D.N.Y.1978) (plaintiff was barred from asserting its own convenience in opposing a transfer since it had contractually agreed that “any suit ... shall be brought in either San Diego or Los Angeles County”) (emphasis" }, { "docid": "8645614", "title": "", "text": "plaintiffs claim they are still owed $608,709.95 under the agreements, including liquidated damages, attorneys’ fees, taxes, interest, late charges and the cost of repairs. Discussion (1) Forum-Selection Clause All of the leases, notes and guarantees signed by Patterson’s president contain the following forum-selection clause: [Patterson Enterprises Ltd.] agrees to the venue and jurisdiction of any court located within the State and County of New York regarding any matter involving [Patterson] and [CAC and LSC]. Plaintiffs argue that the terms of the clause, to which Patterson freely agreed, require this case to be heard in New York. Further, plaintiffs claim that by agreeing to the clause, Patterson waived its right to seek transfer under 28 U.S.C. § 1404. This Court disagrees. There is a clear distinction to be made between permissive forum-selection clauses and mandatory clauses. The existence of a permissive forum-selection clause does not prevent a court from ordering a change of venue under 28 U.S.C. § 1404(a). Credit Alliance v. Crook, 567 F.Supp. 1462 (S.D.N.Y.1983); Coface v. Optique Du Monde, Ltd., 521 F.Supp. 500 (S.D.N.Y. 1980). A forum-selection clause mandates a waiver of § 1404 analysis only where the terms of the agreement identify the preselected forum as an exclusive forum for hearing disputes arising under the contract. Full-Sight Contact Lens Corp. v. Soft Lenses, Inc., 466 F.Supp. 71 (S.D.N.Y. 1978) (Clause at issue read: “Any suit ... shall be brought in either San Diego or Los Angeles County” (emphasis added)); Credit Alliance, supra; Plum Tree, Inc. v. Stockment, 488 F.2d 754 (3rd Cir.1973). The language of the instant forum-selection clause is not mandatory. On the contrary, the wording is very similar to that in Credit Alliance: “[The parties] agree to the venue and jurisdiction of any court in the State and County of New York regarding any matter arising hereunder.” 567 F.Supp. at 1465. There the court stated, “this language empowers the New York courts to adjudicate this matter, it does not indicate that New York is the exclusive or the only appropriate forum ...” Id. (emphasis in original). Thus, while the forum-selection clause in this case empowers" }, { "docid": "1361368", "title": "", "text": "could have a different meaning in the forum selection clause than it has elsewhere in the same contract. Applying federal law to construe a forum selection clause could frustrate the contracting parties’ expectations by giving a forum selection clause a broader or narrower scope in a federal court than it was intended to have. It could transform a clause that would be construed as permissive under the parties’ chosen law into a mandatory clause, or vice versa, simply because the litigation was brought in a federal court in the United States. See Albemarle Corp. v. AstraZeneca UK Ltd., 628 F.3d 643, 646 (4th Cir.2010). In the absence of a strong countervailing public policy justifying the invalidation of a forum selection clause, courts should do no “more than give effect to the legitimate expectations of the parties, manifested in their freely negotiated agreement.” Bremen, 407 U.S. at 12, 92 S.Ct. 1907. To ensure that the meaning -given to a forum selection clause corresponds with the parties’ legitimate expectations, courts must apply the law contractually chosen by the parties to interpret the clause. Distinguishing between the enforceability and the interpretation of forum selection clauses, moreover, accords with the traditional divide between procedural and substantive rules developed under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). “Questions of venue and the enforcement of forum selection clauses are essentially procedural, rather than substantive, in nature,” and therefore should be governed by federal law. Jones, 901 F.2d at 19 (emphasis added); see Am. Dredging Co. v. Miller, 510 U.S. 443, 453, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994) (“[V]enue is a matter that goes to process rather than substantive rights.... ”). Although the Supreme Court recently distinguished the inquiry into whether venue is proper under 28 U.S.C. § 1391(b) from the enforceability of a forum selection clause, it made clear that the enforceability of a forum selection clause in the federal courts is resolved under federal law: 28 U.S.C. § 1404(a), which represents “merely a codification of the doctrine of forum non conveniens,” governs “the subset of cases" }, { "docid": "1361360", "title": "", "text": "to govern the interpretation of the contract as a whole”). Hence, if we are called upon to determine whether a particular forum selection clause is mandatory or permissive, see AVC Nederland, 740 F.2d at 155-56, or whether its scope encompasses the claims or parties involved in a certain suit, we apply the law contractually selected by the parties. This approach reconciles respect for contracting parties’ legitimate expectations with other important federal policies. If the enforceability of a forum selection clause were governed by the law specified in the choice-of-law clause, then contracting parties would have an absolute right to “oust the jurisdiction” of the federal courts. See Evolution Online Sys., Inc. v. Koninklijke PTT Nederland N.V., 145 F.3d 505, 509-10 (2d Cir.1998) (even if forum selection clause is mandatory, court must determine whether “enforcement would be ‘unjust’ or [whether] the clause [wa]s ‘invalid for such reasons as fraud or overreaching’ ” under Bremen before granting motion to dismiss). Federal law must govern the ultimate enforceability of a forum selection clause to ensure that a federal court may decline to enforce a clause if “trial in the contractual forum [would] be so gravely difficult and inconvenient that [the resisting party] will for all practical purposes be deprived of his day in court,” or “if enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision.” Bremen, 407 U.S. at 18, 15, 92 S.Ct. 1907. For instance, we have declined to “adopt a per se rule that gives [forum selection clauses] dispositive effect where the civil rights laws are concerned,” observing that “a strong federal public policy favoring enforcement of the civil rights laws” requires that courts invalidate a forum selection clause where enforcement “would frustrate that purpose.” Red Bull Assocs. v. Best W. Int’l, Inc., 862 F.2d 963, 967 (2d Cir.1988) (finding denial of motion to transfer under 28 U.S.C. § 1404(a) proper, despite forum selection clause, since district court acted within its discretion in holding that transfer would undermine civil rights statutes); see also Roby v. Corp. of" }, { "docid": "21448854", "title": "", "text": "the court agrees that Paragraph 12 is a consent to jurisdiction provision, it need not address the parties’ other arguments. Forum selection clauses can either be “permissive” or “mandatory.” A permissive forum selection clause, which is perhaps more appropriately referred to as a “consent to jurisdiction” clause: ‘merely specifies a court empowered to hear the litigation, in effect waiving any objection to personal jurisdiction in a venue. Such a clause might provide: “[T]he parties submit to the jurisdiction of the courts of New York.” Such a cause is “permissive” since it allows the parties to air any dispute in that court without requiring them to do so.’ Johnston County, N.C. v. R.N. Rouse & Co., Inc., 331 N.C. 88, 93, 414 S.E.2d 30, 33 (1992) (quoting Leandra Lederman, Note,; Viva Zapatal: Toward a Rational System of Forum-Selection Clause Enforcement in Diversity Cases, 66 N.Y.U.L.Rev. 422, 423 n. 10 (1991)) (citations omitted). In contrast, a mandatory forum selection clause identifies a particular state or court as having exclusive jurisdiction over disputes arising out of the parties’ contract and their contractual relationship. See id. A common mandatory forum selection clause may provide: “ ‘[B]oth parties agree that only New York courts shall have jurisdiction over this contract and any controversies arising out of this contract.’ ” Id. (quoting Lederman, Note). A review of Paragraph 12 indicates that, while the term “shall” is mandatory, it directs only that English courts shall have jurisdiction, not that English courts shall “have exclusive jurisdiction” or that “venue shall lie in England.” The general rule in such instances is that “[w]hen only jurisdiction is specified the cause will generally not be enforced [as a mandatory forum selection clause] without some further language indicating the parties’ intent to make jurisdiction exclusive.” Docksider, Ltd. v. Sea Technology, Ltd., 875 F.2d 762, 764 (9th Cir.1989); see, e.g., John Boutari & Son Wines & Spirits, S.A. v. Attiki Importers & Distribs., Inc., 22 F.3d 51, 52 (2d Cir.1994) (clause providing “any dispute arising between the parties ... shall come within the jurisdiction of the competent Greek courts” held permissive); Hunt Wesson" }, { "docid": "21643341", "title": "", "text": "provision of law” and “irrespective of any contrary forum selection provision contained in the policies themselves.” Cal. Civ.Proc.Code § 354.5 & notes (West 2002). However, in reaching its decision, the Court did not rely on the terms of the California statute itself, but rather held that “[i]n the face of the strong public policy in favor óf California’s jurisdiction,” it would, not honor the forum selection clause. Stern, 1999 WL 167546, at *2. Similarly, in this ease, it is not the New York HVIA itself that makes the forum selection clauses unenforceable, but rather the strong public policy it reflects. The Stem case is analogous to several federal civil rights cases that have held that public policy, as expressed in a statute, may require invalidation of a forum selection clause. In Red Bull Associates v. Best Western International, Inc., 862 F.2d 963 (2d Cir.1988), the Second Circuit affirmed the district court’s conclusion that “Congress’ basic purpose in incorporating the concept of the private attorney general into the civil rights laws was to encourage litigation of civil rights claims,” and that “that public policy would obviously be hindered by enforcing a [forum selection] contract which would prevent or seriously discourage the pursuit of such litigation.” Id. at 966 (quoting Red Bull v. Best Western Intern., 686 F.Supp. 447, 452 (S.D.N.Y. 1988)); see also Walker v. Carnival Cruise Lines, 107 F.Supp.2d 1135, 1144-45 (N.D.Cal.2000) (collecting cases). The New York HVIA and the federal civil rights laws both serve to encourage private lawsuits aimed at remedying the ill effects of past racial, ethnic, and religious discrimination. Such a purpose may trump the language of a privately negotiated forum selection clause in circumstances like those presented in the instant cases. The result generated by conventional forum non conveniens analysis appears more appropriate here than it might be in other eases because it is impossible to conclude in many instances in this case that enforcing a forum selection clause would accurately reflect the expectations of the parties to the original insurance agreements. A forum selection clause allows parties to eliminate uncertainties “by agreeing in advance" }, { "docid": "21448853", "title": "", "text": "“forum selection clause” in Paragraph 12: “The contract between the company [Defendant] and the customer [Plaintiff] shall be governed by and construed in accordance with English law, and both parties shall submit to the jurisdiction of the English courts.” Bassett Aff.Ex. G ¶ 12. After a dispute arose between the parties, Plaintiff filed this action in state court in Cabarrus County, North Carolina, asserting various causes of action based on Defendant’s alleged breach of the agreement. After removing the case to federal court pursuant to 28 U.S.C. § 1441 on the basis of diversity jurisdiction under 28 U.S.C. § 1332, Defendant brought the present motion to dismiss based on the above-referenced forum selection- clause. DISCUSSION A. Motion to Dismiss for Improper Venue Defendant contends that Paragraph 12 of its standard terms and conditions mandates that jurisdiction and venue in this case lie exclusively with English courts. Plaintiff counters that Paragraph 12 merely contains a permissive consent to jurisdiction provision coupled with a choice of law provision and is not a mandatory forum selection clause. Because the court agrees that Paragraph 12 is a consent to jurisdiction provision, it need not address the parties’ other arguments. Forum selection clauses can either be “permissive” or “mandatory.” A permissive forum selection clause, which is perhaps more appropriately referred to as a “consent to jurisdiction” clause: ‘merely specifies a court empowered to hear the litigation, in effect waiving any objection to personal jurisdiction in a venue. Such a clause might provide: “[T]he parties submit to the jurisdiction of the courts of New York.” Such a cause is “permissive” since it allows the parties to air any dispute in that court without requiring them to do so.’ Johnston County, N.C. v. R.N. Rouse & Co., Inc., 331 N.C. 88, 93, 414 S.E.2d 30, 33 (1992) (quoting Leandra Lederman, Note,; Viva Zapatal: Toward a Rational System of Forum-Selection Clause Enforcement in Diversity Cases, 66 N.Y.U.L.Rev. 422, 423 n. 10 (1991)) (citations omitted). In contrast, a mandatory forum selection clause identifies a particular state or court as having exclusive jurisdiction over disputes arising out of the parties’" }, { "docid": "20926991", "title": "", "text": "agreement, venue shall be in Adams County, Colorado.” 963 F.2d at 1346. In K & V Scientific Co, v. BMW, the parties entered into a'new agreemént which, unlike their earlier agreement, contained a jurisdictional and choice-of-law provision, which stated: “Jurisdiction for all and any disputes arising put of or in connection with this .agreement is Munich. All and any disputes arising out of or in connection with this agreement are subject to the laws of the Federal Republic of Germany.” 314 F.3d at 496. The plaintiff filed suit, asserting various contract, tort, and statutory causes of action. See 314 F.3d at 497. The defendant removed the case to federal court, and moved to dismiss under to rules 12(b)(2) and 12(b)(3) of the Federal Rules of Civil Procedure for lack of personal jurisdiction and improper venue. The district court granted the defendant’s motion to dismiss for improper venue. The district judge concluded that the forum-selection clause contained in the second' confidentiality agreement was “unambiguous and enforceable,” and demonstrated “[t]he parties’ intent to locate jurisdiction for this action solely in the courts of Munich.” 314 F.3d at 497. On appeal, the plaintiff argued that the clause’s language contained no reference to venue,. contained no language designating the Courts in Munich as exclusive, and contained no -language, indicating that suit elsewhere is impermissible. See 314 F.3d at 497. The Tenth Circuit made the distinction between a venue provision which fixed venue in a certain location — a mandatory clause — versus one which merely granted jurisdiction to a certain place — a permissive clause. The Tenth Circuit set forth an analysis for determining whether forum-selection clauses within a contract are mandatory or permissive: This court and others have “frequently classified” forum selection clauses “as either mandatory or permissive.” Excell Inc. v. Sterling Boiler & Mech., Inc.], 106 F.3d [318,] 321 [(10th Cir. 1997)]. “Mandatory forum selection clauses contain clear language showing that jurisdiction is appropriate only in the designated forum.” Id. (internal quotations omitted). “In contrast, permissive forum selection clauses authorize jurisdiction in a designated forum, but do not prohibit litigation elsewhere.” Id." }, { "docid": "14338969", "title": "", "text": "should not be treated as meaningless. The logical reason for including the forum-selection clause in the Agreement was to make jurisdiction and venue exclusive to Arizona. Any other interpretation would render the clause meaningless. See Sterling, 840 F.2d at 251; Morgan Bank v. Wilson, 794 P.2d at 960-63. To hold that this language means that suit may be brought in Arizona “or elsewhere” would demean the express language of the Agreement. Again, this is consistent with other courts’ holdings. See General Electric v. Siempelkamp, 29 F.3d 1095, 1096 (6th Cir.1994) (holding that the forum-selection clause containing the language “all disputes arising in connection with the contract shall be at the principal place of business of the supplier” was mandatory because the words “all” and “shall” signified that jurisdiction in Germany was exclusive and mandatory); Milk ‘N’ More, Inc. v. Beavert, 963 F.2d 1342, 1343 (10th Cir.1992) (holding that the forum-selection clause containing the phrase “[t]he parties herein have mutually agreed that said lease and the purchase option agreement contained herein, where applicable, shall be governed by the laws of the State of Kansas and the parties further agree that venue shall be proper under this agreement in Johnson County, Kansas” was mandatory because “the word ‘shall’ generally indicates a mandatory intent”); Mercury Coal & Coke, Inc. v. Mannesmann Pipe and Steel Corp., 696 F.2d 315, 316 (4th Cir.1982) (concluding that the forum-selection clause “[a]ny controversy or claim arising out of or relating to this Purchase Order or the breach thereof shall be submitted to the Supreme Court of the State of New York” was mandatory); Keaty v. Freeport Indonesia, Inc., 503 F.2d 955, 956-57 (5th Cir.1974) (per curiam) (holding that a contract provision reading “[t]his agreement shall be construed and enforceable according to the laws of the State of New York and the parties submit to the jurisdiction of the courts of New York” was mandatory). The forum-selection clause in this case is remarkably similar to those clauses noted above. The clause refers to “all suits and special proceedings brought,” and references said suits being brought “pursuant to the laws" }, { "docid": "9462671", "title": "", "text": "Comedy Partners’ underlying position is that it never entered into this agreement, it is in no position to rely on the forum selection clause. Moreover, the clause, by its plain terms, is permissive, not mandatory. It does not provide that New York is the only forum in which claims arising out of the agreement may be heard; it merely establishes that if a claim is brought in New York, neither party will object on the grounds of venue, jurisdiction, or the inconvenience of the forum. See Alleged Agreement ¶28. Here, it cannot fairly be said that Street Players’ motion to dismiss this action falls into one of these categories. In opting for a permissive provision rather than a mandatory one, Comedy Partners (the drafter of the clause) obviously wished to preserve for itself the right to litigate in an alternative forum. It cannot now deny that same right to Street Players. Finally, even if the clause were mandatory and not permissive, it would not dictate the result Comedy Partners desires. As the Supreme Court has noted in the context of motions to transfer venue under Section 1404(a), a mandatory forum selection clause is a “significant factor” in the court’s calculus, but one that is not necessarily disposi-tive. Stewart Org. Inc. v. Ricoh Corp., 487 U.S. 22, 29-31, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988); see also Red Bull Associates v. Best Western Int’l, Inc., 862 F.2d 963, 967 (2d Cir.1988). A district court must also consider such factors as “systemic integrity and fairness.” Stewart Org., 487 U.S. at 30, 108 S.Ct. 2239. Here, the interests of judicial economy and systemic integrity weigh strongly against allowing Comedy Partners to pursue its claims in this Court. Since the California court has refused to stay or dismiss the parallel breach of contract action, allowing the instant suit to go forward would both waste judicial resources and create a risk of inconsistent adjudication. The first-filed rule is centrally concerned with preventing just these problems and it must therefore be applied in this case. For the foregoing reasons, Street Players’ motion is granted and this" } ]

[ { "docid": "13950563", "title": "", "text": "Caggiano, 34 B.R. 449 (Bankr.D.Mass.1983). Similarly, as contingent claims are also debts within the meaning of the Bankruptcy Code, 11 U.S.C. § 101(4), Matter of M. Frenville Co., 744 F.2d 332 (3d Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed.2d 925 (1985), the debtors’ obligations arising from the issuance of prepetition traffic tickets are dischargeable obligations in chapter 13! See, e g., Smith v. Pennsylvania Dept. of Transportation; In re Young. Unless the provisions of subsection 362(b) are applicable, attempts to collect prepetition debts violate the automatic stay. E.g., In re Norton, 717 F.2d 767 (3d Cir.1983); Fidelity Mortg. Investors v. Camelia Builders, Inc., 550 F.2d 47 (2d Cir.1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1107, 51 L.Ed.2d 540 (1977). Decisions interpreting subsections 362(a) and (b) have noted a significant distinction, as emphasized by subsection 362(b)(5), involving governmental creditors. Section 362(b), as a matter of important congressional policy, permits a governmental agency to enforce its health, safety and police powers by obtaining an injunction, declaratory relief and even fines and monetary damages. However, as noted in subsection 362(b)(5), the enforcement, as opposed to the entry, of the fine or other monetary damage is prohibited by the automatic stay. See Ohio v. Kovacs, 469 U.S. 274, 105 S.Ct. 705, 83 L.Ed.2d 649 (1985) (enforcement of monetary obligation to clean up hazardous waste site was enjoined by automatic stay); Brock v. Morysville Body Works, Inc., 829 F.2d 383 (3d Cir.1987) (enforcement of OSHA citation fine enjoined by automatic stay). See also H & H Beverage Distributors v. Department of Revenue, 850 F.2d 165 (3d Cir.), cert. denied, — U.S. -, 109 S.Ct. 560, 102 L.Ed.2d 586 (1988) (Commonwealth may assess tax obligation but not create a tax lien). Compare Penn Terra Ltd. v. Dept. of Environmental Resources, 733 F.2d 267 (3d Cir.1984) (state court order to remove hazardous wastes was not equivalent to enforcement of monetary judgment). As the Third Circuit Court of Appeals explained in Brock: Thus, although the stay does not operate against actions or proceedings by governmental units “attempting to fix damages for violation of" } ]

[ { "docid": "4777354", "title": "", "text": "on this point. The Fifth Circuit believes that violations of the stay are voidable. Sikes v. Global Marine, Inc., 881 F.2d 176 (5th Cir.1989). The First, Second, Third, Sixth, Ninth, Tenth, and Eleventh Circuits believe that violations of the stay are void ab ini-tio. In re Smith Corset Shops, Inc., 696 F.2d 971 (1st Cir.1982); In re 48th Street Steakhouse, Inc., 835 F.2d 427 (2d Cir. 1987), cert. denied 485 U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910 (1988); In re Ward, 837 F.2d 124 (3d Cir.1988); Smith v. First American Bank, N.A., 876 F.2d 524 (6th Cir.1989); In re Taylor, 884 F.2d 478 (9th Cir.1989); contra, In re Brooks, 79 B.R. 479 (9th Cir. BAP 1987); Ellis v. Consolidated Diesel Electric Corp., 894 F.2d 371 (10th Cir.1990); Borg-Warner Acceptance Corp. v. Hall, 685 F.2d 1306 (11th Cir. 1982). The Fourth Circuit has not spoken on the issue. This court previously has stated that violations of the stay are void. In re Miller, 10 B.R. 778 (BC Md.1981), aff'd 22 B.R. 479 (D.Md.1982). Anglemeyer v. United States, 115 B.R. 510 (D.Md. 1990) (restating the proposition). The courts finding violations of the stay to be void often rely on the precedent of Kalb v. Feuerstein; 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940). There, the Court ruling on a state court foreclosure in violation of § 75 of the Bankruptcy Act (former 11 U.S.C. § 203) suggested: from the moment the petition was filed and so long as it remained pending, operated, in the absence of the bankruptcy court’s consent, to oust the jurisdiction of the State court so as to stay its power to proceed with foreclosure, to confirm a sale, and to issue an order ejecting appellants from their farm, the action of the Walworth County Court was not merely erroneous but was beyond its power, void, and subject to collateral attack. Id. at 438, 60 S.Ct. at 346. As a historical note, former Bankruptcy Rules were the immediate progenitors of 11 U.S.C. § 362(a) rather than § 75 of the Act. See 2 Collier on Bankruptcy," }, { "docid": "22332825", "title": "", "text": "with all of the other Pettibone subsidiaries. Reorganized Pettibone is a Delaware corporation with its principal place of business in Illinois. Therefore, diversity of citizenship between plaintiffs, Michigan residents, and reorganized Petti-bone existed upon the commencement of the plaintiffs’ state action and at the time of removal, January 27, 1989, which was within 30 days of the lifting of the stay. Fed.R.Crim.P. 6 (when computing any period of time, the day of the act from which the designated period of time begins to run shall not be included). Having satisfied ourselves of the District Court’s and this Court’s jurisdiction, we address the merits of this interlocutory appeal. III. There is no dispute that the July 1988 state filing violated the automatic stay provisions of 11 U.S.C. § 362(a)(1). A majority of the circuits, including this Circuit, have held that actions taken in violation of the automatic stay are void. See In re Potts, 142 F.2d 883, 888, 890 (6th Cir.1944), cert. denied, 324 U.S. 868, 65 S.Ct. 910, 89 L.Ed. 1423 (1945), but see In re Smith, 876 F.2d 524 (6th Cir.1989). See also, Raymark Industries, Inc. v. Lai, 973 F.2d 1125, 1132 (3d Cir.1992); In re Schwartz, 954 F.2d 569, 574 (9th Cir.1992); In re Calder, 907 F.2d 953, 956 (10th Cir.1990); In re 48th Street Steakhouse, Inc., 835 F.2d 427, 431 (2d Cir.1987), cert. denied, 485 U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910 (1988); Matthews v. Rosene, 739 F.2d 249, 251 (7th Cir.1984); In re Smith Corset Shops, Inc., 696 F.2d 971, 976 (1st Cir.1982); Borg-Warner Acceptance Corp. v. Hall, 685 F.2d 1306, 1308 (11th Cir.1982); 2 L. King, Collier on Bankruptcy § 362.11 (15th ed. 1987) (“actions taken in violation of the stay are void and without effect”). The Fifth Circuit is alone in explicitly holding that actions taken during the pendency of the stay are voidable. Sikes v. Global Marine, 881 F.2d 176, 178 (5th Cir.1989). In our opinion, the only path that will lead us to the correct answer in the void/voidable debate must begin by defining “void” and “voidable.” As should be evident," }, { "docid": "18489121", "title": "", "text": "section 362 stays both the commencement and the continuation of all actions and proceedings, including judicial proceedings, against the debtor, id. § 362(a)(1), as well as the enforcement of a prepetition judgment against the debtor, id. § 362(a)(2), “any act to obtain possession of property from the estate or to exercise control over property of the estate,” id. § 362(a)(3), and any act to collect or recover a prepetition claim against the debtor, id. § 362(a)(6). The automatic stay is designed to effect an immediate freeze of the status quo at the outset of the chapter 11 proceedings, by precluding and nullifying most postpetition actions and proceedings against the debtor in nonbankruptcy fora, judicial or nonjudicial, as well as most extrajudicial acts against the debtor, or affecting property in which the debtor, or the debtor’s estate, has a legal, equitable or possessory interest. The automatic stay is activated immediately on the filing of a voluntary chapter 11 petition under Bankruptcy Code § 301, and remains in effect either until the entry of an order under Bankruptcy Code § 362(c)(2), granting or denying a discharge or closing or dismissing the chapter 11 case, or until the entry of an order granting relief from stay pursuant to Bankruptcy Code § 362(d), (e), (f). Judicial actions and proceedings, as well as extrajudicial acts, in violation of the automatic stay, are generally void and without legal effect, In re Smith Corset Shops, Inc., 696 F.2d 971, 976 (1st Cir.1982); In re Smith, 876 F.2d 524, 526 (6th Cir.1989); In re 48th Street Steakhouse, Inc., 835 F.2d 427, 431 (2d Cir.1987), cert. denied, 485 U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910 (1988); In re Advent Corp., 24 B.R. 612, 614 (B.A.P. 1st Cir.1982); In re Colon, 102 B.R. 421 (Bankr.E.D.Pa.1989), unless countenanced by the court in which the chapter 11 petition is pending, see generally 2 Collier on Bankruptcy if 362.11 (15th ed. 1987) (“actions taken in violation of the stay are void and without effect”). The district court did not consider, and the parties do not discuss on appeal, whether the commencement of" }, { "docid": "14760794", "title": "", "text": "of any remedies provided by law or any other agreement.” Accordingly, the attachment orders were not obtained in violation of the Agreements. 2. Automatic Stay Bidermann also argues that the judgment of the district court should not be given effect because it was docketed after the filing of his Chapter 11 petition and thus was entered in violation of the automatic stay in bankruptcy. Section 362 of the Bankruptcy Code provides that the filing of a bankruptcy petition creates an automatic stay against “the commencement or continuation ... of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the ease.” 11 U.S.C. § 362(a)(1). The stay is effective immediately upon the fifing of the petition, Shimer v. Fugazy (In re Fugazy Express, Inc.), 982 F.2d 769, 776 (2d Cir.1992); Maritime Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1204 (3d Cir.1991), and any proceedings or actions described in section 362(a)(1) are void and without vitality if they occur after the automatic stay takes effect, see 48th St. Steakhouse, Inc. v. Rockefeller Group, Inc. (In re 48th St. Steakhouse, Inc.), 835 F.2d 427, 431 (2d Cir.1987), cert. denied, 485 U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910 (1988). While the commencement or continuation of a judicial action or proceeding clearly is subject to the automatic stay of section 362, we do not believe that the simple and “ministerial” act of the entry of a judgment by the court clerk constitutes the continuation of a judicial proceeding under section 362(a)(1). See Savers Fed. Sav. & Loan Assoc. v. McCarthy Constr. Co. (In re Knightsbridge Dev. Co.), 884 F.2d 145, 148 (4th Cir.1989) (noting that, while court must halt deliberations when bankruptcy intrudes, an arbitration award may be approved “as valid under the [automatic] stay only if the panel decided it in word and deed before [the petition date], leaving for post-petition achievement only the clerical act of recording the award”); Teachers Ins. & Annuity Ass’n v. Butler, 58 B.R. 1019, 1022 (S.D.N.Y.) (rejecting argument that entry of judgment" }, { "docid": "1136435", "title": "", "text": "Bankruptcy Court’s determination that Olson was liable under § 6672 will be affirmed. G. THE ASSESSMENT WAS VOID BECAUSE IT WAS IN VIOLATION OF 11 U.S.C. § 362. However, this Court further finds that the Bankruptcy Court was correct in its subsequent legal conclusion that the assessment under § 6672 was void and without effect because it was made in violation of the automatic stay imposed by 11 U.S.C. § 362. “In general, actions taken in violation of the stay will be void even where there was no actual notice of the existence of the stay.” 2 Collier on Bankruptcy it 362.03 (1991); see also In re 48th Street Steakhouse, Inc., 835 F.2d 427 (2d Cir.1987), cert. denied 485 U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910 (1988) and Morgan Guaranty Trust Co. v. American Savings and Loan Ass’n, 804 F.2d 1487 (9th Cir.1986), cert. denied 482 U.S. 929, 107 S.Ct. 3214, 96 L.Ed.2d 701 (1987). The United States does not deny that the assessment was made while the stay was in effect, nor does it contend it had obtained relief from the stay; instead, it argues for an equitable exception to the general rule. Although “[a]n exception may exist in rare cases on equitable grounds”, 2 Collier on Bankruptcy ¶ 362.-11, n. 3 (1991) (emphasis added), cases in which such an exception is made have generally required a finding of bad faith on the part of the debtors. See, e.g., In re Smith Corset Shops, 696 F.2d 971, 977 (1st Cir.1982) (debtor remained “stealthily silent”) and Matthews v. Rosene, 739 F.2d 249, 251 (7th Cir.1984) (“debtor bears some responsibility for creating the problems” by “unreasonably and inexcusably delaying] asserting his claim”). The United States has not demonstrated any such actions on the part of Olson. Accordingly, the Bankruptcy Court’s finding that the assessment was void ab initio will be affirmed. This Court also rejects the alternative argument that the automatic stay provision of 11 U.S.C. § 362 is inapplicable to the § 6672 assessment. In making this argument the United States contends that the assessment should be considered a" }, { "docid": "11181001", "title": "", "text": "the opposite approach to that followed by the Supreme Court in MCorp. See — U.S. at-& n. 11, 112 S.Ct. at 464 & n. 11. As noted in Gross, the automatic stay is imposed by Congressional mandate and not by court order. 974 F.2d at 407; see also Colonial Realty, 134 B.R. at 1023-24. By its very terms, no action by any court is necessary for the stay to take effect. See § 362(a). The stay is a procedural rule, designed to provide for an orderly bankruptcy proceeding. See In re Adana Mortgage Bankers, Inc., 12 B.R. 1012, 1016-17 (Bankr.N.D.Ga.1981), vacated as moot by stipulation, 687 F.2d 344 (11th Cir.1982). Indeed, so central is the § 362 stay to an orderly bankruptcy process that “ ‘actions taken in violation of the stay are void and without effect.’ ” In re 48th St. Steakhouse, Inc. (48th St. Steakhouse, Inc. v. Rockefeller Group, Inc.), 835 F.2d 427, 431 (2d Cir.1987) (quoting 2 Lawrence P. King, Collier on Bankruptcy § 362.11 (15th ed. 1987)), cert. denied, 485 U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910 (1988); see also In re Smith (Smith v. First Am. Bank, N.A.), 876 F.2d 524, 526 (6th Cir.1989) (even if creditor has no notice of stay, actions taken in violation of stay are generally void). Thus, the injunctive order issued in this case to implement the stay was in a sense superfluous, prompted only by the FDIC’s indication that a specific injunctive order would be required to induce its compliance with the statutory stay. See supra note 10. The stay imposed by § 362(a) is automatically “applicable to all entities” without any need for the intervention of any court or ruling. Rather, the statutory plan requires a court order for relief from the automatically imposed stay. See § 362(d)-(g). We accordingly conclude that the § 1821(j) ban upon “court ... action ... to restrain or affect the exercise of powers or functions of the [FDIC] as a conservator or a receiver [emphasis added]” does not inhibit the operation of the automatic statutory stay imposed by § 362(a). Conclusion" }, { "docid": "8387828", "title": "", "text": "U.S.C. § 362(c). However, on the request of a party in interest, after notice and a hearing, the court “shall” grant relief from the stay “such as by terminating, annulling, modifying, or conditioning such stay”, for cause shown. See 11 U.S.C. § 362(d). Most courts hold that actions taken in violation of the automatic stay are void ab initio. E.g., Ellis v. Consolidated Diesel Electric Corp., 894 F.2d 371 (10th Cir.1990); In re Smith, 876 F.2d 524 (6th Cir.1989); In re Ward, 837 F.2d 124 (3d Cir.1988); In re 48th Street Steakhouse, 835 F.2d 427 (2d Cir.1987), cert. denied sub nom. Rockefeller Group v. 48th Street Steakhouse, 485 U.S. 1035, ,108 S.Ct. 1596, 99 L.Ed.2d 910 (1988); In re Smith Corset Shops, 696 F.2d 971 (1st Cir.1982); Borg-Warner Acceptance Corp. v. Hall, 685 F.2d. 1306 (11th Cir.1982). But see Sikes v. Global Marine, Inc., 881 F.2d 176 (5th Cir.) (action taken in violation of the automatic stay is merely voidable), reh’g denied en banc, 888 F.2d 1388 (5th Cir.1989); Algeran, Inc. v. Advance Ross Corp., 759 F.2d 1421 (9th Cir.1985) (same). In In re Albany Partners, Ltd., 749 F.2d 670 (11th Cir.1984), the court recognized “that acts .taken in violation of the automatic stay are generally deemed void and without effect.” Id. at 675 (citing Kalb v. Feuerstein, 308 U.S. 433, 443, 60 S.Ct. 343, 348, 84 L.Ed. 370 (1940); Borg-Warner Acceptance Corp. v. Hall, 685 F.2d at 1308). Nonetheless, it held that in limited circumstances, § 362(d) permits bankruptcy courts to grant retroactive relief from the stay in order to validate the otherwise void actions taken in violation of the stay. Id. In doing so it found that as used in § 362(d), “the word ‘annulling’ ... evidently contemplates the power of the bankruptcy courts to grant relief from the stay which has retroactive effect; otherwise its inclusion, next to ‘terminating’ would be superfluous.” Id. See also In re Siciliano, 13 F.3d 748, 751 (3d Cir.1994); In re Colder, 907 F.2d 953, 955 (10th Cir.1990); Sikes v. Global Marine, Inc., 881 F.2d at 179; In re Smith Corset Shops," }, { "docid": "14378587", "title": "", "text": "along with all of the other Pettibone subsidiaries. Reorganized Pettibone is a Delaware corporation with its principal place of business in Illinois. Therefore, diversity of citizenship between plaintiffs, Michigan residents, and reorganized Petti-bone existed upon the commencement of the plaintiffs’ state action and at the time of removal, January 27, 1989, which was within 30 days of the lifting of the stay. Fed.R.Crim.P. 6 (when computing any period of time, the day of the act from which the designated period of time begins to run shall not be included). Having satisfied ourselves of the District Court’s and this Court’s jurisdiction, we address the merits of this interlocutory appeal. III. There is no dispute that the July 1988 state filing violated the automatic stay provisions of 11 U.S.C. § 362(a)(1). A majority of the circuits, including this Circuit, have held that actions taken in violation of the automatic stay are void. See In re Potts, 142 F.2d 883, 888, 890 (6th Cir.1944), cert. denied, 324 U.S. 868, 65 S.Ct. 910, 89 L.Ed. 1423 (1945), but see In re Smith, 876 F.2d 524 (6th Cir.1989). See also, Raymark Industries, Inc. v. Lai, 973 F.2d 1125, 1132 (3d Cir.1992); In re Schwartz, 954 F.2d 569, 574 (9th Cir.1992); In re Calder, 907 F.2d 953, 956 (10th Cir.1990); In re 48th Street Steakhouse, Inc., 835 F.2d 427, 431 (2d Cir.1987), cert. denied, 485 U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910 (1988); Matthews v. Rosene, 739 F.2d 249, 251 (7th Cir.1984); In re Smith Corset Shops, Inc., 696 F.2d 971, 976 (1st Cir.1982); Borg-Warner Acceptance Corp. v. Hall, 685 F.2d 1306, 1308 (11th Cir.1982); 2 L. King, Collier on Bankruptcy § 362.11 (15th ed. 1987) (“actions taken in violation of the stay are void and without effect”). The Fifth Circuit is alone in explicitly holding that actions taken during the pendency of the stay are voidable. Sikes v. Global Marine, 881 F.2d 176, 178 (5th Cir.1989). In our opinion, the only path that will lead us to the correct answer in the void/voidable debate must begin by defining “void” and “voidable.” As should be" }, { "docid": "8387827", "title": "", "text": "the second mortgagee whose loan has been in default for several years. Debtor has failed to pay any of those creditors. The undisputed evidence is that the second mortgagee supports debtor’s reorganization and is prepared to agree to refinance its loan. Thus, Landmark is distinguishable and does not support Aloi’s assertion that this ease should be dismissed. Debtor has cash flow and a business to reorganize. If it obtains refinancing, it will be in a position to propose a reorganization plan. There is no evidence that Aloi could block confirmation if a plan were proposed by debt- or. For all these reasons this ease will not be dismissed as a bad faith filing. With irrelevant exceptions, the filing of a case under chapter 11 of the Code operates as a stay, applicable to all entities, of “the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the [chapter 11] case....” 11 U.S.C. § 362(a)(2). The automatic stay extends for the life of the case. See 11 U.S.C. § 362(c). However, on the request of a party in interest, after notice and a hearing, the court “shall” grant relief from the stay “such as by terminating, annulling, modifying, or conditioning such stay”, for cause shown. See 11 U.S.C. § 362(d). Most courts hold that actions taken in violation of the automatic stay are void ab initio. E.g., Ellis v. Consolidated Diesel Electric Corp., 894 F.2d 371 (10th Cir.1990); In re Smith, 876 F.2d 524 (6th Cir.1989); In re Ward, 837 F.2d 124 (3d Cir.1988); In re 48th Street Steakhouse, 835 F.2d 427 (2d Cir.1987), cert. denied sub nom. Rockefeller Group v. 48th Street Steakhouse, 485 U.S. 1035, ,108 S.Ct. 1596, 99 L.Ed.2d 910 (1988); In re Smith Corset Shops, 696 F.2d 971 (1st Cir.1982); Borg-Warner Acceptance Corp. v. Hall, 685 F.2d. 1306 (11th Cir.1982). But see Sikes v. Global Marine, Inc., 881 F.2d 176 (5th Cir.) (action taken in violation of the automatic stay is merely voidable), reh’g denied en banc, 888 F.2d 1388 (5th Cir.1989); Algeran, Inc. v. Advance Ross Corp.," }, { "docid": "16682710", "title": "", "text": "11 U.S.C. §§ 362(a)(1) and (a)(6). Furthermore, the lien did not arise by operation of law upon termination of the plans. Even tax liens are subject to the automatic stay and may not arise post-petition by operation of law. See, In re Parr Meadows Racing, Assoc., 880 F.2d 1540, 1545-46 (2nd Cir.1989). Indeed, the creation of, and any attempt to record or perfect, such a lien would have been void ab initio. See e.g., In re 48th Street Steakhouse, Inc., 835 F.2d 427, 431 (2d Cir.1987), cert. denied, 485 U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910 (1989) (“Judge Brozman correctly held that Landlord’s termination notice violated the automatic stay ... and was therefore void.”); In re Smith, 876 F.2d 524, 526 (6th Cir.1989); Morgan Guaranty Trust Co. of New York v. Am. Savings & Loan Assoc., 804 F.2d 1487, 1490 (9th Cir.1986), cert. denied, 482 U.S. 929, 107 S.Ct. 3214, 96 L.Ed.2d 701 (1987); In re Funket, 27 B.R. 640 (Bankr.M.D.Pa.1982) (creation of lien post-petition prohibited by § 362 of the Code, and any attempt to create a lien violated the stay and was a nullity); 2 Collier On Bankruptcy, § 362.11 (15th ed. 1987) (“actions taken in violation of the stay are void and without effect”). Contra, Sikes v. Global Marine, Inc., 881 F.2d 176, 178 (5th Cir.1989) (“We are persuaded that the better reasoned rule characterizes acts taken in violation of the automatic stay as voidable rather than void.”); see also, In re Albany Partners, Ltd., 749 F.2d 670, 675 (11th Cir.1984); In re Smith Corset Shops, Inc., 696 F.2d 971, 976 (1st Cir.1982); In re Matthews, 739 F.2d 249, 252 (7th Cir.1984). In fact, the PBGC had conceded that “no lien enforceable as a secured claim can arise post-petition without court approval.” Address by Gary Ford, PBGC General Counsel, On Employee Benefits in Bankruptcy, Delivered to ABA Section of Corporation, Banking, and Business Law (Mar. 23, 1987), 14 Pens.Rep. (BNA) 393, 394 (1987) (emphasis in original). However, the PBGC incorrectly continued by stating that, “[t]he unperfected lien arises as a matter of law with demand and" }, { "docid": "17686376", "title": "", "text": "791 (Bankr.D.Del.1982) (“It is clear that Congress intended a financially troubled debtor to be able to reorganize after there has been a default and acceleration even in the face of state law which requires the consent of the creditor for cure and reinstatement once the entire amount has become due.”) See point I B, below. As noted in Collier on Bankruptcy: In reorganization cases, the stay is particularly important in maintaining the status quo and permitting the debtor in possession or trustee to attempt to formulate a plan of reorganization. Without the stay, the debtor’s assets might well be dismembered, and its business destroyed, before the debtor has an opportunity to put forward a plan for future operations. Secured creditors and judgment creditors might race to seize and sell the debtor’s assets in order to obtain satisfaction of their claims, without regard to the interests of other creditors or the value of keeping assets together in an operating business. The stay prevents this piecemeal liquidation, offering the chance to maximize the value of the business. 3 Collier on Bankruptcy ¶ 362.03[2] at pp. 362-15 (15th Ed. rev.1999). The courts in this Circuit hold that any action taken in violation of the automatic stay is void and without force or effect. 48th Street Steakhouse, Inc. v. Rockefeller Group, Inc. (In re 48th Street Steakhouse, Inc.), 835 F.2d 427, 431 (2d Cir.1987) (“actions taken in violation of the stay are void and without effect” (quoting Collier on Bankruptcy)), cert. denied, 485 U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910 (1988). See also Shimer v. Fugazy Express, Inc. (In re Fugazy Express, Inc.), 114 B.R. 865, 873 (Bankr.S.D.N.Y.1990) (“[s]ince § 362 of the Code stays all enforcement activity automatically, the 1988 FCC letter [purportedly canceling the license] is accordingly without effect” (citing In re Garnett, 47 B.R. 170, 171 (Bankr.E.D.N.Y.1985) (“[t]he action of a party in violation of the stay without court approval is void and without effect”))), aff'd, 124 B.R. 426 (S.D.N.Y.1991). The automatic stay is embodied in 11 U.S.C. § 362(a). Section 362(a) provides as follows, in relevant part: (a) Except" }, { "docid": "18489122", "title": "", "text": "Bankruptcy Code § 362(c)(2), granting or denying a discharge or closing or dismissing the chapter 11 case, or until the entry of an order granting relief from stay pursuant to Bankruptcy Code § 362(d), (e), (f). Judicial actions and proceedings, as well as extrajudicial acts, in violation of the automatic stay, are generally void and without legal effect, In re Smith Corset Shops, Inc., 696 F.2d 971, 976 (1st Cir.1982); In re Smith, 876 F.2d 524, 526 (6th Cir.1989); In re 48th Street Steakhouse, Inc., 835 F.2d 427, 431 (2d Cir.1987), cert. denied, 485 U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910 (1988); In re Advent Corp., 24 B.R. 612, 614 (B.A.P. 1st Cir.1982); In re Colon, 102 B.R. 421 (Bankr.E.D.Pa.1989), unless countenanced by the court in which the chapter 11 petition is pending, see generally 2 Collier on Bankruptcy if 362.11 (15th ed. 1987) (“actions taken in violation of the stay are void and without effect”). The district court did not consider, and the parties do not discuss on appeal, whether the commencement of the HTI chapter 11 proceedings on December 15, 1989, more than a month prior to the entry of the district court orders challenged on appeal, operated as an automatic stay of the ICC action against HTI in the district court, pursuant to Bankruptcy Code § 362(a)(1) & (b)(4), or as a stay of the contempt proceedings by virtue of Bankruptcy Code § 362(a)(2), (3) or (6). As the record on appeal does not enable a determination of the predicate facts and we are without the benefit of any articulation of the parties’ positions relating to the legal effect of the HTI chapter 11 proceedings upon these district court orders, we remand to permit the district court to determine in the first instance whether the ICC action against HTI, or any act by ICC relating to HTI or to the private escrow, was subject to the automatic stay under Bankruptcy Code § 362(a)(1), (2), (3), (6) and (b)(4), (5). In the event it is determined that the ICC action against HTI in district court, or any" }, { "docid": "16682709", "title": "", "text": "instant cases, because here, resolution of the issue turns on § 507(a)(7) of the Code. B. Whether Bankruptcy Code § 362 automatically stays the post-petition creation of lien. Section 362(a)(4) of the Code stays “any act to create, perfect, or enforce any lien against property of the estate.” 11 U.S.C. § 362(a)(4). This section prevents the creation of a post-petition lien. See, In re North Side Lumber Co., 59 B.R. 917 (Bankr.D.Or.1986), aff'd, 83 B.R. 735 (9th Cir.B.A.P.1987), and aff'd, 865 F.2d 264 (9th Cir.1988); In re Cummings Mkt., Inc., 53 B.R. 224 (Bankr.D.Vt.1985); In re New England Carpet Co., 26 B.R. 934 (Bankr.D.Vt.1983). It is clear that the PBGC’s claims never ripened into liens. Before a claim can give rise to a lien under ERISA Section 4068(a), there must be a failure or refusal by the debtor to pay after a demand has been made. 29 U.S.C. § 1368(a). Here, the automatic stay of the Code prevented the PBGC from making a demand and it was therefore impossible for a lien to arise. See, 11 U.S.C. §§ 362(a)(1) and (a)(6). Furthermore, the lien did not arise by operation of law upon termination of the plans. Even tax liens are subject to the automatic stay and may not arise post-petition by operation of law. See, In re Parr Meadows Racing, Assoc., 880 F.2d 1540, 1545-46 (2nd Cir.1989). Indeed, the creation of, and any attempt to record or perfect, such a lien would have been void ab initio. See e.g., In re 48th Street Steakhouse, Inc., 835 F.2d 427, 431 (2d Cir.1987), cert. denied, 485 U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910 (1989) (“Judge Brozman correctly held that Landlord’s termination notice violated the automatic stay ... and was therefore void.”); In re Smith, 876 F.2d 524, 526 (6th Cir.1989); Morgan Guaranty Trust Co. of New York v. Am. Savings & Loan Assoc., 804 F.2d 1487, 1490 (9th Cir.1986), cert. denied, 482 U.S. 929, 107 S.Ct. 3214, 96 L.Ed.2d 701 (1987); In re Funket, 27 B.R. 640 (Bankr.M.D.Pa.1982) (creation of lien post-petition prohibited by § 362 of the Code, and any" }, { "docid": "17686377", "title": "", "text": "3 Collier on Bankruptcy ¶ 362.03[2] at pp. 362-15 (15th Ed. rev.1999). The courts in this Circuit hold that any action taken in violation of the automatic stay is void and without force or effect. 48th Street Steakhouse, Inc. v. Rockefeller Group, Inc. (In re 48th Street Steakhouse, Inc.), 835 F.2d 427, 431 (2d Cir.1987) (“actions taken in violation of the stay are void and without effect” (quoting Collier on Bankruptcy)), cert. denied, 485 U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910 (1988). See also Shimer v. Fugazy Express, Inc. (In re Fugazy Express, Inc.), 114 B.R. 865, 873 (Bankr.S.D.N.Y.1990) (“[s]ince § 362 of the Code stays all enforcement activity automatically, the 1988 FCC letter [purportedly canceling the license] is accordingly without effect” (citing In re Garnett, 47 B.R. 170, 171 (Bankr.E.D.N.Y.1985) (“[t]he action of a party in violation of the stay without court approval is void and without effect”))), aff'd, 124 B.R. 426 (S.D.N.Y.1991). The automatic stay is embodied in 11 U.S.C. § 362(a). Section 362(a) provides as follows, in relevant part: (a) Except as provided in subsection (b) of this section, a petition filed under section 301 ... of this title ... operates as a stay, applicable to all entities, of— (1) the commencement or continuation ... of a[n] ... administrative, or other action or proceeding against the debtor ... to recover a claim against the debtor that arose before the commencement of the case under this title; (3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate; (4) any act to ... enforce any lien against property of the estate; (5) any act to ... enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title; (6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title. All of the quoted subsections of Section 362(a) are implicated by the FCC’s issuance" }, { "docid": "18545547", "title": "", "text": "the landlord obtains relief from the automatic stay.”); Schewe v. Fair-view Estates (In re Schewe), 94 B.R. 938 (Bankr.W.D.Mich.1989) (same). Finally, much time and energy by the parties has been spent arguing whether or not this contract is executory, and if it is, whether § 365(e)(1) should apply. Because of the court’s holding on the automatic stay, which applies whether or not the contract is execu-tory, In re Pester Refining, 58 B.R. at 191, this issue has become moot. It is therefore clear, that Thomas-ville’s actions in attempting to cancel its contract with Elder-Beerman were in violation of the automatic stay. The treatment of violations of the stay has varied within the Circuits. The Bankruptcy Code does not state whether such acts are to be treated as void or voidable. Until recently each of the Circuits but one that had considered the void/voidable question had concluded that actions taken in violation of the automatic stay are void. See In re Smith Corset Shops, Inc., 696 F.2d 971, 976 (1st Cir.1982); In re 48th Street Steakhouse, Inc., 835 F.2d 427, 431 (2d Cir.1987), cert. denied, 485 U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910 (1988); Raymark Indus., Inc. v. Lai, 973 F.2d 1125, 1132 (3d Cir.1992); N.L.R.B. v. Edward Cooper Painting, Inc., 804 F.2d 934, 940 (6th Cir.1986); Matthews v. Rosene, 739 F.2d 249, 251 (7th Cir.1984); In re Schwartz, 954 F.2d 569, 574 (9th Cir.1992); In re Colder, 907 F.2d 953, 956 (10th Cir.1990); Borg-Wamer Acceptance Corp. v. Hall, 685 F.2d 1306, 1308 (11th Cir.1982); Bronson v. U.S., 46 F.3d 1573, 1579 (Fed.Cir.1995). But see Picco v. Global Marine Drilling Co., 900 F.2d 846 (5th Cir.1990) (“[A]etions taken in violation of an automatic stay are not void.”). The Sixth Circuit, however, has recently reversed its position, holding that actions taken in violation of the automatic stay are not void, but voidable. Easley v. Pettibone Michigan Corp., 990 F.2d 905, 909-11 (6th Cir.1993). Implicit in the Sixth Circuit’s reasoning is that as void acts are incapable of cure, the power to cure past violations by annulling under § 362(d) precludes these" }, { "docid": "11771906", "title": "", "text": "business without court approval. See, 11 U.S.C. § 363. The Consent Order signed by this Court on September 10, 1987, declared that the post-petition transfer of the License violated the automatic stay and was void ab initio. In re 48th Street Steakhouse, Inc., 835 F.2d 427, 431 (2nd Cir.1987), cert. denied, 485 U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910 (1989) (“Judge Brozman correctly held that Landlords termination notice violated the automatic stay ... and was therefore void.”); In re Smith, 876 F.2d 524, 526 (6th Cir.1989); Morgan Guaranty Trust Company of New York v. American Savings and Loan Association, 804 F.2d 1487, 1490 (9th Cir.1986) cert. denied, 482 U.S. 929, 107 S.Ct. 3214, 96 L.Ed.2d 701 (1989). Contra, Sikes v. Global Marine, Inc., 881 F.2d 176, 178 (5th Cir.1989) (“We are persuaded that the better reasoned rule characterizes acts taken in violation of the automatic stay as voidable rather than void.”); see, In re Albany Partners Ltd., 749 F.2d 670, 675 (11th Cir. 1984); In re Smith Corset Shops, Inc., 696 F.2d 971, 976 (1st Cir.1982); In re Matthews, 739 F.2d 249, 251 (7th Cir.1984). The undisputed liability of the transferor, William Fugazy, for the improper transfer of the License is thus a settled matter of the law of this case. Further, § 549(a) of the Code clearly states that post-petition transfers of property of the estate are voidable by the trustee. This Court must therefore also determine the liability of Limousine and Roy Fugazy for the receipt and continued unauthorized use of the license. When they received the License, Roy Fugazy, on behalf of himself and Limousine, knew that the Debtor was involved in bankruptcy proceedings and was subject to the requirements of the Code. At the time the Debtor filed its petition, Roy Fugazy was the Vice President of Marketing, although he was dismissed shortly after the filing. He thus knowingly received and used the License and was possessed of full knowledge of the limitations imposed by the bankruptcy filing. V. DAMAGES At the time of the court-ordered sale of the License by the Trustee to plaintiff" }, { "docid": "1798935", "title": "", "text": "judicial acts in violation of the automatic stay are void, are these: In re Advent Corp., 24 B.R. 612 (1st Cir.Bankr.1982); In re 48th Street Steakhouse, Inc., 835 F.2d 427, 431 (2d Cir.), cert. denied, 485 U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910 (1987); In re Smith, 876 F.2d 524, 526 (6th Cir.1989); In re Shamblin, 890 F.2d 123, 125 (9th Cir.1989); Ellis, 894 F.2d at 372; In re Albany Partners, Ltd., 749 F.2d 670, 675 (11th Cir.1984); In re Joyce Purnell, 92 B.R. 625 (Bankr.E.D.Pa.1988); In re Clark, 69 B.R. 885, 891, vacated in part on other grounds, 71 B.R. 747 (Bankr.E.D.Pa.1987); In re A.I.A. Industries, Inc., 75 B.R. 1013, 1021 n. 5 (Bankr.E.D.Pa.1987); In re Fasgo, Inc., 58 B.R. 99, 100 (Bankr.E.D.Pa.1986); In re Marta Group, Inc., 33 B.R. 634, 639 (Bankr.E.D.Pa.1983). .The courts concluding that acts violating the stay are voidable rather than void rely on section 362(d) of the Bankruptcy Code which permits retroactive annulment of the stay, see Píc-eo, 900 F.2d at 850, and on other provisions of the Code which have been used to cure acts purportedly void under the automatic stay. See generally In re Schwartz, 119 B.R. at 209. These courts maintain that a violation of the stay \"can be declared invalid in an appropriate proceeding but are capable of being cured by confirmation or ratification or if no proceeding is brought to avoid the voidable act.” Id. at 209. We need not decide here whether a bankruptcy court may exercise its equitable powers to retroactively rehabilitate judicial acts and proceedings which would otherwise be void ab initio as violations of the automatic stay. Here, the bankruptcy court never granted prospective or retroactive relief from the automatic stay. . A suit for damages pending against a debtor in a non-bankruptcy court when the debtor files his petition, becomes a \"claim\" for bankruptcy purposes and may be liquidated by the bankruptcy court in a core proceeding without any final determination of the action by the non-bankruptcy court. See In re Meyertech Corp., 831 F.2d 410, 417-18 (3d Cir.1987). . All of MNY’s" }, { "docid": "11771905", "title": "", "text": "grant to Limousine on a presumed lapse of use. While this determination may now be binding upon the parties, it is irrelevant to this Court’s assessment of rights, liabilities, and damages left in the wake of the original illegal and defective transaction. IV. THE POSTPETITION TRANSFER OF THE LICENSE WAS IMPROPER Section 549(a) of the Bankruptcy Code provides: (a) Except as provided in subsections (b) or (c) of this section, the trustee may avoid a transfer of property of the estate- (1) made after the commencement of the case; and (2)(A) that is authorized only under section 303(f) or 542(c) of this title; or (B) that is not authorized under this title or by the court. This Court has already found that William Fugazy’s conduct represented a clear violation of Code § 549(a)(2)(B). The Consent Order dated September 10, 1987 was dispositive of William Fugazy’s liability to Metromedia for improperly transferring the License during the bankruptcy proceeding. Once the bankruptcy petition is filed, a debtor may not transfer assets out of the ordinary course of business without court approval. See, 11 U.S.C. § 363. The Consent Order signed by this Court on September 10, 1987, declared that the post-petition transfer of the License violated the automatic stay and was void ab initio. In re 48th Street Steakhouse, Inc., 835 F.2d 427, 431 (2nd Cir.1987), cert. denied, 485 U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910 (1989) (“Judge Brozman correctly held that Landlords termination notice violated the automatic stay ... and was therefore void.”); In re Smith, 876 F.2d 524, 526 (6th Cir.1989); Morgan Guaranty Trust Company of New York v. American Savings and Loan Association, 804 F.2d 1487, 1490 (9th Cir.1986) cert. denied, 482 U.S. 929, 107 S.Ct. 3214, 96 L.Ed.2d 701 (1989). Contra, Sikes v. Global Marine, Inc., 881 F.2d 176, 178 (5th Cir.1989) (“We are persuaded that the better reasoned rule characterizes acts taken in violation of the automatic stay as voidable rather than void.”); see, In re Albany Partners Ltd., 749 F.2d 670, 675 (11th Cir. 1984); In re Smith Corset Shops, Inc., 696 F.2d 971, 976" }, { "docid": "10095481", "title": "", "text": "In re Schwartz, 954 F.2d 569, 571 (9th Cir.1992); Job v. Calder (In re Calder), 907 F.2d 953, 956 (10th Cir.1990) (per curiam); 48th St. Steakhouse, Inc. v. Rockefeller Group, Inc. (In re 48th St. Steakhouse, Inc.), 835 F.2d 427, 431 (2d Cir.1987), cert. denied, 485 U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910 (1988); Albany Partners Ltd. v. Westbrook (In re Albany Partners, Ltd.), 749 F.2d 670, 675 (11th Cir.1984). Our earlier opinions — which we today reaffirm — align us with the majority view. See Holmes Transp., 931 F.2d at 987-88; Smith Corset Shops, 696 F.2d at 976. This semantic difference has practical consequences because the characterization of-an infringing action as “void” or “voidable” influences the burden of going forward. Treating an action taken in contravention of the automatic stay as void places the burden of validating the action after the fact squarely on the shoulders of the offending creditor. In contrast, treating an action taken in contravention of the automatic stay as voidable places the burden of challenging the action on the offended debtor. We think that the former paradigm, rather than the latter, best harmonizes with the nature of the automatic stay and the important purposes that it serves. See generally 3 Collier on Bankruptcy, supra, ¶ 362.11[1] & n. 1 (observing that most courts hold violations void and terming this the better view). 2. The Availability of Retroactive Relief. While the automatic stay is significant, it is not an immutable article of faith. Indeed, the Bankruptcy Code, 11 U.S.C. § 362(d), expressly authorizes courts to lift it in particular situations. Whether this statutory authorization encompasses retroactive relief is not entirely clear. We previously hinted that a court may set aside the automatic stay retroactively in an appropriate case. See Smith Corset Shops, 696 F.2d at 976-77. We now confirm Smith’s adumbration, holding that 11 U.S.C. § 362(d) permits bankruptcy courts to lift the automatic stay retroactively and thereby validate actions which otherwise would be void. Section 362(d) confers upon courts discretionary power in certain circumstances to terminate, annul, modify, or place conditions upon the automatic" }, { "docid": "1798934", "title": "", "text": "letter to the district court indicating that he had filed a voluntary petition for bankruptcy on May 18, 1990. Father and MNY complained about these last two letters in their Rule 60(b)(3) and (6) motions. See generally App. 261-267. .Section 455(a) (1991) provides: Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might be reasonably be questioned. . Section 362(d), 11 U.S.C., provides more fully, in part: \"On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection fa) of this section, such as by terminating, annulling, modifying, or conditioning such stay— “(1) for cause_” . Chapter 13 of the Bankruptcy Code does contain provision for a stay of proceedings against non-debtors who are jointly liable with a debtor on a consumer debt, or secured a debtor’s consumer debt. However, that provision does not apply in this case. See 11 U.S.C. § 1301 (1991). . Other cases among the many holding that judicial acts in violation of the automatic stay are void, are these: In re Advent Corp., 24 B.R. 612 (1st Cir.Bankr.1982); In re 48th Street Steakhouse, Inc., 835 F.2d 427, 431 (2d Cir.), cert. denied, 485 U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910 (1987); In re Smith, 876 F.2d 524, 526 (6th Cir.1989); In re Shamblin, 890 F.2d 123, 125 (9th Cir.1989); Ellis, 894 F.2d at 372; In re Albany Partners, Ltd., 749 F.2d 670, 675 (11th Cir.1984); In re Joyce Purnell, 92 B.R. 625 (Bankr.E.D.Pa.1988); In re Clark, 69 B.R. 885, 891, vacated in part on other grounds, 71 B.R. 747 (Bankr.E.D.Pa.1987); In re A.I.A. Industries, Inc., 75 B.R. 1013, 1021 n. 5 (Bankr.E.D.Pa.1987); In re Fasgo, Inc., 58 B.R. 99, 100 (Bankr.E.D.Pa.1986); In re Marta Group, Inc., 33 B.R. 634, 639 (Bankr.E.D.Pa.1983). .The courts concluding that acts violating the stay are voidable rather than void rely on section 362(d) of the Bankruptcy Code which permits retroactive annulment of the stay, see Píc-eo, 900 F.2d at 850, and on other provisions of the" } ]

[ { "docid": "22549257", "title": "", "text": "plan with proposed historic landmarks and districts. Under the ordinance, the commission must preapprove construction affecting historic landmarks or buildings in a historic district. Soon afterwards, the Archbishop applied for a building permit so construction to enlarge the church could proceed. City authorities, relying on the ordinance and the designation of a historic district (which, they argued, included the church), denied the application. The Archbishop brought this suit challenging the permit denial in the United States District Court for the Western District of Texas. 877 F. Supp. 355 (1995). The complaint contained various claims, but to this point the litigation has centered on RFRA and the question of its constitutionality. The Archbishop relied upon RFRA as one basis for relief from the refusal to issue the permit. The District Court concluded that by enacting RFRA Congress exceeded the scope of its enforcement power under § 5 of the Fourteenth Amendment. The court certified its order for interlocutory appeal and the Fifth Circuit reversed, finding RFRA to be constitutional. 73 F. 3d 1352 (1996). We granted certiorari, 519 U. S. 926 (1996), and now reverse. II Congress enacted RFRA in direct response to the Court s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). There we considered a Free Exercise Clause claim brought by members of the Native American Church who were denied unemployment benefits when they lost their jobs because they had used peyote. Their practice was to ingest peyote for sacramental purposes, and they challenged an Oregon statute of general applicability which made use of the drug criminal. In evaluating the claim, we declined to apply the balancing test set forth in Sherbert v. Verner, 374 U. S. 398 (1963), under which we would have asked whether Oregon’s prohibition substantially burdened a religious practice and, if it did, whether the burden was justified by a compelling government interest. We stated: “[Gjovernment’s ability to enforce generally applicable prohibitions of socially harmful conduct . . . cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development." } ]

[ { "docid": "19999867", "title": "", "text": "seq., as exceeding Congress’s authority under § 5 of the Fourteenth Amendment to enforce the limits on state power imposed by § 1 of the Amendment. 521 U.S. 507, 532-36, 117 S.Ct. 2157,138 L.Ed.2d 624 (1997); see also Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 897-98 (7th Cir.2005). RFRA, in turn, had been adopted in response to the Supreme Court’s decision in Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), which altered the prevailing strict-scrutiny standard of Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), applicable to laws that substantially burden the First Amendment right to the free exercise of religion. See City of Boerne, 521 U.S. at 512, 117 S.Ct. 2157 (“Congress enacted RFRA in direct response to the Court’s decision in Employment Div., Dept. of Human Resources of Oregon v. Smith.” (citation omitted)). Smith held that facially neutral and generally applicable laws that burden free-exercise rights need not satisfy a heightened standard of review — neither the compelling-interest standard of Sherbert nor any more rigorous form of review than the test for basic rationality that is applicable to all laws. 494 U.S. at 878-79, 110 S.Ct. 1595. Three years later, the Court clarified that “[f]acial neutrality [alone] is not determinative .... Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). Without retreating from Smith, the Court held in Lukumi that a facially neutral, generally applicable law is subject to strict scrutiny if it amounts to a “religious gerrymander” or is enforced in a way that discriminates against religion or targets a particular religious group or practice for discriminatory treatment. Id. at 535-47, 113 S.Ct. 2217; see also Bloch v. Frischholz, 587 F.3d 771, 785-87 (7th Cir.2009) (en banc). Of course it remains true that “the minimum requirement of [free-exercise] neutrality is that a law" }, { "docid": "5619859", "title": "", "text": "a request for injunctive relief. The magistrate judge construed this as a Motion to Alter or Amend the Judgement under Fed.R.Civ.P. Rule 59 and denied his request. Plaintiff appeals. DISCUSSION The magistrate judge dismissed Moore’s claims as frivolous under 28 U.S.CA. § 1915(e)(2)(B)(I) & (ii) (West Supp.Í999). “The Prison Litigation Reform Act (PRLA) amended § 1915 to require the district court to dismiss a prisoner’s in forma pauperis (IFP) civil rights suit if the court determines that the action is frivolous or malicious or does not state a claim upon which relief may be granted.” Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.1998). We review dismissal under § 1915 de novo, applying the same standard used to review a dismissal pursuant to Fed.R.Civ.P. Rule 12(b)(6). See id. In determining whether dismissal was proper, we must assume that all of the plaintiffs factual allegations are true. See Ashe v. Corley, 992 F.2d 540, 544 (5th Cir.1993). We may uphold the magistrate judge’s dismissal of Moore’s claims “only if it appears that no relief could be granted under any set of facts that could be proven consistent with the allegations.” McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158, 160 (5th Cir.1995). The magistrate judge relied on Collins v. Scott, 961 F.Supp. 1009, 1016 (E.D.Tex.1997), holding that Moore’s First Amendment claim was frivolous. Collins was decided under the standard outlined in the RFRA. The district court ruled one day after the Supreme Court held in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) that RFRA was unconstitutional as to the states. As a result, we remand Moore’s First Amendment claim to the magistrate judge for review under the standard set forth in Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990)(holding that neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest). The magistrate judge dismissed Moore’s Fourth Amendment claim holding that the Defendants were entitled to qualified immunity because the constitutionality" }, { "docid": "18381616", "title": "", "text": "in any federal civil action absent a showing of physical injury. Id. at 375. We review a dismissal under § 1997e de novo. Id. at 373. To determine whether the district court’s dismissal was proper we assume that all of Hutchins’s allegations are true. Moore v. Carwell, 168 F.3d 234, 236 (5th Cir.1999). III A Hutchins first claims that the district judge erred in dismissing his complaint as frivolous and for failure to state a claim under 28 U.S.C. § 1915A(b). A dismissal for failure to state a claim will be affirmed only if it appears that no relief could be granted under any set of facts that might be proved consistent with the complaint’s allegations. McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158, 160 (5th Cir.1995). A complaint is frivolous if it lacks an arguable basis in law or fact. Black v. Warren, 134 F.3d 732, 734 (5th Cir.1998). “A complaint lacks an ar guable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.” Geiger, 404 F.3d at 373 (citations omitted). Hutchins alleges that McDaniels violated his Fourth Amendment right to be free from unreasonable searches. “A prisoner’s rights are diminished by the needs and exigencies of the institution in which he is incarcerated. He thus loses those rights that are necessarily sacrificed to legitimate penological needs.” Moore, 168 F.3d. at 236-37 (citations omitted). However, we have recognized that the Fourth Amendment protects prisoners from searches and seizures that go beyond legitimate penological interests. See id. Searches of prisoners must be conducted in a manner that is reasonable under the facts and circumstances in which they are performed. Id. at 237. The test for a Fourth Amendment violation requires the balancing of the need for the particular search and the invasion of rights that are a result of the search. Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Moore, 168 F.3d at 237. In dismissing based on § 1915A," }, { "docid": "5619856", "title": "", "text": "DUHÉ, Circuit Judge: Jimmy Ray Moore (“Moore”), an inmate of the Texas Department of Criminal Justice, filed this civil rights lawsuit in forma pauper-is under 42 U.S.C.A. § 1983 (West Supp. 1999) against prison officials alleging that multiple strip and body cavity searches performed by a female officer violated his First Amendment right to free exercise of religion, Fourth Amendment right to be free from unreasonable searches and seizures, and his Eighth Anendment right to be free from cruel and unusual punishment. After a United States Magistrate Judge held an evidentiary hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir.1985), overruled on other grounds, Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 104 L.Ed.2d 338, (1989), she dismissed Moore’s case as frivolous on the following grounds: (1) Moore failed to show the searches were a substantial burden upon his exercise of free religion; (2) Moore failed to show that his objection to a female performing the searches was a central tenet of his religion; (3) the searches served the compelling state interest of ensuring security within the state prison and were the least restrictive means of furthering that interest; and (4) the law at the time of the searches clearly established that the search was constitutionally permissible, entitling the Defendants to qualified immunity. The magistrate judge treated Moore’s pre-order Motion to Amend his complaint by adding a request for injunc-tive relief as a Request to Alter or Amend the Judgment under Fed. R. Civ. Pro. 59. The magistrate judge rejected his request, and the Plaintiff appeals. We hold that Moore’s Fourth Amendment claim is not frivolous; that the Fourth Amendment, rather than the Eighth Amendment, applies to this type of prisoner search; and that the magistrate judge decided Moore’s First Amendment claim under the now defunct Religious Freedom and Restoration Act (RFRA) standard. Therefore, we affirm the dismissal of Moore’s Eighth Amendment claim and reverse and remand to the magistrate judge for further proceedings on Moore’s remaining claims. BACKGROUND In 1996, Moore alleges that Barbara Car-well, a prison officer, subjected Moore to strip and body cavity" }, { "docid": "1142518", "title": "", "text": "hair (count II); and (iii) denying him access to his religious counselor (count III). Plaintiff also requested a temporary restraining order to enjoin such conduct by prison officials pursuant to Federal Rule of Civil Procedure 65(b). On January 5, 1994, Magistrate Judge Francis I. Yamashita filed Findings and Recommendations (F & R I) recommending that the district court dismiss counts I and II. Magistrate Yamashita granted Belgard leave to proceed in forma pauperis as to count III. On January 16, 1994, plaintiff filed objections to F & R I on the basis that Magistrate Yamashita ignored the newly-passed Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb, et seq. (RFRA). The RFRA “is of historical and legal significance because it reinstates the ‘compelling state interest’ standard to free exercise of religion claims previously eviscerated by the Supreme Court’s decision in Employment Division, Dept, of Human Resources of Oregon v. Smith, 494 U.S. 872 [110 S.Ct. 1595, 108 L.Ed.2d 876] (1990).” Campos v. Coughlin, 854 F.Supp. 194, 204 (S.D.N.Y.1994). In an order filed March 3, 1994, federal district judge David A. Ezra declined to adopt F & R I and remanded for further evidentiary hearing “[i]n view of the heightened level of scrutiny afforded under the [RFRA].” On November 29, 1994, Magistrate Yama-shita issued a second Findings and Recommendation (F & R II). In F & R II, Magistrate Yamashita recommended that Belgard’s motion for a temporary restraining order be denied because (i) Hawaii submitted a memorandum dated November 26, 1993 indicating that Belgard would be exempted from prison hair length regulations pending resolution of his legal claims; (ii) Belgard had been given access to religious counselors; and (iii) Defendants had replaced religious articles destroyed during Belgard’s transfer to HCF and permitted him to use and store them in the inmate chapel. On this basis, Magistrate Yamashita found that “the threat of injury is not so immediate and irreparable as to require injunctive relief.” F & R II at 6. Magistrate Yamashita declined to consider a challenge to the constitutionality of RFRA raised in Hawaii’s Memorandum in Opposition to Plaintiff’s" }, { "docid": "5619858", "title": "", "text": "searches in the presence and under the direction of prison offi cers Dwayne Dewberry, Jeffery Richardson and James Carve. Moore asserts that there were no emergency circumstances justifying the searches and that male guards were available to conduct the searches. He argues that the sole purpose of the searches was to harass and intimidate him. Moore contends that the searches violated his First Amendment right to free exercise of religion because he is a Baptist. He argues that the Baptist faith requires modesty and prohibits him from being viewed naked by a female other than his wife. Moore also argues that the searches violated his limited Fourth Amendment right as a prisoner to be free from unreasonable searches and seizures and that the magistrate erred by failing to weigh his expectation of privacy against the government’s interests. Finally, Moore asserts that the searches constituted cruel and unusual punishment in violation of the Eighth Amendment. Before the magistrate judge’s ruling, Moore filed a Request To Amend his complaint adding two Defendants to the lawsuit and adding a request for injunctive relief. The magistrate judge construed this as a Motion to Alter or Amend the Judgement under Fed.R.Civ.P. Rule 59 and denied his request. Plaintiff appeals. DISCUSSION The magistrate judge dismissed Moore’s claims as frivolous under 28 U.S.CA. § 1915(e)(2)(B)(I) & (ii) (West Supp.Í999). “The Prison Litigation Reform Act (PRLA) amended § 1915 to require the district court to dismiss a prisoner’s in forma pauperis (IFP) civil rights suit if the court determines that the action is frivolous or malicious or does not state a claim upon which relief may be granted.” Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.1998). We review dismissal under § 1915 de novo, applying the same standard used to review a dismissal pursuant to Fed.R.Civ.P. Rule 12(b)(6). See id. In determining whether dismissal was proper, we must assume that all of the plaintiffs factual allegations are true. See Ashe v. Corley, 992 F.2d 540, 544 (5th Cir.1993). We may uphold the magistrate judge’s dismissal of Moore’s claims “only if it appears that no relief could be" }, { "docid": "6901986", "title": "", "text": "the Supreme Court articulated the proper standard as follows: “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). We agree with the district court’s conclusion in its March 23, 1999 Order adopting the magistrate judge’s Report and Recommendation that the proper standard to apply in prisoner cases challenging restrictions on the free exercise of religion is supplied by the Supreme Court’s decision in Turner, not by Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). In Smith, the Supreme Court concluded “that generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest.” Id. at 886 n. 3, 110 S.Ct. 1595. Following the Smith decision, Congress enacted the Religious Freedom Restoration Act (RFRA) which was later held unconstitutional by the Supreme Court in City of Boerne v. Flores, 521 U.S. 507, 511, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). As the district court and magistrate judge correctly rec ognized, after the Boeme decision, our Circuit has consistently applied the pre-RFRA standard set forth in Turner to evaluate challenges by prisoners to restrictions on the free exercise of religion. See, e.g., Spies v. Voinovich, 173 F.3d 398, 403 (6th Cir.1999) (applying the Turner standard to evaluate First Amendment free exercise challenges to prison regulations). As we explain in Part C, we believe that Flagner has presented sufficient evidence that application of the grooming regulation would violate his constitutional rights. We agree with the district court that “material issues of fact exist as to the legitimacy of defendants’ proffered justifications for enforcing the hair regulation against plaintiff. Plaintiff has come forward with evidence from which a trier of fact could reasonably conclude that defendants’ enforcement of the grooming regulation against plaintiff was an exaggerated response to or not done for the asserted security concerns.” J.A. at 236 (D. Ct. Order of 8/24/99)." }, { "docid": "3883621", "title": "", "text": "that application of the burden to the person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. (c) Judicial relief. A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution. This Act applies to prisoners. Congress, by passing RFRA, rejected the less rigorous standard applied in Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). In Smith, the Supreme Court held that a “valid and neutral law of general applicability” will be upheld if it is reasonably related to a legitimate governmental interest, even if the law places an incidental burden on the free exercise of religion. In response to this narrow reading of the First Amendment, Congress enacted RFRA and reinstated the compelling governmental interest test enunciated in Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) and Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). See 42 U.S.C. § 2000bb(b)(1). Under RFRA, any substantial restriction on the religious liberties of inmates will fall unless the government can demonstrate that the restriction is in furtherance of a compelling governmental interest, and that the restriction imposed is the least restrictive method of furthering that governmental interest. In other words, RFRA ensures that all claims of free exercise of religion are governed by the compelling interest standard rather than the lower reasonableness standard. It is significant that at least the Second, Fourth, Eighth, and Tenth Circuits have held that prison regulations requiring inmates to cut their hair or shave their beards, in violation of their respective religious beliefs, violated the inmates’ First Amendment rights. See Longstreth v. Maynard, 961 F.2d 895, 903 (10th Cir.1992), cert. denied, — U.S. -, 114" }, { "docid": "5619857", "title": "", "text": "interest of ensuring security within the state prison and were the least restrictive means of furthering that interest; and (4) the law at the time of the searches clearly established that the search was constitutionally permissible, entitling the Defendants to qualified immunity. The magistrate judge treated Moore’s pre-order Motion to Amend his complaint by adding a request for injunc-tive relief as a Request to Alter or Amend the Judgment under Fed. R. Civ. Pro. 59. The magistrate judge rejected his request, and the Plaintiff appeals. We hold that Moore’s Fourth Amendment claim is not frivolous; that the Fourth Amendment, rather than the Eighth Amendment, applies to this type of prisoner search; and that the magistrate judge decided Moore’s First Amendment claim under the now defunct Religious Freedom and Restoration Act (RFRA) standard. Therefore, we affirm the dismissal of Moore’s Eighth Amendment claim and reverse and remand to the magistrate judge for further proceedings on Moore’s remaining claims. BACKGROUND In 1996, Moore alleges that Barbara Car-well, a prison officer, subjected Moore to strip and body cavity searches in the presence and under the direction of prison offi cers Dwayne Dewberry, Jeffery Richardson and James Carve. Moore asserts that there were no emergency circumstances justifying the searches and that male guards were available to conduct the searches. He argues that the sole purpose of the searches was to harass and intimidate him. Moore contends that the searches violated his First Amendment right to free exercise of religion because he is a Baptist. He argues that the Baptist faith requires modesty and prohibits him from being viewed naked by a female other than his wife. Moore also argues that the searches violated his limited Fourth Amendment right as a prisoner to be free from unreasonable searches and seizures and that the magistrate erred by failing to weigh his expectation of privacy against the government’s interests. Finally, Moore asserts that the searches constituted cruel and unusual punishment in violation of the Eighth Amendment. Before the magistrate judge’s ruling, Moore filed a Request To Amend his complaint adding two Defendants to the lawsuit and adding" }, { "docid": "5619862", "title": "", "text": "rights caused by the search. See Elliott, 38 F.3d at 191 (citing Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). We must consider the “scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell, 441 U.S. at 559, 99 S.Ct. 1861. Moore alleges that Barbara Carwell conducted these searches despite the absence of emergency or extraordinary circumstances. Additionally, Moore contends that the male Defendants were present during the search, suggesting that male officers were available to conduct the searches. Assuming Moore’s allegations are true, we hold that this claim is not frivolous because the facts he alleges could entitle him to relief for a Fourth Amendment violation. The magistrate judge did not rule on Moore’s claim that the Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment. While in Elliott Judge Garwood argued eloquently that the Eighth Amendment should govern the searches of prisoners, the majority relied on Lilly holding that the Fourth Amendment provides the correct analysis. See Elliott, 38 F.3d at 191 n. 3 (“Thus, Lilly is still the law of this circuit concerning the Fourth Amendment’s application to visual body cavity searches in- the prison setting.”) As a result, we affirm the magistrate judge’s dismissal of Moore’s Eighth Amendment claim. CONCLUSION For the above reasons, we affirm in part and reverse and remand in part to the trial court for further proceedings consistent with this opinion. AFFIRMED in part; REVERSED AND REMANDED in part. . We remand rather than apply the Smith standard ourselves because the record does not contain sufficient information for the appropriate analysis." }, { "docid": "23435062", "title": "", "text": "to Officer Moore could not be characterized as a governmental decision within the meaning of the theory. As a result, the magistrate judge determined that the individual defendants were entitled to qualified immunity. The magistrate judge also determined that the City could not be held liable. Regarding the state-law claims, the magistrate judge dismissed the Morins’ negligent entrustment claim because the claim was lacking proof of a positive act, i.e. that Officer Moore gave Ernest the rifle. The magistrate judge further held that Texas law does not impose liability on the police for failing to take action to prevent a crime. The Dan Morin plaintiffs objected to the magistrate judge’s report and recommendation. After conducting a de novo review, the district court adopted the recommendations of the magistrate judge and dismissed the Morins’ claims with prejudice. The Donald Morin plaintiffs filed a timely notice of appeal from the portion of the judgment dismissing their § 1983 claims and upholding the qualified-immunity defense. The Dan Morin plaintiffs filed a timely notice of appeal from the district court’s order granting the motion to dismiss. STANDARD OF REVIEW We review a Rule 12(b)(6) dismissal de novo, accepting all well-plead facts as true. Mowbray v. Cameron County, Tex., 274 F.3d 269, 276 (5th Cir.2001). Questions of fact are viewed in the light most favorable to the plaintiffs, and questions of law are reviewed de novo. Id. “Rule 12(b)(6) motions should not be granted unless it appears beyond a doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief.” Castro Romero v. Becken, 256 F.3d 349, 353 (5th Cir.2001) (internal quotations and citations omitted). DISCUSSION The following three issues raised on appeal are: whether the district court erred in (1) determining that the Morins did not state a federal claim against the City under the state-created danger theory, (2) granting the individual defendants qualified immunity, and (3) dismissing the Mo-rins’ state-law claims. We now turn to these issues. I. State-Created Danger Theory of Liability The Morins argue that the district court’s dismissal of their" }, { "docid": "2393431", "title": "", "text": "the court determines that the action is frivolous or malicious or does not state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(i) & (ii); see also, § 1915A(b)(l). The district court did not cite any authority for its dismissal of Bradley’s complaint, however, § 1915(e)(2)(B)(ii) is the most appropriate authority for the district court’s dismissal. This Court reviews the district court’s dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) de novo, applying the same standard used to review a dismissal pursuant to Fed.R.Civ.P. 12(b)(6). Black v. Warren, 134 F.3d 732, 733 (5th Cir.1998). To test whether the district court’s dismissal under § 1915 was proper, this Court must assume that all of the plaintiffs factual allegations are true. Ashe v. Corley, 992 F.2d 540, 544 (5th Cir.1993). The district court’s dismissal may be upheld, “only if it appears that no relief could be granted under any set of facts that could be proven consistent with the allegations.” McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158, 160 (5th Cir.1995); see also, Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (holding that a complaint can only be dismissed for failure to state a claim if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief). Accepting Bradley’s allegations as true, the district court erred in dismissing his complaint for failure to state a claim. Bradley has a valid claim to the extent' that he complains of unsanitary conditions that deprived him of basic human needs and exposed him to health risks. For conditions of confinement to rise to the level of an Eighth Amendment violation, they must be “cruel and unusual” under contemporary standards. Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society. Id. However, when the restrictions of confinement rise to a level that" }, { "docid": "23214759", "title": "", "text": "hearings are conducted “to supplement the questionnaires sent to prisoners to elaborate on often less than artfully-drafted pleadings” and are akin to a Fed. R. Civ. P. 12(e) motion for a more definite statement. Wilson v. Barrientos, 926 F.2d 480, 482 (5th Cir.1991). Because the district court addressed claims by Longoria under RLUIPA in its order dismissing this action, we assume sufficient information was provided at the Spears hearing to constitute a RLUIPA claim’s being made. See Longoria v. Dretke, No. L05-CV-161 (N.D. Tex. 3 May 2006). Our court has not addressed whether the TDCJ-ID’s grooming policy violates RLUIPA. See Thunderhorse v. Pierce, 232 Fed.Appx. 425 (5th Cir.2007) (per curiam) (unpublished) (vacating summary judgment without reaching merits because plaintiff not given notice and opportunity to respond to defendants’ motion); Thompson v. Scott, 86 Fed.Appx. 17 (5th Cir.2004) (per curiam) (unpublished) (vacating and remanding because plaintiff alleged his hair was within length allowed by policy). On the other hand, our court addressed the same grooming policy under the Religious Freedom Restoration Act (RFRA), RLUIPA’s predecessor. Diaz v. Collins, 114 F.3d 69 (5th Cir.1997). Because the test under the RLUIPA is sufficiently the same as that previously imposed under RFRA, we hold TDCJ-ID did not violate Longoria’s rights by, pursuant to the grooming policy, denying him permission to grow his hair. 1. The impetus for RFRA lies in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). Smith involved a challenge, based on the Free Exercise Clause, to an Oregon law banning the use of peyote, with no exception for spiritual use of the substance. The Court held the Free Exercise Clause was not violated by neutral, generally applicable laws that incidentally burdened religion, absent the conjunction with another constitutional right. Id. at 881, 110 S.Ct. 1595. The Court declined to apply the previous strict-scrutiny test enunciated by Justice Brennan in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), which required a plaintiff to show the law in question substantially burdened his religion; and, if such" }, { "docid": "5619861", "title": "", "text": "of the searches was clearly established under Letcher v. Turner, 968 F.2d 508 (5th Cir.1992). In Letcher, we held that the mere presence of female officers during a strip search of prisoners during emergency circumstances did not violate the Fourth Amendment. See id. at 510 (emphasis added). Assuming, without deciding, that the magistrate judge could raise the Defendants’ qualified immunity defense sua sponte, we hold that the constitutionality of the searches of Appellant was not clearly established at that time. The facts are markedly different than in Letcher. “A prisoner’s rights are diminished by the needs and exigencies of the institution in which he is incarcerated. He thus loses those rights that are necessarily sacrificed to legitimate penological needs.” Elliott v. Lynn, 38 F.3d 188, 190-91 (5th Cir.1994). However, “searches and seizures conducted of prisoners must be reasonable under all the facts and circumstances in which they are performed.” United States v. Lilly, 576 F.2d 1240, 1244 (5th Cir.1978). We must balance the need for the particular search against the invasion of the prisoner’s personal rights caused by the search. See Elliott, 38 F.3d at 191 (citing Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). We must consider the “scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell, 441 U.S. at 559, 99 S.Ct. 1861. Moore alleges that Barbara Carwell conducted these searches despite the absence of emergency or extraordinary circumstances. Additionally, Moore contends that the male Defendants were present during the search, suggesting that male officers were available to conduct the searches. Assuming Moore’s allegations are true, we hold that this claim is not frivolous because the facts he alleges could entitle him to relief for a Fourth Amendment violation. The magistrate judge did not rule on Moore’s claim that the Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment. While in Elliott Judge Garwood argued eloquently that the Eighth Amendment should govern the searches of prisoners, the majority relied on" }, { "docid": "2393430", "title": "", "text": "for his rash. He therefore concluded that Bradley had failed to state a cause of action cognizable under 42 U.S.C. § 1983. Bradley objected to the magistrate judge’s recommendation. He specifically objected to the findings that the prison officials corrected the problem as soon as they were made aware of it. Bradley contended that the officials were cognizant of his medical needs prior to placing him in lockdown and they allowed him to remain in unsanitary conditions despite his complaints. The district court overruled Bradley’s objection and adopted the magistrate judge’s findings and conclusions. The district court specifically found that the prison officials took immediate steps to correct the situation as soon as they were apprised of Bradley’s needs. Therefore, it held that no constitutional violation had occurred and ordered that Bradley’s complaint be dismissed for failure to state a claim. Bradley filed a timely notice of appeal. Discussion The Prison Litigation Reform Act (PLRA) amended § 1915 to require the district court to dismiss in forma pauperis (IFP) a prisoner’s civil rights suit if the court determines that the action is frivolous or malicious or does not state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(i) & (ii); see also, § 1915A(b)(l). The district court did not cite any authority for its dismissal of Bradley’s complaint, however, § 1915(e)(2)(B)(ii) is the most appropriate authority for the district court’s dismissal. This Court reviews the district court’s dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) de novo, applying the same standard used to review a dismissal pursuant to Fed.R.Civ.P. 12(b)(6). Black v. Warren, 134 F.3d 732, 733 (5th Cir.1998). To test whether the district court’s dismissal under § 1915 was proper, this Court must assume that all of the plaintiffs factual allegations are true. Ashe v. Corley, 992 F.2d 540, 544 (5th Cir.1993). The district court’s dismissal may be upheld, “only if it appears that no relief could be granted under any set of facts that could be proven consistent with the allegations.” McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158, 160 (5th Cir.1995); see also," }, { "docid": "5619860", "title": "", "text": "granted under any set of facts that could be proven consistent with the allegations.” McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158, 160 (5th Cir.1995). The magistrate judge relied on Collins v. Scott, 961 F.Supp. 1009, 1016 (E.D.Tex.1997), holding that Moore’s First Amendment claim was frivolous. Collins was decided under the standard outlined in the RFRA. The district court ruled one day after the Supreme Court held in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) that RFRA was unconstitutional as to the states. As a result, we remand Moore’s First Amendment claim to the magistrate judge for review under the standard set forth in Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990)(holding that neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest). The magistrate judge dismissed Moore’s Fourth Amendment claim holding that the Defendants were entitled to qualified immunity because the constitutionality of the searches was clearly established under Letcher v. Turner, 968 F.2d 508 (5th Cir.1992). In Letcher, we held that the mere presence of female officers during a strip search of prisoners during emergency circumstances did not violate the Fourth Amendment. See id. at 510 (emphasis added). Assuming, without deciding, that the magistrate judge could raise the Defendants’ qualified immunity defense sua sponte, we hold that the constitutionality of the searches of Appellant was not clearly established at that time. The facts are markedly different than in Letcher. “A prisoner’s rights are diminished by the needs and exigencies of the institution in which he is incarcerated. He thus loses those rights that are necessarily sacrificed to legitimate penological needs.” Elliott v. Lynn, 38 F.3d 188, 190-91 (5th Cir.1994). However, “searches and seizures conducted of prisoners must be reasonable under all the facts and circumstances in which they are performed.” United States v. Lilly, 576 F.2d 1240, 1244 (5th Cir.1978). We must balance the need for the particular search against the invasion of the prisoner’s personal" }, { "docid": "23240296", "title": "", "text": "court actually relied.” Parks v. City of Warner Robins, 43 F.3d 609, 613 (11th Cir.1995) (citation omitted). Our discussion of Smith’s appeal requires that we unravel a number of separate legal issues. First, we review RLUI-PA’s legislative history and the standard of liability that the statute sets forth. We then turn to Smith’s claims for injunctive relief under RLUIPA, and whether the district court erred in concluding that those claims for injunctive relief were moot. Third, we address the question of what additional relief, if any, is available under RLUIPA — specifically, whether the phrase “appropriate relief’ in RLUIPA’s remedies section, 42 U.S.C. § 2000ce-2(a), contemplates money damages. We then address whether an entitlement to monetary damages for violations of RLUIPA includes the right to seek individual liability against defendants under RLUIPA, and, if so, whether the qualified immunity defense would apply to those actions. Having resolved those legal questions, we then assess the merits of Smith’s RLUIPA claims against the defendants-appellees. B. Background on RLUIPA “RLUIPA is the latest of long-running congressional efforts to accord religious exercise heightened protection from government-imposed burdens.” Cutter v. Wilkinson, 544 U.S. 709, 714, 125 S.Ct. 2113, 2117, 161 L.Ed.2d 1020 (2005). The statute’s origins stem from the Supreme Court’s decisions in two cases, Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) and City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Prior to Smith, the Supreme Court had employed a compelling interest standard for testing the constitutional validity of laws of general applicability that affected religious practices; government actions that burdened religious practices had to be justified by a compelling government interest. See Sherbert v. Verner, 374 U.S. 398, 402-03, 83 S.Ct. 1790, 1792-94, 10 L.Ed.2d 965 (1963); Adkins v. Kaspar, 393 F.3d 559, 566 (5th Cir.2004) (discussing the pre-Smith landscape). In Smith, however, the Supreme Court held that laws of general applicability that only incidentally burden religious conduct do not offend the Free Exercise Clause of the First Amendment. Smith, 494 U.S. at 878-79," }, { "docid": "18381615", "title": "", "text": "McDaniels carried out this strip and cavity search while wearing a “lewd smile.” The search occurred in view of a number of prisoners and a female prison guard. During the search, McDaniels never accused Hutchins of possessing any contraband. Based on these facts Hutchins filed a § 1983 claim alleging that McDaniels’s actions violated his Fourth Amendment rights. Hutchins does not allege that he suffered any physical injuries. The Magistrate Judge (“MJ”) recommended that Hutchins’s claims be dismissed as frivolous and for failure to state a claim under § 1915A(b). The MJ also noted that § 1997e(e) prevents Hutchins’s recovery because he did not allege any physical injury. The district court adopted the MJ’s recommendation. II A prisoner’s civil rights complaint should be dismissed if it is “frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915A(b)(1). We review a district court’s dismissal under § 1915A de novo. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.2005). Section 1997e(e) bars a prisoner from recovering any compensatory damages in any federal civil action absent a showing of physical injury. Id. at 375. We review a dismissal under § 1997e de novo. Id. at 373. To determine whether the district court’s dismissal was proper we assume that all of Hutchins’s allegations are true. Moore v. Carwell, 168 F.3d 234, 236 (5th Cir.1999). III A Hutchins first claims that the district judge erred in dismissing his complaint as frivolous and for failure to state a claim under 28 U.S.C. § 1915A(b). A dismissal for failure to state a claim will be affirmed only if it appears that no relief could be granted under any set of facts that might be proved consistent with the complaint’s allegations. McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158, 160 (5th Cir.1995). A complaint is frivolous if it lacks an arguable basis in law or fact. Black v. Warren, 134 F.3d 732, 734 (5th Cir.1998). “A complaint lacks an ar guable basis in law if it is based on an indisputably meritless legal theory, such as if" }, { "docid": "6720856", "title": "", "text": "Niece v. Fitzner, 941 F.Supp. 1497, 1503-04 (E.D.Mich.1996). However, a number of appellate and district court judges have come to the opposite conclusion. See Coolbaugh, 136 F.3d at 439-442 (J. Smith, dissenting); Kimel, 139 F.3d at 1449 (J. Cox, concurring in part and dissenting in part); Garrett v. Board of Trustees of University of Ala. in Birmingham, 989 F.Supp. 1409 (N.D.Ala.1998); Brown v. North Carolina Div. of Motor Vehicles, 987 F.Supp. 451 (E.D.N.C.1997); Nihiser v. Ohio E.P.A., 979 F.Supp. 1168, 1170-76 (S.D.Ohio 1997); cf. McGregor v. Goord, 18 F.Supp.2d 204, 209 (N.D.N.Y.1998) (McAvoy, C.J.) (concluding that Family and Medical Leave Act, 29 U.S.C. §§ 2601, et seq., was not a proper exercise of Congress’ § 5 power). After considering the controlling precedents, this Court finds that the minority position is the correct one. The Court is guided principally by City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). The Supreme Court held in Boeme that the Religious Freedom Restoration Act of 1993 (“RFRA”) was not a valid enactment under § 5 of the Fourteenth Amendment. RFRA had been passed in reaction to the Supreme Court’s decision in Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), which held that where a governmental burden on the exercise of religion is the “incidental effect of a generally applicable and otherwise valid provision,” the First Amendment’s guarantee of free exercise of religion has not been offended. Id. at 878, 110 S.Ct. 1595. With RFRA, Congress established a different standard controlling the validity of state or local actions that affect the exercise of religion. RFRA prohibited government from “substantially burden[ing]” a person’s exercise of religion unless the government could demonstrate that the burden was “in furtherance of a compelling governmental interest” and was “the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C.A. § 2000bb-1 (West Supp.1998). In reviewing whether RFRA was a valid enactment under § 5 of the Fourteenth Amendment, the Court acknowledged that “ § 5 is ‘a positive grant of legislative" }, { "docid": "6901985", "title": "", "text": "1220, 1224 (6th Cir.1987). In this case, the sincerity of Flagner’s religious beliefs is not in dispute. Flagner alleges that application of §§ 5120-9-25(D) and (F) violated his First Amendment free exercise rights. He asserts that despite his efforts to prevent prison officials from violating the tenets of his religious faith, the defendants forcibly cut his beard and sidelocks in 1996 and 1998. The Supreme Court has held that in most circumstances, prison officials “should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Wolfish, 441 U.S. at 547, 99 S.Ct. 1861. “To ensure that courts afford appropriate deference to prison officials,” the Supreme Court has “determined that prison regulations alleged to infringe constitutional rights are judged under a ‘reasonableness’ test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights.” O’Lóne v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987). In Turner v. Safley, the Supreme Court articulated the proper standard as follows: “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). We agree with the district court’s conclusion in its March 23, 1999 Order adopting the magistrate judge’s Report and Recommendation that the proper standard to apply in prisoner cases challenging restrictions on the free exercise of religion is supplied by the Supreme Court’s decision in Turner, not by Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). In Smith, the Supreme Court concluded “that generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest.” Id. at 886 n. 3, 110 S.Ct. 1595. Following the Smith decision, Congress enacted the Religious Freedom Restoration Act (RFRA) which was later held unconstitutional by the Supreme Court in City of" } ]

[ { "docid": "13760972", "title": "", "text": "injunction must establish: (1) that it is likely to succeed on the merits, (2) that it is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in its favor, and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). B. Geographical Reach of Injunction Where Circuit Split Present Courts should not issue nationwide injunctions where the injunction would not issue under the law of another circuit. Principles of comity require that, once a sister circuit has spoken to an issue, that pronouncement is the law of that geographical area. Courts in the Ninth Circuit should not grant relief that would cause substantial interference with the established judicial pronounce ments of such sister circuits. To hold otherwise would create tension between circuits and would encourage forum shopping. United States v. AMC Entm’t, Inc., 549 F.3d 760, 773 (9th Cir.2008) (reversing grant of nationwide injunction). C. Copyright Infringement Plaintiffs must meet two requirements to present a prima facie case of direct infringement: (1) ownership of the infringed material, and (2) violation of at least one exclusive right granted to copyright holders under 17 U.S.C. § 106 by the infringer. A & M Records v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.2001). III. Analysis A. The Court Would Grant In Part and Deny In Part Defendants’ Request for Judicial Notice Defendants request that the Court take judicial notice of a scheduling order and two amicus briefs filed in Aereo. Docket No. 46-1. Under Fed.R.Evid. 201, the Court can take judicial notice of “a fact that is not subject to reasonable dispute because it ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Courts may take judicial notice of another court’s opinion for the existence of the opinion, but not for the truth of the facts recited therein. Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir.2001). The Court would take judicial notice of the scheduling order." } ]

[ { "docid": "326049", "title": "", "text": "the injunction was erroneously issued and FilmOn X incurs more than $250,000 in losses. III. CONCLUSION For the reasons stated above, FilmOn X’s Emergency Motion to Stay the Injunction Pending Appeal and/or to Modify the Injunction, Dkt. 36 and Emergency Motion for Reconsideration of the Geographic Scope of the Preliminary Injunction and Bond Amount, Dkt. 37, will be denied. A memorializing Order accompanies this Memorandum Opinion. . FilmOn X asks the Court to take judicial notice of two categories of evidence: (1) a set of press releases \"to show that ... Aereo, Inc., is currently providing or has plans to provide in the near future[ ] substantially similar services to those this Court as [sic] now enjoined FilmOn X from providing;” (2) the docket of Hearst Stations, Inc. v. Aereo, Inc., Civ. No. 13-cv-l 1649-NMG (DMass. filed July 9, 2013), \"to show that there is a substantially similar pending case in the First Circuit and that there is a hearing on the plaintiff’s motion for preliminary injunction ... set for September 18, 2013” and to show that the plaintiffs in Hearst have filed a Notice of Supplemental Authorities referencing this Court’s Preliminary Injunction. Req. Judicial Notice [Dkt. 38] at 1-3. Plaintiffs oppose the motion. See Pis. Objs. Req. Judicial Notice [Dkt. 39-3] at 1-5. As the Court stated in its Opinion, FilmOn X’s request is proper only to the extent that the Court takes judicial notice of the fact that documents have been filed and a hearing scheduled in Hearst; the request is denied in all other respects. See Fed.R.Evid. 201; Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388-89 (2d Cir.1992). . Fox Television Stations, Inc. v. BarryDriller Content Systems, PLC, 915 F.Supp.2d 1138 (C.D.Cal.2012). . The D.C. Circuit does not appear to have adopted this test, but other circuits have done so in resolving whether a motion to reconsider a preliminary injunction is timely. Even assuming arguendo that the Rule 54(b) standard applies, the Court finds that justice does not require reconsideration of the Preliminary Injunction because the Court has not \"patently misunderstood a" }, { "docid": "326048", "title": "", "text": "the Ninth Circuit, so this Court should require that amount for each judicial circuit covered by this Court’s Order or otherwise impose a “substantially larger bond amount.” Mem. Supp. Mot. Recons, at 8-9. “The language [in Rule 65(c) ] ‘in such sum as the court deems proper’ has been read to vest broad discretion in the district court to determine the appropriate amount of an injunction bond.” DSE, Inc. v. United States, 169 F.3d 21, 33 (D.C.Cir. 1999) (citation omitted). For the reasons stated in the Opinion, see Op., 966 F.Supp.2d at 52, $250,000 is “sufficient to protect [FilmOn X] from loss in the event that future proceedings prove that the injunction issued wrongfully.” Monzillo v. Biller, 735 F.2d 1456, 1461 (D.C.Cir.1984) (quoting Edgar v. MITE Corp., 457 U.S. 624, 649, 102 S.Ct. 2629, 73 L.Ed.2d 269 (1982) (Stevens, J., concurring)). FilmOn X has offered nothing beyond the mere say-so of counsel that $250,000 would not be sufficient to cover its potential losses, and Plaintiffs have more than sufficient resources in the unlikely event that the injunction was erroneously issued and FilmOn X incurs more than $250,000 in losses. III. CONCLUSION For the reasons stated above, FilmOn X’s Emergency Motion to Stay the Injunction Pending Appeal and/or to Modify the Injunction, Dkt. 36 and Emergency Motion for Reconsideration of the Geographic Scope of the Preliminary Injunction and Bond Amount, Dkt. 37, will be denied. A memorializing Order accompanies this Memorandum Opinion. . FilmOn X asks the Court to take judicial notice of two categories of evidence: (1) a set of press releases \"to show that ... Aereo, Inc., is currently providing or has plans to provide in the near future[ ] substantially similar services to those this Court as [sic] now enjoined FilmOn X from providing;” (2) the docket of Hearst Stations, Inc. v. Aereo, Inc., Civ. No. 13-cv-l 1649-NMG (DMass. filed July 9, 2013), \"to show that there is a substantially similar pending case in the First Circuit and that there is a hearing on the plaintiff’s motion for preliminary injunction ... set for September 18, 2013” and to" }, { "docid": "11136454", "title": "", "text": "Circuit court docket because “certain media and consumer advocacy groups have filed amicus briefs in support of FilmOn X in that pending appeal.” Request for Judicial Notice [Dkt. 31-4] at 1. Plaintiffs oppose the request. Pis. Objections [Dkt. 32-2], The Court grants FilmOn X’s request only to the extent that the Court takes judicial notice of the fact that such documents have been filed; to the extent that FilmOn X wishes the Court to take judicial notice of the content of the amicus filings or the arguments made therein, the request is denied. See Fed.R.Evid. 201; Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388-89 (2d Cir.1992) (holding that judicial notice of a document filed in another court is proper not for the truth of the matters asserted in the other litigation, but rather to establish the fact that the document was filed). B. Likelihood of Success on the Merits The two elements to a prima facie case of direct copyright infringement are straightforward: a plaintiff must show (1) ownership of the allegedly infringed material and (2) a violation of one of the exclusive rights of copyright holders set forth in 17 U.S.C. § 106. A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.2001). There is no dispute that Plaintiffs own the allegedly infringed material, so only the second element is in contention. 1. Parties’ Arguments The core of Plaintiffs’ argument is that this Court should adopt the reasoning of BarryDriller and Judge Chin’s dissenting opinion in Aereo II. E.g., Pis. Mem. at 17 (“The Transmit Clause’s “any device or process” language is unambiguous; it cannot be read as exempting FilmOn X or any other broadcast retransmission devices and processes from public performance liability.” (citing BarryDriller, 915 F.Supp.2d at 1143-44 & Aereo II, 712 F.3d at 698-99 (Chin, J., dissenting))). According to Plaintiffs, FilmOn X “falls squarely within the Transmit Clause” because “it retransmits the same broadcast of a television program to multiple subscribers” through “its system of miniature antennas, copies, and the Internet.” Pis. Mem. at 13-14; see also Pis." }, { "docid": "20042944", "title": "", "text": "decision if such relief is necessary under the circumstances.”) (citing Judicial Watch v. Dep’t of Army, 466 F.Supp.2d 112, 123 (D.D.C.2006)). The relevant circumstances that may warrant reconsideration include “whether the court ‘has patently misunderstood a party, has made a decision outside the adversarial issues presented to the court by the parties, has made an error not of reasoning, but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the court.’ ” Ficken v. Golden, 696 F.Supp.2d 21, 35 (D.D.C.2010) (quoting Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C.2004); alterations in original); see also Hoffman, 681 F.Supp.2d at 90 (same); Capitol Justice, LLC v. Wachovia Corp., 605 F.Supp.2d 187, 190 (D.D.C.2009) (same). Here, at least two of these factors militate in favor of reconsidering the Court’s opinion denying the initial motion to dismiss. First, as described above, the Court misread defendant’s primary argument concerning the proper interpretation of 18 U.S.C. 2334(a) — the ATA’s venue and service provision. In its opinion on the motion to dismiss, the Court treated defendant’s argument as one based on the lack of venue, explaining that BOC “earrie[d] its venue argument into the issue of personal jurisdiction.” Mem. Op. at 41 n. 5. Thus, because the Court found that this action is properly venued, it did not squarely address BOC’s § 2334(a) argument. See id. (“Because the Court concludes that this is a proper venue under the doctrine of pendent venue, the Court need not reach [BOC’S] additional argument concerning jurisdiction.”). BOC’s ar gument, however, is not one of general venue, but raises questions of statutory construction — specifically, that the ATA’s provision of nationwide service is limited by the plain text of the Act, which, according to defendant, ties invocation of that provision to assertion of venue under the terms specified by the statute. By reading BOC’s position as one concerning venue generally, however, the Court did not address critical issues of interpretation, nor did it review relevant precedent of this Circuit and other district courts interpreting similar statutes. From" }, { "docid": "21313607", "title": "", "text": "violation. III. Conclusion For the foregoing reasons, Defendants’ Motion to Dismiss as to the Goldman defendants is denied. Defendant Paulson’s Motion to Dismiss for section 10(b), Rule 10b-5, and section 20(a) claims is granted without prejudice. Plaintiff is given 30 days from the date of this Opinion and Order to seek leave to amend the Complaint as to Defendant Paulson. SO ORDERED. . For purposes of this motion, Plaintiff's allegations have been accepted as true and all reasonable inferences have been drawn in Plaintiff's favor. However, pursuant to Fed. R.Evid. 201, the Court also takes judicial notice of certain publications and publicly filed pleadings not cited in the Complaint. See Garb v. Republic of Poland, 440 F.3d 579, 594 n. 18 (2d Cir.2006) (citations omitted); see also In re Merrill Lynch & Co., 273 F.Supp.2d 351, 383 n. 3 (S.D.N.Y.2003) (citations omit ted) [hereinafter Merrill Lynch I ] (taking judicial notice, on a motion to dismiss, of newspaper articles for the fact of their publication). Similarly, the Court also takes judicial notice of documents filed in another court, \" 'not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.' ” Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir.1992) (quoting Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir.1991)). . For the sake of clarity, Defendants’ citations to the paragraphs of the First Amended Com plaint have been updated to reflect the numbering of the identical paragraphs in the Second Amended Complaint. . Curiously, in Defendants’ selection of what to include from this relatively short list of business principles, (see Defs.’ Mem. 14) they chose not to include the short paragraph concerning compliance with the law: ”[w]e are . dedicated to complying fully with the letter and spirit of the laws, rules and ethical principles that govern us. Our continued success depends upon unswerving adherence to this standard.” (SAC ¶ 124) . See, e.g., SAC ¶ 10 (\"The SEC allegations ... make expressly clear that senior management of" }, { "docid": "326050", "title": "", "text": "show that the plaintiffs in Hearst have filed a Notice of Supplemental Authorities referencing this Court’s Preliminary Injunction. Req. Judicial Notice [Dkt. 38] at 1-3. Plaintiffs oppose the motion. See Pis. Objs. Req. Judicial Notice [Dkt. 39-3] at 1-5. As the Court stated in its Opinion, FilmOn X’s request is proper only to the extent that the Court takes judicial notice of the fact that documents have been filed and a hearing scheduled in Hearst; the request is denied in all other respects. See Fed.R.Evid. 201; Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388-89 (2d Cir.1992). . Fox Television Stations, Inc. v. BarryDriller Content Systems, PLC, 915 F.Supp.2d 1138 (C.D.Cal.2012). . The D.C. Circuit does not appear to have adopted this test, but other circuits have done so in resolving whether a motion to reconsider a preliminary injunction is timely. Even assuming arguendo that the Rule 54(b) standard applies, the Court finds that justice does not require reconsideration of the Preliminary Injunction because the Court has not \"patently misunderstood a party, [] made a decision outside the adversarial issues presented to the Court by the parties, [or] made an error not of reasoning, but of apprehension,” and there has been no “controlling or significant change in the law or facts ... since the submission of the issue to the Court.” Ficken v. Golden, 696 F.Supp.2d 21, 35 (D.D.C.2010) (quoting Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C.2004))." }, { "docid": "326041", "title": "", "text": "copyrighted by one of the Plaintiffs) to members of the public (i.e., any person who accesses the FilmOn X service through its website or application) who receive the performance in separate places and at different times (i.e., at home at their computers or on their mobile devices).” Op., 966 F.Supp.2d at 46-47. In reaching its conclusion, this Court joined BarryDriller in respectfully disagreeing with the Aereo II court’s reading of the Transmit Clause as myopically focused on the nature of the transmission, not whether the work was publicly performed. The only change FilmOn X has identified is that Aereo, its competitor, is not enjoined. But this argument is backwards: FilmOn X claims that the Preliminary Injunction has created irreparable harm because FilmOn X will not be able to keep pace with a similar service that also appears to infringe Plaintiffs’ copyrights. FilmOn X, not Aereo, is the defendant in this case; the Court has already concluded that, at least at the preliminary injunction stage, the balance of irreparable harms and the public interest favor an injunction. FilmOn X has not shown “either a high probability of success and some injury, or vice versa,” as would support a stay of the Preliminary Injunction — in its entirety or even with respect to areas outside the D.C. Circuit — pending appeal. Cuomo, 772 F.2d at 974. FilmOn X’s motion to stay will be denied. II. RECONSIDERATION A. Legal Standard Viewing the preliminary injunction as an interlocutory ruling, FilmOn X argues that the Rule 54(b) “as justice requires” standard applies to its motion for reconsideration. Mem. Supp. Mot. Recons, at 2-3 (citing, inter alia, Cobell v. Norton, 355 F.Supp.2d 531, 539 (D.D.C.2005)). Rule 54(b) applies to “any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties.” Plaintiffs respond that the heightened standard of Rule 59(e) for reconsideration of final judgments — not the “as justice requires” standard of Rule 54(b) — applies to preliminary injunctive orders that can be appealed under 28 U.S.C. § 1292(a)(1). See Opp. Mot." }, { "docid": "20042943", "title": "", "text": "“by its terms allow[s] the trial court to modify its earlier order.” Dellums v. Powell, 566 F.2d 231, 234 (D.C.Cir.1977); see also Cobell v. Norton, 355 F.Supp.2d 531, 539 (D.D.C.2005) (“Rule 54(b) governs reconsideration of orders that do not constitute final judgments in a case.”). While this rule provides a procedural mechanism for courts to reconsider their prior opinions, the actual language of Rule 54(b) sets forth little guidance as to when such review is appropriate. To fill this gap, courts in this district have held that “relief upon reconsideration ... pursuant to Rule 54(b) is available ‘as justice requires.’ ” Hoffman v. District of Columbia, 681 F.Supp.2d 86, 90 (D.D.C.2010) (quoting Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C.2000)). “[Ajsking ‘what justice requires’ amounts to determining, within the Court’s discretion, whether reconsideration is necessary under the relevant circumstances.” Cobell, 355 F.Supp.2d at 539; see also United States v. Second Chance Body Armor, Inc., 709 F.Supp.2d 52, 55 (D.D.C.2010) (“[A] court has wide discretion in deciding a motion for reconsideration and can revise its earlier decision if such relief is necessary under the circumstances.”) (citing Judicial Watch v. Dep’t of Army, 466 F.Supp.2d 112, 123 (D.D.C.2006)). The relevant circumstances that may warrant reconsideration include “whether the court ‘has patently misunderstood a party, has made a decision outside the adversarial issues presented to the court by the parties, has made an error not of reasoning, but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the court.’ ” Ficken v. Golden, 696 F.Supp.2d 21, 35 (D.D.C.2010) (quoting Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C.2004); alterations in original); see also Hoffman, 681 F.Supp.2d at 90 (same); Capitol Justice, LLC v. Wachovia Corp., 605 F.Supp.2d 187, 190 (D.D.C.2009) (same). Here, at least two of these factors militate in favor of reconsidering the Court’s opinion denying the initial motion to dismiss. First, as described above, the Court misread defendant’s primary argument concerning the proper interpretation of 18 U.S.C. 2334(a) — the ATA’s venue and service provision. In its opinion" }, { "docid": "326036", "title": "", "text": "avoid conflict with that court’s decision in WNET, Thirteen v. Aereo, Inc. (Aereo II), 712 F.3d 676 (2d Cir.2013). Plaintiffs posted the required bond on September 9, 2013, meaning that FilmOn X must certify compliance with the Preliminary Injunction no later than today, September 12, 2013. On September 11, FilmOn X filed two emergency motions: an Emergency Motion to Stay the Injunction Pending Appeal and/or to Modify the Injunction, Dkt. 36; and an Emergency Motion for Reconsideration of the Geographic Scope of the Preliminary Injunction and Bond Amount, Dkt. 37. Plaintiffs oppose FilmOn X’s motions. See Opp. Mot. Stay [Dkt. 39]; Opp. Mot. Recons. [Dkt. 40]. FilmOn X seeks the following relief: • A stay of the Preliminary Injunction, in its entirety, pending FilmOn X’s appeal to the D.C. Circuit. Mem. Supp. Mot. Stay at 3-11. • A stay of the Preliminary Injunction in all circuits except for the D.C. Circuit. Id. at 11 n. 6. • Modification of the Preliminary Injunction so that it covers only the D.C. Circuit. Id. at 11-13; Mem. Supp. Mot. Recons, at 3-8. • An increase in the bond amount to $250,000 for each circuit in which FilmOn X is enjoined — i.e., $2, 750, 000 for eleven circuits — or an otherwise substantial increase. Mem. Supp. Mot. Recons, at 8-9. The Court addresses FilmOn X’s arguments in two groups: (1) its request for a stay and (2) its request for reconsideration. As discussed below, the Court concludes that the public benefit is not harmed by issuance of the Preliminary Injunction. While the Injunction remains in place, FilmOn X’s innovative technology can be used by the public, via computer or mobile device, to access material that is properly licensed from copyright holders. The conduct prohibited by the Preliminary Injunction is uncompensated infringement of those holders’ exclusive right to public performance of their works, and the public interest is not harmed by requiring FilmOn X to cease infringement. FilmOn X’s emergency motions will be denied in all respects. I. STAY A. Legal Standard Federal Rule of Civil Procedure 62(c) authorizes courts to stay an injunction" }, { "docid": "9241910", "title": "", "text": "all of Plaintiff's claims, even preliminarily. The Court has yet to resolve on the merits the claims presented in Plaintiff's motion for preliminary injunction. And the Court has not made any decision as to at least one further claim in Plaintiff's [1] Complaint, namely that Defendants violated Section 9(c) of the Federal Advisory Committee Act (\"FACA\") by acting out of turn with their filing of the Commission charter. See, e.g., Dunlap , 286 F.Supp.3d at 109 n.5 (declining to decide this claim not pursued in preliminary injunction motion). Accordingly, it is appropriate to evaluate the Motion to Reconsider under the Rule 54(b) standard applicable to an order that \"adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties.\" Fed. R. Civ. P. 54(b). As discussed above, that standard is whether \"justice requires\" reconsideration. Dynamic Visions, Inc. , 321 F.R.D. at 17. Defendants do not discuss the \"as justice requires\" standard but instead refer to several other standards, both for Rule 54(b) and other rules on which a decision purportedly could be based. As to Rule 54(b), Defendants argue that the relevant standard is whether \"a change of circumstances between entry of the injunction and the filing of the motion\" to reconsider has occurred \"that would render the continuance of the injunction in its original form in equitable [sic].\" MTR Mem. at 4 (quoting Fox Television Stations, Inc. v. FilmOn X LLC , 968 F.Supp.2d 134, 140 (D.D.C. 2013) ) (internal quotation marks omitted) (mistake not in original). However, Defendants do not cite any cases in this jurisdiction that apply this standard to Rule 54(b) decisions. On the contrary, Defendants' main case expressly recognizes that the \"justice requires\" standard applies in the Rule 54(b) context. See Fox Television Stations, Inc. , 968 F.Supp.2d at 140 n.3 (\"find[ing] that justice does not require reconsideration\" upon \"assuming arguendo that the Rule 54(b) standard applies\"). In the alternative to resolving this motion on Rule 54(b) grounds, Defendants urge the Court to apply the Rule 59(e) standard. See MTR Mem. at 3-5. Although Plaintiff does not expressly respond" }, { "docid": "6228879", "title": "", "text": "the Court from issuing an injunction in this matter. To the extent that a defense is not fully addressed in this Order, O’Brien has not sufficiently briefed or argued the defense in a manner that the Court is capable of giving full consideration. Therefore, the Court will decline O’Brien’s request that the Court deny Au-toNation’s Motion on these “additional reasons.” III. CONCLUSION Wherefore, it is ORDERED AND ADJUDGED as follows: 1. Plaintiffs Expedited Motion for Preliminary Injunction, filed herein on July 14, 2004 [DE-9] is GRANTED. 2. O’Brien shall not during the period commencing on the date of this Order and ending on August 5, 2005, or until further Order of this Court, directly or indirectly, alone or in any other capacity, including without limitation as a partner, joint venturer, officer, director, member, employee, consultant, agent, independent contractor, stockholder, landlord or lessor of, or lender to, any company or business (or any af filiate thereof), engage in selling, leasing, or servicing of any new or used vehicles or in the wholesale or retail supply of parts with respect thereto, or engage in any additional related or other businesses that Au-toNation engages in at any time, anywhere in the geographic space that AutoNation operates. Such geographic space shall be defined as a 10 mile radius from any AutoNation dealership. However, O’Brien shall not be deemed to have violated the prohibition hereunder merely due to the beneficial ownership of less than one percent (1%) of the shares of stock of any corporation having a class of equity securities actively traded on a national securities exchange or over-the-counter market. 3. AutoNation’s Request for Judicial Notice [DE-86] is GRANTED. A court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but to establish the fact of such litigation and related filings. U.S. v. Jones, 29 F.3d 1549, 1553 (11th Cir.1994) (quoting Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388-89 (2d Cir.1992)). 4. O’Brien’s Motion to Strike [DE-103] is DENIED. A court will not exercise its" }, { "docid": "11136453", "title": "", "text": "in the conclusion that its plaintiffs were likely to succeed on the merits because FilmOn X had “no equitable interest in continuing an infringing activity.” Id. at 1148-49 (citing Triad Sys. Corp. v. Se. Express Co., 64 F.3d 1330, 1338 (9th Cir.1995)). BarryDriller declined to enter a nationwide injunction, instead concluding that an injunction applicable in the Ninth Circuit was appropriate. Id. at 1148. Judge Wu reasoned that “principles of comity prevent the entry of an injunction that would apply to the Second Circuit,” and extending beyond the Ninth Circuit was inappropriate because “[i]f other circuits do not have law that conflicts with this decision, they might adopt such law when presented with the choice.” Id. The court imposed a preliminary injunction bond of $250,000. Id. at 1149. The parties filed cross-appeals to the Ninth Circuit. See Fox Television v. Aereokiller, Nos. 13-55156, 13-55157, 13-55226, 13-55228. Oral argument was held on August 27, 2013. The Ninth Circuit has not yet issued a ruling. FilmOn X asks that this Court take judicial notice of the Ninth Circuit court docket because “certain media and consumer advocacy groups have filed amicus briefs in support of FilmOn X in that pending appeal.” Request for Judicial Notice [Dkt. 31-4] at 1. Plaintiffs oppose the request. Pis. Objections [Dkt. 32-2], The Court grants FilmOn X’s request only to the extent that the Court takes judicial notice of the fact that such documents have been filed; to the extent that FilmOn X wishes the Court to take judicial notice of the content of the amicus filings or the arguments made therein, the request is denied. See Fed.R.Evid. 201; Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388-89 (2d Cir.1992) (holding that judicial notice of a document filed in another court is proper not for the truth of the matters asserted in the other litigation, but rather to establish the fact that the document was filed). B. Likelihood of Success on the Merits The two elements to a prima facie case of direct copyright infringement are straightforward: a plaintiff must show (1) ownership of" }, { "docid": "326042", "title": "", "text": "injunction. FilmOn X has not shown “either a high probability of success and some injury, or vice versa,” as would support a stay of the Preliminary Injunction — in its entirety or even with respect to areas outside the D.C. Circuit — pending appeal. Cuomo, 772 F.2d at 974. FilmOn X’s motion to stay will be denied. II. RECONSIDERATION A. Legal Standard Viewing the preliminary injunction as an interlocutory ruling, FilmOn X argues that the Rule 54(b) “as justice requires” standard applies to its motion for reconsideration. Mem. Supp. Mot. Recons, at 2-3 (citing, inter alia, Cobell v. Norton, 355 F.Supp.2d 531, 539 (D.D.C.2005)). Rule 54(b) applies to “any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties.” Plaintiffs respond that the heightened standard of Rule 59(e) for reconsideration of final judgments — not the “as justice requires” standard of Rule 54(b) — applies to preliminary injunctive orders that can be appealed under 28 U.S.C. § 1292(a)(1). See Opp. Mot. Recons, at 2-3. The question is slightly more complex than either party recognizes. In determining whether to treat a motion for reconsideration of a preliminary injunction as a motion to modify the injunction pursuant to Rule 62(c) or as a motion for reconsideration pursuant to Rule 59(e), courts “look beyond the motion’s caption to its substance” and “compare the circumstances existing on ... the date of entry of the order granting the preliminary injunction, with the circumstances existing when the motion to modify was made.” Favia v. Ind. Univ. of Pa., 7 F.3d 332, 337 (3d Cir.1993). “Modification of an injunction [and treatment under Rule 62(c) ] is proper only when there has been a change of circumstances between entry of the injunction and the filing of the motion that would render the continuance of the injunction in its original form inequitable.” Id.; see also Credit Suisse First Boston Corp. v. Grunwald, 400 F.3d 1119, 1124 (9th Cir.2005) (“[0]ur task is to determine whether the substance of [the] motion was based on changed circumstances.”). When" }, { "docid": "326035", "title": "", "text": "MEMORANDUM OPINION ROSEMARY M. COLLYER, District Judge. Plaintiffs, a group that includes over-the-air television broadcasters and pro grammers, sued Defendants, entities that operate an online service called FilmOn X, for violating their public performance rights for copyrighted television programs. On September 5, 2013, the Court granted Plaintiffs’ motion for a preliminary injunction, concluding that Plaintiffs are likely to succeed on their copyright infringement claim and that all the preliminary injunction factors favor Plaintiffs. See Op. [Dkt. 33], 966 F.Supp.2d 30, 2013 WL 4763414 (D.D.C.2013) , Prelim. Inj. [Dkt. 34]. The Preliminary Injunction provided that it would become effective immediately upon the posting of a $250,000 bond, Prelim. Inj. ¶ 5, and that FilmOn X must certify compliance, under oath, “[w]ithin three court days of the effective date of [the] Preliminary Injunction,” id. ¶ 6. For the reasons stated in the Opinion, the Court found that 17 U.S.C. § 502(b) required the Preliminary Injunction to have nationwide effect, but the Court omitted the geographic area of the Second Circuit from the coverage of the Injunction to avoid conflict with that court’s decision in WNET, Thirteen v. Aereo, Inc. (Aereo II), 712 F.3d 676 (2d Cir.2013). Plaintiffs posted the required bond on September 9, 2013, meaning that FilmOn X must certify compliance with the Preliminary Injunction no later than today, September 12, 2013. On September 11, FilmOn X filed two emergency motions: an Emergency Motion to Stay the Injunction Pending Appeal and/or to Modify the Injunction, Dkt. 36; and an Emergency Motion for Reconsideration of the Geographic Scope of the Preliminary Injunction and Bond Amount, Dkt. 37. Plaintiffs oppose FilmOn X’s motions. See Opp. Mot. Stay [Dkt. 39]; Opp. Mot. Recons. [Dkt. 40]. FilmOn X seeks the following relief: • A stay of the Preliminary Injunction, in its entirety, pending FilmOn X’s appeal to the D.C. Circuit. Mem. Supp. Mot. Stay at 3-11. • A stay of the Preliminary Injunction in all circuits except for the D.C. Circuit. Id. at 11 n. 6. • Modification of the Preliminary Injunction so that it covers only the D.C. Circuit. Id. at 11-13; Mem. Supp." }, { "docid": "21149582", "title": "", "text": "rule is not enough. The Court takes no pleasure in striking an apparently relevant piece of evidence on such superficially trivial grounds, but neither is it willing to ignore the clear command of the Federal Rules of Evidence. Accordingly, plaintiffs motion to strike will be granted as to Exhibit C. Exhibit F. Exhibit F is the voluntary petition of Bridgeport Machines, Inc., filed in the United States Bankruptcy Court for the District of Delaware on February 14, 2002. The fact that Bridgeport Machines, Inc., petitioned for Chapter 11 protection is not in dispute in this case. Although plaintiff objects to the exhibit on authentication grounds, the Court may take judicial notice of documents filed in another court to establish the fact of litigation — though not necessarily for the truth of the matters contained within those documents. See Kowalski v. Gagne, 914 F.2d 299, 305-06 (1st Cir.1990) (approving trial court’s judicial notice of state court convictions when certified copy of conviction was not provided, and collecting eases); Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388-89 (2d Cir.1992); 1 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 201.12[3] at 201-38 to 201-39 (2d ed.2005). Accordingly, the Court will take judicial notice of the bankruptcy court filing. Plaintiffs motion to strike Exhibit F will be denied. Exhibit G. Exhibit G appears to be all or part of the 1968 and 1967 annual reports of Textron, Inc. Textron first contends that the document is a self-authenticating “periodical,” because Textron (like all public companies) publishes such a report regularly each year. As noted above, however broad the definition of “periodical” may be, it cannot be stretched to include every single document that is published on a regular basis. The annual report of a publicly-traded company is well outside any common understanding of the term “periodical.” Accordingly, Exhibit G is not a self-authenticating document within the meaning of Fed.R.Evid. 902(6). Textron argues in the alternative that the document is an “ancient document” within the meaning of Fed.R.Evid. 901(b)(8). That rule provides that a document may be authenticated" }, { "docid": "19685745", "title": "", "text": "which provides, in pertinent part: A judicially noted fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. 201(b). See, e.g., Meredith v. Beech Aircraft Corporation, 18 F.3d 890, 895 (10th Cir.1994). Defendants also rely on section (d) of Rule 201, which specifies that judicial notice is mandatory if requested and if the party supplies the necessary information. Fed.R.Evid. 201(d). Under this standard, this Court is required to take judicial notice of the pending state court action. The extent of such judicial notice, however, is not as broad as Defendants construe it. New York law is clear that a court may take judicial notice of a document filed in another court “not for the truth of the matter asserted in the other litigation, but rather to establish the fact of such litigation and related filings.” Liberty Mutual Insurance Company v. Rotches Pork Packers, 969 F.2d 1384, 1388-89 (2d Cir. 1992). See also Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir.1991). Thus, while this Court recognizes the pending state court action, the documents filed in connection with the state court action cannot be used substantively for their truth. Defendants attempt to use the substance of the affidavits of Beeren and Bracht to establish facts at several points in their motion. The affidavits are useful to illustrate that certain factual averments were made, but they cannot be used to verify the truth of such statements. F.D.I.C. v. O’Flahaven, 857 F.Supp. 154, 157 (D.N.H.1994). See also E.I. DuPont de Nemours & Co. v. Cullen, 791 F.2d 5 (1st Cir.1986). Thus, Defendants cannot use these affidavits to verify or disprove any disputed substantive issues in this action. For the same reasons, the order of Judge Greenfield in the state action cannot be recognized as a finding of fact in this federal action. In U.S. v. Jones, 29 F.3d 1549, 1553 (11th Cir.1994), the court conclusively stated, “courts" }, { "docid": "9241901", "title": "", "text": "Tobacco Co., Inc. v. U.S. Tobacco Co. , 217 F.R.D. 235, 237 (D.D.C. 2003) ), aff'd No. 09-5349, 2010 WL 1632965 (D.C. Cir. Apr. 1, 2010). \"Justice [also] may require reconsideration ... 'where a controlling or significant change in the ... facts has occurred since the submission of the issue to the court.' \" McLaughlin v. Holder , 864 F.Supp.2d 134, 141 (D.D.C. 2012) (quoting Ficken v. Golden , 696 F.Supp.2d 21, 35 (D.D.C. 2010) ). However, as the parties were warned, \"motions for reconsideration ... cannot be used as an opportunity to reargue facts and theories upon which a court has already ruled, nor as a vehicle for presenting theories or arguments that could have been advanced earlier.\" Estate of Gaither ex rel. Gaither v. District of Columbia , 771 F.Supp.2d 5, 10 & n.4 (D.D.C. 2011) ) (quoting SEC v. Bilzerian , 729 F.Supp.2d 9, 14 (D.D.C. 2010) ) (internal quotation marks omitted); Order Establishing Procedures for Cases Assigned to Judge Colleen Kollar-Kotelly, ECF No. 6, ¶ 13. B. Application for Temporary Restraining Order Like a preliminary injunction, a temporary restraining order is an extraordinary form of relief. An application for a TRO is analyzed using factors applicable to preliminary injunctive relief. See, e.g., Gordon v. Holder , 632 F.3d 722, 723-24 (D.C. Cir. 2011) (applying preliminary injunction standard to district court decision denying motion for TRO and preliminary injunction); Sibley v. Obama , 810 F.Supp.2d 309, 310 (D.D.C. 2011) (articulating TRO elements based on preliminary injunction case law). Preliminary injunctive relief is \"an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.\" Sherley v. Sebelius , 644 F.3d 388, 392 (D.C. Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ); see also Mazurek v. Armstrong , 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam) (\"[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the" }, { "docid": "8783097", "title": "", "text": "U.S. 866, 879 n. 6, 118 S.Ct. 1761, 140 L.Ed.2d 1070 (1998)). The Court finds that no stay of proceedings is warranted. The Court’s prior orders afforded the plaintiff sixty days in which to respond to the motions to dismiss. The Court notes that the plaintiff has filed numerous motions and lengthy declarations during the time period in which he could have filed responses to the pending motions to dismiss. Accordingly, the motion to stay these proceedings so that the plaintiff has more time to prepare additional motions is denied. IV. Motion for Reconsideration The plaintiff has moved for reconsideration of this Court’s order denying the plaintiffs Motion to Proceed In Forma Pauperis and Motion for Appointment of Counsel. See Order dated Aug. 16, 2011, ECF No. 31. “[A] court has wide discretion in deciding a motion for reconsideration and can revise its earlier decision if such relief is necessary under the circumstances.” Wultz v. Islamic Republic of Iran, 762 F.Supp.2d 18, 23 (D.D.C.2011) (citation omitted). “The relevant circumstances that may warrant reconsideration include whether the court 'has patently misunderstood a party, has made a decision outside the adversarial issues presented to the court by the parties, has made an error not of reasoning, but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the court.’ ” Id. (quoting Ficken v. Golden, 696 F.Supp.2d 21, 35 (D.D.C.2010)). After carefully considering the plaintiffs motion for reconsideration, the Court finds that there are no relevant circumstances that warrant reconsideration. Rather, the Court affirms its prior decision for the reasons stated in its Order dated August 16, 2011. See ECF No. 31. Accordingly, the Motion for Reconsideration is denied. V. Motions to Dismiss Regarding motions, Local Civil Rule 7(b) states: “Within 14 days of the date of service or at such other time as the Court may direct, an opposing party shall serve and file a memorandum of points and authorities in opposition to the motion. If such a memorandum is not filed within the prescribed time, the Court" }, { "docid": "12888066", "title": "", "text": "and Five of the Amended Complaint as against all defendants. I also dismiss the remainder of the Amended Complaint as against defendants PwC and Sagamore. The Clerk of Court is directed to remove their names from the caption. SO ORDERED. . The Insurance Company Defendants' motion papers attached a copy of the complaint in the New York State Court case, and I am entitled to take judicial notice of it. Fed. R.Evid. 201; see, e.g., Hill v. Goord, 63 F.Supp.2d 254, 256 (E.D.N.Y.1999) (\"It ... is entirely proper for this Court to take judicial notice of the actions taken in ... related [state court] proceedings 'to establish the fact of such litigation and related filings.' ”) (quoting Liberty Mutual Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir.1992)). . By letter to the Court, Intellective expressed a desire to amend the complaint to assert facts sufficient to support a claim for sham litigation. Intellective contends that it was not able to assert such facts earlier because the state court proceeding was still in its infancy when Intellective filed its federal complaint. At that time, the state court plaintiffs (defendants here) had succeeded in obtaining an ex parte Temporary Restraining Order against Intellective, but the state court had not yet rendered a decision on their application for Preliminary Injunction. However, it is clear that the state court proceeding is not a sham. Although the state court eventually decided against granting an injunction on the software portion of the complaint, the fact that a state court granted a TRO and then a partial preliminary injunction precludes a finding that the litigation was \"objectively baseless.” See, e.g., Omni Resource Development Corp. v. Conoco, Inc., 739 F.2d 1412 (9th Cir.1984) (grant of preliminary injunction precluded finding of sham). . Defendant's mistake is easy to understand, as the Amended Complaint is not a model in clarity. Intellective causes confusion by hinting at antitrust injuries of which it cannot complaint. For example, is Intellective complaining about loss of competition among insurance companies? See Compl. ¶ 31. Intel-lective lacks standing to premise any" }, { "docid": "8783098", "title": "", "text": "the court 'has patently misunderstood a party, has made a decision outside the adversarial issues presented to the court by the parties, has made an error not of reasoning, but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the court.’ ” Id. (quoting Ficken v. Golden, 696 F.Supp.2d 21, 35 (D.D.C.2010)). After carefully considering the plaintiffs motion for reconsideration, the Court finds that there are no relevant circumstances that warrant reconsideration. Rather, the Court affirms its prior decision for the reasons stated in its Order dated August 16, 2011. See ECF No. 31. Accordingly, the Motion for Reconsideration is denied. V. Motions to Dismiss Regarding motions, Local Civil Rule 7(b) states: “Within 14 days of the date of service or at such other time as the Court may direct, an opposing party shall serve and file a memorandum of points and authorities in opposition to the motion. If such a memorandum is not filed within the prescribed time, the Court may treat the motion as conceded.” The purpose of this rule is to “is to assist the district court in maintaining docket control and deciding motions ... efficiently and effectively.” FDIC v. Bender, 127 F.3d 58, 67 (D.C.Cir.1997) (discussing prior Local Rule 108(b)). The “discretion to enforce this rule lies wholly with the district court.” Id. at 68. The D.C. Circuit reviews the court’s decision to apply Local Rule 7(b) for abuse of discretion, id. at 67, and “where the district court relies on the absence of a response as a basis for treating the motion as conceded, [the D.C. Circuit] honor[s] its enforcement of the rule.” Twelve John Does v. District of Columbia, 117 F.3d 571, 577 (D.C.Cir.1997). In its orders dated July 13, 2011, and July 19, 2011, ECF Nos. 12 and 14, the Court specifically advised the plaintiff, consistent with the D.C. Circuit’s ruling in Fox v. Strickland, that the “Court may choose to treat as conceded any motion not opposed within the time limits put in place by the Court” and" } ]

[ { "docid": "22173549", "title": "", "text": "as Arviso’s new term of imprisonment was only three months. Ignoring a provision regarding minors, in all other cases “the date of the original sentence” is used. Here, that is March 3, 1993, which, as discussed previously, is outside the window for consideration under § 4A1.2(e) and § 4A1.1(b). The district court plainly erred in considering Arviso’s March 1993 conviction for purposes of enhancing his criminal history score. B Second, Arviso contends the district court erred by applying the mandato ry sentencing guidelines, in violation of United States v. Booker. Technically, the erroneous application of the guidelines as mandatory is a “Fanfan error.” The government concedes that Arviso preserved his Fanfan error for appeal and that the issue is reviewed for harmless error. The government contends that the error is harmless because the court imposed a “reasonable” sentence at the law end of the guidelines range. However, the government cannot carry is arduous burden of showing that the district court would not have sentenced Arviso differently under an advisory guidelines system. C Finally, Arviso contends that 8 U.S.C. § 1326 is unconstitutional. As he concedes, this argument is foreclosed by Al-mendarez-Torres v. United States, which this Court must follow “unless and until the Supreme Court itself determines to overrule it.” III Accordingly, the judgment of conviction is AFFIRMED. We VACATE Arviso’s sentence and REMAND to the district court for resentencing. CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED. . 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). . See U.S. Sentencing Guidelines § 4A1.1(b). . United States v. Dodson, 288 F.3d 153, 160 (5th Cir.2002). . United States v. Reveles, 190 F.3d 678, 683 (5th Cir.1999). . United States v. Musquiz, 45 F.3d 927, 931—32 (5th Cir.1995). . United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). . United States v. Martinez, 79 Fed.Appx. 12, 13 (5th Cir.2003) (noting that the defendant filed written objections to the presentence report, but at the sentencing hearing, he \"informed the district court" } ]

[ { "docid": "12682149", "title": "", "text": "might constitute a waiver. See United States v. Fernandez-Cusco, 447 F.3d 382, 384 (5th Cir.2006). In Fernandez-Cusco, the court sua sponte considered whether the defendant waived his appeal of the application of a 16-level enhancement for his prior conviction on the basis that the prior crime was not a “crime of violence.” Id. The court acknowledged that a “defendant does not waive plain-error review simply by ‘failfing] to object to the characterization of his prior offense as a crime of violence.’ ” Id. (quoting United States v. Alfaro, 408 F.3d 204, 207 n. 1 (5th Cir.), cert. denied, 546 U.S. 911, 126 S.Ct. 271, 163 L.Ed.2d 243 (2005)) (alteration in original). But it found that the defendant “did more than fail to object ...; he affirmatively recognized [the enhancement] was being applied and indicated it was proper.” Id. The court concluded that these statements did not rise to the level of waiver, but “arguably” constituted invited error. In an abundance of caution, the court nonetheless reviewed for plain error. Id. Although we recognize the factual similarity here — Andino-Ortega’s counsel acknowledged that the 16-level enhancement was proper — he did so on the basis of a misunderstanding of this court’s precedent. The statements regarding the propriety of the crime-of-violence enhancement do not constitute a waiver because they do not evidence an intentional and knowing relinquishment of a right. Counsel’s failure to object below because he did not recognize the argument now being made on appeal is not a waiver. See United States v. Castaneda-Baltazar, 239 Fed.Appx. 900, 901 (5th Cir.2007) (unpub lished); see also United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir.2006) (finding no waiver of sentencing guidelines issue even though defense counsel stated that “other than the Blakely objection, he had no problem with the PSR”). Accordingly, we review for plain error. Ill Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), this court reviews sentences for reasonableness in light of the factors in 18 U.S.C. § 3553(a). United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.2005). Pursuant to Gall" }, { "docid": "3740608", "title": "", "text": "holding permits and perhaps requires the Court to consider the ... conviction that the defendant has that makes him eligible for career offender to apply here, it may moot the other objections.” The court nevertheless proceeded to resolve the first objection on the merits, concluding that the enhancement was appropriate due to Tichenor’s leadership role and his involvement of a minor (as the driver). Turning to the objection regarding whether resisting law enforcement qualifies as a “crime of violence,” Judge Barker stated: “I will allow the defendant to withdraw, as he properly must, his ob jection based on Sykes versus United States since that decision was handed down about a week ago, that undermines the legal rationale for that objection. So Objection No. 2 is withdrawn.” The Supreme Court has distinguished forfeiture as “the failure to make the timely assertion of a right” and waiver as “the intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)) (internal quotation marks omitted). We have repeatedly recognized that “the withdrawal of an objection generally results in a waiver of that argument on appeal.” United States v. Venturella, 585 F.3d 1013, 1019 (7th Cir. 2009); see also United States v. Kincaid, 571 F.3d 648, 654 (7th Cir.2009) (“[W]e have held that a defendant waived his right to challenge a sentencing calculation by initially objecting to the calculation, but later withdrawing the objection.” (citation omitted)). In Venturella, we determined that the defendant’s withdrawal of a sentencing objection resulted in waiver, not merely forfeiture. 585 F.3d at 1019. In United States v. Knox, we reached the same conclusion, reasoning that the clear statements from defense counsel and the district court indicated that the withdrawal of the objection was a “knowing waiver.” 624 F.3d 865, 875 (7th Cir.2010); see also Kincaid, 571 F.3d at 655-56. When an issue is waived, we cannot review it at all “because a valid waiver leaves no error for us to correct on" }, { "docid": "23450820", "title": "", "text": "of supervised release. II. Discussion The threshold issue in Anderson’s appeal of his sentence is whether he merely forfeited or fully waived his right to object to the guideline calculation. His counsel acknowledges at least the former by stating that “Mr. Anderson did not raise the government’s obligation to move for the third point for acceptance of responsibility in the district court and has forfeited it for review.” If we accept this argument, we would review Judge Randa’s decision for plain error because Anderson never presented his claim to the district court. See Fed.R.Crim.P. 52(b); Puckett v. United States, — U.S. —, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009); United States v. Huffstatler, 571 F.3d 620, 622 (7th Cir. 2009); United States v. Ortiz, 431 F.3d 1035, 1038 (7th Cir.2005). On the other hand, the government asserts that Anderson affirmatively waived his right to appellate review of the third-point reduction by endorsing the PSR. That is, the United States attempts to portray the lack of objections to the government’s compliance with the plea agreement as a strategic decision by Anderson. From this perspective, appellant stayed quiet because he sought to divert the court’s attention from whether any § 3E1.1 adjustment for acceptance of responsibility was appropriate in his case at all. See United States v. Jones, 52 F.3d 697, 701 (7th Cir.1995) (holding that a sentencing judge may look for “genuine remorse” or complete acceptance of responsibility before awarding a reduction under § 3El.l(a)). To distinguish between forfeiture and waiver, we examine a party’s state of mind at the time that an objection could have been raised. Forfeiture takes place when counsel or a defendant negligently bypasses a valid argument. See United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Cooper, 243 F.3d 411, 416 (7th Cir.2001). By contrast, waiver requires a calculated choice to stay silent on a particular matter. Olano, 507 U.S. at 733, 113 S.Ct. 1770 (“[Wjaiver is the ‘intentional relinquishment or abandonment of a known right.’ ”) (citations omitted); United States v. Jaimes-Jaimes, 406 F.3d 845," }, { "docid": "16406237", "title": "", "text": "object below to the district court’s imposition of the sixteen-level increase, this court reviews the district court’s imposition of the enhancement for plain error. See United States v. Villegas, 404 F.3d 355, 358, 2005 WL 627963, at *2 (5th Cir.2005); United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Knowles, 29 F.3d 947, 951 (5th Cir.1994). This court finds plain error when: (1) there was an error; (2) the error was clear and obvious;. and (3) the error affected the defendant’s substantial rights. Olano, 507 U.S. at 732-37, 113 S.Ct. 1770. When these three conditions are all met,, this court may exercise its discretion to correct the error only if the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Mares, 402 F.3d 511, 520-21 (5th Cir.2005) (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). In reviewing Alfaro’s claim of plain error, we begin by determining whether the district court committed an error and whether that error was plain. Villegas, 404 F.3d at 358-62, 2005 WL 627963, at *2-5. In resolving his claim that the district court erred by misapplying § 2L1.2(b)(l)(A)(ii), we review the district court’s interpretation and application of the Guidelines de novo. Id. Under U.S.S.G. § 2L1.2(b)(l)(A)(ii), an alien convicted of unlawfully re-entering, or being unlawfully present in, the United States after previously being deported, faces a sixteen-level enhancement under the Sentencing Guidelines if, prior to his deportation, he had “a conviction for a felony that is ... a crime of violence .... ” The term “crime of violence” includes “murder, manslaughter, kidnaping, aggravated assault, forcible sex offenses (including sexual abuse of a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.” U.S.S.G. § 2L1.2, Application Note 1(B)(II). Additionally, it includes any offense under “federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” Id. Under the categorical approach set forth in Taylor v. United" }, { "docid": "22379239", "title": "", "text": "Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The defendant bears the burden of demonstrating that the error prejudiced his rights. Id. at 734, 113 S.Ct. 1770. After he establishes such, the court should correct the error only if it “seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” Id. at 736, 113 S.Ct. 1770 (internal quotation marks omitted). Under Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the actual statute of prior conviction must be supplied to the district court by the government whether or not anyone objects to its absence: Under [the categorical approach in] Taylor, federal courts do not examine the facts underlying the prior offense, but look only to the fact of conviction and the statutory definition of the prior offense. If the statute criminalizes conduct that would not constitute an aggravated felony under federal sentencing law, then the conviction may not be used for sentence enhancement unless the record includes documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement purposes. Corona-Sanchez, 291 F.3d at 1203 (internal quotation marks and citations omitted). The Ninth Circuit has not yet applied the categorical approach to newly-amended Sentencing Guideline § 2L1.2 (2001), under which, as discussed above, certain prior felony convictions qualify for a 16-level enhancement regardless of their eligibility as statutory-aggravated felonies. Recently, however, we applied a Taylor analysis to the imposition of a sentencing enhancement pursuant to the sentencing guideline for career offenders, U.S.S.G. § 4B1.1. United States v. Shumate, 329 F.3d 1026, 1029 (9th Cir.2003) (examining whether the defendant’s prior offense was a felonious eontrolled-substance offense for guideline purposes). Additionally, the Fifth Circuit has applied the Taylor categorical approach to the application of the 16-level “crime of violence” enhancement under § 2L1.2(b)(l)(A)(ii). Vargas-Duran, 319 F.3d at 196-97 (holding that because the prior crime of “intoxication assault has as an element the use of force against the person of another,” any violation of it qualifies as a “crime of violence”). Accordingly, we hold that Taylor’s categorical approach" }, { "docid": "23461825", "title": "", "text": "points assessed against him. This resulted in a total offense level of 21 and a criminal history category of V, and Mr. Carrasco’s new Guideline range was 70 to 87 months’ imprisonment. Then, the following exchange occurred between the court and defense counsel: THE COURT: All right. There was a presentence report noted. There were objections. I think that all of those now have been resolved, have they not, Mr. Wagman? MR. WAGMAN: Yes, Your Honor. I Aplt. Supp.App. (Tr. Sent. H’g 7/22/05) at 3. After ascertaining that Mr. Carrasco had reviewed the PSR with counsel, the court announced a tentative sentence of 70 months’ imprisonment. Id. at 3-4. Defense counsel stated that his client had no objection to the sentence, id. at 4, and Mr. Carrasco declined to allocute, id. at 6. The court then imposed sentence. Discussion On appeal, Mr. Carrasco seeks to resurrect his argument that the imposition of a 16-level enhancement was improper. Relying upon Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), he contends that the district court erred in adopting the PSR’s characterization of his conviction for fourth-degree criminal sexual conduct as a crime of violence. Aplt. Br. at 6. The government argues that he has waived this argument. Aplee. Br. at 6. This requires us to address waiver and forfeiture. “Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ ” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In other words, “waiver is accomplished by intent, [but] forfeiture comes about through neglect.” United States v. Staples, 202 F.3d 992, 995 (7th Cir.2000). Given this distinction, we have held that “a party that has forfeited a right by failing to make a proper objection may obtain relief for plain error; but a party that has waived a right is not entitled to appellate relief.” United States v. Teague, 443 F.3d 1310, 1314 (10th Cir.2006), cert. denied, — U.S. —, 127 S.Ct." }, { "docid": "12682147", "title": "", "text": "3553(a) factors. The court sentenced Andino-Ortega to 60 months in prison, to be followed by a three-year term of supervised release. II At the outset, we must address the Government’s argument that Andino-Ortega waived the right to appeal his sentence because he specifically addressed the 16-level enhancement under § 2L1.2(b)(l)(A)(ii) and conceded that it was proper under his understanding of the case law. In particular, the Government points to the following statements by defense counsel: The predicate offense in this case was injury to a child.... There is case law that says that injury to a child by omission is not a crime of violence and would only garner a 4-level enhancement. However, there is case law — [particularly, I’m looking here at Perez-Munoz v. Keisler, 507 F.3d 357 [5th Cir.2007], which finds that if there — the injury to a child stems from an intentional act, then it definitely is a crime of violence. Your Honor, ... my client’s position throughout has been that [the injury] was the result of an accident. Now, the fact remains that he pled to the offense as charged in the indictment which charged an intentional offense .... Based on this colloquy, the Government contends that Andino-Ortega “knew of the sentencing guidelines issue and that he consciously chose to forego it.” Andino-Ortega contends that the statements, in fact, show that defense counsel misunderstood Perez-Munoz and failed to account for precedent indicating that the Texas offense of injury to a child is not a “crime of violence.” Waiver is the intentional relinquishment of a known right. United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). A waiver “occurs by an affirmative choice by the defendant to forego any remedy available to him, presumably for real or perceived benefits resulting from the waiver.” United States v. Dodson, 288 F.3d 153, 160 (5th Cir.2002). In contrast, forfeiture is the failure to make the timely assertion of a right. Olano, 507 U.S. at 733, 113 S.Ct. 1770. We have found only one case in this circuit that suggests that counsel’s statements, here," }, { "docid": "23374359", "title": "", "text": "21, the U.S. Probation Office arrived at a Guideline sentencing range of 46 to 57 months imprisonment and recommended that the court sentence Castillo-Marin to 51 months. The government requested a sentence of 46 months. The defense made no objection, either in writing or at the sentencing hearing itself, to the PSR’s characterization of the prior conviction as a “crime of violence” for sentencing purposes. Rather, Castillo-Marin’s counsel made other arguments pursuant to 18 U.S.C. § 3553(a) that Castillo-Marin’s sentence should be reduced below the low end of the Guideline range, including his contention that the application of the 16-level enhancement produced a Guideline sentencing range “which overstates the seriousness of Mr. Castillo’s unlawful re-entry offense and criminal record.” He further argued that Castillo-Marin only had two removals and one felony which was a “few years old” and requested a sentence below the Guideline range at 37 months. The district court stated at sentencing that he was “taking [the government’s] recommendation” and sentenced Castillo-Marin to 46 months imprisonment, a sentence which factored in the 16-level enhancement for a crime of violence. This timely appeal followed. II. STANDARD OF REVIEW Under the plain error standard of review, the appellant must show that the district court made (1) an error (2) that was clear or obvious, (3) that affected substantial rights, and (4) that seriously affected the fairness, integrity or public reputation of judicial proceedings. See United States v. Johnson, 626 F.3d 1085, 1088 (9th Cir.2010). For an error to have affected substantial rights, “in most cases it means that the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). III. DISCUSSION To determine whether a conviction qualifies as a crime of violence under U.S.S.G. § 2L1.2, courts apply the approach set forth in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under that approach, courts first consider whether a prior offense “is categorically a crime of violence by assessing whether the full" }, { "docid": "22924234", "title": "", "text": "“We do. However, we reserve the right and opportunity to argue for a departure, Your Honor.” II. ANALYSIS A. Waiver versus forfeiture We must first determine whether Jaimes waived or merely forfeited any challenge to the probation officer’s recommendation that he receive a 16-level increase. Waiver is the intentional relinquishment of a known right. United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Jacques, 345 F.3d 960, 962 (7th Cir.2003). Forfeiture is the failure to timely assert a right. Olano, 507 U.S. at 733, 113 S.Ct. 1770; Jacques, 345 F.3d at 962. Waiver precludes appellate review, but forfeiture permits review for plain error. Olano, 507 U.S. at 733-34, 113 S.Ct. 1770; Jacques, 345 F.3d at 962. The government contends that Jaimes waived his right to challenge the calculation of his sentence and directs our attention to United States v. Staples, 202 F.3d 992, 995 (7th Cir.2000). According to the government, we held in Staples that defense counsel’s representations that he had discussed the presentence report with his client and that they had no objections constituted a waiver of a guidelines calculation included in the report because counsel’s statements evidenced that the defendant knew at the time of sentencing that he could object to that particular sentencing calculation but affirmatively decided not to object. See id. Here, the government contends that when Jaimes’s attorney told the district court at sentencing that he had no objections to the probation officer’s calculation of the guideline range, Jaimes likewise waived any challenge to the sentencing calculation at issue in this appeal. We do not read Staples as rigidly as the government urges. Although counsel’s representations obviously are significant, a lawyer’s statement at sentencing that the defendant does not object to anything in the presentence report does not inevitably constitute a waiver of the defendant’s right to challenge on appeal any guideline calculation included in that report. See United States v. Jimenez, 258 F.3d 1120, 1124 (9th Cir.2001). We indeed have found waiver in circumstances where defense counsel made a representation at sentencing similar to the" }, { "docid": "23461828", "title": "", "text": "such grounds. 294 F.3d 921, 922 (7th Cir.2002). The defendant had objected to the enhancement in advance of sentencing, contending that his prior conviction did not qualify as a crime of violence. However, when asked whether he disputed the total offense level calculated in the PSR at sentencing, the defendant responded through counsel, “We do not.” Id. at 922. The Seventh Circuit explained: By such statement, Martinez plainly communicated an intention to relinquish and abandon any arguments related to his offense level calculation.... Further, Martinez-Jimenez can hardly claim ignorance on the part of himself or anyone else where, as here, he and the government submitted arguments concerning the very sentencing calculation issue for which he now seeks appellate review, and the probation officer prepared a supplemental report outlining and explaining the offense level computations of which all parties and the court were aware. Martinez-Jimenez has waived any challenge to the district court’s offense level calculation and appellate review is precluded. Id. at 923 (internal citations omitted). We agree. There can be no clearer “intentional relinquishment or abandonment of a known right,” Olano, 507 U.S. at 733, 113 S.Ct. 1770, than when the court brings the defendant’s prior objection to his attention, asks whether it has been resolved, and the defendant affirmatively indicates that it has, cf. United States v. Denkins, 367 F.3d 537, 543 (6th Cir.2004) (holding that a PSR objection was waived because “[h]aving expressly raised this issue ... Defendant and his counsel then proceeded to abandon it”); United States v. Thompson, 289 F.3d 524, 527 (8th Cir.2002) (“Because the lawyer who represented Thompson in the district court withdrew Thompson’s objections to the PSR, Thompson is precluded from arguing those objections on appeal.”). Mr. Carrasco waived his objection to the 16-level enhancement by indicating to the district court that it had been resolved. The sequence of events also demonstrates that the waiver was knowing and voluntary, and Mr. Carrasco has made no argument to the contrary. Accordingly, Mr. Carras-co is precluded from challenging the 16-level enhancement on appeal. AFFIRMED." }, { "docid": "22924239", "title": "", "text": "that the 16-level increase might be erroneous. Forfeiture occurs because of neglect while waiver happens intentionally. See Sumner, 265 F.3d at 537. There is no indication that Jaimes intended to relinquish his right to be sentenced at the lower offense level, and we can conceive of no tactical reason why he would choose to be sentenced at- a higher offense level. As we are left with the conclusion that Jaimes’s failure to challenge the 16-level adjustment could have resulted only from an oversight by his attorney, we find that he forfeited, rather than waived, his sentencing challenge. B. Sixteen-Level Adjustment Because Jaimes forfeited his argument concerning the calculation of his sentence by failing to raise it in the district court, our review is for plain error. See Olano, 507 U.S. at 732, 113 S.Ct. 1770; Cooper, 243 F.3d at 415; see also Fed.R.Crim.P. 52(b). Under a plain error standard, an error must be clear or obvious and affect substantial rights. Sumner, 265 F.3d at 539. Even then, we are not required to correct the error but may exercise our discretion to do so if the error “ ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Kibler, 279 F.3d 511, 514 (7th Cir.2002) (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770). We begin with the question of whether the increase was erroneous. The Guidelines state that a defendant should receive a 16-level adjustment if he has a prior conviction for a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). A “crime of violence” is defined in § 2L1.2 as: [A]ny of the following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another. U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii) (emphasis added). Jaimes has not been convicted of any of the enumerated crimes, so only the latter part of this definition" }, { "docid": "22924233", "title": "", "text": "whether his conviction also meets the requirements for one of the higher increases. Vargas-Garnica, 332 F.3d at 474. In making the change, the Sentencing Commission observed that the previous system “sometimes result[ed] in disproportionate penalties,” and thus it decided to impose “a more graduated sentencing enhancement ... depending on the seriousness of the prior aggravated felony and the dangerousness of the defendant.” U.S.S.G., App. C, amend, 632 (effective Nov. 1, 2001). As relevant here, the Guidelines now provide that a 16-level increase is warranted if the defendant’s prior conviction qualifies as a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The plea agreement recommended a 16-level increase because of the parties’ assumption that Jaimes had incurred a “pre-deportation conviction of a crime of violence.” In the presentence report, the probation officer likewise recommended a 16-level increase for a crime of violence. At sentencing the district court read aloud the total offense level, criminal history score, and imprisonment range recommended in the presentence report and asked Jaimes’s counsel, “[D]o you and your client accept those guidelines?” Counsel responded: “We do. However, we reserve the right and opportunity to argue for a departure, Your Honor.” II. ANALYSIS A. Waiver versus forfeiture We must first determine whether Jaimes waived or merely forfeited any challenge to the probation officer’s recommendation that he receive a 16-level increase. Waiver is the intentional relinquishment of a known right. United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Jacques, 345 F.3d 960, 962 (7th Cir.2003). Forfeiture is the failure to timely assert a right. Olano, 507 U.S. at 733, 113 S.Ct. 1770; Jacques, 345 F.3d at 962. Waiver precludes appellate review, but forfeiture permits review for plain error. Olano, 507 U.S. at 733-34, 113 S.Ct. 1770; Jacques, 345 F.3d at 962. The government contends that Jaimes waived his right to challenge the calculation of his sentence and directs our attention to United States v. Staples, 202 F.3d 992, 995 (7th Cir.2000). According to the government, we held in Staples that defense counsel’s representations that he had discussed the presentence report with" }, { "docid": "4997982", "title": "", "text": "a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A),” and otherwise explains its sentence in terms of 18 U.S.C. § 3553, the resulting sentence does not result from an incorrect application of the Guidelines. Id. Here, the district court considered the 46 to 57-month range with the crime of violence enhancement and the 10 to 16-month range advocated by the defense. This case would be indistinguishable from Bonilla but for an argument raised for the first time on appeal. Ruiz-Arriaga now asserts that the sentence range without the crime of violence enhancement, 10 to 16 months, suggested by his counsel during the sentencing hearing, was also incorrect. He claims that this range was based on a level that erroneously assigned him a criminal history point for an earlier Texas misdemeanor conviction for failing to identify himself as a fugitive to an officer. The elements of this conviction, he argues, were not similar to his current offense under U.S.S.G. § 4A1.2(c)(1). The correct range should have been 8 to 14 months, lowering the range by two months. Because this point of error was not argued before the district and given that this range was suggested by his counsel, we review this claim for plain error. To prove plain error, Ruiz-Arriaga must “show (1) there was error, (2) the error was plain, (3) the error affected his ‘substantial rights,’ and (4) the error seriously affected ‘the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Jones, 489 F.3d 679, 681 (5th Cir.2007) (quoting United States v. Olano, 507 U.S. 725, 732, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). To satisfy the “substantial rights” prong, “in most cases ... the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. Further, “[i]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.” Id. First, we cannot attribute “plain” error to a district court decision when defense counsel affirmatively represented to the district court a sentencing range that appellate counsel" }, { "docid": "12643968", "title": "", "text": "any other issue he deemed appropriate. II. DISCUSSION A. Waiver or Forfeiture Whether the district court has followed the proper procedures in determining a sentence is a question of law, subject to de novo review. United States v. Clinton, 591 F.3d 968, 972 (7th Cir.2010). However, as Rodriguez did not ob ject to his sentence in the district court, we must first address whether Rodriguez waived or merely forfeited any challenge to the probation officer’s recommendation that he receive a 16-level increase. Waiver is the intentional relinquishment of a known right, whereas forfeiture is the failure to timely assert a right. United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Jacques, 345 F.3d 960, 962 (7th Cir.2003). Waiver precludes appellate review, but forfeiture permits review for plain error. Olano, 507 U.S. at 733-34, 113 S.Ct. 1770; Jacques, 345 F.3d at 962. We held in United States v. Jaimes-Jaimes that if a specific objection was not raised at sentencing, we will view it as having been waived if the defendant had a strategic reason to forego the argument. 406 F.3d 845, 848 (7th Cir.2005). Our duty when considering waiver is to divine from the record an intent to forego an argument. United States v. Garcia, 580 F.3d 528, 542 (7th Cir.2009). Rodriguez said the following at sentencing: The only thing that makes me a little bit overwhelmed or sad, because I use— and, like I said, I don’t know your laws.... And if I didn’t have a record and if I hadn’t been given 16 points.... And that increase of the 16 levels because of a crime I have already paid my debt ... for the same crime.... Sent. Tr. at 21. We do not think this statement indicates that Rodriguez intended to relinquish his right to be sentenced at a lower offense level, only that he had come to terms that his previous conviction made him eligible for a sentence enhancement. In addition, we cannot conceive of a strategic reason why defense counsel failed to object to the enhancement, other than" }, { "docid": "23175553", "title": "", "text": "count of illegal reentry following removal in violation of 8 U.S.C. § 1326. Prior to his removal, Gonzalez was convicted of residential burglary in violation of California Penal Code § 459. Because of that conviction, Gonzalez’s pre-sentence report (PSR) recommended a 16-level crime-of-violence enhancement under U.S.S.G. § 2L1.2(b)(l)(A). This enhancement resulted in a guideline range of 57 months to 71 months imprisonment. The district court adopted the recommendation and sentenced Gonzalez to 57 months imprisonment. Gonzalez appeals. Gonzalez argues that the district court plainly erred in applying the 16-level enhancement because, under this court’s decision in United States v. Ortega-Gonzaga, 490 F.3d 393 (5th Cir.2007), a conviction under California Penal Code § 459 for residential burglary does not constitute a crime of violence for the purposes of U.S.S.G. § 2L1.2(b)(l)(A). We review the district court’s application and interpretation of the sentencing guidelines de novo and its factual findings for clear error. United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir.2008); United States v. Villegas, 404 F.3d 355, 358 (5th Cir.2005). As Gonzalez concedes, because Gonzalez failed to object to the district court’s imposition of the 16-level crime-of-violence enhancement, we review this issue for plain error. See United States v. Garza-Lopez, 410 F.3d 268, 272 (5th Cir.2005). Plain error occurs when: “(1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant’s substantial rights.” Villegas, 404 F.3d at 358 (citing United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). If each of these conditions is satisfied, we may exercise our discretion to correct the error only if “the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Garza-Lopez, 410 F.3d at 272 (internal quotation marks omitted). Applying the plain error analysis, we must first determine whether there was an error. Section 2L1.2(b)(l)(A)(ii) provides for a 16-level sentencing enhancement for a defendant deported after committing — among other things — a “crime of violence.” The Application Notes to § 2L1.2 define “crime of violence” to include “burglary of a dwelling” or any felony that" }, { "docid": "16616711", "title": "", "text": "to the enhancement. To the contrary, he agreed that Diaz’ prior firearms conviction “certainly is a 16-level enhancement with the categorical approach [used by the 2001 version for ‘a firearms offense’]. All firearm offenders ... automatically [receive a] 16-level enhancement”. As Diaz concedes on appeal, because he failed to object to the enhancement, including failing to raise in district court the ex post facto claim belatedly presented now, his claim is reviewed only for plain error. E.g., United States v. Calverley, 37 F.3d 160, 162 (5th Cir.1994) (en banc), cert. denied, 513 U.S. 1196, 115 S.Ct. 1266, 131 L.Ed.2d 145 (1995). Under this standard, we will reverse a district court’s decision only if there was a “clear” or “obvious” error that affected a defendant’s substantial rights. E.g., United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Even then, we have discretion; generally, we will reverse only if the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings”. Id. at 732, 113 S.Ct. 1770 (citations omitted). For the 2001 version of § 2L1.2 in effect at the time of sentencing, Diaz is subject to the enhancement. Therefore, our ex post facto analysis keys on whether Diaz would have been subject to the same en hancement under the 2000 version, which was in effect at the time of his offense. The applicable guideline under the 2001 version is § 2L1.2(b)(l)(A)(iii) (enhancement for “a firearms offense”). Under the 2000 version, the applicable guideline is § 2L1.2(b)(l)(A); a 16-level enhancement was appropriate when the prior conviction was an “aggravated felony”, as defined in 8 U.S.C. § 1101(a)(48). U.S.S.G. § 2L1.2, cmt. n. 1 (2000). The Government maintains short-barrel firearm possession qualifies as such an “aggravated felony” in either of two ways under 8 U.S.C. § 1101(a)(43): (1) under subsection (F), as a “crime of violence”; and (2) under subsection (E)(iii), as an offense “described in” 26 U.S.C. § 5861. Of course, because Diaz did not object to the enhancement under the 2001 version discussed in the PSR, the district court did not conduct the ex" }, { "docid": "12643967", "title": "", "text": "There is a base offense level of eight for violation of 8 U.S.C. § 1326(a) and (b)(2) under the Guideline 2L1.2(a). And because he was previously deported after a conviction for a felony that was a crime of violence, under 2L1.2(b)(l)(A)[ii] there is a 16-level increase, putting us at an adjusted offense level, before considering acceptance of responsibility, at 24. Does everyone agree with that? AUSA: The Government agrees. DEFENSE: We agree. Sent. Tr. 5-6 (App.11-12). After rejecting an acceptance-of-responsibility adjustment, overruling the objection to Rodriguez’s criminal history category, and listening to the mitigation in sentence argument, the district court imposed a sentence of 100 months’ imprisonment. Thereafter, Rodriguez filed a notice of appeal. Appointed counsel filed a motion for leave to withdraw, stating that he had reviewed the record and found no non-frivolous basis for appeal. We denied this motion and directed appointed counsel to file a brief discussing whether the district court committed plain error by adding 16 levels to his base offense level, based on the aggravated battery conviction, as well as any other issue he deemed appropriate. II. DISCUSSION A. Waiver or Forfeiture Whether the district court has followed the proper procedures in determining a sentence is a question of law, subject to de novo review. United States v. Clinton, 591 F.3d 968, 972 (7th Cir.2010). However, as Rodriguez did not ob ject to his sentence in the district court, we must first address whether Rodriguez waived or merely forfeited any challenge to the probation officer’s recommendation that he receive a 16-level increase. Waiver is the intentional relinquishment of a known right, whereas forfeiture is the failure to timely assert a right. United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Jacques, 345 F.3d 960, 962 (7th Cir.2003). Waiver precludes appellate review, but forfeiture permits review for plain error. Olano, 507 U.S. at 733-34, 113 S.Ct. 1770; Jacques, 345 F.3d at 962. We held in United States v. Jaimes-Jaimes that if a specific objection was not raised at sentencing, we will view it as having been waived" }, { "docid": "12682148", "title": "", "text": "fact remains that he pled to the offense as charged in the indictment which charged an intentional offense .... Based on this colloquy, the Government contends that Andino-Ortega “knew of the sentencing guidelines issue and that he consciously chose to forego it.” Andino-Ortega contends that the statements, in fact, show that defense counsel misunderstood Perez-Munoz and failed to account for precedent indicating that the Texas offense of injury to a child is not a “crime of violence.” Waiver is the intentional relinquishment of a known right. United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). A waiver “occurs by an affirmative choice by the defendant to forego any remedy available to him, presumably for real or perceived benefits resulting from the waiver.” United States v. Dodson, 288 F.3d 153, 160 (5th Cir.2002). In contrast, forfeiture is the failure to make the timely assertion of a right. Olano, 507 U.S. at 733, 113 S.Ct. 1770. We have found only one case in this circuit that suggests that counsel’s statements, here, might constitute a waiver. See United States v. Fernandez-Cusco, 447 F.3d 382, 384 (5th Cir.2006). In Fernandez-Cusco, the court sua sponte considered whether the defendant waived his appeal of the application of a 16-level enhancement for his prior conviction on the basis that the prior crime was not a “crime of violence.” Id. The court acknowledged that a “defendant does not waive plain-error review simply by ‘failfing] to object to the characterization of his prior offense as a crime of violence.’ ” Id. (quoting United States v. Alfaro, 408 F.3d 204, 207 n. 1 (5th Cir.), cert. denied, 546 U.S. 911, 126 S.Ct. 271, 163 L.Ed.2d 243 (2005)) (alteration in original). But it found that the defendant “did more than fail to object ...; he affirmatively recognized [the enhancement] was being applied and indicated it was proper.” Id. The court concluded that these statements did not rise to the level of waiver, but “arguably” constituted invited error. In an abundance of caution, the court nonetheless reviewed for plain error. Id. Although we recognize the factual" }, { "docid": "19371788", "title": "", "text": "will grant the defendant’s motion in part only. Id. at 36-37. The district court then recited the facts of Mr. Rosales-Miranda’s previous convictions, including that he attacked his wife “with his fist, kicking her, banging her head against a solid tile floor and striking her on the arms twice.” Id. at 37. “Significantly,” the district court added, “the defendant did not complete the anger management classes required by his state court sentence.” Id. Following that discussion, the district court announced that it would “impose a downward variant sentence based on [its] policy disagreement with the substantial effect that Section 2L1.2’s double counting of defendant’s prior felony conviction[s] has on Mr. [Rosales-Miranda’s] guideline range.” Id. at 38. Moreover, having thus stated this policy disagreement, the court proceeded to present another: I will also grant defendant’s motion on the basis ... that this particular guideline’s sentencing enhancements are divorced from empirical data. As I examined in Garcia-Jaquez, the Sentencing Commission did no study to determine if this guideline’s enhancements for prior convictions served any legitimate peno-logical goal. As a result I find that in this case Section 2L1.2’s sentencing range does not necessarily reflect a sentence that might achieve Section 3553(a)’s objectives. Id. Acting on these two policy disagreements, the district court sentenced Mr. Rosales-Miranda to thirty-six months in prison. Mr. Rosales-Miranda filed a timely notice of appeal. II On appeal, the parties agree that the district court committed a sentencing error and that the error was clear or obvious. The parties also agree that Mr. Rosales-Miranda failed to preserve an objection to that error. This forfeiture triggers plain-error review. See Fed.R.Crim.P. 52(b); United States v. Vasquez-Alcarez, 647 F.3d 973, 976 (10th Cir.2011) (“If [the defendant] has forfeited the ... argument, we review ... only for plain error.”); United States v. Gonzalez-Jaquez, 566 F.3d 1250, 1251 (10th Cir.2009) (reviewing for plain error, where defense counsel failed to object to the district court’s finding that offense was a crime of violence implicating sentencing enhancement); see also United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (prescribing plain-error" }, { "docid": "23175554", "title": "", "text": "Gonzalez failed to object to the district court’s imposition of the 16-level crime-of-violence enhancement, we review this issue for plain error. See United States v. Garza-Lopez, 410 F.3d 268, 272 (5th Cir.2005). Plain error occurs when: “(1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant’s substantial rights.” Villegas, 404 F.3d at 358 (citing United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). If each of these conditions is satisfied, we may exercise our discretion to correct the error only if “the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Garza-Lopez, 410 F.3d at 272 (internal quotation marks omitted). Applying the plain error analysis, we must first determine whether there was an error. Section 2L1.2(b)(l)(A)(ii) provides for a 16-level sentencing enhancement for a defendant deported after committing — among other things — a “crime of violence.” The Application Notes to § 2L1.2 define “crime of violence” to include “burglary of a dwelling” or any felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” See Ortega-Gonzaga, 490 F.3d at 394. The only question here is whether Gonzalez’s conviction under California law for residential burglary constituted the enumerated offense of “burglary of a dwelling” under the categorical approach. See id. Under this court’s decision in Ortega-Gonzaga, it is clear that it did not. In Ortega-Gonzaga, this court analyzed the California offense of residential bur glary under California Penal Code § 459, applying the categorical approach, and concluded that it did not constitute the enumerated offense of burglary of a dwelling under U.S.S.G. § 2L1.2. Id. at 394-96. In answering the question, the court “look[ed] to the ‘generic, contemporary’ meaning of burglary of a dwelling, employing a ‘common sense approach.’ ” Id. at 394 (quoting United States v. Santiesteban-Hernandez, 469 F.3d 376, 378-79 (5th Cir.2006)). The court reasoned that the California offense of residential burglary was not equivalent to the enumerated offense of burglary of a dwelling under U.S.S.G. § 2L1.2 because" } ]

[ { "docid": "22234982", "title": "", "text": "case, which was dependent upon a contingency so uncertain, as the court held, that its liquidation or valuation was impossible. In the meantime, leading text writers have stated that the liability of an endorser, upon a note falling due after the petition, is provable under § 63 (a) (4). 1 Loveland on Bankruptcy (4th ed.) p. 609; 2 Collier on Bankruptcy (13th ed.) pp. 1399-1400; 2 Remington on Bankruptcy (3rd ed.) § 777. Only compelling language in the statute itself would warrant the rejection of a construction so long and so generally accepted, especially where overturning the established practice would have such far reaching consequences as in the present instance. But such language is wanting in § 63. That section purports to be an enumeration of classes of provable claims—not an enumeration of characteristics which must inhere in every claim proved. Only by reading into subdivision (a) (4) the limitation of subdivision (a) (1) that the claim must be absolutely owing, would there be ground for rejecting a claim against a bankrupt endorser as not complying with the former. Respondent argues that (a) (4) must be so read, since, otherwise, the limitation in (a) (1) would be practically without effect. See In re Roth & Appel, 181 Fed. 667; In re Hutchcraft, 247 Fed. 187. But this contention was rejected by the decision in Williams v. U. S. Fidelity Co., supra; see Central Trust Co. v. Chicago Auditorium, supra, pp. 592, 593, and is not supported, as respondent contends, by Zavelo v. Reeves, 227 U. S. 625. That case held only that § 63, read in the light of the spirit and purpose of the Act, did not authorize proof of claim upon an obligation entered into by the bankrupt after the filing of the petition. See In re Burka, 104 Fed. 326. Possible doubts as to the meaning of the section should be resolved in the light of the purpose of the Act “ to convert the assets of the bankrupt into cash for distribution among creditors and then to relieve the honest debtor from the weight of oppressive" } ]

[ { "docid": "22765192", "title": "", "text": "law. Can it be that Congress intended that every wrongful arrest and detention of an individual, or seizure of his property by an officer of the government, should expose it to an action for damages in the Court of Claims ? If any such breadth of jurisdiction was contemplated, language which had already been given a restrictive meaning would have been carefully avoided. It is true also that to jurisdiction over claims founded “ upon any contract, expressed or implied, with the government of the United States,” is added jurisdiction over claims “ for damages, liquidated or unliquidated,” but this grant is limited by the provision “in cases not sounding in tort.” This limitation, even if qualifying only the clause immediately preceding, and-not extending to the entire grant of jurisdiction found in the section, is a clear endorsement of the frequent ruling of this court that cases sounding in tort are not cognizable in the Court of Claims. That this action is one sounding in tort is clear. It is in form one to recover damáges. The petition charges a wrongful appropriation by the government, against the protest of the' claimants, and prays to recover the damages done by such wrong. The successive allegations place the parties in continued antagonism to each other, and there is no statement tending to show a coming together of minds in respect to anything. It is plainly and solely an action for an infringement, and in this connection reference may- be made to the statutory provision (Eev. Stat. § 4919) of an action on the case, as the legal remedy for the recovery of damages for the infringement of a patent. If it be said that a party may sometimes waive a tort and sue in assumpsit, as on an implied promise, it is technically a sufficient reply to say that these claimants have not done so. They have not counted on any promise, either express or implied. But we do not care to rest our decision upon the mere form of action. The transaction as stated in the petition, and as disclosed by" }, { "docid": "10312656", "title": "", "text": "tort action in the state court thereby losing the right to file the result of that action as a claim in bankruptcy. The suit in the state court was one in equity. The sole purpose of that action was a rescission of the contract of exchange of properties with the contemplated result of returning to the heirs and widow of Barney the land he had parted with under that contract. Had it been a tort action for damages because of the tort committed by Peters in his fraudulent conduct resulting in the exchange, the action would have been one at law. This action was for the return of property which Peters, in conscience, should return. In legal aspect, the action is somewhat analogous to one for money had and received. It is quasi contractual in character and effect. The circumstances that fraud is the basis of the rescission is not controlling. The distinction to be borne in mind is between rights which are founded purely on tort and rights wherein there is a tortious element but where such may be waived and a right of contract or quasi contract remains. This distinction is clearly marked in Sehall v. Camors, 251 U. S. 239, 251, 40 S. Ct. 135, 64 L. Ed. 247, and Stalick v. Slack, 269 E. 123, 124, this court. Where the right is of the latter character it is of a kind which may be proven in bankruptcy. This is well stated in Crawford v. Burke, 195 U. S. 176, 193, 25 S. Ct. 9, 13, 49 L. Ed. 147, as follows: “We are, therefore, of opinion that if a debt originates or is ‘founded upon an open account qr upon a contract, express or implied,’ it is provable against the bankrupt’s estate, - though the creditor may elect to bring his action in trover, as for a fraudulent conversion, instead of in assumpsit, for a balance due upon an open account. It certainly could not have been the intention of Congress to extend the operation of the discharge under § 17 [11 USCA § 35] to" }, { "docid": "14356874", "title": "", "text": "provability. But Judge Patterson was plainly aware of this principle when he considered the problem. He nevertheless concluded: “It is in line with the main purposes of the Bankruptcy Act to resolve doubt in favor of provability. * * * And yet in the case of claims like those for patent infringement there are strong practical considerations the other way. Time is of the essence in bankruptcy administration. An early distribution of a bankrupt’s assets among his creditors is imperative. * * * If claims for patent infringement are. provable, the result will certainly be both tedious delay and consumption of the assets of the estate in litigating the issues whether the claimant’s patent is valid, whether the bankrupt infringed it, and whether the bankrupt realized any profits. It is common knowledge that the ordinary patent suit takes several years.” 8 F.Supp. at pages 646-647. I see no reason why these considerations are not equally valid today. Thus, I am of the opinion that the plaintiff’s claim was not provable. This renders it unnecessary to consider plaintiff’s alternative contention that his claim was not dischargeable because it was for “willful and malicious injuries.” The defendant’s motion for summary judgment is denied. So ordered. . Even if a debt is provable, 11 U.S.C.A. § 35 enumerates a number of debts which are, nonetheless, not released by a discharge." }, { "docid": "2480509", "title": "", "text": "interests accrued after the filing of the petition and up to the time of the entry of such judgments, (b) Unliquidated claims against the bankrupt may, pursuant to application to the court, be liquidated in such manner as it shall direct, and may thereafter be proved and allowed against his estate.” A claim based on a tort as known at common law is undoubtedly provable whenever it may be resolved into an implied contract. Eor example, it is a settled rule that where a tort-feasor by conversion of personal properly has sold the property converted, and received cash therefor, the true owner may sue him for money had and received as on an implied contract. This, of course, is a mere fiction of law; but, like all other such fictions, it is effectual when it will accomplish the ends of justice. So that, in that case, the owner of the propefty may proceed- for a tort, or, at his option, on an implied contract, which would entitle him to make proof under section 63. An illustration appears in Tindle v. Birkett, 205 U. S. 183, 186, 27 Sup. Ct. 493, 51 L. Ed. 762. On the other hand, a mere tort, for example, a trespass involving a mere destruction of property, does not lay the foundation for a proceeding under that section. The force of Crawford v. Burke, 195 U. S. 176, 25 Sup. Ct. 9, 49 L. Ed. 147, is not correctly understood by the appellee here. This is made plain by what is said in Dunbar v. Dunbar, 190 U. S. 340, 350, 23 Sup. Ct. 757, 47 L. Ed. 1084, in the-opening paragraph; so that the result of it all is that claims for mere torts, like personal injuries and injuries to real property, are not provable, as was determined by the Circuit Court of Appeals for the Third Circuit in Brown & Adams v. United Button Co., 149 Fed. 48, 79 C. C. A. 70, 8 L. R. A. (N. S.) 961 (1906), and by the Circuit Court of Appeals for the Second Circuit in In" }, { "docid": "4346948", "title": "", "text": "creditor, and dependent upon an event so fortuitous as to make it uncertain whether liability will ever attach. In re Merrill & Baker (C. C. A.) 186 F. 312. Such a claim could not bo proved under the Act of 1841 although in terms permitting proof of contingent claims. Riggin v. Magwire, 15 Wall. 549, 21 L. Ed. 232. Or, the contingency may be such as to make any valuation of the claim impossible, even though liability has attached. Of this latter class was the claim upon the bankrupt’s contract to pay his divorced wife a specified amount annually so long as she should remain unmarried, proof of which was for that reason rejected in Dunbar v. Dunbar, supra [190 U. S. 340, 23 S. Ct. 757, 47 L. Ed. 1084]; see Atkins v. Wilcox (C. C. A.) 105 F. 595, 53 L. R. A. 118. “But the liability of an indorser is of neither class. Its amount is certain; and the contingency of notice of dishonor to the indorser is within the control of the creditor, so as to place his claim, so far as its certainty of accrual and its susceptibility of liquidation are concerned, upon the same footing as the contract of indemnity which was held provable in Williams v. U. S. Fidelity Co., supra [236 U. S. 549, 35 S. Ct. 289; 59 L. Ed. 713], although the claimant had done nothing at the time of the bankruptcy to satisfy the liability for which the indemnity was given. See, also, Central Trust Co. v. Chicago Auditorium, supra, pages 593, 594 of 240 U. S., 36 S. Ct. 412 [60 L. Ed. 811, L. R. A. 1917B, 580].” In a scholarly periodical article, “Rent Claims in Bankruptcy,” 33 Col. L. Rev. 313, it is urged that the liberal attitude evinced by the Supreme Court with respect to the allowance of contingent claims against bankrupt indorsers of unmatured commercial paper might well induce the lower federal courts to modify their rulings as to claims upon leases. But until so instructed by the court of final authority we are" }, { "docid": "4346945", "title": "", "text": "1), and In re Amstein, 101 F. 706 (D. C. S. D. N. Y.). See, also, In re Schulte United, 2 F. Supp. 285 (D. C. S. D. N. Y.); In re Jorolemon-Oliver Co., 213 F. 625 (C. C. A. 2). Compare In re Barton Co., 34 F.(2d) 517 (D. C. D. N. H.); Trust Co. of Georgia v. Whitehall Holding Co., 53 F.(2d) 635 (C. C. A. 5); In re Desnoyers Shoe Co., 227 F. 401, 402 (C. C. A. 7). The two eases last citad are perhaps distinguishable from those where the claims were held nonprovable; in the Whitehall Case it is said that the contract contained clauses “voiding the lease in the event of bankruptcy,” and in the Desnoyers Shoe Co. Case the lease was to cease at the option of the lessor “if the lessee becomes insolvent or bankrupt.” The eases which have denied provability to claims based upon a covenant to restore alterations at the termination or expiration of a lease have stressed the language of section 63a (1) of the Bankruptcy Act, 11 US CA § 103 (a) (1) requiring the bankrupt’s debt to be “a fixed liability * * * absolutely owing at the time of the filing of the petition against him, whether then payable or not.” McDonnell v. Woods, supra, was decided after the Supreme Court had announced in Central Trust Co. v. Chicago Auditorium, 240 U. S. 581, 36 S. Ct. 412, 60 L. Ed. 811, L. R. A. 1917B, 580, the doctrine that bankruptcy is an anticipatory breach of the bankrupt’s executory contracts, although it gives little or no consideration to the language of section 63a (4), 11 USCA § 103 (a) (4) whieh permits proof of a debt “founded * * * upon a contract express or implied.” That claims provable under the latter subdivision need not be abso lutely owing at the time of the filing of the petition is made clear by the recent opinion of Mr. Justice Stone in Maynard v. Elliott, 283 U. S. 273, 51 S. Ct. 390, 75 L. Ed. 1028. It" }, { "docid": "4346949", "title": "", "text": "the creditor, so as to place his claim, so far as its certainty of accrual and its susceptibility of liquidation are concerned, upon the same footing as the contract of indemnity which was held provable in Williams v. U. S. Fidelity Co., supra [236 U. S. 549, 35 S. Ct. 289; 59 L. Ed. 713], although the claimant had done nothing at the time of the bankruptcy to satisfy the liability for which the indemnity was given. See, also, Central Trust Co. v. Chicago Auditorium, supra, pages 593, 594 of 240 U. S., 36 S. Ct. 412 [60 L. Ed. 811, L. R. A. 1917B, 580].” In a scholarly periodical article, “Rent Claims in Bankruptcy,” 33 Col. L. Rev. 313, it is urged that the liberal attitude evinced by the Supreme Court with respect to the allowance of contingent claims against bankrupt indorsers of unmatured commercial paper might well induce the lower federal courts to modify their rulings as to claims upon leases. But until so instructed by the court of final authority we are unwilling to press the decision of Maynard v. Elliott so far. The Auditorium opinion expressly excluded ajjpliealion of the anticipatory breach doctrine to covenants to pay rent for land (240 U. S. 581, 590, 36 S. Ct. 412, 60 L. Ed. 811, L. R. A. 1917B, 580), and the distinction was again noted in Wm. Filene’s Sons Co. v. Weed, 245 U. S. 597, 601, 38 S. Ct. 211, 62 L. Ed. 497. See, also, Wells v. Twenty-First Street Realty Co., 12 F.(2d) 237 (C. C. A. 6). We still regard claims for future rent for land as too contingent to be proved against the bankrupt lessee. See In re Metropolitan Chain Stores, Inc. (Malavazos v. Irving Trust Co.) 66 F.(2d) 482 (C. C. A.) and Manhattan Properties, Inc., v. Irving Trust Co. (C. C. A.) 66 F.(2d) 470, handed down herewith. It follows that a lease of real estate is not terminated by bankruptcy, and a bankrupt lessee may still he held for future rent, and, if he pays it, may still continue to" }, { "docid": "2968996", "title": "", "text": "was made after hearing the adverse interests, yet the rules of court provide a method of orderly procedure which must be observed when it is desired to test the validity of any order. Since the appellants did not do this, but disregarded the rules without showing good cause therefor and without showing good and sufficient reason on the merits for reversing the- referee, the petition was properly dismissed. As to the order of September 20, 1929, the petition in bankruptcy was filed on May 22, 1929. The filing of the petition was a caveat to all the world and in effect an attachment and injunction. The property of the bankrupt was from that time in custodia legis, and thereafter jurisdiction to administer the assets of the bankrupt’s estate was exclusively in the bankruptcy court. Mueller v. Nugent, 184 U. S. 1, 14, 22 S. Ct. 269, 46 L. Ed. 405; Acme Harvester Co. v. Beekman Lumber Co., 222 U. S. 300, 32 S. Ct. 96, 56 L. Ed. 208; Bailey v. Baker Ice Machine Co., 239 U. S. 268, 276, 36 S. Ct. 50, 60 L. Ed. 275. The purpose of the equity suit in the court of common pleas was “for the distribution (of the proceeds of the bulk sale) to the creditors thereunto entitled.” The motive of the plaintiffs was therefore laudable, but the suit in the state court was intended to accomplish the same thing for which the petition in bankruptcy had already been filed. It would be unseemly and a waste of time, money, and energy to have two suits going on at the same time in' different courts, dealing with the same subject-matter, to accomplish the same thing. Consequently Congress has seen fit to make' the jurisdiction of bankruptcy courts exclusive in the administration and distribution of the assets of a bankrupt, title to which assets vests in the trustee, when elected, as of the date of filing the petition. Acme Harvester Co. v. Beekman Lumber Co., 222 U. S. 300, 32 S. Ct. 96, 56 L. Ed. 208; Everett v. Judson, 228 U. S." }, { "docid": "4346946", "title": "", "text": "the Bankruptcy Act, 11 US CA § 103 (a) (1) requiring the bankrupt’s debt to be “a fixed liability * * * absolutely owing at the time of the filing of the petition against him, whether then payable or not.” McDonnell v. Woods, supra, was decided after the Supreme Court had announced in Central Trust Co. v. Chicago Auditorium, 240 U. S. 581, 36 S. Ct. 412, 60 L. Ed. 811, L. R. A. 1917B, 580, the doctrine that bankruptcy is an anticipatory breach of the bankrupt’s executory contracts, although it gives little or no consideration to the language of section 63a (4), 11 USCA § 103 (a) (4) whieh permits proof of a debt “founded * * * upon a contract express or implied.” That claims provable under the latter subdivision need not be abso lutely owing at the time of the filing of the petition is made clear by the recent opinion of Mr. Justice Stone in Maynard v. Elliott, 283 U. S. 273, 51 S. Ct. 390, 75 L. Ed. 1028. It was there held that the liability of a bankrupt as indorser of a promissory note was provable although the note had not matured at the time of adjudication. The bankrupt’s liability was therefore contingent on nonpayment at maturity of the note by the maker, who was insolvent, and on presentment and notice of dishonor at maturity by the claimant. The opinion, at page 277 of 283 U. S., 51 S. Ct. 390, 391, disapproves, with a reference to In re Roth & Appel, 381 F. 667, 31 L. R. A. (N. S.) 270 (C. C. A. 2), the argument that the limitation in subdivision a (1) of section 63 must he carried over into subdivision a (4), and at page 278 of 283 U. S., 51 S. Ct. 390, 392, it is said: “That some contingent claims are deemed not provable does not militate against this conclusion. The contingency of the bankrupt’s obligation may be such as to render any' claim upon it incapable of proof. It may be one beyond the control of the" }, { "docid": "2693836", "title": "", "text": "financial misfortunes. Williams, supra, 236 U.S. at 554-555, 35 S.Ct. at 290. In an appropriate case a one year period could very possibly “unduly delay the administration of the estate.” Under other circumstances, however, when considered with all other factors, a contingent claim should not be disallowed solely on the basis of administrative delay. See In re William Rakestraw Co., 450 F.2d 6 (9th Cir. 1971); 3 Collier on Bankruptcy ¶57.15 (14th ed. 1971). Here there are no assets in the bankruptcy estate. Time is of little consequence as payment to creditors will not be delayed or affected by the allowance of the claims. The unliquidated nature of a claim will not bar its provability under § 63 and will not prevent its allowability unless liquidation will require too much time and expense. Bankruptcy Act, § 57d, 11 U.S.C. § 93(d) (1970). The amounts of both claims are fixed at $5,500 each. No estimation is necessary. The contingency is not “dependent upon an event so fortuitous as to make it uncertain whether liability will ever attach.” In Williams v. U. S. Fidelity and Guaranty Co., 236 U.S. 549, 554-555, 35 S.Ct. 289, 290, 59 L.Ed. 713 (1915), the Court said: “It is the purpose of the Bankrupt Act to convert the assets of the bankrupt into cash for distribution among creditors and then to relieve the honest debtor from the weight of oppressive indebtedness and permit him to start afresh free from the obligations and responsibilities consequent upon business misfortunes.” See 3 Collier on Bankruptcy [[ 57.15 (14th ed. 1971). Later the Supreme Court in Brown v. O’Keefe, 300 U.S. 598, 606, 57 S.Ct. 543, 548, 81 L.Ed. 827 (1937), further recognizing the allowa-bility of appropriate contingent claims, stated: “What infusion of contingency will vitiate a claim is at best a question of degree . . . though there is a leaning toward allowance in aid of the purpose of the statute to relieve the honest debtor.” Allowance and discharge of the claims herein further this policy. Reversed and remanded with instructions to allow the claims. . This procedure is" }, { "docid": "6108204", "title": "", "text": "MORTON, District Judge. This is an action to recover a preference. The plaintiff is entitled to a decree unless his right is barred by the defendant’s discharge in bankruptcy. It is admitted that the defendant was adjudicated a bankrupt on February 3, 1921, in this court, and discharged on May 1, 1923, and that the present claim was scheduled by him in the bankruptcy proceedings. If the plaintiff’s claim was provable it was discharged. Crawford v. Burke, 195 U. S. 176, 25 S. Ct. 9, 49 L. Ed. 147. Whether it was provable depends upon Bankruptcy Act, § 63. The only clause of that section within which it could fall is “a (4),” as being “founded * * * upon a contract express or implied.” The obligation to repay a preference does not arise until the adjudication, 'the appointment of a trustee, the disaffirmance of the transaction by the trustee, and a demand by him for repayment. All these steps it lay within the power of the Ponzi trustees to take at and before the date when the defendant became bankrupt. In Crawford v. Burke, supra, the plaintiff had a claim for property wrongfully converted by a broker. The plaintiff might have sued in assumpsit on such a claim. He elected not to do so, but to proceed .in tort. It was held, nevertheless, that the claim was provable and was discharged. This case has been recognized as establishing the principle that, as stated by Collier on Bankruptcy, “if a party has a cause of action which at his election he may maintain either upon contract or in tort, then such cause of action becomes a provable debt.” 13th Ed. p. 1406, citing eases. The defendant’s estate in bankruptcy was increased by the amount which he received as a preference from Ponzi. While the right of the Ponzi trustees to recover it did not in actual fact rest upon any contract express or implied but was of purely statutory character, it could have been asserted in an action of assumpsit, being in this respect like torts by which a bankrupt’s" }, { "docid": "13425580", "title": "", "text": "A. 719) “throughout the entire field of contractual obligations the adjudication in bankruptcy, absolves from no agreement, terminates no contract, and discharges no liability.” Nor is the lien destroyed by the faet that the debt is not provable in bankruptcy. Such a debt is not affected by bankruptcy, for if a debt is not provable, it is a necessary corollary that the bankruptcy does not discharge therefrom. Central Trust Co. v. Auditorium, 240 U. S. 581, 591, 36 S. Ct. 412, 60 L. Ed. 811, L. R. A. 1917B; 580. Therefore, the question here is not whether the lien is destroyed by the bankruptcy proceeding, for it certainly is not; but whether it can be enforced in such proceeding when the debt it secures is of a nature not provable therein. The interest of- the Bankruptcy Act in property to which a lien is attached is twofold : First, to secure for the general creditors any value in the property over that required to satisfy the lien — to realize on the equity; second, to reduce the amount of a lien' claimant to the general assets by the value of the lien. If the debt secured by the lien is not “provable,” the second consideration is not present. However, the fact that a secured debt may, because of its nature, have no right to share in the general assets, does not affect the interest, right or duty of the trustee to realize upon the .equity for the benefit of the general creditors. Such equity is a part of the property subject to payment of general creditors whose claims will be barred by the discharge of the bankrupt, hence it is the duty of the trustee to secure and so apply any such equity. How and in what tribunal may this be done? Where the trustee is in possession of the property (Murphy v. Hofman Co., 211 U. S. 562, 569, 570, 29 S. Ct. 154, 53 L. Ed. 327; Whitney v. Wenman, 198 U. S. 539, 552, 25 S. Ct. 778, 49 L. Ed. 1157; First Savings Bank & Trust" }, { "docid": "14356873", "title": "", "text": "in bankruptcy, in which the amount of damages was evidenced by a judgment, were made provable, and in 1938, the requirement of a judgment was eliminated. See 11 U.S.C.A. § 103, sub. a(7). Similarly claims based on contingent debts were made provable in 1938. See 11 U.S.C.A. § 103, sub. a(8). But, despite the undoubted ambiguity and uncertainty as to the scope of the provision in question in the instant case, Congress did not see fit to make a change. It is reasonable to infer that, if Congress had wanted all tort claims in which an element of unjust enrichment could be found to be provable, it would have so provided in clear and unambiguous language, particularly since the Bankruptcy Act was amended subsequent to Judge Patterson’s decision. It is also noteworthy that, despite the sweeping changes in the Bankruptcy Act, claims based on intentional tortious conduct were not made provable. See 3 Collier on Bankruptcy p. 1877 (14th Ed.). Defendant also argues that cases of doubt and ambiguity should be resolved in favor of provability. But Judge Patterson was plainly aware of this principle when he considered the problem. He nevertheless concluded: “It is in line with the main purposes of the Bankruptcy Act to resolve doubt in favor of provability. * * * And yet in the case of claims like those for patent infringement there are strong practical considerations the other way. Time is of the essence in bankruptcy administration. An early distribution of a bankrupt’s assets among his creditors is imperative. * * * If claims for patent infringement are. provable, the result will certainly be both tedious delay and consumption of the assets of the estate in litigating the issues whether the claimant’s patent is valid, whether the bankrupt infringed it, and whether the bankrupt realized any profits. It is common knowledge that the ordinary patent suit takes several years.” 8 F.Supp. at pages 646-647. I see no reason why these considerations are not equally valid today. Thus, I am of the opinion that the plaintiff’s claim was not provable. This renders it unnecessary to" }, { "docid": "2693837", "title": "", "text": "attach.” In Williams v. U. S. Fidelity and Guaranty Co., 236 U.S. 549, 554-555, 35 S.Ct. 289, 290, 59 L.Ed. 713 (1915), the Court said: “It is the purpose of the Bankrupt Act to convert the assets of the bankrupt into cash for distribution among creditors and then to relieve the honest debtor from the weight of oppressive indebtedness and permit him to start afresh free from the obligations and responsibilities consequent upon business misfortunes.” See 3 Collier on Bankruptcy [[ 57.15 (14th ed. 1971). Later the Supreme Court in Brown v. O’Keefe, 300 U.S. 598, 606, 57 S.Ct. 543, 548, 81 L.Ed. 827 (1937), further recognizing the allowa-bility of appropriate contingent claims, stated: “What infusion of contingency will vitiate a claim is at best a question of degree . . . though there is a leaning toward allowance in aid of the purpose of the statute to relieve the honest debtor.” Allowance and discharge of the claims herein further this policy. Reversed and remanded with instructions to allow the claims. . This procedure is authorized by the 1970 amendment to Section 17 of the Bankruptcy Act, 11 U.S.C. § 35 (c) (1) (1970), which provides: “The bankrupt or any creditor may file an application with the court for the determination of the dischargeability of any debt.” See 1970 U.S.Code Cong. & Ad.News, pp. 1156 and 4162-63. . Section 63a (8) was added to the Bankruptcy Act by the Chandler Act, Pub.L. 75-696, 52 Stat. 873 (1938). The 1938 amendments were a codification of the decisional law as developed by the United States Supreme Court. Brown v. O’Keefe, 300 U.S. 598, 57 S.Ct. 543, 81 L.Ed. 827 (1937); Maynard v. Elliott, 283 U.S. 273, 51 S.Ct. 390, 75 L.Ed. 1028 (1930); Central Trust Co. v. Chicago Auditorium Assn., 240 U.S. 581, 36 S.Ct. 412, 60 L.Ed. 811 (1916); Williams v. U. S. Fidelity and Guaranty Co., 236 U.S. 549, 35 S.Ct. 289, 59 L.Ed. 713 (1915). See 3 Collier on Bankruptcy ¶ 57.15 (14th ed. 1971). . See Maynard v. Elliott, 283 U.S. 273, 278, 51 S.Ct. 390, 75 L.Ed." }, { "docid": "22765193", "title": "", "text": "damáges. The petition charges a wrongful appropriation by the government, against the protest of the' claimants, and prays to recover the damages done by such wrong. The successive allegations place the parties in continued antagonism to each other, and there is no statement tending to show a coming together of minds in respect to anything. It is plainly and solely an action for an infringement, and in this connection reference may- be made to the statutory provision (Eev. Stat. § 4919) of an action on the case, as the legal remedy for the recovery of damages for the infringement of a patent. If it be said that a party may sometimes waive a tort and sue in assumpsit, as on an implied promise, it is technically a sufficient reply to say that these claimants have not done so. They have not counted on any promise, either express or implied. But we do not care to rest our decision upon the mere form of action. The transaction as stated in the petition, and as disclosed by the findings of the court, was a tort pure and simple. The case was, within the language of the statute, one “ sounding in tort.” It is in this respect essentially different from United States v. Palmer, 128 U. S. 262, 269. That was an action to recover for the authorized use of a patent by the government, and these observations in the opinion are pertinent: “ This is not a claim for an infringement, but a claim of compensation for an authorized use — two things totally distinct in the law, as distinct as trespass on lands is from use and occupation ünder a lease. The first sentence in the original opinion of the court below strikes the key-note of the argument on this point. It is as follows: ‘The claimant in this case invited the government to adopt his patented' infantry equipments, and the government did so. It ■ is conceded on both sides that there was no infringement of the claimant’s patent, and that whatever the government did was done with the" }, { "docid": "2480510", "title": "", "text": "illustration appears in Tindle v. Birkett, 205 U. S. 183, 186, 27 Sup. Ct. 493, 51 L. Ed. 762. On the other hand, a mere tort, for example, a trespass involving a mere destruction of property, does not lay the foundation for a proceeding under that section. The force of Crawford v. Burke, 195 U. S. 176, 25 Sup. Ct. 9, 49 L. Ed. 147, is not correctly understood by the appellee here. This is made plain by what is said in Dunbar v. Dunbar, 190 U. S. 340, 350, 23 Sup. Ct. 757, 47 L. Ed. 1084, in the-opening paragraph; so that the result of it all is that claims for mere torts, like personal injuries and injuries to real property, are not provable, as was determined by the Circuit Court of Appeals for the Third Circuit in Brown & Adams v. United Button Co., 149 Fed. 48, 79 C. C. A. 70, 8 L. R. A. (N. S.) 961 (1906), and by the Circuit Court of Appeals for the Second Circuit in In re New York Tunnel Co., 159 Fed. 688, 86 C. C. A. 556 (1908). A clear historical account of all these decisions will be found in Mr. Woodman’s excellent work on Trustees in Bankruptcy, pp. 690, 691, 692. The question whether Shaw’s default with reference to the assets of his trust is to be classified with mere torts will be considered later. Neither, as we have said, is there any difficulty arising from the fact that, ira these transactions, Shaw as an individual was dealing with himself as trustee. We have several times observed on the fact that the administration of bankruptcy proceeds on equitable principles. At the common law the husband and wife are held as one; but jret we-showed in an elaborate discussion, in James v. Gra3r, 131 Fed. 401, 65 C. C. A. 385, 1 L. R. A. (N. S.) 321 (1904), that a wife may under equitable rules prove against her husband’s estate in bankruptcy. It must be at once conceded that we cannot proceed here on principles other than those" }, { "docid": "4346947", "title": "", "text": "was there held that the liability of a bankrupt as indorser of a promissory note was provable although the note had not matured at the time of adjudication. The bankrupt’s liability was therefore contingent on nonpayment at maturity of the note by the maker, who was insolvent, and on presentment and notice of dishonor at maturity by the claimant. The opinion, at page 277 of 283 U. S., 51 S. Ct. 390, 391, disapproves, with a reference to In re Roth & Appel, 381 F. 667, 31 L. R. A. (N. S.) 270 (C. C. A. 2), the argument that the limitation in subdivision a (1) of section 63 must he carried over into subdivision a (4), and at page 278 of 283 U. S., 51 S. Ct. 390, 392, it is said: “That some contingent claims are deemed not provable does not militate against this conclusion. The contingency of the bankrupt’s obligation may be such as to render any' claim upon it incapable of proof. It may be one beyond the control of the creditor, and dependent upon an event so fortuitous as to make it uncertain whether liability will ever attach. In re Merrill & Baker (C. C. A.) 186 F. 312. Such a claim could not bo proved under the Act of 1841 although in terms permitting proof of contingent claims. Riggin v. Magwire, 15 Wall. 549, 21 L. Ed. 232. Or, the contingency may be such as to make any valuation of the claim impossible, even though liability has attached. Of this latter class was the claim upon the bankrupt’s contract to pay his divorced wife a specified amount annually so long as she should remain unmarried, proof of which was for that reason rejected in Dunbar v. Dunbar, supra [190 U. S. 340, 23 S. Ct. 757, 47 L. Ed. 1084]; see Atkins v. Wilcox (C. C. A.) 105 F. 595, 53 L. R. A. 118. “But the liability of an indorser is of neither class. Its amount is certain; and the contingency of notice of dishonor to the indorser is within the control of" }, { "docid": "1547861", "title": "", "text": "right to maintain this proceeding, in its final analysis, depends upon whether or not her claim that she was defrauded in the purchase of the stock is one provable in bankruptcy. Undoubtedly, claims such as that asserted by the petitioner in this case may properly be made the basis of a pure tort action, but the authorities are too well settled to admit of doubt that where a tortious act has resulted in the unjust enrichment of the tort-feasor, tile tort may be disregarded and an action maintained on the theory of an equitable quasi contract. Schall v. Camors, supra; Crawford v. Burke, 195 U. S. 176, 25 S. Ct. 9, 49 L. Ed. 147; Tindle v. Birkett, 205 U. S. 183, 27 S. Ct. 493, 51 L. Ed. 762; Clarke v. Rogers, 228 U. S. 534, 33 S. Ct. 587, 57 L. Ed. 953; Friend v. Talcott, 228 U. S. 27, 33 S. Ct. 505, 57 L. Ed. 718; McIntyre v. Kavanaugh, 242 U. S. 138, 37 S. Ct. 38, 61 L. Ed. 205. Section 63 (4) of the Bankruptcy Act (11 USCA § 103(4) enumerates among the debts declared to be provable against a bankrupt estate claims “founded upon an open account, or upon a contract express or implied.” As this section has been construed by tho Supreme Court in numerous eases, I have no doubt that the claim asserted by the petitioner is one provable in bankruptcy. Schall v. Camors, supra; Crawford v. Burke, supra; Tindle v. Birkett, supra; Clarke v. Rogers, supra; Friend v. Talcott, supra. I cannot agree with the second contention of the respondent, that a defrauded stockholder in an ordinary trading corporation, such as the respondent, will in no ease be permitted to rescind after insolvency or bankruptcy intervenes. The eases most frequently cited on this general proposition are Upton v. Tribilcock, 91 U. S. 45, 50, 23 L. Ed. 203, and Chubb v. Upton, 95 U. S. 665, 667, 24 L. Ed. 523, but a careful reading of these two cases will demonstrate that they do not sustain the contention of the" }, { "docid": "22716781", "title": "", "text": "structure and purpose of the Bankruptcy Act as a whole, as well as the particular provisions of the Act brought in question. Taubel-Scott-Kitzmiller Co. v. Fox, 264 U. S. 426, 431 and n. 7. When Congress enacted general revisions of the bankruptcy laws in 1898 and 1938, it gave “special -attention to the subject of making [the bankruptcy laws] inexpensive in [their] administration.” H. R. Rep. No. 1228, 54th Cong., 1st Sess., p. 2; H. R. Rep. No. 1409, 75th Cong., 1st Sess., p. 2; S. Rep. No. 1916, 75th Cong., 3d Sess., p. 2. Moreover, this Court has long recognized that a chief purpose of the bankruptcy laws is “to secure a prompt and effectual administration and settlement of the estate of all bankrupts within a limited period,” Ex parte Christy, 3 How. 292, 312, and that provision for summary disposition, “without regard to usual modes of trial attended by some necessary delay,” is one of the means chosen by Congress to effectuate that purpose, Bailey v. Glover, 21 Wall. 342, 346. See generally Wiswall v. Campbell, 93 U. S. 347, 350- It is equally clear that the expressly granted power to “allow,” “disallow” and “reconsider” claims, Bankruptcy Act § 2a (2), 11 U. S. C. § 11 (a)(2) (1964 ed.), which is of “basic importance in the. administration of a bankruptcy estate,” Gardner v. New Jersey, 329 U. S. 565, 573, is to be exercised in summary proceedings and not by the slower and more expensive processes of a plenary suit. U. S. Fidelity Co. v. Bray, 225 U. S. 205, 218; Wiswall v. Campbell, 93 U. S. 347, 350-351. This power to allow or to disallow claims includes “full power to inquire into the validity of any alleged debt or obligation of the bankrupt upon which a demand or a claim against the estate is based. This is essential to the performance of the duties imposed upon it.” Lesser v. Gray, 236 U. S. 70, 74. The trustee is enjoined to examine all claims and to present his objections, Bankruptcy Act § 47a (8), 11 U. S." }, { "docid": "2701103", "title": "", "text": "range of reasons. “Allow-ability implies, not only provability, but also validity. If for any reason the claim is improper, or if there be a good defense to it, it is not allowable, although it may be provable as a debt.” Williams & Co. v. U. S. Fidelity & Guaranty Co., 11 Ga.App. 635, 75 S.E. 1067, 1070, rev’d on other grounds, 236 U.S. 549, 35 S.Ct. 289, 59 L.Ed. 713 (1915); Lesser v. Gray, 236 U.S. 70, 74—75, 35 S.Ct. 227, 59 L.Ed. 471, 475 (1915). A court may disallow a claim for reasons specifically related to bankruptcy, for example, that it was not proven on time under § 57n, 11 U.S.C. § 93n, or was fraudulently obtained within the meaning of §§ 67d(l)-(4) and (6), 11 U.S.C. §§ 107d(l)-(4) and (6), or because of the close relation between the debtor and the claimant, such as close relatives, §§ 44a and 59e, 11 U.S.C. §§ 72a and 95e, or stockholders or officers of a corporate bankrupt, Richardson’s Executor v. Green, 133 U.S. 30, 10 S.Ct. 280, 33 L.Ed. 516 (1890), or because it was held by a creditor who would not surrender a preference under § 57g. The trustee’s defenses to claims include all the defenses of the original debtor, and these also go to allowability, e.g., compromise, duress, fraud, limitations, statute of frauds, and the like. Subordination of provable claims may also be ordered in other situations as a species of disallowance, 3A Collier on Bankruptcy § 63.08. Provable but disallowable claims utilized for setoff have usually involved claims not actually proven on time. Viewing the matter somewhat more precisely in terms of subordinated rather than disallowed debts, the stronger arguments lie with the third party holding the subordinated debt. The holder of a disallowed claim is given more than priority over other creditors; he is given a benefit he would not have received even if the bankrupt estate were adequate to pay all creditors in full. Where the debt is subordinated, by contrast, the lawful preference worked by § 68 setoff goes to one within the “hierarchy of" } ]

[ { "docid": "7392531", "title": "", "text": "Civil Procedure, 28 U.S. C. A., permits such a motion to be entertained “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Plaintiff’s contention in this respect, therefore, must stand or fall upon our determination of whether there remained, in reality, “a genuine issue as to any material fact.” Defendants’ motion necessarily admitted all averments of plaintiff’s complaint well pleaded. Insofar as the validity of the patent involved is concerned, they pleaded, as prior art defense, only the Patrick patent. There are in the record the deposition of Connolly himself, two affidavits and the file wrapper. From them the facts that we have related appear without contradiction; that is to say, it appears that everything was old except Connolly’s discovery and his application of that discovery to the process described in his patent for an improvement over the prior art. His prescription for that process, we have held, did not constitute invention. We are unable to find remaining any genuine issue of fact between plaintiff and defendants. Consequently, the court rightfully allowed the motion for summary judgment. Such practice in similar cases is not new. Gatch Wire Goods Co. v. W. A. Laidlaw Wire Co. et al., 7 Cir., 108 F.2d 433; Milcor Steel Company v. George A. Fuller Company, 316 U.S. 143, 144, 62 S.Ct. 969, 86 L.Ed. 1332; Allen et al. v. Radio Corporation of America, D.C., 47 F.Supp. 244; Luten v. Kansas City Bridge Co., D.C., 272 F. 533; Juniper Mills, Inc., v. J. W. Landenberger & Co., D. C., 6 F.R.D. 463. The judgment is affirmed." } ]

[ { "docid": "18276247", "title": "", "text": "HINCKS, Circuit Judge. The patent in suit, Tatko Patent No. 2,693,926, is now before us for the second time. Upon the first occasion, a suit for a declaratory judgment was brought in the District Court for the Northern District of New York by the Vermont Structural Slate Company against Tatko Brothers Slate Company, holder of the patent (hereinafter “Tatko”). That suit resulted in a summary judgment in the plaintiff’s favor, Judge Foley holding that no genuine issue of a material fact was presented. Vermont Structural Slate Co., Inc. v. Tatko Bros. Slate Co., Inc., D.C., 134 F.Supp. 4. We affirmed 233 F.2d 9, certiorari denied 352 U.S. 917, 77 S.Ct. 216, 1 L.Ed.2d 123. Meanwhile, before the district court decision in that case had been made, Tatko brought this suit in the Vermont District Court, claiming infringement of the same patent. While this case was awaiting trial, our decision in the Vermont Structural Slate case was filed. After a four day trial, Judge Gibson concluded that the Tatko patent was valid and infringed; he granted judgment for the plaintiff and dismissed the defendant’s counterclaim. 157 F.Supp. 277. This appeal followed. In the present case there was no privity between the defendant and the Vermont Structural Slate Company, the party who had challenged the validity of the Tatko patent in the Northern District of New York. Consequently, Judge Gibson was right in ruling that our earlier decision in that ease is not res judicata and may not be pleaded as a bar to this suit. Triplett v. Lowell, 297 U.S. 638, 56 S.Ct. 645, 80 L.Ed. 949; Gold Seal Importers, Inc. v. Westerman-Rosenberg, Inc., 2 Cir., 133 F.2d 192. Indeed, that ruling is not now questioned. Accordingly, we turn at once to consider Judge Gibson’s holding that the Tatko patent is valid. In this task, the scope of review is clearly defined by the decided cases: primary, or evidentiary, findings of fact may not be disturbed unless clearly erroneous; but the inferences and conclusions, based upon the primary facts, upon which depends the ultimate findings of patentability, as well as the" }, { "docid": "20969436", "title": "", "text": "dispute; in addition, the prior art and the patent claims are devoid of complexity and are easily understandable without expert aid. Under the circumstances, such a motion represents a most useful legal invention to expedite the litigation. Vermont Structural Slate Co. v. Tatko Bros. Slate Co., 2 Cir. 1956, 233 F.2d 9,10, cert. denied, 1956, 352 U.S. 917, 77 S.Ct. 216, 1 L.Ed.2d 123, rehearing on cert. denied, 1958, 355 U.S. 949, 78 S.Ct. 528, 2 L.Ed. 2d 534; Alex Lee Wallau, Inc. v. J. W. Landenberger & Co., S.D.N.Y.1954, 121 F.Supp. 555; Rubinstein v. Silex Co., S.D.N.Y.1947, 73 F.Supp. 336. It is immaterial that only a partial summary adjudication is sought since it has the same purpose of avoiding waste of time and effort. See, Aileen Mills Co. v. Ojay Mills, Incorporated, S.D.N.Y.1960, 188 F. Supp. 138; Meikle v. Timken-Detroit Axle Co., E.D.Mich.1942, 44 F.Supp. 460; E. I. Du Pont De Nemours & Co. v. U. S. Camo Corp., W.D.Mo.W.D.1956, 19 F.R.D. 495. The First Laguerre Patent The subject of the two Laguerre patents involved in this ease is “reclosable handle bags”. The first Laguerre patent contains four claims of varying scope directed to a combination of a bag with handle elements secured to the mouth of the bag. Each claim includes a bag with flexible strips attached along the opposite sides of the mouth of the bag, a pair of centrally disposed gripping bows, each integrally formed on a respective strip, as well as complementary projections or studs and recesses on the respective strips. Each claim recites the location of the studs and recesses in the zone where each bow is connected to its respective strip. Claims 1 and 2 define the supporting strips as being plastic; claim 3 describes the bag and flexible strips as “Thermoplastic” and being heat-welded together; and claim 4 refers to a bag of “thin flexible sheet material”. Plaintiffs claim that as a result of the structure covered by the invention set forth in this patent, forces applied to the bows or handles in opposite directions are transmitted directly to the interconnection of" }, { "docid": "23122608", "title": "", "text": "[Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), but a summary judgment invariably rests upon a factual foundation. It is inappropriate only when a material fact is subject to genuine dispute — as it was in the two cases relied upon by plaintiff: Hughes Blades, Inc. v. Diamond Tool Associates, 300 F.2d 853 (9th Cir. 1962), and Cee-Bee Chem. Co. v. Delco Chemicals, Inc., 263 F.2d 150 (9th Cir. 1958) If the material facts are not disputed, and if on these undisputed facts the difference between the alleged invention and the prior art would have been obvious, a summary judgment of invalidity for lack of invention is entirely proper. Ronel Corp. v. Anchor Lock of Florida, Inc., 325 F.2d 889, 890 (5th Cir. 1963); A R Inc., v. Electro-Voice, Inc., 311 F.2d 508 (7th Cir. 1962); Rankin v. King, 272 F.2d 254, 257-258 (9th Cir. 1959) ; Glagovsky v. Bowcraft Trimming Co., 267 F.2d 479 (1st Cir. 1959); Rothe v. Ford Motor Co., 102 U.S.App.D.C. 331, 253 F.2d 353 (1958); George P. Converse & Co. v. Polaroid Corp., 242 F.2d 116, 120 (1st Cir. 1957); Vermont Structural Slate Co. v. Tatko Bros. Slate Co., 233 F.2d 9 (2d Cir. 1956); Park-In-Theatres, Inc. v. Perkins, 190 F.2d 137, 142 (9th Cir. 1951); 6 Moore, Federal Practice 2613 n. 11. Second, plaintiff contends that summary judgment was improper because factual disputes did exist which were relevant to the issue of obviousness, particularly as to the state of the prior art. As the Supreme Court has recently pointed out, the basic factual background necessary to a determination of section 103 obviousness relates to three matters: (1) “the scope and content of the prior art”; (2) “differences between the prior art and the claims at issue”; and (3) “the level of ordinary skill in the pertinent art.” Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684 (1966). Plaintiff does not dispute the fact that the French reference was prior art as to the Walker patent. The structure disclosed in the French reference is simple, requiring" }, { "docid": "14444201", "title": "", "text": "surface of each of the units and the use of headless pipes or pins to serve as means of anchorage to the ground and of preventing the lateral displacement of the unit, each beam is in all respects similar, functionally, to a wooden timber spiked to a floor or ground surface to prevent the rolling of a wheeled vehicle. The end-to-end connection between the individual units is essentially similar to a succession of precast parapet copestones provided with similar tongue-and-groove means of interconnection. The answer of the defendant Ager affirmatively pleads anticipation of the device described in the patent in suit by numerous United States and British patents, as well as by certain printed publications. Upon a motion for summary judgment the Court must preliminarily determine whether any material issues of fact are presented, and if such an issue of fact is presented by the affidavits submitted upon the motion, that issue may not be resolved by the Court. However, if such a factual issue is not necessary to the decision of the motion, because of the existence of other uncontradicted evidence sufficing to support such a decision, the issue is not material and the motion may be decided without regard to such issuable facts. If, therefore, the prior art as disclosed in the patents relied upon by the defendant anticipates the claimed invention described in the patent in suit, reliance may be placed upon such prior art patents in disposing of a motion for summary judgment. Glagovsky v. Bowcraft Trimming Co., 1 Cir., 1959, 267 F.2d 479; George P. Converse & Co. v. Polaroid Corp., 1 Cir., 1957, 242 F.2d 116; Vermont Structural Slate Company, Inc. v. Tatko Brothers Slate Company, Inc., 2 Cir., 1956, 233 F.2d 9, certiorari denied 352 U.S. 917, 77 S.Ct. 216, 1 L.Ed.2d 123. The presumption of validity of a patent which arises by virtue of its issuance by the Patent Office is created by the statute, 35 U.S.C.A. § 282, which places the burden of establishing invalidity of a patent upon the party asserting such invalidity. Plaintiff, properly, not only relies upon this" }, { "docid": "1053059", "title": "", "text": "8 that additional facts might be developed by discovery not yet pursued, which would bring to light evidence not yet presented, is without merit. Plaintiff made no effort to secure additional time to produce other evidence by way of deposition, or otherwise, prior to the time when the motion was heard. The rule is clear that one who opposes a motion for summary judgment must bring forward all of his defensive ammunition in resisting the motion. Engl v. Aetna Life Ins. Co., 139 F.2d 469, 473 (2d Cir. 1943). Evidence then in existence cannot be withheld for later use. Plaintiff also argues that expert testimony is required to determine what level of skill is needed to make an invention obvious to one skilled in the art. It may be conceded that this is true in many if not most patent cases. In the case at bar it is not. The combination which plaintiff asserts is the basis of the 630 patent is so simple and its relationship to the prior art so clear that expert testimony is not required. See Allen-Bradley Co. v. Air Reduction Co., 273 F.Supp. 930, 935 (W.D.Pa.1967), and Ronel Corporation v. Anchor Lock of Florida, Inc., 325 F.2d 889 (5th Cir. 1963). Plaintiff had ample opportunity to file an affidavit or deposition of an expert asserting that to one ordinarily skilled in the flooring art the patent would not be obvious in the light of the prior art, and explaining why this is so. No such evidence was presented. In its absence, and upon the present record, no issue of material fact exists on the questions of obviousness. While a judge should exercise unusual caution in granting summary judgment against the validity of a patent, there are cases where it would be a waste of time and effort to deny such a judgment. See Vermont Structural Slate Co. v. Tatko Bros. Slate Co., 233 F.2d 9 (2d Cir. 1956), cited with approval in Ronel Corporation v. Anchor Lock of Florida, Inc., supra. This is such a ease. Neither Tri Wall Containers v. Continental Can Co., 147" }, { "docid": "1118107", "title": "", "text": "and expense to have a pro forma trial, i. e., where the court finds to a high degree of certainty that there are no issues to litigate. Vermont Structural Slate Co. v. Tatko Bros. Slate Co., 233 F.2d 9, 10 (2d Cir. 1956), cert. denied 352 U.S. 917, 77 S.Ct. 216, 1 L.Ed.2d 123 (1956). The emphasis in a motion for summary judgment is that a court must be certain that it is not depriving a party of the fundamental right to a trial. This is why the law puts great burdens of proof upon the movant and allows presumptions in favor of the opposing party. Nyhus v. Travel Management Corp., 151 U.S.App.D.C. 269, 466 F.2d 440, 442 (1972); Pitts v. Shell Oil Co., 463 F.2d 331, 335 (5th Cir. 1972); Empire Electronics Co. v. United States, 311 F.2d 175 (2d Cir. 1962). When dealing with patent litigation involving questions of validity or scope, summary judgment is usually inappropriate. American Optical Co. v. New Jersey Optical Co., 58 F.Supp. 601, 605 (D.Mass.1944). The reason for this is quite simple; patents often must describe or translate the operation of very precise devices by using much less precise language. In order to accomplish this, scientists and patent lawyers must use a very sophisticated and highly specialized parlance. As certain ‘terms of art’ baffle anyone but the trained lawyer, many terms that the scientists may use or their patent lawyers may use can contain important distinctions imperceptible to anyone without an expert to explain or translate them. Graver Mfg. Co. v. Linde Co., 336 U.S. 271, 69 S.Ct. 535, 93 L.Ed. 672 (1949). In the majority of cases, understanding the issues becomes even more complicated because the experts will often disagree. It then becomes a question of the demeanor of these experts which must be carefully weighed before one version of conflicting technical explanations is chosen as the basis for the court’s decision. Such complex circumstances make summary judgment difficult to render in patent cases. Vermont Structural Slate Co. v. Tatko Bros. Slate Co., supra, 233 F.2d at 10; Cross v. United States," }, { "docid": "5353329", "title": "", "text": "was hurried, scanty, insufficient and lacking in thoroughness; and that said letters patent No. 2,615,505 were granted without the best available art being cited there-against by the Patent Office Examiner.” Lucas also counterclaimed for a declaratory judgment of invalidity and non-infringement. Lucas filed interrogatories which were answered by plaintiff and then filed its motion for summary judgment on the complaint; the answer of Lucas; its interrogatories and plaintiff’s answers thereto; and an affidavit with supporting exhibits. No opposing affidavit or exhibit was filed by plaintiff. The motion was briefed and argued. The court finds that the pleadings, the plaintiff's answers to interrogatories containing certain admissions, affidavit and exhibits show that there is no genuine issue as to any material fact. That summary judgment may properly be invoked in patent infringement cases on the infringement aspect has been expressly held by the Fourth Circuit, in Smith v. General Foundry Mach. Co., 1949, 174 F. 2d 147, 151, certiorari denied 1949, 338 U.S. 869, 70 S.Ct. 144, 94 L.Ed. 533. The court cited and relied upon decisions of courts in the Second, Third and Sixth Circuits. Of the cited cases, two (Rubinstein v. Silex Co., D.C.N.Y.1947, 73 F.Supp. 336 and Brown v. Ford Motor Co., D.C.Mich.1944, 57 F.Supp. 825) involved infringement only. The others involved questions only of invalidity (Allen v. Radio Corporation of America, D.C.Del. 1942, 47 F.Supp. 244; Jno. T. McCoy, Inc. v. Schuster, D.C.N.Y.1942, 44 F. Supp. 499; Juniper Mills, Inc. v. J. W. Landenberger & Co., D.C.Pa.1947, 6 F.R. D. 463), or of both infringement and invalidity (Frederick Hart & Co. v. Recordgraph Corporation, 3 Cir., 1948, 169 F.2d 580, and S. R. Leon, Inc. v. Parfums Schiaparelli, Inc., D.C.N.Y.1940, 35 F.Supp. 641). The decisions subsequent to Smith v. General Foundry Mach. Co., supra, have approved the use of summary judgment in determining patent validity. Vermont Structural Slate Co., Inc. v. Tatko Brothers Slate Co., Inc., 2 Cir., 1956, 233 F.2d 9, affirming D.C.N.Y.1955, 134 F.Supp. 4; Bobertz v. General Motors Corporation, 6 Cir., 1955, 228 F.2d 94, affirming D.C.Mich.1954, 126 F.Supp. 780; Park-In-Theatres v. Perkins, 9 Cir.," }, { "docid": "20969435", "title": "", "text": "BARTELS, District Judge. This action was instituted by plaintiff Leon Laguerre, the patentee of two Laguerre patents numbers 3,140,038 (the first Laguerre patent) and 3,227,358 (the second Laguerre patent), and plaintiff C-Thru Products, Inc., his exclusive United States licensee, for infringement of both patents. Defendant, denying the validity and infringement of both patents, brings three motions pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., for partial summary judgment holding (1) both patents invalid under 35 U.S.C.A. § 103, (2) non-infringement of the first Laguerre patent, and (3) the second Laguerre patent invalid for double patenting. Obviously, motions (2) and (3) will be rendered moot if motion (1) is granted. At the hearing the plaintiffs agreed that motion (2) should be granted. Motions for summary judgment in patent cases must be considered with unusual caution (Van Brode Milling Co. v. Kravex Manufacturing Corp., E.D.N.Y.1957, 21 F.R.D. 246; Servaas & Company v. Dritz, S.D.N.Y.1960, 185 F. Supp. 61). In this case, however, all parties have agreed that the facts are not in dispute; in addition, the prior art and the patent claims are devoid of complexity and are easily understandable without expert aid. Under the circumstances, such a motion represents a most useful legal invention to expedite the litigation. Vermont Structural Slate Co. v. Tatko Bros. Slate Co., 2 Cir. 1956, 233 F.2d 9,10, cert. denied, 1956, 352 U.S. 917, 77 S.Ct. 216, 1 L.Ed.2d 123, rehearing on cert. denied, 1958, 355 U.S. 949, 78 S.Ct. 528, 2 L.Ed. 2d 534; Alex Lee Wallau, Inc. v. J. W. Landenberger & Co., S.D.N.Y.1954, 121 F.Supp. 555; Rubinstein v. Silex Co., S.D.N.Y.1947, 73 F.Supp. 336. It is immaterial that only a partial summary adjudication is sought since it has the same purpose of avoiding waste of time and effort. See, Aileen Mills Co. v. Ojay Mills, Incorporated, S.D.N.Y.1960, 188 F. Supp. 138; Meikle v. Timken-Detroit Axle Co., E.D.Mich.1942, 44 F.Supp. 460; E. I. Du Pont De Nemours & Co. v. U. S. Camo Corp., W.D.Mo.W.D.1956, 19 F.R.D. 495. The First Laguerre Patent The subject of the two Laguerre patents" }, { "docid": "1729083", "title": "", "text": "Court of Appeals on several occasions. In Monaplastics, Inc. v. Caldor, Inc., 378 F.2d 20 (2nd Cir. 1967), the district court declared invalid under § 103 a patent for a “unitary paper toweling rack.” On appeal, the plaintiff argued that summary judgment was inappropriate, and the Court of Appeals responded as follows: “Appellant suggests that the summary judgment motion should not have been granted without the taking of testimony from experts in the pertinent area of knowledge. We agree, however, with the court below that [plaintiff’s invention] would have been obvious to persons having ordinary skill in the plastics molding industry, and would even have been obvious to ordinary laymen of modest intelligence. Under these circumstances the court had no need for expert testimony in order to examine the nature of the prior art or the level of skill in the relevant industry. Therefore summary judgment was properly granted.” Also pertinent is the court’s response to a similar objection in G. B. Lewis Company v. Gould Products, Inc., 436 F.2d 1176 (2nd Cir. 1971): “These assertions would have more force if we were dealing with a complex technical achievement whose inventive characteristics would only rarely be susceptible of accurate judicial appreciation without the elucidation that expert testimony presumably provides.” See also Vermont Structural Slate Co. v. Tatko Bros. Slate Co., 233 F.2d 9 (2nd Cir.), cert. denied, 352 U.S. 917, 77 S.Ct. 216, 1 L.Ed.2d 123 (1956); C-Thru Products, Inc. v. Uniflex, Inc., 397 F.2d 952 (2nd Cir. 1968); Ken Wire & Metal Products, Inc. v. Columbia Broadcasting Systems, Inc., 338 F.Supp. 624 (S.D.N.Y. 1971) , affd. 464 F.2d 1393 (2nd Cir. 1972) . I am, of course, aware of Judge Mansfield’s caveat in Xerox Corp. v. Dennison Manufacturing Company, 322 F. Supp. 963 (S.D.N.Y.1971), wherein he states that “unusual caution” must be exercised before summary judgment is granted in a patent infringement case and notes the infrequency of success of such motions in this district. (At footnote 3 of his opinion, 322 F.Supp. at 967, he collects a formidable number of instances in which summary judgment was denied, and" }, { "docid": "12648676", "title": "", "text": "the building “arranged in series extending around adjacent to the walls thereof”; but it is more important that the defendants, as we have shown, are not using the heating system which the plaintiff devised. It is also clear that the defendants, in connecting the ends of their flue system to the burners by iron elbows, are following the early practice of connecting the flues with a central heating system rather than the boxing system of the second patent. The plaintiff makes the additional point that there is no precedent in this court for disposing of a question of patent infringement by summary judgment. The practice, however, is not unknown and is properly adopted where as provided in Federal Rules of Civil Procedure, rule 56(c), 28 U.S.C.A., there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. See Frederick Hart & Co., Inc. v. Recordgraph Corp., 3 Cir., 169 F.2d 580; Allen v. Radio Corporation of America, D.C.Del., 47 F.Supp. 244; Rubinstein v. Silex Co., D.C.S.D.N.Y., 73 F.Supp. 336; S. R. Leon, Inc. v. Parfums Schiaparelli, Inc., D.C.S.D. N.Y., 35 F.Supp. 641; John T. McCoy, Inc. v. Schuster, D.C.S.D.N.Y., 44 F.Supp. 499; Brown v. Ford Motor Co., D.C.E.D.Mich., 57 F.Supp. 825; Juniper Mills, Inc. v. J. W. Landenberger & Co., D.C.E.D.Pa., 6 F.R.D. 463. We find that situation to prevail in the pending case. Affirmed." }, { "docid": "12585904", "title": "", "text": "summary judgment, the function of the court is to determine whether an issue of fact is present and not to determine any fact which appears to be in issue. Frederick Hart & Co., Inc., v. Recordgraph Corporation, 3 Cir., 169 F.2d 580. In the absence of triable issues of fact, there is no reason for not granting a motion for summary judgment in patent cases where infringement is charged, Rubinstein v. Silex Co., D.C., 73 F. Supp. 336; Steigleder v. Eberhard Faber Pencil Co., D.C., 81 F.Supp. 143; or invalidity of the patent is claimed, Juniper Mills, Inc., v. J. W. Landenberger & Co., D.C., 6 F.R.D. 463; John T. McCoy, Inc., v. Schuster, D.C., 44 F.Supp. 499. In United States v. Esnault-Pelterie, 303 U.S. 26, 30, 58 S.Ct. 412, 414, 82 L.Ed. 625, it was stated that: “We are not unmindful of the rule that where, with all the evidence before the court, it appears that no substantial dispute of fact is pre sented, and that the case may be determined by a mere comparison of structures and extrinsic evidence is not needed for purposes of explanation, or evaluation of prior art, or to resolve questions of the application of descriptions to subject-matter, the question of invention and infringement may be determined as questions of law.” In Young v. Ralston-Purina Co., 8 Cir., 88 F.2d 97, 101, it was stated that “ * * * When it appears, in a patent infringement suit, that extrinsic evidence is not needed to explain the terms of art involved and the court is able, from mere comparison, to comprehend what the invention described in a patent is, and, from a mere comparison of the structures, to determine whether one device infringes on another, the question of infringement or no infriñgment is one of law.” It must foe conceded that all the physical evidence which is material to a decision in this case is before the court. The plaintiff suggests that the testimony of an expert is essential to the determination of the fact issues. He has had long experience in the manufacture" }, { "docid": "18276255", "title": "", "text": "of slate, as Tatko suggested, was a mere matter of choice between simple devices in common use in well-nigh every art and trade. To make such a simple choice and to embody it in the pallet, called for no skill beyond that of an ordinary mechanic in the slate-pallet art. We think it altogether plain that the patent in suit was lacking in patentable invention. Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., supra; Jungersen v. Ostby & Barton Co., 335 U.S. 560, 69 S.Ct. 269, 93 L.Ed. 235; Bostitch, Inc. v. Precision Staple Corp., 2 Cir., 178 F.2d 332; Zoomar, Inc. v. Paillard Products, 2 Cir., 258 F.2d 527, certiorari denied 358 U.S. 908, 79 S.Ct. 237, 3 L.Ed.2d 230. For these reasons, the plaintiff’s complaint must be dismissed and the defendant’s counterclaim granted. Reversed. . The decision relating to the permanent injunction and final decree in this case is reported at D.C., 149 F.Supp. 139, affirmed 2 Cir., 253 F.2d 29. . Prior to trial of the ease in Vermont, the defendant’s motion for a summary judgment had been denied. 147 F.Supp. 865. This ruling is not assigned as error in the present appeal. . This patent had been cited as a prior art patent in the appellant’s answer. . Quotation from Conclusion of Law No. 3. Tlie Tatko patent specifies that its invention “relates to improvements in pallets in general and more particularly to the typo employed in the slate products industry.” MADDEN, Judge (dissenting). The Court rightly concludes, as did Judge Gibson in the District Court, that the prior decision involving this same patent, and holding it invalid, Vermont Structural Slate Co. v. Tatko Bros. Slate Co., D.C., 134 F.Supp. 4, affirmed by this Court, 233 F.2d 9, is not a bar to the plaintiff’s suit. The instant case being, then, open for normal appellate treatment, has not, I think, received such treatment at the hands of the Court. A crucial finding of fact of the District Judge has, it seems to me, been, without justification, discarded. Judge Gibson found, as the Court recites," }, { "docid": "14543409", "title": "", "text": "to and spaced along the upper edge of the drape, for supporting the drape upon the rod.” . 66 Stat. 798 (1952), 35 U.S.C. § 103. The statute provides in part that: “A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a -whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” See also: Leishman v. General Motors Corp., 9 Cir., 1951, 191 F.2d 522, 530, cer-tiorari denied 1952, 342 U.S. 943, 72 S.Ct 556, 96 L Ed. 702. . Muench-Kreuzer Candle Co. v. Wilson, 9 Cir., 1957, 246 F.2d 624; Oriental Foods v. Chun King Sales, 9 Cir., 1957, 244 F.2d 909; Kwikset Locks v. Hillgren, 9 Cir., 1954, 210 F.2d 483; Mettler v. Peabody Engineering Corporation, 9 Cir., 1935, 77 F.2d 56, 58; Delco Chemicals v. Cee-Bee Chemical Co., D.C.S.D.Cal., 1957, 157 F.Supp. 583, 590 (reversed on other grounds, 9 Cir., 1958, 263 F.2d 150). . Dow Chemical Co. v. Halliburton Co., 1945, 324 U.S. 320, 328, 65 S.Ct. 647, 89 L.Ed. 973; Park-In Theatres v. Perkins, 9 Cir., 1951, 190 F.2d 137. . United States v. Esnault-Pelterie, 1937, 303 U.S. 26, 30, 58 S.Ct. 412, 82 L.Ed. 625; Heald v. Rice, 1881, 104 U.S. 737, 26 L.Ed. 910. Cf. Hanovia Chemical & Mfg. Co. v. David Buttrick Co., 1 Cir., 1942, 127 F.2d 888. . Vermont Structural Slate Co. v. Tatko Bros. Slate Co., 2 Cir., 1956, 233 F.2d 9, 10. And cf., Rothe v. Ford Motor Co., 1958, 102 U.S.App.D.C. 331, 253 F.2d 353, 355, differentiating Hycon Manufacturing Company v. H. Koch & Sons, 9 Cir., 1955, 219 F.2d 353." }, { "docid": "14551195", "title": "", "text": "PER CURIAM. The Tatko U. S. Patent No. 2,693,926, pertaining to pallets for use in storing and transporting slate, has been in this action finally held to be invalid. Vermont Structural Slate Co., Inc., v. Tatko Brothers Slate Co., Inc., D.C., 134 F.Supp. 4, affirmed 2 Cir., 233 F.2d 9, certiorari denied 352 U.S. 917, 77 S.Ct. 216, 1 L.Ed.2d 123. Thus, at least as between the parties to this action and their privies, the issues are at rest. Despite this, defendant has continued to threaten plaintiff and its customers and those dealing with plaintiff, and continues to insist upon the validity of the Tatko patent, which we have already held to be invalid. Under these circumstances, it is of little significance that defendant keeps insisting that it has no intention to harass plaintiff and its customers. Under the doctrine of Kessler v. Eldred, 206 U.S. 285, 27 S.Ct. 611, 51 L.Ed. 1065, plaintiff was entitled as of course to an injunction restraining Tatko, the unsuccessful patentee, and all persons claiming under the patent, from bringing any action or otherwise threatening plaintiff on the basis of claims that there is interference with said patent by the use of pallets for the sale of slate to plaintiff’s customers or purchasers, or by the use of said pallets in conjunction with plaintiff’s business by any customer, user, pur chaser or supplier of plaintiff, or in anyway directly or indirectly using said patent to interfere with the business of plaintiff. If anything, the injunction as issued was too narrow in its scope, as it was not made applicable to the continued prosecution by defendant of an action already pending against one of plaintiff’s customers in the United States District Court for Maine. There was ample residual power in the court to issue this permanent injunction, even though the original decree contained no such provision. 28 U.S.C. § 2202; 6 Moore, Federal Practice (1953 ed., 1956 Supp.) § 57.10. Affirmed." }, { "docid": "5353330", "title": "", "text": "of courts in the Second, Third and Sixth Circuits. Of the cited cases, two (Rubinstein v. Silex Co., D.C.N.Y.1947, 73 F.Supp. 336 and Brown v. Ford Motor Co., D.C.Mich.1944, 57 F.Supp. 825) involved infringement only. The others involved questions only of invalidity (Allen v. Radio Corporation of America, D.C.Del. 1942, 47 F.Supp. 244; Jno. T. McCoy, Inc. v. Schuster, D.C.N.Y.1942, 44 F. Supp. 499; Juniper Mills, Inc. v. J. W. Landenberger & Co., D.C.Pa.1947, 6 F.R. D. 463), or of both infringement and invalidity (Frederick Hart & Co. v. Recordgraph Corporation, 3 Cir., 1948, 169 F.2d 580, and S. R. Leon, Inc. v. Parfums Schiaparelli, Inc., D.C.N.Y.1940, 35 F.Supp. 641). The decisions subsequent to Smith v. General Foundry Mach. Co., supra, have approved the use of summary judgment in determining patent validity. Vermont Structural Slate Co., Inc. v. Tatko Brothers Slate Co., Inc., 2 Cir., 1956, 233 F.2d 9, affirming D.C.N.Y.1955, 134 F.Supp. 4; Bobertz v. General Motors Corporation, 6 Cir., 1955, 228 F.2d 94, affirming D.C.Mich.1954, 126 F.Supp. 780; Park-In-Theatres v. Perkins, 9 Cir., 1951, 190 F.2d 137; Davison Chemical Corp. v. Joliet Chemicals, 7 Cir., 1950, 179 F.2d 793; W. E. Plechaty Co. v. Heckett Engineering, Inc., D.C.Ohio 1956, 145 F. Supp. 805. The court therefore concludes that summary judgment procedure is applicable to suits involving questions of patent validity as well as questions of infringement. . In this case the patented structure (as well as the accused one) is relatively simple, and the history in the patent office is clear. No expert testimony is needed, nor could it in any event alter the case made by the record. While fully recognizing the “unusual caution” that should be exercised in granting summary judgment in patent cases, the court concludes that this case is a proper one for such procedure. Cf. Vermont Structural Slate Company, Inc. v. Tatko Brothers Slate Company, 2 Cir., 1956, 233 F.2d 9, 10. Plaintiff’s patent is for a chair construction. Initially, plaintiff sought the allowance of claims for such construction in which the only significant element was the rearward extension of the lower portion" }, { "docid": "1118109", "title": "", "text": "336 F.2d 431 (2d Cir. 1964). However, this is not meant to imply that summary judgment is never appropriate in such eases. In my early days as District Judge, I granted a motion for summary judgment in the patent ease of Vermont Structural Slate Co. v. Tatko Bros. Slate Co., 134 F.Supp. 4 (N.D.N.Y.1955), affirmed 233 F.2d 9 (2d Cir. 1956), cert. denied 352 U.S. 917, 77 S.Ct. 216, 1 L.Ed.2d 123 (1956). This case — and its recollection of the patent is vivid in my mind — is a good representation of the factual simplicity that must exist before a court can confidently declare that it comprehends the case well enough to certify that no genuine issue of material fact was present. Vermont Structural Slate was a controversy over a patent describing wooden pallets which were used to handle slabs of slate. It was described by me as a patent of “unbelievable simplicity” and by Judge Jerome Frank of the Court of Appeals as “easily understandable by anyone of the most modest intelligence.” Other patent cases where courts allowed summary judgment also involved relatively simple devices which eliminated the need for specialized knowledge of the art, see, e. g., Monaplastics, Inc. v. Caldor, Inc., 378 F.2d 20, 21 (2d Cir. 1967) (three-piece plastic towel rack); Walker v. General Motors Corp., 362 F.2d 56 (9th Cir. 1966) (the mounting of a gas tank beneath a vehicle’s fender). The patent at issue in this case involves a device much more sophisticated and technical than a plastic towel rack, a wooden pallet, or any other device that most ordinary people are familiar with. At issue here is a “hydrofoil”. It is a device that extracts water from wood fibers during the paper making process by creating a suction while remaining relatively stationary itself. The hydrofoil employs the “foil” principle of physics which is somewhat related to the principle by which wings provide lift to an airplane. In addition, the history of such water removing devices goes back almost 200 years and includes many developments and improvements since then, one of which is" }, { "docid": "1729084", "title": "", "text": "assertions would have more force if we were dealing with a complex technical achievement whose inventive characteristics would only rarely be susceptible of accurate judicial appreciation without the elucidation that expert testimony presumably provides.” See also Vermont Structural Slate Co. v. Tatko Bros. Slate Co., 233 F.2d 9 (2nd Cir.), cert. denied, 352 U.S. 917, 77 S.Ct. 216, 1 L.Ed.2d 123 (1956); C-Thru Products, Inc. v. Uniflex, Inc., 397 F.2d 952 (2nd Cir. 1968); Ken Wire & Metal Products, Inc. v. Columbia Broadcasting Systems, Inc., 338 F.Supp. 624 (S.D.N.Y. 1971) , affd. 464 F.2d 1393 (2nd Cir. 1972) . I am, of course, aware of Judge Mansfield’s caveat in Xerox Corp. v. Dennison Manufacturing Company, 322 F. Supp. 963 (S.D.N.Y.1971), wherein he states that “unusual caution” must be exercised before summary judgment is granted in a patent infringement case and notes the infrequency of success of such motions in this district. (At footnote 3 of his opinion, 322 F.Supp. at 967, he collects a formidable number of instances in which summary judgment was denied, and the reader is referred there if an enumeration is desired.) Generalized formulations are of little use in such cases however, and the propriety of summary judgment ultimately turns on the complexity of the patent in question and the degree to which its intricacies are accessible to the trial judge unaided by experts. In the instant case the patent could hardly be less complex; indeed it rivals in simplicity any of those involved in the above cited cases where summary judgment was upheld by the Court of Appeals. Nor is there any claim by the plaintiff here that expert testimony is necessary to elucidate its patent; it relies solely on Judge Mansfield’s language in Xerox, conveniently ignoring the vast gulf that separates patents relating to electrophotographic copying machines and those covering record ablums. II. The definitive construction of 35 U.S. C. § 103 can be found in Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). Obviousness, the Court stated, must be determined by “several basic factual inquiries,” which it" }, { "docid": "1053060", "title": "", "text": "testimony is not required. See Allen-Bradley Co. v. Air Reduction Co., 273 F.Supp. 930, 935 (W.D.Pa.1967), and Ronel Corporation v. Anchor Lock of Florida, Inc., 325 F.2d 889 (5th Cir. 1963). Plaintiff had ample opportunity to file an affidavit or deposition of an expert asserting that to one ordinarily skilled in the flooring art the patent would not be obvious in the light of the prior art, and explaining why this is so. No such evidence was presented. In its absence, and upon the present record, no issue of material fact exists on the questions of obviousness. While a judge should exercise unusual caution in granting summary judgment against the validity of a patent, there are cases where it would be a waste of time and effort to deny such a judgment. See Vermont Structural Slate Co. v. Tatko Bros. Slate Co., 233 F.2d 9 (2d Cir. 1956), cited with approval in Ronel Corporation v. Anchor Lock of Florida, Inc., supra. This is such a ease. Neither Tri Wall Containers v. Continental Can Co., 147 U.S.P.O. 41 (S.D.N.Y.1965), nor Borden Co. v. Clearfield Cheese Co., 369 F.2d 96 (3rd Cir. 1966), relied upon by plaintiff, is at variance with this conclusion. The motion for summary judgment directed to the 630 patent will be granted. U.S. Letters Patent No. 3,271,916 The 916 patent is entitled “Uniformly Resilient Flooring Systems”. Its invention is said to relate to an improvement in floors of the same general type as that covered by the 725 patent. It states that the upper surface of the floor in the 725 patent deflects more when a load is applied at the mid-channel point than when the same load is applied directly over the channels, and that its purpose is to correct this condition. More specifically, 916 states that a principal object is to provide a flooring system having enhanced impact response with stability, and that a further object is to provide a flooring system having differentially compressive supporting materials beneath the channels and beneath the floorboards between the channels so that a desired balance between shock absorption and" }, { "docid": "5353331", "title": "", "text": "1951, 190 F.2d 137; Davison Chemical Corp. v. Joliet Chemicals, 7 Cir., 1950, 179 F.2d 793; W. E. Plechaty Co. v. Heckett Engineering, Inc., D.C.Ohio 1956, 145 F. Supp. 805. The court therefore concludes that summary judgment procedure is applicable to suits involving questions of patent validity as well as questions of infringement. . In this case the patented structure (as well as the accused one) is relatively simple, and the history in the patent office is clear. No expert testimony is needed, nor could it in any event alter the case made by the record. While fully recognizing the “unusual caution” that should be exercised in granting summary judgment in patent cases, the court concludes that this case is a proper one for such procedure. Cf. Vermont Structural Slate Company, Inc. v. Tatko Brothers Slate Company, 2 Cir., 1956, 233 F.2d 9, 10. Plaintiff’s patent is for a chair construction. Initially, plaintiff sought the allowance of claims for such construction in which the only significant element was the rearward extension of the lower portion of the rear chair legs so as to prevent contact of the top of the chair back with a wall or other vertical surface. All of the original claims were rejected, some of them after two amendments. Subsequently, four new claims were filed, on which the patent issued. These claims covered said rearward extension in combination with (a) a specific form of joint “including interlocking portions having coaeting vertical bearing surfaces and angularly disposed surfaces”; (b) rear legs “having a gradually increasing taper toward” the lower portion with structural members connected thereto at the thickest section of said legs; (c) the rear legs having a curved configuration; (d) the rear portion of the rear legs having curved upper and lower portions; and (e) joint means having coaeting vertical bearing surfaces and angularly disposed surfaces, connecting said rear legs and horizontal structural members. A comparison of original claims 1 and 12 with claim 1 in the patent as issued will clearly disclose the limitations inserted by the inventor: Original 1 “A chair construction comprising a frame" }, { "docid": "1118108", "title": "", "text": "this is quite simple; patents often must describe or translate the operation of very precise devices by using much less precise language. In order to accomplish this, scientists and patent lawyers must use a very sophisticated and highly specialized parlance. As certain ‘terms of art’ baffle anyone but the trained lawyer, many terms that the scientists may use or their patent lawyers may use can contain important distinctions imperceptible to anyone without an expert to explain or translate them. Graver Mfg. Co. v. Linde Co., 336 U.S. 271, 69 S.Ct. 535, 93 L.Ed. 672 (1949). In the majority of cases, understanding the issues becomes even more complicated because the experts will often disagree. It then becomes a question of the demeanor of these experts which must be carefully weighed before one version of conflicting technical explanations is chosen as the basis for the court’s decision. Such complex circumstances make summary judgment difficult to render in patent cases. Vermont Structural Slate Co. v. Tatko Bros. Slate Co., supra, 233 F.2d at 10; Cross v. United States, 336 F.2d 431 (2d Cir. 1964). However, this is not meant to imply that summary judgment is never appropriate in such eases. In my early days as District Judge, I granted a motion for summary judgment in the patent ease of Vermont Structural Slate Co. v. Tatko Bros. Slate Co., 134 F.Supp. 4 (N.D.N.Y.1955), affirmed 233 F.2d 9 (2d Cir. 1956), cert. denied 352 U.S. 917, 77 S.Ct. 216, 1 L.Ed.2d 123 (1956). This case — and its recollection of the patent is vivid in my mind — is a good representation of the factual simplicity that must exist before a court can confidently declare that it comprehends the case well enough to certify that no genuine issue of material fact was present. Vermont Structural Slate was a controversy over a patent describing wooden pallets which were used to handle slabs of slate. It was described by me as a patent of “unbelievable simplicity” and by Judge Jerome Frank of the Court of Appeals as “easily understandable by anyone of the most modest intelligence.” Other" } ]

[ { "docid": "8910222", "title": "", "text": "does in fact exist. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980). When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.1977) (per curiam). This requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice. Id. The court’s dismissal of a plaintiffs case because the plaintiff lacks subject matter jurisdiction is not a determination of the merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction. Id. In examining a Rule 12(b)(1) motion, the district court is empowered to consider matters of fact which may be in dispute. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981). Ultimately, a motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief. Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir.1998). Motions to dismiss for failure to state a claim are appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim. Fed. R.Civ.P. 12(b)(6). The test for determining the sufficiency of a complaint under Rule 12(b)(6) was set out by the United States Supreme Court as follows: “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). See also, Grisham v. United States, 103 F.3d 24, 25-26 (5th Cir.1997). Subsumed within the rigorous standard of the Conley test is the requirement that the plaintiffs complaint be stated with enough clarity to enable a court or an opposing party to determine whether a claim is sufficiently" } ]

[ { "docid": "12194595", "title": "", "text": "provide proper notice of such a conversion”). BEAM, Circuit Judge, concurring and dissenting. I concur in the Court’s affirmance of the district court’s dismissal of Carlsen’s claims in this matter. However, I disagree with the Court’s reasoning in reaching this result. Defendant Game Stop asserts among other things, two specific defenses — a lack of subject matter jurisdiction under subsection 12(b)(1) of the Federal Rules of Civil Procedure, and failure to state a claim upon which relief can be granted pursuant to subsection 12(b)(6) of the Rule. Upon review of the record, the district court correctly concludes that “[pjlaintiff has failed to allege an injury in .fact and as a result has not established standing under Article III of the Constitution. Plaintiffs complaint is therefore dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction.” The district court further acknowledges in a related footnote 5 that in light of its analysis regarding Article III standing, it did not examine the 12(b)(6) issue. Then, somewhat inexplicably, the district court ruled that amendment (of the pleadings) would be futile and dismissed “the claims with prejudice.” This, of course, was error because without subject matter jurisdiction, the district court had no judicial power to do more than simply dismiss the case. “[Wjhen a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). “If the court has no jurisdiction, it has no power to enter a judgment on the merits and must dismiss the action.” Haywood v. Drown, 556 U.S. 729, 769, 129 S.Ct. 2108, 173 L.Ed.2d 920 (2009) (quoting 10A Charles Wright, Arthur Miller, & Mary Kay Kane, Federal Practice and Procedure § 2713 (3d ed. 1998)) (Thomas, J., dissenting). “ ‘[Jjurisdiction is power to declare the law,’ and ‘[wjithout jurisdiction the court cannot proceed at all in any cause.’ ” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (second alteration" }, { "docid": "15797100", "title": "", "text": "facts plus the court’s resolution of disputed facts. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981); see also Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.1996). The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. McDaniel v. United States, 899 F.Supp. 305, 307 (E.D.Tex.1995), aff'd, 102 F.3d 551 (5th Cir.1996). Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980). A party may claim that subject matter jurisdiction is lacking by virtue of the plaintiffs inability to prove the elements of the federal cause of action in question. See O’Quinn v. Manuel, 773 F.2d 605 (5th Cir.1985). When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should usually consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits. Hitt v. Pasadena, 561 F.2d 606, 608 (5th Cir.1977) (per curiam). This requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice. The court’s dismissal of a plaintiffs case because the plaintiff lacks subject matter jurisdiction is not a determination of the merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction. Id. In examining a Rule 12(b)(1) motion, the district court is empowered to consider matters of fact which may be in dispute. Williamson, 645 F.2d at 413. Ultimately, a motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his or her claim that would entitle him or her to relief. Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006 (5th Cir.1998). III. Discussion Plaintiff contends that Title VII and the ADEA apply to the employment relationship at issue and that both corporations are liable because Matsumoto, although a Japanese corporation, is a single employer with and under the control of Stryker. While it is uncontested that" }, { "docid": "19130712", "title": "", "text": "the complaint and served it on Defendants’ attorney on September 12, 2001; it was filed with the Court on November 15, 2001. II. DISCUSSION Defendants seek dismissal of the Complaint on several different grounds pursuant to Fed.R.Civ.P. 12(b). The Court considers the jurisdictional issues first, because a dismissal for lack of jurisdiction renders all other claims moot. Ruhrgas A.G. v. Marathon Oil Co., 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (“Article III generally requires a federal court to satisfy itself of its jurisdiction over the subject matter before it considers the merits of a case.”); Calero v. Immigration and Naturalization Service, 957 F.2d 50 (2d Cir.1992); Da Silva v. Kinsho Int’l Corp., 229 F.3d 358 (2d Cir.2000). A court may find it appropriate to consider personal jurisdiction before subject matter jurisdiction. See Ruhrgas, 526 U.S. at 578, 119 S.Ct. 1563. For the reasons set forth below, the Court finds it appropriate to address Defendants’ motion to dismiss pursuant to 12(b)(5) before reaching their motion to dismiss for lack of subject matter jurisdiction pursuant to 12(b)(1). Defendants base their motion to dismiss on two grounds: Darden’s efforts to serve Defendants with the original complaint and the sufficiency of the claims contained in the Amended Complaint. Defendants do not move to dismiss Darden’s claims of race discrimination under 42 U.S.C. § 1981 and the HRL made against CSI and Stoekl. A. INSUFFICIENT SERVICE OF PROCESS Defendants claim that Darden failed to properly serve them. Nevertheless, with the exception of DCAG, Defendants waived service of process. (Memorandum of Law in Support of Defendants’ Motion for the Partial Dismissal of the First Amended Complaint, at 8 n. 6.) DCAG presses the process point. Once a defendant raises a challenge to the sufficiency of service of process, the plaintiff bears the burden of proving its adequacy. See Howard v. Klynveld Peat Marwick Goerdeler, 977 F.Supp. 654, 658 (S.D.N.Y.1997), aff’d, 173 F.3d 844 (2d Cir.1999). Conclusory statements are insufficient to overcome a defendant’s sworn affidavit that he was not served. See id. If service of process was not sufficient, the Court has" }, { "docid": "15797099", "title": "", "text": "Japan and does no business in the United States. When Plaintiff was hired, he lived in the United States as a resident alien; however, the position as president of Mat-sumoto required Plaintiff to relocate from the United States back to his native Japan. Although Plaintiff made several trips to the United States in his capacity as Matsu-moto’s president, Plaintiff continued to live in Japan during his tenure as president. On November 6, 1997, Plaintiff was discharged from his position as President of Matsumoto. Following his dismissal, Plaintiff returned to the United States to live as a resident alien and initiated the present suit. II. Rule 12(b)(1) Standard Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to challenge the subject matter jurisdiction of the district court to hear a case. Fed.R.Civ.P. 12(b)(1). Lack of subject matter jurisdiction may be found in any one of three instances, through: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981); see also Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.1996). The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. McDaniel v. United States, 899 F.Supp. 305, 307 (E.D.Tex.1995), aff'd, 102 F.3d 551 (5th Cir.1996). Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980). A party may claim that subject matter jurisdiction is lacking by virtue of the plaintiffs inability to prove the elements of the federal cause of action in question. See O’Quinn v. Manuel, 773 F.2d 605 (5th Cir.1985). When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should usually consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits. Hitt v. Pasadena, 561 F.2d 606, 608 (5th Cir.1977) (per curiam). This requirement prevents a court without jurisdiction from prematurely" }, { "docid": "2797170", "title": "", "text": "127 S.Ct. 1184 (internal quotation marks omitted), “the proper course” is to dismiss an action for lack of jurisdiction if the “court can readily determine that it lacks jurisdiction over the cause or the defendant,” id. at 436, 127 S.Ct. 1184; see also Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 588, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (holding that “[w]here ... a district court has before it a straightforward personal jurisdiction issue ... and [an] alleged defect in subject-matter jurisdiction raising] a difficult and novel question,” the court has discretion to “turn[ ] directly to personal jurisdiction”). Under the circumstances of this case, the Court will address DSP’s objections to subject matter jurisdiction and then address personal jurisdiction. Consideration of these two issues alone is sufficient to decide Defendants’ motions. If a court lacks subject matter jurisdiction over a claim, the claim must be dismissed as the court “lacks the statutory or constitutional power to adjudicate it.” Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188 (2d Cir.2009) (per curiam) (internal quotation marks omitted); see also Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cir.2008) (“If a court perceives at any stage of the proceedings that it lacks subject matter jurisdiction, then it must take proper notice of the defect by dismissing the action.”). “The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.2005). In deciding a motion to dismiss pursuant to Rule 12(b)(1), the Court “take[s] all facts alleged in the complaint as true and draw[s] all reasonable inferences in favor of [the] plaintiff.” NRDC v. Johnson, 461 F.3d 164, 171 (2d Cir.2006) (internal quotation marks omitted). However, “jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.” Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir.2008) (internal quotation marks omitted), aff'd, 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). “In resolving a" }, { "docid": "8462438", "title": "", "text": "must be accepted as true. Gaubert v. United States, 885 F.2d 1284, 1285 (5th Cir.1989), rev’d on other grounds, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). Moreover, the Court must construe the complaint broadly and liberally. Id. When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the Court should usually consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits. Hitt v. Pasadena, 561 F.2d 606, 608 (5th Cir.1977); Kunihiko Iwata v. Stryker Corp., 59 F.Supp.2d 600, 602 (N.D.Tex. 1999). This requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice. Id. ■ The Court’s dismissal of a plaintiffs case because the Court lacks subject matter jurisdiction is not an adjudication of the merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction. Id. A motion to dismiss challenging the Court’s subject matter jurisdiction under Rule 12(b)(1) should only be granted “if it appears that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief.” Home Builders Ass’n, 143 F.3d at 1010 (citing Benton v. United States, 960 F.2d 19, 21 (5th Cir.1992)); Santerre v. Agip Petroleum Co., 45 F.Supp.2d 558, 565 (S.D.Tex.1999). B. Rule 12(b)(6) allows for dismissal if a plaintiff fails “to state a claim upon which relief may be granted.” Such dismissals, however, are rare, Clark v. Amoco Production Co., 794 F.2d 967, 970 (5th Cir.1986), and only granted where “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-6, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Dismissal can be based either on a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistr-eri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988); Vines v. City of Dallas, Texas, 851 F.Supp. 254, 259 (N.D.Tex.1994), aff'd, 52 F.3d 1067 (5th Cir.1995). In determining whether a" }, { "docid": "22473235", "title": "", "text": "30, the magistrate judge issued a memorandum and recommendation that ACAB’s and Robbins’ motions to dismiss for lack of personal jurisdiction be granted, and that Appellants’ motion for remand be denied as moot. The next day, she issued a memorandum and recommendation that Comptec’s and Compressors’ motions to dismiss for forum non conveniens be granted. Timely objections to these recommendations were filed. The district court denied Appellants’ motion to remand on September 5, 1996. Both dismissal recommendations were adopted by the district court on September 30. In addition, the district court ordered that ACAB’s motion to dismiss for lack of subject-matter jurisdiction be denied as moot. Appellants’ subsequent motions to amend and for a new trial were denied. They timely appealed. On August 20, 1998, a three-member panel following this court’s en banc decision in Marathon Oil Co. v. A.G. Ruhrgas, 145 F.3d 211 (5th Cir.1998), issued an order vacating both the magistrate judge’s recommendations and the district court’s orders because the district court had dismissed for lack of personal jurisdiction without first considering motions challenging subject-matter jurisdiction. See Alpine View Co. Ltd. v. Atlas Copco A.B., 180 F.3d 628 (5th Cir.1998). The Appellants timely appealed this order. The Supreme Court granted certiorari, vacated the judgment, and remanded the case for further consideration in light of its decision in Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). See Atlas Copco AB v. Alpine View Co., Ltd., 526 U.S. 1128, 119 S.Ct. 1790, 143 L.Ed.2d 1006 (1999). We now undertake that review. II. THE DISMISSAL OF APPELLANTS’ CLAIMS This case raises a number of issues regarding the district court’s dismissal of Appellants’ claims against the Appellees. We first determine whether the district court abused its discretion in dismissing those claims without first considering motions challenging its subject-matter jurisdiction. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). We next address Appellants’ contentions that jurisdictional discovery was improperly limited and that the court erred in dismissing claims against ACAB and Robbins for lack of personal jurisdiction." }, { "docid": "19738155", "title": "", "text": "Government contends. A. Standard Applicable Generally, Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to challenge the subject matter jurisdiction of the district court to hear a case. The burden of proof for a Rule 12(b)(1) motion is on the party asserting jurisdiction. Ramming v. United States, 281 F.3d 158 (5th Cir.2001). As the Fifth Circuit has stated: When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.1977) (per curium). This requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice. Id. The court’s dismissal of a plaintiffs case because the plaintiff lacks subject matter jurisdiction is not a determination of the merits and does not prevent the plaintiff from pursing a claim in a court that does have jurisdiction. Id. Ramming, 281 F.3d at 161. The United States Court of Appeals for the Fifth Circuit instructed in Montez v. Department of the Navy, 392 F.3d 147 (5th Cir.2004) that generally “the district court can resolve factual disputes in determining jurisdiction pursuant to a Rule 12(b)(1) motion for dismissal.” Id. at 148. However, where the dispute is determinative of both the federal jurisdiction question and the underlying federal cause of action, and thus are interdependent, a district court might err where it resolves the disputed factual issue in favor of the Government. Montez arose in the context of a FTCA case which as noted is one of the jurisdictional bases alleged herein. The Court of Appeals for the Fifth Circuit stated: In general, where subject matter jurisdiction is being challenged, the trial court is free to weigh the evidence and resolve factual disputes in order to satisfy itself that it has the power to hear the case. See Land v. Dollar, 330 U.S. 731, 735 & n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947). “A court may base its disposition of a motion to dismiss for lack of subject matter jurisdiction" }, { "docid": "14801934", "title": "", "text": "on forum-selection clause as a Rule 12(b)(6) motion to dismiss); Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285 (11th Cir.1998) (holding that motions to dismiss based on forum-selection clause should be analyzed under Rule 12(b)(3)); AVC Nederland B.V. v. Atrium Inv. P’ship 740 F.2d 148 (2d Cir.1984) (affirming dismissal of action under Rule 12(b)(1) on basis of forum-selection clause). A. The district court dismissed Sucampo’s complaint on the basis of the forum-selection clause contained in the Amended Basic License Agreement before resolving Appellee’s motion to dismiss for lack of personal jurisdiction. Accordingly, we must resolve whether a dismissal based on a forum-selection agreement is under Rule 12(b)(6), because the dismissal of a case on an issue relating to the merits of the dispute, such as failure to state a claim, is improper without resolving threshold issues of jurisdiction, including personal jurisdiction. See Ruhrgas AG v. Marathon Oil, 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (“Personal jurisdiction ... is ‘an essential element of the jurisdiction of a district ... court,’ without which the court is ‘powerless to proceed to an adjudication.’ ” (quoting Employers Reinsurance Corp. v. Bryant, 299 U.S. 374, 382, 57 S.Ct. 273, 81 L.Ed. 289 (1937))); Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 480 (4th Cir.2005) (“The validity of an order of a federal court depends upon that court’s having jurisdiction over both the subject matter and the parties.” (internal quotation marks omitted)). B. To analyze a motion to dismiss based on a forum-selection clause under Rule 12(b)(1), a court must engage the legal fiction that the clause affects the power of the court to adjudicate the dispute. See M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 13, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) (“The argument that [forum-selection] clauses are improper because they tend to ‘oust’ a court of jurisdiction is hardly more than a vestigial legal fiction.”); Lipcon, 148 F.3d at 1289-90 (“[T]he basis upon which the defendants seek dismissal-namely, that the agreement of the parties prohibits the plaintiff from bringing suit in the particular" }, { "docid": "12240289", "title": "", "text": "relief can be granted”), not 12(b)(1) (“lack of subject-matter jurisdiction”). The district court recognized this, regardless of the label it applied, because the court dismissed with prejudice, which is fitting for failure to state a claim, instead of without prejudice, which is appropriate for jurisdictional decisions. See Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.1977) (per curiam) (“Dismissal with prejudice for failure to state a claim is a decision on the merits and essentially ends the plaintiffs lawsuit, whereas a dismissal on jurisdictional grounds alone is not on the merits and permits the plaintiff to pursue his claim in the same or in another forum.”); see also Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1341 (11th Cir.2005) (“[I]f the district court actually lacked jurisdiction ..., the court would have lacked the power to dismiss ... with prejudice.”). Though the district court suggested that it lacked subject-matter jurisdiction, we can affirm the dismissal with prejudice on the alternate ground that Campbell failed to state a claim upon which relief could be granted. See, e.g., Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 254-55, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010) (“The District Court here had jurisdiction.... Since nothing in the analysis of the courts below turned on the mistake, a remand would only require a new Rule 12(b)(6) label for the same Rule 12(b)(1) conclusion .... [W]e proceed to address whether petitioners’ allegations state a claim.”); Bell v. Health-Mor, Inc., 549 F.2d 342, 345 (5th Cir.1977) (“The district court ... should not have dismissed the complaint for lack of subject matter jurisdiction. However, if the district court is correct ..., then the plaintiffs’ claims are subject to dismissal for failure to state a claim upon which relief could be granted. Therefore, in the interests of judicial economy we will discuss the substantive issues raised in the district court’s opinion.”); see also, e.g., Powers v. United States, 996 F.2d 1121, 1123 (11th Cir.1993) (“We affirm the judgment of the district court dismissing this action, but for reasons other than those used by the district court.”)." }, { "docid": "19738154", "title": "", "text": "works failed to control. In addition, the United States maintains that the FTCA did not waive sovereign immunity for the defalcations alleged by plaintiffs. Section 2680(a) provides: Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. Id. The Government maintains that the “due care” exception and the “discretionary function” exception found in § 2680(a) likewise require the dismissal of this suit. As the motion is denominated as one brought pursuant to Rule 12(b)(1), the first issue the Court must decide is the proper procedural approach to determine whether this suit should be dismissed as a matter of law because the Court lacks subject matter jurisdiction over these claims as the Government contends. A. Standard Applicable Generally, Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to challenge the subject matter jurisdiction of the district court to hear a case. The burden of proof for a Rule 12(b)(1) motion is on the party asserting jurisdiction. Ramming v. United States, 281 F.3d 158 (5th Cir.2001). As the Fifth Circuit has stated: When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.1977) (per curium). This requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice. Id. The court’s dismissal of a plaintiffs case because the plaintiff lacks subject matter jurisdiction is not a determination of the merits and does not prevent the plaintiff from pursing a claim in a court that does have jurisdiction. Id. Ramming, 281 F.3d at 161. The United States Court of Appeals for the Fifth Circuit instructed" }, { "docid": "6881226", "title": "", "text": "would be factual and the court would therefore treat the motion differently. A factual attack challenges the existence of subject matter jurisdiction by looking beyond the pleadings. In reviewing a factual attack the court may consider matters outside the pleadings, such as testimony and affidavits. McDaniel v. United States, 899 F.Supp. 305, 307 (E.D.Tex.1995), aff'd, 102 F.3d 551 (5th Cir.1996). Factual and facial attacks under Rule 12(b)(1) may occur at any stage of the proceedings. The plaintiff constantly bears the burden of proof that jurisdiction does in fact exist. Menchaca v. Chrysler Credit Carp., 613 F.2d 507, 511 (5th Cir.1980). A party may claim that subject matter jurisdiction is lacking by virtue of the plaintiffs inability to prove the elements of the federal cause of action in question. To determine whether a federal question is involved requires the court to consider whether the complaint states a claim “arising under” federal law. O’Quinn v. Manuel, 773 F.2d 605, 607 (5th Cir.1985). The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. McDaniel, 899 F.Supp. at 307. When a Rule 12(b)(1) motion is filed with a Rule 12(b)(6) motion, the court should consider the jurisdictional attack before addressing the attack on the merits. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.1977) (per curiam). This requirement prevents a court without jurisdiction from dismissing a ease with prejudice. The court’s dismissal of a plaintiff’s ease because the plaintiff lacks subject matter jurisdiction is not a determination on the merits and does not prevent the plaintiff from pursuing a claim in a court that does have subject matter jurisdiction. Id. III. DISCUSSION The Commission contends that the Eleventh Amendment to the United States Constitution bars Rodriguez’ suit. The Eleventh Amendment provides that: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const, amend. XI. Although the plain language of the" }, { "docid": "6881227", "title": "", "text": "asserting jurisdiction. McDaniel, 899 F.Supp. at 307. When a Rule 12(b)(1) motion is filed with a Rule 12(b)(6) motion, the court should consider the jurisdictional attack before addressing the attack on the merits. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.1977) (per curiam). This requirement prevents a court without jurisdiction from dismissing a ease with prejudice. The court’s dismissal of a plaintiff’s ease because the plaintiff lacks subject matter jurisdiction is not a determination on the merits and does not prevent the plaintiff from pursuing a claim in a court that does have subject matter jurisdiction. Id. III. DISCUSSION The Commission contends that the Eleventh Amendment to the United States Constitution bars Rodriguez’ suit. The Eleventh Amendment provides that: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const, amend. XI. Although the plain language of the amendment only bars suits by citizens of one state suing another state, and does not bar a suit by a citizen against his own state, the Supreme Court has interpreted the Eleventh Amendment as providing both types of immunity. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). The Supreme Court’s interpretation of the Eleventh Amendment has two parts: “first, that each State is a sovereign entity in our federal system;” Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 1122, 134 L.Ed.2d 252 (1996); and second, that “ ‘[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.’ ” Id. (citing Hans, 134 U.S. at 13, 10 S.Ct. at 506 (emphasis deleted), quoting The Federalist No. 81, at 487 (A.Hamilton) (Clinton Rossiter ed.1961)). It is undisputed that the State of Texas has not consented to this lawsuit. The Commission therefore argues that the Eleventh Amendment bars Rodriguez’ claims against it, because the Commission is an agency" }, { "docid": "22473236", "title": "", "text": "challenging subject-matter jurisdiction. See Alpine View Co. Ltd. v. Atlas Copco A.B., 180 F.3d 628 (5th Cir.1998). The Appellants timely appealed this order. The Supreme Court granted certiorari, vacated the judgment, and remanded the case for further consideration in light of its decision in Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). See Atlas Copco AB v. Alpine View Co., Ltd., 526 U.S. 1128, 119 S.Ct. 1790, 143 L.Ed.2d 1006 (1999). We now undertake that review. II. THE DISMISSAL OF APPELLANTS’ CLAIMS This case raises a number of issues regarding the district court’s dismissal of Appellants’ claims against the Appellees. We first determine whether the district court abused its discretion in dismissing those claims without first considering motions challenging its subject-matter jurisdiction. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). We next address Appellants’ contentions that jurisdictional discovery was improperly limited and that the court erred in dismissing claims against ACAB and Robbins for lack of personal jurisdiction. Finally, we consider Appellants’ argument that the district court erred in dismissing claims against Compressors and Comptec for forum non con-veniens. A. Personal Jurisdiction Before Subject-Matter Jurisdiction In Ruhrgas AG v. Marathon Oil, 526 U.S. 574, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999), the Supreme Court rejected a rule, applicable to removed cases, that required a district court to assess whether it had subject-matter jurisdiction before it could determine whether motions to dismiss for lack of personal jurisdiction should be granted. Id. 119 S.Ct. at 1569. We read the Ruhrgas AG Court’s opinion to direct lower courts facing multiple grounds for dismissal to consider the complexity of subject-matter jurisdiction issues raised by the case, as well as concerns of federalism, and of judicial economy and restraint in determining whether to dismiss claims due to a lack of personal jurisdiction before considering challenges to its subject-matter jurisdiction. We use the same factors to guide our assessment of whether the district court abused its dis cretion, see id. at 1572, in its conclusion in this case. In" }, { "docid": "8462437", "title": "", "text": "jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” See Home Builders Ass’n of Miss. Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.1998). A district court may dismiss an action for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the Court’s resolution of disputed facts. Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.1996); Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1384 (5th Cir.1989). In examining a Rule 12(b)(1) motion, the Court is empowered to consider matters of fact which are in dispute. See Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981). The party asserting jurisdiction bears the burden of establishing it when the Court’s subject matter jurisdiction is challenged. See Boudreau v. United States, 53 F.3d 81, 82 (5th Cir.1995). However, any uncontro-verted facts in the complaint must be accepted as true. Gaubert v. United States, 885 F.2d 1284, 1285 (5th Cir.1989), rev’d on other grounds, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). Moreover, the Court must construe the complaint broadly and liberally. Id. When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the Court should usually consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits. Hitt v. Pasadena, 561 F.2d 606, 608 (5th Cir.1977); Kunihiko Iwata v. Stryker Corp., 59 F.Supp.2d 600, 602 (N.D.Tex. 1999). This requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice. Id. ■ The Court’s dismissal of a plaintiffs case because the Court lacks subject matter jurisdiction is not an adjudication of the merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction. Id. A motion to dismiss challenging the Court’s subject matter jurisdiction under Rule 12(b)(1) should only be granted “if it appears that the plaintiff cannot prove any set of" }, { "docid": "671078", "title": "", "text": "for its negligence and willful and wanton recklessness in causing or allowing the serious failure and deficiencies of the LPV considering its deliberate departures from authorized, current and safe criteria. Count VIII also pertains to the MRGO. As previously noted, the United States has moved pursuant to Fed.R.Civ.P. 12(b)(1) and 12(h)(3) to dismiss this Master Complaint based on § 702c immunity granted under the Flood Control Act of 1928 and the discretionary function exception with respect to allegations of the negligent granting of the dredging permit of the 17th St. Canal. In addition, it contends that the MRGO allegations should be stricken as being in contravention of Case Management Order No.4. The Court will now examine the proper legal approach to make such a determination. III. Legal Standard to Apply to the United States’ Motion to Dismiss Generally, Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to challenge the subject matter jurisdiction of the district court to hear a case. The burden of proof for a Rule 12(b)(1) motion is on the party asserting jurisdiction. Ramming v. United States, 281 F.3d 158 (5th Cir.2001). As the Fifth Circuit has stated: When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before ad dressing any attack on the merits. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.1977) (per curiam). This requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice. Id. The court’s dismissal of a plaintiffs case because the plaintiff lacks subject matter jurisdiction is not a determination of the merits and does not prevent the plaintiff from pursing a claim in a court that does have jurisdiction. Id. Ramming, 281 F.3d at 161. The United States Court of Appeals for the Fifth Circuit instructed in Montez v. Department of the Navy, 392 F.3d 147 (5th Cir.2004) that generally “the district court can resolve factual disputes in determining jurisdiction pursuant to a Rule 12(b)(1) motion for dismissal.” Id. at 148. However, where the dispute is determinative of" }, { "docid": "671079", "title": "", "text": "the party asserting jurisdiction. Ramming v. United States, 281 F.3d 158 (5th Cir.2001). As the Fifth Circuit has stated: When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before ad dressing any attack on the merits. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.1977) (per curiam). This requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice. Id. The court’s dismissal of a plaintiffs case because the plaintiff lacks subject matter jurisdiction is not a determination of the merits and does not prevent the plaintiff from pursing a claim in a court that does have jurisdiction. Id. Ramming, 281 F.3d at 161. The United States Court of Appeals for the Fifth Circuit instructed in Montez v. Department of the Navy, 392 F.3d 147 (5th Cir.2004) that generally “the district court can resolve factual disputes in determining jurisdiction pursuant to a Rule 12(b)(1) motion for dismissal.” Id. at 148. However, where the dispute is determinative of both the federal jurisdiction question and the underlying federal cause of action, and thus are interdependent, a district court might err where it resolves the disputed factual issue in favor of the Government. Montez arose in the context of a FTCA case which as noted is one of the jurisdictional bases alleged herein. The Court of Appeals for the Fifth Circuit stated: In general, where subject matter jurisdiction is being challenged, the trial court is free to weigh the evidence and resolve factual disputes in order to satisfy itself that it has the power to hear the case. See Land v. Dollar, 330 U.S. 731, 735 & n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947). “A court may base its disposition of a motion to dismiss for lack of subject matter jurisdiction on (1) the complaint alone; (2) the complaint supplemented by undisputed facts; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Robinson, 117 F.3d at 904. In short, no presumptive truthfulness attaches to the plaintiffs allegations," }, { "docid": "14801933", "title": "", "text": "matter jurisdiction or was an improper venue. In addition, Astellas argued that the district court lacked personal jurisdiction over Astellas. On November 28, 2005, without ruling on the personal jurisdiction objection, the district court held that the Safety Agreement was incidental to the Amended Basic License Agreement and granted Astellas’s motion to dismiss on the basis of the forum-selection clause in the Amended Basic License Agreement. This appeal followed. II. This Circuit has not decided the appropriate treatment of a motion to dismiss based on a forum-selection clause. See, e.g., In re Millennium Studios, Inc., 286 B.R. 300, 306 (D.Md.2002) (“There is currently no procedural mechanism specifically tailored to handle a motion to dismiss based on a forum-selection clause. The Fourth Circuit has not decided the issue of what approach to take and which subsection of Rule 12(b) is most appropriate for the situation.”). Other circuits have characterized such motions as motions under Fed.R.CivJP. 12(b)(1), (3), or (6). See, e.g., Silva v. Encyclopedia Britannica Inc., 239 F.3d 385 (1st Cir.2001) (treating motion to dismiss based on forum-selection clause as a Rule 12(b)(6) motion to dismiss); Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285 (11th Cir.1998) (holding that motions to dismiss based on forum-selection clause should be analyzed under Rule 12(b)(3)); AVC Nederland B.V. v. Atrium Inv. P’ship 740 F.2d 148 (2d Cir.1984) (affirming dismissal of action under Rule 12(b)(1) on basis of forum-selection clause). A. The district court dismissed Sucampo’s complaint on the basis of the forum-selection clause contained in the Amended Basic License Agreement before resolving Appellee’s motion to dismiss for lack of personal jurisdiction. Accordingly, we must resolve whether a dismissal based on a forum-selection agreement is under Rule 12(b)(6), because the dismissal of a case on an issue relating to the merits of the dispute, such as failure to state a claim, is improper without resolving threshold issues of jurisdiction, including personal jurisdiction. See Ruhrgas AG v. Marathon Oil, 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (“Personal jurisdiction ... is ‘an essential element of the jurisdiction of a district ... court,’ without" }, { "docid": "5072898", "title": "", "text": "Second Amended Complaint, the defendants, other than Allstate and Pilot, filed motions for summary judgment directed at Branch’s loss-shifting claim. Additionally, all of the defendants have now filed motions to dismiss Branch’s inflated-revenue claim. Those motions are now before the Court. II. Legal Standard The Court will resolve this case under the FCA’s first-to-file and public disclosure jurisdictional bars. The Court will adjudicate the first-to-file issue under Rule 12(b)(1), which requires dismissal of an action if the court lacks jurisdiction over the subject matter of the plaintiffs claim. In ruling on a Rule 12(b)(1) motion to dismiss, the court may rely on (1) the complaint alone, presuming the allegations to be true, (2) the complaint supplemented by undisputed facts, or (3) the complaint supplemented by undisputed facts and by the court’s resolution of disputed facts. Den Norske Stats Oljeselskap As v. Heere-Mac Vof, 241 F.3d 420, 424 (5th Cir.2001); see also Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.1996). The plaintiff bears the burden of demonstrating that subject matter jurisdiction exists. See United States ex rel. Ondis v. City of Woonsocket, 587 F.3d 49, 54 (1st Cir.2009); Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.1981). A court’s dismissal of a case for lack of subject matter jurisdiction is not a decision on the merits, and the dismissal does not ordinarily prevent the plaintiff from pursuing the claim in another forum. See Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.1977). As to the public disclosure bar, the Fifth Circuit has held that this jurisdictional issue is intertwined with the merits and is thus a matter for summary judgment. United States ex rel. Reagan v. East Texas Medical Center Regional Healthcare System, 384 F.3d 168 (5th Cir.2004) (quoting United States ex rel. Laird v. Lockheed Martin Engineering and Science Services Co., 336 F.3d 346, 350 (5th Cir.2003)). Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a" }, { "docid": "19316021", "title": "", "text": "for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) (incorporated in this proceeding by Fed. R. Bankr.P. 7012). If that were the sole basis of Motion, I would grant the Motion, dismiss the Complaint, but also grant the Trustee leave to file an amended complaint for the reasons set forth in BRT. However, pursuant to Rule 12(b)(1), the Defendant also asserts that the bankruptcy court lacks subject matter jurisdiction over the § 544 fraudulent transfer claim. As a general rule, a federal bankruptcy court has an independent duty to satisfy itself that it has subject matter jurisdiction over any pending matter and must conclude that it has subject matter jurisdiction before reaching the merits of a case. A corollary to this principle is that a federal court “has leeway ‘to choose among threshold grounds for denying audience to a case on the merits,’ ” which may include a variety of grounds for dismissal that are “short of reaching the merits.” Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430-31, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999)). Here, however, the asserted ground for dismissal is not “short of reaching the merits.” Dismissal of a complaint under Rule 12(b)(6) is a decision on the merits. E.g., Johnsrud v. Carter, 620 F.2d 29, 32-33 (3d Cir.1980); Hubicki v. ACF Indus., Inc., 484 F.2d 519, 523 (3d Cir. 1973). If this court lacks subject matter jurisdiction, it would be improper to dismiss the § 544 and § 549 claims under Rule 12(b)(6) for failure to state a claim. Likewise, it would be improper to grant the Trustee leave to amend the Complaint. Therefore, I must address the Defendant’s jurisdictional argument. As explained below, I hold that the bankruptcy court has subject matter jurisdiction over the Trustee’s § 544 claim. III. A. The Defendant’s jurisdictional argument is based on the recent Supreme Court decision, Stern v. Marshall, — U.S. -, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011). In Stern, the court held that" } ]

[ { "docid": "11242389", "title": "", "text": "which appellants complain (appellees’ activities pursuant to the subpoena) could not have been undertaken had appellees had no official legislative positions and responsibilities. The judgments of the District Court are Affirmed. WASHINGTON, Senior Circuit Judge, did not participate in this decision. . Although the complaint named a number of defendants, most of these appear to be residents of Louisiana upon whom service of process was not effected. Ap-pellees are the only two defendants who were served; and they are, respectively, the Chairman and the Chief Counsel of the United States Senate Internal Security Subcommittee. . A detailed description of this action is contained in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). The Supreme Court in that case, decided while the instant appeals were under submission, invalidated the Louisiana statute under which the Louisiana officials purported to act, and directed that the relief to be afforded by the District Court in Louisiana should include “ordering immediate return of all papers and documents seized.” . The full entry in the Subcommittee’s minutes is as follows: November 14, 1963 Upon the conclusions of the testimony of the second of two witnesses heard in executive session, the Subcommittee considered and discussed the handling of material subpoenaed from the Joint Legislative Committee on Un-American Activities of the State of Louisiana. Present: Senators Eastland, Dodd, Hruska, Dirksen, and Scott. After discussion, and on motion of Senator Dirksen, it was Ordered that the Chairman be authorized to appoint a Task Force consisting of Senators Eastland, Johnston, Dodd, Hruska and Scott to evaluate the subpoenaed material progressively with respect to its value to the Subcommittee’s investigation and to make determination from time to time respecting particular papers, documents, or other material to be inserted verbatim in the record of the Subcommittee; that all of the material not clearly irrelevant to the Subcommittee’s investigation of Communist activity generally, of Communist front activity, of Communist infiltration of organizations and groups, and/or the source of funds for Communist or Communist front activities be ordered into the Committee’s hearing record by reference subject to the later" } ]

[ { "docid": "23497073", "title": "", "text": "must be an integral part of the deliberative and communicative processes by which [legislators] participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters [within the legislature’s constitutional jurisdiction], Hutchinson v. Proxmire, 443 U.S. 111, 126, 99 S.Ct. 2675, 2684, 61 L.Ed.2d 411 (1979) (emphases in original) (quoting Gravel, 408 U.S. at 625, 92 S.Ct. at 2627). The majority does not dispute this definition of the scope of legislative immunity. It is important to recognize that the plaintiffs here seek only to enjoin Rule 45’s enforcement. In my view, legislative immunity does not reach enforcement of the House Rule because such enforcement is not “an integral part of the deliberative and communicative processes” of the state legislature. Of course, the regulation of the admission of the public to the House’s floor has an important impact on the legislative process— that is what this lawsuit is about. But it belies common usage, I believe, to say that the defendants’ practices relating to the admission or exclusion of classes of persons from the House floor constitute “an integral part of the deliberative and communicative processes” of the legislature. Certainly, such practices are not part and parcel of the legislative process in the same fashion as are the kinds of legislative acts to which the Supreme Court has previously extended legislative immunity; e.g., voting for a resolution, Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1881), making a speech on the floor, United States v. Johnson, 383 U.S. 169, 180, 86 S.Ct. 749, 755, 15 L.Ed.2d 681 (1966), circulating documents to other legislators, McMillan, 412 U.S. at 312, 93 S.Ct. at 2024, or the gathering of information for a committee hearing, Dombrowski v. Eastland, 387 U.S. 82, 84, 87 S.Ct. 1425, 1427, 18 L.Ed.2d 577 (1967) (per curiam). See Brewster, 408 U.S. at 516, 92 S.Ct. at 2539 (“In every case thus far before this Court, the Speech or Debate Clause has been limited to an act which was clearly a part of the legislative process.” (emphasis" }, { "docid": "18448993", "title": "", "text": "debate. The reason of the rule is as forcible in its application to written reports presented in that body by its committees, to resolutions offered, which, though in writing, must be reproduced in speech, and to the act of voting. . In short, to things generally done in a session of the House by one of its members in relation to the business before it.” 103 U.S. at 204. Thus, actions within the legislative role were held to be within the ambit of the privilege. And consistent with this holding, the Supreme Court has reaffirmed that once it is determined a member of Congress is acting within a “legitimate legislative sphere,” the speech or debate clause is an absolute bar to interference. Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 503, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975), citing Doe v. McMillan, 412 U.S. 306, 314, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973). The standard for invoking congressional immunity under article I, section 6 of the Constitution is the standard of legitimate legislative activity. In the event of a suit, once it is determined that the conduct complained of meets that standard, the action must be dismissed. The Court has said: “[L]egislators acting within the sphere of legitimate legislative activity ‘should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves.’ Dombrowski v. Eastland, [387 U.S. 82, 85, 87 S.Ct. 1425, 1427, 18 L.Ed.2d 577 (1967)] . . [A] private civil action, whether for an injunction or damages, creates a distraction and forces Members to divert their time, energy, and attention from their legislative tasks to defend the litigation. Private civil actions also may be used to delay and disrupt the legislative function. Moreover, whether a criminal action is instituted by the Executive Branch, or a civil action is brought by private parties, judicial power is still brought to bear on Members of Congress and legislative independence is imperiled.” Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 503, 95 S.Ct. 1813, 1821. Although it is certain that legitimate legislative activity" }, { "docid": "13211046", "title": "", "text": "they clench their jaws when they were angry, when they were prodded by sticks, when they were hungry, and they didn’t clench their jaws as much if they had been drinking. Mike Douglas: You know we’re laughing at this but this is really really . Senator Proxmire: Oh it’s terrible. . The district court granted Senator Proxmire’s motion for summary judgment on April 22, 1977 (77-1677) and the motion to dismiss defendant Schwartz on June 22, 1977 (77-1755). As stated below, see note 5 infra, since we find the legal status of the defendants to be identical, we affirm both rulings for the same reasons. We note that in cases involving the assertion of the immunities raised here, dismissal or summary judgment, when proper, is necessary to prevent the possible harassment of a full-fledged lawsuit; the precise harassment the legislative and first amendment immunities were designed to prevent. See Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967) (Speech or Debate Clause protects legislators from the burden of defending against a lawsuit as well as from the results of the lawsuit); Grzelak v. Calumet Publishing Co., Inc., 543 F.2d 579, 582 (7th Cir. 1975) (summary judgment minimizes the chilling effect libel suits have on first amendment rights). . See Comment, McSurely v. McClellan: Civil Suits Under the Speech or Debate Clause, 71 Nw.U.L.Rev. 783 (1977) [hereinafter cited as Northwestern Comment], The Speech or Debate Clause states: “for any Speech or Debate in either House, they [members of Congress] shall not be questioned in any other Place,” U.S.Const. art. I, § 6. Generally, legislative aides are entitled to the same Speech or Debate Clause protection as the representatives they serve. Gravel v. United States, 408 U.S. 606, 618, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). In the present action, we view the immunity available to Senator Proxmire and his aide, Morton Schwartz, to be identical. . The Court stated in Gravel: The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be" }, { "docid": "14289736", "title": "", "text": "President Kerttula was entitled to absolute legislative immunity The Alaska Court of Appeals has indicated that the free speech and debate clause of the Alaska Constitution is essen tially identical to its federal counterpart. State v. Dankworth, 672 P.2d 148, 151 (Alaska Ct.App.1983). Cases interpreting the federal provision are, therefore, persuasive authority on the Alaska provision. Id. Once it is determined that legislators are acting within the “legitimate legislative sphere,” the clause is an absolute bar. Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 503, 95 S.Ct. 1813, 1821, 44 L.Ed.2d 324 (1975). The immunity provided by the clause thus applies “ ‘to things generally done in a session of the House by one of its members in relation to the business before it.’ ” Hutchinson v. Proxmire, 443 U.S. 111, 126, 99 S.Ct. 2675, 2684, 61 L.Ed.2d 411 (1979) (quoting Kilboum v. Thompson, 13 Otto 168, 204, 103 U.S. 168, 204, 26 L.Ed. 377 (1881)). The shield thus extends to those actions necessary to preserve the legislative process but not beyond them. Id., 443 U.S., at 127, 99 S.Ct. at 2684 (quoting United States v. Brewster, 408 U.S. 501, 517, 92 S.Ct. 2531, 2540, 33 L.Ed.2d 507 (1972)). We utilize a two-part test to determine whether an activity is within the “legitimate legislative sphere.” The activity must (1) be “an integral part of the deliberative and communicative process by which Members participate in committee and House proceedings,” and (2) “address proposed legislation or some other subject within [the legislature’s] constitutional jurisdiction.” Miller v. Transamerican Press, Inc., 709 F.2d 524, 529 (9th Cir.1983). Kerttula was absolutely immune because his action took place on the floor of the Senate in an effort to convene a joint session. The business before the Legislature, a confirmation vote on the Governor’s proposed appointees, was clearly legislative in nature. Moreover, an act to compel the attendance of other legislators at a legislative session is an integral legislative function. Cf Eastland, 421 U.S. at 505 [95 S.Ct. at 1822], ... Keefe v. Roberts, 116 N.H. 195, 199, 355 A.2d 824, 827 (1976) (acts of securing" }, { "docid": "14289737", "title": "", "text": "443 U.S., at 127, 99 S.Ct. at 2684 (quoting United States v. Brewster, 408 U.S. 501, 517, 92 S.Ct. 2531, 2540, 33 L.Ed.2d 507 (1972)). We utilize a two-part test to determine whether an activity is within the “legitimate legislative sphere.” The activity must (1) be “an integral part of the deliberative and communicative process by which Members participate in committee and House proceedings,” and (2) “address proposed legislation or some other subject within [the legislature’s] constitutional jurisdiction.” Miller v. Transamerican Press, Inc., 709 F.2d 524, 529 (9th Cir.1983). Kerttula was absolutely immune because his action took place on the floor of the Senate in an effort to convene a joint session. The business before the Legislature, a confirmation vote on the Governor’s proposed appointees, was clearly legislative in nature. Moreover, an act to compel the attendance of other legislators at a legislative session is an integral legislative function. Cf Eastland, 421 U.S. at 505 [95 S.Ct. at 1822], ... Keefe v. Roberts, 116 N.H. 195, 199, 355 A.2d 824, 827 (1976) (acts of securing quorum by compelled attendance is part of legislative process). 577 F.Supp. 1491, 1495 (D. Alaska 1984). Schultz suggests that Kerttula should not be immune because he was acting in furtherance of a conspiracy with executive officials. This assertion is immaterial. Since the act was within the legitimate legislative sphere, motives for the act may not be examined. See Eastland, 421 U.S. at 508, 95 S.Ct. at 1824. Finally, Schultz asserts that Kerttula did not have authority to issue the order and legislative immunity should not adhere. This argument is premised on Schultz’ interpretation of Uniform Rule 51, which provides that the “president of the senate in the presence of the speaker of the house presides over joint sessions.” According to Schultz, Kerttula could only preside over a joint session with the speaker of the house. Uniform Rule 16(e) provides that the presiding officer may compel the attendance of absent members. Because the speaker was not at the June 8 joint session, Kerttula did not have authority to issue the Rule 16(e) order. We understand but" }, { "docid": "13699253", "title": "", "text": "Brief for Appellants at 4. . Judge Bork reminds us infra at 1185, note 5, of the “Supreme Court’s recently announced principle that Speech or Debate Clause issues are generally to be dealt with before the merits are reached. Davis v. Passman, 442 U.S. 228, 235, n. 11, 99 S.Ct. 2264, 2272 n. 11, 60 L.Ed.2d 846 (1979).” That principle is designed to protect legislators “not only from the consequences of litigation’s results but also from the burden of defending themselves.” Davis, 442 U.S. at 236 n. 11, 99 S.Ct. at 2272, quoting Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 1427-1428, 18 L.Ed.2d 577 (1967). Because we do not reach the merits of this case, but in fact affirm the lower court’s dismissal, it seems likely that we are within the spirit — if not the letter — of Davis. In addition, we are mindful of the Supreme Court’s repeated admonitions not “ ‘to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.’ Burton v. United States, 196 U.S. 283, 295 [25 S.Ct. 243, 245, 49 L.Ed. 482].” Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 [56 S.Ct. 466, 483, 80 L.Ed. 688] (1936) (Brandéis, J., concurring). . The “Clause has been read ‘broadly to effectuate its purposes,’ ... and includes within its protections anything ‘generally done in a session of the House by one of its members in relation to the business before it.’ ” Doe v. McMillan, 412 U.S. 306, 311, 93 S.Ct. 2018, 2024, 36 L.Ed.2d 912 (1973) (citations omitted.) Still, it is at least debatable whether the partisan organizational actions of the Democratic Caucus should be immunized as “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583 (1972). See Reinstein & Silverglate, Legislative Privilege" }, { "docid": "23315473", "title": "", "text": "the Committee, defendant-appellee Perez-Viera, is not immune from suit. Appellant relies on Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 1427-28, 18 L.Ed.2d 577 (1967) (per curiam), wherein the Supreme Court affirmed a grant of summary judgment for the Chairman of a Senate subcommittee but reversed a summary judgment order in favor of subcommittee counsel, explaining that the “doctrine [of legislative] immunity is less absolute, although applicable, when applied to officers or employees of a legislative body, rather than to legislators themselves.” Eight years later, the Supreme Court considered whether the absolute immunity of the same Senate Subcommittee Chairman extended to the same subcommittee counsel. Eastland v. United States Servicemen’s Fund, 421 U.S. at 506-508, 95 S.Ct. at 1823-24. The Court “[drew] no distinction between the Members and the Chief Counsel,” id. at 507, 95 S.Ct. at 1823, stating that “the day-to-day work of [legislative] aides is so critical to the Members’ performance that they must be treated as [the Members’] alter egos.... ” Id. (alteration in original) (quoting Gravel, 408 U.S. at 616-17, 92 S.Ct. at 2622-23) (internal quotation marks omitted). It noted, however, that “[t]he complaint ... does not distinguish between the activities of the Members and those of the Chief Counsel,” thereby distinguishing Dombrowski v. Eastland. Id. Appellant argues that his complaint does distinguish between the activities of Hernandez-Agosto and Antonio-Rigau, on the one hand, and Perez-Viera on the other. Nevertheless, the relevant allegation in the complaint — that chief counsel Perez-Viera presented information at the Committee hearings, knowing it to be false and misleading — is part and parcel of the parallel allegation that all legislator-defendants used the Hearings to disseminate information about Romero-Barcelo, knowing it to be false or misleading. Thus, in applying the doctrine of absolute legislative immunity to these facts, we draw no distinction between the legislator-defendants and Committee counsel. B. Civil Rights Claims We next consider the claims not barred by absolute legislative immunity. 1. Section 1983 “An actionable section 1983 claim must allege facts sufficient to support a determination ‘(i) that the conduct complained of has been committed under" }, { "docid": "23315465", "title": "", "text": "rather than the title of the office which governs whether immunity attaches.” Acevedo-Cordero v. Cordero-Santiago, 958 F.2d 20, 21 (1st Cir.1992); see also Agromayor, 738 F.2d at 59. “Acts ... that are administrative in nature do not ‘give rise to absolute immunity from liability in damages under § 1983.’” Negron-Gaztambide, 35 F.3d at 28 (quoting Forrester, 484 U.S. at 229, 108 S.Ct. at 545); see also Agromayor, 738 F.2d at 59-60; Cutting v. Muzzey, 724 F.2d 259, 261-62 (1st Cir.1984). The scope of state legislative immunity from suit under section 1983 is “essentially coterminous” with the absolute immunity accorded members of Congress under the Speech or Debate Clause of the United States Constitution (or “the Clause”). Harwood, 69 F.3d at 629 (citing Supreme Court of Va., 446 U.S. at 732-33,100 S.Ct. at 1974-75). For the.Clause to apply, the activity must be “ ‘an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation, or with respect to other matters which the Constitution places within the jurisdiction of either House.’ ” Agromayor, 738 F.2d at 59 (quoting Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583 (1976)). It does not cover “actions that are only ‘casually or incidentally related to legislative affairs,’” Harwood, 69 F.3d at 630 (quoting United States v. Brewster, 408 U.S. 501, 528, 92 S.Ct. 2531, 2545, 33 L.Ed.2d 507 (1972)), “or which fall outside the ‘legitimate legislative sphere.’ ” Id. (quoting Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 503, 95 S.Ct. 1813, 1821, 44 L.Ed.2d 324 (1975)). “While the core protection conferred by the Clause concerns speech or debate by a member of Congress on the floor of either the Senate or the House”, id. (citing Gravel, 408 U.S. at 625, 92 S.Ct. at 2627), “the penumbra of the Clause sprawls more broadly.” Id. For example, the Clause covers voting; id. (citing Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1880)); “conduct at legislative hearings,” but not “private" }, { "docid": "8743269", "title": "", "text": "the Grand Jury, and no more.” In re Report & Recommendation of Grand Jury, 370 F.Supp. at 1226. Finally, in addition to the Court’s conclusion that the mere documentary information presented to the grand jury does not constitute matters occurring before the grand jury, the Court finds, as discussed next, that Chairman Moss and the Subcommittee have made an independent showing of their legal right to obtain the documentary information desired. II. Legislative Prerogative and Power to Investigate Article I, Section 6, Clause 1 of the Constitution provides “The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech Or debate in either House, they shall not be questioned in any other Place.” The Speech or Debate Clause provides both an absolute immunity from being questioned about legislative activities, and the inherent, implied power to conduct legislative activity. Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975); Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). The scope of the Speech or Debate Clause is sweeping and awesome. Once the threshold test for the application of that clause is met, its authority and immunity is absolute. Eastland v. United States Servicemen’s Fund, 421 U.S. at 503, 95 S.Ct. at 1821, 44 L.Ed.2d at 336. The threshold test which must be met in order for the Speech or Debate Clause to apply is whether a member of Congress or his staff acting on his behalf are involved in conduct within a legitimate legislative sphere of activity. Eastland v. United States Servicemen’s Fund, 421 U.S. at 503, 95 S.Ct. at 1821, 44 L.Ed.2d at 336; Gravel v. United States, 408 U.S. at 622, 92 S.Ct. at 2625, 33 L.Ed.2d at 600. By ‘legitimate legislative sphere’" }, { "docid": "19777815", "title": "", "text": "separation of powers and safeguard legislative independence. See, e.g., Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 502, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975); United States v. Brewster, 408 U.S. 501, 507, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972). Legislative immunity may protect an official exercising a legislative function “from inquiry into legislative acts or the motivation for actual performance of legislative acts,” Brewster, 408 U.S. at 508, 92 S.Ct. 2531, “from the burden of defending” certain suits, Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967), and “from the consequences of litigation’s results.” Id. The Supreme Court rejected in Brewster the view that the Speech and Debate Clause protects “all conduct related to the due functioning of the legislative process.” Brewster, 408 U.S. at 513, 92 S.Ct. 2531. The Court stated that, “[w]e would not think it sound or wise, simply out of an abundance of caution to doubly insure legislative independence, to extend the privilege beyond its intended scope, its literal language, and its history, to include all things in any way related to the legislative process.” Id. at 516, 92 S.Ct. 2531. On the same day that it decided Brewster, the Court took a broad view in Gravel v. United States of who could invoke legislative immunity, holding that a legislative aide could invoke immunity if a legislator could invoke the immunity under the same circumstances. 408 U.S. 606, 608-10, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). As to what actions were protected by legislative immunity, the Court took a narrow view, stating that the “heart of the Clause is speech or debate in either House,” and that “[ijnsofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Id. at 625, 92 S.Ct. 2614. This Court has held that the federal common" }, { "docid": "8595031", "title": "", "text": "Kilbourn, 13 Otto 168, 103 U.S. at 203. See United States v. Johnson, 383 U.S. 169, 180, 86 S.Ct. 749, 755, 15 L.Ed.2d 681 (1966); McSurely v. McClellan, 553 F.2d 1277, 1284 (D.C.Cir. 1976), cert. dismissed, 438 U.S. 189, 98 S.Ct. 3116, 57 L.Ed.2d 704 (1978). The Speech or Debate Clause is intended to protect the integrity of the legislative process by restraining the judiciary and the executive from questioning legislative actions. United States v. Brewster, 408 U.S. 501, 507, 92 S.Ct. 2531, 2535, 33 L.Ed.2d 507 (1972). In so shielding the legislative branch from judicial scrutiny, the clause seeks to protect legislators “not only from the consequences of litigation’s results, but also from the burden of defending themselves.” Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 1427, 18 L.Ed.2d 577 (1967). Without this protection legislators would be both inhibited in and distracted from the performance of their constitutional duties. Both of these interests are embodied in the Supreme Court’s oft-quoted test of Speech or Debate Clause immunity: The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in Committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. Gravel, 408 U.S. at 625, 92 S.Ct. at 2627 (emphasis added). See Eastland v. United States’ Servicemen’s Fund, 421 U.S. 491, 504, 95 S.Ct. 1813, 1821, 44 L.Ed.2d 324 (1975); Doe v. McMillan, 412 U.S. 306, 314, 93 S.Ct. 2018, 2025, 36 L.Ed.2d 912 (1973); Consumers Union v. Periodical Correspondents’ Association, 515 F.2d 1341, 1350 (D.C.Cir.1975). In a case decided contemporaneously with Gravel, the Supreme Court clarified its reading of the Speech or Debate Clause, stating: “The only reasonable reading of the Clause, consistent with its history and purpose, is that it does not prohibit inquiry into activities that are casually or incidentally related to legislative affairs but not" }, { "docid": "22179352", "title": "", "text": "protects officials “from inquiry into legislative acts or the motivation for actual performance of legislative acts,” United States v. Brewster, 408 U.S. 501, 509, 92 S.Ct. 2531, 2536, 33 L.Ed.2d 507 (1972), “from the burden of defending” certain suits, Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 1427, 18 L.Ed.2d 577 (1967) (per curiam), and “from the consequences of litigation’s results,” id.) see generally Consumers Union, 446 U.S. at 731-32, 100 S.Ct. at 1974, Eastland, 421 U.S. at 502-03, 95 S.Ct. at 1820-21; Johnson, 383 U.S. at 179, 86 S.Ct. at 755. While the Court has given the Clause broad application, its protections are carefully tailored to its purposes. See Eastland, 421 U.S. at 501-02, 95 S.Ct. at 1820-21. Officials claiming protection “must show that such immunity is justified for the governmental function at issue.” Hafer v. Melo, 502 U.S. 21, 28-29, 112 S.Ct. 358, 363, 116 L.Ed.2d 301 (1991). Accordingly, the privilege enures only to legislators engaging in actions considered “an integral part of the deliberative and communicative processes by which [legislators] participate in ... proceedings with respect to the consideration and passage or rejection of proposed legislation.” Smith v. Lomax, 45 F.3d 402, 405 (11th Cir.1995) (quoting Gravel, 408 U.S. at 625, 92 S.Ct. at 2627) (alteration in original). The Clause does not confer absolute immunity “simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators.” Brewster, 408 U.S. at 507, 92 S.Ct. at 2535. 2. Turning to the matter here, Stogner initially asserts that the district court’s analysis is flawed because it improperly focused on his position as Executive Assistant to the Chief Executive Officer (Jones). We agree. In basing its denial of legislative immunity to Stogner on the fact that he “is not an officer or employee of a legislative body” but, rather, “an executive assistant of someone who is serving in an executive position,” the district court erred by grounding its decision on Stogner’s title rather than upon the function in which he was engaged that" }, { "docid": "18831671", "title": "", "text": "state legislators . . . .” Id. at 805. This Court finds additional support for this view in the recent Supreme Court decision of Lake Country Estates v. Tahoe Reg. Planning, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979). There, it was held that regional legislators were entitled to the same absolute immunity as are State and federal legislators because this policy “recognizes the need for immunity to protect the ‘public good.’” Id. at 405, 99 S.Ct. at 1179. This holding, however, does not protect legislators from suit with respect to all their actions. Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). Absolute immunity from suit arises only where a legislator’s allegedly injurious conduct had been “generally done in the process of enacting legislation . . . United States v. Brewster, 408 U.S. 501, 514, 92 S.Ct. 2531, 2538, 33 L.Ed.2d 507 (1972). Accordingly, inasmuch as the complaint alleges acts by the Board of Supervisors within their “legislative function” of making zoning decisions or “deliberations that make up the legislative process,” defendant Board of Supervisors is absolutely immune from suit. See Tenney v. Brandhove, 341 U.S. 367 at 376-8, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). However, inasmuch as the complaint against the Board of Supervisors alleges conduct beyond that necessary to perform their duties in establishing zoning policies, the Board of Supervisors is subject to suit under §§ 1983 and 1985(3). See Hutchinson v. Proxmire, — U.S. —, 99 S.Ct. 2675, 61 L.Ed,2d 411 (1979). Plaintiff argues with respect to the Planning Commission and the County Attorney, that they serve in an executive, not a legislative capacity, and are therefore entitled only to a qualified immunity rather than an absolute legislative immunity. Absolute immunity refers to the right to be free, not only from the consequences of the litigation’s results, but from the burden of defending oneself altogether. Hutchinson v. Proxmire, — U.S. -, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979); Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967). Qualified immunity extends only to" }, { "docid": "13211024", "title": "", "text": "moved for summary judgment and filed numerous supporting documents. Plaintiff opposed the motion with equally voluminous documentation. The district court, in a scholarly opinion, granted Senator Proxmire’s motion for summary judgment and later dismissed the suit against Schwartz. This appeal followed. II. Several recent cases have interpreted the scope of the absolute immunity provided legislators and their aides under the Speech or Debate Clause in suits stemming from investigations. While actual speech in either House is unquestionably protected, the Clause also protects other acts by representatives when those acts are found to be within the “legitimate legislative sphere.” Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 503, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975); Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). The act of investigation is an “appropriate auxiliary to the legislative function” and legislators have been found to be within the legislative sphere when the subject of the investigation was one on which Congress could legislate and when the information sought from material witnesses furthered that subject. McGrain v. Daugherty, 273 U.S. 135, 174, 177, 47 S.Ct. 319, 328, 71 L.Ed. 580 (1927); Watkins v. United States, 354 U.S. 178, 187, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957). However, even where the investigation is within the legislative sphere, absolute immunity does not attach to the improper dissemination of actionable information outside Congress, Doe v. McMillan, 412 U.S. 306, 316, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973); Gravel v. United States, supra, 408 U.S. at 625, 92 S.Ct. 2614, nor to illegal or unconstitutional acts committed during the investigation. United States v. Brewster, 408 U.S. 501, 526, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972); Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967). Equipped with these basic principles, we will now determine if absolute legislative immunity bars suit upon the acts complained of by the plaintiff. For the purposes of analysis, we divide the allegations in this case into four separate acts: (1) the follow-up phone calls to administrative agencies; (2) the press release of the speech; (3)" }, { "docid": "15053192", "title": "", "text": "congressional acts properly thought to fall within the legislative function—those “generally done in a session of the House by one of its Members in relation to the business before it.” Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1881). The Clause does not, for example, prevent the criminal prosecution of Members of Congress for misconduct, even if somehow connected with their performance of official responsibilities. United States v. Brewster, 408 U.S. 501, 512, 92 S.Ct. 2531, 2537, 33 L.Ed.2d 507 (1972) (citing United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966)). Malfeasance by a Member does not fall within the legislative sphere simply because it is associated with congressional duties. As the Supreme Court explained in allowing a bribery prosecution to go forward in Brewster, the constitutional protection for acts within the legislative sphere does not extend to “all conduct relating to the legislative process,” 408 U.S. at 515, 92 S.Ct. at 2539, but only to those activities that are “clearly a part of the legislative process—the due functioning of the process,” id. at 516. This formulation, of course, implies that the judiciary cannot avoid determining what are the outer limits of legitimate legislative process. Accordingly, congressional complicity in a scheme to seize property illegally will undo any claim of immunity raised in a prosecution or civil action. Dombrowski v. Eastland, 387 U.S. 82, 84-85, 87 S.Ct. 1425, 1427-28, 18 L.Ed.2d 577 (1967); McSurely v. McClellan, 553 F.2d 1277, 1287-88 (D.C.Cir.1976) (en banc), cert. granted, 434 U.S. 888, 98 S.Ct. 260, 54 L.Ed.2d 173 (1977), cert. dismissed sub nom. McAdams v. McSurely, 438 U.S. 189, 98 S.Ct. 3116, 57 L.Ed.2d 704 (1978). The Speech or Debate Clause applies in civil cases as well as criminal prosecutions. See, e.g., Eastland, 421 U.S. at 502-03, 95 S.Ct. at 1820-21; Dombrowski, 387 U.S. at 84-85, 87 S.Ct. at 1427-28; McMillan, 412 U.S. at 312-13, 93 S.Ct. at 2024-25. Although the Clause “was not born primarily of á desire to avoid private suits,” it was designed “to prevent intimidation by the executive and accountability before a possibly" }, { "docid": "18448994", "title": "", "text": "In the event of a suit, once it is determined that the conduct complained of meets that standard, the action must be dismissed. The Court has said: “[L]egislators acting within the sphere of legitimate legislative activity ‘should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves.’ Dombrowski v. Eastland, [387 U.S. 82, 85, 87 S.Ct. 1425, 1427, 18 L.Ed.2d 577 (1967)] . . [A] private civil action, whether for an injunction or damages, creates a distraction and forces Members to divert their time, energy, and attention from their legislative tasks to defend the litigation. Private civil actions also may be used to delay and disrupt the legislative function. Moreover, whether a criminal action is instituted by the Executive Branch, or a civil action is brought by private parties, judicial power is still brought to bear on Members of Congress and legislative independence is imperiled.” Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 503, 95 S.Ct. 1813, 1821. Although it is certain that legitimate legislative activity is within the privilege, considerable confusion exists as to what constitutes legitimate legislative activity because there are expansive dicta and a multiplicity of views in the cases examining various conduct alleged to be protected by the clause. Although the Supreme Court has always insisted that the clause must be read “broadly to effectuate its purpose,” United States v. Johnson, 383 U.S. 169, 180, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966), recent cases appear to adopt a restrictive view of what is legitimate legislative activity. The conduct of Senator Proxmire and his administrative assistant can be divided into phases for the purpose of determining applicability of the speech or debate clause: (1) investigation into federal funding of Dr. Hutchinson’s research; (2) delivery of a speech on the Senate floor by the Senator; and issuance of a press release reciting the facts and content of the Senate speech; (3) follow-up investigation by the Senator’s staff and by him at appropriation hearings; and (4) the Senator’s statement on the Mike Douglas Show, his newsletter to constituents, and his" }, { "docid": "8215975", "title": "", "text": "\"to insure that the legislative function the Constitution allocates to Congress may be performed independently” by \"insuring the independence of individual legislators.” Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 502, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975) (citations omitted). . Similarly, and more directly analogous to Speech or Debate immunity, the Supreme Court has long recognized judges’ official immunity from suit for judicial acts. See Bradley v. Fisher, 80 U.S.(13 Wall.) 335, 351-52, 20 L.Ed. 646 (1871); see also Pierson v. Ray, 386 U.S. 547, 553-54, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) (\"Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine [in Bradley ].”). . Dombrowski v. Eastland, 387 U.S. 82, 84-85, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967) (affirming dismissal of civil complaint against senator based on his activities as chairman of a Senate subcommittee); see also United States v. Dowdy, 479 F.2d 213, 221 (4th Cir. 1973) (reversing in part former congressman's conviction based on his activities as chairman of House subcommittee). . Helstoski v. Meanor, 442 U.S. 500, 506, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979) (challenge to validity of indictment on Speech or Debate Clause grounds properly brought by direct interlocutory appeal rather than writ of mandamus following conviction). .‘ United States v. Johnson, 383 U.S. 169, 180, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966) (affirming reversal of former congressman’s conviction based on substance of, and motivation for, speech in the House of Representatives). . See Kilbourn, 103 U.S. at 204; Eastland, 421 U.S. at 502, 95 S.Ct. 1813. . See Kilbourn, 103 U.S. at 204 (Speech or Debate Clause applies \"to things generally done in a session of the House by one of its members in relation to the business before it.”); see also United States v. Brewster, 408 U.S. 501, 513-514, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972) (holding that Speech or Debate Clause protects \"acts generally done in the course of the process of enacting" }, { "docid": "14289738", "title": "", "text": "quorum by compelled attendance is part of legislative process). 577 F.Supp. 1491, 1495 (D. Alaska 1984). Schultz suggests that Kerttula should not be immune because he was acting in furtherance of a conspiracy with executive officials. This assertion is immaterial. Since the act was within the legitimate legislative sphere, motives for the act may not be examined. See Eastland, 421 U.S. at 508, 95 S.Ct. at 1824. Finally, Schultz asserts that Kerttula did not have authority to issue the order and legislative immunity should not adhere. This argument is premised on Schultz’ interpretation of Uniform Rule 51, which provides that the “president of the senate in the presence of the speaker of the house presides over joint sessions.” According to Schultz, Kerttula could only preside over a joint session with the speaker of the house. Uniform Rule 16(e) provides that the presiding officer may compel the attendance of absent members. Because the speaker was not at the June 8 joint session, Kerttula did not have authority to issue the Rule 16(e) order. We understand but reject the argument. The Alaska Supreme Court has interpreted Uniform Rule 51 as providing that the senate president alone is the presiding officer at joint sessions. Kerttula v. Abood, 686 P.2d 1197, 1204 (Alaska 1984). This interpretation of state law by the Alaska Supreme Court indicates that Kerrtula had the authority to compel the attendance of absent legislators at the joint session. The executive officials are entitled to qualified immunity Recently, in Harlow v. Fitzgerald, 457 U.S. 800,102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court replaced the subjective good faith test for qualified immunity of government officials with an objective standard. Under the Harlow test, government officials are shielded from liability when “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818, 102 S.Ct. at 2738 (citations omitted). This change was motivated by a desire to allow for more expeditious dispositions of suits against government officials on summary judgment. Id. at 817-19, 102 S.Ct. at 2738-39. Although Harlow concerned federal government" }, { "docid": "18856482", "title": "", "text": "at 512, 92 S.Ct. at 2537, it stated that many contacts between Members and executive agencies are not protected because “they are political in nature rather than legislative....” Id. Therefore, the second part of the “jurisprudentially important” test is satisfied. Cf. Santtini, 963 F.2d at 592 (case of first impression is jurisprudentially important). I agree that striking either overt act would not result in dismissing any charge in the indictment, and I recognize the government may decide not to introduce evidence of the challenged overt acts at trial, obviating the need to reach this issue. But the Supreme Court has held a Member cannot be forced to defend against charges which implicate legitimate legislative activity. Gravel, 408 U.S. at 616, 92 S.Ct. at 2622; Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 1427, 18 L.Ed.2d 577 (1967) (per curiam). Therefore, if the indictment recites an overt act that colorably violates the Clause, it would seem a Member of Congress is entitled to a ruling pre-trial even though striking the overt act would not result in dismissing any charge in the indictment. See Helstoski, 442 U.S. at 508, 99 S.Ct. at 2449 (“[I]f a Member ‘is to avoid exposure to [being questioned for acts done in either House] and thereby enjoy the full protection of the Clause, his ... challenge to the indictment must be reviewable before ... exposure [to trial] occurs.’ ”) (alterations in original) (quoting Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651 (1977)). II. With respect to the substance of McDade’s challenge, it appears one of the overt acts may refer to protected activity, and could be stricken from the indictment. The Speech or Debate Clause prevents a Member from being questioned outside of Congress with respect to any legislative activity. Legislative activity comprises any act that is “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within" }, { "docid": "16775793", "title": "", "text": "Debate Clause. 1. The province of the Speech or Debate Clause. The Speech or Debate Clause derives from the English Bill of Rights of 1689; it concerns a privilege “recognized [since the Glorious Revolution in Britain, and throughout United States history] as an important protection of the independence and integrity of the legislature.” United States v. Johnson, 383 U.S. 169, 177, 178, 86 S.Ct. 749, 753, 754, 15 L.Ed.2d 681 (1966). The purpose of the protection secured by the Clause “is not to forestall judicial review of legislative action,” Powell v. McCormack, 395 U.S. 486, 505, 89 S.Ct. 1944, 1955, 23 L.Ed.2d 491 (1969), but to free legislators from distraction or hindrance as the process of lawmaking unfolds. “The heart of the clause is speech or debate in either House,” Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583 (1972), but the provision shields more than “words spoken in debate. Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1880). It encompasses, beyond speeches on the floor of Congress, such activity integral to lawmaking as voting, id., circulation of information to other Congress members, Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973), and participation in committee investigations, proceedings, and reports. Id.; Gravel v. United States, supra; Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967); Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). The absolute immunity secured by the Clause, however, is “not all-encompassing.” Gravel v. United States, 408 U.S. at 625, 92 S.Ct. at 2627. It would demean the high purpose of the Speech or Debate privilege to extend it to official activities of Congress members and their aides in “mundane fields” outside “the legislative core.” Davis v. Passman, 544 F.2d 865, 880 (5th Cir.1977), rev’d on other grounds, 571 F.2d 793 (5th Cir.1978) (en banc), rev’d, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). As Chief Justice Burger has stated, “[t]he immunities of the Speech or Debate Clause were not written into the Constitution simply" } ]

[ { "docid": "23629791", "title": "", "text": "As a part of each sentence it was provided that the same would begin at the expiration of the sentence imposed that day in the immediately preceding numbered criminal case. Payne concedes that the seven written judgments and commitments are unambiguous and expressly state that the seven sentences aggregating twelve years shall be served in the numerical order of the separate cases. He contends, however, that these written judgments and commitments have “no probative value.” It is his position that the terms of the sentences depend exclusively upon the oral pronouncements from the bench, and that the latter are ambiguous as to the sequence of consecutive terms. Rule 32(b), Federal Rules of Criminal Procedure, 18 U.S.C.A., which became effective on March 21, 1946, provides that a judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence. The sentence which is set forth in such judgment, however, must have been imposed in the presence of the defendant. Rule 43, Federal Rules of Criminal Procedure. It follows that if the sentence as set forth in the judgment departs in a matter of substance from the oral pronouncement of the sentence, it is void, though subject to correction under Rule 35, Federal Rules of Criminal Procedure. The order of serving consecutive sentences is a matter of substance. Sentences in criminal cases should reveal with fair certainty the intent of the court and exclude any misapprehension by those who must execute them. In keeping with this principle, it has been held necessary for the court to indicate the sequence of sentences when consecutive sentences are imposed. United States v. Daugherty, 269 U.S. 360, 46 S.Ct. 156, 70 L.Ed. 309. The district court thought that the oral pronouncement indicated with sufficient clarity that the consecutive sentences were to be served in the same sequence as the numerical order of the cases. If this is so, then the written judgment and commitments are in complete conformity with the oral sentences. Had the oral sentences been imposed with regard to the counts of a single indictment or information, we would" } ]

[ { "docid": "6993506", "title": "", "text": "PER CURIAM. Appellant sought by motion in the trial court to have the word “concurrently” substituted for the word “consecutively” in the sentencing language contained in the judgment against him. The part here involved of the judgment reads as follows: “It is adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of five (5) years on Counts I, III, V and X; and for a period of ten (10) years on Counts II, IV, and VI; said sentences imposed on Counts I, II, III, IV, V and VI to be served concurrently with each other and consecutively with the sentence imposed in Count X for a total sentence of fifteen (15) years, without costs”. (Emphasis added) It was appellant’s contention that the words “consecutively” and “with” were incompatible with each other, and that such an ambiguity was therefore created as legally to require that all of the sentences against him be accorded concurrent operation. We have held in a corresponding situation that “the use of the expression ‘to run consecutively with’ could [not] reasonably be regarded as having any other natural or contextual meaning in the situation than ‘consecutive to’ ”. Young v. United States, 8 Cir., 274 F.2d 698, 702, affirmed 81 S.Ct. 1670. See also Fulton v. United States, 5 Cir., 250 F.2d 281; Payne v. Madigan, 9 Cir., 274 F.2d 702, affirmed 81 S.Ct. 1670. In the situation here, it so happened that the court had, in the oral pronouncement of the sentences, used the ■expression “consecutively to” and not “consecutively with”, and the appearance of the word “with” instead of “to” in the formal judgment entry thus was on the face of the record of the sentencing proceedings the result of a clerical error. In these circumstances, the court, while recognizing it as unnecessary and without legal effect, saw fit on its own motion to make a nunc pro tunc substitution of the word “to” for the word “with” in the judgment and commitment order, in order to make it conform to" }, { "docid": "7529203", "title": "", "text": "of five years on each of four counts, but that the sentences on the last three counts were to run concurrently and were suspended, and that therefore the defendant was not entitled to release on the ground that the sentences had been suspended on all four counts. A reading of the sentencing judge’s entire statement revealed an intent to suspend sentence on only three counts, qualifying what appeared in the first sentence of his pronouncement to be a suspension of sentence on all counts. The second question before me is whether or not the petitioner Fox should have been present when Judge McKay corrected the after-discovered error of the misnamed No. “279” for what should have been No. 276. There is no authority in law which requires that a defendant must be present when a judge signs the order of sentence. While Federal law requires that a modification of a sentence must be done in the presence of the defendant, United States v. Behrens, 375 U.S. 162, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963); United States v. Morse, 344 F. 2d 27 (C.A.4, 1965); Powers v. United States, 325 F.2d 666 (C.A.1, 1963); United States v. Neal, 320 F.2d 533 (C.A. 3, 1963); Wilson v. Bell, 137 F.2d 716 (C.A.6, 1943), this is only as it relates to the oral communication to the defendant. The controlling consideration is whether or not the defendant was aware and had notice of the sentence which the court intended to impose. Young v. United States, 274 F.2d 698 (C.A.8, 1960) aff’d 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed. 2d 853 (1961). Also Hughes v. United States, 304 F.2d 91, (C.A.5, 1962) cert, den. 371 U.S. 894, 83 S.Ct. 195, 9 L.Ed.2d 127. The clerk ordinarily makes up or writes up the form of sentence imposed. The actual wording may or may not vary in some respects from the pronounced word. The significance lies only in the communication given to the defendant so that he may know his penalty and be aware of its substance and impact. It is not required that the order" }, { "docid": "23686785", "title": "", "text": "sentences were imposed in reverse numerical order of the counts. Both cases held that the sequence followed the order in which the sentences were imposed. Since we hold that the orally pronounced sentence adequately indicated the sentence sequence, it is of no consequence that the judgment and commitments were ambiguous in this regard. Rule 43, F.R.Crim.P., requires that the defendant be present when sentence is announced by the court, and Rule 32(b) requires that the judgment of conviction shall set forth the sentence. It follows that where there is a discrepancy between the oral pronouncement and the written judgment and commitment, the former must control. See Kennedy v. Reid, 1957, 101 U.S.App.D.C. 400, 249 F.2d 492; Payne v. Madigan, 9 Cir., 1960, 274 F.2d 702, aff’d by an equally divided Court, 1961, 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853. See also our recent case of Paccione v. Heritage, 5 Cir., 1963, 323 F.2d 378 cert. denied 377 U.S. 955, 84 S.Ct. 1632, 12 L.Ed.2d 498, for language of a judgment somewhat similar to that of the oral sentence here. The language of the judgment in that ease cleared up an ambiguity in the oral sentence, and it was held that the judgment and sentence together adequately specified the sentence sequence. Affirmed." }, { "docid": "22461011", "title": "", "text": "situation in which the defendant was not sentenced twice, that is to say, he was not before the Court a second time for resentencing. On the contrary, he was in Court the second time for hearing on a motion to correct the written commitment to conform with the oral pro nouncement of sentence. The district judge simply denied the motion. Thus, cases in which the defendant was returned to Court and resentenced are proeedurally distinguishable. See, for example, United States v. Benz, 282 U.S. 304, 307, 51 S.Ct. 113, 75 L.Ed. 354 (1931); Kennedy v. United States, 330 F.2d 26, 27 (9th Cir. 1964); Borum v. United States, 133 U.S.App.D.C. 147, 409 F.2d 433, 440 (1967). In these instances, the double jeopardy clause of the Fifth Amendment to the Constitution of the United States precludes recognition of an increased sentence when the defendant is returned to Court for resentencing. Also, we are not here concerned with the applicability of precedents which have approved a corrected and increased sentence in instances where the original sentencing process was construed to be a continuing one, that is to say, the prisoner had not yet left the courtroom or was returned the same day. Rowley v. Welch, 72 App.D.C. 351, 114 F.2d 499 (1940); DeMaggio v. Coxe, 70 F.2d 840 (2nd Cir. 1934); Nichols v. United States, 106 F. 672 (8th Cir. 1901). This Court has permitted the written commitment to control the oral articulation of a legal sentence only in cases where the oral pronouncement was ambiguous and the written judgment was relied upon to clarify the ambiguity. Boyd v. Archer, 42 F.2d 43 (9th Cir. 1930); Payne v. Madigan, 274 F.2d 702, (9th Cir. 1960) aff. 366 U.S. 761, 81 S. Ct. 1670, 6 L.Ed.2d 853. See also Young v. United States, 274 F.2d 698 (8th Cir. 1960). We have noted that in the present case the defendant was not resentenced. From a procedural point of view, the two most similar precedents are United States v. Sacco, 367 F.2d 368 (2nd Cir. 1966), and Chandler v. United States, 468 F.2d 834 (5th" }, { "docid": "23445590", "title": "", "text": "The sentences were 5 to 15 years on count 1 (housebreaking), 2 to 6 years on count 4 (assault with a dangerous weapon), 5 to 15 years on count 5 (robbery), 2 to 6 years on count 6 (assault with a dangerous weapon), 5 to 20 years on count 7 (rape), and 2 to 6 years on count 8 (assault with a dangerous weapon). . United States v. Borum, Criminal No. 943-65 (D.D.C.), rev’d 127 U.S.App.D.C. 48, 380 F.2d 595 (1967); United States v. Borum, Criminal No. 944-65 (D.D.C.), aff’d 127 U.S.App.D.C. 43, 380 F.2d 590 (1967). . “The pronouncement of sentence constitutes the judgment of the court. The authority for the execution of the court’s sentence is that judgment. ‘The commitment is mere evidence of such authority * * * ’ ” Kennedy v. Reid, 101 U.S.App. D.C. 400, 403, 249 F.2d 492, 495 (1957), quoting Watkins v. Merry, 106 F.2d 360, 361 (10th Cir. 1939). See also Gilliam v. United States, 106 U.S.App.D.C. 103, 105-106, 269 F.2d 770, 772-773 (1959); Rowley v. Welch, 72 App.D.C. 351, 353, 114 F.2d 499, 501 (1940); Downey v. United States, 67 App.D.C. 192, 91 F. 2d 223 (1937). We note, too, that “[a] judgment of conviction,” which must “be signed by the judge and entered by the clerk,” must set forth the “sentence,” and that the defendant must be present “at the imposition of sentence.” F.R.Crim.P. 32(b), 43. . Henley v. Heritage, 337 F.2d 847, 848 (5th Cir. 1964); Cuozzo v. United States, 340 F.2d 303, 304 (5th Cir. 1965); Payne v. Madigan, 274 F.2d 702, 704 (9th Cir. 1960), aff’d by an equally divided court 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853 (1961). See also Kennedy v. Reid, supra note 28. . See Gilliam v. United States, Kennedy v. Reid and Downey v. United States, all supra note 28. . Henley v. Heritage, supra note 29, 337 F.2d at 848; Hode v. Sanford, 101 F.2d 290, 291 (5th Cir. 1939); Gaddis v. United States, 280 F.2d 334, 336 (6th Cir. 1960); Buie v. King, 137 F.2d 495, 500 (8th" }, { "docid": "23050544", "title": "", "text": "Cir.), cert. denied, 430 U.S. 975, 97 S.Ct. 1666, 52 L.Ed.2d 369 (1977). A sentence is illegal if it is so ambiguous that it fails to reveal its meaning “with fair certainty.” United States v. Alverson, 666 F.2d 341, 348 (9th Cir.1982) (citing United States v. Moss, 614 F.2d 171, 175, 176 n. 4 (8th Cir.1980)). An oral sentence which leaves uncertainty as to the amount of time to be served is ambiguous but not so ambiguous as to be illegal. See Payne v. Madigan, 274 F.2d 702, 704-05 (9th Cir.1960), aff'd, 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853 (1961). Garcia’s oral sentence is ambiguous as to the time to be served before becoming eligible for parole, but it is not illegal. Where the oral pronouncement of a defendant’s sentence is unambiguous, but differs from the written sentence, the oral sentence controls. United States v. Hicks, 997 F.2d 594, 597 (9th Cir.1993). See also United States v. Bergmann, 836 F.2d 1220, 1221 (9th Cir.1988). In contrast, the written sentence will control where there are ambiguities in the oral pronouncement of the sentence, and the writing resolves the ambiguity. Green v. United States, 447 F.2d 987, 987 (9th Cir.1971), cert. denied, 405 U.S. 976, 92 S.Ct. 1201, 31 L.Ed.2d 250 (1972). Here, the oral pronouncement is ambiguous regarding whether Garcia’s parole eligibility date will be determined under 18 U.S.C. § 4205(b)(1) or under 4205(a). The written judgment clearly states he shall be considered for parole pursuant to 18 U.S.C. § 4205(a). Thus, relying on the written judgment, Garcia’s parole eligibility date is clearly and unambiguously determined under section 4205(a), and any attempt to “correct” it violates Garcia’s double jeopardy rights. Even though the district court may have intended at all points in time to apply section 4205(b)(1), it cannot correct a sentence that was imposed to reflect this intention. See United States v. Munoz-Dela Rosa, 495 F.2d 253, 255 (9th Cir.1974) (citing with approval United States v. Sacco, 367 F.2d 368 (2d Cir.1966)). The district court’s later amended judgment increased Garcia’s minimum term before being eligible for parole from" }, { "docid": "6993507", "title": "", "text": "that “the use of the expression ‘to run consecutively with’ could [not] reasonably be regarded as having any other natural or contextual meaning in the situation than ‘consecutive to’ ”. Young v. United States, 8 Cir., 274 F.2d 698, 702, affirmed 81 S.Ct. 1670. See also Fulton v. United States, 5 Cir., 250 F.2d 281; Payne v. Madigan, 9 Cir., 274 F.2d 702, affirmed 81 S.Ct. 1670. In the situation here, it so happened that the court had, in the oral pronouncement of the sentences, used the ■expression “consecutively to” and not “consecutively with”, and the appearance of the word “with” instead of “to” in the formal judgment entry thus was on the face of the record of the sentencing proceedings the result of a clerical error. In these circumstances, the court, while recognizing it as unnecessary and without legal effect, saw fit on its own motion to make a nunc pro tunc substitution of the word “to” for the word “with” in the judgment and commitment order, in order to make it conform to the sentence pronouncement. This it clearly had a right to do without notice, under Rule 36, Rules of Criminal Procedure, 18 U.S.C.A., since on its face no substantive change was involved. The trial court allowed appellant to file a notice of appeal without payment of clerk’s fee but denied him leave to proceed further in forma pauperis. To clear the records of the appeal thus pending, it will be permitted to be docketed here without payment of fee but will thereupon be dismissed as being frivolous. Appeal dismissed." }, { "docid": "22461012", "title": "", "text": "was construed to be a continuing one, that is to say, the prisoner had not yet left the courtroom or was returned the same day. Rowley v. Welch, 72 App.D.C. 351, 114 F.2d 499 (1940); DeMaggio v. Coxe, 70 F.2d 840 (2nd Cir. 1934); Nichols v. United States, 106 F. 672 (8th Cir. 1901). This Court has permitted the written commitment to control the oral articulation of a legal sentence only in cases where the oral pronouncement was ambiguous and the written judgment was relied upon to clarify the ambiguity. Boyd v. Archer, 42 F.2d 43 (9th Cir. 1930); Payne v. Madigan, 274 F.2d 702, (9th Cir. 1960) aff. 366 U.S. 761, 81 S. Ct. 1670, 6 L.Ed.2d 853. See also Young v. United States, 274 F.2d 698 (8th Cir. 1960). We have noted that in the present case the defendant was not resentenced. From a procedural point of view, the two most similar precedents are United States v. Sacco, 367 F.2d 368 (2nd Cir. 1966), and Chandler v. United States, 468 F.2d 834 (5th Cir. 1972). In Sacco, the defendant was sentenced to seven years under a charge carrying a maximum penalty of five years and to five years under a charge carrying a maximum penalty of ten years, the sentences to run concurrently. Eight months later, he moved under Rule 35 to correct the illegal excessive sentence on the first count. The Government filed a counter-motion to transpose the sentences. The Court denied defendant’s motion and granted the Government’s motion. The sentencing judge stated that the sentences had been transposed through inadvertence and error. The Second Circuit reversed and said: “We are of the opinion that a judge should not be permitted to increase a sentence clearly and explicitly imposed, after the prisoner has begun to serve it, even though the judge later recollects that he had intended at the time to decree a longer sentence for a conviction on a particular count but did not do so because he had inadvertently confused it with another count. This is not the case of an error in reporting or" }, { "docid": "22911585", "title": "", "text": "on August 14, 1985, Judge Weinfeld included a special assessment of fifty dollars in the oral sentence on the distribution count, but neglected to include a similar assessment in the oral sentence on the conspiracy count. During a colloquy with the court immediately after pronouncement of sentence, defense counsel argued that the special assessment was improper in light of counsel’s “understanding that Mr. Pagan is without any assets at the present time.” Sentencing Tr. at 12. Judge Weinfeld responded that he believed the assessment was mandatory and that the proper procedure was for Pagan to apply for a waiver after imposition, but added that “I will check the statute and before I sign the judgment, if there is discretion in the Court, I will accept your statement and suspend the special assessment.” Id. at 12-13. Defense counsel then argued that, regardless of the mandatory nature of the assessment, its application to an indigent defendant would violate the Constitution. Judge Weinfeld replied: “Well, that question you’ll raise in the Court of Appeals. If it is a mandatory provision, I’m going to impose it. I’m not going to pass upon the constitutionality of it.” Id. at 13 (emphasis added). The written judgment and probation/commitment order signed by Judge Weinfeld that same day out of Pagan’s presence imposed a fifty dollar special assessment on each of the two counts. Pagan argues that the imposition of the second special assessment in the judgment was a “variance” from the orally pronounced sentence. When a “variance” exists, the general rule is that the oral sentence controls. United States v. Moyles, 724 F.2d 29, 30 (2d Cir.1983). However, “[a] commitment order may properly serve the function of resolving ambiguities in orally pronounced sentences.” Id. at 30-31 (citing Payne v. Madigan, 274 F.2d 702 (9th Cir.1960), aff'd by an equally divided Court, 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853. (1961)). Because of concerns voiced by counsel at the sentencing proceedings, the oral sentence in this case left the question of special assessments open until such time as the judge could determine from the statute if the" }, { "docid": "18507473", "title": "", "text": "each instance, on April 28, 1950, Judge Stone made the service of the count three sentence concurrent with a sentence on another count as to which the one on count four was to be served consecutively creates any ambiguity as to whether the sentence on count four as then imposed was to run consecutively with that on count three it should be resolved in favor of the appellant, McNealy v. Johnston, supra. We do> not, however, think there is any ambiguity in the light of the reversal as to counts one and two and their dismissal. For the reasons above stated we conclude that in resentencing the appellant Judge Ryan increased the original sentences imposed under counts three and four when he sentenced the appellant to imprisonment for the same number of years on each count but made the sentences run consecutively instead of concurrently. Consequently, if the general rule is applicable that after the service of a sentence has been commenced the sentence cannot be increased, error has been shown. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113; Crowe v. United States, 6 Cir., 200 F.2d 526. The appellee, however, argues that when the Supreme Court vacated the judgment of this court and remanded the case to the district court for resentencing it was for resentencing de novo. Thus, so it is said, any sentence within the maximum permissible on either count could have been imposed and made to run consecutively. As authority for this position the appellee relies on Kitt v. United States, 4 Cir., 138 F.2d 842; Wechsler v. United States, 2 Cir., 158 F. 579; Williams v. United States, 168 U.S. 382, 18 S.Ct. 92, 42 L.Ed. 509; House v. Mayo, D.C., 81 F.Supp. 663; and Egan v. United States, 52 App.D.C. 384, 287 F. 958. We think the Kitt case is distinguishable. On the first appeal, Kitt v. United States, 4 Cir., 132 F.2d 920, 923, it had been held that the sentences imposed on JKitt and one other defendant “under the first three counts are excessive and illegal” and there was a" }, { "docid": "23686783", "title": "", "text": "to run concurrently. Cf. United States v. Daugherty, 1926, 269 U.S. 360, 46 S.Ct. 156, 70 L.Ed. 309, where the test was stated as follows: “Sentences in criminal cases should reveal with fair certainty the intent of the court and exclude any serious misapprehensions by those who must execute them. The elimination of every possible doubt cannot be demanded. Tested by this standard, the judgment here questioned was sufficient to impose total imprisonment for 15 years made up of three 5-year terms, one under the first count, one under the second, and one under the third, to be served consecutively, and to follow each other in the same sequence as the counts appeared in the indictment. This is the reasonable and natural implication from the whole entry. The words, 'said terms of imprisonment to run consecutively and not concurrently,’ are not consistent with a 5-year sentence.” We hold that the clear meaning of the above quoted language is that the sequence of sentences is to follow the order in which the sentences were announced, and that consequently, the prisoner is entitled to no relief. The facts together with the reasoning of the court in Young v. United States, 8 Cir., 1960, 274 F.2d 698, aff’d by an equally divided Court, 1961, 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853, support our conclusion. Like the present case, Young involved sentences imposed on three separate indictments. The court held that the sequence should follow the order in which the sentences were announced. The only differences betwen Young and the present case are, first, that in Young the sentencing court pronounced sentence in the numerical order of the indictments, and second, the written commitment order made it clear that the order in which the sentences were announced was the sequence intended. We do not deem either of these differences significant. See also Fleish v. Swope, 9 Cir., 1955, 226 F.2d 310, where the court imposed sentences on separate counts of the same indictment in the numerical order of the counts, and Valdez v. United States, 5 Cir., 1957, 249 F.2d 539, where" }, { "docid": "18507469", "title": "", "text": "The time which elapsed subsequently was, we think, reasonably excusable under the circumstances and, moreover, since when resentenced the sentence was made effective as of the date of the original judgment and he was given credit for the entire time he has been imprisoned he has suffered no injustice because of any delay. And his attempt to reargue his conviction on the merits is foreclosed by the previous affirmance of that. The more serious question presented is whether the district judge, having jurisdiction to resentence, fell into error, when, in imposing a sentence of the same number of years of imprisonment on count three and on count four as had originally been imposed on those counts, he made the service of these sentences run consecutively. The appellant’s argument for reversal rests upon two premises (1) that the aggregate number of years was increased when he was resentenced on these counts and (2) that in so doing the court violated the general rule that a sentence may not lawfully be increased after service of it has commenced. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354; Crowe v. United States, 6 Cir., 200 F.2d 526. Both in the oral sentence and the written judgment filed by Judge Stone on April 28,1950, the sentence on each separate count was the same. As a matter of language in the written judgment the sentences on counts one, two and four were to be served consecutively with each other and concurrently with that on count three while in the oral sentences the service of the count three sentence was expressly made concurrent only with the service of the sentences on counts one and two. Of course it would be impossible to serve the count three sentence concurrently with more than one of the other ten year sentences which were to be served consecutively with each other, for when one of them had been served the count three sentence would have been also. So we can perceive no difference in effect between the oral and the written imposition of sentences by Judge" }, { "docid": "22168361", "title": "", "text": "III. Courts should not lightly overrule prior judicial decisions. Once a rule of law becomes established, it provides the basis for orderly, evenhanded, consistent and predictable adjudication. The rule that the oral sentence controls when there is a conflict is an easy rule to apply and avoids the murky area of determining the judge’s intentions. This rule should not be changed by the court except for the most compelling reasons, which are not present in this case. The sentence in a federal criminal case is the punishment imposed orally by a sentencing judge in a defendant’s presence. The written judgment and commitment order is not the sentence. If there is an ambiguity in the sentence, then such extrinsic evidence as the judgment and commitment order, the judge’s intentions, or the defendant’s understanding of what he believes the sentence to be, may be consulted. In the absence of such ambiguity in the sentence, as when there is a conflict between the oral sentence and the judgment and commitment order, the sentence, as orally pronounced, shall not be altered. The order of the district court denying defendant’s motion to correct clerical mistake is reversed. The district court is directed to amend the judgment and commitment order to reflect that Count III is to run consecutively to Count I. REVERSED AND REMANDED. . For example, see United States v. Lewis, 626 F.2d 940, 953 (D.C.Cir.1980); United States v. Pagan, 785 F.2d 378, 380 (2d Cir.1986); United States v. Morse, 344 F.2d 27, 29 n. 1 (4th Cir.1965); Schurmann v. United States, 658 F.2d 389; 391 (5th Cir.1981); Scott v. United States, 434 F.2d 11, 20 (5th Cir.1970); United States v. Glass, 720 F.2d 21, 22 n. 2 (8th Cir.1983); Payne v. Madigan, 274 F.2d 702, 705 (9th Cir.1960), aff'd by an equally divided court, 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853 (1961); United States v. McDonald, 672 F.2d 864, 867 (11th Cir.1982) (per curiam). . Watkins v. Merry, 106 F.2d 360, 361 (10th Cir.1939). See also United States v. Mason, 440 F.2d 1293, 1299-1300 (10th Cir.), cert. denied sub nom. Edwards" }, { "docid": "23686784", "title": "", "text": "that consequently, the prisoner is entitled to no relief. The facts together with the reasoning of the court in Young v. United States, 8 Cir., 1960, 274 F.2d 698, aff’d by an equally divided Court, 1961, 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853, support our conclusion. Like the present case, Young involved sentences imposed on three separate indictments. The court held that the sequence should follow the order in which the sentences were announced. The only differences betwen Young and the present case are, first, that in Young the sentencing court pronounced sentence in the numerical order of the indictments, and second, the written commitment order made it clear that the order in which the sentences were announced was the sequence intended. We do not deem either of these differences significant. See also Fleish v. Swope, 9 Cir., 1955, 226 F.2d 310, where the court imposed sentences on separate counts of the same indictment in the numerical order of the counts, and Valdez v. United States, 5 Cir., 1957, 249 F.2d 539, where sentences were imposed in reverse numerical order of the counts. Both cases held that the sequence followed the order in which the sentences were imposed. Since we hold that the orally pronounced sentence adequately indicated the sentence sequence, it is of no consequence that the judgment and commitments were ambiguous in this regard. Rule 43, F.R.Crim.P., requires that the defendant be present when sentence is announced by the court, and Rule 32(b) requires that the judgment of conviction shall set forth the sentence. It follows that where there is a discrepancy between the oral pronouncement and the written judgment and commitment, the former must control. See Kennedy v. Reid, 1957, 101 U.S.App.D.C. 400, 249 F.2d 492; Payne v. Madigan, 9 Cir., 1960, 274 F.2d 702, aff’d by an equally divided Court, 1961, 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853. See also our recent case of Paccione v. Heritage, 5 Cir., 1963, 323 F.2d 378 cert. denied 377 U.S. 955, 84 S.Ct. 1632, 12 L.Ed.2d 498, for language of a judgment somewhat similar to" }, { "docid": "22911586", "title": "", "text": "mandatory provision, I’m going to impose it. I’m not going to pass upon the constitutionality of it.” Id. at 13 (emphasis added). The written judgment and probation/commitment order signed by Judge Weinfeld that same day out of Pagan’s presence imposed a fifty dollar special assessment on each of the two counts. Pagan argues that the imposition of the second special assessment in the judgment was a “variance” from the orally pronounced sentence. When a “variance” exists, the general rule is that the oral sentence controls. United States v. Moyles, 724 F.2d 29, 30 (2d Cir.1983). However, “[a] commitment order may properly serve the function of resolving ambiguities in orally pronounced sentences.” Id. at 30-31 (citing Payne v. Madigan, 274 F.2d 702 (9th Cir.1960), aff'd by an equally divided Court, 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853. (1961)). Because of concerns voiced by counsel at the sentencing proceedings, the oral sentence in this case left the question of special assessments open until such time as the judge could determine from the statute if the assessment was mandatory. The oral pronouncement regarding special assessments, taken as a whole, was ambiguous. It was not improper for the court to resolve that ambiguity in the judgment by clearly imposing special assessments as to both counts as required by section 3013. Moyles, 724 F.2d at 30. Furthermore, because the imposition of special assessments under section 3013 was mandatory, a sentence lacking such an assessment would have been illegal. It is well established that a trial court has the power to correct an illegal sentence. Bozza v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 648-49, 91 L.Ed. 818 (1947); Fed.R.Crim.P. 35(a); see United States v. DiFrancesco, 449 U.S. 117, 134-36, 101 S.Ct. 426, 435-37, 66 L.Ed.2d 328 (1980). Although the correction should have been made in the defendant’s presence, Bartone v. United States, 375 U.S. 52, 53, 84 S.Ct. 21, 22, 11 L.Ed.2d 11 (1963) (per curiam); Fed.R.Crim.P. 43(a), the trial court’s failure to recall the defendant here was harmless error because the assessment was mandatory and, therefore, the defendant’s presence could" }, { "docid": "22168387", "title": "", "text": "in context, was ambiguous: The word “concurrent” was never used in this sentencing proceeding; in the context of pronouncing three sentences, to say that two of them were to run “consecutively ... with count one” creates ambiguity; there is ambiguity in using the word “with” in connection with the word “consecutively,” because the more standard usage is “consecutively to” or “concurrently with.” But I agree with the majority opinion that the instant pronouncement should not be treated as one that is ambiguous. New criminal defendants were college English majors. Some defendants may understand the words “consecutively” or “concurrently” only because they have encountered them before in their earlier criminal proceedings. We should not act as a congress of grammarians, parsing the sentences to find ambiguity in what would have been reasonably understandable. Some courts, including the Tenth Circuit, have characterized the situation as one of ambiguity rather than conflict when a sentencing court did not state orally whether sentences were concurrent or consecutive, but the written commitment order indicated the sentences were to run consecutively. Thus, in the face of the current legal rule that silence means concurrent sentences, we have relied upon the written judgment and commitment order as evidencing the district court’s intent to impose consecutive sentences. Lundquist v. Taylor, 347 F.2d 369, 370 (10th Cir.1965); see also Schurmann v. United States, 658 F.2d 389, 391 (5th Cir.1981); Aga v. United States, 312 F.2d 637, 641 (8th Cir.1963). The majority here says if there is ambiguity “such extrinsic evidence as the judgment and commitment order, the judge’s intentions, or the defendant’s understanding of what he believes the sentence to be, may be consulted.” Maj. op. at 1453 (footnote omitted). In another place the majority says that if the oral pronouncement is ambiguous the judgment and commitment order may be used to “help clarify ... by providing evidence of what was said from, the bench.” Id. at 1451 (emphasis added). I assume the majority opinion does not mean that literally, and would in that situation, as I suggest, follow the written order, if it is not ambiguous. IV In" }, { "docid": "23050543", "title": "", "text": "the time that he had been sentenced to which was 80 years in the aggregate.... I meant the sentence to be pursuant to 18 United States Code Section 4205(b)(1).” Section 4205(b)(1) states that the court may: (1) designate in the sentence of imprisonment imposed a minimum term at the expiration of which the prisoner shall become eligible for parole, which term may be less than but shall not be more than one-third of the maximum sentence imposed.... 18 U.S.C. § 4205(b)(1) (1988). The court corrected what it considered an illegal sentence and stated, “Whether that will stand up on appeal I don’t know. But clearly that was the intention of this court. I misspoke; and pursuant to Rule 35(a), I’m making that correction now to what otherwise would be an illegal sentence.” We hold that the district court erred in correcting the sentence under Rule 35, and we remand for sentencing. Under Fed.R.Crim.P. 35(a) the district court may correct a sentence if it is illegally imposed. United States v. Stevens, 548 F.2d 1360, 1362 (9th Cir.), cert. denied, 430 U.S. 975, 97 S.Ct. 1666, 52 L.Ed.2d 369 (1977). A sentence is illegal if it is so ambiguous that it fails to reveal its meaning “with fair certainty.” United States v. Alverson, 666 F.2d 341, 348 (9th Cir.1982) (citing United States v. Moss, 614 F.2d 171, 175, 176 n. 4 (8th Cir.1980)). An oral sentence which leaves uncertainty as to the amount of time to be served is ambiguous but not so ambiguous as to be illegal. See Payne v. Madigan, 274 F.2d 702, 704-05 (9th Cir.1960), aff'd, 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853 (1961). Garcia’s oral sentence is ambiguous as to the time to be served before becoming eligible for parole, but it is not illegal. Where the oral pronouncement of a defendant’s sentence is unambiguous, but differs from the written sentence, the oral sentence controls. United States v. Hicks, 997 F.2d 594, 597 (9th Cir.1993). See also United States v. Bergmann, 836 F.2d 1220, 1221 (9th Cir.1988). In contrast, the written sentence will control where there" }, { "docid": "22168362", "title": "", "text": "be altered. The order of the district court denying defendant’s motion to correct clerical mistake is reversed. The district court is directed to amend the judgment and commitment order to reflect that Count III is to run consecutively to Count I. REVERSED AND REMANDED. . For example, see United States v. Lewis, 626 F.2d 940, 953 (D.C.Cir.1980); United States v. Pagan, 785 F.2d 378, 380 (2d Cir.1986); United States v. Morse, 344 F.2d 27, 29 n. 1 (4th Cir.1965); Schurmann v. United States, 658 F.2d 389; 391 (5th Cir.1981); Scott v. United States, 434 F.2d 11, 20 (5th Cir.1970); United States v. Glass, 720 F.2d 21, 22 n. 2 (8th Cir.1983); Payne v. Madigan, 274 F.2d 702, 705 (9th Cir.1960), aff'd by an equally divided court, 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853 (1961); United States v. McDonald, 672 F.2d 864, 867 (11th Cir.1982) (per curiam). . Watkins v. Merry, 106 F.2d 360, 361 (10th Cir.1939). See also United States v. Mason, 440 F.2d 1293, 1299-1300 (10th Cir.), cert. denied sub nom. Edwards v. United States, 404 U.S. 883, 92 S.Ct. 219, 30 L.Ed.2d 165 (1971); Baca v. United States, 383 F.2d 154, 157 (10th Cir.1967), cert. denied, 390 U.S. 929, 88 S.Ct. 868, 19 L.Ed.2d 994 (1968); Byrd v. United States, 345 F.2d 481 (10th Cir.1965). . At the sentencing proceeding, the district judge said: Mr. Paul Villano ... MR. VILLANO: Yes, sir. THE COURT: It is the judgment and sentence of the Court that you are committed to the custody of the Attorney General, or his designated representative, on count one for a period of five years, and you are further fined the sum of $10,000. It is the further judgment and sentence of the Court on count two that you be placed in the custody of the Attorney General, or his authorized representative, for a period of three years and fined a sum of $5,000. The sentence on count two shall run consecutively with the sentence on count one. It is the further judgment and sentence of the Court on count three that you be" }, { "docid": "7529204", "title": "", "text": "States v. Morse, 344 F. 2d 27 (C.A.4, 1965); Powers v. United States, 325 F.2d 666 (C.A.1, 1963); United States v. Neal, 320 F.2d 533 (C.A. 3, 1963); Wilson v. Bell, 137 F.2d 716 (C.A.6, 1943), this is only as it relates to the oral communication to the defendant. The controlling consideration is whether or not the defendant was aware and had notice of the sentence which the court intended to impose. Young v. United States, 274 F.2d 698 (C.A.8, 1960) aff’d 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed. 2d 853 (1961). Also Hughes v. United States, 304 F.2d 91, (C.A.5, 1962) cert, den. 371 U.S. 894, 83 S.Ct. 195, 9 L.Ed.2d 127. The clerk ordinarily makes up or writes up the form of sentence imposed. The actual wording may or may not vary in some respects from the pronounced word. The significance lies only in the communication given to the defendant so that he may know his penalty and be aware of its substance and impact. It is not required that the order of court be written out and that this be read to him word for word at the time of its imposition in order to be effective. It is the oral communication of imposition of sentence which has its impact upon the defendant and which is required to be given to him as he can and does intelligently understand it. Federal Rule of Criminal Procedure 36 provides for the correction of clerical error: “Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.” While the best practice in making any changes under this rule includes the presence of the defendant, the absence of the defendant does not affect the propriety and validity of the change when he is fully aware of court’s intention and no other substantial rights of the prisoner are affected. Kennedy v. Reid, 101 U.S. App.D.C. 400, 249 F.2d 492 (1957); Henley v." }, { "docid": "18507472", "title": "", "text": "served concurrently with the sentence on count four and under his oral sentence was neither expressly made concurrent nor consecutive with the count four sentence. But these sentences were nevertheless concurrent in the oral sentence as a matter of law since when sentences are imposed on two or more counts in an indictment, without specific provision for their running consecutively, each sentence begins at the same time and all run concurrently. Ziebart v. Hunter, 10 Cir., 177 F.2d 847; Levine v. Hudspeth, 10 Cir., 127 F.2d 982, certiorari denied 317 U.S. 628, 63 S.Ct. 39, 87 L.Ed. 564; McNealy v. Johnston, 9 Cir., 100 F.2d 280. As United States v. Tuffanelli, 7 Cir., 138 F.2d 981 shows, the effect of the reversal of that part of the judgment which was based on counts one and two in the indictment and the affirmance of the sentences on counts three and four was to make the sentences which were affirmed the first sentences to be served and the service would be concurrent. If the fact that in each instance, on April 28, 1950, Judge Stone made the service of the count three sentence concurrent with a sentence on another count as to which the one on count four was to be served consecutively creates any ambiguity as to whether the sentence on count four as then imposed was to run consecutively with that on count three it should be resolved in favor of the appellant, McNealy v. Johnston, supra. We do> not, however, think there is any ambiguity in the light of the reversal as to counts one and two and their dismissal. For the reasons above stated we conclude that in resentencing the appellant Judge Ryan increased the original sentences imposed under counts three and four when he sentenced the appellant to imprisonment for the same number of years on each count but made the sentences run consecutively instead of concurrently. Consequently, if the general rule is applicable that after the service of a sentence has been commenced the sentence cannot be increased, error has been shown. United States v. Benz," } ]

[ { "docid": "22170738", "title": "", "text": "state a legal conclusion — even if that conclusion is cast in the form of a factual allegation. Id. Thus, in Iqbal, the Court assigned no weight to the plaintiffs conclusory allegation that former Attorney General Ashcroft and FBI Director Mueller knowingly and willfully subjected him to harsh conditions of confinement “solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.” Id. (quoting plaintiffs complaint). After dispatching the complaint’s conclusory allegations, the Court elaborated on Twombly’s plausibility standard. “A claim has facial plausibility,” the Court explained, “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 129 S.Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’ ” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). In sum, for a complaint to survive a motion to dismiss, the non-conclusory “factual content,” and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief. Id. With that standard in mind, we turn to Plaintiffs’ Amended Complaint. B. Viewpoint Discrimination Plaintiffs allege that the Agents engaged in unconstitutional viewpoint discrimination when they ordered state and local police to move anti-Bush demonstrators away from the public areas outside of the Inn. “ ‘[V]iewpoint discrimination’ occurs when the government prohibits ‘speech by particular speakers,’ thereby suppressing a particular view about a subject.” Giebel v. Sylvester, 244 F.3d 1182, 1188 (9th Cir.2001) (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 59, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) (Brennan, J., dissenting)). The Supreme Court has made clear that government suppression of speech based on the speaker’s motivating ideology, opinion, or perspective is impermissible. See Rosenberger v. Rector &" } ]

[ { "docid": "8353271", "title": "", "text": "accept as true all “well-pleaded factual allegations” in the pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not, however, “required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001); see, e.g., Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 683 (9th Cir.2009). “When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers evidence outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule 56 motion for summary judgment, and it must give the nonmoving party an opportunity to respond.” United States v. Ritchie, 342 F.3d 903, 907 (9th Cir.2003). “A court may, however, consider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into a motion for summary judgment.” Id. at 908. B. Rule 9(b) Rule 9(b) imposes an elevated pleading standard for fraud claims. Rule 9(b) states: In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally. “To comply with Rule 9(b), allegations of fraud must be specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud ....” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir.2007) (internal quotation marks omitted). Allegations of fraud must include the “time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations.” Id. (internal quotation marks omitted). The “[ajverments of fraud must be accompanied by the who, what, when, where, and how of the misconduct charged.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir.2009) (internal quotation marks omitted). A plaintiff alleging fraud “must set forth more than the neutral facts necessary to identify the transaction. The plaintiff must set forth what is false or misleading about a statement, and why it is false.” Vess v. Ciba-Geigy Corp. USA, 317" }, { "docid": "13909470", "title": "", "text": "amount of damages recoverable; and (3) when independent facts show that the amount of damages was claimed merely to obtain federal court jurisdiction.” Id. at 363. The party asserting diversity jurisdiction bears the burden of proof. Id. When a court dismisses a claim for failure to properly allege diversity jurisdiction, leave to amend should be granted unless doing so would be futile. See Fed. R. Civ. P. 15(a)(2); see also Jacobs v. Patent Enforcement Fund, Inc., 230 F.3d 565, 567-68 (2d Cir.2000). II. Motion to Dismiss for Failure to Plead Fraud with Particularity Federal Rule of Civil Procedure 9(b) requires “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b). “Rule 9(b) requires particularized allegations of the circumstances constituting fraud.” In re GlenFed, Inc. Securities Litigation, 42 F.3d 1541, 1547-48 (9th Cir.1994) (en banc). Rule 9(b) requires the pleading to provide an “account of the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir.2007) (internal quotations omitted). “Averments of fraud must be accompanied by the who, what, when where, and how of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.2003). Plaintiffs may not simply plead neutral facts to identify the transaction, but rather, the plaintiffs must also set forth what is false or misleading about a statement, and why it is false. See Glen-Fed, 42 F.3d at 1548. A motion to dismiss a claim grounded in fraud for failure to plead with particularly under Rule 9(b) is the functional equivalent of a motion to dismiss under Fed. R. Civ. P. 12(b)(6). See Vess, 317 F.3d at 1107. Thus, “[a]s with Rule 12(b)(6) dismissals, dismissals for failure to comply with Rule 9(b) should ordinarily be without prejudice. Leave to amend should be granted if it appears at all possible that the plaintiff can correct the defect.” Id. III." }, { "docid": "5622107", "title": "", "text": "sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. See id. “A claim has facial plausibility when the plaintiff pleads 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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal citations and parentheticals omitted). In considering a motion to dismiss, a court must accept all of the plaintiffs allegations as true and construe them in the light most favorable to the plaintiff. See id. at 550, 127 S.Ct. 1955; Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th Cir.2007). A plaintiff must state claims grounded in fraud with particularity. Fed.R.Civ.P. 9(b). “Averments of fraud must be accompanied by the ‘who, what, when, where, and how of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.2003). Rule 9(b) applies to cases brought in federal court irrespective of whether the substantive law is state or federal. Id. at 1102. Therefore, in an action based on state law, while a district court will rely .on the applicable state law to ascertain the elements of fraud that a party must plead, it will also follow Rule 9(b) in requiring that the circumstances of the fraud be pleaded with particularity. Kearns v. Ford" }, { "docid": "16420292", "title": "", "text": "a - claim upon which relief can be granted, the court accepts the plaintiffs allegations as true and draws all reasonable inferences in favor of the plaintiff. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). The court is not required to accept as true “allegations that are merely conclu-sory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056 (9th Cir. 2008). Claims sounding in fraud or mistake are subject to the heightened pleading standard of Federal Rule of Civil'Procedure 9(b), which requires that such claims “state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). This includes CLRA and UCL claims that are grounded in fraud, as well as those aspects of the claims that may be grounded in unfairness or unlawfulness. See Kearns v. Ford Motor Co., 567 F.3d 1120, 1125-27 (9th Cir. 2009) (holding that, in a case arising under the UCL alleging both fraud and unfairness, “if the claim is said to be ‘grounded in fraud’ ... the pleading of that claim as a whole must satisfy the particularity re-duirement of Rule- 9(b)”). To ’satisfy this standard, a plaintiff must identify the “who, what, when, where, and how” of the misconduct charged, as well as an explanation as to why the statement or omission complained of was false or misleading. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003). The allegations “must be specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007). If the court dismisses a complaint, it “should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). In making this determination, the court should" }, { "docid": "17531349", "title": "", "text": "(2007). While “a complaint need not contain detailed factual allegations ... it must plead ‘enough facts to state a claim to relief that is plausible on its face.’ ” Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir.2008) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads 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) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Plausibility requires “more than a sheer possibility that a defendant has acted unlawfully.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Accordingly, a plaintiff must do more than employ “labels,” “conclusions,” or a “formulaic recitation of the elements of a cause of action.” Id. WTien analyzing a complaint for failure to state a claim under Rule 12(b)(6), “[a]ll allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party.” Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir.1996). However, legal conclusions couched as factual allegations are not given a presumption of truthfulness, and “eonclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir.1998). When a plaintiff like Ramirez alleges that a defendant has committed fraud, the Federal Rules deploy a heightened pleading requirement: “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R.Civ.P. 9(b). Under this rule, a plaintiff “must state the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentation.” Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986); see also Vess v. Ciba-Geigy Corp. USA 317 F.3d 1097, 1106 (9th Cir.2003) (“Averments of fraud must be accompanied by the who, what, when, where, and how of the" }, { "docid": "8353272", "title": "", "text": "mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally. “To comply with Rule 9(b), allegations of fraud must be specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud ....” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir.2007) (internal quotation marks omitted). Allegations of fraud must include the “time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations.” Id. (internal quotation marks omitted). The “[ajverments of fraud must be accompanied by the who, what, when, where, and how of the misconduct charged.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir.2009) (internal quotation marks omitted). A plaintiff alleging fraud “must set forth more than the neutral facts necessary to identify the transaction. The plaintiff must set forth what is false or misleading about a statement, and why it is false.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.2003) (emphasis and internal quotation marks omitted). IV. DISCUSSION AND ANALYSIS A. TILA Claim Plaintiff asserts a TILA claim against Sierra Pacific for damages and rescission. Sierra Pacific allegedly violated TILA by: “(a) failing to provide required disclosures prior to consummation of the transaction; (b) failing to make required disclosures clearly and conspicuously in writing; (c) failing to timely deliver to Plaintiff notices required by TILA; (d) placing terms prohibited by TILA into the transaction; and (e) failing to disclose all finance charge details and the annual percentage rate based upon properly calculated and disclosed finance charges and amounts financed.” (Doc. 14 at 11.) Sierra Pacific argues that Plaintiffs TILA claim for damages and rescission are both time-barred, and that the complaint fails to allege facts sufficient to demonstrate a right to rescission. 1. Damages Claim TILA “requires creditors to provide borrowers with clear and accurate disclosures of terms dealing with things like finance charges, annual percentage rates of interest, and the borrower’s rights.” Beach v. Ocwen Fed. Bank, 523 U.S." }, { "docid": "3650275", "title": "", "text": "the light most favorable to the plaintiff, “plausibly give rise to an entitlement to relief.” Id.; Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). “Plausibility,” as it is used in Twombly and Iqbal, does not refer to the likelihood that a pleader will succeed in proving the allegations. Instead, it refers to whether the non-conclusory factual allegations, when assumed to be true, “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). A complaint may fail to show a right to relief either by lacking a cognizable legal theory or by lacking sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1990). B. Dismissal of Claims Governed by Federal Rule of Civil Procedure 9(b) A Rule 12(b)(6) motion to dismiss may also challenge a complaint’s compliance with Federal Rule of Civil Procedure 9(b). See Vess, 317 F.3d at 1107. This rule provides that “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed.R.Civ.P. 9(b). These circumstances include the “time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir.2007) (quoting Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004)). Rule 9(b) requires fraud claims to be specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged, so that they can defend against the charge and not just deny that they have done anything wrong. Id. (citing Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir.2001)). That is, the plaintiff must specifically set forth" }, { "docid": "21525674", "title": "", "text": "response costs” as a result of Spokane’s discharges. ECF NO. 79 at 43, 53-55. III. MOTION TO DISMISS STANDARD A claim may be dismissed pursuant to Rule 12(b)(6) either for lack of a cognizable legal theory or failure to allege sufficient facts to support a cognizable legal theory. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is plausible on its face when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A court must “ ‘accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to .the nonmoving party,’” Taylor, 780 F.3d at 935 (quoting Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d 1028, 1029-30 (9th. Cir. 2009)). However, “[tjhreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but has not ‘show[n]’—‘that the pleader is entitled to relief.’ ” Id. at 679, 129 S.Ct. 1937 (quoting Fed. R. Civ. P. 8(a)(2)). IV. DISCUSSION A. Monsanto has standing under Article III of the Constitution to bring its counterclaims. The Supreme Court has identified three requirements that constitute the “irreducible constitutional minimum of standing”: First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to" }, { "docid": "20209494", "title": "", "text": "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); see also Twombly, 550 U.S. at 545, 127 S.Ct. 1955 (“Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)” (citations omitted)); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.2009) (“[F]or a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief,” citing Iqbal and Twombly). C. The Heightened Pleading Requirements of Rule 9(b) The parties agree that Cholakyan’s UCL and CLRA claims “sound in fraud,” and are therefore subject to the heightened pleading requirement of Rule 9(b) of the Federal Rules of Civil Procedure. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-04 (9th Cir.2003) (“In cases where fraud is not a necessary element of a claim, a plaintiff may choose nonetheless to allege in the complaint that the defendant has engaged in fraudulent conduct. In some cases, the plaintiff may allege a unified course of fraudulent conduct and rely entirely on that course of conduct as the basis of a claim. In that event, the claim is said to be ‘grounded in fraud’ or to ‘sound in fraud,’ and the pleading of that claim as a whole must satisfy the particularity requirement of Rule 9(b)”); In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1404-05 (9th Cir.1996) (“We now clarify that the particularity requirements of Rule 9(b) apply to claims brought under Section 11 [of the 1933 Securities Act] when, as here, they are grounded in fraud”). Rule 9(b) requires that the facts constituting the fraud be pled with specificity. Conclusory allegations are insufficient. Fed. R. Crv. Proc. 9(b); Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 540 (9th Cir.1989) (“A pleading is sufficient under Rule 9(b) if it identifies the" }, { "docid": "5101646", "title": "", "text": "unlawful business practices in violation of the Unfair Competition Law (“UCL”), California Business & Professions Code §§ 17200 et seq. Third, they allege violations of the False Advertising Law (“FAL”), California Business & Professions Code §§ 17500 et seq. The Court examines each cause of action in turn. A. Heightened Pleading Standard Under Rule 9(b) Although these claims arise under state law, Plaintiffs’ allegations must be pled according to the Federal Rules of Civil Procedure. As a threshold matter, the parties do not dispute that claims sounding in fraud are subject to Federal Rule of Civil Procedure 9(b)’s heightened pleading standard. Kearns v. Ford Motor Co., 567 F.3d 1120, 1122 (9th Cir.2009) (applying Rule 9(b) standard to UCL and CLRA claims); Vess v. Ciba-Geigy Corp., USA, 317 F.3d 1097, 1103-04 (9th Cir.2003) (where plaintiff identifies fraudulent course of conduct as basis for claim, pleading must satisfy particularity requirement). To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), allegations of fraud must meet the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). Namely, allegations of fraud “must state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). A plaintiff must allege particular facts explaining the circumstances of the fraud, “including time, place, persons, statements made[,] and an explanation of how or why such statements are false or misleading.” Baggett v. Hewlett-Packard Co., 582 F.Supp.2d 1261, 1265 (C.D.Cal.2007). The circumstances of the alleged fraud must be specific enough “to give defendants notice of the particular misconduct ... so that they can defend against the charge and not just deny that they have done anything wrong.” Vess, 317 F.3d at 1106 (internal quotation marks omitted). Under Rule 9(b), a plaintiff must plead each of the elements of a fraud claim with particularity, i.e., a plaintiff “must set forth more than the neutral facts necessary to identify the transaction.” Cooper v. Pickett, 137 F.3d 616, 625 (9th Cir.1997) (emphasis in original). Fraud claims must be accompanied by the “who, what, when, where, and how” of the fraudulent conduct charged. Vess, 317 F.3d at 1106. A pleading is sufficient under Rule 9(b)" }, { "docid": "21816040", "title": "", "text": "dismiss plaintiffs complaint based on preemption grounds. Discussion “Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires not only ‘fair notice of the nature of the claim, but also grounds on which the claim rests.” Zixiang Li v. Kerry, 710 F.3d 995, 998-99 (9th Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n.3, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “To survive a Rule 12(b)(6) motion to dismiss, a ‘plaintiff must allege enough facts to state a claim to relief that is plausible on its face.’ ” Turner v. City and County of San Francisco, 788 F.3d 1206, 1210 (9th Cir. 2015) (quoting Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008)). “In assessing whether a party has stated a claim upon which relief can be granted, a court must take all allegations 'of material fact as true and construe them in the light most favorable to the nonmoving party; but ‘conclusory allegations of law and unwarranted inferences are insufficient to avoid a Rule 12(b)(6) dismissal.’ ” Id. (quoting Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009)). “ ‘A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). “This standard ‘asks for more than a sheer possibility that a defendant has acted unlawfully,’ but it ‘is not akin to a probability requirement.’ ” Id (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). “In 1976, Congress enacted the Medical Device Amendments [MDA] to the FDCA, which ‘swept back some state obligations and imposed a regime of detailed federal oversight.’ ” Perez v. Nidek Co., Ltd., 711 F.3d 1109, 1117 (9th Cir. 2013) (quoting Riegel, 552 U.S. at 316, 128 S.Ct. 999). The MDA contains an express preemption provision: Except as provided in subsection (b) of this section, no State or political subdivision of a State may establish or continue in effect with respect" }, { "docid": "2651562", "title": "", "text": "the light most favorable to the nonmoving party, although “conclusory allegations of law and unwarranted inferences are insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.2009). While “a complaint need not contain detailed factual allegations ... it must plead ‘enough facts to state a claim to relief that is plausible on its face.’ ” Id. “A claim has facial plausibility when the plaintiff pleads 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than sheer possibility that a defendant acted unlawfully.” Iqbal, 129 S.Ct. at 1949. To the extent Plaintiffs’ claims sound in fraud, the SCAC must meet the heightened pleading standard of Federal Rule of Civil Procedure 9(b). See Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir.2009). Rule 9(b) provides: “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b). To satisfy Rule 9(b), the “complaint must ‘identify the who, what, when, where, and how of the misconduct charged, as well as what is false or misleading about the purportedly fraudulent statement, and why it is false.’ ” Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir.2013) (quoting Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir.2011)). This encompasses the circumstances surrounding reliance. See Kearns, 567 F.3d at 1125 (holding that the complaint did not meet the standard of Rule 9(b) partly because the plaintiff failed to specify when he was exposed to the allegedly fraudulent advertisements, which ones he found material, and on which ones he relied). B. Plaintiffs’ Standing to Assert Their Claims In order to" }, { "docid": "8967164", "title": "", "text": "standing due to economic injury. B. Failure to State a Plausible Claim For Relief As the FAC pleads an injury sufficient to confer standing under Article III, this Court will evaluate the merits of Defendant’s 12(b)(6) motion. 1. Legal Standard Under Rule 12(b)(6), a party may move to dismiss a cause of action which fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). On a motion to dismiss, all well-pleaded allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Wyler-Summit P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir.1998). To survive a Rule 12(b)(6) motion to dismiss, the complaint must state a claim to relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A claim has “facial plausibility” when the pleaded factual allegations “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements” do not suffice. Id. A complaint should not be dismissed without leave to amend unless it is clear that the claims could not be saved by amendment. Swartz v. KPMG LLP, 476 F.3d 756, 760 (9th Cir.2007). Under Rule 9(b), the “circumstances constituting fraud” or any other claim that “sounds in fraud” must be stated “with particularity.” Fed.R.Civ.P. 9(b); Vess v. Ciba-Geigy Corp. USA 317 F.3d 1097, 1103-04 (9th Cir.2003). To comply with Rule 9(b), a plaintiff must plead with particularity the time and place of the fraud, the statements made and by whom, an explanation of why or how such statements were false or misleading, and the role of each defendant in the alleged fraud. KEMA Inc. v. Koperwhats, No. 09-1587, 2010 WL 3464737, at *3 (N.D.Cal. Sept. 1, 2010). In short, the complaint must include the “who, what, when, where, and how.” Cooper v. Pickett, 137 F.3d 616, 627 (1997) (internal quotations omitted). 2. Analysis of Claims The Court must address two issues" }, { "docid": "17402154", "title": "", "text": "in the light most favorable to the nonmoving party.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899-900 (9th Cir.2007). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations and quotations omitted). A motion to dismiss should be granted if the complaint does not proffer enough facts to state a claim for relief that is plausible on its face. See id. at 558-59, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citation omitted). “[Wjhere the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.’ ” Id. at 679,129 S.Ct. 1937. In the event dismissal is warranted, it is generally without prejudice, unless it is clear the complaint cannot be saved by any amendment. See In re Daou Sys., Inc., 411 F.3d 1006, 1013 (9th Cir.2005). Finally, in actions alleging fraud, “the circumstances constituting fraud or mistake shall be stated with particularity.” Fed.R.Civ.P. 9(b). Under Rule 9(b), falsity must be pled with specificity, including an account of the “time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir.2007) (citations omitted). The allegations “must be specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong.” Bly-Magee v. California, 236 F.3d 1014, 1019" }, { "docid": "20209493", "title": "", "text": "The court must accept all factual allegations pleaded in the complaint as true, and construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996); Mier v. Owens, 57 F.3d 747, 750 (9th Cir.1995). The court need not, however, accept as true unreasonable inferences or legal conclusions cast in the form of factual allegations. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 553-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (‘While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do”). Thus, a plaintiffs complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ... A claim has facial plausibility when the plaintiff pleads 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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); see also Twombly, 550 U.S. at 545, 127 S.Ct. 1955 (“Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)” (citations omitted)); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.2009) (“[F]or a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief,” citing Iqbal and Twombly). C. The Heightened Pleading Requirements of Rule 9(b) The parties agree that Cholakyan’s UCL and CLRA claims “sound in fraud,” and are therefore subject to the heightened pleading requirement of Rule 9(b) of the Federal Rules of Civil Procedure. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-04 (9th Cir.2003) (“In cases where" }, { "docid": "1219928", "title": "", "text": "face,’” meaning that the plaintiff must plead sufficient factual allegations to “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). Plaintiffs’ false advertising claims are subject to Rule 9(b) of the Federal Rules of Civil Procedure, which sets a heightened pleading standard for claims based on fraud. “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). The Ninth Circuit has held that in order to meet this standard, a “complaint must specify such facts as the times, dates, places, benefits received, and other details of the alleged fraudulent activity.” Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993); see also McMaster v. United States, 731 F.3d 881, 897 (9th Cir. 2013). “Rule 9(b) demands that the circumstances constituting the alleged fraud ‘be specific enough to give defendants notice of the particular misconduct ... so that they can defend against the charge and not just deny that they have done anything wrong.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (alteration in original) (quoting Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001)) (internal quotation marks omitted). The heightened pleading standard does not apply to state-of-mind allegations. Fed. R. Civ. P. 9(b). Seagate argues that Plaintiffs’ warranty claims are also subject to Rule 9(b) because Plaintiffs allege “a unified course of fraudulent conduct.” Where a plaintiff alleges a unified course of fraudulent conduct, the claims are “said to be ‘grounded in fraud’ or to ‘sound in fraud,’ and the pleading ... as a whole must satisfy the particularity requirement of Rule 9(b).’” Kearns, 567 F.3d at 1125 (quoting Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-04 (9th Cir. 2003)). Here, however, Plaintiffs’ complaint is not based on a unified course of fraudulent conduct. Plaintiffs’ warranty claims are based Seagate’s alleged failure to deliver non-defective drives, rather than Seagate’s alleged use of false or misleading statements in advertising. See SCAC ¶¶ 10, 11. Seagate" }, { "docid": "3995435", "title": "", "text": "of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A complaint’s non-conclusory factual allegations and reasonable inferences drawn from them, “must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. United States Secret Serv., 572 F.3d 962, 970 (9th Cir.2009), citing Iqbal, 129 S.Ct. at 1949. A court is not required, however, to “ ‘assume the truth of legal conclusions merely because they are cast in the form of factual allegations.’ ” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir.2011) (per curiam) (quoting W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981)). A court also need not accept as true allegations contradicted by judicially noticeable facts, Shwarz v. United States, 234 F.3d 428, 435 (9th Cir.2000). Mere “conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.2004); accord Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. B. Federal Rule of Civil Procedure 9(b) When sitting in diversity, a court applies Federal Rule of Civil Procedure 9(b)’s heightened pleading standard to any state law causes of action sounding in fraud or deceit. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir.2003). Rule 9(b) provides that “[i]n alleg ing fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” A complaint must “be ‘specific enough to give defendants notice of the particular misconduct ... so that they can defend against the charge and not just deny that they have done anything wrong.’ ” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir.2009) (citation omitted). The complaint must include facts regarding the “time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations.” Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir.2004) (citation omitted). In addition, “[t]he plaintiff must set forth what is false or misleading about a statement, and why it is false.” In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir.1994) (en" }, { "docid": "20823039", "title": "", "text": "statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8. While Rule 8 does not require “detailed factual allegations,” a plaintiff must still provide “more than labels and conclusions” because “a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). To survive a 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. However, “[tjhread-bare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to meet this standard, id., and a plaintiffs “[f|actual allegations must be enough to raise a right to relief above the speculative level....” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Moreover, a court “is not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Rule 9(b) imposes a heightened pleading standard for fraud claims. “In alleging fraud [ ], a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed.R.Civ.P. 9(b). To satisfy the heightened pleading standard of Rule 9(b), a plaintiff must state with particularity “the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.” In re Mut. Funds Inv. Litig., 566 F.3d 111, 120 (4th Cir.2009) (quoting Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir.1999)), rev’d on other grounds, — U.S. -, 131 S.Ct. 2296, 180 L.Ed.2d 166 (2011). III. Analysis A. Alter-Ego Liability" }, { "docid": "8328114", "title": "", "text": "a 12(b)(6) motion under Twombly, the Court must follow a two-pronged approach. First, the Court must accept all well-pleaded factual allegations as true, but “[t]hread-bare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Nor must the Court “accept as true a legal conclusion couched as a factual allegation.” Id. at 1949-50 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Second, assuming the veracity of well-pleaded factual allegations, the Court must “determine whether they plausibly give rise to an entitlement to relief.” Id. at 1950. This determination is context-specific, requiring the Court to draw on its experience and common sense, but there is no plausibility “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.” Id. Under Rule 9(b), a plaintiff must plead each of the elements of a fraud claim with particularity, i.e., a plaintiff “must set forth more than the neutral facts necessary to identify the transaction.” Cooper v. Pickett, 137 F.3d 616, 625 (9th Cir.1997) (italics in original). In other words, fraud claims must be accompanied by the “who, what, when, where, and how” of the fraudulent conduct charged. Vess v. Ciba-Geigy Corp., USA, 317 F.3d 1097, 1106 (9th Cir.2003). A pleading is sufficient under Rule 9(b) if it identifies the circumstances constituting fraud so that a defendant can prepare an adequate answer from the allegations. Moore v. Kayport Package Express, Inc., 885 F.2d 531, 540 (9th Cir. 1989). While statements of the time, place, and nature of the alleged fraudulent activities are sufficient, mere conclusory allegations of fraud are insufficient. Id. III. Discussion The FTC Act prohibits “unfair or deceptive acts or practices in or affecting commerce.” 15 U.S.C. § 45(a)(1). In resolving the FTC’s motion to dismiss, the central issue is whether the FTC’s claim that the Vakils engaged in “unfair or deceptive acts or practices” in violation of this act are subject to the heightened pleading standard of Rule 9(b). This issue appears to be one of first impression in this Circuit. A. Issue of First" }, { "docid": "8677615", "title": "", "text": "Pickard, 581 F.3d 922, 925 (9th Cir.2009). “Rule 12(c) is ‘functionally identical’ to Rule 12(b)(6) and ... ‘the same standard of review applies to motions brought under either rule.” Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n. 4 (9th Cir.2011). Accordingly, in considering such a motion, a court must take all allega tions of material fact as true and construe them in the light most favorable to the nonmoving party, although “conclusory allegations of law and unwarranted inferences are insufficient to avoid” dismissal. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.2009). While “a complaint need not contain detailed factual allegations ... it must plead ‘enough facts to state a claim to relief that is plausible on its face.’ ” Id.; see also Lewis v. City & County of San Francisco, No. C 11-5273 PJH, 2012 WL 909801, at *1 (N.D.Cal. Mar. 2012) (stating that to survive a Rule 12(c) motion, a plaintiff must allege “ ‘enough facts to state a claim to relief that is plausible on its face.’ ” (citation omitted)). “A claim has facial plausibility when the plaintiff pleads 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); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than sheer possibility that a defendant acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. In the context of ruling on both a Rule 12(b)(6) and Rule 12(c), motion, the Court is generally limited to the contents of the complaint. However, in addition, the Court may consider “documents referenced extensively in the complaint, documents that form the basis of plaintiffs claims, and matters of judicial notice when determining whether the allegations of the complaint state a claim upon which relief can be granted.” Mendelsohn v. Intalco Aluminum Corp., No. C06-0190RSL, 2006 WL 1148559," } ]

[ { "docid": "2971603", "title": "", "text": "Report Recommendation. Sullivan’s failure to object to the magistrate judge’s Report and Recommendation constitutes a waiver of his right to appeal the admission of the identification evidence. Sullivan had ten days within which to file written objections, if any, to the magistrate’s report. 28 U.S.C. § 636(b). This court has repeatedly held that a defendant must file such objections in order to preserve the issue for appeal. United States v. Campbell, 261 F.3d 628, 631-632 (6th Cir.2001); Thomas v. Arn, 728 F.2d 813, 814-15 (6th Cir.1984); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). A failure to do so results in a waiver of that issue. Campbell, 261 F.3d at 631-32; United States v. Real Property Located at 1181* Dry creek Road, Granville, Ohio 1*3023, 174 F.3d 720, 725 (6th Cir. 1999); see also Thomas v. Am, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (upholding 6th Circuit practice against due process challenge). Here, Sullivan failed to file objections to the magistrate judge’s findings with the district court and, as a result, has waived any challenge to the district court’s denial of his motion to suppress the identification evidence. Recognizing that the waiver rule is absolute, this court has excused default “where the district court’s error is so egregious that failure to permit appellate rewould work a miscarriage of justice.” Property, 174 F.3d at 725-26. However, our review of the record and of the magistrate judge’s exhaustive report convinces us that the admission of the identification testimony against Sullivan did not a miscarriage of justice. A district court’s admission of identification testimoonly violates due process when the identification procedure is “so impermissisuggestive as to give rise to a very substantial likelihood of irreparable misidentification.” United States v. Meyer, 359 F.3d 820, 824 (6th Cir.2004) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)). This court has prescribed a two-step analysis for determining the admissibility of identification testimony. First, the defendant must show that the identification procedure was unduly suggestive. If the defendant meets this burden, then the" } ]

[ { "docid": "11864639", "title": "", "text": "Bond’s guilt. The District Court applied the AEDPA standard of review. See 28 U.S.C. § 2254(d)(l)-(2). It held that the state courts did not apply governing law unreasonably in holding harmless any Confrontation Clause violation. The Commonwealth does not contest the existence of error under the Confrontation Clause. It renews its argument, however, that any error was harmless. We thus turn to the same question posed to the District Court. But our analysis differs somewhat in light of Fry v. Pliler, 551 U.S. - — •, 127 S.Ct. 2321, 2328, 168 L.Ed.2d 16 (2007), which the Supreme Court issued after the District Court’s opinion. Fry instructs us to perform our own harmless error analysis under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), rather than review the state court’s harmless error analysis under the AEDPA standard. See Fry, 127 S.Ct. at 2328. The Supreme Court explained in Brecht that an error is harmless if it did not have “substantial and injurious effect or influence in determining the jury’s verdict.” 507 U.S. at 637, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). “Under this standard, habeas petitioners may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in actual prejudice.” Id. (quotation marks omitted). “When a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury’s verdict, that error is not harmless.” O’Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (quotation marks omitted). We conclude here that the error was harmless under Brecht. The prosecutor’s conduct raises serious questions as to his willingness to respect Bond’s rights under the Confrontation Clause. Yet, the Commonwealth presented such extensive evidence of Bond’s guilt that the error could not have had a substantial and injurious effect or influence in determining the jury’s verdict. Kim, who had" }, { "docid": "23589533", "title": "", "text": "520 (Pa.1997) (citing Com. v. Griffin, 644 A.2d 1167, 1170 (1994)), or makes “a strong prima facie showing that a miscarriage of justice may have occurred.” Hull v. Kyler, 190 F.3d 88, 101 n. 4 (3d Cir.1999) (quoting Com. v. Lawson, 519 Pa. 504, 549 A.2d 107, 112 (1988)). Nara’s incompetency claim was not procedurally defaulted, because Pennsylvania courts have frequently applied exceptions to his alleged waivers under former Pa. R.Cpjm. P. 321 and the PCRA. The Pennsylvania appellate courts’ refusal to review his incompetency claim on the merits was not consistent with Pennsylvania law. We therefore proceed to the merits of his claim. C. Nara’s Competency 1. Presumption of Correctness The District Court accorded a presumption of correctness to the second PCRA court’s determination that Nara was incompetent under 28 U.S.C. § 2254(e)(1). Section 2254(e)(1) provides, in relevant part: In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C.A. § 2254(e)(1) (2006); Demosthenes v. Baal, 495 U.S. 731, 735, 110 S.Ct. 2223,109 L.Ed.2d 762 (1990) (per curiam) (cited in Michael v. Horn, 459 F.3d 411, 414 n. 3 (3d Cir.2006)); White v. Horn, 112 F.3d 105, 112 n. 7 (3d Cir.1997). A state trial court’s determination of an individual’s competency is entitled to a presumption of correctness. Smith v. Freeman, 892 F.2d 331, 341 (3d Cir.1989) (citing Maggio v. Fulford, 462 U.S. 111, 117, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983) (per curiam), and Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981)); see also Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). The Commonwealth argues the District Court should not have applied the presumption of correctness to the second PCRA court’s findings because there was no “adjudication on the merits” of Nara’s incompetency claim. We disagree." }, { "docid": "21997373", "title": "", "text": "recognize that “the balancing of the defendant’s confrontation right with the need for proper administration of justice is a task uniquely suited to the trial judge,” Scurr v. Moore, 647 F.2d 854, 858 (8th Cir.1981), and that a trial court has a significant interest in “dignity, order, and decorum” in its courtroom, Allen, 397 U.S. at 343, 90 S.Ct. 1057. Nonetheless, the Allen Court crafted a careful formula for balancing courtroom security, the discretion accorded to trial courts, and the principle that “courts must indulge every reasonable presumption against the loss of constitutional rights,” id., when it made the explicit requirement that a defendant be warned prior to any exclusion from the courtroom. Accordingly, we conclude that the Ohio court of appeals unreasonably applied the explicit holding in Allen, codified in Federal Rule of Criminal Procedure 43(c), when it excluded Gray from the courtroom without giving him prior warning. C. In a § 2254 proceeding, a court must assess whether the constitutional error in the state-court criminal trial “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); Fry v. Pliler, — U.S. -, 127 S.Ct. 2321, 2328, 168 L.Ed.2d 16 (2007). If we are in “grave doubt” as to whether the error had such an effect, “that error is not harmless.” O’Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). The O’Neal Court explained that “[b]y ‘grave doubt’ we mean that, in the judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.” Id. at 435, 115 S.Ct. 992. This inquiry does not assign an affirmative burden of proof on Gray, id. at 436, 115 S.Ct. 992, nor does it require Gray to show that the error was outcome-determinative, but instead “plae[es] the risk of doubt on the State.” Id. at 439, 115 S.Ct. 992. See also Ferensic v. Birkett, 501 F.3d 469, 481 (6th Cir.2007) (citing O’Neal for the proposition that “petitioners do not bear" }, { "docid": "377665", "title": "", "text": "a petitioner must show that the state court’s decision unreasonably extended a rule to a context where it should not have applied or unreasonably refused to extend a rule to a context where it should have applied. Virsnieks, 521 F.3d at 713 (citing Jackson v. Miller, 260 F.3d 769, 774 (7th Cir.2001)); see also Wright v. Van Patten, — U.S. -, 128 S.Ct. 743, 746-47, 169 L.Ed.2d 583 (2008) (emphasizing that a state court’s application of clearly established law is acceptable, even if it is likely incorrect, so long as it is reasonable). We presume state factual findings to be correct, unless the petitioner rebuts the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005); Wiggins v. Smith, 539 U.S. 510, 528, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Barrow v. Uchtman, 398 F.3d 597, 603 (7th Cir.2005). The presumption of correctness also applies to factual findings made by a state court of review based on the trial record. Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Rodriguez v. Peters, 63 F.3d 546, 554 (7th Cir.1995); see Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir.2007). As a general matter, under post-AEDPA habeas law, we defer to a great extent to the decisions of the state courts, and review these decisions for reasonableness only. Badelle v. Correll, 452 F.3d 648, 654 (7th Cir.2006). A. Ineffective Assistance of Counsel Ben-Yisrayl argues that his Sixth Amendment right to counsel was violated by his trial counsel’s negligent failure to call Patrick Fleming to testify. He argues that, in ruling against him, the Indiana Supreme Court unreasonably applied Strickland and unreasonably determined the facts in doing so. As part of his post-conviction petition, Ben-Yisrayl submitted the affidavit of Fleming, who stated that he was in Eli Balovski’s tailor shop on the afternoon of the murders, and that as he was leaving the shop at 4:10 or 4:20 p.m., he noticed a car on the opposite side of the street from the tailor" }, { "docid": "8945825", "title": "", "text": "State court proceeding. 28 U.S.C. § 2254(d) (2001). Under the “contrary to” clause, a court may grant a writ of habeas corpus “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistin guishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the “unreasonable application” clause, a court may grant a writ of habeas corpus “if the state court identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. “[Cjlearly established Federal law, as determined by the Supreme Court of the United States,” refers to “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Id. at 412, 120 S.Ct. 1495. The state court decision need not cite Supreme Court cases, or even evince an awareness of Supreme Court cases, “so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263, 123 S.Ct. 362 (2002) (per curiam). Moreover, the findings of fact made by a state court are presumed correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The presumption of correctness also applies to factual findings made by a state appellate court based on the state trial record. Brumley v. Wingard, 269 F.3d 629, 637 (6th Cir.2001) (citing Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981)). Finally, under long-standing law, claims which have been proeedurally defaulted generally are not subject to review. In particular, In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims" }, { "docid": "1497212", "title": "", "text": "Cir.1998) (“[AEDPA] tells federal courts: Hands off, unless the judgment in place is based on an error grave enough to be called unreasonable.”) (quotation marks omitted). The first line of analysis under AEDPA focuses on the consistency of the state-court decision with existing federal law. A state-court decision is considered “contrary to ... clearly established Federal law” if it is “diametrically different, opposite in character or nature, or mutually opposed.” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (emphasis and quotation marks omitted). Alternatively, to be found an “unreasonable application of ... clearly established Federal law,” the state-court decision must be “objectively unreasonable,” not simply erroneous or incorrect. Id. at 409-11, 120 S.Ct. 1495. If a state-court decision meets either of these two “preconditions” for habeas relief — thereby establishing a constitutional error — the reviewing federal court must still determine whether the error is harmless within the meaning of Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Fry v. Pliler, — U.S. -, 127 S.Ct. 2321, 2327-28, 168 L.Ed.2d 16 (2007) (noting that AEDPA “sets forth a precondition to the grant of habeas relief ..., not an entitlement to it,” and that “in § 2254 proceedings a [federal] court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the ‘substantial and injurious effect’ standard set forth in Brecht ”). Brecht applies “whether or not the state appellate court recognized the error and reviewed it for harmlessness under the ‘harmless beyond a reasonable doubt’ standard set forth in Chapman [v. California], 386 U.S. 18[, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ].” Id. at 2328. The second line of analysis under AED-PA examines the findings of fact made by the state courts. AEDPA requires federal courts to accord a high degree of defer ence to such factual determinations. “A federal court is to apply a presumption of correctness to state court findings of fact for habeas corpus purposes unless clear and convincing evidence is offered to rebut this presumption. The appeals court gives" }, { "docid": "13355824", "title": "", "text": "123 L.Ed.2d 407 (1993). “[C]oercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment.” Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). A confession is not involuntary merely because the actions of the police caused the person to confess. Johnson v. Trigg, 28 F.3d 639, 641 (7th Cir.1994). And a suspect’s “deficient mental condition,” standing alone, will not sustain a finding of involuntariness. Connelly, 479 U.S. at 164-65, 107 S.Ct. 515. Whether a statement was voluntary is a question of law. Miller, 474 U.S. at 115-16, 106 S.Ct. 445. “Though the voluntariness of a confession is an issue of law, the factors underlying that determination are issues of fact to which § 2254(e)(l)’s presumption of correctness applies.” United States ex rel. Weems v. Williams, 2014 WL 5423268, 3, 2014 U.S. Dist. LEXIS 151281, 9 (N.D.Ill. Oct. 21, 2014) (citing Miller, 474 U.S. at 110-17, 106 S.Ct. 445); see also Everett v. Barnett, 162 F.3d 498, 501 (7th Cir.1998). “[Determinations of factual issues made by the state court are presumed correct in federal habeas corpus proceedings, unless the petitioner rebuts that presumption by clear and convincing evidence.” Ward v. Sternes, 334 F.3d 696, 703 (7th Cir.2003) (citing 28 U.S.C. § 2254(e)(1)). “The presumption of correctness also applies to factual findings made by a state court of review based on the trial record.” Morgan v. Hardy, 662 F.3d 790, 797-98 (7th Cir. 2011) (citing Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Rodriguez v. Peters, 63 F.3d 546, 554 (7th Cir.1995)). Thus, a decision involves an unreasonable determination of facts under 2254(d)(2) “if it rests upon fact-finding that ignores the clear and convincing weight of the evidence.” Goudy, 604 F.3d at 399-400 (citing Ward, 334 F.3d at 704). As recounted by the court of appeals, the state trial court found the following facts regarding Dassey’s March 1 confession: Dassey had a ‘low average to borderline’ IQ but was in mostly regular-track high" }, { "docid": "8945826", "title": "", "text": "cite Supreme Court cases, or even evince an awareness of Supreme Court cases, “so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263, 123 S.Ct. 362 (2002) (per curiam). Moreover, the findings of fact made by a state court are presumed correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The presumption of correctness also applies to factual findings made by a state appellate court based on the state trial record. Brumley v. Wingard, 269 F.3d 629, 637 (6th Cir.2001) (citing Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981)). Finally, under long-standing law, claims which have been proeedurally defaulted generally are not subject to review. In particular, In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). B. Applicability of AEDPA Where Conviction Predated AEDPA In this case, Williams’s petition was filed after the effective date of AEDPA, but he was convicted before that date. Williams contends that the application of AEDPA is therefore “impermissibly retroactive” pursuant to Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Without elaboration, he recites that the application of AEDPA to his petition “attaches new legal consequences to pre-enactment conduct” by “affecting [his] substantive rights,” by “changing the legal consequences of pre-enactment conduct,” by “giving a quality or effect to acts which they lacked or failed to contemplate prior [to] their performance,” and by “changing the relief that is available by restricting [his] right to such" }, { "docid": "23589534", "title": "", "text": "State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C.A. § 2254(e)(1) (2006); Demosthenes v. Baal, 495 U.S. 731, 735, 110 S.Ct. 2223,109 L.Ed.2d 762 (1990) (per curiam) (cited in Michael v. Horn, 459 F.3d 411, 414 n. 3 (3d Cir.2006)); White v. Horn, 112 F.3d 105, 112 n. 7 (3d Cir.1997). A state trial court’s determination of an individual’s competency is entitled to a presumption of correctness. Smith v. Freeman, 892 F.2d 331, 341 (3d Cir.1989) (citing Maggio v. Fulford, 462 U.S. 111, 117, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983) (per curiam), and Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981)); see also Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). The Commonwealth argues the District Court should not have applied the presumption of correctness to the second PCRA court’s findings because there was no “adjudication on the merits” of Nara’s incompetency claim. We disagree. First, the § 2254(e)(1) presumption of correctness applies regardless of whether there has been an “adjudication on the merits” for purposes of § 2254(d). Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001). Second, during the second PCRA proceeding, Judge Franks plainly did reach the merits of Nara’s incompetency claim: he reviewed the lengthy plea colloquy transcript, held two days of evidentiary hearings on the claim, observed expert witness testimony and cross-examination, identified and applied the correct legal principle, and specifically concluded Nara was incompetent when he pleaded guilty. Compare Al-brecht v. Horn, 471 F.3d 435, 446 (3d Cir.2006) (stating that identification and purported application of the correct legal principle constitutes an “adjudication on the merits” for purposes of AEDPA). Finally, there is a “familiar and compelling” justification for according presumptive weight to Judge Franks’ determination. Miller v. Fenton, 474 U.S. 104, 114, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). It is a well-established principle of federal law that state trial judges deserve substantial deference. Face to face with the living witnesses, the original trier" }, { "docid": "7376465", "title": "", "text": "that principle to the facts of the prisoner’s case.’” Id. If constitutional error is committed, we look to whether “the prejudicial impact of constitutional error in [the] state-court criminal trial” rises to the “substantial and injurious effect standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)”, and O’Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). Fry v. Piller, 551 U.S. 112, 120, 121 n. 3,127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). The standard applies “whether or not the state appellate court recognized the error and reviewed it for harmlessness under the ‘harmless beyond a reasonable doubt’ standard set forth in Chapman.” Id. at 121-122, 127 S.Ct. 2321. It is important to note “an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.” Brecht, 507 U.S. at 634, 113 S.Ct. 1710. Under the Brecht/McAninch test a habeas petitioner obtains plenary review to determine whether a trial error “resulted in actual prejudice.” Id. at 637, 113 S.Ct. 1710 (quotations omitted). Under O’Neal, a “substantial and injurious effect” exists when the court finds itself in “grave doubt” about the effect of the error on the jury’s verdict. 513 U.S. at 435, 115 S.Ct. 992. “[W]hen a court is ‘in virtual equipoise as to the harmlessness of the error’ under the Brecht standard, the court should ‘treat the error ... as if it affected the verdict....’” Fry, 551 U.S. at 121 n. 3, 127 S.Ct. 2321 (quoting O’Neal, 513 U.S. at 435,115 S.Ct. 992). “The § 2254(d) standard does not apply to issues not decided on the merits by the state court.” Bland, 459 F.3d at 1010. For those claims, “we review the district court’s legal conclusions de novo and its factual findings for clear error.... However, if the district court based its factual findings entirely on the state court record, we review that record independently.” Id. We “may not consider issues raised in a habeas petition that have been defaulted in state court on an independent and adequate procedural ground" }, { "docid": "19090431", "title": "", "text": "that the defendant had chosen to remain silent during a police interrogation). Because the matter of harmless error/prejudice permits clearer resolution of this case, we presume without deciding that the prosecutor’s specific remarks regarding guilt went beyond the scope invited by the defense strategy. 2. Harmless Error Under Brecht Improper remarks by a prosecutor about a defendant’s right to remain silent do not constitute a structural error requiring automatic reversal. Brecht v. Abrahamson, 507 U.S. 619, 629, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (charac terizing a violation of the right to silence as a trial error, rather than a structural one). The Michigan Court of Appeals concluded that Hall was not prejudiced by the improper actions of the prosecutor “in light of the overwhelming evidence that was properly admitted from which the jury could find [Hall] guilty beyond a reasonable doubt.” Hall, slip op. at 5 (citing People v. Graves, 458 Mich. 476, 581 N.W.2d 229, 232 (1998)). This is the familiar harmless-error standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (Graves cites People v. Anderson, 446 Mich. 392, 521 N.W.2d 538, 545 (1994), which explicitly relies upon Chapman for the harmless-error test). This was a legal determination of the state court, not a factual one as suggested by the Warden, and thus it does not enjoy AEDPA’s strong presumption in favor of a state court’s finding of historical fact. 28 U.S.C. § 2254(e)(1); cf. Brecht, 507 U.S. at 642, 113 S.Ct. 1710. In the normal course, the next step would be to consider whether, pursuant to Brecht, the prosecutor’s actions “had a substantial and injurious effect or influence” on the jury’s verdict. Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 2328, 168 L.Ed.2d 16 (2007) (holding that the Brecht harmless-error standard, rather than the Chapman formulation, is applicable on federal habeas review). This would entail “a de novo examination of the trial record.” Brecht, 507 U.S. at 642, 113 S.Ct. 1710. However, as explained below, Hall has procedurally defaulted his Fifth Amendment claim. In order to excuse the default," }, { "docid": "6908099", "title": "", "text": "147 F.Supp.2d at 709-10. From the order in which the district court granted a writ of habeas corpus, Respondent Pamela Withrow (the warden of the institution where Mr. Hardaway is confined) perfected a timely appeal. Mr. Hardaway has taken a cross-appeal from the rejection of the remainder of his petition. II A The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, a statute that controls this post 1996 habeas case, requires federal habeas courts to presume the correctness of state court factual findings absent clear and convincing evidence of incorrectness: “In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). This statutory presumption of correctness extends to factual findings made by state appellate courts on the basis of their review of trial court records. Brumley v. Wingard, 269 F.3d 629, 637 (6th Cir.2001) (citing Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981)). In the matter now before us the Michigan Court of Appeals found as a fact, on the basis of the full state trial court record, that the hard copy of the manslaughter instruction furnished to the jury replicated the voluntary manslaughter instruction which the judge had read aloud to the jury as part of the original charge. The document sent to the jury room, according to the state appellate court, was not an involuntary manslaughter instruction' — it was not the type of instruction, in other words, that the trial judge had explicitly told counsel he was not going to deliver. The only “evidence” offered to rebut the statutory presumption as to the correctness of the state court’s finding consists of a nonstatutory presumption as to the correctness of every word in the transcript. On the record before us, we have no" }, { "docid": "8654314", "title": "", "text": "v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), the district court rejected Petitioner’s claim that his statement was involuntary. Petitioner argues that the district court erred in giving deference to the state court’s findings of fact. The version of 28 U.S.C. § 2254(d) in effect at the time Petitioner’s case was decided by the district court required the federal courts in habeas corpus proceedings to afford a presumption of correctness to state court determinations of factual issues. The habeas corpus petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. See Sumner v. Mata, 449 U.S. 539, 551, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981). The state court’s determination, based upon Officer Magnum’s testimony and that court’s assessment of the relative credibility of Officer Magnum and Petitioner, is entitled to the presumption of correctness. Petitioner has not identified clear and convincing evidence that would suffice to rebut the presumption that the state court’s determination was correct. Accordingly, Petitioner’s claim based upon the alleged denial of his right to counsel was properly denied. III. The district court granted the petition on the basis of Petitioner’s second claim, the claim that prosecutorial misconduct had deprived him of a fair trial. On habeas review, the standard to be applied to claims of prosecutorial misconduct is whether the conduct was “so egregious so as to render the entire trial fundamentally unfair.” Cook v. Bordenkircher, 602 F.2d 117, 119 (6th Cir.), cert. denied, 444 U.S. 936, 100 S.Ct. 286, 62 L.Ed.2d 196 (1979). This court must decide whether the prosecutor’s statement likely had a bearing on the outcome of the trial in light of the strength of the competent proof of guilt. Angel v. Overberg, 682 F.2d 605, 608 (6th Cir.1982). In deciding whether prosecutorial misconduct mandates that habeas relief be granted, the Court must apply the harmless error standard. Eberhardt v. Bordenkircher, 605 F.2d 275 (6th Cir.1979). The Court must examine “the fairness of the trial, not the culpability of the prosecutor.” Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1355 (6th Cir.1993)(quoting" }, { "docid": "7981404", "title": "", "text": "district court’s conclusion that Villagarcia has shown that the state court’s decision involved an unreasonable application of clearly established federal law and satisfied the AEDPA standard. Ill A Having found that Villagarcia’s sentence violates Blakely and Apprendi, we must next consider whether the constitutional error was harmless. Habeas relief is only appropriate if the constitutional error harmed the petitioner. See Jensen v. Romanowski, 590 F.3d 373, 378 (6th Cir.2009). “Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error,” and accordingly, such error is subject to harmless error analysis. Washington v. Recuenco, 548 U.S. 212, 221, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006). There is no case directly on point in our circuit or from the Supreme Court applying the harmless error standard to collateral review of a sentencing error. The Supreme Court has explained that in cases involving review of a state-court criminal judgment under 28 U.S.C. § 2254, “an error is harmless unless it ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Fry v. Pliler, 551 U.S. 112, 116, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) (quoting Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). Fry adopted Brecht’s, more “state-friendly standard” for cases involving collateral review of state-court decisions. Hereford v. Warren, 536 F.3d 523, 532-33 (6th Cir. 2008). Under Fry, an error is considered not harmless when “the matter is so evenly balanced that the habeas court has grave doubt as to the harmlessness of the error.” Id. at 533; Patterson v. Haskins, 316 F.3d 596, 609 (6th Cir.2003). B In Foster, the Ohio Supreme court followed the approach taken in Booker and severed the “Blakely-oflending portions” of Ohio’s felony-sentencing statutes, i.e., those provisions that “either create presumptive minimum or concurrent terms or require judicial fact-finding to overcome the presumption.” Foster, 845 N.E.2d at 496-97. This remedy left Ohio sentencing judges with full authority to sentence within the statutory range without making findings justifying sentences in excess of the minimum. But rather than simply" }, { "docid": "17151846", "title": "", "text": "that the respondent did not object to the magistrate judge’s report and recommendation, and did not raise in the district court the issue of whether petitioner was entitled to an evidentiary hearing; consequently, petitioner maintains that respondent is precluded from objecting to the hearing now. In support of this assertion, the petitioner cites Thomas v. Arn, 474 U.S. 140, 144--48, 106 S.Ct. 466, 469-72, 88 L.Ed.2d 435 (1985) (upholding the rule of United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981), that a party, by not objecting in the district court to the magistrate judge’s report and recommendation, waives a right to appeal to this court); petitioner, however, provides no case law that applies the Walters rule in the circumstances peculiar to this case. We conclude that the district court erred in ordering an evidentiary hearing on petitioner’s Batson claim and in granting the petition for the writ. We further hold that the state is not precluded from raising on appeal its objection to the district court’s having held that evidentiary hearing. We begin with the application of 28 U.S.C. § 2254(d), which establishes a presumption of correctness for factual determinations made by the state courts whose judgments are challenged by the federal habeas petitioner. The Supreme Court, in Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), held that § 2254(d) mandated that the presumption of correctness be applied by the habeas court to a finding of the state appellate court that “ ‘the facts of the present case’ did not adequately support respondent’s claim.” Id. at 546, 101 S.Ct. at 768. The Court went on to lay down the rule that “a habeas court should include in its opinion granting the writ the reasoning which led it to conclude that any of the first seven factors were present, or the reasoning which led it to conclude that the state finding was ‘not fairly supported by the record.’” Id. at 551, 101 S.Ct. at 771. The reason for this requirement, the Court explained, is that “[n]o court reviewing the grant of an application for" }, { "docid": "2706873", "title": "", "text": "a habeas case, we review a district court’s legal conclusions de novo. Miller v. Webb, 385 F.3d 666, 671 (6th Cir.2004). As for a district court’s findings of fact, we usually review these findings for clear error, but when that court’s “decision in a habeas case is based on a transcript from the petitioner’s state court trial, and the district court thus makes no credibility determination or other apparent findings of fact, the district court’s factual findings are reviewed de novo.” Id. (internal quotation marks omitted). With the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), Congress has provided courts with the following standards governing a petition for habeas corpus relief: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254. A state court decision involves “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding” only if it is shown that the state court’s presumptively correct factual findings are rebutted by “clear and convincing evidence” and do not have support in the record. Id. § 2254(e)(1). The presumption of correctness also applies to factual findings made by a state appellate court based on the trial record. Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). B. Matthews’s Claim Involving Paxton In general, a federal court may not consider an issue of federal law arising from a judgment of a “state court if that judgment rests on a state-law ground that is both ‘independent’ of the merits of" }, { "docid": "17568916", "title": "", "text": "the involuntariness question “does not appear to provide an alternate basis for federal habe-as relief under § 2254(d).” District Judge Morrow concurred and issued a thorough opinion adopting the magistrate judge’s findings. The district court, however, supplemented the habeas remedy to allow Respondent to initiate proceedings to modify the convictions to convictions for second-degree murder, in lieu of release or retrial. While the district court agreed that the first-degree murder convictions and special circumstance findings did not result from harmless error, it found that the remaining evidence, after exclusion of Petitioner’s custodial and testimonial confessions, was sufficient to establish convictions for second-degree murder. STANDARD OF REVIEW We review de novo a district court’s decision to grant or deny habeas relief. Benn v. Lambert, 283 F.3d 1040, 1051 (9th Cir.2002). Since Petitioner filed his habeas petition in 2004, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) applies. See Woodford v. Garceau, 538 U.S. 202, 207, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). We may grant habeas relief only if the state court adjudication was contrary to or an unreasonable application of clearly established federal law, as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1), (2). We must review the last reasoned state court decision. Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Sarausad v. Porter, 479 F.3d 671, 677 (9th Cir.2007), vacated in part on denial of reh’g en banc, 503 F.3d 822 (9th cir.2007) and rev’d and remanded on other grounds sub nom. Waddington v. Sarausad, 555 U.S. 179, 129 S.Ct. 823, 172 L.Ed.2d 532 (2009). We presume the state court’s factual findings to be correct — “a presumption the petitioner has the burden of rebutting by clear and convincing evidence.” Crittenden v. Ayers, 624 F.3d 943, 950 (9th Cir.2010). Even in the presence of error, the Court can only grant federal habeas relief if “the error had a ‘substantial or injurious effect’ on the verdict.” Parle v. Runnels, 387 F.3d 1030, 1034 (9th Cir.2004) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d" }, { "docid": "7817864", "title": "", "text": "ALAN E. NORRIS, J., delivered the opinion of the court, in which MERRITT, J., joined. GILMAN, J. (pp. 995-96), delivered a separate concurring opinion. OPINION ALAN E. NORRIS, Circuit Judge. Ohio prisoner Edward Gilliam appeals from the denial of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. In 1991, petitioner was convicted following a bench trial for his part in the armed robbery of a drive-through store located in Elyria, Ohio. On appeal he contends that the trial court violated his Sixth Amendment right to confront the witnesses against him by admitting the statement of a non-testifying co-defendant. Assuming that we find a Confrontation Clause violation and engage in harmless error analysis, he then asks us to apply the standard articulated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (error must be harmless beyond a reasonable doubt) rather than the standard more recently set out in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (error must have substantial and injurious influence in determining the verdict). I. As a preliminary matter, petitioner initiated this action prior to the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (codified at 28 U.S.C. § 2254). Consequently, the statute governing habeas petitions that was in effect prior to the passage of the AEDPA applies to this case. Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under that version of the statute, findings of fact made by a state trial or appellate court are entitled to a “presumption of correctness.” 28 U.S.C. § 2254(d) (subsequently amended); see Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). The Ohio Supreme Court elected to hear this case on direct appeal and summarized the facts as follows: On August 26, 1991, defendant-appellant, Edward Gilliam, made a statement to the police. Detective Mike Medders of the Elyria Police Department testified that Gilliam admitted that on August 21, he rode to Rite" }, { "docid": "12077228", "title": "", "text": "Bartee, 522 F.3d 100, 105 (1st Cir.2008) (quoting Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). A matter is “adjudicated on the merits,” giving rise to deference under § 2254(d) of AEDPA, “if there is a ‘decision finally resolving the parties’ claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground.’ ” Teti v. Bender, 507 F.3d 50, 56-57 (1st Cir.2007) (quoting Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir.2001)). However, where petitioner raises a federal claim during state proceedings that is not decided by the state court, this court reviews that claim de novo. Horton v. Allen, 370 F.3d 75, 80 (1st Cir.2004). After all, “we can hardly defer to the state court on an issue that the state court did not address.” Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir.2001). “AEDPA [also] sets out a separate and exacting standard applicable to review of a state court’s factual findings.” Pike v. Guarino, 492 F.3d 61, 68 (1st Cir.2007). The state court’s factual finding are “presumed to be correct” unless the petitioner rebuts this “presumption of correctness” with “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). 2. Procedural Default The “independent and adequate state ground doctrine” is also relevant to the claims and defenses before us. This doctrine “applies to bar federal habeas when a state court declined to address a prisoner’s federal claims because the prisoner has failed to meet a state procedure requirement.” Coleman v. Thompson, 501 U.S. 722, 730-31, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Thus, where a claim was procedurally defaulted by the petitioner in state court, we are barred from reaching the merits of the claim unless the petitioner meets the federal habeas standard for excusing the procedural waiver. See id. at 750, 111 S.Ct. 2546 (“In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless [the default is" }, { "docid": "19816229", "title": "", "text": "there was insufficient evidence in the record to show that Jackson dealt drugs. Id. at 484-86 (Hannah, J., dissenting). II. We review the district court’s conclusions of law de novo and its factual findings for clear error. Palmer v. Clarke, 408 F.3d 423, 428 (8th Cir.2005). Under the Antiterrorism and Effective Death Penalty Act, a writ of habeas corpus may be granted only if the relevant state court decision was either “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. § 2254(d)(2). The standard for reviewing state trial errors under § 2254 is significantly narrower than that which we apply on direct review. See Fry v. Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). On direct review, constitutional error requires reversal unless the reviewing court concludes that the error was harmless beyond a reasonable doubt. See id. at 114, 127 S.Ct. 2321 (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). In a habeas proceeding, however, federal courts may not grant relief unless the state trial error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Id. at 116, 127 S.Ct. 2321 (quoting Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). Our review is therefore more circumscribed than the harmless error analysis undertaken by the Arkansas Supreme Court. The sole question before us is whether the state expert’s slinger and banger testimony had a substantial and injurious effect on the jury’s verdict. We conclude that it did not. The slinger and banger reference was cumulative of other evidence suggesting that Jackson was violent and involved in illegal drug trade. Jackson was repeatedly identified as the leader of a gang in which violence and drug dealing were commonplace. King and Pennington both claimed that Jackson ordered attacks on the Monroe Street Hustlers, and Bush" } ]

[ { "docid": "13773049", "title": "", "text": "384 F.3d at 1114-15 (prosecutor contemporaneously admits on radio program that follow-up search warrant was part of “a stand-alone investigation”). We conclude that the practice of detaining a material witness in order to investigate him, on the facts alleged by al-Kidd, fulfills an investigative function. B. Qualified Immunity The Attorney General may still be entitled to qualified immunity for acts taken in furtherance of an investigatory or national security function. Before addressing each of al-Kidd’s claims in turn, we address the general requirements of qualified immunity applicable to all his claims. 1. Qualified Immunity Generally Determining whether officials are owed qualified immunity involves two inquiries: (1) whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the officer’s conduct violated a constitutional right; and (2) if so, whether the right was clearly established in light of the specific context of the case. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). “For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (internal quotation marks omitted). It is within our “sound discretion” to address these two prongs in any sequence we see fit. Pearson v. Callahan,— U.S. -, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). Here, we apply the two-step Saucier analysis in the traditional sequence, as this sequence “promotes the development of constitutional precedent,” which is especially valuable in addressing constitutional questions such as the one at hand, “that do not frequently arise in cases in which a qualified immunity defense is unavailable.” Id. at 818. 2. Qualified Immunity for Supervisors Because qualified immunity is “an immunity from suit rather than a mere defense to liability,” Mitchell, 472 U.S. at 526, 105 S.Ct. 2806, courts have also evaluated the sufficiency of the allegations of the defendant’s personal involvement in the deprivation of the right at the second stage of the qualified immunity analysis. Neither a" } ]

[ { "docid": "21789320", "title": "", "text": "officials to use the material-witness statute to detain individuals with suspected ties to terrorist organizations. It is alleged that federal officials had no intention of calling most of these individuals as witnesses, and that they were detained, at Ashcroft’s direction, because federal officials suspected them of supporting terrorism but lacked sufficient evidence to charge them with a crime. It is alleged that this pretextual detention policy led to the material-witness arrest of al-Kidd, a native-born United States citizen. FBI agents apprehended him in March 2003 as he checked in for a flight to Saudi Arabia. Two days earlier, federal officials had informed a Magistrate Judge that, if al-Kidd boarded his flight, they believed information “crucial” to the prosecution of Sami Omar al-Hussayen would be lost. App. 64. Al-Kidd remained in federal custody for 16 days and on supervised release until al-Hussayen’s trial concluded 14 months later. Prosecutors never called him as a witness. In March 2005, al-Kidd filed this Bivens action, see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), to challenge the constitutionality of Ashcroft’s alleged policy; he also asserted several other claims not relevant here against Ashcroft and others. Ashcroft filed a motion to dismiss based on absolute and qualified immunity, which the District Court denied. A divided panel of the United States Court of Appeals for the Ninth Circuit affirmed, holding that the Fourth Amendment prohibits pretextual arrests absent probable cause of criminal wrongdoing, and that Ashcroft could not claim qualified or absolute immunity. See 580 F. 3d 949 (2009). Judge Bea dissented, id., at 981, and eight judges dissented from the denial of rehearing en banc, see 598 F. 3d 1129, 1137, 1142 (2010). We granted certiorari, 562 U. S. 980 (2010). II Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was “clearly established” at the time of the challenged conduct. Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). We recently reaffirmed that lower courts have discretion to" }, { "docid": "4909201", "title": "", "text": "statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The doctrine “gives government officials breathing room to make reasonable but mistaken judgments” and “protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). To show that a government official is not protected by qualified immunity, a plaintiff must establish (1) that the official’s conduct violated the Constitution, and (2) that the constitutional right involved was sufficiently established such that a reasonable person would have known that his conduct violated the Constitution. Pearson, 555 U.S. at 231, 129 S.Ct. 808 (citing Harlow, 457 U.S. at 818, 102 S.Ct. 2727). The officers’ qualified-immunity argument hinges on the first prong of the analysis: whether they violated Plaintiffs’ constitutional rights. See Dist. Mot. at 17-22. They do not argue that the right to be free from warrantless entries of the home was not clearly established or that the contours of the exigent-circumstances exception were not sufficiently developed. See id. The Court, however, has just found that Defendants’ conduct here did violate the Constitution; thus qualified immunity offers no shield. Because reasonable officers could not find that an after-school fistfight between two teenage girls (and one’s mother) created sufficiently exigent circumstances under Dorman to justify a subsequent warrantless entry into the suspected assailants’ apartment, the Court will grant Plaintiffs’ Motion as to Count 1(a) and deny Defendants’. The Court notes, however, that the scope of damages available with respect to this claim may be quite limited. As the Eighth Circuit concluded in Miller v. Albright, 657 F.3d 733 (8th Cir.2011), a plaintiff must introduce evidence of actual damages resulting from the unlawful entry. Id. at 738. “[Evidence of actual damages resulting from [the plaintiffs] excessive force claim” ‘are not" }, { "docid": "6976218", "title": "", "text": "suit.” Lewis v. Tripp, 604 F.3d 1221, 1230 (10th Cir.2010). Qualified immunity shields government officials from liability where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. at 231, 129 S.Ct. 808(quoting Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. 2727). Qualified immunity also shields officers who have “reasonable, but mistaken beliefs” and operates to protect officers from the sometimes “hazy border[s]” of the law. Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). When a defendant asserts qualified immunity, the plaintiff must demonstrate on the facts alleged: (i) that the defendant’s actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.2009). 1. Procedural Approach to Qualifted Immunity. The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.” 555 U.S. at 236, 129 S.Ct. 808. The Supreme Court also noted that, while no longer mandatory, the protocol outlined in Saucier v. Katz will often be beneficial. See Pearson v. Callahan, 555 U.S. at 241, 129 S.Ct. 808. In rejecting a mandatory approach, the Supreme Court recognized that “[t]here are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right,” and that such an approach burdens district court and courts ■ of appeals with “what may seem to be an essentially academic exercise.” 555 U.S. at 237, 129 S.Ct. 808. The Supreme Court also recognized that a mandatory approach “departs from the general rule of constitutional avoidance and runs counter to the older, wiser judicial counsel not" }, { "docid": "11724937", "title": "", "text": "declaratory and injunctive relief were moot in light of the new hearing he had been accorded, and that the defendants were protected against Taylor’s damages claims by absolute immunity or, in the alternative, qualified immunity. Agreeing with all of the defendants’ arguments, the district court granted the motion the dismiss. Taylor v. Reilly, 2010 WL 891276 (D.D.C. Mar. 9, 2010). In upholding the defense of qualified immunity, the court found: “[I]t was not clearly established in 2005 — nor is it today — that the Commission’s retroactive application of its guidelines violated the ex post facto clause” because “such a determination depends on the facts of the particular case.” Id. at *2 n. 2. Thereafter, Taylor appealed, and we appointed amicus curiae to present arguments on his behalf. Taylor does not contest the district court’s finding that his claims for declaratory and injunctive relief are moot. He does, however, maintain his quest for damages, arguing that neither absolute nor qualified immunity protects the defendants. Because we conclude that the defendants are entitled to qualified immunity, we do not address the issue of absolute immunity. II We review a dismissal for failure to state a claim under Rule 12(b)(6) de novo. Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1108 (D.C.Cir.2008). In so doing, we “ ‘accept as true all of the factual allegations contained in the complaint.’ ” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)). The Supreme Court has held that “[qjualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The courts “have discretion to decide which of the two prongs of qualified-immunity analysis to tackle first.” Id. (citing Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808," }, { "docid": "15601210", "title": "", "text": "such, the Court does not find a connection between Plaintiffs criminal matters and the instant lawsuit to apply the fugitive disentitlement doctrine. b. Qualified Immunity Having established the availability of Bivens, the Court considers Defendants’ argument that Chang and Garcia are entitled to qualified immunity. Opp’n to Mot. to Am. at 7; Agents MTD at 26-28. “[T]he qualified immunity analysis is identical under either [section 1983 or Bivens] eause[s] of action.” Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). Thus, “[e]ven in circumstances in which a Bivens remedy is generally available, an action under Bivens will be defeated if the defendant is immune from suit.” Hui v. Castaneda, 559 U.S. 799, 807, 130 S.Ct. 1845, 176 L.Ed.2d 703 (2010); see F.E. Trotter, Inc. v. Watkins, 869 F.2d 1312, 1314 (9th Cir.1989) (“Federal officials may raise a defense of qualified immunity to a Bivens action.”). “Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” Reichle v. Howards, —— U.S. -, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011)). It “is both a defense to liability and a limited entitlement not to stand trial or face the other burdens of litigation.” Iqbal, 556 U.S. at 672, 129 S.Ct. 1937 (internal quotation omitted). Qualified immunity purports “to strike a balance between the competing ‘need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.’ ” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir.2011) (en banc) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). An official is entitled to qualified immunity “unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” al-Kidd, 131 S.Ct. at 2080 (quoting" }, { "docid": "22867217", "title": "", "text": "at 1031. Concluding that “a reasonable officer in the deputies’ position would have been well aware of this deficiency,” the en banc court held that the officers were not entitled to qualified immunity. Id., at 1033-1035. There were two separate dissenting opinions. Judge Callahan determined that “the officers had probable cause to search for and seize any firearms in the home in which Bowen, a gang member and felon, was thought to reside.” Id., at 1036. She also concluded that “the officers reasonably relied on their superiors, the district attorney, and the magistrate to correct” any overbreadth in the warrant, and that the officers were entitled to qualified immunity because their actions were not objectively unreasonable. Id., at 1044,1049. Judge Silverman also dissented, concluding that the “deputies’ belief in the validity of . . . the warrant was entirely reasonable” and that the “record [wa]s totally devoid of any evidence that the deputies acted other than in good faith.” Id., at 1050. Judge Tallman joined both dissents. We granted certiorari. 564 U. S. 1035 (2011). H — I i — i The Millenders allege that they were subjected to an unreasonable search in violation of the Fourth Amendment because the warrant authorizing the search of their home was not supported by probable cause. They seek damages from Messerschmidt and Lawrence for their roles in obtaining and executing this warrant. The validity of the warrant is not before us. The question instead is whether Messerschmidt and Lawrence are entitled to immunity from damages, even assuming that the warrant should not have been issued. “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known/” Pearson v. Callahan, 555 U. S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982)). Qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments,” and “protects ‘all but the plainly incompetent or those who knowingly violate the law/” Ashcroft v. al-Kidd, 563 U. S. 731, 743" }, { "docid": "15601211", "title": "", "text": "of the challenged conduct.” Reichle v. Howards, —— U.S. -, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011)). It “is both a defense to liability and a limited entitlement not to stand trial or face the other burdens of litigation.” Iqbal, 556 U.S. at 672, 129 S.Ct. 1937 (internal quotation omitted). Qualified immunity purports “to strike a balance between the competing ‘need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.’ ” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir.2011) (en banc) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). An official is entitled to qualified immunity “unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” al-Kidd, 131 S.Ct. at 2080 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “[C]ourts have discretion to decide which of the two prongs of qualified-immunity analysis to tackle first.” Id. To determine “whether the constitutional right was clearly established at the time of the conduct — the critical question is whether the contours of the right were ‘sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’ ” Mattos, 661 F.3d at 442 (quoting al-Kidd, 131 S.Ct. at 2083; some internal marks omitted). “The plaintiff bears the burden to show that the contours of the right were clearly established.” Clairmont v. Sound Mental Health, 632 F.3d 1091, 1109 (9th Cir.2011). While there need not be “a case directly on point, ... existing precedent must have placed the statutory or constitutional question beyond debate.” al-Kidd, 131 S.Ct. at 2080. Courts do not “define clearly established law at a high level of generality.” Id. at 2084. Instead, “[t]he inquiry ... must be undertaken in the light of the specific" }, { "docid": "19489871", "title": "", "text": "to the crux of this appeal. Having decided that all three defendants are entitled to assert the defense of qualified immunity, we must decide whether they are actually entitled to its protection. \"The doctrine of qualified immunity shields officials from civil liability so long as their conduct 'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' \" Mullenix v. Luna , --- U.S. ----, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (quoting Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). Once invoked, a plaintiff bears the burden of rebutting qualified immunity by showing two things: (1) that the officials violated a statutory or constitutional right and (2) that the right was \" 'clearly established' at the time of the challenged conduct.\" Ashcroft v. al-Kidd , 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ); see also McClendon v. City of Columbia , 305 F.3d 314, 323 (5th Cir. 2002) (en banc) (per curiam) (\"When a defendant invokes qualified immunity, the burden is on the plaintiff to demonstrate the inapplicability of the defense.\"). Law is \"clearly established\" for these purposes only if \"the contours of the right [were] sufficiently clear that a reasonable official would understand that what he [was] doing violate[d] that right.\" Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). An official that violates a constitutional right is still entitled to qualified immunity if his or her actions were objectively reasonable. Spann v. Rainey , 987 F.2d 1110, 1114 (5th Cir. 1993). At bottom, a plaintiff must show that \"no reasonable officer could have believed his actions were proper.\" Brown v. Callahan , 623 F.3d 249, 253 (5th Cir. 2010). The parties agree that state officials have a duty under the Fourteenth Amendment to provide involuntarily detained persons with \"basic human needs, including medical care and protection from harm.\" Hare v. City of Corinth , 74" }, { "docid": "16913723", "title": "", "text": "a terrorist suspect, not as a material witness. Therefore, the warrant upon which Judge O’Scannlain bases his argument cannot reach the arrest of al-Kidd for criminal law violations. O’SCANNLAIN, Circuit Judge, joined by KOZINSKI, Chief Judge, and KLEINFELD, GOULD, TALLMAN, CALLAHAN, BEA and IKUTA, Circuit Judges, dissenting from the denial of rehearing en banc: The majority holds that a former Attorney General of the United States may be personally liable for promulgating a policy under which his subordinates took actions expressly authorized by law. Judge Bea’s dissent from the panel decision clearly and ably describes the several legal errors the panel makes in reaching this startling conclusion. See al-Kidd v. Ashcroft, 580 F.3d 949, 981-1000 (9th Cir.2009) (Bea, J., dissenting). For my part, I write to express my concern at the scope of this decision. First, the majority holds that al-Kidd’s detention under a valid material witness warrant violated his clearly established constitutional rights — a conclusion that effectively declares the material witness statute unconstitutional as applied to alKidd. Second, the majority holds that a cabinet-level official may be personally liable for actions taken by his subordinates alone. Because of the gratuitous damage this decision inflicts upon orderly federal law enforcement, I must respectfully dissent from our refusal to rehear this case en banc. I On March 14, 2003, federal prosecutors sought a material witness warrant to ar rest Abdullah al-Kidd in connection with their prosecution of Sami Omar Al-Hussayen, whom a federal grand jury had indicted for visa fraud and making false statements to U.S. officials. According to a supporting affidavit submitted by prosecutors, al-Kidd had contacts \"with Al-Hussayen’s suspected Jihadist organization, had received over $20,000 from Al-Hussayen, and, after returning from a trip to Yemen, had met with Al-Hussayen’s associates. The affidavit also stated that alKidd had a plane ticket to fly to Saudi Arabia two days later, and that if he left the country, the government would “be unable to secure his presence at trial via subpoena.” Based on this affidavit, a federal magistrate judge issued the warrant authorizing al-Kidd’s arrest. On March 16, federal agents arrested" }, { "docid": "9002204", "title": "", "text": "no law clearly established \"what the [C]onstitution requires of a government official in [Palmer's] position under similar circumstances.\" As a result, the court held qualified immunity barred plaintiffs' federal constitutional claims. The court further dismissed plaintiffs' common law claims for failure to exhaust administrative remedies and declined to exercise supplemental jurisdiction over the remaining state constitutional claims. This appeal followed. II. Discussion A. Qualified Immunity We review the district court's qualified immunity analysis on a Rule 12(b)(6) motion de novo. Ewell v. Toney , 853 F.3d 911, 918 (7th Cir. 2017). In doing so, \"we consider the facts, including all reasonable inferences from them, in the light most favorable to the nonmoving party.\" Id. at 918-19. \"The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' \" Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). \"Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.\" Id. \"The defense provides 'ample room for mistaken judgments' and protects all but the 'plainly incompetent and those who knowingly violate the law.' \" Green v. Newport , 868 F.3d 629, 633 (7th Cir. 2017) (quoting Wheeler v. Lawson , 539 F.3d 629, 639 (7th Cir. 2008) ). \"A state official is protected by qualified immunity unless the plaintiff shows: '(1) that the official violated a statutory or constitutional right, and (2) that the right was \"clearly established\" at the time of the challenged conduct.' \" Kemp v. Liebel , 877 F.3d 346, 350-51 (7th Cir. 2017) (quoting Ashcroft v. al-Kidd , 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ). \"If either inquiry is answered in the negative, the defendant official\" is protected by qualified immunity. Green , 868" }, { "docid": "22350391", "title": "", "text": "presence of probable cause to support the arrest, and whether clearly established law at the time of Howards’ arrest so held. See 565 U. S. 1078 (2011). If the answer to either question is “no,” then the agents are entitled to qualified immunity. We elect to address only the second question. We conclude that, at the time of Howards’ arrest, it was not clearly established that an arrest supported by probable cause could violate the First Amendment. We, therefore, reverse the judgment of the Court of Appeals denying petitioners qualified immunity. III Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct. See Ashcroft v. al-Kidd, 563 U. S. 731, 735 (2011). In Pearson v. Callahan, 555 U. S. 223, 236 (2009), we held that courts may grant qualified immunity on the ground that a purported right was not “clearly established” by prior case law, without resolving the often more difficult question whether the purported right exists at all. Id., at 227. This approach comports with our usual reluctance to decide constitutional questions unnecessarily. Id., at 241; see also Camreta v. Greene, 563 U. S. 692, 705-706 (2011); al-Kidd, 563 U. S., at 735. To be clearly established, a right must be sufficiently, clear “that every 'reasonable official would-[have understood] that what he is doing violates that right/ ” Id., at 741 (quoting Anderson v. Creighton, 483 U. S. 635, 640 (1987)). In other words, “existing precedent must have placed the statutory or constitutional question beyond debate.” al-Kidd, supra, at 741. This “clearly established” standard protects the balance between vindication of constitutional rights and government officials’ effective performance of their duties by ensuring that officials can “ ‘reasonably . . . anticipate when their conduct may give rise to liability for damages.’ ” Anderson, supra, at 639 (quoting Davis v. Scherer, 468 U. S. 183, 195 (1984)). The “clearly established” standard is not satisfied here. This Court has never recognized a First Amendment right to be free from a retaliatory arrest" }, { "docid": "21789321", "title": "", "text": "challenge the constitutionality of Ashcroft’s alleged policy; he also asserted several other claims not relevant here against Ashcroft and others. Ashcroft filed a motion to dismiss based on absolute and qualified immunity, which the District Court denied. A divided panel of the United States Court of Appeals for the Ninth Circuit affirmed, holding that the Fourth Amendment prohibits pretextual arrests absent probable cause of criminal wrongdoing, and that Ashcroft could not claim qualified or absolute immunity. See 580 F. 3d 949 (2009). Judge Bea dissented, id., at 981, and eight judges dissented from the denial of rehearing en banc, see 598 F. 3d 1129, 1137, 1142 (2010). We granted certiorari, 562 U. S. 980 (2010). II Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was “clearly established” at the time of the challenged conduct. Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). We recently reaffirmed that lower courts have discretion to decide which of the two prongs of qualified-immunity analysis to tackle first. See Pearson v. Callahan, 555 U. S. 223, 236 (2009). Courts should think carefully before expending “scarce judicial resources” to resolve difficult and novel questions of constitutional or statutory interpretation that will “have no effect on the outcome of the case.” Id., at 236-237; see id., at 237-242. When, however, a court of appeals does address both prongs of qualified-immunity analysis, we have discretion to correct its errors at each step. Although not necessary to reverse an erroneous judgment, doing so ensures that courts do not insulate constitutional decisions at the frontiers of the law from our review or inadvertently undermine the values qualified immunity seeks to promote. The former occurs when the constitutional-law question is wrongly decided; the latter when what is not clearly established is held to be so. In this case, the Court of Appeals’ analysis at both steps of the qualified-immunity inquiry needs correction. A The Fourth Amendment protects “[t]he right of the people to be secure in their" }, { "docid": "13422498", "title": "", "text": "are part of the public record or do not contradict the complaint, as well as materials that are necessarily embraced by the pleadings.” Id. (internal citation and quotation omitted). For example, courts may consider “matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint.” Id. (quotation omitted). In this case, the district court considered the underlying state court decisions because they were matters of public record. A. Fourth Amendment Violations “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “We analyze qualified immunity in two steps: (1) whether the facts that a plaintiff has alleged ... make out a violation of a constitutional right; and (2) whether the right at issue was clearly established at the time of [the] defendant’s alleged misconduct.” Peterson v. Kopp, 754 F.3d 594, 598 (8th Cir.2014) (alteration in original) (quotation omitted). Government officials are entitled to qualified immunity “[u]nless both of these questions are answered affirmatively.” Nord v. Walsh County, 757 F.3d 734, 738 (8th Cir.2014). In addition, we are “permitted to exercise [our] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first.” Pearson, 555 U.S. at 236, 129 S.Ct. 808. The district court addressed whether it was clearly established at the time of Greenman’s arrests that a reasonable police officer would have known that probable cause did not exist to arrest an intoxicated person operating a Segway for DWI. But we choose to address the defendants’ alternative argument: that they are entitled to qualified immunity because there was probable cause, or at least arguable probable cause, to arrest and prosecute Greenman on all three occasions for operating his- Segway in violation of Minnesota traffic laws other than DWI. If the offi" }, { "docid": "21789322", "title": "", "text": "decide which of the two prongs of qualified-immunity analysis to tackle first. See Pearson v. Callahan, 555 U. S. 223, 236 (2009). Courts should think carefully before expending “scarce judicial resources” to resolve difficult and novel questions of constitutional or statutory interpretation that will “have no effect on the outcome of the case.” Id., at 236-237; see id., at 237-242. When, however, a court of appeals does address both prongs of qualified-immunity analysis, we have discretion to correct its errors at each step. Although not necessary to reverse an erroneous judgment, doing so ensures that courts do not insulate constitutional decisions at the frontiers of the law from our review or inadvertently undermine the values qualified immunity seeks to promote. The former occurs when the constitutional-law question is wrongly decided; the latter when what is not clearly established is held to be so. In this case, the Court of Appeals’ analysis at both steps of the qualified-immunity inquiry needs correction. A The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” An arrest, of course, qualifies as a “seizure” of a “person” under this provi sion, Dunaway v. New York, 442 U. S. 200, 207-208 (1979), and so must be reasonable under the circumstances. Al-Kidd does not assert that Government officials would have acted unreasonably if they had used a material-witness warrant to arrest him for the purpose of securing his testimony for trial. See Brief for Respondent 16-17; Tr. of Oral Arg. 20-22. He contests, however (and the Court of Appeals here rejected), the reasonableness of using the warrant to detain him as a suspected criminal. Fourth Amendment reasonableness “is predominantly an objective inquiry.” Indianapolis v. Edmond, 531 U. S. 32, 47 (2000). We ask whether “the circumstances, viewed objectively, justify [the challenged] action.” Scott v. United States, 436 U. S. 128, 138 (1978). If so, that action was reasonable “whatever the subjective intent” motivating the relevant officials. Whren v. United States, 517 U. S. 806, 814 (1996). This approach recognizes that the Fourth Amendment" }, { "docid": "20033935", "title": "", "text": "county law, and that there was no evidence that they “ever intended to report their possession of a wolf or dog hybrid to comply with Maryland code.” Id. at 13. The Walkers appeal the grant of summary judgment in appellees’ favor on their Fourth Amendment § 1983 claim and also the denial of their motion for summary judgment on that claim. They also argue that they were entitled to summary judgment. We have jurisdiction to review the district court’s opinion under 28 U.S.C. § 1291, and we review that opinion de novo, Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277, 283 (4th Cir.2004) (en banc). II We affirm the judgment of the district court. Officer Jacobs was entitled to qualified immunity, and appellants failed adequately to plead a Monell claim against the County. A Qualified immunity “protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan, 555 U.S. -, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). There is a two-prong test for resolving qualified immunity claims. First, a court “must decide whether the facts that a plaintiff has alleged (see Fed. Rules Civ. Proc. 12(b)(6), (c)) or shown (see Rules 50, 56) make out a violation of a constitutional right.” Id. at 815-16, 102 S.Ct. 2727. Second, if the plaintiff has satisfied this first step, “the court must decide whether the right at issue was ‘clearly established’ at the time of [the] alleged misconduct.” Id. at 816, 102 S.Ct. 2727. (citation omitted). Overruling Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court recently held that “courts of appeals [are] permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in [a] particular case.” Pearson, 129 S.Ct. at 818. Here, we think “it is plain that [the]" }, { "docid": "19628189", "title": "", "text": "at 548-549. Mullenix sought rehearing en banc before the Fifth Circuit, but the court denied his petition. Judge Jolly dissented, joined by six other members of the court. Judge King, who joined Judge Jolly's dissent, also filed a separate dissent of her own. 777 F.3d 221 (2014) (per curiam ). On the same day, however, the two members forming the original panel's majority withdrew their previous opinion and substituted a new one. 773 F.3d 712. The revised opinion recognized that objective unreasonableness is a question of law that can be resolved on summary judgment-as Judge King had explained in her dissent-but reaffirmed the denial of qualified immunity. Id., at 715, 718. The majority concluded that Mullenix's actions were objectively unreasonable because several of the factors that had justified deadly force in previous cases were absent here: There were no innocent bystanders, Leija's driving was relatively controlled, Mullenix had not first given the spike strips a chance to work, and Mullenix's decision was not a split-second judgment. Id., at 720-724. The court went on to conclude that Mullenix was not entitled to qualified immunity because \"the law was clearly established such that a reasonable officer would have known that the use of deadly force, absent a sufficiently substantial and immediate threat, violated the Fourth Amendment.\" Id., at 725. We address only the qualified immunity question, not whether there was a Fourth Amendment violation in the first place, and now reverse. The doctrine of qualified immunity shields officials from civil liability so long as their conduct \" 'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' \" Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). A clearly established right is one that is \"sufficiently clear that every reasonable official would have understood that what he is doing violates that right.\" Reichle v. Howards, 566 U.S. ----, ----, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (internal quotation marks and alteration omitted). \"We" }, { "docid": "20907920", "title": "", "text": "never decide whether the plaintiffs claim, even though novel or otherwise unsettled, in fact has merit. Camreta v. Greene, 563 U.S. 692, 131 S.Ct. 2020, 2030-31, 179 L.Ed.2d 1118 (2011). Issues of qualified immunity are best resolved at the “earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam)). “If qualified immunity is to mean anything, it must mean that public employees who are just doing their jobs are generally immune from suit.” Lewis v. Tripp, 604 F.3d 1221, 1230 (10th Cir.2010). Qualified immunity shields government officials from liability where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. at 231, 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. 2727). Qualified immunity also shields officers who have “reasonable, but mistaken beliefs,” and operates to protect officers from the sometimes “hazy border[s]” of the law. Saucier v. Katz, 533 U.S. at 205, 121 S.Ct. 2151. When a defendant asserts qualified immunity, the plaintiff must demonstrate: (i) that the defendant’s actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.2009). 1. Procedural Approach to Qualifíed Immunity. The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.” 555 U.S. at 236, 129 S.Ct. 808. The Supreme Court also noted that, while no longer mandatory, the protocol outlined in Saucier v. Katz — by which a court first decides if the defendant’s actions violated the Constitution, and then the court determines" }, { "docid": "22350390", "title": "", "text": "argument that, under this Court’s decision in Hartman v. Moore, 547 U. S. 250 (2006), probable cause to arrest defeats a First Amendment claim of retaliatory arrest. The court concluded that Hartman established such a rule only for retaliatory prosecution claims and, therefore, did not upset prior Tenth Circuit precedent clearly establishing that a retaliatory arrest violates the First Amendment even if supported by probable cause. 634 F. 3d, at 1148. Judge Paul Kelly dissented from the court’s denial of qualified immunity. He would have held that when Howards was arrested, it was not clearly established that an arrest supported by probable cause could violate the First Amendment. In Judge Kelly’s view, Hartman called into serious question the Tenth Circuit’s prior precedent on retaliatory arrests. 634 F. 3d, at 1151. He noted that other Circuits had applied Hartman to retaliatory arrests and that there was a “strong argument” in favor of doing so. 634 F. 3d, at 1151-1152. We granted certiorari on two questions: whether a First Amendment retaliatory arrest claim may lie despite the presence of probable cause to support the arrest, and whether clearly established law at the time of Howards’ arrest so held. See 565 U. S. 1078 (2011). If the answer to either question is “no,” then the agents are entitled to qualified immunity. We elect to address only the second question. We conclude that, at the time of Howards’ arrest, it was not clearly established that an arrest supported by probable cause could violate the First Amendment. We, therefore, reverse the judgment of the Court of Appeals denying petitioners qualified immunity. III Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct. See Ashcroft v. al-Kidd, 563 U. S. 731, 735 (2011). In Pearson v. Callahan, 555 U. S. 223, 236 (2009), we held that courts may grant qualified immunity on the ground that a purported right was not “clearly established” by prior case law, without resolving the often more difficult question whether the purported right" }, { "docid": "22697470", "title": "", "text": "to qualified immunity. The case was twice reheard en banc, where a divided Court of Appeals again upheld the defense of qualified immunity. The Court of Appeals declined to decide whether the actions of the police violated the Fourth Amendment. It concluded instead that because no court had held (at the time of the search) that media presence during a police entry into a residence violated the Fourth Amendment, the right allegedly violated by respondents was not “clearly established” and thus qualified immunity was proper. 141 F. 3d 111 (CA4 1998). Five judges dissented, arguing that the officers’ actions did violate the Fourth Amendment, and that the clearly established protections of the Fourth Amendment were violated in this case. Id., at 119 (opinion of Murnaghan, J.) Recognizing a split among the Circuits on we granted certiorari in this case and another raising the same question, Hanlon v. Berger, 525 U. S. 981 (1998), and now affirm the Court of Appeals, although by different reasoning. I — H Petitioners sued the federal officials under Bivens and the state officials under §1983. Both Bivens and §1983 allow a plaintiff to seek money damages from government officials who have violated his Fourth Amendment rights. See § 1983; Bivens, supra, at 397. But government officials performing discretionary functions generally are granted a qualified immunity and are “shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). Although this case involves suits under both §1983 and Bivens, the qualified immunity analysis is identical under either cause of action. See, e.g., Graham v. Connor, 490 U. S. 386, 394, n. 9 (1989); Malley v. Briggs, 475 U. S. 335, 340, n. 2 (1986). A court evaluating a claim of qualified immunity “must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation.” Conn v. Gabbert," }, { "docid": "11724938", "title": "", "text": "we do not address the issue of absolute immunity. II We review a dismissal for failure to state a claim under Rule 12(b)(6) de novo. Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1108 (D.C.Cir.2008). In so doing, we “ ‘accept as true all of the factual allegations contained in the complaint.’ ” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)). The Supreme Court has held that “[qjualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The courts “have discretion to decide which of the two prongs of qualified-immunity analysis to tackle first.” Id. (citing Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). Exercising that discretion, we begin (and end) with an examination of whether the right the plaintiff asserts was “clearly established” at the time of his 2001 and 2005 parole hearings. The operation of the “clearly established” standard “depends substantially upon the level of generality at which the relevant ‘legal rule’ is to be identified.” Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The Court has explained, for example, that although “the right to due process of law is quite clearly established by the Due Process Clause,” that level of generality is too high for purposes of qualified immunity because “there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right.” Id. The same can “be said of any other constitutional or statutory violation.” Id. Instead, “the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence" } ]

[ { "docid": "22618887", "title": "", "text": "Justice Scalia delivered the opinion of the Court. The Bankruptcy Code allows the States to define what property a debtor may exempt from the bankruptcy estate that will be distributed among his creditors. 11 U. S. C. § 522(b). The Code also provides that judicial liens encumbering exempt property can be eliminated. § 522(f). The question in this case is whether that elimination can operate when the State has defined the exempt property in such a way as specifically to exclude property encumbered by judicial liens. I In 1975, Helen Owen, the respondent, obtained a judgment against petitioner Dwight Owen, her former husband, for approximately $160,000. The judgment was recorded in Sarasota County, Florida, in July 1976. Petitioner did not at that time own any property in Sarasota County, but under Florida law, the judgment would attach to any after-acquired property recorded in the county. B. A. Lott, Inc. v. Padgett, 153 Fla. 304, 14 So. 2d 667 (1943). In 1984, petitioner purchased a condominium in Sarasota County; upon acquisition of title, the property became subject to respondent’s judgment lien. Porter-Mallard Co. v. Dugger, 117 Fla. 137, 157 So. 429 (1934). One year later, Florida amended its homestead law so that petitioner’s condominium, which previously had not qualified as a homestead, thereafter did. Under the Florida Constitution, homestead property is “exempt from forced sale . . . and no judgment, decree or execution [can] be a lien thereon . . . ,” Fla. Const., Art. 10, §4(a). The Florida courts have interpreted this provision, however, as being inapplicable to pre-existing liens, i. e., liens that attached before the property acquired its homestead status. Bessemer v. Gersten, 381 So. 2d 1344, 1347, n. 1 (Fla. 1980); Aetna Ins. Co. v. LaGasse, 223 So. 2d 727, 728 (Fla. 1969); Pasco v. Harley, 73 Fla. 819, 824-825, 75 So. 30, 32-33 (1917); Volpitta v. Fields, 369 So. 2d 367, 369 (Fla. App. 1979); Lyon v. Arnold, 46 F. 2d 451, 452 (CA5 1931). Pre-existing liens, then, are in effect an exception to the Florida homestead exemption. In January 1986, petitioner filed for bankruptcy" } ]

[ { "docid": "19160240", "title": "", "text": "petition prior to attachment. See Id. at 971. The Supreme Court of the United States has instructed that the time for deciding a debtor’s entitlement to- an exemption for § 522(f) purposes is at the time of the filing of the petition in bankruptcy and not at the time the lien attaches. Owen v. Owen, 500 U.S. 305, 314 n. 6, 111 S.Ct. 1833, 1838 n. 6, 114 L.Ed.2d 350, 114 L.Ed.2d 350, 360 n. 6 (1991) (citing 11 U.S.C. § 522(f), (b)(2)(A)). In Gibson Group, Ltd. of Pinellas County, Inc. v. Cooper (In re Cooper), 197 B.R. 698 (M.D.Fla.1996), a position similar to the instant one was argued. The lienholder in Cooper argued that the subject lien did not “fix on” an interest of the debtor in property because the lien fixed on non-exempt property prior to the filing of the bankruptcy petition, and the property was thereafter exempt on the date of filing. Id. at 700-01. Relying on Owen the court refused to hold that the interest the lien attaches to must be an identical interest that existed at the time the lien fixed. Cooper, 197 B.R. at 701. This Court previously rejected the argument- that the debtor lacked equitable -title to ’ the IRAs and held that he was entitled to claim the IRAs as exemptions under Florida law. (Debtor Ex. 5, 6.) The debtor owned the IRAs when the Receiver’s lien attached; therefore, the lien attached to the debtor’s interest in the property as required by § 522(f)(1). The avoidance of the Receiver’s lien does not result in a windfall to the debtor. On the contrary, the debtor remains personally liable for all debts which are not discharged. Although the Receiver is prohibited from executing on the debtor’s IRAs, he is free to seek a postpetition execution against the debtor’s non-exempt property: the judgment, although not the lien, remains intact. See In re Ewiak, 75 B.R. 211, 213 (Bankr.W.D.Pa.1987). CONCLUSION For the foregoing reasons, the debtor’s Motion to Avoid Lien is granted. The Receiver’s objection is overruled, and his lien will be avoided pursuant to Bankruptcy" }, { "docid": "12275875", "title": "", "text": "be present: first, the lien at issue must have fixed on an interest of the debtor in property, and second, the lien must impair an exemption to which the debtor would have been entitled. Both elements must be present for the lien to be avoided. Resolution of this case is controlled by the decisions of the United States Supreme Court in Owen v. Owen, 500 U.S. 305, 111 S.Ct. 1833, 114 L.Ed.2d 350 (1991), and, on remand, the Eleventh Circuit Court of Appeals in In re Owen, Owen v. Owen, 961 F.2d 170 (11th Cir.1992), cert. den. 506 U.S. 1022, 113 S.Ct. 659, 121 L.Ed.2d 584 (1992). In the Owen case, which arose under Florida law, the debtor’s former wife obtained a judgment against the debtor in 1975 and recorded the judgment in 1976. The debtor did not own any real property at the time that the judgment was recorded. In 1984, the debtor purchased a condominium in Sarasota County, Florida. At the time he purchased the condominium, Florida’s homestead exemption law did not apply to condominiums, so the existing judgment immediately attached to the property. One year later, Florida’s homestead exemption law was amended to extend the exemption to condominiums. The debtor subsequently filed a petition under Chapter 7 of the Bankruptcy Code, claimed the condominium as exempt, and filed a motion to avoid the lien under Section 522(f). Owen, 500 U.S. at 305-07 and 307-09, 111 S.Ct. at 1834 and 1835. Impairment of an Exemption to which the Debtor would have been Entitled In Owen, the Supreme Court specifically “assume[d] without deciding” that the lien at issue fixed “on an interest of the debtor in property.” Id. at 309, 111 S.Ct. at 1836. Consequently, the Supreme Court addressed only the second element set forth in Section 522(f) and considered whether the lien impaired “an exemption to which the debtor would have been entitled.” With respect to this element, the Court concluded that the statute should be interpreted to apply to exemptions to which the debtor would have been entitled, hypothetically rather than actually, but for the hen at" }, { "docid": "8509595", "title": "", "text": "Third National’s lien does not impair Arango’s present possessory interest in the property because Third National’s lien simply does not affect the Arangos’ present possessory interest in entireties property under Tennessee law. Arango argues that Owen v. Owen, — U.S. —, 111 S.Ct. 1833, 114 L.Ed.2d 350 (1991), requires that he be allowed to avoid Third National’s lien. In Owen, the court allowed a debtor to avoid a lien because the lien prevented the debtor from claiming the underlying property as exempt property. Id., — U.S. at —, 111 S.Ct. at 1837-38, 114 L.Ed.2d at 360. Until 1985, unmarried Florida condominium owners could not exempt their condominiums from their bankruptcy estate under Florida’s homestead exemption because they were not a “head of a household.” See Owen, — U.S. at —, 111 S.Ct. at 1838-39, 114 L.Ed.2d at 361 (Stevens, J., dissenting). In 1985, Florida expanded its homestead exemption by allowing it to extend to “natural person[s].” However, the Florida Supreme Court, to protect creditors, refuses to implement changes in exemptions against lienholders who perfect their liens before an applicable exemption is broadened. E.g., Bessemer v. Gersten, 381 So.2d 1344, 1347 (Fla.1980). Helen Owen perfected a judgment lien against Dwight Owen while his condominium was not considered a homestead under Florida law. Nonetheless, Dwight Owen filed suit in bankruptcy in 1986 to avoid Helen Owen’s lien. The United States Supreme Court ruled that Helen Owen’s lien impaired Dwight Owen’s homestead exemption, even though Dwight Owen’s condominium was not exempt under Florida law from execution by Helen Owen. Owen, — U.S. at —, 111 S.Ct. at 1837-38, 114 L.Ed.2d at 360. The court reasoned that Dwight Owen’s home would be exempt property under Florida law but for the fact that Helen Owen had perfected her lien. Id., — U.S. at —, 111 S.Ct. at 1837, 114 L.Ed.2d at 359. Therefore, under 11 U.S.C. § 522(f)(1), the lien impaired an exemption to which the debtor “would have been entitled” had the lien not existed. Id. Thus, Dwight Owen could avoid Helen Owen’s lien against his condominium. Unlike the situation in Owen, Third National’s" }, { "docid": "21007961", "title": "", "text": "States Code creates, an estate which is comprised of all the property in which the debtor has a legal or equitable interest as of the date of the filing of the petition. 11 U.S.C. § 541(a). However, an individual is permitted to exempt property from the estate by claiming exemptions authorized by 11 U.S.C. § 522. See In re Allen, 203 B.R. 786, 791 (Bankr.M.D.Fla. 1996) (citing 11 U.S.C. § 522; In re Colston, 87 B.R. 193, 194 (Bankr.M.D.Fla.1988)). Section 522 allows a state to opt out of the federal exemptions-provided for in subsection 522(d) and limit its residents to those exemptions provided under the state law. 11 U.S.C. § 522(b). The State of Florida has exercised this option. Fla.Stat. § 222.20 (1995); In re Podzamsky, 122 B.R. 596, 598 (Bankr.M.D.Fla.1990). Therefore, a debtor who is a Florida resident may claim exemptions pursuant to subsections 522(b)(2)(A)-(B), Article X, Section 4 of the Florida Constitution and Fla.Stat. ch. 222. The party objecting to the exemption has the burden of proving, by preponderance of the evidence, that the Debtor is not entitled to the exemptions claimed. In re Rightmyer, 156 B.R. 690, 692 (Bankr.M.D.Fla.1993). Once the objector has made a prima facie showing that the claimed exemptions should be disallowed, the burden then shifts to the Debtor to prove that the exemptions are legally valid. Id. Here, the Receiver and Trustee contend that the Court should disallow Debtor’s claimed exemptions of his Ponte Vedra house, IRAs, and annuity contract. The Court will now address each claim. A. The Ponte Vedra House The Court will initially address whether Debtor may claim the Ponte Vedra house as exempt. The Receiver and Trustee state the following three grounds for disallowing Debt- or’s exemption of the Ponte Vedra house: (1) the house is not Debtor’s homestead, (2) even if the house is Debtor’s homestead, the homestead status resulted from a fraudulent conversion of a non-exempt asset to an ex■empt asset, and (3) the house is not property of the estate by virtue of the West Virginia District Court Order requiring Debtor to turn over the deed" }, { "docid": "13824805", "title": "", "text": "must be met before a debtor can avoid a lien under § 522(f): (1) the debtor must have had an ownership interest in the property before the lien attached; and (2) avoidance of the lien must entitle the debtor to a state or federal exemption. We begin our analysis with the Supreme Court’s decision in Owen and assume for the moment that the prior contracted debt exception is preempted by the Bankruptcy Code. In Owen, the Supreme Court considered whether a Chapter 7 debtor can avoid a judicial lien encumbering exempt property, even though the State has defined the exempt property to specifically exclude property encumbered by preexisting liens, i.e., liens that attached before the property acquired its homestead status. See 500 U.S. at 306-07, 111 S.Ct. at 1834-35. At the same time the debtor purchased a condominium in Sarasota County, Florida, a judgment lien previously recorded by the debtor’s former wife immediately attached to the property. See id. The debtor did not qualify for the homestead exemption until a year after he purchased the property, when Florida broadened its homestead exemption. See id. at 307, 111 S.Ct. at 1835. When the debtor later filed for bankruptcy under Chapter 7, he claimed a homestead exemption in the condominium. Following discharge, the bankruptcy court denied the debtor’s motion to avoid the lien under § 522(f). The district court and the Eleventh Circuit both affirmed. See id. at 307-08, 111 S.Ct. at 1835. The Supreme Court, however, rejected the interpretation of § 522(f) urged by the creditor and employed by the courts below — that the state exemption statute’s built-in limitations are fully operative in bankruptcy. Under the creditor’s view, the lien obviously did not impair the debtor’s homestead exemption since under Florida law, the exemption does not apply to preexisting hens. See id. at 309, 111 S.Ct. at 1836. Noting that bankruptcy courts had uniformly rejected this approach with respect to federal exemptions, the Supreme Court saw no justification for treating federal and state exemptions differently. See id. at 310-13, 111 S.Ct. at 1836-38. Tracking the language of the Code, the" }, { "docid": "19160239", "title": "", "text": "the lien because it did not attach to an interest of the debtor in the property. The Receiver continuously refers the Court to the case of Teasdale v. Frederick (In re Frederick), 183 B.R. 968 (Bankr.M.D.Fla.1995), where this Court held that liens which attach to non-exempt property prior to the bankruptcy filing survive as valid liens against the bankruptcy estate. The Receiver asserts that in the instant case the lien attached to the IRAs prior to the time they attained exempt status, and hence, pursuant to Frederick, the lien cannot be avoided. The IRAs were not exempt when the lien attached, according to the Receiver, because the exemptions only came into effect when the debtor filed his bankruptcy petition, which was after the judicial lien attached. The Court finds that this argument is without merit. The Receiver misinterprets the Court’s holding in Frederick. The property in that case was deemed non-exempt because the defendant had abandoned his homestead prior to the time the lien attached, not because the defendant had failed to file a bankruptcy petition prior to attachment. See Id. at 971. The Supreme Court of the United States has instructed that the time for deciding a debtor’s entitlement to- an exemption for § 522(f) purposes is at the time of the filing of the petition in bankruptcy and not at the time the lien attaches. Owen v. Owen, 500 U.S. 305, 314 n. 6, 111 S.Ct. 1833, 1838 n. 6, 114 L.Ed.2d 350, 114 L.Ed.2d 350, 360 n. 6 (1991) (citing 11 U.S.C. § 522(f), (b)(2)(A)). In Gibson Group, Ltd. of Pinellas County, Inc. v. Cooper (In re Cooper), 197 B.R. 698 (M.D.Fla.1996), a position similar to the instant one was argued. The lienholder in Cooper argued that the subject lien did not “fix on” an interest of the debtor in property because the lien fixed on non-exempt property prior to the filing of the bankruptcy petition, and the property was thereafter exempt on the date of filing. Id. at 700-01. Relying on Owen the court refused to hold that the interest the lien attaches to must be" }, { "docid": "12404057", "title": "", "text": "purpose is not undermined by the continued existence of a non-executable judgment lien. Id. at 621. Because the debtor could not be involuntarily or forcibly dispossessed of her home by the judgment lien creditor, her exemption was not impaired. Id. The homestead exemption, as bestowed by Oklahoma law, is therefore not absolute, but is narrowed and qualified by amended Section 706, as well as other statutes that permit certain liens on homestead. This Court finds Judge Bohanan’s analysis instinctive and compelling. It would seem that the homestead exemption granted by state law should be only as broad in bankruptcy proceedings as state law permits. However, the United States Supreme Court and various Circuit Courts of Appeal have restricted the effect of state law limitations on State Exemptions for the purpose of lien avoidance in bankruptcy. Pre-emption “Impairment of an exemption” is a concept embodied in Section 622(f) of the Bankruptcy Code, and therefore its meaning is determined by analyzing the policies underlying bankruptcy law rather than state exemption law. The United States Supreme Court addressed the role of state law in defining exemptions for the purpose of Section 522(f)’s avoidance scheme in the ease of Owen v. Owen, 500 U.S. 305, 111 S.Ct. 1833, 114 L.Ed.2d 350 (1991). In Owen, the Supreme Court held that a judicial lien on property claimed exempt under a state law exemption scheme may be avoided under Section 522(f), even if state law limits the circumstances under which the property may be exempt. In Owen, a Florida debtor sought to avoid his ex-wife’s judicial lien on a condominium that became exempt property after the lien had already attached to the property. Florida law was clear that a judicial lien that attaches to property before it qualifies as exempt property continues in the property, notwithstanding the later claim of exemption. “Pre-existing liens, then, are in effect an exception to the Florida homestead exemption.” Id. at 307, 111 S.Ct. at-. Instinctively, it would seem that a debtor’s State Exemptions should be only as protective as the state’s laws provide — that the scope of a State Exemption," }, { "docid": "16616707", "title": "", "text": "blocked in this fashion. The language cited by the Scarpino court supporting its conclusion is of no persuasive force in the absence of any discussion of the issues and facts presented by the eases in which the language appears. CONCLUSION The debtor’s motion to avoid Weeks’ judicial hen is granted, and her plan is con firmed. The debtor shall submit a proposed order in accordance with this decision. . Weeks also relies In re Owen, 961 F.2d 170 (11th Cir.1992) in support of his position. This reliance appears misplaced. In Owen, a creditor obtained a judgment and recorded it in Sarasota County, Florida. Thereafter, the debtor purchased a condominium in Sarasota County. At that time, Florida law did not permit the debtor to claim a homestead exemption in the condominium. A year after she acquired the condominium, Florida law changed to permit the exemption. The Eleventh Circuit properly refused to permit the debtor to avoid the judgment lien in her subsequent bankruptcy pursuant to 11 U.S.C. § 522(f)(1). It viewed the judgment lien as comparable to a judgment lien entered against a former owner of the real properly that attached to the property before the debtor acquired it. The Supreme Court in Sanderfoot specifically noted that a debtor could not use § 522(f)(1) to avoid such a lien. Farrey v. Sanderfoot, 500 U.S. at 298-99, 111 S.Ct. at 1829-30. . In Thomas, the judgment debtors filed a chapter 7 bankruptcy after the judgment was recorded. They owned no real property at the time, and the claim was discharged. Years later, they acquired real property. When they later attempted to Sell the real property, the judgment appeared as a cloud on title. The judgment creditor refused to release the \"lien” without a court order compelling it to do so. It contended that, although 11 U.S.C.-§ 524(a)(2) prohibited it from attempting to enforce the lien, nothing compelled it to voluntarily release the lien. The bankruptcy court disagreed with the creditor's contention that it had a judgment lien in the first place." }, { "docid": "12645337", "title": "", "text": "In the instant case, the bankruptcy court adopted the reasoning set forth in McKinney-Jones in denying the Debtor’s motion for lien avoidance. The opposing view concluded that a judicial lien that attaches to a debtor’s homestead pursuant to the amended Section 706 impairs the exemption within the meaning of § 522(f) and may be avoided. See In re Richardson, 224 B.R. 804 (Bankr.N.D.Okla.1998); In re McMasters, 220 B.R. 419 (Bankr.N.D.Okla.1998). In these cases, after exhaustive analysis of the issue, the bankruptcy courts held that § 522(f) preempts state exemption law in determining whether a judicial lien impairs the homestead exemption. We agree with the reasoning of these cases. Section 522(f)(1)(A) permits a debtor to avoid a creditor’s lien in exempt property if the debtor’s interest in that property would be exempt but for the existence of the lien. The debtor’s avoiding power under this section may be employed only to the extent that the lien impairs the debtor’s exemption. Whether a judicial lien “impairs” a debtor’s exemption under § 522(f) is a question of federal law. Heape v. Citadel Bank (In re Heape), 886 F.2d 280, 282 (10th Cir.1989). The United States Supreme Court addressed the issue of determination of impairment in the case of Owen v. Owen, 500 U.S. 305, 111 S.Ct. 1833, 114 L.Ed.2d 350 (1991). In Owen, the Supreme Court held that a judicial lien on property claimed exempt under a state law may be avoided under § 522(f), even if state law limits the circumstances under which the property may be exempt. The debtor’s ex-wife obtained a judgment lien against the debtor. The judgment was properly recorded, but the debtor did not own any real property at that time. Several years later, the debtor acquired property in the county, and under the applicable Florida law, the ex-wife’s judgment hen attached to that property at the time of purchase. Florida’s homestead exemption statute was subsequently amended such that the debtor was able to claim the property as an exempt homestead. Under Florida law, a judicial lien that attaches to property before it qualifies as exempt property continues" }, { "docid": "16616706", "title": "", "text": "lien “fixed,” § 522(f)(1) is not available to void the hen. Farrey v. Sanderfoot, 500 U.S. 291, 299-300, 111 S.Ct. 1825, 1830-31, 114 L.Ed.2d 337. The Court reads this passage to mean that § 522(f)(1) may not be used to avoid a judgment hen that is created as part and parcel of the creation of the interest that it encumbers. Thus, a state legislature may not immunize judgment hens that have no logical connection with the interest acquired from avoidance under § 522(f)(1) by enacting statutes that state that a judgment hen is deemed to attach to the judgment debtor’s real property simultaneously with the debt- or’s acquisition of the property interest. The Court also beheves that the Scarpino court used faulty reasoning in construing the New York statute. A legislature may effectively provide that a debtor may not transfer away an acquired property interest fast enough to prevent a previously recorded judgment hen from attaching. The hen need not attach at the very instant the interest is acquired for the conveyance to be statutorily blocked in this fashion. The language cited by the Scarpino court supporting its conclusion is of no persuasive force in the absence of any discussion of the issues and facts presented by the eases in which the language appears. CONCLUSION The debtor’s motion to avoid Weeks’ judicial hen is granted, and her plan is con firmed. The debtor shall submit a proposed order in accordance with this decision. . Weeks also relies In re Owen, 961 F.2d 170 (11th Cir.1992) in support of his position. This reliance appears misplaced. In Owen, a creditor obtained a judgment and recorded it in Sarasota County, Florida. Thereafter, the debtor purchased a condominium in Sarasota County. At that time, Florida law did not permit the debtor to claim a homestead exemption in the condominium. A year after she acquired the condominium, Florida law changed to permit the exemption. The Eleventh Circuit properly refused to permit the debtor to avoid the judgment lien in her subsequent bankruptcy pursuant to 11 U.S.C. § 522(f)(1). It viewed the judgment lien as comparable" }, { "docid": "12275889", "title": "", "text": "does not provide a basis for avoidance of respondent's lien.... Finally, I must comment on the Court’s conclusion 'that Florida’s exclusion of certain liens from the scope of its homestead protection does not achieve a similar exclusion from the Bankruptcy Code's lien avoidance provision.’ ... The conclusion is flawed. Petitioner would not have been entitled to a homestead exemption at the time respondent's judicial lien attached; for that reason the lien avoidance provisions in § 522(f) of the Bankruptcy Code are not applicable. Owen, 500 U.S. at 316-18 and 321, 111 S.Ct. at 1840 and 1842. On remand, the Eleventh Circuit Court of Appeals also indicated that the impairment issue could be analyzed differently from the reasoning set forth in the Supreme Court’s decision. After reaching the conclusion that there was never a fixing of a lien on an interest of the debtor, since the lien fixed simultaneously with the debtor's acquisition of the property, the Eleventh Circuit continued: Because the lien was in existence prior to the property becoming homestead exempt, to permit the debtor's avoidance of this judicial lien would give the debtor a greater interest in the properly than he had prior to the filing of the bankruptcy petition. It is clear that prior to the petition the lien was validly attached to the property. Under Florida law, constitutional homestead property is exempt from the claims of creditors not secured by a lien on the property. See Fla.Stat. § 222.20; Fla. Const, art. 10, § 4. Florida law allows, however, attachment of a judgment lien where the lien came into existence prior to the property attaining homestead exemption status, as in this case. Fla. Const, art 10, § 4. See Bessemer v. Gersten, 381 So.2d 1344 (Fla. 1980).... Thus, the fixing of the lien does not impair an exemption to which the debtor would have been entitled but for the lien.... In re Owen, 961 F.2d at 173. Although the Eleventh Circuit indicated that it would have analyzed the issue differently and that it believed that avoidance of the lien in the manner directed by the Supreme" }, { "docid": "7787632", "title": "", "text": "PER CURIAM: The bankruptcy court and the district court concluded that 11 U.S.C.A. § 522(f) of the Bankruptcy Code did not permit a debtor to avoid a judicial lien on Florida homestead property when state law creating the homestead exemption did not make the homestead property exempt from such lien. We affirmed. In re Owen, 877 F.2d 44 (11th Cir.1989). The Supreme Court granted certiorari, Owen v. Owen, 495 U.S. 929, 110 S.Ct. 2166, 109 L.Ed.2d 496 (1990), and reversed and remanded for further consideration, — U.S.-, 111 S.Ct. 1833, 114 L.Ed.2d 350 (1991). After reconsideration on remand, we affirm the judgment of the district court. In 1975, Helen Owen, the creditor, obtained a judgment against the debtor Dwight Owen, her former husband, for approximately $160,000. The judgment was recorded in Sarasota County, Florida, in July 1976. The debtor did not at that time own any property in Sarasota County. Under Florida law, the judgment would attach to after-acquired property. B.A. Lott, Inc. v. Padgett, 153 Fla. 304, 14 So.2d 667 (1943). In 1984, the debtor purchased a condominium in Sarasota County, which immediately became subject to the creditor’s judgment lien upon his acquiring title. Porter-Mallard Co. v. Dugger, 117 Fla. 137, 157 So. 429 (1934). One year later, Florida amended its homestead law so the debtor’s condominium, which previously had not qualified as a homestead, thereafter did. Under the Florida Constitution, homestead property is “exempt from forced sale ... and no judgment, decree, or execution [can] be a lien thereon_” Fla. Const. art. 10, § 4(a). The homestead property is not exempt from forced sale or lien of judgment on the property prior to the property acquiring homestead status. Bessemer v. Gersten, 381 So.2d 1344, 1347 n. 1 (Fla.1980); Aetna Ins. Co. v. LaGasse, 223 So.2d 727, 728 (Fla.1969); Pasco v. Harley, 73 Fla. 819, 824-825, 75 So. 30, 32-33 (1917); Volpitta v. Fields, 369 So.2d 367, 369 (Fla.App.1979). See also Lyon v. Arnold, 46 F.2d 451, 452 (5th Cir.1931). The debtor filed a Chapter 7 bankruptcy petition in 1986, claiming that the condominium, as Florida homestead property, was" }, { "docid": "7787633", "title": "", "text": "debtor purchased a condominium in Sarasota County, which immediately became subject to the creditor’s judgment lien upon his acquiring title. Porter-Mallard Co. v. Dugger, 117 Fla. 137, 157 So. 429 (1934). One year later, Florida amended its homestead law so the debtor’s condominium, which previously had not qualified as a homestead, thereafter did. Under the Florida Constitution, homestead property is “exempt from forced sale ... and no judgment, decree, or execution [can] be a lien thereon_” Fla. Const. art. 10, § 4(a). The homestead property is not exempt from forced sale or lien of judgment on the property prior to the property acquiring homestead status. Bessemer v. Gersten, 381 So.2d 1344, 1347 n. 1 (Fla.1980); Aetna Ins. Co. v. LaGasse, 223 So.2d 727, 728 (Fla.1969); Pasco v. Harley, 73 Fla. 819, 824-825, 75 So. 30, 32-33 (1917); Volpitta v. Fields, 369 So.2d 367, 369 (Fla.App.1979). See also Lyon v. Arnold, 46 F.2d 451, 452 (5th Cir.1931). The debtor filed a Chapter 7 bankruptcy petition in 1986, claiming that the condominium, as Florida homestead property, was exempt from administration by the bankruptcy court. The debtor sought avoidance of the creditor’s judgment lien under 11 U.S.C.A. § 522(f). The bankruptcy court, district court, and a panel of this Court denied relief. The Supreme Court reversed and remanded, leaving for our consideration on remand whether there was a fixing of a lien on an interest of the debtor and whether the Florida statute extending the homestead exemption was a taking. Ill S.Ct. at 1838. We hold that there was no fixing of a lien on an interest of the debtor. “Some courts have held [Section 522(f)] inapplicable to a lien that was already attached to property when the debtor acquired it, since in such case there never was a ‘fixing of a lien’ on the debtor’s interest.” Ill S.Ct. at 1838. Under Florida law, the creditor’s recorded judgment became a lien upon the real property thereafter acquired by the judgment debtor at the same time that title was acquired in 1984. B.A. Lott, Inc. v. Padgett, 153 Fla. 304, 14 So.2d 667 (1943)." }, { "docid": "13828939", "title": "", "text": "entered. Id. The rule articulated in Pasco and Peel has not changed since the Florida Supreme Court long ago issued those decisions, and courts continue to recognize and apply the rule, e.g., Bessemer v. Gersten, 381 So.2d 1344, 1347, n. 1 (Fla.1980) (“In general, for a lien to be enforceable against homestead property, its existence must be established as of the time the homestead status was acquired.”); In re Cooper, 202 B.R. 319, 322 (Bankr.M.D.Fla. 1995), (citing Bessemer and acknowledging that pre-existing liens are excepted from Florida’s homestead exemption) aff'd, 197 B.R. 698 (M.D.Fla.1996). Applying the rule set forth by the Florida Supreme Court to this ease, the Court finds that the Siblings’ judgment lien antedates the debtors’ eligibility to claim the Dog Leg Property as their exempt homestead and that, therefore, the debtors’ right to claim the homestead exemption for this property is subject to the Siblings’ pre-existing lien. Pursuant to Pasco, the Dog Leg Property’s subsequent change in status to the debtors’ homestead, in December 2008, does not destroy the Siblings’ judgment lien which had earlier attached to the property. Pursuant to Peel, a homeowner cannot use a claim of homestead as a sword to extinguish preexisting liens. In this case, as was the case in Peel, the intent to eventually occupy the property as the homestead is insufficient. Rather, actual occupancy or a manifest intention to immediately occupy the property is required. The Dog Leg Property is subject to the Siblings’ judgment lien, and the debtors are not entitled to claim any homestead exemption. The Court, therefore, will partially sustain the Siblings’ objection and hold that, as to the Siblings’ judgment, the lien is superior to the debtors’ claim of exemption. Accordingly, the Court partially overrules and partially sustains the Siblings’ objection (Doc. No. 17). As to all other creditors, the debtors are entitled to claim the Dog Leg Property as their exempt homestead on the petition date, but, as to the Siblings, their judgment lien is superior to the debtors’ claim of homestead exemption. A separate order shall be entered consistent with this Memorandum Opinion simultaneously" }, { "docid": "8347915", "title": "", "text": "GOLDBERG, Senior Circuit Judge: In this case, a creditor executed a judicial lien on the debtor’s property less than ninety days before the debtor’s petition for bankruptcy. Between the date of execution and the date of the petition, the debtor was married, thereby exempting the property under state law from the claims of every creditor except the lienor. We are asked to decide whether the execution of the lien constitutes a preference voidable by the debtor pursuant to sections 522(h) and 547 of the Federal Bankruptcy Code. We hold that it does, and affirm the judgment below. Facts and Procedural History Howard Levine and others guaranteed a debt of National Vehicle Leasing, Inc. to Deel Rent-A-Car, Inc. (“Deel”). Deel subsequently obtained a judgment against Levine in Florida state court. On January 9, 1980, Deel perfected the judgment and executed a lien against all real property owned by Levine in Broward County, Florida. At the time, Levine owned a condominium in Broward County, but was not married. On March 13, 1980, Levine was married and brought his wife into his residence in the Broward condominium. On March 31, 1980, within 90 days of Deel’s execution of the lien, Levine filed a voluntary petition for bankruptcy under Chapter 7 of the Bankruptcy Code (“Code”). The case was heard on June 10, 1980, in the United States Bankruptcy Court for the Southern District of Florida. Deel filed an amended adversary complaint, seeking, inter alia, to prevent Levine’s discharge. Levine counterclaimed, seeking to avoid the judgment lien as a preference, pursuant to sections 522(h) and 547(b) of the Code. In an amended counterclaim, Levine also sought to avoid the lien as an impairment of his homestead exemption pursuant to section 522(f) of the Code. The bankruptcy court ruled against Levine on the section 522(f) claim, holding that under Florida law the property acquired homestead status when Levine was married, but that the homestead exemption was not effective against a judgment lien that had attached before that date. Levine did prevail, however, on his section 547(b) claim. The court avoided the lien, holding that all" }, { "docid": "12645338", "title": "", "text": "law. Heape v. Citadel Bank (In re Heape), 886 F.2d 280, 282 (10th Cir.1989). The United States Supreme Court addressed the issue of determination of impairment in the case of Owen v. Owen, 500 U.S. 305, 111 S.Ct. 1833, 114 L.Ed.2d 350 (1991). In Owen, the Supreme Court held that a judicial lien on property claimed exempt under a state law may be avoided under § 522(f), even if state law limits the circumstances under which the property may be exempt. The debtor’s ex-wife obtained a judgment lien against the debtor. The judgment was properly recorded, but the debtor did not own any real property at that time. Several years later, the debtor acquired property in the county, and under the applicable Florida law, the ex-wife’s judgment hen attached to that property at the time of purchase. Florida’s homestead exemption statute was subsequently amended such that the debtor was able to claim the property as an exempt homestead. Under Florida law, a judicial lien that attaches to property before it qualifies as exempt property continues in the property, notwithstanding the later claim of exemption. The debtor commenced bankruptcy proceedings, claimed the real estate as exempt, and sought to avoid the judicial hen under § 522(f)(1). The ex-wife henholder argued that the Florida homestead exemption was not as-sertable against pre-existing judicial hens, and thus the hen did not impair the exemption. However, the Court held that the question to consider in determining whether avoidance is possible under § 522(f) is to ask “not whether the hen impairs an exemption to which the debtor is in fact entitled, but whether it impairs an exemption to which he would have been entitled but for the lien itself.” Owen, 500 U.S. at 310-311, 111 S.Ct. 1833. The Court concluded that “Florida’s exclusion of certain liens from the scope of its homestead protection does not achieve a similar exclusion from the Bankruptcy Codes’s lien avoidance provision.” Id. at 313-314, 111 S.Ct. 1833. Owen illustrates the supremacy of federal law over state law in the field of bankruptcy. Central to Owen’s analysis is the proposition that," }, { "docid": "12275874", "title": "", "text": "provides that resi dents of Florida shall not be entitled to the federal exemptions of subsection (d). § 222.20, Florida Statutes. Consequently, in bankruptcy cases involving debtors who are residents of Florida, debtors may exempt from property of the estate pursuant to § 522(b) property that is exempt under Florida law. Article X, Section 4 of the Florida Constitution provides that a homestead “shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon,” except for circumstances not present in this case. It is well-established in Florida, however, that homestead property is not exempt from the lien of a judgment which attached to the property prior to the property acquiring its homestead status. See Bessemer v. Gersten, 381 So.2d 1344 (Fla.1980). Pre-existing liens, therefore, are excepted from Florida’s homestead exemption. The Debtor has claimed his homestead property as exempt, and now seeks to avoid the judicial lien asserted by Gibson. For a debtor to avoid a judicial lien under Section 522(f), two elements must be present: first, the lien at issue must have fixed on an interest of the debtor in property, and second, the lien must impair an exemption to which the debtor would have been entitled. Both elements must be present for the lien to be avoided. Resolution of this case is controlled by the decisions of the United States Supreme Court in Owen v. Owen, 500 U.S. 305, 111 S.Ct. 1833, 114 L.Ed.2d 350 (1991), and, on remand, the Eleventh Circuit Court of Appeals in In re Owen, Owen v. Owen, 961 F.2d 170 (11th Cir.1992), cert. den. 506 U.S. 1022, 113 S.Ct. 659, 121 L.Ed.2d 584 (1992). In the Owen case, which arose under Florida law, the debtor’s former wife obtained a judgment against the debtor in 1975 and recorded the judgment in 1976. The debtor did not own any real property at the time that the judgment was recorded. In 1984, the debtor purchased a condominium in Sarasota County, Florida. At the time he purchased the condominium, Florida’s homestead exemption law did not apply" }, { "docid": "21007968", "title": "", "text": "from non-exempt to exempt property and any attempts by debtor to conceal the conversion. Mackey, 158 B.R. at 512; Elliott, 79 B.R. at 946. Here, Receiver and Trustee suggest that Debtor switched homesteads simply to keep the approximately $500,000 equity in the house, out of the hands of his creditors. (Doc. 69). Debtor, however, responds that he simply could not afford two homes due to his declined income, and consequently chose the Ponte Vedra house as his homestead over the Laurel Street house. (Doc. 68). The timing of creating homestead status in the Ponte Vedra house does not support fraud because Debtor moved into the house over a year before filing his Chapter 7 petition. Debtor moved into the Ponte Vedra house on May 11, 1995 and filed his bankruptcy petition on June 14,1996. Also, Debtor made no attempt to conceal his actions. Therefore, the two important indicators of fraud, timing and concealing, are not in the objectors’ favor and do not show that Debtor intended to defraud his creditor when he moved from the Laurel Road house to the Ponte Vedra house. Receiver and Trustee have not met their burden in showing that the exemption should be disallowed upon the basis of fraudulent conversion of non-exempt to exempt asset. Thus, the objection should be overand the exemption should be allowed. 3. Ponte Vedra House as Property of the Estate Next, Receiver and Trustee argue that Debtor cannot'claim the Ponte Vedra house as exempt based on the following two reasons: (1) The West Virginia District Court ordered Debtor to turn over the deed of the Ponte Vedra house to the Receiver, and consequently, Debtor has no equitable interest in the house pursuant to 11 U.S.C. 541(d); and (2) Collateral Estoppel precludes Debtor from exempting the Ponte Vedra house because the West Virginia District Court Order held that the Ponte Vedra house is not exempt under West Virginia law. (Doc. 69, at 21-24). This Court has recently rendered a decision on these identical issues, holding that the same West Virginia District Court’s Order at issue in the present case does not" }, { "docid": "10242652", "title": "", "text": "of § 522(g) and (h) is supported by the recent case of Deel Rent-A-Car, Inc. v. Levine, 721 F.2d 750 (11th Cir.1983). In Deel Rent-A-Car, the Eleventh Circuit sought to reconcile a conflict between a Florida law which made an exemption ineffective as to certain lien creditors and the provisions of § 522(g) and (h) allowing the debtor to claim a post-petition exemption in recovered property. The court held that the lien against the debtor’s condominium was a preference under § 547 of the Bankruptcy Code which could be avoided by the debtor under § 522(h) and exempted even though to allow the exemption would be in conflict with Florida state law governing exemptions. The court held that assuming all the elements of § 522(g) and (h) were met a debtor could protect his exemptions by avoiding a transfer and claiming a post-petition exemption if the debtor could have exempted the property if it had not been transferred. In Deel Rent-A-Car, if the creditor had not received a preferential judgment lien on the condominium prior to the filing of the bankruptcy petition, the debtor, Levine, could have exempted the property in its entirety under Florida law. Thus, the Court held that if the property had not been transferred (i.e., the acquisition of a judgment lien) the debt- or could have claimed the exemption and, therefore, the debtor had standing under § 522(h) to avoid the preference and exempt the property. The apparent intent of Virginia Code § 34-17 requiring the filing of a homestead deed to exempt wages prior to the return date of the writ of garnishment is to make the debtor, should he desire to exempt such property, do so before he loses any interest in the property. Once the court orders the transfer of wages to the creditor, the debtor no longer has any interest in the property. See Eggleston v. Third National Bank of Nashville, 19 B.R. 280 (M.D.Tenn.1982). This law protects the creditor from fear of a subsequent exemption by the debtor and places a stamp of finality on the matter. If the debtor does" }, { "docid": "12275879", "title": "", "text": "filing of the petition,” not when the lien fixed. 11 U.S.C. §§ 522(f), (b)(2)(A). We follow the language of the Code. Id. at 314 n. 6, 111 S.Ct. at 1838 n. 6. Based on these conclusions, the Supreme Court held that the pre-existing lien on the debtor’s residence did in fact impair an exemption to which he would have been entitled, even though Florida law would not have allowed the exemption since the lien attached before the residence acquired its homestead status: On the basis of the analysis we have set forth above with respect to federal exemptions, and in light of the equivalency of treatment accorded to federal and state exemptions by § 522(f), we conclude that Florida’s exclusion of certain liens from the scope of its homestead protection does not achieve a similar exclusion from the Bankruptcy Code’s lien avoidance provision. Id. at 313-14, 111 S.Ct. at 1838. The Fixing of a Lien on an Interest of the Debtor in Property The Supreme Court then remanded the Owen case to the Eleventh Circuit Court of Appeals to consider the first element of Section 522(f), whether or not the lien fixed on an interest of the debtor. On remand, the Eleventh Circuit determined that the debtor was not permitted to avoid the lien because “there was no fixing of a lien on an interest of the debtor.” In re Owen, 961 F.2d at 172. The Eleventh Circuit concluded that “... there was never a fixing of a lien on an interest of the debtor, as the debtor had no property interest prior to the fixing of the lien.” (emphasis in original) Id. The Eleventh Circuit found that there was never a time when the debtor had a property interest in the condominium, since the pre-existing judgment attached as a lien on the property at the time the property was acquired. The Eleventh Circuit relied on Florida case law which held that a recorded judgment is a general lien which attaches to after-acquired property simultaneously with the purchase of such property. Id. citing Allison on the Ocean, Inc. v. Paul’s" } ]

[ { "docid": "22608074", "title": "", "text": "contained either direct references to their suspensions or copies of letters sent to their parents advising them of the suspension. On the basis of this evidence, the three-judge court declared that plaintiffs were denied due process of law because they were “suspended without hearing prior to suspension or within a reasonable time thereafter,” and that Ohio Rev. Code Ann. § 3313.66 (1972) and regulations issued pursuant thereto were unconstitutional in permitting such suspensions. It was ordered that all references to plaintiffs’ suspensions be removed from school files. Although not imposing upon the Ohio school administrators any particular disciplinary procedures and leaving them “free to adopt regulations providing for fair suspension procedures which are consonant with the educational goals of their schools and reflective of the characteristics of their school and locality,” the District Court declared that there were “minimum requirements of notice and a hearing prior to suspension, except in emergency situations.” In explication, the court stated that relevant case authority would: (1) permit “[ijmmediate removal of a student whose conduct disrupts the academic atmosphere of the school, endangers fellow students, teachers or school officials, or damages property”; (2) require notice of suspension proceedings to be sent to the student’s parents within 24 hours of the decision to conduct them; and (3) require a hearing to be held, with the student present, within 72 hours of his removal. Finally, the court stated that, with respect to the nature of the hearing, the relevant cases required that statements in support of the charge be produced, that the student and others be permitted to make statements in defense or mitigation, and that the school need not permit attendance by counsel. The defendant school administrators have appealed the three-judge court’s decision. Because the order below granted plaintiffs’ request for an injunction — ordering defendants to expunge their records — this Court has jurisdiction of the appeal pursuant to 28 XL S. C. § 1253. We affirm. II At the outset, appellants contend that because there is no constitutional right to an education at public expense, the Due Process Clause does not protect against" } ]

[ { "docid": "14217201", "title": "", "text": "ON REMAND FROM THE UNITED STATES SUPREME COURT Before BLACK, RONEY and COX, Circuit Judges. COX, Circuit Judge: This case is before us on remand from the Supreme Court for reconsideration in light of the Court’s decision in Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). This case involves a 42 U.S.C. § 1983 action brought by thirteen elementary school students (“Plaintiffs”) against Tracey Morgan, their teacher; Assistant Principal R.G. Roberts; Zannie Billingslea, a police officer assigned to the school; Clayton County, Georgia; and the Clayton County School District. The students contend that Roberts, Morgan, and Billingslea (“Defendants”) subjected them to “strip searches,” thereby violating their Fourth Amendment rights. The district court found the searches unconstitutional, but granted summary judgment in favor of all of the defendants on all claims. On appeal, we held that this mass search, without individualized suspicion, was unreasonable and thus a violation of the Fourth Amendment. Thomas v. Roberts, 261 F.3d 1160, 1177 (11th Cir.2001). However, we affirmed the district court’s grant of qualified immunity to the individual defendants on the children’s claims. Id. We also affirmed the district court’s grant of summary judgment in favor of the school district and the county and the district court’s denial of declaratory and injunctive relief. Id. The Supreme Court vacated our prior judgment and remanded the case, instructing us to reconsider the judgment in light of the Court’s decision in Hope v. Pelzer. Thomas v. Roberts, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 829 (2002). We asked the parties to file supplemental briefs addressing the issue on remand. All parties have done so. Having considered both the briefs and Hope, we conclude that Hope does not dictate a change in the outcome of this case. We reinstate our prior decision in its entirety and supplement, by this opinion, our previous discussion of qualified immunity. This case involved the mass “strip search” of a class of fifth grade students in October 1996. An envelope containing $26 disappeared from Morgan’s desk after Morgan saw a student place it on the desk. Morgan went" }, { "docid": "17252776", "title": "", "text": "indifferent” to the rights of these students. To do this, plaintiffs can present evidence either (1) the district was on notice of a history of “widespread prior abuse” due to prior incidents of intrusive searches in Clayton County schools or (2) the need to train regarding searches of students’ persons “was so obvious and the likelihood of constitutional violations was highly predictable so that liability attaches for this single incident.” Gold, 151 F.3d at 1351-52. The Court will address the evidence submitted in this case concerning each method of proof. a. Prior Incidents of Intrusive Searches Plaintiffs contend that “Clayton School Districts [sic] history of unguided personal searches is well demonstrated in the record.” (Pis.’ Br. [81] at 37.) To support this statement, plaintiffs offer the affidavit of Katherine Lewis, an ACLU law clerk, to support their contention that prior incidents of searches should have put the school district on notice that other unconstitutional searches had occurred within the school district. In this affidavit, Lewis states that she reviewed 296 incident reports from the CCPD. (Lewis Aff. at ¶ 4.) Of the 296 reports, Lewis avers that 45 involved searches of students, 12 of the 45 involved searches that were conducted by both police and school officials, and 24 of the searches involved solely school officials. (Id. at ¶ 5.) Further, Lewis declares that one report involved a search of an entire group of high school students conducted by a Clayton County police officer for two lost Nintendo cartridges. (Id. at ¶ 7.) Another report describes an incident where a police officer frisked a student and performed a pat-down of the student’s crotch area. (Id. at ¶ 8.) Another search involved a police officer and school administrator conducting a pat-down of a female student. (Id. at ¶ 10.) Finally, another report documented a pat-down search of a male student’s front pocket in the middle of a school cafeteria. (Id. at ¶ 11.) Although Lewis’ affidavit explains that these events occurred, the affidavit does not give factual detail in order to determine whether any of these searches were performed unconstitutionally and" }, { "docid": "17252791", "title": "", "text": "notes that, unlike the hypothetical offered in City of Canton, Clayton County does not know to “a moral certainty” that DARE officers will conduct searches of students in the schools. Indeed, plaintiffs have been unable to cite the Court to one other instance in which a DARE officer conducted a search of a student in a Clayton County school: an unsurprising result given the fact that DARE officers are specifically instructed not to act in an enforcement capacity unless a clear emergency exists. Moreover, as officers receive training on searches, generally, plaintiffs have not demonstrated what additional training they envision on the concept of an “emergency.” Further, as the officers receive training on the heightened probable cause standard for searches, plaintiffs have not demonstrated how training regarding the lower level of suspicion necessary for a search of students would have caused an officer to be more reticent in conducting such searches. Accordingly, as plaintiffs are unable to show that Clayton County was deliberately indifferent in its alleged failure to train and supervise regarding student searches, the Court GRANTS defendant Clayton County’s motion for summary judgment as to this issue. 2. Failure to Institute Procedures to Address Internal Affairs Complaints and Failure to Investigate and Discipline Billingslea Next, plaintiffs contend that Clayton County failed to develop a comprehensive system to review internal affairs unit complaints. Specifically, plaintiffs argue that Clayton County does not log into internal affairs each complaint made against a particular officer and that it does not investigate all complaints. (Pis.’ Br. [82] at 33-34.) Plaintiffs contend that had the internal affairs investigation system worked properly, Officer Billingslea’s past misconduct would have been monitored and his misconduct would not have continued unchecked. (Id. at 35.) Although, as discussed supra, a municipality may be held liable for the “persistent failure to take disciplinary action against officers,” plaintiffs have failed to make a showing that such a persistent failure exists in the Clayton County Police Department. See Fundiller, 777 F.2d at 1443. Although discussing in vague terms the inadequacy of the procedures for in vestigating complaints lodged against officers, plaintiffs cannot" }, { "docid": "21886297", "title": "", "text": "PER CURIAM. In May 1979, plaintiff Diane Doe, a student at Highland Junior High School in Highland, Indiana, and four other students filed a civil rights complaint under 28 U.S.C. §§ 1343(3) and 1343(4). The defendants were Omer Renfrow, Superintendent of the Highland, Indiana, Town School District; George Kurteff, Principal of the Highland Junior High School; five members of the Highland Town School District Court; Al Prendergast, Highland Police Chief; and Patricia Little, a trainer of drug-detecting canines. Plaintiff requested a class certification of other students at Highland High School and Highland Junior High School. The gravamen of the complaint was that plaintiff and others were illegally sniffed by police dogs during school hours and pocket-searched if a dog alerted to them in order to determine whether they possessed controlled substances and contraband. As part of the drug investigation, plaintiff alleged that she and three other students “were compelled to remove their clothing and submit to visual inspection by defendants’ agents” (Par. 17 of complaint). The complaint also charged that 2,780 students at Highland High School were subject to the canine sniffing and that 17 of them thereafter “were summarily suspended,.expelled, or compelled to withdraw from attendance at school” (Par. 16). According to plaintiff, defendants’ practice was “unsupported by particularized facts, reasonable suspicion or probable cause to believe that any of the persons” subject to the canine drug investigation would possess controlled substances (Par: 28). Alleging that defendants’ acts violated the Fourth and Fourteenth Amendments in particular, Diane Doe sought $50,000 in actual damages and an equal amount in punitive damages, as well as declaratory and injunctive relief. A hearing was held on June 7, 1979, with respect to various motions of the parties. On August 30, 1979, Judge Sharp dismissed the action on the merits as to the Highland police chief and dog trainer Patricia Little because they did not participate in the strip search. He granted defendant school officials summary judgment on the issue of monetary damages for the body search of Diane Doe. However, he held that she was entitled to declaratory relief upon the court’s finding" }, { "docid": "17252699", "title": "", "text": "statement and that she and Roberts disagreed as to the exact authorization given by Roberts to Morgan regarding the scope of the search that was conducted. (Matthews Dep. at 108-09.) Matthews allowed Morgan to write a third statement at home and submit it to him the following day. {Id. at 109.) The Clayton County School District launched an investigation into the searches. One of the two Executive Directors of the School District, Dr. Ozias Pearson, became involved in the investigation and assigned Dr. Marty Whiteman, one of the two directors of personnel for the school district, to interview Roberts and Matthews regarding the searches and to accompany Dr. Bill Chavis to interview Morgan. (Whiteman Dep. at 21.) These officials did not interview any of the students involved, but simply relied on the students’ statements written the day after the event. (Id. at 22.) Whiteman concluded, in his report to the school district, that the searches were not “anything out of the ordinary” and were not “strip searches.” (Id. at 51; Pis.’ School Exs. [84] at Ex. 9.) III. The Police Department Investigation On November 1, 1996, the Clayton County Police Department (hereinafter “CCPD”) first heard about the searches after a media representative called the CCPD Criminal Investigation Division. (Pis.’ Resp. [82] at ¶¶ 31-32; Def. Clayton County’s Stmt, of Mat. Facts [72] at ¶¶ 31-32.) Upon receipt of this call from the media, the matter was immediately referred to Clayton County Chief of Police Ronnie Clackum. (Pis.’ Resp. [82] at ¶ 33; Def. Clayton County’s Stmt, of Mat. Facts [72] at ¶ 33.) Clackum contacted Lieutenant Wally Woodcock to determine if a search had been performed. Contrary to the usual practices of the CCPD, Billing-slea had failed to complete an incident report about the searches and, when asked about the searches, Billingslea denied any participation in the searches. (Pis.’ Resp. [82] at ¶¶ 35-37; Def. Clayton County’s Stmt, of Mat. Facts [72] at ¶¶ 35-37.) That same day, Clackum met with Billing-slea to discuss the incident and assigned Woodcock to investigate the matter. (Pis.’ Resp. [82] at ¶¶ 38-39; Def." }, { "docid": "17252816", "title": "", "text": "or their designated representatives, possess the authority to conduct a reasonable search of students and their possessions when on school property. The administrator is required to have only reasonable suspicion to conduct such searches.” (Id. at Bass and Warren Affs. at Ex. 1.) . This theory would more likely be applicable in a situation where a plaintiff was fired by a municipality. In such a situation, there is typically a decision made by a municipal employee who is not the final decisionmaker because his firing decisions are generally reviewable by a civil service board. In such an instance, although the original decision to fire by the plaintiff's supervisor is not the final decision on the matter, the subsequent approval by a review board would serve as the final decision chargeable to the municipality. This appears to be the type of situation contemplated by the Supreme Court in Praprot-nik. . Clayton County has moved for summary judgment as to any claims that they are liable for the strip searches of the girls. The county notes that plaintiffs do not allege in their amended complaint that Billingslea participated in any searches of the girls' persons. Accordingly, as plaintiff can present no evidence that Billingslea participated in the search of the female students in this case, liability cannot flow to the municipality for the allegedly unconstitutional searches of the girls. Hence, the Court grants summary judgment to Clayton County as to any claim made by the female students who were searched. . That said, holding that, as a constitutional matter, Clayton County was not required to offer more training in the area of school searches does not mean that such training might not be a prudent idea for officers who will regularly be in the school system. . Curiously, plaintiffs have submitted thirteen internal affairs written complaints regarding Officer Billingslea, despite their contention that these types of complaints are not tracked according to the officer against whom the complaint is lodged. . Such a failure to institute a proper system to investigate citizen complaints and discipline officers was found to have been \"deliberately" }, { "docid": "17252787", "title": "", "text": "County School District amounts to a policy. See Fundiller v. City of Cooper City, 777 F.2d 1436, 1443 (11th Cir.1985) (“a persistent failure to take disciplinary action against officers can give rise to the inference that a municipality has ratified conduct, thereby establishing a ‘custom’ within the meaning of Monell”) (emphasis added). Accordingly, defendant Clayton County School District is entitled to summary judgment as to this issue. C. Municipal Liability Claims Against the Clayton County Police Department Plaintiffs argue that Clayton County should be liable for Officer Billingslea’s unconstitutional search of the boys. First, plaintiffs contend that Clayton County failed to institute a policy “dealing with the authority of DARE officers to conduct strip search[es]” and failed to train its DARE officers “on the proper standards and procedures for conducting strip searches in schools.” (Pis.’ Br. [82] at 27.) Second, plaintiffs claim that “Clayton County’s failure to develop a comprehensive system to review Internal Affairs unit complaints amounts to a deliberate indifference to its responsibility to supervise its employees.” (Id. at 33.) ' 1. Failure to Train with Regard to Student Searches As discussed supra, in order to prove that the county is liable for a failure to train or supervise, plaintiffs must show that Clayton County was “deliberately indifferent” to the rights of the students in this case. Plaintiffs may do this by presenting evidence that (1) the district was on notice of a history of “widespread prior abuse” due to prior incidents of intrusive searches performed by officers in schools or (2) the need to train and supervise regarding police searches of students’ persons “was so obvious and the likelihood of constitutional violations was highly predictable so that liability attaches for this single incident.” Gold, 151 F.3d at 1351-52. Plaintiffs’ only proffered evidence of widespread prior unconstitutional searches performed by officers in Clayton County schools comes through the affidavit submitted by Katherine Lewis. As discussed supra, although Lewis’ affidavit explains that these events occurred, the affidavit does not support an inference that these searches were unconstitutional nor does it describe the police officers’ role in these searches, other" }, { "docid": "9461656", "title": "", "text": "the District’s files can have no effect on the students’ future in the school system or elsewhere, there is no danger that the children will be tainted with the suggestion of criminality. We further conclude, as did the district court, that retaining some record of the searches would be a valuable tool in preventing future constitutional violations in the District’s schools. Therefore, the district court did not abuse its discretion in declining to order the ex-pungement of all references to the searches. Conclusion We hold that strip searching the children without individualized suspicion in order to find an envelope containing twenty-six dollars was unreasonable and therefore a violation of the Fourth Amendment. Bil-lingslea’s limited search of Lenard Grace, however, was not unreasonable given the circumstances. Accordingly, we affirm the grant of summary judgment to all defendants on Lenard’s claims. We also affirm the court’s grant of summary judgment based on qualified immunity to the individual defendants on the claims of the remaining children. The district court’s grant of summary judgment to the District and County, as well as its denial of declaratory and injunctive relief, are similarly affirmed. AFFIRMED. . Even though the students do not contend that they were required to remove all of their clothes, we will use the phrase “strip search” for convenience to refer to all of the searches during which the children were required to remove items of clothing. . Principal Matthews has been dismissed as an appellee by agreement of counsel. We therefore will not address the district court's grant of summary judgment on the claims against him. . The facts are presented in the light most favorable to the plaintiffs. The defendants vigorously dispute many of the students’ alle-gallons, including the extent of the searches, whether some students were searched absent reasonable suspicion, and whether some students were threatened in order to get them to comply with the search. .The district court disregarded this testimony, concluding that it was inadmissable hearsay. . The police investigators concluded that Bil-lingslea had: (1) acted without probable cause in conducting the searches; (2) failed to obey known" }, { "docid": "9461657", "title": "", "text": "as well as its denial of declaratory and injunctive relief, are similarly affirmed. AFFIRMED. . Even though the students do not contend that they were required to remove all of their clothes, we will use the phrase “strip search” for convenience to refer to all of the searches during which the children were required to remove items of clothing. . Principal Matthews has been dismissed as an appellee by agreement of counsel. We therefore will not address the district court's grant of summary judgment on the claims against him. . The facts are presented in the light most favorable to the plaintiffs. The defendants vigorously dispute many of the students’ alle-gallons, including the extent of the searches, whether some students were searched absent reasonable suspicion, and whether some students were threatened in order to get them to comply with the search. .The district court disregarded this testimony, concluding that it was inadmissable hearsay. . The police investigators concluded that Bil-lingslea had: (1) acted without probable cause in conducting the searches; (2) failed to obey known caselaw on school searches; (3) violated the department's policies on school searches; (4) acted unprofessionally in lowering his pants in front of students in the boys’ restroom; and (5) improperly used threatening tactics to force the children to pull their pants down. . The students do not question the dismissal of their other constitutional claims. . We were faced with searches similar to those in this case in 1997’s Jenkins v. Talladega City Bd. of Educ. See 115 F.3d 821 (11th Cir.1997) (en banc). The plaintiffs in Jenkins were two eight-year-old girls who other stu- denis had accused of taking seven dollars from a fellow classmate. See id. at 822. Based on these accusations, the students’ teacher and a guidance counselor took the girls to a restroom where they were required to remove all of their clothes. See id. The money was not found. See id. After further investigation failed to turn up the missing money, the girls were again required to remove their clothes. See id. at 823. The girls' parents filed an 42" }, { "docid": "17252775", "title": "", "text": "(Pis.’ Br. [81] at 29.) Specifically, plaintiffs claim that the school district’s custom can be implied from the school district’s: A. Fail[ure] to promulgate policies to address standards for searches of students’ persons including parental consent, particularized suspicion and reasonableness of scope when such searches “obviously” occur; B. Fail[ure] to train or supervise teachers and administrators regarding the proper standards for searches or students’ persons including parental consent, particularized suspicion and reasonableness of scope when searches “obviously” occur; C. Establish[ment] of a custom of permitting searches of students’ persons in violation of proper standards for parental consent, particularized suspicion and reasonableness of scope; and D. Hiring and retaining Morgan with a recent felony forgery charge. (Id. at 29-30.) Although plaintiffs have not expressed their arguments in the fashion enunciated by the Eleventh Circuit discussed supra, the Court will address the claims made by plaintiffs in terms of the framework established by the Eleventh Circuit. In order for plaintiffs to survive summary judgment on this claim, plaintiffs must present evidence that the school district was “deliberately indifferent” to the rights of these students. To do this, plaintiffs can present evidence either (1) the district was on notice of a history of “widespread prior abuse” due to prior incidents of intrusive searches in Clayton County schools or (2) the need to train regarding searches of students’ persons “was so obvious and the likelihood of constitutional violations was highly predictable so that liability attaches for this single incident.” Gold, 151 F.3d at 1351-52. The Court will address the evidence submitted in this case concerning each method of proof. a. Prior Incidents of Intrusive Searches Plaintiffs contend that “Clayton School Districts [sic] history of unguided personal searches is well demonstrated in the record.” (Pis.’ Br. [81] at 37.) To support this statement, plaintiffs offer the affidavit of Katherine Lewis, an ACLU law clerk, to support their contention that prior incidents of searches should have put the school district on notice that other unconstitutional searches had occurred within the school district. In this affidavit, Lewis states that she reviewed 296 incident reports from the CCPD." }, { "docid": "17252751", "title": "", "text": "the students the equivalent of a policy decision by the school district permitting strip searches in a situation where there was no particularized suspicion? Initially, the Court must look to Clayton County School District publications and state law to determine whether the principal and assistant principal have the authority to authorize searches of students. Turning to Clayton County’s policy on search, the policy states: Students in the district have the right to privacy and security against arbitrary invasion of their personal property by school officials. However, the Board must maintain an atmosphere conducive to the pursuit of its educational goals, including a limited right to search students’ personal belongings when it is in the interest of the overall welfare of other students or is necessary to preserve the good order and discipline of the school. Lockers shall be opened or other searches conducted by not less than two members of the professional staff. (Pis.’ School Exs. [84] at Ex. 1.) In addition, the Clayton County School District’s 1996-97 Student and Parent Handbook, distributed to students, parents, teachers, and administrators contains the following language authorizing searches: “School administrators, or their designated representatives, possess the authority to conduct a reasonable search of students and their possessions when on school property. The administrator is required to have only reasonable suspicion to conduct such searches.” (Def. Clayton County School District’s Mot. for Summ.J. [65] at Bass and Warren Affs. at Ex. 1.) Moreover, the principal’s job description includes a responsibility to “[e]stablish guidelines for proper conduct and maintain student discipline” while the assistant principal must “[a]ssume responsibility for carrying out the duties of the principal during his/her absence.” (Pis.’ School Exs. [84] at Exs. 4, 5.) Moreover, plaintiffs submit the deposition testimony of several witnesses who agree that “the principal or assistant principal of á school are ‘ultimately responsible’ for authorizing any searches.” (Matthews Dep. at 24; Roberts Dep. at 23, 27, 28; Hairston Dep. at 8; Whiteman Dep. at 15-16; Warren Dep. at 15-16.) Considering this evidence, the Court concludes that principals and assistant principals have the authority to approve searches in their" }, { "docid": "9461620", "title": "", "text": "1997. Their amended complaint alleges several claims. First, the complaint alleges that Morgan, Roberts, Matthews, Billingslea, the District, and the County deprived the students “of them rights to privacy, to be secure in their persons and to be free from unreasonable searches and seizures as protected by the First, Fourth, Fifth, Ninth and Fourteenth Amendments.... ” (R.2-52 at 21.) The complaint also alleges that the defendants deprived the students of their rights to due process as protected by the Fourteenth Amendment. Finally, the complaint alleges violations of the Georgia constitution and Georgia statutes. The complaint seeks compensatory and punitive damages as well as declaratory and injunctive relief. The defendants moved for summary judgment, which the district court granted in a comprehensive ninety-one page order. First, the district court determined that the Fourth Amendment unreasonable search and seizure claim made applicable through the Fourteenth Amendment was the only viable federal claim. The district court accordingly dismissed the other federal claims and applied Fourth Amendment standards to the students’ claims. The district court proceeded to find that: (1) the strip searches were unconstitutional; (2) despite the unconstitutional nature of the searches, the individual defendants were entitled to qualified immunity; (3) the District was not liable for the actions of Morgan, Roberts, or Billingslea; (4) the County was not liable for the actions of Billingslea; and (5) the students’ state law claims should be dismissed without prejudice. The students filed a motion to reopen the case to determine whether they were entitled to injunctive and declarative relief. Upon review, the district court denied the requested relief. This appeal followed. Issues on Appeal The students contend on appeal that the district court erred in: (1) determining that the individual defendants were protected by qualified immunity; (2) concluding that the District and the County could not be held liable for the searches; and (3) denying injunctive and declaratory relief. We review a district court’s grant of summary judgment de novo, drawing all reasonable inferences from the record in favor of the nonmoving party. See Korman v. HBC Florida, Inc., 182 F.3d 1291, 1293 (11th Cir.1999)." }, { "docid": "9461653", "title": "", "text": "permissive climate within the police force that led officers like Billingslea to conclude that they would not be disciplined for violating the rights of citizens. We have previously noted that evidence that a law enforcement agency routinely failed to log citizen complaints may, along with other evidence, permit an inference that the agency was deliberately indifferent to the rights of citizens. See Vineyard v. County of Murray, GA., 990 F.2d 1207, 1212 (11th Cir.1993). Keeping a record of complaints allows officials to determine whether a “particular officer may have a problem that could be corrected through reassignment, discipline or training.” Id. In the case at bar, however, there is no evidence in the record to suggest that citizen complaints were ignored or not investigated. Instead, the students rely on other problems of the system, including that: (1) the disposition of some complaints, including those made against Billingslea, were not noted in the logs; (2) officers were not informed of the disposition of complaints unless the complaints were found to be valid; and (3) citizens were rarely, if ever, informed about the results of a complaint. These failures in the County’s system are certainly nothing to be celebrated. We conclude, however, that the problems in the County’s system do not give rise to an inference that the County was being deliberately indifferent to the potential illegal conduct of its officers. The district court therefore did not err in granting the County’s motion for summary judgment on the failure to supervise or discipline claim. Declarative and Injunctive Relief Finally, we conclude that the district court did not abuse its discretion in denying the students’ requested declaratory and injunctive relief. The district court correctly found that the declaratory relief sought, a declaration that the searches were unconstitutional, was unnecessary in light of the district court’s order to that effect. The students also requested injunctions requiring the District and the County to: (1) correct the identified policy and training deficiencies; (2) prevent officials from conducting searches under facts similar to those of the instant case; and (3) expunge all references to the searches from" }, { "docid": "9461654", "title": "", "text": "rarely, if ever, informed about the results of a complaint. These failures in the County’s system are certainly nothing to be celebrated. We conclude, however, that the problems in the County’s system do not give rise to an inference that the County was being deliberately indifferent to the potential illegal conduct of its officers. The district court therefore did not err in granting the County’s motion for summary judgment on the failure to supervise or discipline claim. Declarative and Injunctive Relief Finally, we conclude that the district court did not abuse its discretion in denying the students’ requested declaratory and injunctive relief. The district court correctly found that the declaratory relief sought, a declaration that the searches were unconstitutional, was unnecessary in light of the district court’s order to that effect. The students also requested injunctions requiring the District and the County to: (1) correct the identified policy and training deficiencies; (2) prevent officials from conducting searches under facts similar to those of the instant case; and (3) expunge all references to the searches from District and County records to avoid the children being tainted by the suggestion of criminality. If there were deficiencies in the District and County’s policies and training, they were not the driving force behind the constitutional violations. Accordingly, the court did not err in declining to compel the District and County to alter their policies. The district court also correctly declined to enjoin the County and the District from searching children in the manner Morgan and Billingslea did in this case. It is now clearly established law in this circuit that the searches were unconstitutional. An injunction ordering the County and the District to “obey the law” would serve little purpose. Burton v. City of Belle Glade, 178 F.3d 1175, 1200 (11th Cir.1999). Finally, the court did not err in rejecting the students’ request for expungement. It is undisputed that the students’ individual school records hold no reference to the searches. The only reference to the searches held by the County is included in Billingslea’s personnel file. Since the remaining references to the searches in" }, { "docid": "17252802", "title": "", "text": "underwear in the rest room. This is totally unprofessional. OFFICER BILLINGSLEA used threatening tactics to force students to pull their pants down during the search by telling them that he would take them to jail or juvenile if they (the students) did not comply. (PL's School Exs. [84] at Ex. 12 (\"Woodcock's Investigative Summary\").) . Indeed, only five of the 105 patrol officers evaluated that year received a 2.5% pay increase, while the remaining officers received a higher increase. This 2.5% raise was half of the 5% raise Billingslea had received the year before. (Pis.',Resp. [82] at ¶¶ 49-50; Def. Clayton County’s Stmt, of Mat. Facts [72] at ¶¶ 49-50.) . In the article, Billingslea denied that he had been reprimanded for participating in the search. (Pis. Resp. [82] at ¶ 54; Def. Clayton County’s Stmt, of Mat. Facts [72] at ¶¶ 31-54.) . Plaintiffs concede that Clayton County is not responsible for violations of plaintiffs' First and Fifth Amendment rights. (Pis.' Br. [82] at 23 n. 7.) . The nonmoving party may meet its burden through affidavit and deposition testimony, answers to interrogatories, and the like. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. . Throughout their brief, plaintiffs contend that the Supreme Court in T.L.O. recognized a requirement that school officials must have individualized suspicion before searching a student in a public school, particularly with more intrusive searches. (Pis.’ Br. [83] at 9.) To the contrary, the Supreme Court in T.L.O. made no such assertion and specifically did not decide the necessity of individualized suspicion in school search cases. See T.L.O., 469 U.S. at 342 n. 8, 105 S.Ct. 733. Moreover, the Court did not even address the concept of \"more intrusive searches” and the need for individualized suspicion in such a search. . The Eleventh Circuit, sitting en banc, had the opportunity to determine the proper standards for determining when a strip search of a student in a public school violates the Constitution. See discussion infra. The court, however, stated that it did not reach the question whether the particular strip search was unlawful, because even if" }, { "docid": "9461621", "title": "", "text": "(1) the strip searches were unconstitutional; (2) despite the unconstitutional nature of the searches, the individual defendants were entitled to qualified immunity; (3) the District was not liable for the actions of Morgan, Roberts, or Billingslea; (4) the County was not liable for the actions of Billingslea; and (5) the students’ state law claims should be dismissed without prejudice. The students filed a motion to reopen the case to determine whether they were entitled to injunctive and declarative relief. Upon review, the district court denied the requested relief. This appeal followed. Issues on Appeal The students contend on appeal that the district court erred in: (1) determining that the individual defendants were protected by qualified immunity; (2) concluding that the District and the County could not be held liable for the searches; and (3) denying injunctive and declaratory relief. We review a district court’s grant of summary judgment de novo, drawing all reasonable inferences from the record in favor of the nonmoving party. See Korman v. HBC Florida, Inc., 182 F.3d 1291, 1293 (11th Cir.1999). A district court’s grant or denial of equitable relief is subject to review for abuse of discretion. See Kidder, Peabody & Co. v. Brandt, 131 F.3d 1001, 1003 (11th Cir.1997). Discussion We will begin our discussion by considering the constitutionality of the searches and then proceed to each issue raised by the students in turn. See County of Sacramento v. Lewis, 523 U.S. 833, 840, 118 5.Ct. 1708, 1714 n. 5, 140 L.Ed.2d 1043 (1998) (courts are obligated to determine whether a plaintiff has alleged a constitutional deprivation before proceeding to address whether an individual government actor is entitled to qualified immunity). The constitutional standard for assessing the legality of searches undertaken by school officials was first established by the Supreme Court in New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). In T.L.O., a high school vice principal searched the purse of a student who had been caught smoking in violation of a school rule. See T.L.O., 469 U.S. at 328, 105 S.Ct. at 736. Upon opening the purse," }, { "docid": "9461619", "title": "", "text": "her bra above her breasts in the restroom. Again, the envelope was not found. Once the searches were complete, Morgan conducted no further investigation and the rest of the school day proceeded as normal. The next day, three sets of parents complained to Principal Ralph Matthews and Roberts about the searches. Matthews assured them that the school would conduct a thorough investigation. Roberts then gathered the children and asked them to write statements describing the events of the previous day. After he read the children’s statements, Matthews asked Morgan to give her version of events. The School District thereafter launched an investigation of its own into the matter. After reviewing the students’ statements and meeting with Roberts, Matthews, and Morgan, the District’s investigator concluded that the students were not “strip searched.” The Clayton County Police Department performed its own investigation of Billingslea’s conduct, which resulted in the issuance of a letter of reprimand against Billingslea and a reduction in his pay increase. The students filed suit in the Northern District of Georgia on May 27, 1997. Their amended complaint alleges several claims. First, the complaint alleges that Morgan, Roberts, Matthews, Billingslea, the District, and the County deprived the students “of them rights to privacy, to be secure in their persons and to be free from unreasonable searches and seizures as protected by the First, Fourth, Fifth, Ninth and Fourteenth Amendments.... ” (R.2-52 at 21.) The complaint also alleges that the defendants deprived the students of their rights to due process as protected by the Fourteenth Amendment. Finally, the complaint alleges violations of the Georgia constitution and Georgia statutes. The complaint seeks compensatory and punitive damages as well as declaratory and injunctive relief. The defendants moved for summary judgment, which the district court granted in a comprehensive ninety-one page order. First, the district court determined that the Fourth Amendment unreasonable search and seizure claim made applicable through the Fourteenth Amendment was the only viable federal claim. The district court accordingly dismissed the other federal claims and applied Fourth Amendment standards to the students’ claims. The district court proceeded to find that:" }, { "docid": "9461655", "title": "", "text": "District and County records to avoid the children being tainted by the suggestion of criminality. If there were deficiencies in the District and County’s policies and training, they were not the driving force behind the constitutional violations. Accordingly, the court did not err in declining to compel the District and County to alter their policies. The district court also correctly declined to enjoin the County and the District from searching children in the manner Morgan and Billingslea did in this case. It is now clearly established law in this circuit that the searches were unconstitutional. An injunction ordering the County and the District to “obey the law” would serve little purpose. Burton v. City of Belle Glade, 178 F.3d 1175, 1200 (11th Cir.1999). Finally, the court did not err in rejecting the students’ request for expungement. It is undisputed that the students’ individual school records hold no reference to the searches. The only reference to the searches held by the County is included in Billingslea’s personnel file. Since the remaining references to the searches in the District’s files can have no effect on the students’ future in the school system or elsewhere, there is no danger that the children will be tainted with the suggestion of criminality. We further conclude, as did the district court, that retaining some record of the searches would be a valuable tool in preventing future constitutional violations in the District’s schools. Therefore, the district court did not abuse its discretion in declining to order the ex-pungement of all references to the searches. Conclusion We hold that strip searching the children without individualized suspicion in order to find an envelope containing twenty-six dollars was unreasonable and therefore a violation of the Fourth Amendment. Bil-lingslea’s limited search of Lenard Grace, however, was not unreasonable given the circumstances. Accordingly, we affirm the grant of summary judgment to all defendants on Lenard’s claims. We also affirm the court’s grant of summary judgment based on qualified immunity to the individual defendants on the claims of the remaining children. The district court’s grant of summary judgment to the District and County," }, { "docid": "17252817", "title": "", "text": "plaintiffs do not allege in their amended complaint that Billingslea participated in any searches of the girls' persons. Accordingly, as plaintiff can present no evidence that Billingslea participated in the search of the female students in this case, liability cannot flow to the municipality for the allegedly unconstitutional searches of the girls. Hence, the Court grants summary judgment to Clayton County as to any claim made by the female students who were searched. . That said, holding that, as a constitutional matter, Clayton County was not required to offer more training in the area of school searches does not mean that such training might not be a prudent idea for officers who will regularly be in the school system. . Curiously, plaintiffs have submitted thirteen internal affairs written complaints regarding Officer Billingslea, despite their contention that these types of complaints are not tracked according to the officer against whom the complaint is lodged. . Such a failure to institute a proper system to investigate citizen complaints and discipline officers was found to have been \"deliberately indifferent” to the constitutional rights of citizens in Vineyard v. County of Murray, Georgia, 990 F.2d 1207 (11th Cir.1993). Vineyard is distinguishable, however, because unlike the police force in Vineyard, Clayton County has internal investigation policies. Second, unlike the clearly deficient investigation in Vineyard, Clayton County did investigate and discipline Officer Billingslea for his actions in performing these searches. This discipline included a written reprimand from the Chief of Police and a lower than average raise after his 1996-97 annual review. Further, unlike in Vineyard, plaintiff here has offered no evidence, other than the concluso-ry statements regarding causation, that the alleged failure of the internal affairs system was the “moving force” behind the constitutional violations in this case. . Clayton County persuasively argues that \"[fit is unreasonable to claim Billingslea's propensity for writing traffic tickets would inexorably lead the county to conclude that he would strip search elementary school searches.” (Def. Clayton County’s Reply Br. [85] at 9.) . Much like the hiring and retention of Morgan by the Clayton County School District, the hiring" }, { "docid": "17252701", "title": "", "text": "Clayton County’s Stmt, of Mat. Facts [72] at ¶¶ 38-39.) Woodcock’s investigation consisted of interviews with Billingslea and numerous school officials and included a review of the students’ written statements regarding the search. On January 13, 1997, Woodcock concluded his investigation, and Clackum issued a Letter of Reprimand to Billing-slea on February 14,1997. (Pis.’ Resp.[82] at ¶¶ 41, 45; Def. Clayton County’s Stmt, of Mat. Facts [72] at ¶¶ 41, 45; and Pis.’ Police Exs. [84] at Ex. 23 (“Letter of Reprimand”).) In early March 1997, Billing-slea received his 1996-97 annual evaluation, which contained a discussion of the incident. (Pis.’ Resp. [82] at ¶ 46; Def. Clayton County’s Stmt, of Mat. Facts [72] at ¶ 46.) At this evaluation, both Woodcock and Clackum recommended a pay increase of only 2.5%, two grades below what most officers received. During this evaluation, Woodcock recommended that Billingslea take additional training in specific areas addressing the law of search and seizure and students’ rights. (Pis.’ Resp. [82] at ¶¶ 48-53; Def. Clayton County’s Stmt, of Mat. Facts [72] at ¶¶ 48-53.) Billingslea never took such training, however, as he was terminated from employment as a result of an untruthful interview given to the Atlanta Journal-Constitution regarding the reprimand he received from the department. Billingslea was suspended on April 21, 1997 and fired on April 24, 1997. (Pis.’ Resp. [82] at ¶¶ 54-60; Def. Clayton County’s Stmt, of Mat. Facts [72] at ¶¶ 54-60.) IV. Plaintiffs’ Complaint Plaintiffs brought this lawsuit on May 27, 1997 and amended their complaint on December 1, 1998. In the amended complaint, plaintiffs alleged several causes of action. First, plaintiffs brought federal claims pursuant to 42 U.S.C. § 1983 alleging that defendants Morgan, Roberts, Matthews, Billingslea, Clayton County, and Clayton County School District “deprived the students of their right to privacy, to be secure in their persons and to be free from unreasonable searches and seizures as protected by the First, Fourth, Fifth, Ninth and Fourteenth Amendments of the United States Constitution.” (Amend.Compl. [53] at ¶ 102.) Further plaintiffs allege that “the actions of defendants deprived the students of their" } ]

[ { "docid": "22727423", "title": "", "text": "not the state courts of Virginia. This transfer of venue function of the forum non conveniens doctrine has been superseded by statute, see 28 U. S. C. § 1404(a); Piper Aircraft Co. v. Reyno, 454 U. S. 235, 253 (1981), and to the extent we have continued to recognize that federal courts have the power to dismiss damages actions under the common-law forum non conve-niens doctrine, we have done so only in “cases where the alternative forum is abroad.” American Dredging Co. v. Miller, 510 U. S. 443, 449, n. 2 (1994); see, e. g., Piper, supra, at 265-269 (dismissal of wrongful death action). The fact that we have applied the forum non conveniens doctrine in this manner does not change our analysis in this case, where we deal with the scope of the Burford abstention doctrine. To be sure, the abstention doctrines and the doctrine of forum non conveniens proceed from a similar premise: In rare circumstances, federal courts can relinquish their jurisdiction in favor of another forum. But our abstention doctrine is of a distinct historical pedigree, and the tradi tional considerations behind dismissal for forum non con-veniens differ markedly from those informing the decision to abstain. Compare American Dredging, supra, at 448-449 (describing “multifarious factors,” including both public and private interests, which might allow a district court to dismiss a case under doctrine of forum non conveniens), with Burford, 319 U. S., at 332-333 (describing “federal-state conflict” that requires a federal court to yield jurisdiction in favor of a state forum). Federal courts abstain out of deference to the paramount interests of another sovereign, and the concern is with principles of comity and federalism. See, e. g., ibid.; Younger, 401 U. S., at 44-45. Dismissal for forum non conveniens, by contrast, has historically reflected a far broader range of considerations, see Piper, supra, at 241, 257-262 (describing the interests which bear on forum non conveniens decision); Gulf Oil, supra, at 508-509 (same), most notably the convenience to the parties and the practical difficulties that can attend the adjudication of a dispute in a certain locality, see Piper," } ]

[ { "docid": "22825911", "title": "", "text": "March Shipping Corp., 801 F.2d 1066, 1069 (8th Cir.1986) (applying federal common law) (alternate holding). This court has yet to take a position on the issue, although district courts within the circuit have endorsed the Ninth and Eleventh Circuit approach, see, e.g., Northeast Theatre Corp. v. Edie & Ely Landau, Inc., 563 F.Supp. 833 (D.Mass.1983), and on one occasion we tentatively treated a forum selection clause as procedural for the limited purposes of the factor analysis required under the forum non conve-niens doctrine articulated in Gulf Oil v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). See Royal Bed & Spring Co. v. Famossul Industria e Comercio de Moveis Ltda., 906 F.2d 45, 49 (1st Cir.1990). The complexities of the issue have been well documented in several student notes. See, e.g., Robert A. de By, Note, Forum Selection Clauses: Substantive or Procedural for Erie Purposes, 89 Colum.L.Rev. 1068 (1989); Julia L. Erickson, Forum Selection Clauses in Light of the Erie Doctrine and Federal Common Law: Stewart Organization v. Ricoh Corporation, 72 Minn.L.Rev. 1090 (1988). . This approach, which relies on the contracting parties’ choice of law as a basis for determining the enforceability of their forum selection, has been criticized on the ground that “jurisdiction and venue are concerns separate from choice of law, and ... determining the former usually precedes determination of the latter.\" See Linda S. Mullenix, Another Choice of Forum, Another Choice of Law: Consensual Adjudicatory Procedure in Federal Court, 57 Fordham L.Rev. 291, 347 (1988); see abo Instrumentation Assocs., 859 F.2d at 5 (holding that \"[lower] court erred by deciding the validity of the contract's choice of law before considering the threshold question of whether the parties’ contractual choice of a Canadian forum was enforceable under the conflict of laws principles embodied in Erie\"). We do not agree. It is well established that a forum selection clause does not divest a court of jurisdiction or proper venue over a contractual dispute. Rather, a court addressing the enforceability of a forum selection clause is to consider whether it must, in its dbcretion, decline jurisdiction" }, { "docid": "13646285", "title": "", "text": "so that it is no \"stranger” in the forum, and has chosen to litigate in the forum before with some frequency, undercutting any suggestion that Terra would be prejudiced by a Mississippi forum for its claims. . MCC has often pointed to the Supreme Court's decision in The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), an admiralty case in which the Supreme Court upheld the validity of forum-selection clauses between parties of equal bargaining power, as stating standards applicable here. Terra has generally argued that any reliance on The Bremen is misplaced. The court agrees generally with Terra’s position, in light of Stewart's conclusion that the Court of Appeals below had erred by applying the standards announced in The Bremen, although the Supreme Court acknowledged that the case might be \"instructive,” because the inquiry in a transfer case was not \"whether the forum selection clause in this case is unenforceable under the standards set forth in The Bremen,\" but is instead \"whether § 1404(a) itself controls respondent’s request to give effect to the parties’ contractual choice of venue and transfer this case” to a forum indicated in the forum selection clause, to which the Court answered in the affirmative. Stewart, 487 U.S. at 28-29, 108 S.Ct. at 2243^44. Thus, the determinative standards are those stated in § 1404(a) and Stewart, not those stated in The Bremen. See Royal Bed & Spring Co., Inc. v. Famossul Indust-ria e Comercio de Moveis Ltda., 906 F.2d 45, 51 (1st Cir.1990) (in Stewart, \"the Supreme Court noted that, rather than to have relied on the principles set forth in The Bremen case, the court of appeals should have decided whether section 1404(a) itself controlled Ricoh’s request to give effect to the parties' contractual choice of venue which provided for a transfer of the case to a Manhattan court [and] [t]he Supreme Court added: 'we hold that it does.' [Stewart, 487 U.S. at 29, 108 S.Ct.] at 2243.”); Red Bull Assocs. v. Best Western Int'l, Inc., 862 F.2d 963, 966-67 (2d Cir.1988) (\"The Supreme Court has since" }, { "docid": "23438222", "title": "", "text": "and where the harms from these torts were felt. See Bates, 980 F.2d at 868 (2nd Cir.1992). In addition, Rhode Island was the forum selected by the Employee Agreement to resolve disputes. See Lambert v. Kysar, 983 F.2d 1110, 1118 n. 11 (1st Cir.1993) (upholding forum selection clause). Taken together, these facts constitute a substantial part of Astro-Med’s claims against Nihon Kohden. Further, Plant did not contest venue in Rhode Island and that portion of the lawsuit was, for venue purposes, going to proceed in Rhode Island. Thus, the convenience of the parties strongly militated in favor of retention of venue in Rhode Island. Uffner, 244 F.3d at 43 (“[T]he general purpose of the venue rules is ‘to protect the defendant against the risk that a plaintiff will select an unfair or inconvenient place of trial.’ ”) (quoting Leroy v. Great W. United Corp., 443 U.S. 173, 183-84, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979)). Given that a substantial part of AstroMed’s claims involved Rhode Island and proceeding in Rhode Island would not thwart the underlying purpose of the venue statute, we conclude that the district court did not err in refusing to dismiss the claims pending against Nihon Kohden in Rhode Island for improper venue. 2. Transfer of Venue Nihon Kohden also appeals the district court’s denial of its motion for change of venue under 28 U.S.C. § 1404(a). “Section 1404(a) is intended to place discretion in the district court to adjudicate motions for transfer according to an ‘individualized, case-by-case consideration of convenience and fairness.’ ” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964)). Where the contract between the parties, here speaking of Astro-Med and Plant, contains a forum-selection clause, the clause “will be a significant factor that figures centrally in the District Court’s calculus.” Royal Bed & Spring Co. v. Famossul Industria e Comercio de Moveis Ltda., 906 F.2d 45, 51 (1st Cir.1990) (quoting Stewart, 487 U.S. at 29, 108 S.Ct. 2239). We" }, { "docid": "23664004", "title": "", "text": "Cf. Mitsui & Co. (USA), Inc. v. Mira M/V, 111 F.3d 33, 37 (5th Cir.1997) (rejecting appellant’s challenge to the enforcement of a mandatory forum selection clause for reasons of forum non conveniens, and stating that “increased cost and inconvenience are insufficient reasons to invalidate foreign forum-selection or arbitration clauses.”); hut see Royal Bed & Spring Co., Inc. v. Famossul Industria e Comercio de Moveis Ltda., 906 F.2d 45, 51 (1st Cir.1990) (ruling that a forum selection provision is not dispositive of a motion to dismiss on forum non conveniens grounds, but rather is “simply one of the factors that should be considered and balanced” in the ordinary forum non conveniens analysis.) In Bremen, the Court ruled that a freely negotiated mandatory forum selection clause is enforceable unless the party challenging its enforcement can “clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching,” or that “trial in the [chosen] forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.” Applying these standards together with standards articulated in later Supreme Court cases, we have ruled that a forum selection clause is presumptively valid and enforceable unless (1) “[its] incorporation into the contract was the result of fraud, undue influence, or overweening bargaining power; (2) the selected forum is so gravely difficult and inconvenient that [the complaining party] will for all practical purposes be deprived of its day in court; or (3)[its] enforcement ... would contravene a strong public policy of the forum in which the suit is brought, declared by statute or judicial decision.” Bonny, 3 F.3d at 160 (internal citations and quotation omitted). Nevertheless, it can be argued that the Bremen and Bonny standards should not control in this case, for as VH notes, the forum selection clause in the Lease agreement is permissive, not mandatory. (That is, it provides that suit may be brought in Illinois as well as in other jurisdictions, but does not mandate that suit must be brought exclusively in Illinois.)" }, { "docid": "23641168", "title": "", "text": "principles governing the motion to transfer the public policy is just one factor to be considered along with the other factors prescribed by that section. Stewart holds that such public policy is not conclusive on the motion to transfer. The majority opinion in Stewart does not spell out what weight state public policy is to be given in the analysis it prescribes. See Jones, 211 F.3d at 499 (public policy of forum state is at least as significant a factor as the forum selection clause itself); Shell, 55 F.3d 1227 (public policy a factor to be considered but forum state did not have strong enough public policy to overcome forum selection clause). In 15 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure, § 3803.1 (2d ed.1986), it is suggested that nine factors be applied, but that the totality of circumstances, measured in the interests of justice, control. Therefore, I would remand the case for reconsideration of the alternative motions in light of the above principles. . See e.g., Silva v. Encyclopedia Britannica, Inc., 239 F.3d 385 (1st Cir.2001); Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285 (11th Cir.1998); International Software Systems, Inc. v. Amplicon, Inc., 77 F.3d 112 (5th Cir.1996); Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509 (9th Cir.1988); Bryant Electric Co., Inc. v. City of Fredericksburg, 762 F.2d 1192 (4th Cir.1985). . See e.g., Haynsworth v. The Corporation, 121 F.3d 956 (5th Cir.1997); Shell v. A.W. Sturge. Ltd., 55 F.3d 1227 (6th Cir.1995); Royal Bed and Spring Co., Inc. v. Famossul Industria e Comercio de Moveis Ltda., 906 F.2d 45 (1st Cir.1990). . See e.g., Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509 (9th Cir.1988); Insurance Products Marketing, Inc. v. Indianapolis Life Ins., 176 F.Supp.2d 544 (D.S.C.2001). . See Jones v. GNC Franchising, Inc., 211 F.3d 495 (9th Cir.2000); International Software Systems v. Amplicon, 77 F.3d 112, 114 (5th Cir.1996) (citing Jones v. Weibrecht, 901 F.2d 17 (2d Cir.1990)); Northwestern Nat. Ins. Co. v. Donovan, 916 F.2d 372, 375 (7th Cir.1990). . Fed.R.Civ.P. 12(b)(3) states that \"the following defenses" }, { "docid": "22825910", "title": "", "text": "F.2d 17, 19 (2d Cir.1990); Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509 (9th Cir.1988); Stewart Organization v. Ricoh Corp., 810 F.2d 1066 (11th Cir.1986) (en banc), aff’d on other grounds, 487 U.S. 22, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988); see also Taylor v. Titan Midwest Constr. Corp., 474 F.Supp. 145 (N.D.Tex.1979) (applying federal common law on policy grounds, without considering Erie issue); cf. Northwestern Nat'l. Ins. Co. v. Donovan, 916 F.2d 372, 374 (7th Cir.1990) (Posner, J.) (suggesting that the application of federal common law is \"probably correct\"). The Third and Eighth Circuits, and Justice Scalia (who sought to reach the Erie issue in Stewart), seem to view forum selection clauses as substantive, and would apply state law to determine their validity in the diversity context. See Stewart Organization, 487 U.S. at 38-41, 108 S.Ct. at 2248-49 (Scalia, J., dissenting); General Eng'g Corp. v. Martin Marietta Alumina, Inc., 783 F.2d 352, 356 (3rd Cir.1986); Farmland Indus. v. Frazier-Parrott Commodities, Inc., 806 F.2d 848 (8th Cir.1986); but see Sun World Lines, Ltd. v. March Shipping Corp., 801 F.2d 1066, 1069 (8th Cir.1986) (applying federal common law) (alternate holding). This court has yet to take a position on the issue, although district courts within the circuit have endorsed the Ninth and Eleventh Circuit approach, see, e.g., Northeast Theatre Corp. v. Edie & Ely Landau, Inc., 563 F.Supp. 833 (D.Mass.1983), and on one occasion we tentatively treated a forum selection clause as procedural for the limited purposes of the factor analysis required under the forum non conve-niens doctrine articulated in Gulf Oil v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). See Royal Bed & Spring Co. v. Famossul Industria e Comercio de Moveis Ltda., 906 F.2d 45, 49 (1st Cir.1990). The complexities of the issue have been well documented in several student notes. See, e.g., Robert A. de By, Note, Forum Selection Clauses: Substantive or Procedural for Erie Purposes, 89 Colum.L.Rev. 1068 (1989); Julia L. Erickson, Forum Selection Clauses in Light of the Erie Doctrine and Federal Common Law: Stewart Organization v. Ricoh Corporation, 72 Minn.L.Rev." }, { "docid": "23438223", "title": "", "text": "underlying purpose of the venue statute, we conclude that the district court did not err in refusing to dismiss the claims pending against Nihon Kohden in Rhode Island for improper venue. 2. Transfer of Venue Nihon Kohden also appeals the district court’s denial of its motion for change of venue under 28 U.S.C. § 1404(a). “Section 1404(a) is intended to place discretion in the district court to adjudicate motions for transfer according to an ‘individualized, case-by-case consideration of convenience and fairness.’ ” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964)). Where the contract between the parties, here speaking of Astro-Med and Plant, contains a forum-selection clause, the clause “will be a significant factor that figures centrally in the District Court’s calculus.” Royal Bed & Spring Co. v. Famossul Industria e Comercio de Moveis Ltda., 906 F.2d 45, 51 (1st Cir.1990) (quoting Stewart, 487 U.S. at 29, 108 S.Ct. 2239). We review a “district court’s decision on transfer of venue for an abuse of discretion.” Coady v. Ashcraft & Gerel, 223 F.3d 1, 11 (1st Cir.2000); Cianbro Corp. v. Curran-Lavoie, Inc., 814 F.2d 7, 11 (1st Cir.1987). Not only does the burden of proof rest with the party seeking to transfer; there is a “strong presumption in favor of the plaintiffs choice of forum.” Coady, 223 F.3d at 11. In the circumstances of this case, the district court did not abuse its discretion in denying Nihon Kohden’s motion for transfer of venue. C. The Verdict Following the verdict, Nihon Kohden and Plant moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(b) and moved for new trial under Federal Rule of Civil Procedure 59 or in the alternative for remittitur. The district court denied each post-trial motion. Defendants object both to a number of the district court’s legal rulings and to the verdict, claiming that “the evidence strongly supported (almost mandated) a defense verdict.” We disagree. 1. Legal Standards “We review" }, { "docid": "992510", "title": "", "text": "or prejudice. La Seguridad, 707 F.2d at 1307 (quoting, with emphasis added, Pain v. United Technologies Corp., 637 F.2d 775, 784-85 (D.C.Cir.1980)). .It is interesting to note that Costa has never argued that Vietnam, the actual site where the accident occurred, is the proper forum for the lawsuits brought by the Appellants. . See Monegro v. Rosa, 211 F.3d 509, 511-12 (9th Cir.2000), cert. denied, 531 U.S. 1112, 121 S.Ct. 857, 148 L.Ed.2d 771 (2001); Rivendell Forest Prods., Ltd. v. Canadian Pac. Ltd., 2 F.3d 990, 992 (10th Cir.1993); Royal Bed & Spring Co. v. Famossul Industria e Comercio de Moveis Ltda., 906 F.2d 45, 50 (1st Cir.1990); In re Air Crash Disaster Near New Orleans, 821 F.2d 1147, 1154-59 (5th Cir.1987) (en banc), vacated on other grounds, 490 U.S. 1032, 109 S.Ct. 1928, 104 L.Ed.2d 400, and reinstated in part, 883 F.2d 17 (5th Cir.1989) (en banc). But see Weiss v. Routh, 149 F.2d 193, 195 (2d Cir.1945) (holding that state law should control). We note, however, that it seems unlikely that Weiss is still good law in the Second Circuit. See Schertenleib v. Traum, 589 F.2d 1156, 1162 n. 13 (2d Cir.1978) (treating the question of whether federal or state forum non conveniens law should apply in diversity context as unsettled); Gilbert v. Gulf Oil Corp., 153 F.2d 883, 885 (2d Cir.1946) (applying federal forum non conve-niens law in a diversity case), rev’d. on other grounds, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); see also Rivendell, 2 F.3d at 992 n. 3 (suggesting that Weiss has been implicitly overruled). . The Supreme Court has expressly left unresolved whether state or federal law on forum non conveniens should apply in diversity cases. See Piper Aircraft Co. v. Reyno, 454 U.S. 235. 249 n. 13. 102 S.Ct. 252. 262 n. 13. 70 L.Ed.2d 419 (1981). However, in the admiralty context, the Court has stated that \"the doctrine of forum non conveniens is nothing more or less than a supervening venue provision, ... a matter that goes to process rather than substantive rights.” American Dredging Co., 510 U.S." }, { "docid": "6329928", "title": "", "text": "forum-selection clauses is especially relevant in the diversity context when the Federal Arbitration Act preempts state contract law. As the Supreme Court states in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631, 105 S.Ct. 3346, 3356, 87 L.Ed.2d 444 (1985), “The Bremen and Scherk establish a strong presumption in favor of enforcement of freely negotiated contractual choice-of-forum provisions____ [t]hat presumption is reinforced by the emphatic federal policy in favor of arbitral dispute resolution.” Because we are concerned here with the preemptive character of the Federal Arbitration Act, we will not delve into Puerto Rico state law as it pertains to the enforcement of forum-selection clauses. But it is interesting to note that Puerto Rico law has developed a presumption of the enforceability of forum-selection clauses based on federal law. Unisys Puerto Rico, Inc. v. Ramallo Brothers Printing, Inc., 91 J.T.S. 69, 8855-56 (1991). To defeat a forum-selection provision, a plaintiff must show that the provision resulted from unequal bargaining power, duress, or fraud; that the clause is unreasonable and unjust; or that “proceedings ‘in the contractual forum will be so gravely difficult and inconvenient that [the resisting party] will for all practical purposes be deprived of his day in court’.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 632-33, 105 S.Ct. 3346, 3357, 87 L.Ed.2d 444 (1985), citing Bremen, 407 U.S. at 1, 12, 15, 18, 92 S.Ct. at 1907, 1914, 1916, 1917; see also Royal Bed & Spring Co. v. Famossul Industria e Comercio de Moveis Ltda., 906 F.2d 45, 52-53 (1st Cir.1990) (forum-selection clause calling for resolution of disputes in Brazil was freely negotiated by the parties and thus would be given effect). Plaintiffs argument that we must consider the appropriateness of the forum under the doctrine of forum non conveniens is not convincing. In Bremen, the Supreme Court decided that, in the admiralty context, the normal forum non conveniens doctrine is not determinative when a contract contains a forum-selection clause. Bremen, 407 U.S. at 6-9, 92 S.Ct. at 1911-1913. Instead, it set forth the standard described above for determining the enforceability of" }, { "docid": "23641164", "title": "", "text": "at 2244-45 (footnote and internal citations omitted). The Erie analysis of the motion to dismiss, although distinct from that for the motion to transfer, must be performed with these principles in mind. As noted above, the majority of circuits hold that federal law applies to a motion to dismiss as well as a § 1404(a) motion. In Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509 (9th Cir.1988), the court reasoned that the federal statutes concerning venue sufficiently occupy the field to trigger the application of federal law to all issues relating to where an action will be heard in federal court. Such federal law includes the federal common law principles prescribed in The Bremen, relied on by the district court herein. Accord Royal Bed and Spring Co., Inc. v. Famossul Industria e Comercio de Moveis Ltda., 906 F.2d 45 (1st Cir.1990); Evolution Online Systems, Inc. v. Koninklijke PTT Nederland N.V., 145 F.3d 505 (2d Cir.1998); cf. Licensed Practical Nurses, 131 F.Supp.2d at 396, n. 1; 17A James Wm. Moore et al., Moore’s Federal Practice § 124.006[2] (3d ed.1997). Further, I believe that the application of federal law to all issues of venue, including the effect of a forum selection clause, is required by the most recent Supreme Court Erie decisions such as Stewart, supra, and Burlington Northern R. Co. v. Woods, 480 U.S. 1, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987) (state statute providing for automatic 10% penalty against appellant on affirmance displaced by federal statute allowing for penalty only if appeal frivolous); see also discussion in Wm. H. McGee Company v. Liebherr America, Inc., 789 F.Supp. 861 (E.D.Ky.1992). As noted by the district court herein, in The Bremen the Supreme Court pre scribed that forum selection clauses are “prima facie valid and should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable’ under the circumstances.” Unless affected by fraud, undue influence, or overweening bargaining power, the forum selection clause should be given full effect. Public Policy and the Motion to Dismiss However, such a clause “should be held unenforceable if enforcement would contravene a" }, { "docid": "18836601", "title": "", "text": "suggest that dismissal was foreclosed on remand, see id. at 430, but rather that the forum determination should be made only after further findings of fact. See generally Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1552 (5th Cir.), cert. denied, — U.S. —, 112 S.Ct. . 430, 116 L.Ed.2d 449 (1991) (citing In re Air Crash Disaster Near New Orleans, Louisiana, 821 F.2d 1147, 1166 n. 32 (5th Cir.1987) (en banc)) (where district court sets forth insufficient facts in support of its forum determination, appellate court should not address the issue, but remand to district court to “begin afresh”); accord, Lacey v. Cessna Aircraft Co., 862 F.2d 38, 43 (3d Cir.1988); La Seguridad v. Transytur Line, 707 F.2d 1304, 1308-10 (11th Cir.1983). On remand, the district court received further evidence, including detailed supplemental affidavits from Sayman as well as several experts hired by the Merci-ers. The second district court dismissal order was conditioned on (1) acceptance of jurisdiction by the Turkish courts; (2) Sheraton’s submission to Turkish jurisdiction; (3) Sheraton’s waiver of any statute of limitations defense, and acceptance of the waiver by the Turkish court; and (4) Sheraton’s agreement to satisfy any Turkish court judgment. Ill DISCUSSION The doctrine of forum non conveniens permits discretionary dismissals on a “case by case” basis, Royal Bed & Spring Co. v. Famossul Industria E Comercio de Moveis Ltda., 906 F.2d 45, 47 (1st Cir.1990), where an alternative forum is available in another nation which is fair to the parties and substantially more convenient for them or the courts. Howe v. Goldcorp Invest., Ltd., 946 F.2d 944, 947 (1st Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1172, 117 L.Ed.2d 418 (1992). The application of the doctrine of forum non conveniens is committed to the sound discretion of the trial court, Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981), whose decision will not be reversed absent a “clear abuse of discretion.” Id.; see also Howe, 946 F.2d at 951; Royal Bed & Spring Co., 906 F.2d at 47-48. But since there is a" }, { "docid": "23641163", "title": "", "text": "this case, Alabama’s categorical policy disfavoring forum-selection clauses. Our cases make clear that, as between these two choices ... the instructions of Congress are supreme. ‡ i¡! ‡ Section 1404(a) directs a district court to take account of factors other than those that bear solely on the parties’ private ordering of their affairs. The district court also must weigh in the balance the convenience of the witnesses and those public-interest factors of systemic integrity and fairness that, in addition to private concerns, come under the heading “the interest of justice.” ... Congress has directed that multiple considerations govern transfer within the federal court system, and a state policy focusing on a single concern or a subset of the factors identified in § 1404(a) would defeat that command .... The forum-selection clause, which represents the parties’ agreement as to the most proper forum, should receive neither dispositive consideration ... nor no consideration (as Alabama law might have it), but rather the consideration for which Congress provided in § 1404(a). Stewart, 487 U.S. at 30, 108 S.Ct. at 2244-45 (footnote and internal citations omitted). The Erie analysis of the motion to dismiss, although distinct from that for the motion to transfer, must be performed with these principles in mind. As noted above, the majority of circuits hold that federal law applies to a motion to dismiss as well as a § 1404(a) motion. In Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509 (9th Cir.1988), the court reasoned that the federal statutes concerning venue sufficiently occupy the field to trigger the application of federal law to all issues relating to where an action will be heard in federal court. Such federal law includes the federal common law principles prescribed in The Bremen, relied on by the district court herein. Accord Royal Bed and Spring Co., Inc. v. Famossul Industria e Comercio de Moveis Ltda., 906 F.2d 45 (1st Cir.1990); Evolution Online Systems, Inc. v. Koninklijke PTT Nederland N.V., 145 F.3d 505 (2d Cir.1998); cf. Licensed Practical Nurses, 131 F.Supp.2d at 396, n. 1; 17A James Wm. Moore et al., Moore’s Federal Practice" }, { "docid": "19823465", "title": "", "text": "of forum selection clauses in the context of a Rule 12(b)(3) motion to dismiss a Law 75 claim. The First Circuit has ruled, however, on a motion to dismiss a Law 75 claim on the grounds of forum non conveniens. See Royal Bed and Spring Co. v. Famossul Industria, 906 F.2d 45 (1st Cir.1990). In Royal Bed, the contract at issue contained a provision designating the judicial district of Curitiba in Brazil as competent to settle any dispute between the parties. 906 F.2d at 46. The First Circuit acknowledged the Law 75 provision disfavoring forum selection clauses. Id. at 48. However, the court noted that forum non conveniens “ ‘is a rule of venue, not a rule of decision.’ ” Id. at 50 (quoting Sibaja v. Dow Chem. Co., 757 F.2d 1215, 1219 (11th Cir.1985)). The First Circuit concluded that state forum non conveniens laws are not binding on federal courts sitting in diversity courts and decided the ease based upon federal principles and considerations of forum non conveniens. Id. at 50. In its decision the court affirmed the district court’s ruling that Brazil was the most convenient forum for the parties’ dispute. Id. at 50-53. The Royal Bed decision indicates that the First Circuit’s position is that the enforceability of forum selection clauses should be decided by federal, rather than state, rules. A subsequent First Circuit case, however, categorized the Royal Bed decision as “tentatively treating] a forum selection clause as procedural for the limited purposes of the factor analysis required under the forum non conveniens doctrine.” See Lambert, 983 F.2d at 1116-17 n. 10. Notwithstanding this cautionary note in Lambert, the Court finds the Royal Bed decision to be highly persuasive in the present analysis. Royal Bed involved a motion to dismiss a Law 75 case based on a forum selection clause that required the dispute be brought in Brazil; the present case involves a motion to dismiss a Law 75 case based on a clause that requires the dispute be brought in California. Because of the similarity of the cases, the Court finds that the enforceability of" }, { "docid": "9429055", "title": "", "text": "forum non conveniens and res judicata, Famossul filed two motions to dismiss with the United States District Court. The motions were referred to a United States Magistrate who, on July 6, 1988, issued a Report and Recommendation suggesting denial of Famossul’s motions to dismiss. Although Famossul’s objections to the Magistrate’s Report were filed late, the district court, nonetheless, set the case for a general calendar call, and, on August 15, 1989, approved the Magistrate’s Report and Recommendation in part, and denied Famossul’s motion to dismiss on the basis of res judicata. The district court concluded that “[s]ince the voluntary dismissal in the [Superior Court of Puerto Rico] ... was ‘without prejudice’ it does not produce a preclusive effect, and thus, the present action is not barred by res judicata.” Royal Bed & Spring Co. v. Famossul Industria e Comercio de Moveis Ltda., No. 87-1054 GG, slip op. at 9 (D.P.R. Aug. 15, 1989). The district court acknowledged that, in adjudicating a motion for forum non con-veniens, the court must conduct a case-by-case analysis of convenience and fairness. See id. at 3. The court also recognized that Royal Bed had specifically asserted “that Puerto Rico law refuses to enforce forum-selection clauses providing for out-of-state or foreign venues as a matter of public policy.” Id. at 3; see P.R. Laws Ann. tit. 10, § 278b-2 (Supp.1987) (Law 75). The court noted that, given Law 75, the forum-selection clause in the parties’ agreement must be integrated into the balancing of considerations. See Royal Bed, No. 87-1054 GG at 3. The court noted that the forum-selection clause “should not receive dispositive consideration ... but should rather be considered a significant factor that will figure centrally in our balancing of factors.” Id. at 4. The court concluded that “the convenience of a Brazil forum, given the parties’ expressed preference for that venue, the fairness of transfer in light of the forum-selection clause and the parties’ relative bargaining power, as well as their familiarity with the procedure and laws of that forum,” made Brazil the most convenient forum. Id. at 7. Accordingly, the district court set" }, { "docid": "6329929", "title": "", "text": "“proceedings ‘in the contractual forum will be so gravely difficult and inconvenient that [the resisting party] will for all practical purposes be deprived of his day in court’.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 632-33, 105 S.Ct. 3346, 3357, 87 L.Ed.2d 444 (1985), citing Bremen, 407 U.S. at 1, 12, 15, 18, 92 S.Ct. at 1907, 1914, 1916, 1917; see also Royal Bed & Spring Co. v. Famossul Industria e Comercio de Moveis Ltda., 906 F.2d 45, 52-53 (1st Cir.1990) (forum-selection clause calling for resolution of disputes in Brazil was freely negotiated by the parties and thus would be given effect). Plaintiffs argument that we must consider the appropriateness of the forum under the doctrine of forum non conveniens is not convincing. In Bremen, the Supreme Court decided that, in the admiralty context, the normal forum non conveniens doctrine is not determinative when a contract contains a forum-selection clause. Bremen, 407 U.S. at 6-9, 92 S.Ct. at 1911-1913. Instead, it set forth the standard described above for determining the enforceability of such a clause. Because this case concerns arbitration, not a motion to transfer under 28 U.S.C. Section 1404(a), we find that this case is more akin to Bremen than to cases heard in diversity in which state contract law has not been preempted in part by the Federal Arbitration Act. See Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 36-37, 108 S.Ct. 2239, 2247, 101 L.Ed.2d 22 (1988) (Scalia, J. dissenting) (compares 28 U.S.C. § 1404(a) and the Federal Arbitration Act in the context of preemption of state contract law in the “field of agreement regarding forum selection”). Therefore, we will not conduct an inquiry into the issue of forum non conveniens. As in Mitsubishi, the plaintiff in this case did not attempt to show that the forum-selection clause was unfair, unreasonable, the product of overreaching or fraud, or that the forum would be inconvenient, so that “there is no basis for assuming the forum inadequate or its selection unfair.” Mitsubishi, 473 U.S. at 633, 105 S.Ct. at 3357. Therefore, where the parties have" }, { "docid": "5017476", "title": "", "text": "subject of seemingly conflicting opinions among the First Circuit and the District Court for the District of Puerto Rico. See, e.g., Stereo Gema, Inc. v. Magnadyne Corp., 941 F.Supp. 271 (D.Puerto Rico 1996); Banco Popular de Puerto Rico v. Airborne Group PLC, 882 F.Supp. 1212 (D.Puerto Rico 1995); Caribe BMW v. Bayerische Motoren Werke, 821 F.Supp. 802 (D.Puerto Rico 1993); Royal Bed and Spring Co., Inc. v. Famossul Industria e Comercio de Moveis Ltda., 906 F.2d 45 (1st Cir.1990). There is no dispute as to the fact that, under the doctrine set forth in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), a federal court sitting in diversity must apply state substantive law and federal procedural law. Gasperini v. Ctr. For Humanities, — U.S. —, —, 116 S.Ct. 2211, 2219, 135 L.Ed.2d 659 (1996) (referring to Erie R. Co.). It is also clear that where federal and state law coincide, it is unnecessary to delve into the Erie question of whether the matter at issue is procedural or substantive in nature. Lambert v. Kysar, 983 F.2d 1110, 1116-17 (1st Cir.1993). It is only as to the final determination of whether or not it is necessary to reach the Erie analysis at all that conflicting opinions have recently emerged. Although in Royal Bed, the First Circuit had the opportunity to address the forgoing issue in the context of Act 75, it relied exclusively on federal principles of forum non convenience. 906 F.2d at 50. The Court thus held that “state forum non convenience laws ‘ought not to be’ binding on federal courts in diversity cases.” Id. It did not, however, conduct a state/federal law analysis to determine whether it was necessary to apply the Erie doctrine to Act 75 cases pending before Puerto Rico courts. Later on, in Caribe BMW— another Act 75 case — the Federal District Court for the District of Puerto Rico noted that Royal Bed “[ha]d not specifically resolve[d] the ... issue [of] whether or not in diversity cases the enforcement of a forum-selection clause by itself is ruled by" }, { "docid": "23641169", "title": "", "text": "v. Encyclopedia Britannica, Inc., 239 F.3d 385 (1st Cir.2001); Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285 (11th Cir.1998); International Software Systems, Inc. v. Amplicon, Inc., 77 F.3d 112 (5th Cir.1996); Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509 (9th Cir.1988); Bryant Electric Co., Inc. v. City of Fredericksburg, 762 F.2d 1192 (4th Cir.1985). . See e.g., Haynsworth v. The Corporation, 121 F.3d 956 (5th Cir.1997); Shell v. A.W. Sturge. Ltd., 55 F.3d 1227 (6th Cir.1995); Royal Bed and Spring Co., Inc. v. Famossul Industria e Comercio de Moveis Ltda., 906 F.2d 45 (1st Cir.1990). . See e.g., Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509 (9th Cir.1988); Insurance Products Marketing, Inc. v. Indianapolis Life Ins., 176 F.Supp.2d 544 (D.S.C.2001). . See Jones v. GNC Franchising, Inc., 211 F.3d 495 (9th Cir.2000); International Software Systems v. Amplicon, 77 F.3d 112, 114 (5th Cir.1996) (citing Jones v. Weibrecht, 901 F.2d 17 (2d Cir.1990)); Northwestern Nat. Ins. Co. v. Donovan, 916 F.2d 372, 375 (7th Cir.1990). . Fed.R.Civ.P. 12(b)(3) states that \"the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, ... (3) improper venue, ... (6) failure to state a claim upon which relief can be granted....\" .See discussion in Licensed Practical Nurses v. Ulysses, 131 F.Supp.2d 393 (S.D.N.Y.2000) and Mead v. Future Medicine Publishing, Inc., 1999 WL 1939256, at **2-3 (M.D.N.C. Feb.22, 1999). . Certainly differing results on the enforcement of a forum selection clause might lead to forum shopping. See 17A James Wm. Moore et al., Moore’s Federal Practice § 124.06[1] (3d ed.1997). . Id. at § 124.08[2]. . The issue did not arise in Security Watch, Inc. v. Sentinel Systems, Inc., 176 F.3d 369 (6th Cir.1999) and Shell, 55 F.3d 1227, because federal and state law concerning forum selection clauses were the same. . 28 U.S.C. § 1404(a) reads: \"For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.\" ." }, { "docid": "18836602", "title": "", "text": "of limitations defense, and acceptance of the waiver by the Turkish court; and (4) Sheraton’s agreement to satisfy any Turkish court judgment. Ill DISCUSSION The doctrine of forum non conveniens permits discretionary dismissals on a “case by case” basis, Royal Bed & Spring Co. v. Famossul Industria E Comercio de Moveis Ltda., 906 F.2d 45, 47 (1st Cir.1990), where an alternative forum is available in another nation which is fair to the parties and substantially more convenient for them or the courts. Howe v. Goldcorp Invest., Ltd., 946 F.2d 944, 947 (1st Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1172, 117 L.Ed.2d 418 (1992). The application of the doctrine of forum non conveniens is committed to the sound discretion of the trial court, Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981), whose decision will not be reversed absent a “clear abuse of discretion.” Id.; see also Howe, 946 F.2d at 951; Royal Bed & Spring Co., 906 F.2d at 47-48. But since there is a strong presumption in favor of the plaintiff’s forum choice, id. at 241, 102 S.Ct. at 258, the defendant must bear the burden of proving both the availability of an adequate alternative forum, see Tramp Oil & Marine, Ltd. v. M/V Mermaid I, 743 F.2d 48, 50 (1st Cir.1984), and the likelihood of serious unfairness to the parties in the absence of a transfer to the alternative forum, Roster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 524, 67 S.Ct. 828, 831, 91 L.Ed. 1067 (1947); Howe, 946 F.2d at 950 (citing Piper Aircraft, 454 U.S. at 259, 102 S.Ct. at 267). A. Forum Availability As we noted in Mercier II, an alternative forum generally will be considered “available” provided the defendant who asserts forum non conveniens is amenable to process in the alternative forum. 935 F.2d at 424 (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947)); see also Piper Aircraft, 454 U.S. at 254 n. 22, 102 S.Ct. at 265 n. 22. There seems to" }, { "docid": "23664003", "title": "", "text": "Co., 693 F.2d 683, 688 (7th Cir.1982) (citations omitted), and this is particularly true where a domestic plaintiff has filed suit in his own home forum. See id.; see also Kamel, 108 F.3d at 803. However, some of our sister circuits have suggested that where the parties to an international dispute have agreed to a mandatory forum selection clause, the usual forum non conveniens analysis no longer applies, and the only question remaining for the district court to determine is whether the forum selection clause is enforceable under the stan dards set forth in Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). See Evolution Online Sys., Inc. v. Koninklijke PTT Nederland N.V., 145 F.3d 505, 509-10 (2d Cir.1998) (suggesting that a district court should first apply the Bremen standards to determine whether the forum selection clause was enforceable, and should only reach the defendant’s motion to dismiss on forum non conve-niens grounds if it finds that the parties did not form a contract containing a forum selection clause); Cf. Mitsui & Co. (USA), Inc. v. Mira M/V, 111 F.3d 33, 37 (5th Cir.1997) (rejecting appellant’s challenge to the enforcement of a mandatory forum selection clause for reasons of forum non conveniens, and stating that “increased cost and inconvenience are insufficient reasons to invalidate foreign forum-selection or arbitration clauses.”); hut see Royal Bed & Spring Co., Inc. v. Famossul Industria e Comercio de Moveis Ltda., 906 F.2d 45, 51 (1st Cir.1990) (ruling that a forum selection provision is not dispositive of a motion to dismiss on forum non conveniens grounds, but rather is “simply one of the factors that should be considered and balanced” in the ordinary forum non conveniens analysis.) In Bremen, the Court ruled that a freely negotiated mandatory forum selection clause is enforceable unless the party challenging its enforcement can “clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching,” or that “trial in the [chosen] forum will be so gravely difficult and inconvenient that he will for all" }, { "docid": "13646286", "title": "", "text": "request to give effect to the parties’ contractual choice of venue and transfer this case” to a forum indicated in the forum selection clause, to which the Court answered in the affirmative. Stewart, 487 U.S. at 28-29, 108 S.Ct. at 2243^44. Thus, the determinative standards are those stated in § 1404(a) and Stewart, not those stated in The Bremen. See Royal Bed & Spring Co., Inc. v. Famossul Indust-ria e Comercio de Moveis Ltda., 906 F.2d 45, 51 (1st Cir.1990) (in Stewart, \"the Supreme Court noted that, rather than to have relied on the principles set forth in The Bremen case, the court of appeals should have decided whether section 1404(a) itself controlled Ricoh’s request to give effect to the parties' contractual choice of venue which provided for a transfer of the case to a Manhattan court [and] [t]he Supreme Court added: 'we hold that it does.' [Stewart, 487 U.S. at 29, 108 S.Ct.] at 2243.”); Red Bull Assocs. v. Best Western Int'l, Inc., 862 F.2d 963, 966-67 (2d Cir.1988) (\"The Supreme Court has since decided Stewart ... in which it concluded that, outside the admiralty realm, § 1404(a) transfer motions are not governed by the standard articulated in Bremen but by the terms of § 1404(a) itself,” and “Since we believe the district court did not abuse its discretion in refusing to transfer [despite a forum selection clause, which would have indicated transfer] even under the relatively strict confines of Bremen, its decision was a fortiori, not an abuse of discretion under [the intervening decision in] Stewart and was clearly ‘authorized by law’ under § 1404(a).”); Shaw Group, Inc. v. Natkin & Co., 907 F.Supp. 201, 203-04 (M.D.La. 1995) (recognizing that Stewart considered Bremen \"instructive,” and concluding that \"[flor this Court's purposes [on a motion to transfer pursuant to a forum selection clause], Bremen supports the prima facie validity of forum choice clauses and indicates that such provisions are to be given significant weight as a legitimate expression of the parties’ forum selection.”). . It is appropriate to consider statutory, as well as contractual, interpretations of \"will,” because in" } ]

[ { "docid": "18473476", "title": "", "text": "facts constituting the offense charged.” Fed.R.Crim.P. 7(c). The purpose of a bill of particulars is merely to “inform a defendant of charges with sufficient precision to allow preparation of a defense, to avoid unfair surprise, and to preclude double jeopardy” when the indictment is too vague to serve this purpose. United States v. GAF Corp., 928 F.2d 1253, 1260 (2d Cir.1991) (citing Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 302, 71 L.Ed. 545 (1927)). It is not an investigative tool to be used for the “[a]cquisition of evidentiary detail.” United States v. Torres, 901 F.2d 205, 234 (2d Cir.) (quoting Hemphill v. United States, 392 F.2d 45, 49 (8th Cir.), cert. denied, 393 U.S. 877, 89 S.Ct. 176, 21 L.Ed.2d 149 (1968)) (internal quotation marks omitted), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990). In deed, the Government is not required to particularize all of its evidence before trial. United States v. Cephas, 937 F.2d 816, 823 (2d Cir.1991), cert. denied, 502 U.S. 1037, 112 S.Ct. 884, 116 L.Ed.2d 788 (1992). Accordingly, “[i]t is improper to use a bill of particulars to compel the Government to disclose the manner in which it will prove the charges or preview its evidence or legal theory.” United States v. LaMorte, 744 F.Supp. 573, 577 (S.D.N.Y.1990); accord United States v. Jimenez, 824 F.Supp. 351, 363 (S.D.N.Y. 1993) (“[T]he Government may not be compelled to provide a bill of particulars disclosing the manner in which it will attempt to prove the charges, the precise manner in which a defendant committed the crime charged, or give a preview of its evidence and legal theories.”). The Court of Appeals for the Second Circuit has instructed that “[a] bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused.” Torres, 901 F.2d at 234 (quoting United States v. Feola, 651 F.Supp. 1068, 1132 (S.D.N.Y. 1987), aff’d mem., 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 834, 110" } ]

[ { "docid": "526611", "title": "", "text": "780, 791 (S.D.N.Y.1988), aff'd sub nom., United States v. Benitez, 920 F.2d 1080 (2d Cir.1990). Courts will not order particularization where the government has provided the information requested either “in the indictment or some acceptable alternative form.” United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir.1987); United States v. Feola, 651 F.Supp. 1068, 1133 (S.D.N.Y.1987), aff'd, 875 F.2d 857 (2d Cir.1989), cert. denied, 493 U.S. 834, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989). A Bill of Particulars should only be required “where the charges in the indictment are so general that they do not advise the defendant of the specific acts of which he is accused.” Feola, supra, at 1132. Further, “[acquisition of evidentiary detail is not the function of the bill of particulars.” United States v. Torres, 901 F.2d 205, 234 (2d Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990) (denying request for bill of particulars identifying unindicted alleged co-conspirators referred to in indictment as “known and unknown” on the basis that such information was unnecessary to advise defendants of the specific acts of which they were accused). A defendant does not “need” detailed evidence about a charged conspiracy in order to prepare for trial properly. Feola, supra, at 1132. Additionally, as the government can prove the existence of a conspiracy through circumstantial evidence, a bill of particulars comprised of very specific details is not appropriate. United States v. Taylor, 707 F.Supp. 696, 699 (S.D.N.Y.1989). The court finds it is unnecessary for the Government to state who may have transacted drugs with Galarza. However, to the extent that the Government intends to establish Galarza’s status as a co-conspirator by her engaging in narcotics trafficking or monetary transactions, the court directs the Government to particularize each date and approximate time that Galarza conducted a drug transaction or engaged in a monetary transaction in furtherance or aid of the conspiracy so as to avoid undue surprise at trial. II. Disclosure of Informant Identities Defendants Fisher and Pierce have requested the Government to provide the names of informants or cooperating sources who provided information to investigators" }, { "docid": "20150521", "title": "", "text": "a bill of particulars describing the evidence that the Government will offer at the trial to prove that he defrauded three alleged victims: Aenos Towing, Inc., T.I.A. of New York, Inc., and FFA. “Rule 7(f) ... permits the defendant to seek a bill of particulars in order to identify with sufficient particularity the nature of the charge pending against him, thereby enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense.” United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir.1987). However, it is well-established that “the Government may not be compelled to provide a bill of particulars disclosing the manner in which it will attempt to prove the charges, the precise manner in which the defendant committed the crimes charged, or a preview of the Government’s evidence or legal theories.” United States v. Sattar, 314 F.Supp.2d 279, 318 (S.D.N.Y.2004) (citing United States v. Mitlof, 165 F.Supp.2d 558, 569 (S.D.N.Y.2001)). In fact, “[a] bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused.” United States v. Torres, 901 F.2d 205, 234 (2d Cir.1990) (quoting United States v. Feola, 651 F.Supp. 1068, 1132 (S.D.N.Y.1987), aff'd, 875 F.2d 857 (2d Cir.1989)). “In determining whether a bill of particulars is warranted ‘[t]he important question is whether the information sought is necessary, not whether it is helpful.’ ” United States v. Ramos, No. 06-CR-172, 2009 WL 602977, at *1 (S.D.N.Y. Mar. 3, 2009) (quoting United States v. Facciolo, 753 F.Supp. 449, 451 (S.D.N.Y.1990)). Consistent with this principle, courts generally “deny requests for bills of particulars concerning the ‘wheres, whens, and with whoms’ of the crime.” Id. (quoting United States v. Ma, No. 03-CR-734, 2006 WL 708559, at *14 (S.D.N.Y. Mar. 21, 2006), and Mitlof 165 F.Supp.2d at 569). Ultimately, the decision of whether to grant or deny a request for a bill of particulars is committed to the sound discretion of the district court." }, { "docid": "37722", "title": "", "text": "809 (S.D.N.Y.1987); United States v. Connery, Civil No. H-88-4,-WL-(PCD) (D.Conn. May 4, 1989), Ruling On Motion For Bill Of Particulars at 1. A bill of particulars is appropriate only “where the charges of an indictment are so general that they do . not advise the defendant of the specific acts of which he is accused.” United States v. Matos-Peralta, 691 F.Supp. 780, 791 (S.D.N.Y.1988), citing United States v. Leonelli, 428 F.Supp. 880, 882 (S.D.N.Y.1977). However, a bill of particulars is not intended to give a preview of the case or unduly restrict the government’s presentation of its case or unduly restrict the government in presenting its proof at trial. Connery, Ruling at 2; see also, United States v. Feola, 651 F.Supp. 1068, 1133 (S.D.N.Y.1987), aff'd without op., 875 F.2d 857 (2d Cir.), cert. denied, — U.S. -, 110 S.Ct. 110, 107 L.Ed.2d 72 (1984); Ma-tos-Peralta, 691 F.Supp. at 791. “The ultimate test must be whether the information sought is necessary, not whether it is helpful.” Matos-Peralta, 691 F.Supp. 791. In determining whether the information sought is necessary, the court must consider whether it has been or can be obtained through discovery under Fed.R.Crim.P. 16 and/or the Local Standing Order on Discovery, and the indictment. Feola, 651 F.Supp. at 1133. Defendants request information with respect to the alleged conspiracy and specifically: (1) the facts which support the allegation that Mr. Foote was foreign within the meaning of the FCPA; (2) the facts which form the basis of the government’s allegations that defendants conspired to violate the FCPA, including when and where defendants joined the conspiracy. Span-genberg also requests information on whether he is charged as a principal or as an aider and abettor in each racketeering act alleged in Count Two. To require ■ specification of the “formation of the conspiracy, the place and date of each defendant’s entrance into the conspiracy, the substance or a copy of the conspiracy, and specification of the manner in which the conspiracy operated would unduly restrict the government’s proof at trial.” United States v. McCarthy, 292 F.Supp. 937, 940 (S.D.N.Y.1968); see also Feola, 651" }, { "docid": "13619024", "title": "", "text": "refer to weapons seized pursuant to a warrant to search the home of Cynthia Chaney and Raymond Cobb in Utica, New York. Count 26 charges defendants Walker and Lindsey with conspiracy to possess and deal in firearms. Lastly, count 27 is a criminal forfeiture brought pursuant to 21 U.S.C. § 853, seeking forfeiture of illegally obtained assets in the amount of approximately $185,000. DISCUSSION 1. Bill of Particulars Defendants request a bill of particulars specifying items, too numerous to list here, pertaining to the crimes that defendants allegedly committed. Whether to grant a motion for a bill of particulars lies within the sound discretion of the court. United States v. Torres, 901 F.2d 205, 234 (2d Cir.1990) (citing United States v. Panza, 750 F.2d 1141, 1148 (2d Cir.1984)); Fed. R.Crim.P. 7(f). A bill of particulars serves to “apprise a defendant of the nature of the charges against him, so that he can adequately prepare a defense, avoid prejudicial surprise at trial, and plead double jeopardy in that or any subsequent related action.” United States v. Greater Syracuse Bd. of Realtors, Inc., 438 F.Supp. 376, 379 (N.D.N.Y.1977) (Munson, J.); see also United States v. Feola, 651 F.Supp. 1068, 1132 (S.D.N.Y.1987), aff'd, 875 F.2d 857 (2d Cir.1989) (citations omitted). If a defendant is supplied with adequate information to prepare a defense, then the court may deny the motion. Id. A bill of particulars is not to be used as a general investigative tool for the defendant, or a device through which to learn the government’s evidence or legal theories prior to trial. United States v. Biaggi, 675 F.Supp. 790, 809 (S.D.N.Y.1987). Because redundant information is not necessary to prepare a defense, defendants are not entitled to discover through a bill of particulars information which is already available to them through other sources. Feola, 651 F.Supp. at 1182. In determining whether a bill of particulars is warranted, the court should consider “the complexity of the offense, the clarity of the indictment, and the degree of discovery otherwise available to the defendants.” United States v. Diaz, 675 F.Supp. 1382, 1390 (E.D.N.Y.1987) (quoting United States" }, { "docid": "21895838", "title": "", "text": "with whom they allegedly conspired. As a general rule, a defendant is not entitled to detailed evidence about a conspiracy to properly prepare for trial. United States v. Feola, 651 F.Supp. 1068, 1132 (S.D.N.Y.1987), aff'd, 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 834, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989). More specifically, details regarding the date on which the conspiracy was formed, or when each participant entered into the conspiracy need not be revealed before trial. United States v. Persico, 621 F.Supp. 842, 868 (S.D.N.Y.1985). Furthermore, “[defendants are not entitled to discover through a bill of particulars the locations in addition to those listed in the indictment at which they are alleged to have violated the statute, where the information already made available to defendants is sufficient to enable proper preparation for trial and further discovery would amount to an unnecessary revelation of evidence.” Feola, 651 F.Supp. at 1133 (citation omitted). Finally, the refusal of a district court to direct the filing of a bill of particulars as to the names of unindicted co-conspirators is not an abuse of discretion. United States v. Gotti, 784 F.Supp. 1017, 1018 (E.D.N.Y.1992) (citing United States v. Torres, 901 F.2d 205, 233-34 (2d Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990)). Because Defendants have received adequate information regarding the time, place, and nature of the charged conspiracy, and in keeping with the reasoning of the cases cited above, Defendants’ requests with regard to any such specific details are denied. B. The Substantive Extortion Charges Defendants also request certain particulars with regard to the substantive charges of extortion contained in Counts Two, Four, and Five. More specifically, Defendants contend that the Government should provide them with details regarding the quid pro quo that the Government will seek to provide at trial. (Losquadro Mem. at 18 n. 3.) Although Defendants do not elaborate upon the information that would fulfill such a request, presumably Defendants are requesting information with respect to what specific official acts the Defendants allegedly agreed to perform, when and where these agreements occurred, and which property" }, { "docid": "21895837", "title": "", "text": "Thus, a bill of particulars “should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused,” Torres, 901 F.2d at 234 (citations omitted); and “[i]t is not enough that the information would be useful to the defendant; if the defendant has been given adequate notice of the charges against him, the government is not required to disclose additional details about its case.” United States v. Payden, 613 F.Supp. 800, 816 (S.D.N.Y.1985). The decision to grant or deny a bill of particulars is within the sound discretion of the trial court. United States v. Panza, 750 F.2d 1141, 1148 (2d Cir.1984). A. Details of the Conspiracy Defendants first request certain details with regard to the conspiracy with which they are charged. In this regard, they seek particularization regarding the following: (1) the dates that the conspiracy began and ended; (2) where, other than in the Eastern District of New York, the conspiracy allegedly occurred; and (3) the “others” with whom they allegedly conspired. As a general rule, a defendant is not entitled to detailed evidence about a conspiracy to properly prepare for trial. United States v. Feola, 651 F.Supp. 1068, 1132 (S.D.N.Y.1987), aff'd, 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 834, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989). More specifically, details regarding the date on which the conspiracy was formed, or when each participant entered into the conspiracy need not be revealed before trial. United States v. Persico, 621 F.Supp. 842, 868 (S.D.N.Y.1985). Furthermore, “[defendants are not entitled to discover through a bill of particulars the locations in addition to those listed in the indictment at which they are alleged to have violated the statute, where the information already made available to defendants is sufficient to enable proper preparation for trial and further discovery would amount to an unnecessary revelation of evidence.” Feola, 651 F.Supp. at 1133 (citation omitted). Finally, the refusal of a district court to direct the filing of a bill of particulars as to the names of unindicted" }, { "docid": "1667579", "title": "", "text": "“federal, state or local law.” These words merely describe the intent element. Nor is the defendant left in the dark as to which of these many laws would be violated by the sexual act which he is charged with intending to persuade a minor to engage in. The government informed the defendant in a Bill of Particulars which laws the intended sexual act violates. For these reasons, the defendant’s motion to dismiss Count One of the indictment based on impermissible disjunctive pleading (Doc. No. 29) is denied. F. Bill of Particulars The defendant moves the Court to order the government to provide a Bill of Particulars specifying: (1) what means of interstate commerce were used by the defendant, (2) the content and dates of all communications between the defendant and the alleged minor victim, (3) the specific federal, state or local law for which the alleged sexual act would be subject to criminal prosecution, and (4) the nature of the alleged sexual act. (Def.’s Mot. for Bill of Particulars at 1-2.) The government responded to this motion by supplying a Bill of Particulars as to the specific laws violated by the sexual act charged in the indictment. However, as to the remaining three requests, the government objects that they fail to meet the requisite standard of necessity. (Government’s Omnibus Resp. at 30.) A Bill of Particulars is required only when the charges set forth in the indictment are so general that they fail to inform the defendant of the specific acts of which he is accused. Torres, 901 F.2d at 234. A defendant must possess information specific enough to enable him to prepare an adequate defense, to prevent surprise at trial, and to allow him to plead double jeopardy if that becomes necessary at a later time. United States v. Murgas, 967 F.Supp. 695, 702 (N.D.N.Y.1997). In determining whether the defendant has received sufficient specifics to allow him to prepare for trial, a court should consider any information obtained by the defendant through discovery, as well as that contained within the indictment. United States v. Muyet, 945 F.Supp. 586, 599" }, { "docid": "1667581", "title": "", "text": "(S.D.N.Y.1996). The government is not required to reveal to a defendant all of the evidence it will produce at trial. United States v. Feola, 651 F.Supp. 1068, 1133 (S.D.N.Y.1987), aff'd, 875 F.2d 857 (2d Cir.1989), cert. denied, 493 U.S. 834, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989). Indeed, because a Bill of Particulars serves to restrict how the government may present its case at trial, the question is not whether the information sought would be beneficial to the defendant, but whether it is necessary for his defense. United States v. Young & Rubicam, Inc., 741 F.Supp. 334, 349 (D.Conn.1990). The defendant first requests specifics as to the “exact nature” of the means of interstate commerce he allegedly used. (Def.’s Mot. for Bill of Particulars at 1.) Taking into consideration both the indictment and materials the defendant has received in discovery the Court finds that Mr. Kuirovich has been adequately informed in this regard. The indictment claims that the defendant used the telephone wires, Internet, and United States Mail. Furthermore, the government represents in its response to the defendant’s motion that he has received copies of letters the alleged minor victim received from him, confirmation of the America On Line account held by the alleged victim’s family, as well as copies of various telephone bills of the family. (Government’s Omnibus Resp. at 32.) The defendant also asks for the exact dates and contents of communications between himself and the alleged minor victim. (Def.’s Mot. for Bill of Particulars at 1.) These details lie outside the range of information to which the defendant is entitled. A Bill of Particulars may not be used as a tool to get an advance view of the government’s evidentiary theory. Torres, 901 F.2d at 234. Finally, the defendant seeks information on the exact nature of the sexual act referred to in both counts of the indictment. (Def.’s Mot. for Bill of Particulars at 2.) The Court finds that the defendant already has received adequate information as to the nature of the sexual act mentioned in the indictment. In Count One, the sexual act is defined by" }, { "docid": "37721", "title": "", "text": "The jury will be clearly instructed, if requested, to limit their consideration of McKenna’s guilt to the elements of perjury and the proof thereof. Accordingly, McKenna’s motion for ex-pungement is denied. 6. Motion for Bill of Particulars Defendants Y & R, Klein, Spangenberg, and McKenna each move for a bill of particulars requesting specific information as to particular allegations. McKenna’s motion is denied as moot in view of the government’s responses. For reasons discussed below, the motion is denied with respect to the remaining defendants. A bill of particulars provides facts, in addition to those alleged in the indictment, that are necessary to apprise a defendant of the charges against him with sufficient precision to enable him to prepare for trial, to avoid or minimize unfair surprise, and to plead double jeopardy in bar of future prosecution for the same offense. Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 302, 71 L.Ed. 545 (1927); United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir.1987); United States v. Biaggi, 675 F.Supp. 790, 809 (S.D.N.Y.1987); United States v. Connery, Civil No. H-88-4,-WL-(PCD) (D.Conn. May 4, 1989), Ruling On Motion For Bill Of Particulars at 1. A bill of particulars is appropriate only “where the charges of an indictment are so general that they do . not advise the defendant of the specific acts of which he is accused.” United States v. Matos-Peralta, 691 F.Supp. 780, 791 (S.D.N.Y.1988), citing United States v. Leonelli, 428 F.Supp. 880, 882 (S.D.N.Y.1977). However, a bill of particulars is not intended to give a preview of the case or unduly restrict the government’s presentation of its case or unduly restrict the government in presenting its proof at trial. Connery, Ruling at 2; see also, United States v. Feola, 651 F.Supp. 1068, 1133 (S.D.N.Y.1987), aff'd without op., 875 F.2d 857 (2d Cir.), cert. denied, — U.S. -, 110 S.Ct. 110, 107 L.Ed.2d 72 (1984); Ma-tos-Peralta, 691 F.Supp. at 791. “The ultimate test must be whether the information sought is necessary, not whether it is helpful.” Matos-Peralta, 691 F.Supp. 791. In determining whether the information sought" }, { "docid": "11331203", "title": "", "text": "the victim. Put another way, does the identity of the proposed victim alter the legal character of the acts agreed to, or is it no more germane to the nature of those acts than the color of the victim’s hair? United States v. Feola, 420 U.S. at 692-93, 95 S.Ct. 1255 (Emphasis added). To pose the highlighted question in this ease, we need only substitute the words “consequence of the alleged negligence” for the words “official identity of the victim.” The question, as put by the Feola Court, is whether the acts contemplated by the conspirators are to be deemed legally different from those actually performed solely because of their unintended (but possibly not unforeseen) criminal consequences. Understanding that the statement quoted above is dictum, the Supreme Court has nonetheless suggested that the distinction it highlights is “a difference that makes a difference.” The Government should bear this in mind as it prepares to argue the inevitable Rule 29 motion. 3. Request for Bill of Particulars and Additional Discovery It is well settled that the purpose of a bill of particulars is to provide facts supplemental to those contained in an indictment that are necessary to inform a defendant of the charges against him with sufficient precision, (1) to prepare a defense, (2) to avoid unfair surprise at trial, and (3) to preclude a second prosecution for the same offense. United States v. Torres, 901 F.2d 205, 234 (2d Cir.) cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990). “A bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts which he is accused.” Torres, 901 F.2d at 234. The ultimate test must be whether the information sought is necessary, not whether it is helpful. See United States v. Leighton, 265 F.Supp. 27, 35 (S.D.N.Y.1967), aff'd, 386 F.2d 822 (2d Cir.1967). The Government may not be compelled to provide a bill of particulars disclosing the manner in which it will attempt to prove the charges, the precise manner in which" }, { "docid": "526610", "title": "", "text": "between Galarza and her co-conspirators (Pynn Affirmation ¶ 29(a),(b),(c), respectively), but reserved decision on Galarza’s request that the Government particularly describe acts she committed in furtherance of the conspira cy. Specifically, Galarza inquires whether the Government alleges she committed acts in furtherance of the conspiracy apart from statements Galarza made to her husband over the telephone. (Pynn Affirmation ¶ 29(d)). Galarza bases her request on a fear of undue surprise at trial that a witness may describe a drug transaction involving Galarza. The Government responds there is no evidence of Galarza conducting a hand-to-hand drug transaction, but states it cannot further reveal the specific acts she allegedly committed in furtherance of the conspiracy because it is part of the Government’s trial evidence. (Doc. No. 68). Galarza argues this representation does not rule out the possibility that the Government may attempt to prove Galarza was involved in a money transaction. The test as to whether to order particularization is “whether the information sought is necessary, not whether it is useful.” United States v. Matos-Peralta, 691 F.Supp. 780, 791 (S.D.N.Y.1988), aff'd sub nom., United States v. Benitez, 920 F.2d 1080 (2d Cir.1990). Courts will not order particularization where the government has provided the information requested either “in the indictment or some acceptable alternative form.” United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir.1987); United States v. Feola, 651 F.Supp. 1068, 1133 (S.D.N.Y.1987), aff'd, 875 F.2d 857 (2d Cir.1989), cert. denied, 493 U.S. 834, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989). A Bill of Particulars should only be required “where the charges in the indictment are so general that they do not advise the defendant of the specific acts of which he is accused.” Feola, supra, at 1132. Further, “[acquisition of evidentiary detail is not the function of the bill of particulars.” United States v. Torres, 901 F.2d 205, 234 (2d Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990) (denying request for bill of particulars identifying unindicted alleged co-conspirators referred to in indictment as “known and unknown” on the basis that such information was unnecessary to advise" }, { "docid": "13730645", "title": "", "text": "the government particularizes its evidence. See United States v. Davidoff, 845 F.2d 1151, 1152 (2d Cir.1988); United States v. Torres, 901 F.2d 205, 234 (2d Cir.1990). A bill of particulars is only required when the charges in the Indictment are so general that they fail to appraise the defendant of the specific acts of which he is accused. See Torres, 901 F.2d at 234; United States v. Feola, 651 F.Supp. 1068, 1132 (S.D.N.Y.1987), aff'd, 875 F.2d 857 (1989). Supplying evidentiary detail is not the function of the bill of particulars; it is not meant to be a method for compelling disclosure of the government’s evidence before trial. See Torres 901 F.2d at 234; United States v. Lebron, 222 F.2d 531, 535-36 (2d Cir.1955). Generally, if the Indictment contains the information sought by the defendant, a bill of particulars is not necessary. See Bortnovsky at 574. In any case, whether or not to grant such a request rests in the sound discretion of the trial judge. See United States v. Panza, 750 F.2d 1141, 1148 (2d Cir.1984). In this case, Sapp argues that a bill of particulars is appropriate because the indictment does not specify what conduct of his furthered the alleged crimes. In his motion for a bill of particulars Garrison seeks, inter alia, the particular times, dates, locations and circumstances of the alleged possessions as well as a statement specifying the elements of the conspiracy, the overt acts involved, the identities of other conspirators and witnesses to the overt acts, the content of the communications between the individuals involved and the type of cocaine allegedly distributed. The Indictment sets forth the crimes charged, the date on which the crimes were allegedly committed, the participants, the location and the substances involved. Thus, because “much of the information requested in the bill of particulars is readily found in the indictment,” the Court finds “the indictment i this ease is sufficiently detailed so that the defendant can adequately prepare a defense, avoid prejudicial surprise at trial, and raise any possible defense of double jeopardy.” See United States v. Remy, 658 F.Supp. 661," }, { "docid": "14964336", "title": "", "text": "exercising this discretion, a court must examine the totality of the information available to the defendant, including the indictment and general pretrial discovery, and determine whether, in light of the charges that the defendant is required to answer, the filing of a bill of particulars is warranted. United States v. Bin Laden, 92 F.Supp.2d 225, 233 (S.D.N.Y.2000). The purpose of a bill of particulars is to supplement the facts contained in the indictment so that a defendant is able to identify with sufficient particularity the nature of the charges against him, to prepare for trial, to prevent surprise and to interpose a plea of double jeopardy should the defendant be prosecuted a second time for the same offense. United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir.1987). Generally, a bill of particulars is required only where the indictment is so general that it does not advise the defendant of the specific acts of which he is accused. United States v. Torres, 901 F.2d 205, 234 (2d Cir.1990) (citations omitted), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990). “It is not enough that the information would be useful to the defendant; if the defendant has been given adequate notice of the charges against him, the government is not required to disclose additional details about its case.” United States v. Payden, 613 F.Supp. 800, 816 (S.D.N.Y.1985). Because a bill of particulars confines the government’s proof to the particulars furnished, a court should not grant a bill of particulars where, as here, the consequence of granting the request would be to unduly restrict the government’s ability to present its case. See United States v. Perez, 940 F.Supp. 540, 550 (S.D.N.Y.1996) (citations omitted). Defendants argue that details regarding the dates of the conspiracies; the dates the conspiracies’ members allegedly joined; the dates on which certain meetings occurred; the dates of other transactions; information regarding payments allegedly made to Defendants; the investors to whom representations were allegedly made by Defendants; and other similar matters are necessary to effectively prepare for trial and to exercise their rights under the due process" }, { "docid": "6145305", "title": "", "text": "indictment are so general that they do not advise the defendant of the specific acts of which he is accused.’ ” United States v. Torres, 901 F.2d 205, 234 (2d Cir.) (quoting United States v. Feola, 651 F.Supp. 1068, 1132 (S.D.N.Y.1987), aff'd, 875 F.2d 857 (2d Cir.1989)), cert. denied sub nom. Cruz v. United States, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990). The indictment specifies sixteen racketeering acts. The government is directed to provide defendants (1) the specific location “in the Chinatown section of New York” where the robbery or robberies alleged in paragraphs 12, 36, and 42 of the indictment is (are) said to have occurred; (2) the dates of the robberies of the Golden Pond Restaurant alleged in paragraphs 18 and 20; (3) the date of the robbery of the No. 1 Noodle Shop alleged in paragraphs 21 and 39; and (4) the name and address of the business on Allen Street, New York, New York, alleged in paragraphs 17 and 37 to have been robbed. Upon receipt of this information, defendants will be sufficiently apprised of the charges against them to enable them to prepare a defense, to avoid surprise at trial, and to enable them to interpose a plea of double jeopardy if necessary. See Torres, 901 F.2d at 234; United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir.1988); United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir.1987). Accordingly, their requests for bills of particulars are denied except as noted above. e. Disclosure of evidence of crimes, wrongs, or acts that the government intends to introduce at trial pursuant to Fed.R.Evid. 404(b) The government agrees to disclose the substance of material it intends to introduce under Fed.R.Evid. 404(b) before offering any such material, but resists any time requirement for this disclosure. It claims that the evidence it “wishes to offer may well change as the proof and possible defenses crystallize.” (Gov’t Mem at 29-30.) Fed.R.Evid. 404(b) states that “upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if" }, { "docid": "11331204", "title": "", "text": "purpose of a bill of particulars is to provide facts supplemental to those contained in an indictment that are necessary to inform a defendant of the charges against him with sufficient precision, (1) to prepare a defense, (2) to avoid unfair surprise at trial, and (3) to preclude a second prosecution for the same offense. United States v. Torres, 901 F.2d 205, 234 (2d Cir.) cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990). “A bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts which he is accused.” Torres, 901 F.2d at 234. The ultimate test must be whether the information sought is necessary, not whether it is helpful. See United States v. Leighton, 265 F.Supp. 27, 35 (S.D.N.Y.1967), aff'd, 386 F.2d 822 (2d Cir.1967). The Government may not be compelled to provide a bill of particulars disclosing the manner in which it will attempt to prove the charges, the precise manner in which the defendant committed the crime charged, or a preview of the Government’s evidence or legal theories. United States v. Wilson, 565 F.Supp. 1416, 1439 (S.D.N.Y.1983); United States v. Mannino, 480 F.Supp. 1182, 1185 (S.D.N.Y.1979), United States v. Culoso, 461 F.Supp. 128, 134 & n. 9 (S.D.N.Y.1978), aff'd without opinion, 607 F.2d 999 (2d Cir.1979). In its request for a bill of particulars defendant’s asks the Government to (i) to specify which of “fraud, neglect, connivance, misconduct, and violation of law” each of the defendant’s was alleged to have committed, (ii) to identify each act of “fraud, neglect, connivance, misconduct, and violation of law” upon which the Government will base its case, and (iii) to identify each act of “fraud, neglect, connivance, misconduct, and violation of law” on the part of each defendant through which it is alleged that the “life of a person was destroyed.” Mitlof argues that the indictment “provides no real clue as to what [he] did wrong.” The Court disagrees. The indictment contains far more detailed than most cases, and sets forth" }, { "docid": "15997536", "title": "", "text": "details of the charge against him if this is necessary to the preparation of his defense, and to avoid prejudicial surprise at the trial.” United States v. Torres, 901 F.2d 205, 234 (2d Cir.1990) (quoting 1 Charles A. Wright, Federal Practice and Procedure § 129, at 434-35 (2d ed.1982) and citing United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir.1987) (per curiam)). It is almost as frequently stated that “[a] bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused.” Id. (quoting United States v. Feola, 651 F.Supp. 1068, 1132 (S.D.N.Y.1987), aff'd, 875 F.2d 857 (2d Cir.1989)). Many courts have observed that “[acquisition of evidentiary detail is not the function of the bill of particulars,” id., and that it is not the bill’s function “to allow defendants a preview of the evidence or the theory of the government’s case,” United States v. Taylor, 707 F.Supp. 696, 699 (S.D.N.Y.1989) (quoting United States v. Guerrerio, 670 F.Supp. 1215, 1225 (S.D.N.Y.1987) (internal quotation marks omitted)). Finally, it is typically noted that “in deciding whether a bill of partieu- lars is needed, the court must determine whether the information sought has been provided elsewhere, such as in other items provided by discovery, responses made to requests for particulars, prior proceedings, and the indictment itself.” Strawberry, 892 F.Supp. at 526 (citing Feola, 651 F.Supp. at 1133). Once one focuses, however, on the details of a particular case, it becomes apparent that the foregoing, oft-repeated generalities provide little guidance. The line that distinguishes one defendant’s request to be apprised of necessary specifics about the charges against him from another’s request for evidentiary detail is one that is quite difficult to draw. It is no solution to rely solely on the quantity of information disclosed by the government; sometimes, the large volume of material disclosed is precisely what necessitates a bill of particulars. See Bortnovsky, 820 F.2d at 575 (“providing mountains of documents to defense counsel” when the indictment contained general allegations of fraud" }, { "docid": "1667580", "title": "", "text": "this motion by supplying a Bill of Particulars as to the specific laws violated by the sexual act charged in the indictment. However, as to the remaining three requests, the government objects that they fail to meet the requisite standard of necessity. (Government’s Omnibus Resp. at 30.) A Bill of Particulars is required only when the charges set forth in the indictment are so general that they fail to inform the defendant of the specific acts of which he is accused. Torres, 901 F.2d at 234. A defendant must possess information specific enough to enable him to prepare an adequate defense, to prevent surprise at trial, and to allow him to plead double jeopardy if that becomes necessary at a later time. United States v. Murgas, 967 F.Supp. 695, 702 (N.D.N.Y.1997). In determining whether the defendant has received sufficient specifics to allow him to prepare for trial, a court should consider any information obtained by the defendant through discovery, as well as that contained within the indictment. United States v. Muyet, 945 F.Supp. 586, 599 (S.D.N.Y.1996). The government is not required to reveal to a defendant all of the evidence it will produce at trial. United States v. Feola, 651 F.Supp. 1068, 1133 (S.D.N.Y.1987), aff'd, 875 F.2d 857 (2d Cir.1989), cert. denied, 493 U.S. 834, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989). Indeed, because a Bill of Particulars serves to restrict how the government may present its case at trial, the question is not whether the information sought would be beneficial to the defendant, but whether it is necessary for his defense. United States v. Young & Rubicam, Inc., 741 F.Supp. 334, 349 (D.Conn.1990). The defendant first requests specifics as to the “exact nature” of the means of interstate commerce he allegedly used. (Def.’s Mot. for Bill of Particulars at 1.) Taking into consideration both the indictment and materials the defendant has received in discovery the Court finds that Mr. Kuirovich has been adequately informed in this regard. The indictment claims that the defendant used the telephone wires, Internet, and United States Mail. Furthermore, the government represents in its response" }, { "docid": "10557488", "title": "", "text": "to obtain disclosure of evidence or witnesses to be offered by the Government at trial, but to minimize surprise, to enable a movant to obtain such ultimate facts as are needed to prepare his defense, and to permit a defendant successfully to plead double jeopardy if he should be prosecuted later for the same offense. See Unites States v. Salazar, 485 F.2d 1272, 1278 (2d Cir.1973), cert. denied, 415 U.S. 985, 94 S.Ct. 1579, 39 L.Ed.2d 882 (1974). A bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused. See Unites States v. Ramirez, 602 F.Supp. 783 (S.D.N.Y.1985). Thus, courts have refused to treat a bill of particulars as a general investigative tool for the defense, or as a device to compel disclosure of the Government’s evidence or its legal theory prior to trial. See United States v. Gottlieb, 493 F.2d 987, 994 (2d Cir.1974). In deciding whether a bill of particulars is needed, the court must determine whether the information sought has been provided elsewhere, such as in other items provided by discovery, responses made to requests for particulars, prior proceedings, and the indictment itself. See United States v. Feola, 651 F.Supp. 1068, 1133 (S.D.N.Y.1987), aff'd, 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 834, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989). As a general rule, the defendant does not “need” detailed evidence about a conspiracy in order to prepare for trial properly. Details as to how and when a conspiracy was formed, or when each participant entered it, need not be revealed before trial. See Feola, 651 F.Supp. at 1132. Goldschmidt first requests that the Government provide a bill of particulars identifying the “eo-eonspirators” and “oth ers” that allegedly participated in the tax evasion scheme referred to in the indictment and the dates when they and the defendants are alleged to have entered and withdrew from the conspiracy. Goldschmidt requests that the Government identify the various “promoters” and “hosts” who allegedly (1) failed to issue" }, { "docid": "3056138", "title": "", "text": "addresses of all unnamed co-conspirators; each overt act allegedly committed in furtherance of the conspiracy; the government’s theory as to the motive underlying each violent crime charged in the indictment; and the precise manner in which the violent acts are alleged to have been committed. A motion for a bill of particulars is directed to the discretion of the Court. Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 302, 71 L.Ed. 545 (1927); United States v. Salazar, 485 F.2d 1272, 1278 (2d Cir.1973), cert. denied, 415 U.S. 985, 94 S.Ct. 1579, 39 L.Ed.2d 882 (1974). A bill of particulars is meant to apprise the defendant of the essential facts of a exime and should be required only where the “charges of an indictment are so general that they do not advise a defendant of the specific acts of which he is accused.” United States v. Torres, 901 F.2d 205, 234 (2d Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990) (quoting United States v. Feola, 651 F.Supp. 1068, 1132 (S.D.N.Y.1987), aff'd, 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 834, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989)); United States v. Leonelli, 428 F.Supp. 880, 882 (S.D.N.Y.1977). A bill of particulars is not an investigative tool which a defendant can use to force the government to preview its evidence or expose a legal theory. United States v. Gottlieb, 493 F.2d 987, 994 (2d Cir.1974). See United States v. Wilson, 565 F.Supp. 1416, 1439 (S.D.N.Y.1983) and cases cited therein. Because a bill of particulars confines the government’s proof to the particulars furnished, United States v. Glaze, 313 F.2d 757, 759 (2d Cir.1963), requests for bills of particulars should not be granted where the consequence of granting the request would be to unduly restrict the government’s ability to present its case. See United States v. Massino, 605 F.Supp. 1565, 1582 (S.D.N.Y.1985). Rather, its purpose “is to inform the defendant as to the crime for which he must stand trial, not to compel disclosure of how much the government can prove and how much it" }, { "docid": "15283129", "title": "", "text": "direct the government to file a bill of particulars. Fed.R.Crim.P. 7(f); see United States v. Panza, 750 F.2d 1141, 1148 (2d Cir.1984). Bills of particulars are used to protect a particular defendant from another prosecution for the same offense, to enable a defendant to adequately prepare his defense, and to avoid surprise at trial. See United States v. Torres, 901 F.2d 205, 234 (2d Cir.1990). A bill of particulars should not be used as a general discovery tool nor should it be used to circumvent a result not intended by Fed.R.Crim.P. 16. Torres, 901 F.2d at 234. Thus, where the indictment and discovery materials are sufficient to allow a defendant to prepare a defense with reasonable diligence, a court will generally not order that the government file a bill of particulars. See Panza, 750 F.2d at 1148. More specifically, with respect to bills of particulars in conspiracy cases, the general rule is that the defendants do not need detailed evidence about the conspiracy in order to adequately prepare for trial. See, e.g., United States v. Feola, 651 F.Supp. 1068, 1132-33 (S.D.N.Y.), aff'd, 875 F.2d 857 (2d Cir.1989) (defendants in conspiracy case need not know the means by which it is claimed they performed overt acts; details as to how and when the conspiracy was formed, or when each participant entered the conspiracy; whether a particular defendant was present at alleged meeting in furtherance of the conspiracy; and the locations which the conspirators are alleged to have violated the statute). Courts have also held that matters such as the exact time and place of the overt acts and the names and addresses of persons present during meetings were not properly the subject of a bill of particulars. See United States v. Wilson, 565 F.Supp. 1416, 1438 (S.D.N.Y.1983). Here, the court has reviewed the specific requests by each of the defendants and finds, for the most part, the second superseding indictment and the discovery made available to the defendants contain specific information sufficient to allow defendants to prepare a adequate defense, to avoid surprise at trial, and to plead the bar of" } ]

[ { "docid": "1186069", "title": "", "text": "In such event there will be “a heavy burden on the Government to show diligence, and in the absence of such a showing, the charges should be dismissed.” United States v. Burton, supra at 118, 44 C.M.R. at 172 (footnote omitted). We subsequently changed the 3-month trigger to 90-days, in the interest of uniformity and stability. United States v. Driver, 23 U.S.C.M.A. 243, 49 C.M.R. 376 (1974). . It appears from the record before us that much of the Government’s success in this appeal is attributed to the appointment of a judicially trained person to perform the judicial role of Article 32 officer — who knew what was required of him under Burton, who strived continually to meet those responsibilities, and who kept a thorough and detailed record of all his activities in the investigation. . Our examination of responsibility for the passage of time must extend beyond February 20, for it is settled that an Article 39(a) session which is “not the functional equivalent of a trial,” in that it deals solely with matters other than the appellant’s guilt, does not toll the running of the Burton period. See United States v. Beach, 23 U.S.C.M.A. 480, 482, 50 C.M.R. 560, 562, 1 M.J. 118, 120 (1975) (Cook, J. — dissenting) (the majority in Beach had to have concluded likewise, sub silentio, to have reached its disposition); United States v. Marell, 23 U.S.C.M.A. 240, 49 C.M.R. 373 (1974). . We believe the United States Army Court of Military Review correctly articulated the exercise to be conducted when the defense disputes the locus of responsibility for delay it requested: (1) Look at the real cause of the request (i. e., did the Government do anything to affirmatively necessitate the request, see United States v. Beach, supra); and (2) Look at the result of the request (did it really “delay” the proceedings in any way). United States v. Anderson, 49 C.M.R. 37, 39 (A.C.M.R.1974). . See United States v. Johnson, 1 M.J. 294, 296 n. 7 (1976). . See id.; United States v. Marshall, 22 U.S.C.M.A. 431, 435, 47 C.M.R. 409, 413" } ]

[ { "docid": "12130803", "title": "", "text": "Article 92, 10 U.S.C. § 892 or Article 134, 10 U.S.C. § 934 made applicable to cases tried after date of United States v. Courtney, 1 M.J. 438 (C.M.A. 1976). . Also, selecting the date of the convening order could lead to a situation in which for an offense committed after 1 May 1978, Newcomb could be circumvented by the simple device of referring the charges to a court-martial convened by an order issued prior to 1 May 1978. Selecting the referral date would not lead to such an extreme situation, but would nevertheless permit some unnecessary delay in compliance. . Cf. United States v. Gann, 3 U.S.C.M.A. 12, 11 C.M.R. 12 (1953). . Articles 22, 23, 24, 26 and 27, Uniform Code of Military Justice, 10 U.S.C. §§ 822, 823, 824, 826, 827. See also Hiatt v. Brown, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691 (1950); Runkle v. United States, 122 U.S. 543, 7 S.Ct. 1141, 30 L.Ed. 1167 (1887); cf. Wright v. United States, 2 M.J. 9 (C.M.A. 1976); United States v. Durham, 15 U.S.C.M.A. 479, 35 C.M.R. 451 (1965); United States v. Robinson, 13 U.S.C.M.A. 674, 33 C.M.R. 206 (1963). See also W. Winthrop, Military Law and Precedents, Ch. VI (2nd Ed. 1920). . United States v. Ryan, 5 M.J. 97 (C.M.A. 1978). . Id. at 100. . Id. at 101. . Supra at 7. . 10 U.S.C. § 839(a). . Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Linkletter v. Walker 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940). . See United States v. Cannon, 5 M.J. 198 (C.M.A. 1978); United States v. Jackson, 3 M.J. 101 (C.M.A. 1977); United States v. Jordan, 1 M.J. 334 (C.M.A. 1976). The foregoing cases all dealt with rules of evidence at trial or applicable maximum punishment. As these issues involved matters at trial, their prospectivity was determined to be applicable to cases tried after the date of those opinions." }, { "docid": "12139341", "title": "", "text": "action of the supervisory authority and the receipt of the record of trial by The Judge Advocate General for referral to this Court under Article 65(b), U.C.M.J. The only explanation offered by the Government is that after the supervisory authority’s action, the administrative system established to assure timely dispatch of records of trial broke down — apparently as a result of a changeover of administrative personnel. This attempt to explain is woefully inadequate. We find that the delay was both unreasonable and unsatisfactorily explained. United States v. Tucker, 9 U.S.C.M.A. 587, 26 C.M.R. 367 (1958). In the absence of specific prejudice, delay in appellate review is not a ground, in and of itself, for relief. United States v. Banks, 7 M.J. 92 (C.M.A.1979); United States v. Green, 4 M.J. 203 (C.M.A.1978); United States v. Milan, 16 M.J. 730 (A.F.C.M.R.1983); United States v. Sutton, 5 M.J. 709 (A.F.C.M.R.1978). Here, the accused claims that he did suffer such prejudice because the delay in finalizing his case prevented him from effectively applying for desirable employment which he was technically qualified to pursue. This claim is unrebutted by the Government. Traditionally, a finding of prejudice required a showing of: (1) an error in the trial proceedings necessitating a rehearing, and (2) the likelihood that the accused would be prejudiced by the delay in presenting his case on rehearing. United States v. Johnson, 3 M.J. 143 (C.M.A.1977); United States v. Gray, 22 U.S.C.M.A. 443, 47 C.M.R. 484 (1973); United States v. Timmons, 22 U.S.C.M.A. 226, 46 C.M.R. 226 (1973). However, a new chapter has recently been written by the Court of Military Appeals; it recognizes personal prejudice to the accused, as opposed to prejudice to the legal rights of the accused, as sufficient to cause dismissal of the charges for an unreasonable and unexplained post-trial delay. United States v. Clevidence, 14 M.J. 17 (C.M.A.1982); United States v. Sutton, 15 M.J. 235 (C.M.A.1983). The accused’s claim of prejudice in this case is reminiscent of that made by the accused in Clevidence (hindered in finding adequate employment). There, the unexplained delay was encountered between the date of" }, { "docid": "21568383", "title": "", "text": "was placed in restriction on 20 July 1977, where he remained until 29 July 1977. After a second alleged unauthorized absence of approximately 32 hours, appellant was again placed in confinement on 1 August 1977 and remained in pretrial confinement until his trial commenced on 7 October 1977. As a result, a period of 100 days elapsed between the initial confinement of appellant and his trial; however, only 75 days were spent in confinement. Even if we were to consider the 9 days appellant spent in restriction the equivalent of additional pretrial confinement, see United States v. Schilf, 1 M.J. 251 (C.M.A.1976), the period would still not be sufficient to raise the presumption of lack of speedy trial enunciated in United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971). Even though we find the Burton presumption not to be applicable to this case, we must still determine whether the Government has proceeded with reasonable diligence and without deliberate oppression of the appellant or a lack of concern for the requirement of expeditious prosecution. United States v. Powell, 2 M.J. 6 (C.M.A.1976); United States v. Amundson, 23 U.S. C.M.A. 308, 49 C.M.R. 598 (1975). This determination requires a functional analysis of all facts involved in the delay, including the length of the delay, the reasons for the delay, any demand for speedy trial by the appellant, and any specific prejudice to the appellant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The record of trial discloses no indication of prejudice to appellant in the preparation and presentation of his defense; nor is there any indication of an oppressive design or plan on the part of the Government to delay the start of appellant’s trial. The Chronology of Events reveals that appellant did submit a request for speedy trial on 16 September 1977; however, prompt steps were then taken to refer the charges to a general court-martial and to bring appellant to trial. The Chronology indicates that the initial Article 39(a), 10 U.S.C. § 839(a) session was held on 29 September 1977, only 13 days" }, { "docid": "3935973", "title": "", "text": "plea waives all non-jurisdictional defects occurring prior to the time of the plea, including violations of the defendant’s rights to a speedy trial and due process.”). We have consistently noted that Article 10 creates a more exacting speedy trial demand than does the Sixth Amendment. United States v. Cooper, 58 M.J. 54, 60 (C.A.A.F.2003); United States v. King, 30 M.J. 59, 62 (C.M.A.1990) (citing United States v. Powell, 2 M.J. 6 (C.M.A.1976); United States v. Marshall, 22 C.M.A. 431, 47 C.M.R. 409 (1973)). Not only is the demand for a speedy trial under the UCMJ more exacting, by virtue of Article 98, UCMJ, 10 U.S.C. § 898 (2000), unreasonable delay in disposing of criminal charges in the military is unlawful. See Powell, 2 M.J. at 8; United States v. Mason, 21 C.M.A. 389, 393, 45 C.M.R. 163, 167 (1972). While the full scope of this “more exacting” Article 10 right has not been precisely defined by this court, it cannot be “more exacting” and at the same time be “consistent” with Sixth Amendment protections. Rule for Courts-Martial 707 Rule for Courts-Martial 707 contains the speedy trial provision in the Rules for Courts-Martial. Rule for Courts-Martial 707(e) provides that “a plea of guilty which results in a finding of guilty waives any speedy trial issue as to that offense.” We have found, however, that the language of Article 10 is “clearly different” from R.C.M. 707 and have held that Article 10 is not restricted by R.C.M. 707. Cooper, 58 M.J. at 58-60 (holding that the protections of Article 10 extend beyond arraignment); Kossman, 38 M.J. at 261 (“[I]n the area of subeonstitu-tional speedy trial, Article 10 reigns preeminent over anything propounded by the President”). The protections afforded confined or arrested servicemembers under Article 10 are distinct and greater given the nature of other speedy trial protections. See United States v. Reed, 41 M.J. 449, 451 (C.A.A.F.1995) (listing sources for the right to a speedy trial in the military); United States v. Vogan, 35 M.J. 32, 33 (C.M.A.1992) (also listing military speedy trial right sources). Rule for Courts-Martial 707(e) therefore does not" }, { "docid": "16327960", "title": "", "text": "for which our mandatory review is required, we have considered carefully not only errors assigned in our Court but also those urged at the Court of Military Review and at the trial level, as well as any possible error suggested by our own examination of the record. As we shall explain, we have found no prejudicial error. A. Speedy Trial. We agree with the able trial judge that appellant’s right to a speedy trial was not infringed. The period of delay from March 12th to March 30th was attributable to a defense request that no Article 32 hearing be conducted until after Matthews had received a psychiatric examination. See United States v. Colon-Angaeira, 16 M.J. 20, 22 (C.M.A.1983). Deduction of these 18 days brings the period of pretrial confinement attributable to the Government below 90 days, and so no presumption of denial of a speedy trial operates against the Government. See United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971). We join fully in the military judge's conclusion that in view of the complexity of the case, the dispersion of witnesses, and other factors he cited, the Government did not delay unreasonably in moving to trial. B. Recruiter Misconduct. With respect to appellant’s motion to dismiss because of recruiter misconduct, the amendment of Article 2 of the Uniform Code — even though it took effect after the date of trial — is dispositive against him in view of the type of crime involved. See United States v. McDonagh, 14 M.J. 415 (C.M.A.1983). Cf. United States v. Marsh, 15 M.J. 252 (C.M.A.1983). C. Unavailability of Witnesses at the Article 32. Appellant complained that the grants of immunity to Turner, Hughley, and Bagwell, who later testified as government witnesses, had not been issued until a week or two before trial began. We concur with the trial judge’s view that the unavailability of these witnesses to testify during the Article 32 investigation did not create a fatal defect in that investigation. Moreover, it was made clear that not only defense counsel, but also the prosecutor, had been unable to obtain information" }, { "docid": "22991586", "title": "", "text": "of disrespect to his superior commissioned officer, in violation of Article 89, UCMJ, and one specification of willful disobedience of a lawful command from his superior commissioned officer, in violation, of Article 90, UCMJ, 10 U.S.C. §§ 928, 934, 889, and 890, respectively. . See paragraph 56e, Manual for Courts-Martial, United States, 1969 (Revised edition). . Sergeant Major Webb denied that such a statement was made or that he heard it. Captain Leibart testified that he made such a statement to Sergeant Major Webb and that the Sergeant heard it. Other witnesses testified that the statement was made and they believed Sergeant Webb heard it. . United States v. Thompson, 5 M.J. 28, 30 (C.M.A.1978); paragraph 56e(1), Manual, supra. See also Arizona v. Washington, 434 U.S. 497, 506 n. 18, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), and Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949). . See generally United States v. Thompson, supra at 30; United States v. Patrick, 8 U.S.C.M.A. 212, 24 C.M.R. 22 (1957); United States v. Batchelor, 7 U.S.C.M.A. 354, 22 C.M.R. 144 (1956), and United States v. Richard, 7 U.S.C.M.A. 46, 21 C.M.R. 172 (1956). . See generally R. J. Aldisert, The Judicial Process 759-76 (1976). . United States v. Thompson, 3 M.J. 168, 171 (C.M.A.1977); United States v. Graves, 1 M.J. 50, 53 (C.M.A.1975). . See United States v. Conley, 4 M.J. 327, 330 (C.M.A.1978). . See Article 37, UCMJ, 10 U.S.C. § 837. . See United States v. Fowle, 7 U.S.C.M.A. 349, 352, 22 C.M.R. 139, 142 (1956), and United States v. Hawthorne, 7 U.S.C.M.A. 293, 297, 22 C.M.R. 83, 87 (1956). . United States v. Littrice, 3 U.S.C.M.A. 487, 491, 13 C.M.R. 43, 47 (1953). See United States v. Navarre, 5 U.S.C.M.A. 32, 37, 17 C.M.R. 32, 37 (1954). . See footnotes 7 — 11. . United States v. Zagar, 5 U.S.C.M.A. 410, 414, 18 C.M.R. 34, 38 (1955); United States v. Adamiak, 4 U.S.C.M.A. 412, 419, 15 C.M.R. 412, 419 (1954). . Article 1(9), UCMJ, 10 U.S.C. § 801(9). . Captain Leibart’s own testimony. . United" }, { "docid": "14110288", "title": "", "text": "The prosecution has then chosen not to introduce any further evidence, and on my own motion I necessarily then found the accused not guilty of a violation of the Uniform Code of Military Justice under Article 85 and those words which I did not read to you from that specification. Therefore, there will be no necessity for you to hear any facts in this case or to make a finding. I have accepted Private SCHILLER’s guilty plea to the violation of unauthorized absence under Article 86 of the Uniform Code. Thus, while both trial counsel and the military judge brought to the members attention the fact of appellant’s guilt respecting an unauthorized absence offense, the members, while hearing the evidence and deliberating and deciding upon an appropriate sentence for appellant, had in front of them indicia of a much more serious offense. This was clearly error. United States v. Dy, 46 C.M.R. 521 (N.C.M.R. 1972). Under the circumstances, we are not prepared to say that trial defense counsel waived the error by failing to object. See United States v. Heflin, 1 M.J. 131,133 n. 8 (C.M.A.1975) (note text accompanying footnote 8). Because of this error, we have determined that there was fair risk of prejudice to appellant during the members’ sentencing deliberations. Cf. United States v. Moore, 1 M.J. 940 (N.C.M.R.1976). The appropriate remedy, as we perceive it, see Dy, supra at 522, needed to purge the record of the ascertained prejudice, is reassessment of the sentence. Appellant has now been convicted at two trials by court-martial. His prior sentence included a bad-conduct discharge which was suspended for one year effective 1 November 1977. Appellant’s present offense was complete as of 21 February 1978, United States v. Lovell, 7 U.S.C.M.A. 445, 22 C.M.R. 235 (1956), well within the one-year suspension period. Upon appellant’s return to military jurisdiction on 11 April 1979, the appropriate military authority could have taken steps to vacate the suspension without the necessity of further judicial proceedings. See United States v. Bingham, 3 M.J. 119 (C.M.A.1977) and United States v. Rozycki, 3 M.J. 127 (C.M.A.1977). This was" }, { "docid": "14128814", "title": "", "text": "trial. On 10 July 1978 defense counsel formally requested speedy trial by demand to the accused’s special court-martial convening authority. We agree with appellant that there is a due process right to a speedy trial which existed before any court fashioned rule based on a calendar count and which survives today. United States v. Johnson, 1 M.J. 101 (C.M.A.1975); United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971). Finding the Burton presumption inapplicable here, we apply a functional analysis to the facts of this case. United States v. Amundson, 23 U.S.C.M.A. 308, 49 C.M.R. 598 (1975); United States v. Hagler, 7 M.J. 944, 947 (N.C.M.R.1979), citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Upon consideration of the length of the delay, its circumstances (including an offer to appellant to separately dispose of the unauthorized absence charge at a lower forum), the reasons for the delay and the chronology of events, (Appellate Exhibit IV-A), his demand for speedy trial and the minimal prejudice resulting from the delay, we conclude that there was no denial of due process in the timing of the trial proceedings. United States v. Powell, 2 M.J. 6 (C.M.A.1976). VH THE MILITARY JUDGE ERRED IN REQUIRING THE DEFENSE TO COMPLY WITH PARAGRAPH 115, MCM, 1969 (Rev.) AND SOUTHWESTJUD-CIRINST 5813.1B OF 1 AUGUST 1978 (AE XI), AS ORALLY ANNOUNCED BY THE JUDGE (R. 12-13), WITH RESPECT TO THE WITNESSES REQUESTED IN AE XII. Trial defense counsel requested that the requirements of paragraph 115, MCM, and of applicable portions of local court rules be waived in order to prevent improper governmental discovery of the defense case. This was denied; appellant here argues a violation of equal protection of the law occurred because the Government was not similarly bound to disclose its witnesses’ testimony. Production of witnesses requires some showing of materiality. United States v. Jouan, 3 M.J. 136 (C.M.A.1977); United States v. Willis, 3 M.J. 94 (C.M.A.1977); United States v. Carpenter, 1 M.J. 384 (C.M.A.1976). The defense apparently sought to surprise the Government on its jurisdictional motion by the content of appellant’s" }, { "docid": "1109201", "title": "", "text": "Although the speedy trial issue was raised and litigated during the original hearing, it was not raised during the rehearing. Government counsel submit that the failure to raise a speedy trial issue during a. rehearing as it relates to an original hearing constitutes a waiver of such issue upon further appellate review. See United States v. Sloan, 22 U.S.C.M.A. 587, 48 C.M.R. 211 (1974); see generally United States v. Flint, 1 M.J. 428 (C.M.A.1976). However, we need not now resolve that issue as the record before us, which includes the transcript of the original hearing, reflects that appellant was accorded a speedy trial. In the present case the appellant was in continuous confinement from the date of his apprehension on October 13, 1972, to the date of the speedy trial motion, which was made on March 29, 1973. As the previous Article 39(a) sessions dealt with the preliminary matters, they were not the functional equivalents of a trial for the purpose of assessing the period of pretrial confinement. United States v. Cole, 3 M.J. 220, 225 n. 4 (C.M.A.1977); United States v. Beach, 1 M.J. 118, 120 (C.M.A.1975) (Cook, J., dissenting). Thus, pretrial confinement extended to 167 days. However, the delay in the Article 32 investigation from November 3 to November 20, 1972, was occasioned by appellant’s desire to await the arrival of his requested defense counsel, Lieutenant Johnson. The initial Article 39(a) session of January 8, 1973, was adjourned until January 15 or the first week of February for the purpose of awaiting the arrival of Lieutenant Johnson. Additional Article 39(a) sessions were held from January 22 to March 29. During this period it became obvious that a sanity board evaluation of the appellant was required before trial on the merits, but the defense refused to allow the appellant to be evaluated until it had obtained a psychiatric examination by a civilian psychiatrist. Indeed, even after the appellant had been examined by a civilian psychiatrist, the defense obtained a second examination by another civilian psychiatrist. The only delay requested by the Government was from January 29 to January 30" }, { "docid": "14256897", "title": "", "text": "NOVEMBER 30th OR THE SOONEST DATE THEREAFTER. On 22 November 1977, during the Article 39(a) session, trial defense counsel made a motion for a continuance until 30 November, or the soonest date thereafter. Two reasons were offered for the request: (1) the defense did not want to argue their motion concerning court member selection until the Government provided the names of the individuals appointed and (2) the defense had not had sufficient time to mar-shall responses from potential extenuation and mitigation witnesses. The military judge ordered the Government to provide the defense access to information concerning the selection and commands of the prospective court members, and granted a one-day continuance for this purpose. Appellant now argues that he had insufficient time to investigate the method of selecting the prospective court-members and had no time to get responses on the extenuation and mitigation letters sent by his counsel to some 30 people. In our recent discussion of military judges and their discretion to give or refuse a continuance, United States v. Furgason, 6 M.J. 844, 847 (N.C.M.R.1979), Judge Michel stated that: It is well-settled that the issue of whether or not a continuance should be granted is a matter resting within the sound discretion of the military judge, that his ruling is a proper subject for appellate review for his abuse of that discretion, and that he remains accountable for any resulting prejudice to an accused’s substantial rights. United States v. Thomson, 3 M.J. 271 (C.M.A.1977); United States v. Dunks, 1 M.J. 254 (C.M.A.1976)., A trial judge should err on the side of liberalism in taking action on such a motion where there exists good cause for any ensuing delay. See Dunks, supra at 255 citing United States v. Daniels, 11 U.S.C.M.A. 52, 55, 28 C.M.R. 276, 279 (1959); United States v. Nichols, 2 U.S.C.M.A. 27, 36, 6 C.M.R. 27, 36 (1952). Once he has acted, our scrutiny will be directed to those matters properly before him which bore directly on his final determination. Cf., United States v. Quinones, 1 M.J. 64 (C.M.A.1975). In the case at hand, the military judge" }, { "docid": "1109202", "title": "", "text": "225 n. 4 (C.M.A.1977); United States v. Beach, 1 M.J. 118, 120 (C.M.A.1975) (Cook, J., dissenting). Thus, pretrial confinement extended to 167 days. However, the delay in the Article 32 investigation from November 3 to November 20, 1972, was occasioned by appellant’s desire to await the arrival of his requested defense counsel, Lieutenant Johnson. The initial Article 39(a) session of January 8, 1973, was adjourned until January 15 or the first week of February for the purpose of awaiting the arrival of Lieutenant Johnson. Additional Article 39(a) sessions were held from January 22 to March 29. During this period it became obvious that a sanity board evaluation of the appellant was required before trial on the merits, but the defense refused to allow the appellant to be evaluated until it had obtained a psychiatric examination by a civilian psychiatrist. Indeed, even after the appellant had been examined by a civilian psychiatrist, the defense obtained a second examination by another civilian psychiatrist. The only delay requested by the Government was from January 29 to January 30 for the purpose of preparing argument on the defense motion made on January 29. In any event, absent this delay of one day, the defense continued to avoid a psychiatric examination by a sanity board by insisting that appellant be examined by a civilian psychiatrist. Thus, the present case involves more than the Government’s attempt to explain a pretrial delay by the necessity to conduct a sanity board evaluation of the accused; rather it is a situation where the appellant affirmatively avoided such an evaluation, although the parties were aware that the question of mental responsibility and/or capacity was in issue. Thus, the entire period of the delay with the exception of one day from January 22, 1973, to March 29, was attributable to the defense (65 days), and we will deduct this delay and the delay in the Article 32 hearing from November 3, 1972, to November 20 (17 days) from the period of the Government’s accountability. United States v. Herron, 4 M.J. 30 (C.M.A.1977); United States v. Driver, 23 U.S.C.M.A. 243, 49 C.M.R." }, { "docid": "15996007", "title": "", "text": "confinement pri- or to trial.” In United States v. Burton, supra, this Court established a presumption that an accused had been denied his right to a speedy trial in violation of Article 10 when his pretrial confinement exceeded three months [subsequently modified to 90 days by United States v. Marshall, 22 U.S.C.M.A. 431, 47 C.M.R. 409 (1973)]. The remedy specified by the court for such violations was dismissal. United States v. Burton, supra at 118, 44 C.M.R. at 172. With the exception of appellant's release from confinement after 85 days, government handling of appellant’s case before trial evinces little sensitivity to codal and judicial directives for speedy trial. Appellant’s abrupt release can only be attributed to the imminence of a potential viola tion of the Burton 90-day rule and cannot be regarded as evidence of government diligence. Not until 51 days after appellant was confined was an officer appointed pursuant to Article 32 to investigate the charges pending against him. Although the charges in the instant prosecution were rather simple, a four-page pretrial advice was not submitted to the convening authority until sixteen days after the investigating officer had filed his report. Another sixteen days elapsed between service of charges on appellant and the date of trial. Trial counsel did not attempt to explain any of these delays or the Government’s failure to respond to appellant’s two demands for speedy trial. Instead, he asserted simply that “the government was always moving toward a trial date in this case” without any rational support for this conclusion. Thus, the record manifests no evidence of government diligence. Almost 130 days elapsed from preferral of the original charges (100 from preferral of the additional charges) until trial, during 85 of which appellant was confined. Although confinement may have at first appeared necessary, factors indicating such a need were apparently changed at the time of his release, and the fact of his confinement did not perceptibly alter the Government’s lethargic approach to processing his case. The offenses with which he was charged are, like those in United States v. Johnson, 1 M.J. 101 (C.M.A.1975), relatively" }, { "docid": "1109203", "title": "", "text": "for the purpose of preparing argument on the defense motion made on January 29. In any event, absent this delay of one day, the defense continued to avoid a psychiatric examination by a sanity board by insisting that appellant be examined by a civilian psychiatrist. Thus, the present case involves more than the Government’s attempt to explain a pretrial delay by the necessity to conduct a sanity board evaluation of the accused; rather it is a situation where the appellant affirmatively avoided such an evaluation, although the parties were aware that the question of mental responsibility and/or capacity was in issue. Thus, the entire period of the delay with the exception of one day from January 22, 1973, to March 29, was attributable to the defense (65 days), and we will deduct this delay and the delay in the Article 32 hearing from November 3, 1972, to November 20 (17 days) from the period of the Government’s accountability. United States v. Herron, 4 M.J. 30 (C.M.A.1977); United States v. Driver, 23 U.S.C.M.A. 243, 49 C.M.R. 376 (1974). Accordingly, the period of the Government’s accountability is reduced to 85 days, and there is, therefore, no presumption that appellant was denied a speedy trial. United States v. Driver, supra; United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971). Absent such a presumption, we find no unreasonable or oppressive delay and hold the appellant was accorded a speedy trial. We turn now to the issue of whether the change in the mental responsibility standard set forth in United States v. Frederick, supra, requires a rehearing. As we observed in Frederick, the “record must be examined to determine if there is a fair risk of prejudice to the appellant from the use of the rejected standard of mental responsibility.” Id. at 238. In the present case the issue of mental responsibility was litigated during the original hearing, but it was not raised at the rehearing. During the interim, the Court of Military Review concluded that a post-trial psychiatric examination for appellant was required and such an examination was subsequently conducted. While the" }, { "docid": "18913184", "title": "", "text": "provisions of paragraph 23. . United States v. Johnson, 4 M.J. 92 (C.M.A. 1977) (Cook, J., dissenting). See also my opinion in United States v. Hardin, 7 M.J. 399, 405 (C.M.A.1979). . In pertinent part, Article 35, Uniform Code of Military Justice, 10 U.S.C. § 835, provides as follows: The trial counsel to whom court-martial charges are referred for trial shall cause to be served upon the accused a copy of the charges upon which trial is to be had. In time of peace no person may, against his objection, be brought to trial or be required to participate by himself or counsel in a session called by the military judge under sec tion 839(a) of this title (article 39(a)), in a general court-martial case within a period of five days after the service of charges upon him or in a special court-martial within a period of three days after the service of the charges upon him. . See my opinion in United States v. Saulter, 5 M.J. 281, 285 (C.M.A.1978). Nor does the constitutional protection of double jeopardy apply in respect to concurrent criminal proceedings in both federal and state courts for an act that is a crime under the law of each sovereign. See United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); Cordova v. United States, 537 F.2d 1073 (9th Cir. 1976), cert. denied, 429 U.S. 960, 97 S.Ct. 385, 50 L.Ed.2d 327 (1976). . I am certain that the reasonable inference from the facts, including the brevity of the interval between issuance of the administrative reprimand on August 15 and the date of the clemency report (September 18 — which was 6 days before the convening authority acted on the case) is that the commander had the same opinion of the accused when he issued the reprimand that he had of him when he submitted his post-clemency report. . United States v. Alef, 3 M.J. 414 (C.M.A. 1977); United States v. McCarthy, 2 M.J. 26 (C.M.A. 1976); United States v. Hedlund, 2 M.J. 11 (C.M.A.1976)." }, { "docid": "12856364", "title": "", "text": "of Military Justice, 10 U.S.C. § 866(b) (1976). . Article 39(a), Uniform Code of Military Justice, 10 U.S.C. § 839(a) (1976). . Of the ten officers detailed to the court-martial, three were excused from appellant’s trial. None of the remaining seven was challenged. Since concurrence of only two-thirds of the members was required to convict, it is possible that only five members concurred in the findings of guilty. Article 52(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 852(a)(2) (1976). In view of the importance and nature of the issue, we elect not to consider the possible consequences to appellant of not having raised the issue at the trial. Cf. United States v. Crawford, 15 U.S.C.M.A. 31, 35 C.M.R. 3 (1964); see also United States v. Jackson, 3 M.J. 101, 103-04 (C.M.A.1977) (Cook, J., dissenting). . See, e. g., United States v. Corl, 6 M.J. 914 (N.C.M.R.1979), certified for review, 6 M.J. 304 (C.M.A.1979) (other grounds), pet. filed, 7 M.J. 254 (C.M.A.1979); United States v. Meckler, 6 M.J. 779, 780 (A.C.M.R.1978), pet. denied, 7 M.J. 41 (C.M.A.1979); United States v. Wolff, 5 M.J. 923, 924-25 (N.C.M.R.1978), pet. denied, 6 M.J. 305 (C.M.A.1979); United States v. Montgomery, 5 M.J. 832, 834 (A.C.M.R.1978), pet. denied, 6 M.J. 89 (C.M.A.1978). Besides denying review of the cases indicated, the Court of Military Appeals, after granting review of the issue in United States v. Lamela, 6 M.J. 11 (C.M.A.1978) (Issue VIII), vacated the grant at 6 M.J. 32 (C.M.A.1978). See United States v. Lamela, 7 M.J. 277 (C.M.A.1979). . Counsel’s views also are well-expressed in Nolan, Ballew and Burch—Round Two, 11 The Advocate 117 (1979). . Compare United States v. Crawford, supra note 3, with United States v. Yager, 7 M.J. 171 (C.M.A.1979)." }, { "docid": "12055401", "title": "", "text": "extended personal jurisdiction over the accused as a result of its timely commencement of action with a view towards trial. See United States v. Fitzpatrick, 14 M.J. 394 (C.M.A.1983); United States v. Self, 13 MJ. 132 (C.M.A.1982). However, while an accused has no absolute right to immediate separation from the service at the expiration of his enlistment, the Government has an obligation to proceed to trial with all deliberate speed, absent the accused’s acquiescence in the retention. United States v. Fitzpatrick, supra at 397; United States v. Hutchins, 4 M.J. 190, 192 (C.M.A.1978). In general, accountability for speedy-trial tracking begins at the time of pretrial restraint or preferral of charges, whichever comes first. Para. 215e, Manual for Courts-Martial, United States, 1969 (Revised edition); see also United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971); United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971); United States v. Williams, 16 U.S.C.M.A. 589, 37 C.M.R. 209 (1967). Because there is no evidence of record that authorities of either the state or the United States were acting as agents for each other, the Government was not accountable for the time following the accused’s arrest and charging by the state authorities. Cf. United States v. Reed, 2 M.J. 64, 67 (C.M.A.1976); United States v. Williams, 12 U.S.C.M.A. 81, 30 C.M.R. 81 (1961). Thus, the period of government accountability begins with the preferral of charges on May 8, 1981, even though these were not the charges on which the accused ultimately was tried. See United States v. Avalos, 541 F.2d 1100, 1108-09 (5th Cir.1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1656, 52 L. Ed.2d 363 (1977). Courts have wrestled with the concept of “speedy trial” which is, and has been, far easier to define than to apply to a given factual situation. We have tried to follow the concepts developed by the Supreme Court of the United States in several cases. See United States v. Johnson, 17 M.J. 255 (C.M.A.1984), for an analysis of these precedents. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182," }, { "docid": "12049056", "title": "", "text": "a convening authority does so, “[a] bad-conduct discharge may not be adjudged... [because] a complete record of the proceedings and testimony. .. [will not have] been made.” Article 19, Uniform Code of Military Justice, 10 U.S.C. § 819. . Obviously, there is concern that by conducting a hearing on pretrial confinement a military judge disqualifies himself to try a case. However, up to now our Court has denied review of all claims that a military judge was disqualified to try a case because he had ruled that the accused should be continued in pretrial confinement. See, e.g., United States v. Spearman, 13 M.J. 226 (C.M.R.1982); United States v. Weber, 13 M.J. 226 (C.M.R.1982). COOK, Judge (dissenting): I could rest my dissent on the separate opinions that I filed in Courtney v. Williams, 1 M.J. 267, 272 (C.M.A.1976), Phillippy v. McLucas, 23 U.S.C.M.A. 709, 710, 50 C.M.R. 915, 916 (1975), and Porter v. Richardson, 23 U.S.C.M.A. 704, 50 C.M.R. 910 (1975). However, today the majority go beyond those cases to hold that a convening authority and his staff judge advocate are inherently disqualified to conduct a hearing to determine whether an accused should be placed in pretrial confinement. Only two years ago, the Court held that the normal command responsibilities of a commanding officer do not of themselves, inculcate in him a state of mind antithetical to the requirement of impartiality and neutrality for authorization of a search. United States v. Ezell, 6 M.J. 307, 330 (C.M.A.1979). The Court reaffirmed that view in United States v. Middleton, 10 M.J. 123 (C.M.A.1981). I discern no justification for a different rule when the commander exercises his authority under Article 9, Uniform Code of Military Justice, 10 U.S.C. § 809, to determine that an accused should be in pretrial confinement. Earlier, I expressed my disagreement with the perception of the pretrial functions of the staff judge advocate as prosecutorial in nature. See my separate opinions in United States v. Hardin, 7 M.J. 399, 405 (C.M.A.1979); United States v. Cansdale, 7 M.J. 143, 149 (C.M.A.1979); United States v. Malia, 6 M.J. 65, 68 (C.M.A.1978). I" }, { "docid": "14965606", "title": "", "text": "he did not discuss the case in depth with the witness, he did question her to see if she remembered the event, which she did. Major Keebler did not obtain enough detailed information from her at this meeting to influence his decision in any way. At the outset, we note that, even though an Article 32 investigating officer’s recommendations are only advisory, the appellant is statutorily entitled to a thorough and impartial investigation under the provisions of Article 32, Uniform Code of Military Justice, 10 U.S.C. § 832 (1982) [hereinafter cited as UCMJ]. Thus, the appellant is entitled to have the proceedings conducted in a fundamentally fair manner, even though the Military Rules of Evidence (M.R.E.) generally do not apply to Article 32 investigations. M.R.E. 1101(d). Under most circumstances, defects in Article 32 investigative proceedings do not deprive courts-martial of jurisdiction. United States v. Parker, 19 C.M.R. 201 (C.M.A. 1955). Assuming arguendo that Major Keebler’s conduct constituted a defect in the proceedings, we must test for specific prejudice to determine what, if any, relief is warranted. United States v. Cunningham, 20 C.M.R. 402 (C.M.A.1961). Recognizing that it is inherently difficult for an appellant to demonstrate what prejudice, if any, results from the ex parte actions of an Article 32 investigating officer, we will apply a presumption of prejudice to such conduct. United States v. Payne, 3 M.J. 354, 357 (C.M.A.1977). After carefully considering the testimony of Major Keebler and other relevant matters of record, we find that the presumption of prejudice was overcome by clear and convincing evidence. Cf. United States v. Payne, supra; United States v. Clark, 11 M.J. 179, 183 (C.M.A. 1981). Accordingly, we find this assignment of error to be without merit. Additionally, however, appellant’s former wife, Gracie (Martel) Hendrix, was allowed to testify at the Article 32 investigation over defense objection concerning certain matters which, as will be hereafter discussed, constituted privileged communications within the meaning of M.R.E. 504(b). Moreover, Major Keebler considered similar information contained in the sworn written statement of appellant’s wife which was also included in the initial reports he received after being" }, { "docid": "22459789", "title": "", "text": "1 M.J. 1204 (N.C.M.R.1977) (convening authority's statements to subordinates condemning recruit maltreatment could not be reasonably construed as unlawful command influence), pet. denied, 3 M.J. 165 (C.M.A.1977) with United States v. Hawthorne, 7 U.S.C.M.A. 293, 22 C.M.R. 83 (1956) (rehearing ordered when company commander based recommendation for court-martial on policy letter); United States v. Doherty, 5 U.S.C.M.A. 287, 17 C.M.R. 287 (1954) (reconsider sentence when convening authority approved bad-conduct discharge because of Navy policy); United States v. Charleson, 26 C.M.R. 630 (A.B.R.1958) (reassess sentence when company commander’s decision to recommend court-martial had been influenced by battalion executive officer). . 10 U.S.C. 907, 921, 932 (1982). . Article 32, Uniform Code of Military Justice, 10 U.S.C. 832 (1982). . 10 U.S.C. 837(a) (1982). . See United States v. Rosser, 6 M.J. 267 (C.M.A.1979). . See generally United States v. Johnson, 14 U.S.C.M.A. 548, 34 C.M.R. 328 (1964). . United States v. Rosser, 6 M.J. at 272. . United States v. Walls, 9 M.J. 88, 90-92 (C.M.A.1980). See also United States v. Hunt, 10 M.J. 222 (C.M.A.1981); United States v. Logan, 22 U.S.C.M.A. 349, 47 C.M.R. 1 (1973). . Mil.R.Evid. 404. . Mil.R.Evid. 403. . 10 U.S.C. 837(a) (1982). . See United States v. Olson, 11 U.S.C.M.A. 286, 29 C.M.R. 102 (1960); United States v. Estrada, 7 U.S.C.M.A. 635, 23 C.M.R. 99 (1957); United States v. Littrice, 3 U.S.C.M.A. 487, 13 C.M.R. 43 (1953); United States v. Olivas, 26 C.M.R. 686 (A.B.R.1958). . United States v. Cole, 17 U.S.C.M.A. 296, 297-98, 38 C.M.R. 94, 95-96 (1967); United States v. Kitchens, 12 U.S.C.M.A. 589, 693, 31 C.M.R. 175, 179 (1961); United States v. Zagar, 5 U.S.C.M.A. 410, 414, 18 C.M.R. 34, 38 (1955); United States v. Toon, 48 C.M.R. 139, 143 (A.C.M.R.1973). . See United States v. Ray, 20 U.S.C.M.A. 331, 43 C.M.R. 171 (1971); United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967). . Cf. United States v. Rosser, 6 M J. at 272 (total effect of unlawful conduct considered to ascertain extent of prejudice and appearance of fairness). NAUGHTON, Judge, concurring: I agree with the majority’s analysis and disposition" }, { "docid": "22459788", "title": "", "text": "822, 823, 824 (1982). . See Curry v. Secretary of Army, 595 F.2d 873, 879-81 (D.C.Cir.1979); see generally Uniform Code of Military Justice: Hearings on H.R. 2498 Before a Subcomm. of the House Comm, on Armed Services, 81st Cong., 1st Sess. 606 (1949). . See United States v. Crawley, 6 M.J. 811, 813 (A.F.C.M.R.1978), pet. denied, 7 M.J. 67 (C.M.A. 1979); cf. Cooke v. Orser, 12 M.J. 335 (C.M.A. 1982) (convening authority cannot abdicate his prosecutorial responsibilities); United States v. Hardin, 7 M.J. 399 (C.M.A. 1979) (referral process is essentially prosecutorial in nature). . United States v. Crossley, 10 M.J. 376, 378 (C.M.A.1981); Brookins v. Cullins, 23 U.S.C.M.A. 216, 218, 49 C.M.R. 5, 7 (1974); United States v. Gordon, 1 U.S.C.M.A. 255, 259-62, 2 C.M.R. 161, 165-68 (1952). . United States v. Conn, 6 M.J. 351, 354 (C.M.A. 1979). . Cf. United States v. Wood, 13 U.S.C.M.A. 217, 223-24, 32 C.M.R. 217, 223-24 (1962) (circumstances did not indicate unlawful command influence where court members could not recall policy letter). . Compare United States v. Smith, 1 M.J. 1204 (N.C.M.R.1977) (convening authority's statements to subordinates condemning recruit maltreatment could not be reasonably construed as unlawful command influence), pet. denied, 3 M.J. 165 (C.M.A.1977) with United States v. Hawthorne, 7 U.S.C.M.A. 293, 22 C.M.R. 83 (1956) (rehearing ordered when company commander based recommendation for court-martial on policy letter); United States v. Doherty, 5 U.S.C.M.A. 287, 17 C.M.R. 287 (1954) (reconsider sentence when convening authority approved bad-conduct discharge because of Navy policy); United States v. Charleson, 26 C.M.R. 630 (A.B.R.1958) (reassess sentence when company commander’s decision to recommend court-martial had been influenced by battalion executive officer). . 10 U.S.C. 907, 921, 932 (1982). . Article 32, Uniform Code of Military Justice, 10 U.S.C. 832 (1982). . 10 U.S.C. 837(a) (1982). . See United States v. Rosser, 6 M.J. 267 (C.M.A.1979). . See generally United States v. Johnson, 14 U.S.C.M.A. 548, 34 C.M.R. 328 (1964). . United States v. Rosser, 6 M.J. at 272. . United States v. Walls, 9 M.J. 88, 90-92 (C.M.A.1980). See also United States v. Hunt, 10 M.J. 222 (C.M.A.1981);" } ]

[ { "docid": "13120057", "title": "", "text": "fee in each case was properly assessed. 3. Costs for Depositions Plaintiffs also complain about the allowance of costs for depositions. It is well established that the cost of taking depositions is taxable in favor of the prevailing party when “the taking of the deposition was reasonably necessary even though it may not have been used at the trial.” 4 Moore, Federal Practice § 1207. Title 28 U.S.C. § 1920(2) sets forth clearly that the standard for taxing deposition costs is the necessity for use in the case. This language was changed from on the trial to indicate that discovery expenses, as well as trial expenses, can be recovered by the prevailing party if reasonably necessary. See Perlman v. Feldmann, 116 F. Supp. 102 (D.C.Conn. 1953). It is true that there were voluminous depositions taken on behalf of the defendants in each of the cases. Yet the severity of the charges promulgated by the plaintiffs, as well as the complexity of the legal and factual issues in each case, justified such lengthy and costly examination. The charge of fraud requires very precise proof and it is understandable that defendants went into great detail during the depositions to ascertain the exact nature of plaintiffs’ charges. It should be borne in mind that plaintiffs themselves initiated the actions; they cannot, now be heard to complain that defendants made full use of legitimate pre-trial procedures. Plaintiffs argue that even if the costs of depositions are to be taxed to them, their liability should be limited to the cost of a single original copy and not include the cost of duplicate copies obtained from the convenience of counsel. In this contention they are correct. Perlman v. Feldmanm, D.C., 116 F.Supp. 102 (D.C.Conn.1953); Hope Basket Co. v. Product Advancement Corp., 104 F.Supp. 444 (W.D.Mich.1954); General Casualty Co. of America v. Stanchfield, 23 F.R.D. 58 (D.C.Mont.1959). It is not clear from the papers on the taxation of costs whether any portion of the costs taxed for depositions covers duplicate copies obtained for the convenience of counsel. If it does, so much of such costs as are" } ]

[ { "docid": "5967052", "title": "", "text": "taxing of deposition costs will not be allowed if the deposition is “purely investigatory in nature.” Ortega v. City of Kansas City, Kan., 659 F.Supp. at 1219. The best practice is to view the necessity of the depositions in light of the facts known to counsel at the time they were taken. Manildra, 878 F.Supp. at 1427. Defendant asserts that the depositions in question were the primary basis upon which summary judgment was granted in its favor. At the time the depositions were taken, however, plaintiff had no knowledge that his discrimination claims would be eliminated through summary judgment. The depositions of Cathy Larrimer, Michael Champion, Joyce Drummond, and William Marden were necessary because those witnesses testified at trial. The deposition of Robert Callaghan was necessary because portions of it were used at trial. Roger Payne testified regarding defendant’s quality assurance programs and Owen Geitz testified concerning his experiences working with the plaintiff while he was employed by the defendant. The costs for these depositions will be taxed to defendant. Finally, defendant objects to being taxed for the deposition of plaintiff. The Court denies this objection because plaintiff reasonably needed a copy of his deposition to prepare for trial. Ortega v. IBP, Inc., 883 F.Supp. 558, 561 (D.Kan.1995). e. Exemplification and Copy Fees Defendant claims that $1,160.10 for exemplification and copy fees were not “necessarily obtained for use in this case.” Copy and exemplification fees may be taxed if they are reasonably necessary for use in the case. 28 U.S.C. § 1920(4). The copies listed by plaintiff are necessary to the case and, therefore, will be taxed. IT IS THEREFORE ORDERED that the Motion of Plaintiff to Retax Costs Allowed Defendant (Doc. # 156) filed July 23, 1997, be and hereby is granted. IT IS HEREBY FURTHER ORDERED that Defendant’s Motion to Retax Plaintiffs Bill of Costs (Doc. # 158) filed July 23, 1997, be and hereby is granted in part and denied in part in that defendant’s costs shall be reduced by the printing fees for plaintiffs Brief to Court of Appeals ($313.00)." }, { "docid": "1934213", "title": "", "text": "317-38 (E.D.Va.1973) (where counsel located near court where original filed, copies not taxable). Although frequent trips to the court to view exhibits involves some expense and inconvenience, such trips do not trigger a showing of necessity as required by the statute. Accordingly, defendant’s request for costs for duplication of exhibits is rejected. V. Costs for Taking the Deposition of Plaintiff Defendant’s final request is that costs of taking the deposition of plaintiff, Mr. Oetiker, be taxed. Defendant submitted a request for taxation for this item in the amount of $1136.63. The Clerk found this item properly taxable. Plaintiff argues that the deposition at issue was taken solely for discovery, not for trial, and therefore were not “necessarily obtained for use in the case” within the meaning of 28 U.S.C. § 1920. Plaintiff asserts that the deposition was not taken to preserve plaintiff’s testimony but merely for discovery. Plaintiff also states that the depositions were not submitted as exhibits, or otherwise used at trial. The court finds the costs of defendant’s deposition of plaintiff properly taxable in the amount requested. Expenses of discovery depositions shown to be reasonably necessary at the time taken are recoverable as costs even if the deposition is not used at trial. Illinois v. Sangamo Construction Co., 657 F.2d 855, 867 (7th Cir.1981); Nationwide Auto Appraiser Service, Inc. v. Association of Casualty & Surety Cos., 41 F.R.D. 76, 77 (W.D.Okla.1966); Electronic Speciality Co. v. International Controls Corp., 47 F.R.D. 158, 162 (S.D.N. Y.1969). The facts do not indicate that plaintiffs deposition was taken merely for investigative purposes. Cf. Kaiser Industries Corp. v. McLouth Steel Corp., 50 F.R.D. 5, 2 (E.D.Mich.1970). Mr. Oetiker is the plaintiff in the case at issue and the taking of his deposition could hardly be characterized as the kind of “mer[e] fishing expedition” for which taxing of costs is prohibited under Section 1920. At the time the deposition was taken it appeared to be necessary, and it is taxable as a cost. See also Ingersoll Milling Machine Co. v. Otis Elevator Co., 89 F.R.D. 433, 435 (N.D.Ill. 1981). Therefore, defendant’s request for taxation" }, { "docid": "23623208", "title": "", "text": "the issue of Fogleman’s status as a Jones Act seaman. Since the district court denied this motion, the Foglemans contend that ARAMCO was not the prevailing party in regard to the costs incurred in taking Fogle-man’s deposition. This argument is without merit. The case must be viewed as a whole to determine who was the “prevailing party”; a party need not prevail on every issue in order to be entitled to costs. The Foglemans also contend that the costs incurred by ARAMCO in taking the deposition of Ms. Fogleman, and in copying the depositions of the Foglemans and of Dr. Jorge Garcia, should have been disallowed. This court has previously held that prevailing parties are entitled to recover the costs of original depositions and copies under 28 U.S.C. § 1920(2) and § 1920(4) respectively, provided they were “necessarily obtained for use in the case.” Although some courts have disagreed, we have consistently held that a deposition need not be introduced into evidence at trial in order to be “necessarily obtained for use in the case.” If, at the time it was taken, a deposition could reasonably be expected to be used for trial preparation, rather than merely for discovery, it may be included in the costs of the prevailing party. Similarly, a deposition copy obtained for use during trial or for trial preparation, rather than for the mere convenience of counsel, may be included in taxable costs. Whether a deposition or copy was necessarily obtained for use in the case is a factual determination to be made by the district court. We accord the district court great latitude in this determination. The district court, by adopting the reasons set forth in ARAMCO’s response to the Foglemans’ opposing motion, implicitly found that ARAMCO had fulfilled its burden of justifying the necessity of obtaining the depositions and copies at issue. ARAMCO offers no explanation, however, why it was necessary to obtain a copy of Fogleman’s deposition at a “semi-expedited” rate. We have previously held that the extra cost of obtaining a trial transcript on an expedited basis is not taxable unless prior" }, { "docid": "14362507", "title": "", "text": "Litigation, 577 F.2d 910, 918 (5th Cir.1978); see also Fogleman, 920 F.2d at 285-87. Coats claims an additional $1,179.14 for the cost of obtaining transcripts of several depositions. Under §§ 1920(2) and (4), prevailing parties are entitled to the costs of original depositions and copies if “necessarily obtained for use in the trial.” We do not require that a deposition be actually introduced into evidence to meet this requirement. If, at the time it was taken, a deposition could reasonably be expected to be used for trial preparation, rather than merely for discovery, it may be included in the costs of the prevailing party. Similarly, a deposition copy obtained for use during trial or for trial preparation,' rather than for the mere convenience of counsel, may be included in taxable costs. Whether a deposition or copy was necessarily obtained for use in the ease is a factual determination to be made by the district court. We accord great latitude to this determination. Fogleman, 920 F.2d at 285. The district court awarded $3,548.45 for depositions it determined, as stated in its order, to be necessarily and reasonably obtained in preparation for trial. Coats has not demonstrated that the district court’s determination of which depositions were necessary was a clear abuse of discretion. The district court denied Coats’ request for travel expenses in the amounts of $711.69 and $642.35, $1,744.96 for “blow-ups” used at trial, and $1,175.00 in video technician fees incurred for video depositions. These expenses are not included in § 1920 and therefore are not recoverable. Coats seeks payment of a witness fee, $87.50, and expert fee, $1,232.65, for an expert who attended trial but did not testify as a result of the court’s directed verdict and $3,298.84 for a foreign law expert. Because the expert witness did not testify, we find no clear abuse of discretion in the refusal to tax the witness fee. Additionally, expert fees are not recoverable. See 28 U.S.C. §§ 1821, 1920; Crawford, 482 U.S. 437, 107 S.Ct. 2494. Coats also claims $518.65 for certified copies of various documents and the cost to photocopy certain" }, { "docid": "19056511", "title": "", "text": "reasonably necessary to prepare for it. DEPOSITIONS Sperry claims as another taxable cost the expense incurred in taking the depositions of a number of witnesses, the transcripts of which are asserted to have been used at trial. Recent decisions concerning the taxability as costs of deposition transcripts reach uniform results. If the depositions were needed merely for discovery, their expense should be borne by the party taking them, as incidental to normal trial preparation. If, however, the deposition transcripts were actually introduced at trial or used for impeachment purposes, then the Court can conclude that they were “necessarily obtained for use in the case.” United States v. Koleson, swpra; Kaiser Indus. Corp. v. McTouth Steel Corp., supra, at 12; Gillam v. A. Shy-man, Inc., 31 F.R.D. 271, 274 (D.Alaska 1962). Counsel for Sperry has represented to the Court that each transcript for which costs are sought was used at trial. Counsel for the defendants have not contested this fact as to any of the depositions. Accordingly, the Court will tax the costs of these depositions against the defendants. As in the case of trial transcripts, however, the Court will tax only the average cost of two copies. Moreover, no costs will be allowed for the travel expenses incurred by the deposee Dankiewicz. The plaintiff’s counsel could have taken this deposition in the witness’ home town and avoided this expense. Since attorneys’ travel expenses are not recompensable, neither should be this expense. REPRODUCTIONS The final cost claim made by Sperry is for the expenses incurred in securing reproductions and printing. Counsel for both parties agree that such expenses are taxable as costs if reproductions are offered into evidence or otherwise necessarily obtained for use in the case. The Court reads the plaintiff’s statement on page 5 of its brief filed November 15, 1972, as a representation that all of the costs sought represent copies that were actually used as exhibits. The defendants do not contest this as to any particular documents. Accordingly, the Court will permit as taxable costs those items claimed as printing by Sperry, including the reproduction of a" }, { "docid": "11799130", "title": "", "text": "F.R.D. 481, 487, 488 (1965). The Court is satisfied that the time has come to bring the practice in the District of Maryland into line with the majority rule throughout the country. We should consider the extent of actual use of each deposition in cross-examination and otherwise, and whether the taking was reasonably necessary to the party’s case in light of the particular situation existing at the time of taking. It is not necessarily fatal to taxation that they were not introduced or otherwise used at the trial. Moore, supra; Peck, supra; Nationwide Auto Appraiser Serv. v. Association of Cas. & S. Co., 41 F.R.D. 76, 77 (W.D.Okla.1966); Independent Iron Works, Inc. v. United States Steel Corp., 322 F.2d 656, 678, 679 (9 Cir. 1963); Modick v. Carvel, 209 F.Supp. 361, 364 (S.D.N.Y.1962); Talbot-Windsor Corp. v. Miller, 32 F.R.D. 18, 19 (D.Mass.1962). Five of the\" depositions were used by plaintiff in the cross-examination of SCM witnesses at the trial, and three of the five were also used in pretrial motions. The cost of those five depositions, $484.70, should be taxed. Five depositions were used, purely for discovery. The cost of those depositions will not be taxed. Where the party taking a deposition has filed the transcript with the Clerk, the cost of an extra copy is generally deemed to be for the convenience of counsel and not taxable. Peck, supra, 37 F.R.D. at p. 487, although a Court has the power to tax the cost of deposition copies in a proper case. See Independent Iron Workers, Inc. v. United States Steel Corp., supra. Where the original deposition is not filed with the Court until the day of trial, the prevailing party may ordinarily recover the cost of a copy of the deposition. See Cooke v. Universal Pictures Co., Inc., 135 F.Supp. 480 (S.D.N.Y.1955). The cost of a copy has also been allowed where reasonably necessary to control an attempt at impeachment. Hancock v. Albee, 11 F.R.D. 139, 141 (D.Conn.1951). SCM took the testimony of Alan Elkin (President and General Manager of plaintiff), Mrs. Elkin (Secretary and Office Manager of plaintiff)," }, { "docid": "14624784", "title": "", "text": "The depositions of expert witnesses will be considered under the same criteria as those applied to other witnesses. Nabanco objects to the taxation of the deposition costs for two groups of witnesses: 1) witnesses who were deposed but whose depositions were not read at trial because they testified live; and 2) witnesses who did not testify live at trial and whose depositions were not read or otherwise utilized at trial. Nabanco, relying on United States v. Kolesar, 313 F.2d 835 (5th Cir.1963), argues that a deposition is necessarily obtained for use in the case only if all or part of the deposition is actually introduced in evidence or used at trial for impeachment purposes. See Holmes v. Oxford Chemicals, Inc., 510 F.Supp. 915, 917 (M.D.Ala.1981), aff'd on other grounds, 672 F.2d 854 (11th Cir.1982). While the Court agrees that Kolesar approves the taxation of deposition costs in those two instances, the opinion also adopts a flexible concept of necessity which recognizes that the trial judge must determine the necessity of a deposition in the particular context of a specific case. 313 F.2d at 840. The cost' of a deposition not used at trial is taxable if the deposition appeared to be reasonably necessary in light of the particular situation existing at the time it was taken. George R. Hall, Inc. v. Superior Trucking Co., 532 F.Supp. 985, 994 (N.D.Ga.1982); Neely v. General Electric Co., 90 F.R.D. 627, 630 (N.D.Ga.1981). However, costs incurred for the convenience of a party, for the purposes of investigation, or simply to aid a party in a more thorough preparation of a case are not recoverable. United States v. Kolesar, 313 F.2d at 837-38. The burden is on the party seeking taxation of the deposition costs to show that the deposition was necessarily obtained. Neely v. General Electric Co., 90 F.R.D. at 630. Nabanco argues that VISA cannot succeed even under the more liberal standard because there has been no individualized showing that the taking of any of the depositions at issue was reasonably necessary in light of the facts known to counsel at the time" }, { "docid": "12574296", "title": "", "text": "trial. Local Civil Rule 54.1(g)(7) states in relevant part: In taxing costs, the Clerk shall allow all or part of the fees and charges incurred in the taking and transcribing of depositions used at the trial under Fed.R.Civ.P. 32. Fees and charges for the taking and transcribing of any other deposition shall not be taxed as costs unless the Court otherwise orders. L.Civ.R. 54.1(g)(7) (emphasis added). In support of the deposition costs it seeks to tax against Defendant, Plaintiff attaches to counsel’s declaration various invoices generated by deposition service providers in connection with the depositions of 16 individuals, including the Plaintiff himself. Plaintiff fails to explain in his motion papers, however, in what way each of these deposition transcripts were used at trial within the meaning of Federal Rule of Civil Procedure 32, for example, to impeach a witness or conduct cross-examination. The Court also notes that Plaintiff fails to demonstrate, alternatively, that the transcripts were used in support of Plaintiffs cross-motion for partial summary judgment on liability, on which Plaintiff prevailed. See Fitchett v. Stroehmann Bakeries, Inc., No. Civ. A. 95-284, 1996 WL 47977, at *4 (E.D.Pa. Feb. 5, 1996) (holding that “[depositions used in support of a motion for summary judgment are necessarily obtained for use in a case”). Deposition transcripts which merely provide useful background information, but are not necessary for use in the prosecution of Plaintiffs claims, are not within the list of items which may be taxed as costs under 28 U.S.C. § 1920. “Costs for depositions obtained for the convenience of counsel or for investigatory or discovery purposes, which are not used or intended for use at trial, may not be taxed.” Adams v. Teamsters Local 115, 678 F.Supp.2d 314, 326 (E.D.Pa.2 007). Though there is a presumption in favor of granting costs to a prevailing party, Plaintiffs instant application does not provide sufficient information to carry its burden of demonstrating that the deposition transcript costs it seeks fall within the ambit of section 1920. Plaintiff has provided the Court with no information upon which the Court may differentiate between those depositions which were" }, { "docid": "22270697", "title": "", "text": "formally offered in evidence as such. A deposition used effectively in cross examination may have its telling effect without so much as a line of it being formally proffered. What this means, of course, is that someone must determine in the particular context of a specific case just what depositions have been necessary. No one is better equipped for that than the trial Judge. Thus while we reject Judge Hincks’ thesis that forbids the cost of a copy of any deposition altogether as a fiat inexorable prohibition, we do not by reflex action establish a rule of like rigidity in the opposite direction.' On the contrary, we keep it as flexible as the concept of necessity requires. The trial Judge must ¡determine whether all or any part of a copy of any or all of the depositions was “necessarily obtained for use in the ease.” In that evaluation, great latitude and discretion must be accorded the Judge. Reversal will require an abuse of discretion. On that standard the taxation of the costs for copies of the depositions in this case readily withstands attack. The suit was for substantial injuries to the wife of the plaintiff, a Chief Petty Officer in the Navy, occasioned by a prolonged heart stoppage during surgical treatment at a navy installation. Upon a finding that she was “100% or totally and permanently disabled as a result of brain damage,” a condition “described as vegetative in the [Navy’s] hospital records,” the Court granted a $70,000 recovery. The depositions in question were of a number of medical officers, nurses and medical corpsmen. They were taken by the Government at Washington, D. C. after having several of the witnesses recalled to active duty and placed on a temporary duty status in that city for appearance in uniform. The plaintiff’s case by its very nature depended almost entirely on information in the enemy’s camp. It was vital in the preparation for trial and considerable portions of some of the depositions were formally offered in evidence, and extensive use was also made in the examination and cross examination of other witneses." }, { "docid": "22151978", "title": "", "text": "have been reasonably necessary in light of the particular situation at the time it was taken. Copper Liquor, Inc. v. Adolph Coors Company, 684 F.2d 1087, 1099 (5th Cir.1982). See generally 6 J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice § 54.77[4] (2d ed. 1985). We hold that if depositions are either introduced in evidence or used at trial, their costs should be taxable to the losing party. It is within the discretion of the district court to tax deposition costs if special circumstances warrant it, even though the depositions were not put in evidence or used at the trial. In its order denying the deposition costs, the court stated: “None of the depositions taken were admitted in evidence at trial; therefore, they are not allowable costs.” This is contrary to the record which shows that the six depositions for which plaintiffs seek costs were read into the record “in order to determine which parts will be read to the jury.” Parts of two depositions were then read to the jury. We think it clear that all six depositions were introduced into evidence. Reading them into the record in order for the court to determine which parts could be read to the jury was in the nature of an offer of proof. The depositions read to the jury became, of course, part of the testimony of the ease. The costs of the six depositions, $2,568.45, should, therefore, have been taxed to the defendant. A subsidiary question is whether the expense of copying the depositions, $213.00, should be taxed as part of the deposition costs. The district court’s order did not cover this. Section 1920(4) lists as a permissible taxable cost “[f]ees for exemplification and copies of papers necessarily obtained for use in the case.” In light of plaintiffs’ unrefuted statement that in “introducing these depositions into the record it was necessary to use the original and a copy of each transcript,” the copying costs should also have been taxed to the defendant. 2. Docket Fees Plaintiffs requested reimbursement for the docket fees of $15.00 for the six depositions;" }, { "docid": "14346175", "title": "", "text": "judgment motion. This court cannot find that the depositions were not necessarily obtained for use in the case, however. Defendant had to complete discovery before it filed for summary judgment, and therefore, defendant needed to prepare for the possibility of a trial. Defendant may have used the depositions as evidence had the case gone to trial. Certainly, had defendant prevailed at trial, these costs would have been taxable against plaintiff. To refuse costs where the plaintiff’s case was too weak to get to a jury would constitute an odd result. Accordingly, the court taxes to plaintiff the costs attributable to the court reporter’s charge for Charles Garland and Dr. Feliciano’s depositions. Plaintiff also contests the costs for depositions taken of witnesses whose depositions were noticed by plaintiff. The court assumes that these costs reflect only the cost of copies of the depositions, since presumably plaintiff would have paid the reporter's charge for the original transcript of the deposition. Copies of depositions taken by opposing parties represent taxable costs, if the depositions, themselves, were necessary. George R. Hall, Inc., 532 F.Supp. at 995. The court finds that the depositions noticed by plaintiff were necessarily obtained for use in the case. Plaintiff took the depositions at issue during discovery, before defendant filed its motion for summary judgment. Defendant relied upon the depositions of Dorothy Helms, Ola Quinn, Reginald Coffin, Harrison Anderson, Bishop Thompson, and Alex Compton in its motion for summary judgment. The court considered the depositions in deciding whether to grant summary judgment for the defendant. Therefore, these depositions were necessarily obtained for use in the case, and the costs of copies should be taxed to plaintiff. 4. Expert Witness Fees Plaintiff additionally objects to the expert witness deposition fee ($400.00) listed in defendant’s bill of costs. The power of the trial judge to tax witness costs is conferred by 28 U.S.C. § 1920(3); however, the amount of witness fees that may be charged under section 1920(3) is governed by 28 U.S.C. § 1821. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445, 107 S.Ct. 2494, 2499, 96 L.Ed.2d" }, { "docid": "5967050", "title": "", "text": "at trial, was not an abuse of discretion. Roberts, 921 F.2d at 1058. In Manildra, the district court awarded costs to plaintiff even though its suit produced no money judgment but only a declaration that its competitor’s patents were invalid. Manildra, 878 F.Supp. at 1425. In this case, even though plaintiff did not sustain all of his claims, he prevailed on his claims at trial and received a money judgment of $47,916.66. Therefore the Court has discretion to declare plaintiff the “prevailing party” and award him costs. Because plaintiff is the prevailing party, plaintiff will not have bear defendant’s costs. The Motion of Plaintiff to Retax Costs Allowed Defendant (Doc. # 156) is granted. 2. Plaintiffs Costs a. Printing Fees Defendant objects to the fees for printing plaintiffs Brief in Opposition to Summary Judgment (Doc. # 59) filed October 14, 1994. Section 1920(4) allows “fees and disbursements for printing” to be taxed as costs. 28 U.S.C. § 1920(4). Plaintiffs brief was necessary to the disposition of issues in the case and, as a result, will be taxed to defendant. Defendant should not be taxed for the printing fees associated with plaintiffs Brief as Appellee to Court of Appeals. Pursuant to Rule 39(d), Fed. R.App. P., this cost should be awarded by the court of appeals. See also Scaduto v. Orlando, 381 F.2d 587, 597 (2d Cir.1967). Any costs associated with this expense shall be issued by the Clerk of the Tenth Circuit Court of Appeals as part of its mandate. b. Deposition Transcripts Defendant objects to costs for the deposition transcripts of Yellow Freight employees Cathy Larrimer, Joyce Drummond, Roger Payne, Robert Callaghan, Michael Champion, Owen Geitz, and William Marden. The standard for determining whether deposition expenses are taxable as costs is whether the deposition was necessary to the case. “Though use at trial by counsel or the court readily demonstrates necessity, if materials or services are reasonable necessary for use in the case even though not used at trial, the court can find necessity.” U.S. Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1246 (10th Cir.1988). The" }, { "docid": "799959", "title": "", "text": "by the losing party. B. Deposition Transcripts The bill of costs includes $25,465.65 for transcripts, plaintiff’s share of deposition costs, and copies of depositions. Defendant objects to the taxation of these costs on grounds that plaintiff seeks reimbursement for the cost of all depositions taken in the case, including depositions of plaintiff’s own witnesses and plaintiff’s counsel. However, plaintiff did not depose any of its own witnesses. Rather, plaintiff seeks reimbursement for copies of depositions of its own witnesses that were taken by defendant. Under § 1920, deposition expenses are properly taxed if the deposition was “necessarily obtained for use in the case.” See United States v. Kolesar, 313 F.2d 835 (5th Cir.1963). “[A] deposition taken within the proper bounds of discovery ... will normally be deemed to be ‘necessarily obtained for use in the case,’ and its cost will be taxed unless the opposing party interposes a specific objection that the deposition was improperly taken or unduly prolonged.” George R. Hall, Inc. v. Superior Trucking Co., Inc., 532 F.Supp. 985, 994 (N.D.Ga.1982) (quoting Jeffries v. Georgia Residential Finance Authority, 90 F.R.D. 62 (N.D.Ga.1981)). A deposition need not be used at trial but must appear reasonably necessary at the time it is taken. Allen v. United States Steel Corp., 665 F.2d 689 (5th Cir.1982); O'Donnell v. Georgia Osteopathic Hospital, Inc., 99 F.R.D. 578, 581 (N.D.Ga.1983). However, deposition costs incurred merely for the convenience of a party or a party’s attorney, for purposes of investigation, or simply to aid a party in thorough preparation are not taxable. Expenses for copies of depositions taken by the prevailing party are not normally recoverable. Jamison v. Cooper, 111 F.R.D. 350, 351 (N.D.Ga.1986); George R. Hall, Inc., 532 F.Supp. at 995. However, when the party files the original transcript in its possession with the court at the opposing party’s request, rather than in support of its own motion or presentation of the case, charges for copies are taxable if the deposition is used extensively in preparation for and at trial. Id. Charges for a copy of a deposition taken by an opponent are recoverable. United" }, { "docid": "23197713", "title": "", "text": "the completion of trial, Marmo sought $165,159.00 in expenses and costs. The district court awarded Marmo $23,003.56, based on her limited success at trial and her failure to provide sufficient information to support the bill of costs. Marmo argues that the district court improperly reduced the award. Costs other than attorneys’ fees “shall be allowed as of course to the prevailing party unless the court otherwise directs.” Fed.R.Civ.P. 54(d); see also 28 U.S.C. § 1920 (enumerating costs that are recoverable). Rule 54(d) presumes an award of costs to the prevailing party; however, the district court has substantial discretion in awarding costs. Computrol, Inc. v. Newtrend, L.P., 203 F.3d 1064, 1072 (8th Cir.2000) (citations omitted). Indeed, Rule 54(d) is phrased in permissive terms and generally grants a federal court the discretion to refuse to tax costs in favor of the prevailing party. Id. (citation omitted). Accordingly, we review the district court’s decision concerning the award of costs for abuse of discretion. Martin v. DaimlerChrysler Corp., 251 F.3d 691, 695 (8th Cir.2001). 1. Transcription Costs A district court may tax transcription costs if a deposition was “necessarily obtained for use in a case” and was not “purely investigative.” Smith, 436 F.3d at 889; see also 28 U.S.C. § 1920. The Bill of Costs Handbook used by the District of Nebraska details what deposition transcripts are necessary. It provides that costs incurred in taking depositions gener ally -will be taxed in favor of the prevailing party “if the taking of the depositions was reasonably necessary at the time it was taken, even though they may not have been used at trial.” (IBP Add. in Appeal No. 05-8649 at 3.) However, it also requires that a prevailing party show that the deposition was introduced into evidence, relied upon for cross-examination or impeachment purposes, or otherwise useful in assisting a resolution of contested issues. (Id.) The Handbook further provides that depositions taken solely for discovery are not taxable as costs. (Id.) The district court refused to tax costs associated with witnesses whom Marmo voluntarily withdrew or whom the district court ruled inadmissible. When a party" }, { "docid": "4067705", "title": "", "text": "all its filings (two for the Court and one for Michael) and one copy of all of Michael’s filings. Additionally, CyFair found it necessary to provide copies of the relevant portions of the transcript generated before the hearing officer to two of its witnesses. Cy-Fair made one copy of each of the depositions for its use at trial. This totaled 8,318 copied pages, which Cy-Fair claims cost $1,247.70 at a fair and reasonable amount of $.15 per page. The Court finds that these copies were necessary for Cy-Fair to make in this case and $.15 per page is a reasonable copy cost. Therefore, Cy-Fair is entitled to recover $1,247.70 as its copy costs under section 1920(4). The next item contained on CyFair’s bill of costs is $3,657.55 for costs incident to taking four depositions. Section 1920(2) allows for the recovery of costs for stenographic transcriptions necessarily obtained for use in the case. Michael’s objection to this item is that the depositions were not necessary in this case. A deposition is taxable as a cost so long as “the taking of the deposition is shown to have been reasonably necessary in the light of facts known to counsel at the time it was taken.” Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1099 (5th Cir.1982). The cost of a deposition may be taxed even if it is used just to structure- questioning at trial. Soderstrum v. Town of Grand Isle, 925 F.2d 135, 141 (5th Cir.1991). Cy-Fair claims that even though Michael refused to allow the use of these depositions at trial, the depositions were necessary to have available at trial for witness examination purposes. The Court finds that the depositions were necessary in this trial and are recoverable as taxable costs. The final item listed on Cy-Fair’s bill of costs is $1,190.00 as attorney’s fees against Michael’s counsel under 28 U.S.C. § 1927. The decision to award attorney’s fees under 28 U.S.C. § 1927 is committed to the Court’s discretion. Thomas v. Capital Sec. Servs., Inc., 812 F.2d 984, 990 (5th Cir.1987). Cy-Fair has argued that Michael’s attorney" }, { "docid": "17970354", "title": "", "text": "the particular court is of no more consequence as to depositions then it would be as to trial evidence taken by a substitute nonofficial reporter with the consent of the Court. United States v. Kolesar, supra. The next question is whether the transcript of plaintiff Dave Fleischer’s deposition was “necessarily obtained for use in the case.” It is plaintiff’s contention that defendant used only three or four pages of the transcript of the deposition on the motion for summary judgment, and, therefore, as to those portions not used, it was not necessarily obtained for use in the case. Defendant maintains that material portions of the deposition were quoted in the motion for summary judgment and were of crucial importance in pinning plaintiff down on his cause of action. The examination of plaintiff would seem relevant to the issues involved. An examination of the papers on the motion for summary judgment reveals that use was made of part of the deposition as an exhibit attached to the papers. Moreover, in December 1957, Judge Herlands directed that the costs of taking plaintiff’s deposition be a taxable item to the prevailing party. Judge Her-lands, in guiding the discovery procedure in this ease, was in an excellent position to forecast what was necessarily obtained for use in this case. Professor Moore, in his treatise, states that: “As a general principle the costs of taking depositions will be taxed in favor of the prevailing party, if the taking of the depositions was reasonably necessary, even though they may not have been used at the trial.” 4 Moore, Federal Practice, ¶ 26.36 at 1697-98 (1963). That principle is applicable to the situation presented in the case at bar. Undoubtedly, the facts adduced at the taking of such deposition were instrumental to some extent in prompting defendant’s counsel to move for summary judgment. The deposition was taken for the purposes of preparation for trial and possible use at the trial. The fact that the action was dismissed prior to trial on defendant’s motion for summary judgment is no reason for disallowing the costs of the taking of" }, { "docid": "23197714", "title": "", "text": "court may tax transcription costs if a deposition was “necessarily obtained for use in a case” and was not “purely investigative.” Smith, 436 F.3d at 889; see also 28 U.S.C. § 1920. The Bill of Costs Handbook used by the District of Nebraska details what deposition transcripts are necessary. It provides that costs incurred in taking depositions gener ally -will be taxed in favor of the prevailing party “if the taking of the depositions was reasonably necessary at the time it was taken, even though they may not have been used at trial.” (IBP Add. in Appeal No. 05-8649 at 3.) However, it also requires that a prevailing party show that the deposition was introduced into evidence, relied upon for cross-examination or impeachment purposes, or otherwise useful in assisting a resolution of contested issues. (Id.) The Handbook further provides that depositions taken solely for discovery are not taxable as costs. (Id.) The district court refused to tax costs associated with witnesses whom Marmo voluntarily withdrew or whom the district court ruled inadmissible. When a party withdraws a witness in response to a motion in limine, or when the district court concludes that a witness does not have the expertise under Federal Rules of Evidence 104 or 702 to assist the jury in determining an issue, the district court is well within its discretion to deny costs associated with that witness. Moreover, the district court is in a better position than the Court of Appeals to assess whether the depositions of these witnesses were necessary. Accordingly, we find no abuse of discretion. 2. Witness Fees A district court may award witness fees if it determines that the witness’s testimony “was crucial to the issues decided and the expenditures were necessary to the litigation.” Neb. Pub. Power Dist. v. Austin Power, Inc., 773 F.2d 960, 975 (8th Cir.1985). The Handbook provides that witness fees will not be taxed if the witness is subpoenaed for trial but does not testify, or if the witness is deposed but the transcript is not used at trial or in support of a motion. (IBP Add. in" }, { "docid": "11799129", "title": "", "text": "at the trial, and $160.00 for the cost of paper and a copy-boy hired by plaintiff for the specific purpose of copying documents produced at the office of SCM’s counsel and for preparing books of exhibits, as suggested by the Court. The Court refuses to tax other copying charges claimed, amounting to $232.60. The total allowance for copying is therefore $285.65. (e) Deposition Costs. The taxation of deposition costs is recognized as discretionary. For the past fifteen years our Clerk has followed the principles stated by Judge Chesnut in Hansen v. Bradley, 114 F.Supp. 382, 385, 386 (D.Md.1953), which disallowed the cost of depositions which were not introduced in evidence, despite the fact that they may have been used at trial for impeachment purposes. It is now, however, generally recognized by federal courts that deposition transcripts, when reasonably “necessary for use in the case” are taxable under sub-section (2) of 28 U.S.C. § 1920 as “Fees of the court reporter for * * * stenographic transcript”. 4 Moore, Par. 26.36; Peck, Taxation of Costs, 37 F.R.D. 481, 487, 488 (1965). The Court is satisfied that the time has come to bring the practice in the District of Maryland into line with the majority rule throughout the country. We should consider the extent of actual use of each deposition in cross-examination and otherwise, and whether the taking was reasonably necessary to the party’s case in light of the particular situation existing at the time of taking. It is not necessarily fatal to taxation that they were not introduced or otherwise used at the trial. Moore, supra; Peck, supra; Nationwide Auto Appraiser Serv. v. Association of Cas. & S. Co., 41 F.R.D. 76, 77 (W.D.Okla.1966); Independent Iron Works, Inc. v. United States Steel Corp., 322 F.2d 656, 678, 679 (9 Cir. 1963); Modick v. Carvel, 209 F.Supp. 361, 364 (S.D.N.Y.1962); Talbot-Windsor Corp. v. Miller, 32 F.R.D. 18, 19 (D.Mass.1962). Five of the\" depositions were used by plaintiff in the cross-examination of SCM witnesses at the trial, and three of the five were also used in pretrial motions. The cost of those five" }, { "docid": "6024411", "title": "", "text": "court and those fees paid upon removal to the district court. Department of Highways v. McWilliams Dredging Co., 10 F.R.D. 107 (D.C.La.1950), aff’d, 187 F.2d 61 (5th Cir.1951). Further, we can see no reason why a plaintiff would be entitled to reimbursement of the filing fee in a case where the plaintiff prevails, and refuse to award the defendant the removal costs when defendant prevails. Thus, we will allow the $109.00 claimed for removal fees. The transcript fees incident to the taking of depositions of witnesses are taxable. Plaintiffs contend that the depositions were unnecessary since the deponents actually testified at trial. Costs for taking of depositions are taxable when the depositions appear reasonably necessary to the parties in light of a particular situation existing at the times they were taken. This rule applies even though the deposition taken may not have been used at trial. Kraeger v. University of Pittsburgh, 535 F.Supp. 233 (D.C.Pa.1982); Health-Chem Corp. v. Hyman, 523 F.Supp. 27 (D.C.N.Y.1981). Thus, we agree with the clerk’s opinion and allow the transcript fees of $290.08 as taxable costs. The copying costs of various documents for use in the case are taxable. Plaintiff contends that because the documents in question pertained to the issue of damages which was never reached at trial, the costs of copying the documents are not taxable. 28 U.S.C. § 1920(4) specifically allows for costs of “copies of papers necessarily obtained for use in the case.” We determine that at the time the copies were obtained that defendant could reasonably have expected that the damage issue would be reached at trial. Therefore, the documents were necessarily obtained for use in the trial and the cost of $188.85 is taxed in defendant’s favor. Witness fees and expenses are claimed by defendant for airfare, hotel and miscellaneous expenses of four witnesses who testified at trial. Plaintiffs contend that these expenses should not be allowed under the “100-mile” rule. We determine that the witness fees and expenses are taxable in favor of the defendant subject to the adjustment below. Rule 45(e) of the Fed.R.Civ.P. provides inter alia that" }, { "docid": "22270696", "title": "", "text": "before trial, the demand might even be more imperative on the trial itself. Effective ■cross examination of witnesses frequently rests on availability of pretrial depositions either of that witness or other witnesses. This, as all lawyers — and lawyers-turned-judges — know is not a spur of the moment bit of legal forensics. Like the rest of successful trial advocacy, it depends on preparation. Preparation means selection and that means mechanical aids such as checks, underscoring, marginal notes, and the like. Such liberties can hardly be permitted with the one and only original deposition in the official court files. Conservation of precious court and judge time — one of the objects of effective pretrial — likewise demands that with respect to depositions to be offered as evidence, selectivity is both needed and very desirable. All of these factors could be multiplied for many pages. It is a fair summary of our collective experience as practitioners that the utility (and necessity) for a deposition is not alone measured by whether all or any part of it is formally offered in evidence as such. A deposition used effectively in cross examination may have its telling effect without so much as a line of it being formally proffered. What this means, of course, is that someone must determine in the particular context of a specific case just what depositions have been necessary. No one is better equipped for that than the trial Judge. Thus while we reject Judge Hincks’ thesis that forbids the cost of a copy of any deposition altogether as a fiat inexorable prohibition, we do not by reflex action establish a rule of like rigidity in the opposite direction.' On the contrary, we keep it as flexible as the concept of necessity requires. The trial Judge must ¡determine whether all or any part of a copy of any or all of the depositions was “necessarily obtained for use in the ease.” In that evaluation, great latitude and discretion must be accorded the Judge. Reversal will require an abuse of discretion. On that standard the taxation of the costs for copies of" } ]

[ { "docid": "22621978", "title": "", "text": "— uniformity, transparency in sentencing, and individualized fact-finding— are features of a reasoned sentencing approach, and relevant to an advisory system just as they were to a mandatory one. Since Johnson was sentenced within the properly calculated Guidelines range, his sentence cannot be other than presumptively reasonable. III. Notwithstanding the foregoing, Johnson disputes the reasonableness of his sentence in two separate ways, one substantive, the other procedural. See Moreland, 437 F.3d at 434 (“Reasonableness review involves both procedural and substantive components.”). We will address each in turn. First, Johnson argues that it is substantively unreasonable to group the drug quantities in his three charges, as required by the Guidelines. See U.S. Sentencing Guidelines Manual § 3D1.2 (2004) (setting forth rules for grouping multiple counts). This grouping provision, which the district court applied, yielded a base offense level of 32. According to Johnson, it would have been more appropriate for the district court to impose a sentence based on the drug quantities in each individual charge, the largest of which would have generated a base offense level of 28. To the extent Johnson believes that § 3D1.2’s grouping provision is unreasonable or unfair as a general matter, the proper forum in which to raise this issue is Congress or the Sentencing Commission, not a federal court. Congress and the Commission have, as we discussed above, spent approximately twenty years refining the Guidelines with an eye toward the sentencing objectives in 18 U.S.C.A. § 3553(a). We are, consequently, ill-equipped and disinclined to quarrel with the Commission’s conclusion that grouping of closely related counts is an appropriate way “to provide incremental punishment for significant additional criminal conduct.” U.S. Sentencing Guidelines Manual ch. 3, pt. D, introductory cmt. (2005); see also United States v. Eura, 440 F.3d 625, 634 (4th Cir.2006) (holding unreasonable district court’s non-application of the 100:1 crack cocaine/powder cocaine ratio because it “impermissibly usurps Congress’s judgment about the proper sentencing policy for cocaine offenses”) (internal quotation marks omitted). Johnson is of course free to challenge the application of § 3D1.2 to his particular case, see Eura, 440 F.3d at 634, as" } ]

[ { "docid": "22280237", "title": "", "text": "support, substance abuse problems, and willingness to undergo counseling, these matters are encompassed within § 3553(a)(1), which requires a sentencing court to consider “the history and characteristics of the defendant.” The district court stated that it had accounted for the “nature and circumstances of the offense and the history and the characteristics of Mr. Lapsins,” as well as a number of other § 3553(a) considerations. (ROA II, Sent’g Hr’g 25.) As noted above, the record reveals that the district judge considered Lapsins’s arguments and evidence in support of a downward variance (in addition to the criminal history downward variance already given). Therefore, Lapsins has not established that his sentence was procedurally unreasonable. Lapsins’s substantive unreasonableness argument is based on essentially the same claim as his procedural unreasonableness argument—that the district court failed to consider pertinent § 3553 factors. Because the sentence falls within the properly-calculated Guidelines range, it is entitled to a presumption of reasonableness. See Vonner, 516 F.3d at 389. Lapsins’s argument that he is entitled to a below-Guidelines sentence because a defendant with similar characteristics received a downward departure in United States v. Cherry can be construed as a substantive unreasonableness argument, but it is without merit—the fact that a judge in an unrelated ease found a specific individual deserving of a downward departure does not mean that the judge in this case plainly erred by sentencing Lapsins within the Guidelines after considering the nature of his crime and his personal characteristics. See, e.g., United States v. Brinda, No. 07-6357, 2009 WL 1011740, 321 Fed.Appx. 464, 2009 U.S.App. LEXIS 7936, at *10-11 (6th Cir. Apr. 15, 2009) (holding that defendant in child pornography case did not rebut presumption of reasonableness by pointing to other defendants who received similar sentences for purportedly more culpable conduct). Lapsins has not rebutted the presumption of substantive reasonableness accorded to within-Guidelines sentences. III. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s denial of Lapsins’s suppression motion and AFFIRM Lapsins’s sentence. . \"Docs. Under Seal” refers to a document, separate from the ROA, that is listed on the appellate docket sheet as" }, { "docid": "22785674", "title": "", "text": "the proper sentencing policy for cocaine offenses.” Id. at 63. Of course, it does not follow that all defendants convicted of crack cocaine offenses must receive a sentence within the advisory sentencing range. We certainly envision instances in which some of the § 3553(a) factors will warrant a variance from the advisory sentencing range in a crack cocaine case. However,, a sentencing court must identify the individual aspects of the defendant’s case that fit within the factors listed in 18 U.S.C. § 3553(a) and, in reliance on those findings, impose a non-Guidelines sentence that is reasonable. Moreover, in arriving at a reasonable sentence, the court simply must not rely on a factor that would result in a sentencing disparity that totally is at odds with the will of Congress. Cf. United States v. Clark, 434 F.3d 684 (4th Cir.2006) (opinion of Luttig, J.) (noting that the consideration of state sentencing practices in sentencing a federal defendant for a 21 U.S.C. § 846 offense renders the defendant’s sentence unreasonable in light of § 3553(a)(6)). The Sentencing Commission’s recommendations to narrow the 100:1 ratio are such impermissible factors and, thus, cannot be used as a basis to vary from the advisory sentencing range. In this case, while the district court was not required to discuss each § 3553(a) factor on the record, it was required to adequately and properly consider the factors. The court did enunciate some of the factors, but relied on the unfairness it perceived existed in the 100:1 ratio to vary Eura’s sentence from the advisory sentencing range. The court never adequately and properly considered § 3553(a)(6). Moreover, the court understandably did not mention any facts concerning Eura as an individual that would have warranted a sentence outside the sentencing range, as none existed in the record. Indeed, the record reflects that there is nothing atypical about Eura’s case that warranted a sentence outside of the advisory sentencing range. IV For the reasons stated herein, we affirm Eura’s convictions, vacate his sentence, and remand his case for resentencing at the low end of the sentencing range (seventy-eight months) on" }, { "docid": "23284228", "title": "", "text": "court to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct” (emphases added)). Bynum makes no effort to demonstrate that his mid-Guideline 192-month sentence is unreasonably excessive compared to the sentences of other defendants in the same criminal history category convicted of crimes in the same offense level. Moreover, Bynum does not argue that the district court otherwise unreasonably applied federal law in fashioning his sentence. If he did, such an argument would fail. Although Congress has deemed Bynum’s personal characteristics and history relevant in the sentencing analysis, id. § 3553(a)(1), nothing in Bynum’s past suggests that the district court imposed a substantively unreasonable sentence in sentencing him within the advisory Guidelines range. See id. § 3553(a)(4) (directing sentencing courts to consider the recommended Guidelines range). Thus, Bynum can point to no evidence rebutting the presumption of substantive reasonableness that we afford properly calculated within- Guidelines sentences. See Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Wright, 594 F.3d 259, 267, 268 (4th Cir.2010). In fact, in determining Bynum’s sentence, the district court expressly refused to consider Bynum’s conduct leading to 2002 child pornography charges, which the Government subsequently dismissed. The court denied the Government’s request for an upward variance and sentenced Bynum — who uploaded several illicit, and sometimes violent, sexual photos and video of children to the internet, and on whose computer authorities found more than 5000 photos and 150 videos of child pornography — to a within-Guidelines sentence. We cannot deem this sentence substantively unreasonable. V. The judgment of the district court is therefore AFFIRMED. . All the administrative subpoenas served in this case requested that the recipients not disclose to Bynum or anyone else the existence of the subpoenas. . Because Bynum does not allege a privacy interest in the IP addresses the FBI obtained from Yahoo — numbers that Bynum never possessed^ — he has abandoned any such claim. See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n. 6 (4th Cir.1999)." }, { "docid": "15532885", "title": "", "text": "is required to abide by the 100-to-l crack cocaine to cocaine powder ratio when applying the Sentencing Guidelines to a defendant’s conduct. Id. at 275; (following United States v. Pho, 433 F.3d 53 (1st Cir.2006); United States v. Eura, 440 F.3d 625 (4th Cir.2006)). In other words, this court made clear in Miller that a sentencing judge may not recalculate a Guidelines sentence or impose a lesser, non-Guidelines sentence based on his opinion that the statutory and/or Guidelines disparity between punishments for crack cocaine and powder cocaine is unjust or unwarranted. See id. at 276 (holding that: “A sentence within a properly ascertained range ... cannot be treated as unreasonable by reference to 3553(a)(6)”). Accordingly, Davis’s argument must fail, for Judge Norgle acted in anticipation of and furthermore in accordance with Miller when he categorically refused to consider Davis’s argument in favor a non-Guidelines sentence based solely on the disparity between crack cocaine and cocaine powder in the Guidelines. In a final attempt to challenge his sentence as imposed, Davis states that the district court should have issued a non-Guidelines sentence based on the factors enumerated in 3558(a). The main thrust of Davis’s argument concerning 3553(a) is that the district court’s sentencing determination should be found unreasonable due to the fact that his crimes were “the result of his addiction to marijuana and alcohol.” The problem is that mere evidence of a pre-existing drug and alcohol addiction, without more, falls far short of rendering a properly calculated Guidelines sentence unreasonable. Were this not the case, multitudes of criminal defendants who had either used or abused drugs and alcohol and who failed to receive a reduction in sentence under the Guidelines could and would in all probability challenge his sentence as unreasonable on those grounds alone. This most assuredly is not what the Congress had in mind when they passed 18 U.S.C. § 3553(a). The same can be said for Davis’s other § 3553(a) arguments as well. He claims he was, at times, “responsible, held legitimate employment, ... tried to help his friends and family ... [and] was a good father" }, { "docid": "21389753", "title": "", "text": "in this case was a variance (not a departure) which resulted in the imposition of a non-Guidelines sentence, and we will review it accordingly. Washington argues that the facts on which the district court relied for the variance all relate to his prior armed bank robbery conviction and were therefore sufficiently taken into account in his Guidelines criminal history calculation. Washington’s criminal history score did take into account some of the circumstances surrounding his prior armed bank robbery conviction. The prior conviction itself would have placed Washington in Criminal History Category II. Further criminal history add-ons accounted for additional circumstances, particularly the fact that he committed the instant offense while he was on supervised release for the prior offense (two additional points) and that he committed the instant offense less than two years following his release from custody on the prior offense (one additional point). These additional criminal history points moved Washington into Criminal History Category III, which effectively increased the upper end of his advisory Guidelines range by a total of five months over the range that would have been applicable to a Category II offender. Washington argues that because all of his criminal history points were related to the prior armed bank robbery conviction, this higher Guidelines sentencing range already encompasses the reasons articulated by the district court to justify the non-Guidelines variance sentence. We respectfully disagree. The district court acknowledged that the Guidelines range already accounted for the prior bank robbery “to an extent,” but explicitly concluded that the additional five months resulting from the criminal history calculations alone did not adequately reflect the seriousness of Washington’s con duct. The district court appropriately considered the relevant factors of § 3553(a) and noted additional facts relevant to the nature and circumstances of the offense and Washington’s history and characteristics under § 3553(a)(1), such as his return to the same crime within five months of his release despite enjoying an unusually supportive family and the upcoming responsibility for a new child. The district court provided an adequate explanation for the variance that went beyond the facts taken into account" }, { "docid": "23075162", "title": "", "text": "a crime of violence, id. § 2L1.2(b)(1)(A). The PSR also recommended a three-level downward adjustment for acceptance of responsibility, see USSG § 3E1.1(a), (b), for a total offense level of 21. With a criminal history category III, the PSR calculated a guideline range of 46-57 months. Sebastian objected to the 16-level enhancement and to the criminal history calculation. He also filed a sentencing memorandum arguing why a sentence within the advisory guideline range would not be appropriate in light of the sentencing factors outlined in 18 U.S.C. § 3553(a). The district court considered Sebastian’s objections, but found that the guideline range had been accurately calculated and that a sentence at the low end of the advisory range was reasonable in light of § 3553(a). The court thus imposed a sentence of 46 months. On appeal, Sebastian does not dispute the district court’s calculation of the advisory guideline range. He argues, however, that his sentence is unreasonable because the district court weighed the advisory guidelines too heavily and failed properly to consider the other factors set forth in § 3553(a). In particular, Sebastian asserts that the district court overlooked his alleged confusion about whether he was actually permitted to return to the United States, the disparity between his sentence and one that he would have received if he were sentenced in a district using “fast-track” procedures for immigration cases, and the fact that his conviction for child molestation was counted under the guidelines both for purposes of his offense level and his criminal history category. We review the ultimate sentence imposed for unreasonableness, Booker, 125 S.Ct. at 765-66, and a properly calculated guidelines sentence is presumptively reasonable. See United States v. Tobacco, 428 F.3d 1148, 1151 (8th Cir.2005). Reasonableness review is “akin to abuse of discretion review,” United States v. Rogers, 423 F.3d 823, 829 (8th Cir.2005) (internal quotation and ellipses omitted), and a guidelines sentence may nonetheless be unreasonable where a district court gives significant weight to an improper or irrelevant factor, fails to consider a factor that should have been given significant weight, or otherwise commits a clear error" }, { "docid": "22663474", "title": "", "text": "crack/powder disparity yields a sentence “greater than necessary” to achieve § 3553(a)’s purposes, even in a mine-run case. V Taking account of the foregoing discussion in appraising the District Court’s disposition in this case, we conclude that the 180-month sentence imposed on Kimbrough should survive appellate inspection. The District Court began by properly calculating and considering the advisory Guidelines range. It then addressed the relevant § 3553(a) factors. First, the court considered “the nature and circumstances” of the crime, see § 3553(a)(1), which was an unremarkable drug-trafficking offense. App. 72-73 (“[T]his defendant and another defendant were caught sitting in a car with some crack cocaine and powder by two police officers — that’s the sum and substance of it — [and they also had] a firearm.”). Second, the court considered Kimbrough’s “history and characteristics.” § 3553(a)(1). The court noted that Kimbrough had no prior felony convictions, that he had served in combat during Operation Desert Storm and received an honorable discharge from the Marine Corps, and that he had a steady history of employment. Furthermore, the court alluded to the Sentencing Commission’s reports criticizing the 100-to-l ratio, cf. § 3553(a)(5) (2000 ed., Supp. V), noting that the Commission “recognizes that crack cocaine has not caused the damage that the Justice Department alleges it has.” App. 72. Comparing the Guidelines range to the range that would have applied if Kimbrough had possessed an equal amount of powder, the court suggested that the 100-to-l ratio itself created an unwarranted disparity within the meaning of § 3553(a). Finally, the court did not purport to establish a ratio of its own. Rather, it appropriately framed its final determination in line with §3553(a)’s overarching instruction to “impose a sentence sufficient, but not greater than necessary,” to accomplish the sentencing goals advanced in § 3553(a)(2). See supra, at 101. Concluding that “the crack cocaine guidelines [drove] the offense level to a point higher than is necessary to do justice in this case,” App. 72, the District Court thus rested its sentence on the appropriate considerations and “committed no procedural error,” Gall, ante, at 56. The ultimate" }, { "docid": "22452082", "title": "", "text": "reasons, other courts of appeals have decided against “creating a fear-of-consequences exception to the safety valve provision.” Because Washington presents no persuasive reason for creating a fear-of-consequences exception in this case, the district court did not err in refusing to grant the 2-point reduction. B Washington also contends he should have received a mitigating-role reduction under U.S.S.G. § 3B1.2 because his only involvement in the conspiracy was storing the drugs. Because this issue was not raised in the district court, the plain-error rule applies. The district court did not err in refusing to grant the mitigating-role reduction. Washington was not charged or sentenced based on some larger conspiracy involving more drugs than he stored; he was only charged and sentenced based on the drugs stored on his property. Accordingly, he is not entitled to a mitigating-role reduction under section 3B1.2. C Washington asserts his 108-month sentence is unreasonable because (1) it was imposed at the high end, as opposed to the middle, of the advisory Guidelines range; and (2) the district court relied “almost entirely on the guideline range and the quantity of drugs” and failed to consider his character and history. Following Booker, a sentence “is reviewed for ‘unreasonableness’ with regard to the statutory sentencing factors enumerated in [18 U.S.C. §] 3553(a).” A sentence imposed within a properly calculated advisory Sentencing Guidelines range is afforded a rebuttable presumption of reasonableness. A district court is not required to give “a checklist recitation of the section 3553(a) factors.” “ ‘If the sentencing judge exercises [his or] her discretion, to impose a sentence within a properly calculated Guideline range, ... we will infer that the judge has considered all the factors for a fair sentence set forth in the Guidelines.’ ” In this case, the record supports the inference that the district court considered the relevant factors. During the sentencing proceeding, Washington’s history and characteristics were discussed, including his family-life, work history, and completion of self-help programs. The nature and characteristics of the offense were also discussed. The district court noted that Washington stored over 4,300 pounds of marijuana on his property." }, { "docid": "21389754", "title": "", "text": "the range that would have been applicable to a Category II offender. Washington argues that because all of his criminal history points were related to the prior armed bank robbery conviction, this higher Guidelines sentencing range already encompasses the reasons articulated by the district court to justify the non-Guidelines variance sentence. We respectfully disagree. The district court acknowledged that the Guidelines range already accounted for the prior bank robbery “to an extent,” but explicitly concluded that the additional five months resulting from the criminal history calculations alone did not adequately reflect the seriousness of Washington’s con duct. The district court appropriately considered the relevant factors of § 3553(a) and noted additional facts relevant to the nature and circumstances of the offense and Washington’s history and characteristics under § 3553(a)(1), such as his return to the same crime within five months of his release despite enjoying an unusually supportive family and the upcoming responsibility for a new child. The district court provided an adequate explanation for the variance that went beyond the facts taken into account in the criminal history calculation. Thus, the district court “committed no significant procedural error.” Gall, 128 S.Ct. at 597. We next consider the substantive reasonableness of the sentence. See id. The 26-month (5-offense-level) upward variance in this case from what Gall characterizes as “the initial benchmark,” 128 S.Ct. at 596, is neither minor nor insubstantial. Even under Gall, “a major [variance] should be supported by a more significant justification than a minor one.” Id. at 597. The district court must make an individualized assessment based on the facts presented, and upon determining that a non-Guidelines sentence is warranted, the court “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Id. Viewing, with due deference, the district court’s decision for an abuse of discretion, we note that the district court stressed the serious nature of Washington returning, less than five months from his release from prison, to virtually the same criminal conduct for which he had just served a 78-month sentence, despite his" }, { "docid": "22707762", "title": "", "text": "Brantley’s extensive criminal history, his personal characteristics, the offenses of conviction, and the fact that incarceration and probation had not deterred him from crime, thereby requiring a long imprisonment term to protect the public. The district court also explained that it was imposing a fine of $65,000 in lieu of restitution due to the “lack of information and number of unidentified victims” in the case. Brantley appeals. II. DISCUSSION A. Reasonableness of Sentence Brantley first argues that the sentence of incarceration imposed by the district court was unreasonable because it was 258% higher than the top of the Guidelines range and because the district court’s basis for imposing it was primarily his criminal history category. He maintains that the basis for the sentence was improper because criminal history and the other 18 U.S.C. § 3553(a) factors relied upon by the district court were part of the Guidelines range calculation, and that according to United States v. Perrin, 478 F.3d 672, 678 (5th Cir.2007), abrogation recognized by United States v. Williams, 517 F.3d 801 (5th Cir.2008), factors included in the Guidelines range calculation can not support a non-Guidelines sentence. He also contends that the sentence imposed was unreasonable because the district court did not give enough weight to the Guidelines sentence range, and that pursuant to United States v. Duhon, 440 F.3d 711 (5th Cir.2006), vacated, — U.S. -, 128 S.Ct. 853, 169 L.Ed.2d 705 (2008), the district court improperly sentenced him based on its dissatisfaction with the Guidelines range calculation. This court recognizes three types of sentences: (1) “a sentence within a properly calculated Guidelines range”; (2) “a sentence that includes an upward or downward departure as allowed by the Guidelines”; and (3) “a non-Guideline sentence” or a “variance” that is outside of the relevant Guidelines range. United States v. Smith, 440 F.3d 704, 706-08 (5th Cir.2006). The district court stated that based on the § 3553(a) factors, the sentence was outside of the Guidelines range both as an upward departure and as a variance. For present purposes, however, the specific characterization is irrelevant because, as shown below, the sentence" }, { "docid": "22933766", "title": "", "text": "we do not require the defendant to object in order to preserve the issue. See id; United States v. Castro-Juarez, 425 F.3d 430, 433-34 (7th Cir.2005). Thus, we do not review for plain error. Instead, we review merely for “reasonableness” of the sentence’s length. In this regard, [reasonableness review is guided by the factors set forth in 18 U.S.C. § 3553(a), which include the nature of the offense and characteristics of the defendant, as well as the need for the sentence to reflect the seriousness of the crime, to provide adequate deterrence, to protect the public, and to provide the defendant with needed training or treatment. Kristi, 437 F.3d at 1053 (internal citation omitted). A sentence within a properly calculated Guidelines range is entitled to a presumption of reasonableness. Id. at 1054. “This is a deferential standard that either the defendant, or the government may rebut by demonstrating that the sentence is unreasonable when viewed against the other factors delineated in § 3553(a).” Id. At sentencing, Mr. Torres-Duenas contended that the § 3553(a) factors, other than the Guidelines, warranted a lower sentence. In particular, he asserted that the age of his prior conviction, his likely minor role in that offense, and the intervening lack of any serious involvement with law enforcement, warranted a variance from the Guidelines. The district court appropriately considered each of these contentions and noted countervailing considerations, including the absence of anything in the record showing that Mr. Torres-Duenas was a minor participant in the kidnapping, the serious nature of that crime, and Mr. Torres-Duenas’s multiple violations of immigration law. Mr. Torres-Duenas contends that the court missed the point, because “the advisory guidelines range already reflected that the offense was serious,” Aplt. Br. at 19, and already accounted for his prior immigration offenses. But the court did not impose a sentence above the Guidelines range, so there was no double counting. The court simply found that Mr. Torres-Duenas’s arguments could not justify imposition of a sentence below that range, although it did impose a sentence at the bottom of the range. The 41-month sentence imposed by the" }, { "docid": "23284227", "title": "", "text": "substantive reasonableness of his within-Guidelines 192-month sentence. He labels this sentence “insane,” Petr.’s Br. 15, because it is “severe relative to the sentences imposed on others,” id. at 27 (charting average sentences for various other crimes by offenders in Bynum’s criminal history category, I). Bynum argues that “nothing about [him] or the offense” merits this sentence. Id. at 28. This argument also fails, for it ignores controlling federal law. Congress defines federal crimes and establishes the proper factors to be considered in fashioning a sentence for those crimes. See 18 U.S.C. § 3553(a) (2006). Under this framework, Congress has determined that when selecting a proper sentence, the sentences imposed on other defendants for other crimes are irrelevant. Rather, federal law expressly limits a sentencing court’s consideration of the sentences of other criminals to those imposed for “the applicable category of offense committed by the applicable category of defendant as set forth” in the advisory Guidelines established by the United States Sentencing Commission. Id. § 3553(a)(4)(A) (emphases added); see also id. § 3553(a)(6) (requiring a sentencing court to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct” (emphases added)). Bynum makes no effort to demonstrate that his mid-Guideline 192-month sentence is unreasonably excessive compared to the sentences of other defendants in the same criminal history category convicted of crimes in the same offense level. Moreover, Bynum does not argue that the district court otherwise unreasonably applied federal law in fashioning his sentence. If he did, such an argument would fail. Although Congress has deemed Bynum’s personal characteristics and history relevant in the sentencing analysis, id. § 3553(a)(1), nothing in Bynum’s past suggests that the district court imposed a substantively unreasonable sentence in sentencing him within the advisory Guidelines range. See id. § 3553(a)(4) (directing sentencing courts to consider the recommended Guidelines range). Thus, Bynum can point to no evidence rebutting the presumption of substantive reasonableness that we afford properly calculated within- Guidelines sentences. See Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007);" }, { "docid": "22452083", "title": "", "text": "on the guideline range and the quantity of drugs” and failed to consider his character and history. Following Booker, a sentence “is reviewed for ‘unreasonableness’ with regard to the statutory sentencing factors enumerated in [18 U.S.C. §] 3553(a).” A sentence imposed within a properly calculated advisory Sentencing Guidelines range is afforded a rebuttable presumption of reasonableness. A district court is not required to give “a checklist recitation of the section 3553(a) factors.” “ ‘If the sentencing judge exercises [his or] her discretion, to impose a sentence within a properly calculated Guideline range, ... we will infer that the judge has considered all the factors for a fair sentence set forth in the Guidelines.’ ” In this case, the record supports the inference that the district court considered the relevant factors. During the sentencing proceeding, Washington’s history and characteristics were discussed, including his family-life, work history, and completion of self-help programs. The nature and characteristics of the offense were also discussed. The district court noted that Washington stored over 4,300 pounds of marijuana on his property. As the district court stated, by thus participating in the conspiracy, Washington became “a very big drug dealer.” Based on these facts, Washington was sentenced at the highest end of the advisory Guidelines range. Washington has presented no evidence rebutting the presumption of reasonableness that attaches to his sentence. Therefore, his sentence is affirmed. II Danny Daniels also pleaded guilty to conspiring to possess with intent to distribute 100 kilograms or more of a mixture or substance containing a detectable amount of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Six weeks after he pleaded guilty, Daniels filed a motion to withdraw that plea. Daniels’ motion was opposed by the government and denied by the district court, which did not hold a hearing on the matter. The sentencing proceeding was held in February of 2005, after the Supreme Court decided Booker but before this court published United States v. Mares. In determining Daniels’ sentence, the district court discussed the factors set forth in 18 U.S.C. § 3553(a) and decided to impose a sentence" }, { "docid": "927595", "title": "", "text": "substantially above the properly calculated range.” United States v. John, 597 F.3d 263, 289 (5th Cir. 2010). But we also have declined to use that discretion even where the discrepancy was huge. Where the difference between the imposed sentence and the properly calculated range is small, we generally decline to correct the error. Here, there is no discrepancy between the sentence and the correctly calculated range. The court sentenced Rosales-Mi-reles to 78 months, which is in the middle of the proper range of 70-87 months. We cannot say that the error or resulting sentence would shock the conscience. Thus, we elect not to exercise our discretion. III. Rosales-Míreles contends that his sentence is substantively unreasonable because it is greater than necessary to effect the goals of 18 U.S.C. § 3553(a). Rosales-Mireles did not object to reasonableness in the district court, so we review only for plain error. A within-guidelines sentence is entitled to a presumption of reasonableness, and “[t]he presumption is rebutted- only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Rosales-Mireles’s 78-month sentence is within-guidelines, as it is within the overlap of the correct (70-87 months) and incorrect (77-96 months) ranges. It is therefore presumed reasonable. Id. Rosales-Mireles has not rebutted the presumption. He maintains that the district court placed too much weight on his old, prior convictions. But the court considered that argument during sentencing and rejected it. The -court explicitly considered a number of the § 3553(a) factors, including the nature of the offense; Rosales-Mireles’s history and characteristics; and the need to protect the public, deter future criminal conduct, and promote respect for the law. In addition, the court noted that this was Rosales-Mireles’s second conviction for being in the United States illegally, that he had used multiple aliases to remain in the United States, and that he had a history of assault stretching from" }, { "docid": "19532404", "title": "", "text": "was significant, it did not include weapons-related or violent convictions. Judge Bucklo sentenced Sykes to 195 months' imprisonment. She felt that the Guidelines range did not account for all of Sykes' conduct that she was required to consider under the sentencing factors stated in 18 U.S.C. § 3553(a). First, although Sykes himself was not convicted of violent crimes, he participated in a drug conspiracy for years which he knew involved violence. Second, he had not learned any respect for the law from his prior drug convictions. Each time he was released back to the community, Sykes returned to drug dealing. Third, Sykes had participated in the Brown murder. Again, however, Judge Bucklo stated that she would accord it limited weight. Finally, Judge Bucklo noted that Sykes did not accept responsibility for participating in the conspiracy. Sykes presents one issue on appeal: whether his above-Guidelines sentence was unreasonable because the district court misapplied the Section 3553(a) factors. Section 3553(a) provides that a sentencing court must \"impose a sentence sufficient, but not greater than necessary\" to achieve the goals of sentencing, which include promoting respect for the law, punishment, deterrence, and protection of the public. 18 U.S.C. § 3553(a), (a)(2). It supplies seven factors the court must consider in carrying out this task. Id. § 3553(a)(1)-(7). These include accounting for the circumstances of the offense charged, the defendant's criminal history, the need for deterrence and public protection, the Guidelines range, and the desire to avoid unwarranted sentence disparities among similarly situated defendants. Id. We use a two-step process to review Judge Bucklo's sentencing determination. First, \"we determine whether the district court committed any procedural error, 'such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range.' \" United States v. Reyes-Hernandez , 624 F.3d 405, 409 (7th Cir. 2010) (quoting Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445" }, { "docid": "13087247", "title": "", "text": "ambiguous”). Here, although Bendtzen advanced an argument that, if accepted, might create an ambiguity where none otherwise exists, it remains the case that, simply read, the definition of “dangerous weapon” uniformly applies to both the “brandishing” and “otherwise using” adjustments. Because the plain meaning of these Guidelines provisions is clear, the rule of lenity is inapplicable. B. Reasonableness of Bentdzen’s Sentence Bendtzen argues that the sentence imposed by the district court was unreasonable because it did not take into account the overstated nature of his criminal history score. Bendtzen points out that three of his convictions were a month shy of falling beyond the ten-year window at the time he committed the instant offense and that they were each of a minor nature. The Government responds that a below-Guidelines sentence should be presumed reasonable and that even without the presumption, Bendtzen’s sentence is reasonable. In Carty, we clarified that “[o]n appeal, we first consider whether the district court committed significant procedural error, then we consider the substantive reasonableness of the sentence.” 520 F.3d at 993. We explicitly rejected any presumption of reasonableness for within-Guidelines sentences. Id. at 988. “It would be procedural error for a district court to fail to calculate — or to calculate incorrectly — the Guidelines range; to treat the Guidelines as mandatory instead of advisory; to fail to consider the § 3553(a) factors; to choose a sentence based on clearly erroneous facts; or to fail adequately to explain the sentence selected ....” Carty, 520 F.3d at 993. Bendtzen’s sentence was correctly calculated. The district court properly counted “[a]ny ... prior sentence that was imposed within ten years of the defendant’s commencement of the instant offense.” U.S.S.G. § 4A1.2(e)(2) (2005). In addition, the district court did not treat the Guidelines as mandatory; indeed, it imposed a sentence below the Guidelines range. Further, the district court carefully considered the § 3553(a) factors, and imposed a sentence that was sufficient, but not greater than necessary, to achieve the goals of sentencing. Finally, the court’s explanation for the sentence is more than adequate. Following arguments from counsel, the court explained" }, { "docid": "21307388", "title": "", "text": "short period of time” were dramatic facts that justified the variance. Id. “Based on [Mateo’s] specific circumstances and the District Court’s use of the armed career criminal provision as a guidepost to gauge the length of the sentence, the District Court imposed a reasonable sentence.” Id. Garcia-Lara’s case presents a comparable scenario. Here, the district court properly calculated a Guidelines range that reflected the career offender enhancement. Having concluded that such a sentence would over-represent Garcia-Lara’s criminal history, considering the § 3553(a) factors, the court imposed a lesser sentence after again consulting the Guidelines to determine what Garcia-Lara’s advisory range would be absent the career criminal enhancement. The court’s reasons were not as “dramatic” as those in Mateo, but under our pre-Rita jurisprudence we do not require “dramatic facts” when the vari-anee at issue is not “extreme.” Cf. Mateo, 471 F.3d at 1170. Instead, Garcia-Lara’s substantial variance represents a proper exercise of district court discretion if the individualized factors of his case — with reference to § 3553(a) — provide compelling reasons that distinguish him from other career offenders. As the district court persuasively explained, Garcia-Lara’s criminal history meets the bare minimum for application of the career offender enhancement; he has only two prior drug-related convictions, neither of which resulted in long prison terms or were shown to involve large quantities of drugs. Given these facts, and Garcia-Lara’s relatively young age at the time he committed his prior drug crimes, the district court’s decision to vary downward to offset the impact of the career offender enhancement was within the court’s discretion. Like the sentencing court in Mateo, the court carefully considered the defendant’s specific circumstances and used an alternative Guidelines range as a “guidepost” to gauge the length of a reasonable sentence. In imposing Garcia-Lara’s sentence, the court did not show “express disregard” for § 3553(a)(6), which requires a sentencing court to consider “the need to avoid unwarranted sentencing disparities among [similar] defendants.” Cf. Hildreth, 485 F.3d at 1130. Instead, the court sentenced Garcia-Lara only after reasoning “that a sentence of 140 months would be within the Guidelines range of" }, { "docid": "23455814", "title": "", "text": "On appeal, the government argues that the sentence — 48 months below the low end of what the district court found to be the applicable Guidelines range — was unreasonable. According to the government, the district court could not properly impose a non-Guidelines sentence simply because of its policy disagreement with the relevant Guidelines instead of its assessment of factors specific to Castillo and his crime. Such a sentence, goes the argument, cannot be reconciled with Booker because that case requires careful, defendant-specific consideration of the Guidelines along with the other § 3553(a) factors; it does not permit a categorical rejection of a particular section of the Guidelines. Moreover, the government continues, the sentence is contrary to § 3553(a)(6) because it creates unwarranted disparities between Castillo and other similarly situated defendants who continue to be sentenced according to the 100:1 ratio, and it is unsupported by the other § 3553(a) factors. Finally, the government argues that the district court’s sentence cannot be squared with congressional intent to treat crack offenses much more severely than offenses based on powder cocaine. For all of these reasons, the government asks us to reverse and remand. Castillo argues in response that the sentence was reasonable: The district court properly considered the factors in § 3553(a); committed no error in its calculation of the advisory Guidelines range; determined that a Guidelines sentence was not appropriate; and permissibly exercised its discretion to impose a non-Guidelines sentence. According to Castillo’s reading, a district court must impose a non-Guidelines sentence when it believes that a Guidelines sentence would result in a sentence “greater than necessary,” which, Castillo argues, is all that the district court did. We agree that the sentence must be vacated and remanded for further proceedings. Before turning to the specifics of the case, however, we review the history of the Sentencing Guidelines concerning crack and powder cocaine. II. A. The 100:1 ratio between crack and powder cocaine first came into being as a result of the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, 100 Stat. 3207 (1986) (“1986 Act”). The ratio refers not to" }, { "docid": "13087248", "title": "", "text": "We explicitly rejected any presumption of reasonableness for within-Guidelines sentences. Id. at 988. “It would be procedural error for a district court to fail to calculate — or to calculate incorrectly — the Guidelines range; to treat the Guidelines as mandatory instead of advisory; to fail to consider the § 3553(a) factors; to choose a sentence based on clearly erroneous facts; or to fail adequately to explain the sentence selected ....” Carty, 520 F.3d at 993. Bendtzen’s sentence was correctly calculated. The district court properly counted “[a]ny ... prior sentence that was imposed within ten years of the defendant’s commencement of the instant offense.” U.S.S.G. § 4A1.2(e)(2) (2005). In addition, the district court did not treat the Guidelines as mandatory; indeed, it imposed a sentence below the Guidelines range. Further, the district court carefully considered the § 3553(a) factors, and imposed a sentence that was sufficient, but not greater than necessary, to achieve the goals of sentencing. Finally, the court’s explanation for the sentence is more than adequate. Following arguments from counsel, the court explained that Bendtzen had “a serious criminal history situation,” but had “suffered from extreme childhood abuse,” was “extremely remorseful,” had drug and alcohol problems that contribut ed to the offense, and had “very supportive parents.” The district court also reasoned on the record that an eighty-month sentence would serve as much of a deterrent as a sentence within the Guidelines range. Finally, the court rejected Bendtzen’s argument that his criminal history was overrepresented because he had committed several serious crimes that were not counted, balancing out the aged and minor nature of some of the counted convictions. See Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2469, 168 L.Ed.2d 203 (2007) (holding that there was no procedural error when a district court simply stated that defendant’s reasons for a below-Guidelines sentence were “insufficient,” and that a sentence at the bottom of the Guidelines range was “appropriate”); Carty, 520 F.3d at 995 (upholding a sentence in a case that was not complex, even though the district court “gave no explicit reasons” for the sentence imposed)." }, { "docid": "23460970", "title": "", "text": "standard,” taking into account “the totality of the circumstances, including the extent of any variance from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. Any information can be considered, so long as it has ‘sufficient indicia of reliability to support its probable accuracy.’ ” United States v. Notrangelo, 909 F.2d 363, 364-65 (9th Cir.1990) (quoting U.S.S.G. § 6A1.3, comment). Tucker argues that his sentence of 96 months’ incarceration is substantively unreasonable and greater than necessary, and that he is being punished for his past rather than for his conduct in this case. We disagree. The district court properly considered Tucker’s violent criminal history, including his conviction of Attempt Child Abuse and Neglect. The evidence of Tucker’s good deeds and deep sense of responsibility to his family, although admirable, did not, for the district court, negate his pattern of violent criminal behavior. On balance, it is clear that the district court, having correctly calculated the applicable Guidelines, reasonably based its sentence on Tucker’s lengthy history of convictions for crimes involving violent behavior. III. In conclusion, we affirm Tucker’s conviction because the government established that Tucker “knowingly possessed” the shotgun, the prosecutor’s comments during closing argument did not shift the burden of proof, and Tucker was not entitled to a “mere presence” jury instruction. We affirm his sentence because the district court correctly calculated the sentencing guidelines, correctly determined that Tucker’s prior conviction for Attempt Child Abuse and Neglect was a “crime of violence,” and imposed a reasonable sentence. AFFIRMED. . One of these was: Is it believable to you as jurors that five days after moving in this apartment with Lorenzo Tucker that Dawn Alexander moved in a new boyfriend? Because that's what the defendant testified. The defendant testified that Dawn had a new boyfriend and that the new boyfriend was living there. They were all three living there together in this two-bedroom apartment. . The name of this individual has been redacted." } ]

[ { "docid": "23550845", "title": "", "text": "88 F.3d 925, 929 (11th Cir.1996). We review questions of law de novo. United States v. Michael R., 90 F.3d 340, 343 (9th Cir.1996). B. Analysis 1. Farmworker protections under the FLSA FLCRA and AWPA Congress passed the FLSA in 1938 to correct and eliminate those “conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.” 29 U.S.C. § 202(a). The FLSA established a minimum wage;' regulations concerning “maximum hours”; recordkeeping and reporting requirements; child labor provisions; and a system of civil and criminal penalties for violations of the FLSA. See generally id. §§ 201-219. Although the FLSA as adopted in 1938 excluded agricultural workers from its minimum wage protection, Congress amended the FLSA in 1966 to extend minimum wage protection to some agricultural workers. See S.Rep. No. 89-1487 (1966), reprinted in 1966 U.S.C.C.A.N. 3002 (discussing how the 1966 amendment would extend minimum wage protection to 390,000 agricultural workers). The FLSA broadly defines the “employer-employee relationship^]” subject to its reach. Rutherford Food Corp. v. McComb, 331 U.S. 722, 728, 67 S.Ct. 1473, 1475, 91 L.Ed. 1772 (1947). “ ‘Employ’ includes to suffer or permit to work.” 29 U.S.C. § 203(g). “ ‘Employer’ includes any person acting directly or indirectly in the interest of an employer....” Id. § 203(d). The FLSA’s definition of employee has been called the “ ‘broadest definition that has ever been included in any one act.’” United States v. Rosenwasser, 323 U.S. 360, 363 n. 3, 65 S.Ct. 295, 296 n. 3, 89 L.Ed. 301 (1945) (quoting 81 Cong.Rec. 7,657 (1938) (statement of Sen. Black)). Regulations promulgated under the FLSA recognized that an employee may have more than one employer under the FLSA. 29 C.F.R. § 791.2(a) (“A single individual may stand in the relation of an employee to two or more employers at the same time____”). When more than one entity is an employer for purposes of the FLSA, the entities are termed “joint employers.” Id. The FLSA, however, did not adequately address the specific problems faced by farm- workers. In 1963, Congress passed the Farm" } ]

[ { "docid": "20482228", "title": "", "text": "Defs.’ Mot. at 10-11. The plaintiffs respond that USAC and USAM constituted an integrated business enterprise and that as a result, both can be held liable for violations of FLSA’s overtime protections. Pis.’ Opp’n at 25-27. Liability under FLSA’s overtime provisions exists only if there is an employer-employee relationship. See 29 U.S.C. § 207; Ivanov v. Sunset Pools Mgmt. Inc., 567 F.Supp.2d 189, 194 (D.D.C.2008) (holding that a defendant could not be held liable for overtime violations because the undisputed facts demonstrated that it was not the plaintiffs’ employer). An individual may, however, have a joint employment relationship with more than one employer. See 29 C.F.R. § 791.2. The DOL regulations provide that “all joint employers are responsible, both individually and jointly, for compliance with all of the applicable provisions of the act, including the overtime provisions, with respect to the entire employment for the particular workweek.” Id. The regulations further provide that [w]here the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as: (1) Where there is an arrangement between the employers to share the employee’s services, as, for example, to interchange employees; or (2) Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer. Id. (emphasis added); see also Chao v. A-One Med. Servs., Inc., 346 F.3d 908, 915-16 (9th Cir.2003) (holding that two entities that both provided home health services, were controlled by the same individual and shared administrative and managerial personnel were not completely dissociated and therefore were joint employers of the plaintiff). The plaintiffs have offered evidence that USAC is a sixty-five percent" }, { "docid": "19275185", "title": "", "text": "the failure properly to be compensated for hours worked. At issue is whether those injuries can be traced to the conduct of the Corporate Defendants and could be redressed by a favorable decision. Neither party disputes that liability in the FLSA context requires the existence of an employer-employee relationship. See 29 U.S.C. § 206(a) (“Every employer shall pay to each of his employees ... wages at the following rates”); 29 U.S.C. § 207(a) (“[N]o employer shall employ any of his employees ... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess ... at a rate not less than one and one-half times the regular rate at which he is employed.”). Therefore, Plaintiffs’ injuries are only traceable to, and redressable by, those who employed them. The Act defines “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). An “employee,” in turn, is defined as “any individual employed by an employer,” id. § 203(e)(1), and “employ” means “to suffer or permit to work.” Id. § 203(g). Consistent with these broad definitions, “[t]he Supreme Court has instructed courts to construe the terms ^employer’ and ‘employee’ expansively under the FLSA.” See Quinteros v. Sparkle Cleaning, Inc., 532 F.Supp.2d 762, 768 (D.Md.2008) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992); Rutherford Food Corp. v. McComb, 331 U.S. 722, 730, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947)). “Separate persons or entities that share control over an individual worker may be deemed joint employers under the FLSA.” Schultz, 466 F.3d at 305. Pursuant to 29 C.F.R. § 791.2(b): Where the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as: (1) Where there is an arrangement between the employers to share the employee’s services, as, for example, to interchange employees; (2) Where one employer is acting directly or" }, { "docid": "21347970", "title": "", "text": "indirect control is sufficient to render an entity an “employer” under the statute. 29 U.S.C. § 203(d) (defining “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee” (emphasis added)). The regulations implementing the FLSA also expressly contemplate that direct or indirect supervision and control is probative of joint employment, stating that joint employment will generally exist when employers “share control of the employee, directly or indirectly.” 29 C.F.R. § 791.2(b)(3) (emphasis added). To that end, courts have concluded that “the ‘suffer or permit to work’ standard was developed to assign responsibility to businesses that did not directly supervise putative employees.” Antenor, 88 F.3d at 933 (emphasis added); see also Torres-Lopez, 111 F.3d at 642-43 (concluding that “indirect control as well as direct control can demonstrate a joint employment relationship”). Accordingly, “[i]t is well-settled that supervision is present whether orders are communicated directly to the laborer or indirectly through the contractor.” Aimable v. Long & Scott Farms, 20 F.3d 434, 441 (11th Cir. 1994); see also Hodgson, 471 F.2d at 238 (“The fact that [the putative joint employer] effeet[s] the supervision by speaking to the crew leaders, who in turn sp[eak] to the [workers], rather than speaking directly to the [workers] does not negate a degree of apparent on-the-job control over the [workers].”). Here, Commercial supervised Plaintiffs by communicating instructions, on a daily basis, to Plaintiffs through J.I. supervisors. Commercial’s use of J.I. supervisors to convey instructions to Plaintiffs, therefore, sup ports, rather than precludes, a finding that Commercial jointly employed Plaintiffs. Third, Commercial emphasizes that its relationship with J.I. was that of a principal and an independent contractor, with J.I. receiving a “fixed price” or “lump sum” for supplying labor to Commercial. Appellee’s Response Br. at 45. Although the FLSA does not define employee “so broadly that all or almost all employees of independent contractors ... become ‘employees’ of every firm whose premises they enter,” Reyes, 495 F.3d at 406, neither does the FLSA automatically exempt entities that use independent contractors to provide labor from complying with the statute’s wage" }, { "docid": "17443187", "title": "", "text": "Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33, 81 S.Ct. 933, 936-37, 6 L.Ed.2d 100 (1961)). An employee may have more than one employer, and “whether the employment by the employers is to be considered joint employment or separate and distinct employment for purposes of the act depends upon all the facts in the particular case.” 29 C.F.R. § 791.2(a). A joint-employment relationship will generally be found to exist in situations such as: (1) Where there is an arrangement between the employers to share the employee’s services, as, for example, to interchange employees; or (2) Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer. Id. § 791.2(b) (footnotes omitted). In this circuit, many joint-employment FLSA claims have arisen in cases also asserting a joint-employment relationship under the Migrant and Seasonal Agricultural Worker Protection Act (“AWPA”), 29 U.S.C. § 1801 et seq. Because the AWPA defines the term “employ” by reference to the FLSA and because the AWPA regulations provide more detailed guidance regarding the definition of joint employer, much of our caselaw expanding upon the definition of joint employment has relied upon the AWPA regulations. For example, in Aimable v. Long & Scott Farms, a farm labor contractor recruited migrant farm workers to harvest crops for a property owner. 20 F.3d 434, 437 (11th Cir.1994). The farm workers then brought FLSA and AWPA claims against both the contractor and the property owner as joint employers. Id. at 437. The district court determined that the contractor was, in fact, an employer, and the only question on appeal was whether the property owner was also an employer. Id. In evaluating the existence of an employment relationship, we looked at eight factors. We drew the first" }, { "docid": "21347930", "title": "", "text": "all of the applicable provisions of the act, including the overtime provisions, with respect to the entire employment for the particular workweek.” Id. Accordingly, the hours an individual works for each joint employer in a single workweek must be aggregated to determine whether and to what extent the individual must be paid overtime to comply with the FLSA. See Chao v. A-One Med. Servs., Inc., 346 F.3d 908, 916-18 (9th Cir. 2003) (aggregating an employee’s hours for each joint employer to determine whether the joint employers complied with the FLSA overtime provision); Karr v. Strong Detective Agency, Inc., 787 F.2d 1205, 1207-08 (7th Cir. 1986) (aggregating the hours worked for each joint employer separately to determine the total overtime pay owed). Therefore, the joint employment doctrine: (1) treats a worker’s employment by joint employers as “one employment” for purposes of determining compliance with the FLSA’s wage and hour requirements and (2) holds joint employers jointly and severally liable for any violations of the FLSA. Schultz v. Capital Int’l Sec., Inc., 466 F.3d 298, 305, 307, 310 (4th Cir. 2006). The Supreme Court has long recognized that two or more entities may constitute joint employers for purposes of the FLSA. For example, in Rutherford Food — which predated the Department of Labor regulations setting forth the circumstances in which joint employment generally exists— the Court observed that the plaintiff meat boners could be employed both by the subcontractor that directly employed them and by a slaughterhouse operator who su pervised and controlled their daily work. 331 U.S. at 724-25, 730, 67 S.Ct. 1473; see also Zheng v. Liberty Apparel Co., 355 F.3d 61, 70 (2d Cir. 2003) (“Rutherford was a joint employment case, as .it is apparent from the Supreme Court’s opinion that the boners were, first and foremost, employed by the [independent contractor] who had entered into a contract with the slaughterhouse.”). Likewise, in Falk v. Brennan, 414 U.S. 190, 94 S.Ct. 427, 38 L.Ed.2d 406 (1973), the Court found that maintenance workers who provided services to apartment complexes were employed both by the owners of the complexes and by" }, { "docid": "17443186", "title": "", "text": "curiam). We can affirm a grant of summary judgment on grounds other than those relied upon by the district court. Edwards v. Niagara Credit Solutions, Inc., 584 F.3d 1350, 1354 (11th Cir.2009). In reviewing a grant of summary judgment, we resolve all ambiguities and draw reasonable factual inferences from the evidence in the nonmovant’s favor. Rice-Lamar v. City of Fort Lauderdale, 232 F.3d 836, 840 (11th Cir.2000). Therefore, throughout this opinion we have presented all evidence in the light most favorable to Layton. III. The FLSA defines an employer as “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). An entity “employs” a person under the FLSA if it “suffer[s] or permit[s]” the individual to work. Id. § 203(g). In order to determine whether an alleged employer “suffers] or permit[s]” an individual to work, we ask “if, as a matter of economic reality, the individual is dependent on the entity.” Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir.1996) (quoting Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33, 81 S.Ct. 933, 936-37, 6 L.Ed.2d 100 (1961)). An employee may have more than one employer, and “whether the employment by the employers is to be considered joint employment or separate and distinct employment for purposes of the act depends upon all the facts in the particular case.” 29 C.F.R. § 791.2(a). A joint-employment relationship will generally be found to exist in situations such as: (1) Where there is an arrangement between the employers to share the employee’s services, as, for example, to interchange employees; or (2) Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer. Id. § 791.2(b) (footnotes" }, { "docid": "21347939", "title": "", "text": "v. Gristede’s Operating Corp., 255 F.Supp.2d 184, 193 (S.D.N.Y. 2003)). Tests focusing on the relationship between a worker and a putative joint employer — like the Bonnette test — do not address, much less solve, the problem of whether two entities are “entirely independent” or “not completely disassociated” with regard to the essential terms and conditions that govern a worker’s employment, 29 C.F.R. § 791.2(a), and thus whether the worker’s employment with the two entities should be treated as “one employment” for purposes of determining compliance with the FLSA, Schultz, 466 F.3d at 307. In particular, regardless of whether two entities qualify as employers under the Bonnette factors, courts still must determine whether those two entities are “not completely disassociated,” 29 C.F.R. § 791.2(a), with regard to the terms of a worker’s employment, such that “all of [the] hours worked [should be] credited [as if] to one employer for purposes of determining overtime liability,” S. Rep. No. 99-159, at 12. Likewise, even if two entities do not independently constitute employers under the Bonnette, test, their combined influence over the terms and conditions of a worker’s employment may give rise to liability under the FLSA if the entities are “not completely disassociated” with regard to the worker’s employment. See Schultz, 466 F.3d at 305 (“The district court therefore erred by weighing the degree of control exercised by [one putative joint employer] against that exercised by [the other]. The court should have instead weighed the agents’ control against the total control exercised by [both joint employers].”). In other words, Bonnette and its progeny do not squarely address the “joint” element of the “joint employer” doctrine. The second problem with the Bonnette factors and related tests — their focus on whether “as a matter of economic reality, the individual is dependent” on a putative joint employer, Layton, 686 F.3d at 1175— also reflects a failure to distinguish the joint employment inquiry from the separate, employee-independent contractor inquiry. Courts’ focus on economic dependency derives from the Supreme Court’s decisions in Rutherford Food and Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 33, 81" }, { "docid": "18775256", "title": "", "text": "38 L.Ed.2d 406 (1973). All joint employers are individually responsible for compliance with the FLSA. 29 C.F.R. § 791.2(a) (1984). Regulations issued by the Wage and Hour Administrator indicate that a joint employment relationship will be considered to exist in the following circumstances: (1) Where there is an arrangement between the employers to share the employee’s services, as, for example, to interchange employees; or (2) Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer. 29 C.F.R. § 791.2(b) (footnotes omitted). The district court here held that the relevant facts established a joint employment relationship. Focusing on Karr’s surveillance activity, the court concluded that these activities benefitted both Strong and Roundy’s, and that the warehouse work was a necessary adjunct to the surveillance activity. Since Roundy’s and Strong were neither acting “entirely independently of each other” nor were “completely disassociated,” Strong was deemed entitled to take credit toward the minimum wage and overtime requirements for all payments made to Karr by Roundy’s. See 29 C.F.R. § 791.2(a). Karr’s aggregate wages would certainly meet the FLSA minimum wage and overtime requirements. Viewing the totality of “the circumstances of the whole activity,” Rutherford, 331 U.S. at 730, 67 S.Ct. at 1476, we agree with the district court’s determination. The facts as found by the district court are undisputed by both parties. Both Strong and Roundy’s had an arrangement to share Karr’s services as a warehouse worker and an undercover detective. Strong was acting directly in Roundy’s interest by providing Karr as an undercover worker. Finally, both Strong and Roundy’s shared control of Karr. The presence of the above three factors, considered by the Wage and Hour Administrator under 29 C.F.R. § 791.2(b) to constitute a joint employment relationship," }, { "docid": "22852446", "title": "", "text": "254 (2d Cir.2008). The record in this case satisfies this standard. 2. Barfield’s Claim that Bellevue Was Her Joint Employer The overtime provision of the Fair Labor Standards Act states in pertinent part that “no employer shall employ any of his employees ... for a workweek longer than 40 hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). In identifying the persons or entities who qualify as “employers” subject to this provision, statutory definitions sweep broadly. “Employer” includes “any person” other than a labor organization “acting directly or indirectly in the interest of an employer in relation to an employee.” Id. § 203(d). With a number of exceptions not applicable here, “employee” references “any individual employed by an employer.” Id. § 203(e)(1). “Employ” is defined to “inelude[ ] to suffer or permit to work.” Id. § 203(g). Barfield concedes that the three agencies with whom she registered for placement in hospital health care positions each qualified as her employer. See Brock v. Superior Care, Inc., 840 F.2d 1054, 1061 (2d Cir.1988) (holding that health care agency was employer of nurses whom it referred for various placements); see also Chao v. Gotham Registry, Inc., 514 F.3d 280, 286 (2d Cir.2008) (noting concession by agency that it qualified as employer of nurses whom it referred to hospitals for temporary assignments). She contends, however, that Bellevue also qualified as her employer and, as such, was obligated to comply with the FLSA overtime provision for any work she performed at the hospital in excess of 40 hours per week, even if no single agency ever referred her for that amount of time. Defendants acknowledge that federal regulations and our precedent recognize the possibility of joint employment for purposes of determining FLSA responsibilities. See 29 C.F.R. § 791.2(a); Zheng v. Liberty Apparel Co., 355 F.3d at 66. Indeed, § 791.2(a) speaks directly to joint employer responsibility for overtime, stating that “all joint employers are responsible, both" }, { "docid": "21347947", "title": "", "text": "agency’s interpretation so long as the construction is a reasonable policy choice for the agency to make” (internal quotation marks omitted)). But unlike many of our Sister Circuits, we have not identified specific factors courts should consider in determining whether a joint employment relationship exists, prompting our district courts to apply a variety of multifactor tests. See, e.g., Dalton, 138 F.Supp.3d at 717 (applying the four-factor Bonnette test); Jennings v. Rapid Response Delivery, Inc., Civil No. WDQ-11-0092, 2011 WL 2470483, at *3-4 (D. Md. June 16, 2011) (applying a nine-factor test derived from Bonnette and Zheng); Heath v. Perdue Farms, Inc., 87 F.Supp.2d 452, 457 n.4 (D. Md. 2000) (applying a nine-factor test derived from the Migrant Workers Act regulations and case law). In light of this confusion — and our admonition that courts should no longer employ Bonnette or tests derived from Bonnette in the FLSA joint employment context — we now set forth our own test for determining whether two persons or entities constitute joint employers for purposes of the FLSA. In doing so, we are guided by the Supreme Court’s direction that the FLSA “must not be interpreted or applied in a narrow, grudging manner.” Tenn. Coal, 321 U.S. at 597, 64 S.Ct. 698. Rather, “because the Act is remedial and humanitarian in purpose, it should be broadly interpreted and applied to effectuate its goals.” Benshoff, 180 F.3d at 140 (internal quotation marks and citation omitted). As we made clear in Schultz, any joint employment inquiry must begin with the Department of Labor’s regulations, which distinguish between “separate” employment — when two persons or entities are “entirely independent” with respect to a worker’s employment — and “joint” employment — when the two persons or entities are “not completely disassociated.” 29 C.F.R. § 791.2(a). To that end, the regulations identify three nonexclusive scenarios in which joint employment, as opposed to separate employment, generally exists: (1) Where there is an arrangement between the employers to share the employee’s services, as, for example, to interchange employees; or (2) Where one employer is acting directly or indirectly in the interest of" }, { "docid": "21347929", "title": "", "text": "which remain in force — recognize that “[a] single individual may stand in the relation of an employee to two or more employers at the same time under the Fair Labor Standards Act of 1938, since there is nothing in the act which prevents an individual employed by one employer from also entering into an employment relationship with a different employer.” 29 C.F.R. § 791.2(a). To that end, the regulations distinguish “separate and distinct employment” and “joint employment.” Id. Separate employment exists when “all the relevant facts establish that two or more employers are acting entirely independently of each other and are completely disassociated with respect to the” individual’s employment. Id. (emphasis added). Separate employers may “disregard all work performed by the employee for the other employer” when determining their obligations under the FLSA. Id. By contrast, joint employment exists when “the facts establish ... that employment by one employer is not completely disassociated from employment by the other employer[ ].” Id. (emphasis added). “[J]oint employers are responsible, both individually and jointly, for compliance with all of the applicable provisions of the act, including the overtime provisions, with respect to the entire employment for the particular workweek.” Id. Accordingly, the hours an individual works for each joint employer in a single workweek must be aggregated to determine whether and to what extent the individual must be paid overtime to comply with the FLSA. See Chao v. A-One Med. Servs., Inc., 346 F.3d 908, 916-18 (9th Cir. 2003) (aggregating an employee’s hours for each joint employer to determine whether the joint employers complied with the FLSA overtime provision); Karr v. Strong Detective Agency, Inc., 787 F.2d 1205, 1207-08 (7th Cir. 1986) (aggregating the hours worked for each joint employer separately to determine the total overtime pay owed). Therefore, the joint employment doctrine: (1) treats a worker’s employment by joint employers as “one employment” for purposes of determining compliance with the FLSA’s wage and hour requirements and (2) holds joint employers jointly and severally liable for any violations of the FLSA. Schultz v. Capital Int’l Sec., Inc., 466 F.3d 298, 305, 307," }, { "docid": "12588444", "title": "", "text": "be deemed joint employers under the FLSA. According to the Department of Labor regulation: if the facts establish that the employee is employed jointly by two or more employers, i.e., that employment by one employer is not completely disassociated from employment by the other employer(s), all of the employee’s work for all of the joint employers during the workweek is considered as one employment for purposes of the [FLSA]. 29 C.F.R. § 791.2(a) (emphasis added); see also Falk v. Brennan, 414 U.S. 190,195, 94 S.Ct. 427, 38 L.Ed.2d 406 (1973) (observing in a FLSA case that apartment building maintenance workers were employed by both building management company and building owners). “[A]ll joint employers are responsible, both individually and jointly, for compliance with all of the applicable provisions of the [FLSA], including the overtime provisions.” 29 C.F.R. § 791.2(a). The regulation states that “a joint employment relationship generally will be considered to exist in situations such as:” (1) Where there is an arrangement between the employers to share the employee’s services, as, for example, to interchange employees; or (2) Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer. 29 C.F.R. § 791.2(b) (footnotes omitted). The joint employment inquiry must “take[ ] into account the real economic relationship between the employer who uses and benefits from the services of workers and the party that hires or assigns the workers to that employer.” Ansoumana v. Gristede’s Operating Corp., 255 F.Supp.2d 184, 193 (S.D.N.Y.2003); see also Baystate Alternative Staffing, Inc. v. Herman, 163 F.3d 668, 674-76 (1st Cir. 1998); Bonnette v. Calif. Health & Welfare Agency, 704 F.2d 1465, 1469-70 (9th Cir.1983). The ultimate determination of joint employment must be based upon the “circumstances of the whole activity.” Bonnette," }, { "docid": "1397331", "title": "", "text": "employee for the other employer (or employers) in determining his own responsibilities under the [FLSA]. On the other hand, if the facts establish that the employee is employed jointly by two or more employers, i.e., that employment by one employer is not completely disassociated from employment by the other employer(s), all of the employee’s work for all of the joint employers during the workweek is considered as one employment for purposes of the Act. In this event, all joint employers are responsible, both individually and jointly, for compliance with all of the applicable provisions of the act, including the overtime provisions, with respect to the entire employment for the particular workweek. 29 C.F.R. § 791.2(a) (footnotes omitted). See, e.g., Karr v. Strong Detective Agency, Inc., 787 F.2d 1205, 1208 (7th Cir.1986) (aggregating hours from joint employers for the purpose of determining overtime); Wirtz v. Hebert, 368 F.2d 139, 141-42 (5th Cir.1966) (same); cf. Moon v. Kwon, 248 F.Supp.2d 201, 236-38 (S.D.N.Y.2002) (applying § 791.2(a) to find joint and several liability for overtime wages from joint employers). “[T]he concept of joint employment should be defined expansively under the FLSA.” Torres-Lopez v. May, 111 F.3d 633, 639 (9th Cir.1997). Whether two companies constitute a single enterprise for FLSA coverage and whether they are liable as joint employers under § 207 are technically separate issues. See, e.g., Patel v. Wargo, 803 F.2d 632, 637 (11th Cir.1986) (“[T]he enterprise analysis is different from the analysis of who is liable under the FLSA. The finding of an enterprise is relevant only to the issue of coverage.”). Nonetheless, the district court held that, “for the same factual considerations that led the court to conclude that A-One and Alternative Rehabilitation constituted one enterprise, ... the two companies were ‘joint employers.’ ” While we believe that the district court’s analysis was correct, this issue, being the core substantive question, merits more discussion. The Appellants cite and discuss the eight-factor “economic reality” test for determining joint employment status in certain contexts, see, e.g., Torres-Lopez, 111 F.3d at 640, while at the same time recognizing that that test may be" }, { "docid": "19275186", "title": "", "text": "“employ” means “to suffer or permit to work.” Id. § 203(g). Consistent with these broad definitions, “[t]he Supreme Court has instructed courts to construe the terms ^employer’ and ‘employee’ expansively under the FLSA.” See Quinteros v. Sparkle Cleaning, Inc., 532 F.Supp.2d 762, 768 (D.Md.2008) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992); Rutherford Food Corp. v. McComb, 331 U.S. 722, 730, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947)). “Separate persons or entities that share control over an individual worker may be deemed joint employers under the FLSA.” Schultz, 466 F.3d at 305. Pursuant to 29 C.F.R. § 791.2(b): Where the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as: (1) Where there is an arrangement between the employers to share the employee’s services, as, for example, to interchange employees; (2) Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer. (footnotes omitted). Where the alleged relationship does not fit readily into one of these three examples, courts are to consider the “economic realities” of the relationship between the employee and the putative employer. Schultz, 466 F.3d at 304. In examining the “economic realities,” the Fourth Circuit has suggested that courts in this circuit\" look to other tests derived from other circuits. See Schultz, 466 F.3d at 306 n. 2. (advising courts that it may be useful to' consider the factors listed in Bonnette v. Calif. Health & Welfare Agency, 704 F.2d 1465 (9th Cir.1983), and Zheng v. Liberty Apparel Co., 355 F.3d 61 (2d Cir.2003) to determine whether" }, { "docid": "18775255", "title": "", "text": "deferring to the district court’s determinations of fact do not apply in this case to the legal conclusion the court draws from those facts. B. Strong and Roundy’s as “Joint Employers” Under FLSA Because we deal with a statutory construction of the FLSA, our determination of Strong and Roundy’s status is not limited by the previous common law notion of “joint employer,” Bartels v. Birmingham, 332 U.S. 126, 67 S.Ct. 1547, 91 L.Ed. 1947 (1972); Bonnette, 704 F.2d at 1469; Donovan v. Sabine Irrigation, 695 F.2d at 194, and we need to give this concept an expansive interpretation in order to effectuate Congress’ remedial intent in enacting the FLSA. Donovan v. Janitorial Services, 672 F.2d 528 (5th Cir.1982); Real v. Driscoll Strawberry Assoc., 603 F.2d 748, 754 (9th Cir.1979). The main focus here is on the “economic reality” of the situation. Goldberg, 366 U.S. at 33, 81 S.Ct. at 936. Two or more employers may jointly employ someone for the purpose of the FLSA. Falk v. Brennan, 414 U.S. 190, 195, 94 S.Ct. 427, 431, 38 L.Ed.2d 406 (1973). All joint employers are individually responsible for compliance with the FLSA. 29 C.F.R. § 791.2(a) (1984). Regulations issued by the Wage and Hour Administrator indicate that a joint employment relationship will be considered to exist in the following circumstances: (1) Where there is an arrangement between the employers to share the employee’s services, as, for example, to interchange employees; or (2) Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer. 29 C.F.R. § 791.2(b) (footnotes omitted). The district court here held that the relevant facts established a joint employment relationship. Focusing on Karr’s surveillance activity, the court concluded that these activities benefitted both Strong and Roundy’s," }, { "docid": "12588443", "title": "", "text": "the degree of control exercised by CIS against that exercised by the Prince. The court should have instead weighed the agents’ control against the total control exercised by CIS and the Prince. In taking this wrong turn, the district court strayed from the ultimate question posed by the Silk test: whether the agents were, as a matter of economic reality, dependent on the business they served, or, conversely, whether they were in business for themselves. See Bartels, 332 U.S. at 130, 67 S.Ct. 1547; Henderson, 41 F.3d at 570. Before the Silk test can be correctly applied in this case, the established facts must be reviewed to identify the putative employer or employers. As the discussion below reveals, CIS and the Prince were joint employers who must be viewed as providing “one employment” for purposes of the FLSA. When the Silk test is applied to this joint employment arrangement, the inescapable legal conclusion is that the agents were employees, not independent contractors. A. Separate persons or entities that share control over an individual worker may be deemed joint employers under the FLSA. According to the Department of Labor regulation: if the facts establish that the employee is employed jointly by two or more employers, i.e., that employment by one employer is not completely disassociated from employment by the other employer(s), all of the employee’s work for all of the joint employers during the workweek is considered as one employment for purposes of the [FLSA]. 29 C.F.R. § 791.2(a) (emphasis added); see also Falk v. Brennan, 414 U.S. 190,195, 94 S.Ct. 427, 38 L.Ed.2d 406 (1973) (observing in a FLSA case that apartment building maintenance workers were employed by both building management company and building owners). “[A]ll joint employers are responsible, both individually and jointly, for compliance with all of the applicable provisions of the [FLSA], including the overtime provisions.” 29 C.F.R. § 791.2(a). The regulation states that “a joint employment relationship generally will be considered to exist in situations such as:” (1) Where there is an arrangement between the employers to share the employee’s services, as, for example, to interchange" }, { "docid": "7498532", "title": "", "text": "employed jointly by two or more employers, i.e., that employment by one employer is not completely disassociated from employment by the other employer(s).” 29 C.F.R. § 791.2(a). In such situations, all of the employee’s work for all of the joint employers during the workweek is considered as one employment for purposes of the [FLSA] ... [and] all joint employers are responsible, both individually and jointly, for compliance with all of the applicable provisions of the [FLSA], including the overtime provisions .... Id. Finally, the regulations provide examples demonstrating when “a joint employment relationship generally will be considered to exist,” which includes circumstances where the employee “performs work which simultaneously benefits two or more employers,” and: (1) ... there is an arrangement between the employers to share the employee’s services ...; or (2) ... one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) ... the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer. Id. § 791.2(b) (footnotes omitted). As with the underlying statutory definitions from which it derives, courts recognize that “the concept of joint employment should be defined expansively under the FLSA.” Torres-Lopez, 111 F.3d at 639. B. Individual Defendants’ Liability Under the FLSA As an initial matter, Silverman argues that, even if for some reason Renaissance is found to have been the plaintiffs’ employer, he personally cannot be held liable for any overtime payments that the company may owe the plaintiffs, inasmuch as he never transacted business in his individual capacity as Renaissance, never held himself out as doing so, and never violated the corporate form so as to warrant piercing the corporate veil to hold him personally liable. These arguments misunderstand the nature of FLSA liability, and may be rejected summarily. Numerous Courts of Appeal have concluded that an individual corporate officer or owner" }, { "docid": "21347948", "title": "", "text": "so, we are guided by the Supreme Court’s direction that the FLSA “must not be interpreted or applied in a narrow, grudging manner.” Tenn. Coal, 321 U.S. at 597, 64 S.Ct. 698. Rather, “because the Act is remedial and humanitarian in purpose, it should be broadly interpreted and applied to effectuate its goals.” Benshoff, 180 F.3d at 140 (internal quotation marks and citation omitted). As we made clear in Schultz, any joint employment inquiry must begin with the Department of Labor’s regulations, which distinguish between “separate” employment — when two persons or entities are “entirely independent” with respect to a worker’s employment — and “joint” employment — when the two persons or entities are “not completely disassociated.” 29 C.F.R. § 791.2(a). To that end, the regulations identify three nonexclusive scenarios in which joint employment, as opposed to separate employment, generally exists: (1) Where there is an arrangement between the employers to share the employee’s services, as, for example, to interchange employees; or (2) Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer. Id. § 791.2(b) (footnotes omitted). Each of these scenarios focuses on the relationship between the putative joint employers — the proper focus of the first step of the joint employment inquiry, which turns on the relative association or disassociation between entities with respect to establishing the essential terms and conditions of a worker’s employment. Although the regulations identify three distinct scenarios, all three speak to one fundamental question: whether two or more persons or entities are “not completely disassociated” with respect to a worker such that the persons or entities share, agree to allocate responsibility for, or otherwise codetermine — formally or informally, directly or indirectly — the essential terms and conditions of" }, { "docid": "22834926", "title": "", "text": "precedent. Although the underlying facts are reviewed under the clearly erroneous standard, the legal effect of those facts— whether appellants are employers within the meaning of the FLSA — is a question of law. See generally Jaffe, Judicial Review: Question of Law, 69 Harv.L.Rev. 239, 241 (1955). The reasons for deferring to the district court’s determinations of fact do not apply in this case to the legal conclusion the court draws from those facts. B. Appellants as “Employers” Under FLSA Under the FLSA, “employer” is defined as follows: “Employer” includes any person acting directly or indirectly in the interest of an employer in relation to an employee .... 29 U.S.C. § 203(d). The definition of “employer” under the FLSA is not limited by the common law concept of “employer,” and is to be given an expansive interpretation in order to effectuate the FLSA’s broad remedial purposes. Real v. Driscoll Strawberry Assocs., 603 F.2d 748, 754 (9th Cir.1979). The determination of whether an employer-employee relationship exists does not depend on “isolated factors but rather upon the circumstances of the whole activity.” Rutherford Food Corp. v. McComb, 331 U.S. 722, 730, 67 S.Ct. 1473, 1477, 91 L.Ed. 1772 (1947). The touchstone is “economic reality.” Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 33, 81 S.Ct. 933, 936, 6 L.Ed.2d 100 (1961). Two or more employers may jointly employ someone for purposes of the FLSA. Falk v. Brennan, 414 U.S. 190, 195, 94 S.Ct. 427, 431, 38 L.Ed.2d 406 (1973). All joint employers are individually responsible for compliance with the FLSA. 29 C.F.R. § 791.2(a) (1981). Regulations issued by the Department of Labor give the following examples of joint employment situations: (2) Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control" }, { "docid": "1397330", "title": "", "text": "related activities under common control for a common business purpose, the district court properly identified A-One and Alternative as a single enterprise for purposes of the FLSA’s jurisdictional requirement. Since A-One by itself meets the revenue requirement for FLSA enterprise coverage, the single enterprise comprised of A-One and Alternative also satisfies the requirement. Accordingly, both A-One and Alternative are subject to § 207. B. Joint Employers An employer becomes responsible for overtime once its employees exceed forty hours in one workweek. 29 U.S.C. § 207(a)(2)(C). If an individual is working for more than one company at a time, it is necessary to determine whether the individual’s employers should be treated separately or jointly for purposes of determining the employers’ responsibilities under the FLSA. If all the relevant facts establish that two or more employers are acting entirely independently of each other and are completely disassociated with respect to the employment of a particular employee, who during the same workweek performs work for more than one employer, each employer may disregard all work performed by the employee for the other employer (or employers) in determining his own responsibilities under the [FLSA]. On the other hand, if the facts establish that the employee is employed jointly by two or more employers, i.e., that employment by one employer is not completely disassociated from employment by the other employer(s), all of the employee’s work for all of the joint employers during the workweek is considered as one employment for purposes of the Act. In this event, all joint employers are responsible, both individually and jointly, for compliance with all of the applicable provisions of the act, including the overtime provisions, with respect to the entire employment for the particular workweek. 29 C.F.R. § 791.2(a) (footnotes omitted). See, e.g., Karr v. Strong Detective Agency, Inc., 787 F.2d 1205, 1208 (7th Cir.1986) (aggregating hours from joint employers for the purpose of determining overtime); Wirtz v. Hebert, 368 F.2d 139, 141-42 (5th Cir.1966) (same); cf. Moon v. Kwon, 248 F.Supp.2d 201, 236-38 (S.D.N.Y.2002) (applying § 791.2(a) to find joint and several liability for overtime wages from joint" } ]

[ { "docid": "12375694", "title": "", "text": "in 11 U.S.C. § 541, but also includes property acquired during the pendency of the Chapter 13 case. See 11 U.S.C. § 1306(a)(1); McLean v. Central States, S.E. & S.W. Areas Pension Fund, 762 F.2d 1204, 1206 (4th Cir.1985); 5 Collier on Bankruptcy 111306.01[2][A] (15th ed. 1987). Under section 541, a debtor’s interest in a retirement fund should be considered estate property, then exempted if it qualifies as a “spendthrift trust” under relevant state law. See In re Graham, 726 F.2d 1268, 1270-72 (8th Cir.1984); cf. In re Goff, 706 F.2d 574, 581-82 (5th Cir.1983) (only spendthrift trusts that are beyond the reach of creditors under state law are excluded from the estate). Thus, in order to decide whether the property would be exempt in a Chapter 7 liquidation, the bankruptcy court must determine whether the beneficial interest in the fund is subject to a restraint on alienation such that it could not be reached by the beneficiary’s creditors under non-bankruptcy law. See McLean, 762 F.2d at 1206-07; 2 A. Scott, The Law of Trusts § 151 (3d ed. 1967) (defining “spendthrift trust”). There is insufficient evidence in the record for the bankruptcy court to have made such a determination regarding Zellner’s retirement fund. Even if we could conclude that Zellner’s interest in the retirement fund was exempt property before he received the $6,000 in 1985, once Zellner received the money and transferred it into an IRA it clearly became non-exempt property of the estate. An IRA, which may be revoked by the debtor at any time subject only to a tax penalty, permits the debtor to retain considerable control over the funds and is therefore not a spendthrift trust. Whether Zellner had access to the funds until more than 180 days after filing the petition is irrelevant; the definition of “property of the estate” in section 1306 includes the kinds of property specified in section 541, but also includes postpetition property acquired by the debtor. See 11 U.S.C. § 1306(a)(1) (1982). Thus: The date of the valuation of the property to be distributed under the plan, as well as" } ]

[ { "docid": "12924520", "title": "", "text": "plans instead of liquidation. (Citations omitted.) The provision “establishes that property acquired after the Chapter 13 filing and before discharge under Chapter 7 is not part of the converted estate.” (Citation omitted.). In re Bostick, 2009 WL 347414, at *6 (Bankr.D.Conn.). The purpose of § 348(f)(1) is to “avoid penalizing debtors for their chapter 13 efforts by placing them in the same economic position they would have occupied if they had filed chapter 7 originally.” In re Fobber, 256 B.R. 268, 277-78 (Bankr.E.D.Tenn.2000)(cited in In re Brinkley, 323 B.R. at 691). In this case, § 348(f)(1) operates to exclude the life insurance benefits from Judith Morrison’s Chapter 7 estate. The benefits did not exist and were not property of her bankruptcy estate as of the date that the Chapter 13 petition was filed. Judith Morrison had only an “expectancy” interest as of the petition date, which was not property of her separate bankruptcy estate. The benefits only became property of Judith Morrison’s separate estate pursuant to § 1306(a) of the Bankruptcy Code, because she acquired them while the Chapter 13 case was pending, and before the case was closed, dismissed, or converted. However, the proceeds are not included as property of her estate in the converted case pursuant to § 348(f)(i)(A) of the Bankruptcy Code. Conclusion As shown above, two separate estates were created when Judith Morrison and her husband filed a joint petition under Chapter 13 of the Bankruptcy Code on April 8, 2006. 11 U.S.C. § 302; Fed.R. Bankr.P. 1015. The estates were never substantively consolidated by the Court. At the time that the joint petition was filed, Judith Morrison had only an expectancy interest in her husband’s life insurance policy, and the expectancy interest was not property of her separate estate as of the commencement of the case. Moon v. Williams, 102 Fla. 214, 135 So. 555 (1931); Wornick v. Gaffney, 544 F.3d 486, 2008 WL 4349810 (2d Cir.). Judith Morrison’s husband died more than 180 days after the filing of the petition. Because she did not become entitled to acquire any benefits from his life insurance" }, { "docid": "10531959", "title": "", "text": "of the petition, and that the debtor acquires or becomes entitled to acquire within 180 days after such date— (A) by bequest, devise, or inheritance; (B) as a result of a property settlement agreement with the debtor’s spouse, or of an interlocutory or final divorce decree; or (C) as a beneficiary of a life insurance policy or of a death benefit plan. 11 U.S.C. § 541(a)(5). Furthermore, in a chapter 13 bankruptcy, § 1306 of the Bankruptcy Code provides in pertinent part: (a) Property of the estate includes, in addition to the property specified in section 541 of this title— (1) all property of the kind specified in such section that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter 7, 11, or 12 of this title, whichever occurs first.... 11 U.S.C. § 1306. The Chapter 13 Trustee (“Trustee”) notes in the context of a chapter 13 bankruptcy, “property of the estate is expanded and includes in addition to the property specified in section 541 of this title ... all property of the kind specified in such section that the debtor acquires after the commencement of the case, but before the case is closed, dismissed, or converted.... ” 11 U.S.C. § 1306(a)(1). The Trustee argues § 1306(a)(1) results in the chapter 13 bankruptcy estate including these post-petition inheritances regardless of when Key became entitled to receive the bequest, devise or inheritance. I disagree. The Trustee’s interpretation overlooks the express time limitation set forth in § 541(a)(5) and the portions of § 1306(a)(1) that provide that the estate includes the property specified in § 541 and all property “of the kind specified in such section” that the debtor acquires after the commencement of the chapter 13. Id. Section 541(a)(5) expressly excludes inheritances that a debtor becomes entitled to receive more than 180 days after the petition date. I find the general language of § 1306(a)(1) does not pull property expressly excluded by § 541(a)(5) into the property of the estate. “It is fair to conclude that if" }, { "docid": "16114555", "title": "", "text": "963 (Bankr.Co.1992); American General Finance, Inc. v. McKnight (In re McKnight), 136 B.R. 891, 893 (Bankr.S.D.Ga.1992); In re Petruccelli, 113 B.R. 5, 6 (Bankr.S.D.Cal.1990). In the ease at bar, we are concerned only with the third prohibition since the debt was incurred post-petition. The remedies against a creditor violating the stay are set forth under § 362(h), which provides for aggrieved persons to receive awards of actual damages, including costs and attorney’s fees, and punitive damages, for willful violation of the stay. At the time of the filing of the bankruptcy petition, property of the estate is defined by § 541. The very nature of a Chapter 13 case as a debt extension proceeding necessitates a departure from the approach applicable in liquidation proceedings that property of the estate be determined, for the most part, as of the commencement of the case. 5 Collier On Bankruptcy ¶ 1306.01[1] 1995. Instead, property of the estate for Chapter 13 purposes must encompass property interests of the debtor during the pendency of the entire Chapter 13 ease, as well as property rights acquired by the Chapter 13 estate after the commencement of the case. Id. Accordingly, § 1306 incorporates and expands upon the definition of “property of the estate” found in § 541. Section 1306 states: (a) Property of the estate includes, in addition to the property specified in section 541 of this title— (1) all property of the kind specified in such section that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter 7, 11, or 12 of this title whichever occurs first; and (2) earnings from services performed by the debtor after the commencement of the ease but before the case is closed, dismissed, or converted to a case under chapter 7, 11, or 12 of this title, whichever occurs first ... Furthermore, unless the plan or the order confirming the plan provides otherwise, the order of confirmation vests all property of the estate in the debtor. Section 1327(b) states: Except as otherwise provided in the plan" }, { "docid": "10531960", "title": "", "text": "specified in section 541 of this title ... all property of the kind specified in such section that the debtor acquires after the commencement of the case, but before the case is closed, dismissed, or converted.... ” 11 U.S.C. § 1306(a)(1). The Trustee argues § 1306(a)(1) results in the chapter 13 bankruptcy estate including these post-petition inheritances regardless of when Key became entitled to receive the bequest, devise or inheritance. I disagree. The Trustee’s interpretation overlooks the express time limitation set forth in § 541(a)(5) and the portions of § 1306(a)(1) that provide that the estate includes the property specified in § 541 and all property “of the kind specified in such section” that the debtor acquires after the commencement of the chapter 13. Id. Section 541(a)(5) expressly excludes inheritances that a debtor becomes entitled to receive more than 180 days after the petition date. I find the general language of § 1306(a)(1) does not pull property expressly excluded by § 541(a)(5) into the property of the estate. “It is fair to conclude that if the provisions of Section 541 apply to define property of the estate the exclusions also apply as set forth in Section 541(a)(5).” In re Schlottman, 319 B.R. 23, 25 (Bankr.M.D.Fla.2004) (interpreting § 1306(a)(1) and § 541(a)(5)(C) and holding proceeds from a life insurance policy are not property of the chapter 13 estate where debtor became entitled to acquire such proceeds more than 180 days after the petition date). In an analogous case involving § 1306 and the exclusions of § 541(b), the bankruptcy court noted: Not only does this Court find no textual basis to hold that § 1306 does not incorporate on a prospective basis the exclusions provided by § 541(b), this Court finds this reading to be at odds with the nature of chapter 13 cases. Unlike cases commenced under chapters 7 and 11, the petition date in chapter 13 proceedings is not determinative of the scope of a chapter 13 estate. Section 1306(a)(1) incorporates into a chapter 13 estate ‘all property of the kind specified in [§ 541] that the debtor acquires" }, { "docid": "12924521", "title": "", "text": "them while the Chapter 13 case was pending, and before the case was closed, dismissed, or converted. However, the proceeds are not included as property of her estate in the converted case pursuant to § 348(f)(i)(A) of the Bankruptcy Code. Conclusion As shown above, two separate estates were created when Judith Morrison and her husband filed a joint petition under Chapter 13 of the Bankruptcy Code on April 8, 2006. 11 U.S.C. § 302; Fed.R. Bankr.P. 1015. The estates were never substantively consolidated by the Court. At the time that the joint petition was filed, Judith Morrison had only an expectancy interest in her husband’s life insurance policy, and the expectancy interest was not property of her separate estate as of the commencement of the case. Moon v. Williams, 102 Fla. 214, 135 So. 555 (1931); Wornick v. Gaffney, 544 F.3d 486, 2008 WL 4349810 (2d Cir.). Judith Morrison’s husband died more than 180 days after the filing of the petition. Because she did not become entitled to acquire any benefits from his life insurance policy within 180 days of the filing, the benefits did not become property of her estate pursuant to § 541(a)(5) of the Bankruptcy Code. In re Carter, 260 B.R. 130 (Bankr.W.D.Tenn.2001). Further, the benefits did not become property of her estate pursuant to § 541(a)(6) of the Bankruptcy Code, because they did not constitute proceeds of any property of Judith Morrison’s separate bankruptcy estate. The benefits only became property of Judith Morrison’s estate pursuant to § 1306(a), since she acquired the proceeds while her Chapter 13 case was pending, and before the case was closed, dismissed, or converted. In re Brinkley, 323 B.R. 685 (Bankr.W.D.Ark.2005). Judith Morrison converted her case to a Chapter 7 case, however, shortly after her husband’s death. Consequently, the benefits are excluded from her estate in the converted case by virtue of § 348(f)(1)(A), because they were not property of her estate as of the date that the original Chapter 13 petition was filed. In re Brinkley, 323 B.R. 685 (Bankr.W.D.Ark.2005). Excluding the proceeds from Judith Morrison’s estate in the converted" }, { "docid": "12924522", "title": "", "text": "policy within 180 days of the filing, the benefits did not become property of her estate pursuant to § 541(a)(5) of the Bankruptcy Code. In re Carter, 260 B.R. 130 (Bankr.W.D.Tenn.2001). Further, the benefits did not become property of her estate pursuant to § 541(a)(6) of the Bankruptcy Code, because they did not constitute proceeds of any property of Judith Morrison’s separate bankruptcy estate. The benefits only became property of Judith Morrison’s estate pursuant to § 1306(a), since she acquired the proceeds while her Chapter 13 case was pending, and before the case was closed, dismissed, or converted. In re Brinkley, 323 B.R. 685 (Bankr.W.D.Ark.2005). Judith Morrison converted her case to a Chapter 7 case, however, shortly after her husband’s death. Consequently, the benefits are excluded from her estate in the converted case by virtue of § 348(f)(1)(A), because they were not property of her estate as of the date that the original Chapter 13 petition was filed. In re Brinkley, 323 B.R. 685 (Bankr.W.D.Ark.2005). Excluding the proceeds from Judith Morrison’s estate in the converted case serves the statutory purpose of § 438(f)(7) by placing her in the same position that she would have occupied if she had initially filed a Chapter 7 petition in 2006. Accordingly: IT IS ORDERED that: 1. The Debtor’s Motion for Rehearing and/or Reconsideration of Order on (1) Trustee’s Motion to Turn Over Property of the Estate, and (2) Trustee’s Objection to Debtor’s Amended Claim of Exemptions is granted as set forth in this Order. 2. The proceeds of the life insurance policy received by the Debtor, Judith Morrison, on or about November 22, 2007, are not property of the estate in this Chapter 7 case." }, { "docid": "10531958", "title": "", "text": "need major repairs. Some of the properties may even need to be demolished. In addition to the Hammond Avenue property, one of the other properties is encumbered by a loan with another lender. Key provided candid testimony as to the properties’ disrepair. Notwithstanding the tax valuations of approximately $154,000.00, Key said a realtor recently valued the Hammond Avenue property along with the two adjoining tracts at approximately $22,000.00. The other property is fully encumbered by a loan to a third party. Key thinks the combined value of all four properties is less than the debt owed. CONCLUSIONS OF LAW Property of the bankruptcy estate is defined in 11 U.S.C. § 541(a)(5) as follows: (a) The commencement of a case under section 301, 302, or 303 of this title creates an estate. Such estate is comprised of all the following property, wherever located and by whomever held: (5) Any interest in property that would have been property of the estate if such interest had been an interest of the debtor on the date of the filing of the petition, and that the debtor acquires or becomes entitled to acquire within 180 days after such date— (A) by bequest, devise, or inheritance; (B) as a result of a property settlement agreement with the debtor’s spouse, or of an interlocutory or final divorce decree; or (C) as a beneficiary of a life insurance policy or of a death benefit plan. 11 U.S.C. § 541(a)(5). Furthermore, in a chapter 13 bankruptcy, § 1306 of the Bankruptcy Code provides in pertinent part: (a) Property of the estate includes, in addition to the property specified in section 541 of this title— (1) all property of the kind specified in such section that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter 7, 11, or 12 of this title, whichever occurs first.... 11 U.S.C. § 1306. The Chapter 13 Trustee (“Trustee”) notes in the context of a chapter 13 bankruptcy, “property of the estate is expanded and includes in addition to the property" }, { "docid": "10531961", "title": "", "text": "the provisions of Section 541 apply to define property of the estate the exclusions also apply as set forth in Section 541(a)(5).” In re Schlottman, 319 B.R. 23, 25 (Bankr.M.D.Fla.2004) (interpreting § 1306(a)(1) and § 541(a)(5)(C) and holding proceeds from a life insurance policy are not property of the chapter 13 estate where debtor became entitled to acquire such proceeds more than 180 days after the petition date). In an analogous case involving § 1306 and the exclusions of § 541(b), the bankruptcy court noted: Not only does this Court find no textual basis to hold that § 1306 does not incorporate on a prospective basis the exclusions provided by § 541(b), this Court finds this reading to be at odds with the nature of chapter 13 cases. Unlike cases commenced under chapters 7 and 11, the petition date in chapter 13 proceedings is not determinative of the scope of a chapter 13 estate. Section 1306(a)(1) incorporates into a chapter 13 estate ‘all property of the kind specified in [§ 541] that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or convert-ed_’ll U.S.C. § 1306(a)(1) (emphasis added). This language makes clear that property of the type specified by § 541 that is acquired post-petition by a chapter 13 debtor ... becomes part of that debtor’s chapter 13 estate.... Based on the reference in § 1306 to the entirety of § 541, this Court finds a reading of § 1306 that incorporates on an ongoing basis the exclusions of § 541(b), inclusive of § 541(b)(7), to be more consistent with the dynamic nature of chapter 13 cases. In re Egan, 458 B.R. 836, 846 (Bankr.E.D.Pa.2011)(alterations in original). Like the exclusions of § 541(b), § 541(a)(5) specifically excludes certain property that a debtor becomes entitled to receive more than 180 days after the filing of the petition. The Trustee argues § 1306 includes all the property described in § 541, despite the exclusory language of § 541(a)(5). Since § 1306(a)(1) is not limited to the property in § 541(a), such a broad reading would" }, { "docid": "4293221", "title": "", "text": "Because the alleged medical malpractice occurred while the chapter 13 case was pending, the medical malpractice claim was property of the chapter 13 estate. See 11 U.S.C. § 1306(a) (“Property of the estate includes, in addition to the property specified in section 541 of this title(l) all property of the kind specified in such section that the debtor acquires after the commencement of the ease but before the case is closed, dismissed, or converted to a case under chapter 7, 11, or 12 of this title, whichever occurs first....”). As explained below, the issue whether the medical malpractice claim is property of the chapter 7 estate hinges on whether conversion of the case was “in bad faith.” See 11 U.S.C. § 348(f)(2) (“If the debtor converts a case under chapter 13 of this title to a case under another chapter under this title in bad faith, the property of the estate in the converted case shall consist of the property of the estate as of the date of conversion.”). The Court concludes that the conversion here, without disclosure of the medical malpractice claim, was in bad faith; upon reopening of the case, the malpractice claim therefore once again became property of the chapter 7 estate to be administered by the chapter 7 trustee. The Debtor must amend her schedules to list the claim and any asserted exemption. In the event the chapter 7 trustee recovers on the claim and a surplus remains after payment of all allowed claims and administrative expenses, nothing in this ruling precludes the Debtor from recovering any surplus. A. The Authority to Reopen a Case is Predicated on General Bankruptcy Policy: Recovery of Creditors and the Relief of Debtors 1. Authority to Reopen Generally Fed. R. BankR.P. 5010 provides: “A case may be reopened on motion of the debtor ... pursuant to § 350(b) of the Code.” Section 350(b) of the Bankruptcy Code permits the bankruptcy court to reopen a case “to administer assets, to accord relief to the debtor, or for other cause.” 11 U.S.C. § 350(b). The Code does not define “other cause,” and" }, { "docid": "50333", "title": "", "text": "ORDER ON MOTION FOR 11 U.S.C. SECTION 1328(b) DISCHARGE (Doc. No. 35) ALEXANDER L. PASKAY, Bankruptcy Judge. The matter under consideration in this Chapter 13 case of William Robert Schlott-man and Linda Marie Schlottman (Debtors) is a Motion for 11 U.S.C. Section 1328(b) Discharge (Doc. No. 35), filed by Linda Schlottman. The Motion which appears to be raising an issue of first impression, involves the interpretation of Section 1328(b), Section 1306 and Section 541(a)(5) of the Bankruptcy Code. The facts relevant to the issues under consideration are without dispute and can be summarized as follows: On December 26, 2000, the Debtors filed their Petition for Relief under Chapter 13. The Chapter 13 Plan was confirmed on September 27, 2002. The Plan was a 60 month Plan and the Debtors performed under the Plan until Mr. Schlottman passed away. It is without dispute that the Debtors paid under the Plan a sum which is greater than what the creditors would have received under a Chapter 7. Thus, facially, the Motion meets the requirements of Section 1328(b)(2) of the Code. It is also without dispute that the life of Mr. Schlottman was insured and the widow, Mrs. Schlott-man, received $50,000 pursuant to a life insurance policy. It is also without dispute that the Debtor, Mr. Schlottman, died outside of the 180-days following the filing of the Petition. Pursuant to Section 541(a)(5) of the Code, if Mr. Schlottman had died within the 180-day period, the proceeds of the life insurance policy would have been property of the estate if the case had been a Chapter 7. However, since this is a Chapter 13 case, this Court must consider the impact of Section 1306(a)(1) of the Code, which provides that property of the estate includes, in addition to property specified in Section 541 of the Code, all property of the kind that the debtor acquires after the commencement of a case but before the case is closed, dismissed or converted to a case Under Chapter 7, 11 or 12 of Title 11. (Emphasis supplied). The Chapter 13 Trustee (Trustee) contends that Section 1306 is" }, { "docid": "8559090", "title": "", "text": "petition is filed; and (2) an interest in property debtor ac quires within 180 days of the filing of the petition as the beneficiary of a life insurance policy. But section 1306 extends the rather broad definition of property of the estate contained in section 541: (a) Property of the estate includes, in addition to the property specified in section 541 of this title, (1) all property of the kind specified in such section that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter 7, 11, 12 of this title, whichever occurs first; Thus, while life insurance proceeds would become property of a Chapter 7 bankruptcy estate only if a debtor became eligible to receive them within 180 days of the commencement of the case, in Chapter 13, those same benefits become property of the estate until the case is closed, dismissed, or converted. This case has not been closed, dismissed, or converted, therefore, the insurance proceeds are an asset of the bankruptcy estate. While that statement seems quite clear, its meaning becomes less so in relation to section 1327. Section 1327 suggests that the confirmation of a plan vests all property of the estate not provided for in the plan in the debtor. Furthermore, section 1327 states that “the property vesting in the debt- or ... is free and clear of any claim or interest of any creditor provided for in the plan.” This language suggests that the insurance proceeds are the exclusive property of Ms. Guentert since the plan has been confirmed and the proceeds were not provided for in the plan. The Fisher court resolves this conflict between section 1306 and section 1327 by holding that “upon confirmation, the property of the estate ‘vests’ or transfers to the debtor, § 1327(b), but the estate survives and there does exist property of the estate after confirmation, § 1306(a).” In other words, property that was identified and not distributed under the plan at confirmation becomes property of the debtor. Property that comes into the estate" }, { "docid": "8559089", "title": "", "text": "which she should not be justly held accountable; (2) value ... of property actually distributed under the plan on account of each allowed unsecured claim is not less than the amount that would have been paid on such claim if the estate of the debtor had been liquidated under chapter 7 of this title on such date; and (3) modification of the plan under section 1329 of this title is not applicable. .Ms. Guentert must satisfy all three requirements in order to obtain what is sometimes referred to as a “hardship discharge.” Her counsel has presented no evidence to this Court, however, to prove that a hardship discharge is indicated in this case. I, therefore, deny, at this time, debt- or’s motion to make one lump sum payment to complete her Chapter 13 plan. B. Property of the Chapter 13 Bankruptcy Estate Property of the bankruptcy estate, as defined by section 541 of the Bankruptcy Code (the “Code”), includes the following: (1) all legal and equitable interests of the debtor at the time the bankruptcy petition is filed; and (2) an interest in property debtor ac quires within 180 days of the filing of the petition as the beneficiary of a life insurance policy. But section 1306 extends the rather broad definition of property of the estate contained in section 541: (a) Property of the estate includes, in addition to the property specified in section 541 of this title, (1) all property of the kind specified in such section that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter 7, 11, 12 of this title, whichever occurs first; Thus, while life insurance proceeds would become property of a Chapter 7 bankruptcy estate only if a debtor became eligible to receive them within 180 days of the commencement of the case, in Chapter 13, those same benefits become property of the estate until the case is closed, dismissed, or converted. This case has not been closed, dismissed, or converted, therefore, the insurance proceeds are an asset of" }, { "docid": "50334", "title": "", "text": "of the Code. It is also without dispute that the life of Mr. Schlottman was insured and the widow, Mrs. Schlott-man, received $50,000 pursuant to a life insurance policy. It is also without dispute that the Debtor, Mr. Schlottman, died outside of the 180-days following the filing of the Petition. Pursuant to Section 541(a)(5) of the Code, if Mr. Schlottman had died within the 180-day period, the proceeds of the life insurance policy would have been property of the estate if the case had been a Chapter 7. However, since this is a Chapter 13 case, this Court must consider the impact of Section 1306(a)(1) of the Code, which provides that property of the estate includes, in addition to property specified in Section 541 of the Code, all property of the kind that the debtor acquires after the commencement of a case but before the case is closed, dismissed or converted to a case Under Chapter 7, 11 or 12 of Title 11. (Emphasis supplied). The Chapter 13 Trustee (Trustee) contends that Section 1306 is applicable in this instance. Moreover, the Trustee also contends that the widow does not meet the requirements for a hardship discharge under Section 1328(b)(1) and (2) of the Code and fails to meet the requirements of Section 1328(b)(3) of the Code, which requires that before the debtor would be entitled to a hardship discharge, modification of the Plan under Section 1329 of the Code is not practical. Neither counsel nor independent research by this Court was able to discover any persuasive authority which would be helpful to resolve the threshold question, wliich is: Whether or not the proceeds of the life insurance policy which Mrs. Schlottman became entitled to after the 180 days from the commencement of the case is property of her estate pursuant to Section 1306(a)(1) of the Code, notwithstanding the undisputed fact that in a Chapter 1 case the proceeds would not have been property of the estate because she became entitled to the proceeds after the expiration of the 180 days provided by Section 541(a)(5) of the Code. It should be" }, { "docid": "16501769", "title": "", "text": "The Confirmed Plan in a Chapter 13 Bankruptcy Case. Section 1327(b) of the Bankruptcy Code states that “the confirmation of a plan vests all property of the estate in the debtor.” 11 U.S.C. § 1327(b). In addition, section 1327(c) adds that such vesting “is free and clear of any claim or interest of any creditor provided for by the plan.” Id. The language used by the bankruptcy court in its Confirmation Order was in consonance with these Code provisions. The Debtors argue that in defining the concept “property of the estate” the district court ignored various sections of the Bankruptcy Code; particularly section 541(a)(6) which establishes that the concept “property of the estate” includes proceeds “of or from property of the estate.” 11 U.S.C. § 541(a)(6). Therefore, the Debtors argue that section 1327 of the Code, combined with section 541, vested in them the Property along with its proceeds “free and clear of any claim or interest of any creditor.” 11 U.S.C. § 1327(c). However, in direct contraposition with the Debtors’ intended interpretation is section 1306(a) of the Bankruptcy Code, which defines the concept “property of the estate” within a Chapter 13 bankruptcy thus: Property of the estate includes, in addition to the property specified in section 541 of this title: (1) all property of the kind specified in such section that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted to a ease under chapter 7, 11, or 12 of this title, whichever occurs first; and (2) earnings from services performed by the debtor after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter 7, 11, or 12 of this title, whichever occurs first. 11 U.S.C. § 1306(a). While this section does extend the application of section 541 to cases filed under Chapter 13, it does so within a specific context. In particular, the status of the property of the estate after the confirmation of a Chapter 13 plan is a controversial issue in itself. See Russell G. Donaldson, Continued" }, { "docid": "3426317", "title": "", "text": "not constitute a substantial and unanticipated change to Debtor’s financial condition that would make any portion of the $36,000 inheritance necessary to support Debtor’s Modified Plan. Fourth, the Court AFFIRMS the Bankruptcy Court’s Order granting Trustee’s Motion to Modify to capture the entirety of the Debtor’s $36,000 inheritance as property of the bankruptcy estate because Debtor failed to present evidence of any necessity for retaining any portion of the inheritance. A. Debtor’s Inheritance Does Not Vest in the Debtor. The first issue Appellant raises on appeal is whether the Bankruptcy Court abused its discretion in finding that, under 11 U.S.C. §§ 541(a)(5) and 1306(a), property inherited more than 180 days after the Chapter 13 case was commenced, but before it was closed, dismissed, or converted, is property of the estate. The Court AFFIRMS the Bankruptcy Court’s holding that the property of the estate did not vest in Debtor upon confirmation of the Chapter 13 Plan because under Carroll v. Logan, 735 F.3d 147 (4th Cir.2013), an inheritance received before the Chapter 13 case is closed, dismissed, or converted to a case under chapter 7, 11, or 12 is property of the bankruptcy estate pursuant to 11 U.S.C. § 1306(a), and should thus be used to repay the Debtor’s compromised creditors. Because this is a question of law, the Court reviews the Bankruptcy Court’s holding de novo. Section 541 of the Bankruptcy Code defines the property in a bankruptcy estate to include any interest in property of the debtor on the date of filing of the bankruptcy petition and any property that debtor acquires or becomes entitled to acquire by bequest, devise, or inheritance within 180 days after filing. 11 U.S.C. § 541(a)(5). The Fourth Circuit has held that 11 U.S.C. § 1306(a) expands the definition of the kind of property included for the purpose of a Chapter 13 bankruptcy estate under 11 U.S.C. § 541 to encompass “all property of the kind specified in [§ 541] that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter" }, { "docid": "12924517", "title": "", "text": "become property of her Chapter 13 estate, however, pursuant to § 1306(a) of the Bankruptcy Code. “Section 1306 of the code expands the 180 day inclusionary period in a chapter 13 case.” In re Brinkley, 323 B.R. at 689. Specifically, § 1306(a) provides that property of the estate in Chapter 13 cases “includes, in addition to the property specified in section 541 of this title — (1) all property of the kind specified in such section that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted.” 11 U.S.C. § 1306(a). “In other words, property of the estate in a chapter 13 case includes not only the § 541 definition of property, but also any property acquired during the pendency of the chapter 13 case.” In re Brinkley, 323 B.R. at 689-90(citing Education Assistance Corp. v. Zellner, 827 F.2d 1222, 1224 (8th Cir.1987)). Judith Morrison became entitled to the proceeds of her husband’s life insurance policy while her bankruptcy case was pending as a Chapter 13 case. Although the Debtors’ Chapter 13 Plan had been confirmed, the Chapter 13 case had not been closed, dismissed, or converted at the time of Bruce Morrison’s death. Consequently, it appears that the life insurance proceeds may have become property of Judith Morrison’s Chapter 13 estate pursuant to § 1306(a) of the Bankruptcy Code. E. The proceeds of the life insurance policy were excluded from property of the Judith Morrison’s Chapter 7 estate upon conversion. Approximately 6 weeks after the death of Bruce Morrison, however, Judith Morrison converted the Chapter 13 case to a case under Chapter 7 of the Bankruptcy Code. Section 348 of the Bankruptcy Code governs the effect of converting a case under one chapter to a case under another chapter. Section 348(f)(1) provides in part: 11 USC § 348. Effect of conversion (f)(1) Except as provided in paragraph (2), when a case under chapter 13 of this title is converted to a case under another chapter under this title— (A) property of the estate in the converted case shall consist of property" }, { "docid": "12924516", "title": "", "text": "Court of Appeals in Womick is in accord with the Court’s decision in In re Schlottman, 319 B.R. 23 (Bankr.M.D.Fla.2004). In that case, the Court concluded that a debtor’s benefits from her husband’s life insurance policy were not property of the estate because she became entitled to the benefits more than 180 days after the petition date. Similarly, in In re Carter, 260 B.R. 130, 134 (Bankr.W.D.Tenn.2001), the Court determined that certain life insurance proceeds did not become property of the debt- or/wife’s bankruptcy estate, because she became entitled to acquire the proceeds under the debtor/husband’s policy more than 180 days after the filing of the joint petition. D. The benefits may be property of a Chapter 13 estate under § 1306 of the Bankruptcy Code. In this case, Judith Morrison became entitled to the benefits under her husband’s life insurance policy more than 180 days after the filing of their bankruptcy petition. Consequently, the proceeds are not property of Judith Morrison’s bankruptcy estate under § 541(a) of the Bankruptcy Code. The proceeds may have become property of her Chapter 13 estate, however, pursuant to § 1306(a) of the Bankruptcy Code. “Section 1306 of the code expands the 180 day inclusionary period in a chapter 13 case.” In re Brinkley, 323 B.R. at 689. Specifically, § 1306(a) provides that property of the estate in Chapter 13 cases “includes, in addition to the property specified in section 541 of this title — (1) all property of the kind specified in such section that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted.” 11 U.S.C. § 1306(a). “In other words, property of the estate in a chapter 13 case includes not only the § 541 definition of property, but also any property acquired during the pendency of the chapter 13 case.” In re Brinkley, 323 B.R. at 689-90(citing Education Assistance Corp. v. Zellner, 827 F.2d 1222, 1224 (8th Cir.1987)). Judith Morrison became entitled to the proceeds of her husband’s life insurance policy while her bankruptcy case was pending as a Chapter 13 case." }, { "docid": "14271868", "title": "", "text": "to any particular type of bankruptcy proceeding, includes in estates: (5) Any interest in property that would have been property of the estate if such interest had been an interest of the debtor on the date of the filing of the petition, and that the debtor acquires or becomes entitled to acquire within 180 days after such date— (A) by bequest, devise, or inheritance [•] 11 U.S.C. § 541(a)(5) (emphasis added). Section 1306(a) then expands the definition of estate property for Chapter 13 cases specifically, stating: (a) Property of the estate includes, in addition to the property specifíed in section 541 of [the Code]— (1) all property of the kind speciñed in such section that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter 7, 11, or 12 of [the Code], whichever occurs first; and 11 U.S.C. § 1306(a) (emphasis added). Congress has harmonized these two statutes for us. With Section 541, Congress established a general definition for bankruptcy estates. With Section 1306, it then expanded on that definition specifically for purposes of Chapter 13 cases. Thus, “Section 1306 broadens the definition of property of the estate for chapter 13 purposes to include all property acquired and all earnings from services performed by the debtor after the commencement of the case.” S.Rep. No. 95-989, at 140-41 (1978). The statutes’ plain language manifests Congress’s intent to expand the estate for Chapter 13 purposes by capturing the types, or “kind,” of property described in Section 541 (such as bequests, devises, and inheritances), but not the 180-day temporal restriction. 11 U.S.C. § 1306(a). This is because “[t]he kind of property is a distinct concept from the time at which the debtor’s interest in the property was acquired.” In re Tinney, 07-42020-JJR13, 2012 WL 2742457, at *2 (Bankr.N.D.Ala. July 9, 2012). And on its face, Section 1306(a) incorporates only the kind of property described in Section 541 into its expanded temporal framework. In essence, Section 1306 is a straightforward formula for calculating Chapter 13 estates: A Chapter 13 Bankruptcy =" }, { "docid": "2855678", "title": "", "text": "disagreed as to whether the proceeds from the sale would become property of the estate. The Debtors contend it does not and wish to retain the proceeds from the sale for medical and other personal expenses. The Trustee contends that the proceeds should first be used to pay Mr. Gilbert’s unsecured creditors in full in the chapter 13 case, which would require about $21,000, and the balance should go to Mr. Gilbert. The sale did close and the proceeds, in excess of $64,000, are being held by the Debtors’ attorney in escrow until this Court determines the issue. (Order Granting Mot. to Sell, at 2). Therefore, the only issue before the Court is whether the Property, and proceeds from the sale of the Property— which was inherited more than 180 days after the chapter 13 case was commenced but before the case was closed, dismissed, or converted — became property of the estate. The Court concludes the answer is yes. Discussion Upon the commencement of a case, a bankruptcy estate is created. 11 U.S.C. § 541(a). Pursuant to § 541, the bankruptcy estate includes “[a]ny interest in property that would have been property of the estate if such interest had been an interest of the debtor on the date of the filing of the petition, and that the debtor acquires or becomes entitled to acquire within 180 days after such date-{A) by ... inheritance.” 11 U.S.C. § 541(a)(5)(A) (emphasis added). Section 541 defines generally what property becomes property of the bankruptcy estate in a chapter under Title 11, but is modified in certain chapters for that particular type of case. See 11 U.S.C. § 541(a). Indeed, § 1306 expands what property becomes property of the estate in a chapter 13 case. It states, in relevant part, that “[property of the estate includes, in addition to the property specified in section 541 ... all property of the kind specified in such section that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted ...” 11 U.S.C. § 1306(a) (emphasis added). Therefore, an apparent" }, { "docid": "16501770", "title": "", "text": "1306(a) of the Bankruptcy Code, which defines the concept “property of the estate” within a Chapter 13 bankruptcy thus: Property of the estate includes, in addition to the property specified in section 541 of this title: (1) all property of the kind specified in such section that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted to a ease under chapter 7, 11, or 12 of this title, whichever occurs first; and (2) earnings from services performed by the debtor after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter 7, 11, or 12 of this title, whichever occurs first. 11 U.S.C. § 1306(a). While this section does extend the application of section 541 to cases filed under Chapter 13, it does so within a specific context. In particular, the status of the property of the estate after the confirmation of a Chapter 13 plan is a controversial issue in itself. See Russell G. Donaldson, Continued Existence of Bankruptcy Code Chapter 13 Estate After Confirmation of the Chapter 13 Plan, 126 ALR Fed. 665, 1995 WL 900170 (1995)(Supp.1999); David B. Wheeler, Whose Property Is It Anyway? 18-NOV Am. Bankr.Inst. J. 14 (1999)(brief review and analysis of the four different approaches currently used by the bankruptcy courts to harmonize §§ 1327 and 1306 of the Bankruptcy Code); Thomas E. Ray, Post-Petition Claims and the Automatic Stay in Chapter 13, 19-FEB Am. Bankr. Inst. J. 12 (2000)(reference to the same variety of interpretations given by the bankruptcy courts to §§ 1327 and 1306 of the Code); Vickie L. Vaska, Commentary: Property of the Estate After Confirmation of a Chapter 13 Repayment Plan: Balancing Competing Interests, 65 Wash. L.Rev. 677 (July 1990); see also In re Reynard, 250 B.R. 241, 246-47 (Bankr.E.D.Va.2000); In re Holden, 236 B.R. 156, 160-63 (Bankr.D.Vt.1999); In re Rangel, 233 B.R. at 198. By stating that the bankruptcy estate continues to be replenished by post-petition property until the case is closed, dismissed, or converted under chapter 7, 11 or 12" } ]

[ { "docid": "12684164", "title": "", "text": "Therefore, because High Elk took the witness stand and was available for cross- examination by LaPlante, there was no Bruton violation by the admission of his out-of-court statements implicating LaPlante. See United States v. Brady, 579 F.2d 1121, 1129 (9th Cir.1978) (finding no Bruton violation where “each appellant who made an extra-judicial statement was present in court, actually took the witness stand, and subjected himself to cross-examination, both by the government and by the other appellant”). Finally, the Appellants argue that the district court erred by including the enhancements for use of a dangerous weapon in calculating the Appellants’ advisory sentencing guidelines ranges. The Appellants claim that, under Blakely and Booker, any fact used to enhance a sentence must be found beyond a reasonable doubt by a jury. The argument is without merit. Post-Booker case law permits judicial fact-finding for purposes of sentencing guidelines enhancements, provided that it is done with the understanding that the guidelines are applied in an advisory fashion. United States v. Ameri, 412 F.3d 893, 899 (8th Cir.2005). Because the record establishes that the guidelines were applied in an advisory manner, such fact-finding was permissible. In addition, the Appellants argue that the district court could not increase their advisory sentencing guidelines ranges on the basis of acquitted conduct. This argument also fails. Even post-Booker, for purposes of calculating the advisory guidelines range, the district court may find by a preponderance of the evidence facts regarding conduct for which the defendant was acquitted. United States v. Radtke, 415 F.3d 826, 844 (8th Cir.2005) (holding that, in determining whether the district court had correctly calculated fraud loss, the “jury’s acquittal ... establishes only that there was reasonable doubt as to [the defendant’s] involvement with such conduct” and the “district court was still free, indeed obliged, to consider whether his involvement had been proved by a preponderance of the evidence”). As the record indicates that there was ample evidence to support a finding that the Appellants used a bat as a dangerous weapon, we find no error in the district court’s inclusion of a guideline enhancement for the use" } ]

[ { "docid": "17146330", "title": "", "text": "increased danger of violence when drug traffickers carry weapons, the Sentencing Guidelines mandate that a defendant’s base offense level be enhanced by two levels if he possessed a dangerous weapon, which includes a firearm, during the commission of the offense, unless it is “clearly improbable” that the weapon was used in connection with the offense. U.S.S.G. § 2D1.1(b)(1), n.3. A district court’s finding that the defendant possessed a firearm during the offense is a factual one that will only be reversed for clear error. United States v. Tyler, 125 F.3d 1119, 1122 (7th Cir.1997). In a conspiracy case, an enhancement under U.S.S.G. § 2Dl.l(b)(l) is appropriate if the government can prove by a preponderance of the evidence that the defendant possessed a firearm during the course of the conspiracy. United States v. Wetwattana, 94 F.3d 280, 284 (7th Cir.1996). Once the government proves this, the burden shifts to the defendant to show that it was clearly improbable that the weapon was used in connection with the offense. Tyler, 125 F.3d at 1122. For purposes of a weapons enhancement, the government need not show that the defendant used the firearm during the commission of a drug sale, but only that he possessed the firearm during the offense that led to the conviction, or during relevant conduct, as defined by U.S.S.G. § 1B1.3. United States v. Cain, 155 F.3d 840, 843 (7th Cir.1998). This is a relatively low threshold for the government to meet. Berkey contends that • it was “clearly erroneous to determine that a handgun was used in furtherance of a conspiracy merely because it was present in [his] residence.” Appellant’s Brief at 8-9. Berkey seems to have confused the burden of proof for an enhancement under § 2Dl.l(b)(l) with that for a conviction under 18 U.S.C. § 924(c), which requires proof of active employment of the firearm by the defendant. Bailey v. United States, 516 U.S. 137, 142, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). For an enhancement under the Sentencing Guidelines, the government only needs to show by a preponderance of the evidence that the defendant possessed the" }, { "docid": "9647659", "title": "", "text": "regime, United States v. Ranum, 353 F.Supp.2d 984, 986-87 (E.D.Wis.2005), and the court need not definitively resolve any departure issues if it has decided to impose a non-guideline sentence, Crosby, at 112. However, the court is free to rely upon departure case law in determining whether a guideline sentence is appropriate and in translating its findings into a numerical sentence. See United States v. Galvez-Barrios, 355 F.Supp.2d 958, 964 (E.D.Wis.2005). II. DISCUSSION A. Advisory Guideline Range The PSR assigned a base offense level of 32 based on the weight of the drugs found in defendant’s home. Officers discovered 69.99 grams of crack cocaine in a cooler and 653.19 grams of powder cocaine in a cell phone box. These amounts converted to 1528 kilograms of marijuana, U.S.S.G. § 2D1.1 cmt. n. 10, producing a level of 32, U.S.S.G. § 2Dl.l(c)(4). Defendant did not quarrel with this calculation. Officers also located two loaded handguns in a dresser, and pursuant to § 2Dl.l(b)(l) the PSR assigned a two level enhancement for possession of a dangerous weapon. Defendant objected, arguing that the government did not prove a connection between the weapons and drug trafficking beyond a reasonable doubt. However, he did not deny possessing the guns. I first noted that Booker did not change the government’s burden of proving the applicability of enhancements under the now advisory guidelines. As the Seventh Circuit stated in McReynolds v. United States, 397 F.3d 479, 481 (7th Cir.2005): “The remedial portion of Booker held that decisions about sentencing factors will continue to be made by judges, on the preponderance of the evidence, an approach that comports with the sixth amendment so long as the guideline system has some flexibility in application.” See also Crosby, at 112-14 (stating that, as before, judges are entitled to find all facts necessary to determining a guideline or non-guideline sentence). Application note three to § 2D1.1, which addresses the enhancement for possession of a dangerous weapon, provides: “The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the" }, { "docid": "23429211", "title": "", "text": "alleged criminal activity to support the district court’s enhancement of their offense levels by two points pursuant to U.S.S.G. § 2Dl.l(b)(l). Federal Sentencing Guideline § 2Dl.l(b)(l) calls for an increase of two levels to a person’s base offense level for some drug related crimes when “a dangerous weapon (including firearm) was possessed.” See United States v. Payne, 81 F.3d 759, 763 (8th Cir.1996). Application Note 3 to the guidelines explains that: “[t]he enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” Id. The government bears the burden of proving by a preponderance of the evidence that the weapon was present and that it is probable that the weapon was connected with the drug charge. Id. (quoting United States v. Hayes, 15 F.3d 125, 127 (8th Cir.), cert. denied, 512 U.S. 1225, 114 S.Ct. 2718, 129 L.Ed.2d 843 (1994)). Lack of proof of use or actual possession does not prohibit a § 2Dl.l(b)(l) adjustment; enhancement for weapons possession may be based on constructive possession, which includes ownership, dominion, or control over the item, or dominion over the premises. United States v. Luster, 896 F.2d 1122, 1129 (8th Cir.1990) (citations omitted). A district court’s determination that a defendant possessed a firearm for purposes of a § 2Dl.l(b)(l) enhancement will be reversed only if the decision was clearly erroneous. Id. The government placed into evidence three loaded firearms seized from a residence where both McCracken Senior and McCracken Junior resided. Two of the firearms were found in a room that the government established to be McCracken Senior’s bedroom. Located in this bedroom was also 110 grams of methamphetamine. McCracken Junior was present in the residence during the search when the officers seized the three firearms and the methamphetamine. More specifically, McCracken Junior was present in the living room where officers seized a loaded firearm within close proximity of six grams of methamphetamine. The district court’s application of the two level enhancement was not clearly erroneous, accordingly, we affirm the district court’s determination. C) Admission of Statements Made by McCracken Senior" }, { "docid": "16576668", "title": "", "text": "Baker, 559 F.3d 443, 448 (6th Cir.2009). A. Pursuant to Section 2Dl.l(b)(l), a two-level enhancement may be added to the base offense level of a defendant convicted of a drug offense “[i]f a dangerous weapon (including a firearm) was possessed.” U.S. Sentencing Guidelines Manual § 2Dl.l(b)(l) [hereinafter Sentencing Guidelines]. “The enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” Id. § 2D1.1 cmt. n.3(A). Under Section 2Dl.1(b)(1), the government has the burden of showing “by a preponderance of the evidence that ‘(1) the defendant actually or constructively “possessed” the weapon, and (2) such possession was during the commission of the offense.’ ” United States v. Catalan, 499 F.3d 604, 606 (6th Cir.2007) (quoting United States v. Hill, 79 F.3d 1477, 1485 (6th Cir.1996)). This Court has previously recognized that the 1991 amendments to the Sentencing Guidelines removed the requirement that the weapon be possessed during the commission of the crime. United States v. Faison, 339 F.3d 518, 520 (6th Cir.2003). “[A]ll that the government need show is that the dangerous weapon [was] possessed during ‘relevant conduct.’ ” Id. This Court has also recognized that although the Government’s burden contains “two separate inquiries, in most instances they collapse into a single factual determination because the weapon was present when the arrest took place or where the crime was committed.” United States v. Sanchez, 928 F.2d 1450, 1460 (6th Cir.1991), abrogated on other grounds by United States v. Jackson-Randolph, 282 F.3d 369 (6th Cir.2002). In such “instances, once the government proves a defendant was in possession of a weapon, its burden is satisfied.” Id. Once the government meets its burden, “a [rebuttable] presumption arises that ‘the weapon was connected to the offense.’ ” United States v. Wheaton, 517 F.3d 350, 367 (6th Cir.2008) (quoting United States v. Hough, 276 F.3d 884, 894 (6th Cir.2002)). The burden then “shifts to the defendant to show that it was ‘clearly improbable’ that the weapon was connected to the offense.” Catalan, 499 F.3d at 606. A defendant must present evidence, not mere argument," }, { "docid": "23429210", "title": "", "text": "over the premises in which the contraband is concealed.” Ojeda, 23 F.3d at 1475 (citing United States v. Schubel, 912 F.2d 952, 955 (8th Cir.1990)). There is sufficient circumstantial evidence to support a conclusion that McCracken Senior constructively possessed the methamphetamine. The government produced testimony from McCracken Senior’s daughter that in August and September of 1994, McCracken Senior lived at 11505 Grandview. The methamphetamine seized from 11505 Grandview was recovered from a bedroom containing various possessions belonging to McCracken Senior. With respect to the 110 grams of methamphetamine seized from 9625 Grand-, view, McCracken Senior informed Detective Santoli that he lived at 9625 Grandview. Further, personal items with McCracken Senior’s nickname “Shadow” were recovered from a safe located in a bedroom at 9625 Grandview. In both instances, the testimony and evidence supports the jury’s verdict that McCracken Senior had sufficient dominion over the premises to establish constructive possession of the methamphetamine. B) Enhancement for Possession of Firearms Both defendants contend that there was insufficient evidence of an adequate nexus between the guns seized and the alleged criminal activity to support the district court’s enhancement of their offense levels by two points pursuant to U.S.S.G. § 2Dl.l(b)(l). Federal Sentencing Guideline § 2Dl.l(b)(l) calls for an increase of two levels to a person’s base offense level for some drug related crimes when “a dangerous weapon (including firearm) was possessed.” See United States v. Payne, 81 F.3d 759, 763 (8th Cir.1996). Application Note 3 to the guidelines explains that: “[t]he enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” Id. The government bears the burden of proving by a preponderance of the evidence that the weapon was present and that it is probable that the weapon was connected with the drug charge. Id. (quoting United States v. Hayes, 15 F.3d 125, 127 (8th Cir.), cert. denied, 512 U.S. 1225, 114 S.Ct. 2718, 129 L.Ed.2d 843 (1994)). Lack of proof of use or actual possession does not prohibit a § 2Dl.l(b)(l) adjustment; enhancement for weapons possession may be based on constructive" }, { "docid": "23394631", "title": "", "text": "contends that the weapons enhancement under § 2D1.1(b)(1) violates his Sixth Amendment rights as stated in Apprendi, Blakely, and Booker, because a jury did not find, nor did he admit, facts that would justify such an enhancement. Again, Booker makes clear that judicial fact-finding by a preponderance of the evidence standard is unconstitutional only when it operates to increase a defendant’s sentence mandatorily. See Rodriguez-Felix, 450 F.3d at 1130. Because the District Court here indisputably applied the Guidelines in a discretionary fashion, there is no Sixth Amendment violation. Next, Mr. Hall argues that the enhancement should not have applied because the Government did not show that he possessed the shotgun or that it was “present during the offense.” In applying this enhancement, the Government bears the initial burden of proving possession of the weapon by a preponderance of the evidence. United States v. Williams, 431 F.3d 1234, 1237 (10th Cir.2005). “This burden is satisfied when the government demonstrates that a temporal and spatial relation existed between the weapon, the drug trafficking activity, and the defendant.” Id. (internal quotation marks omitted). Evidence that the weapon was found in a location where drugs or drug paraphernalia is stored establishes the necessary showing. Id. “If the government meets this initial burden, the burden shifts to the defendant to show that it is clearly improbable the weapon was connected with the offense.” Id. at 1238 (internal quotation marks omitted); see also U.S.S.G. § 2D1.1 cmt. n. 3 (if the weapon is present, the adjustment should be applied “unless it is clearly improbable that the weapon was connected with the offense”). The District Court’s determination of the facts supporting the application of the enhancement is not clearly erroneous. As discussed, supra, in section II.A.4, the shotgun was found in a ear sitting right outside Mr. Hall’s residence and easily accessible through the top of the vehicle. In addition, other drug paraphernalia was found at the house, including scales with cocaine residue on them. These facts establish the necessary temporal and spatial relationship between the weapon, the drug trafficking activity, and Mr. Hall. Accordingly, the burden" }, { "docid": "5393799", "title": "", "text": "involved five or more participants. Finally, the district court denied a two-level enhancement for sophisticated laundering under § 2S1.1(b)(3). Mathias’s resulting total offense level was 42, which yielded a guidelines range of 360 months’ to life imprisonment based on his criminal history category of I. The district court imposed concurrent sentences of 360 months’ imprisonment on Counts 1, 13 and 16; 240 months’ imprisonment on Counts 19 and 20; and 120 months’ imprisonment on Counts 14, 17 and 18. Mathias and the Government both raise challenges to the sentence imposed by the district court. Mathias argues that the district court erred in applying the dangerous-weapon enhancement under § 2Dl.l(b)(l) and the leadership-role enhancement under § 3Bl.l(a). The Government argues that the district court erred in denying the sophisticated-laundering enhancement under § 2Sl.l(b)(3). Finally, Mathias raises a Blakely/Booker argument. “We review the district court’s factual findings for clear error, and its interpretation and application of the guidelines de novo.” United States v. Noe, 411 F.3d 878, 888 (8th Cir.2005) (citing Mashek, 406 F.3d at 1020). a. Dangerous-Weapon Enhancement “Section 2Dl.l(b)(l) mandates a two-level enhancement if the Government can prove by a preponderance of the evidence that the defendant possessed ‘a dangerous weapon (including a firearm)’ while violating 21 U.S.C. § 841(b).” United States v. Savage, 414 F.3d 964, 966 (8th Cir.2005) (quoting § 2D1.1(b)(1)). The enhancement, which “reflects the increased danger of violence when drug traffickers possess weapons[,] ... should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1, cmt. n.3. “[T]he government need only prove a temporal and spatial nexus among the weapon, defendant and drug-trafficking activity.” United States v. Torres, 409 F.3d 1000, 1003 (8th Cir.2005). The district court applied the enhancement, relying on Leal’s trial testimony that Mathias showed him a gun during the course of one of their drug transactions at Mathias’s house. Leal testified that Mathias got the gun out of a hall closet and [H]e [Mathias] just show it to me and extend his hand and kind of hand it to" }, { "docid": "12202347", "title": "", "text": "a defendant possessed a firearm during a drug crime is a factual finding subject to the clearly erroneous standard of review.” Darwich, 337 F.3d at 664 (quoting United States v. Bartholomew, 310 F.3d 912, 924 (6th Cir. 2002)). Where, as here, the defendant did not object to the enhancement before the district court, plain-error review applies, so Rios must “show (1) error (2) that ‘was obvious or clear,’ (3) that ‘affected defendant’s substantial rights’ and (4) that ‘affected the fairness, integrity, or public reputation of the judicial proceedings.’” Vonner, 516 F.3d at 386 (quoting U.S. v. Gardiner, 463 F.3d 445, 459 (6th Cir.2006)). We discussed the legal framework applicable to the firearm enhancement in our Opinion regarding Rios’s co-defendants: The firearm enhancement arises pursuant to U.S.S.G. § 2Dl.l(b)(l), which provides that “[i]f a dangerous weapon (including a firearm) was possessed, increase by 2 levels.” The guideline contains no explanation of when the firearm must have been “possessed” or by whom. Application Note 11 to § 2D1.1 states that “[t]he enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense,” and that Note has been interpreted to create a burden-shifting framework. “The government bears the burden of showing by a preponderance of the evidence that the defendant either ‘actually or constructively possessed the weapon.’ ” United States v. Darwich, 337 F.3d 645, 665 (6th Cir. 2003) (quoting United States v. Hough, 276 F.3d 884, 894 (6th Cir. 2002)). Upon such proof, “a presumption arises that ‘the weapon was connected to the offense,’ ” and “[t]he burden then shifts to the defendant to ‘show that it was clearly improbable that the weapon was connected with the crime.’ ” Id. (quoting Hough, 276 F.3d at 894). The first step has prompted some confusion over when or where the defendant must have “possessed the weapon.” This confusion is the product of a 1991 amendment to the Sentencing Guidelines, which removed a prior requirement that the weapon was “possessed during the commission of the offense.” United States v. Faison, 339 F.3d 518, 520" }, { "docid": "4885157", "title": "", "text": "and the officers who were on the scene concluded that these plants were attributable to the same grower, Betz. We are not persuaded the court was clearly erroneous in attributing these also to Betz. We affirm the court’s attribution to Betz of all plants and household amounts included in the sentence calculation. B. Section 2D1.1(b)(1) Enhancement Betz contends that the district court erred in adopting the Presentence Report’s recommendation of a two-level enhancement in Betz’s offense level pursuant to § 2D1.1(b)(1) of the Sentencing Guidelines. This court ‘“will not reverse the [district [c]ourt’s conclusion that the weapon was connected to the offense unless it is clearly erroneous.’ ” United States v. Britton, 68 F.3d 262, 265 (8th Cir.1995) (citing United States v. Baker, 64 F.3d 439, 441 (8th Cir.1995)); see also United States v. Hayes, 15 F.3d 125, 127 (8th Cir.), cert. denied, — U.S. -, 114 S.Ct. 2718, 129 L.Ed.2d 843 (1994). Section 2D1.1(b)(1) of the Sentencing Guidelines states: “If a dangerous weapon (including a firearm) was possessed, increase [base offense level] by 2 levels.” Application note 3 of the Commentary to § 2D1.1 provides in part: The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet. U.S.S.G. § 2D1.1 comment (n. 3) (emphasis added). At sentencing, the burden is on the government to show by a preponderance of the evidence that a dangerous weapon was present and that it was not clearly improbable that the weapon had a nexus with the criminal activity. United States v. Richmond, 37 F.3d 418, 419 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1163, 130 L.Ed.2d 1119 (1995); United States v. McMurray, 34 F.3d 1405, 1416 (8th Cir.1994), cert. denied, — U.S.-, 115 S.Ct. 1164, 130 L.Ed.2d 1119 (1995); United States v. Khang, 904 F.2d 1219, 1223 (8th Cir.1990)" }, { "docid": "18281546", "title": "", "text": "independently that the evidence that Hechtel was beaten and tattooed was properly admitted and that there was sufficient evidence to support the jury’s finding of Aguilar’s guilt of the charged offenses. Aguilar challenges the two level increase of his base offense level pursuant to § 2Dl.l(b)(l), arguing that the district court erred in determining that a spear is a dangerous weapon and that Aguilar used the spear in furtherance of the drug conspiracy. Aguilar also argues that his actions to collect the “debt” owed by Hechtel were not related to the drug conspiracy. The government contends that the district court did not clearly err in applying the enhancement. We review a district court’s interpretation and application of the guidelines de novo and its factual findings regarding enhancements for clear error. United States v. Jourdain, 433 F.3d 652, 658 (8th Cir.), cert. denied, — U.S. —, 126 S.Ct. 2044, 164 L.Ed.2d 798 (2006). For the dangerous weapon enhancement in § 2D1.1(b)(1) to apply, “[t]he government has to show by -a preponderance of the evidence that a [dangerous weapon] was present and that it was probably connected to the drug offense.” United States v. Dillard, 370 F.3d 800, 804 (8th Cir.2004); U.S.S.G. § 2D1.1 cmt. n. 3 (base offense level should be increased by two levels if dangerous weapon was possessed unless it is clearly improbable that weapon was connected with offense). A “dangerous weapon” is defined as “an instrument capable of inflicting death or serious bodily injury.” U.S.S.G. § 1B1.1 cmt. n. 1(D); U.S.S.G. § 2D1.1 cmt. n. 3 (referring to § 1B1.1 commentary for definition of “dangerous weapon”). A spear meets this definition. Cf. United States v. Mathijssen, 406 F.3d 496, 499 (8th Cir.2005) (2 inch knife is dangerous weapon for purposes of § 2Dl.l(b)(l)); United States v. Burling, 420 F.3d 745, 750 (8th Cir.2005) (same for machete). Hechtel testified at trial that Aguilar accused him of setting up LeGrand for the robbery of his methamphetamine and that Aguilar used the spear to threaten him in an attempt to recover the value of the stolen drugs. We conclude the government" }, { "docid": "5671552", "title": "", "text": "1101, 118 S.Ct. 1572, 140 L.Ed.2d 805 (1998). III. A. Enhancement for Possession of a Firearm The United States Sentencing Guidelines permit a sentencing enhancement for possession of a firearm during a drug-trafficking crime. See U.S.S.G. § 2Dl.l(b)(l). This enhancement does not apply when a defendant is convicted and sentenced for violating 18 U.S.C. § 924(c) because to do so would constitute impermissible double counting. See, U.S.S.G. § 2K2.4 cmt. n. 2. In this Circuit, it is well established that a district court has the authority to- apply the § 2Dl.l(b)(l) enhancement when a defendant is resen-tenced after the vacation of ■ a § 924(c) conviction. See Pasquarille v. United States, 130 F.3d 1220, 1222 (6th Cir.1997) (stating that “ § 2255 gives the court jurisdiction and authority to reevaluate the entire aggregate sentence to ensure thát the defendant receives the appropriate sentence on the remaining count”). In addition, this Court has held that the appliea tion of the enhancement does not violate the Double Jeopardy Clause. See id. at 1222-23. To obtain an enhancement pursuant to § 2Dl.l(b)(l), the government must show by a preponderance of the evidence that the defendant possessed the firearm during the drug-trafficking offense. See United States v. Sanchez, 928 F.2d 1450, 1460 (6th Cir.1991). Once the government satisfies its initial burden of showing that a weapon was present, however, the burden shifts to the defendant to show that it was clearly improbable that the weapon was connected to the offense. See United States v. McGhee, 882 F.2d 1095, 1097-98 (6th Cir.1989). As the commentary to U.S.S.G. § 2D1.1 explains: The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet. U.S.S.G. § 2D1.1 cmt. n. 3. ■ Here, Saikaly argues that there was no evidence that he possessed a firearm dim-ing the drug-trafficking" }, { "docid": "12431646", "title": "", "text": "weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet. U.S.S.G. § 2D1.1(b)(1), comment, (n. 3). The defendants argue that because the government presented no evidence linking the weapons to their offenses, the trial court should have been precluded from awarding a two-level enhancement under section 2Dl.l(b)(l).. In effect, Roberts and Petty argue that the trial court improperly shifted the burden to the defendants to prove the clear improbability that the weapons were connected with the offense. We review a district court’s legal interpretation of the Guidelines de novo, United States v. Agbai, 930 F.2d 1447, 1448 (10th Cir.1991), and we use the clearly erroneous standard to review a trial court’s factual determinations at sentencing, United States v. Easterling, 921 F.2d 1073, 1077 (10th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2066, 114 L.Ed.2d 470 (1991). We have not previously faced this issue squarely. The majority of circuits that have addressed this issue have interpreted the language of section 2D1.1(b)(1) and its commentary to place the initial burden on the government to prove by a preponderance of the evidence that the weapon was present in physical proximity to the offense. Once this burden is met, these eases require the defendant to come forward with rebuttal evidence satisfying the “clearly improbable” restriction. See United States v. Corcimiglia, 967 F.2d 724, 727-28 (1st Cir.1992); United States v. Garner, 940 F.2d 172, 175-76 (6th Cir.1991); United States v. Durrive, 902 F.2d 1221, 1230-31 (7th Cir.1990); United States v. Restrepo, 884 F.2d 1294, 1295-96 (9th Cir.1989). But see United States v. Khang, 904 F.2d 1219, 1223 n. 7 (8th Cir.1990) (“clearly improbable” does not alter the burden of proof but relates to the required standard of proof). We agree that the plain language of section 2Dl.l(b)(l) and its commentary permit a trial judge to" }, { "docid": "13008527", "title": "", "text": "the district court’s imposition of a two-level enhancement for possessing a dangerous weapon in connection with the drug conspiracy convictions, U.S. Sentencing Guidelines (USSG) Manual § 2Dl.l(b)(l), violated the Sixth Amendment as construed in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The Supreme Court remedied the Sixth Amendment violations that resulted from the mandatory application of the Guidelines by making the Guidelines advisory. Id. at 259, 125 S.Ct. 738. District courts continue to apply Guidelines enhancements based on judge-made fact-findings found by a preponderance of the evidence, as long as the Guidelines are treated as advisory. See United States v. Mugan, 441 F.3d 622, 633 (8th Cir.2006) (“Booker did not change the standard of proof for a sentencing court’s factual findings.”); United States v. Garcia-Gonon, 433 F.3d 587, 593 (8th Cir.2006) (“Because the district court applied the Guidelines as advisory, there is no Booker error present in this case.”). The district court did not violate the Sixth Amendment by making the necessary fact-findings to support the enhancement. We likewise reject Sandoval’s claim that his 200-month sentence, within the applicable 188- to 235-month Guidelines range, was unreasonable. We review the district court’s ultimate sentence for reasonableness, a “ ‘standard akin to our traditional review for abuse of discretion,’ ” United States v. Gall, 446 F.3d 884, 889 (8th Cir.2006) (quoting United States v. Claiborne, 439 F.3d 479, 481 (8th Cir.2006)), in light of the sentencing factors contained in 18 U.S.C. § 3553(a). In this circuit, a sentence within a properly-calculated Guidelines range is presumed to be reasonable. Id. The only factors that Sandoval offers to support a sentence lower than the presumptively reasonable Guidelines range are his poor upbringing in Mexico and his lack of a significant prior criminal history. His minimal prior criminal history was taken into account in arriving at the appropriate advisory Guidelines range. Further, his upbringing does not distinguish him from the myriad of other defendants in our criminal justice system. While Sandoval claims to have come to the United States to make a better life for himself and his" }, { "docid": "20644350", "title": "", "text": "any factual findings for clear error. Id. at 1054. Where the district court correctly applies the Guidelines and imposes a sentence within the applicable Guidelines range, that sentence “is entitled to a rebuttable presumption of reasonableness.” Id. However, if the district court errs in applying the Guidelines, we must remand unless the error is harmless. Id. at 1055. Appellant incorrectly argues that Booker error occurs any time a district court enhances a sentence based on facts not found by a jury. Rather, after Booker, a district court is not precluded from relying on judge-found facts in determining the applicable Guidelines range so long as the Guidelines are considered as advisory rather than mandatory. United States v. Magallanez, 408 F.3d 672, 685 (10th Cir.2005); United States v. Lawrence, 405 F.3d 888, 907 (10th Cir.), cert. denied, — U.S. -, 126 S.Ct. 468, 163 L.Ed.2d 355 (2005). We find harmless any error in the district court’s application of the two-level enhancement under § 2Dl.l(b)(l). That provision directs that a two-level increase be imposed “[i]f a dangerous weapon (including a firearm) was possessed.” U.S.S.G. § 2Dl.l(b)(l). The commentary to this section indicates that this enhancement “reflects the increased danger of violence when drug traffickers possess weapons” and that it “should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1, cmt. n. 3. Under § 2Dl.l(b)(l), “the government has the burden of proving merely that a weapon was present in some physical proximity to the offense.” United States v. Alexander, 292 F.3d 1226, 1231 (10th Cir.2002). “Once the government meets this standard, it is incumbent upon the defendant to show that it is ‘clearly improbable’ that the weapon was connected to the offense.” United States v. Sagaste-Cruz, 187 Fed.Appx. 804, 809 (10th Cir.2006) (unpublished) (citing United States v. Vaziri, 164 F.3d 556, 568 (10th Cir.1999)). The district court relied on Appellant’s recorded admission and Mr. Ritchie’s corroborating trial testimony in finding that Appellant threatened Mr. Dishion at knifepoint over Mr. Dishion’s failure to pay for his methamphetamine. We find no" }, { "docid": "23284393", "title": "", "text": "have previously held this enhancement may be imposed at sentencing after a defendant has been acquitted of a § 924(c) charge. United States v. Martinez, 979 F.2d 1424, 1433-34 (10th Cir.1992), cert. denied, 507 U.S. 1022, 113 S.Ct. 1824, 123 L.Ed.2d 454 (1993); United States v. Eagan, 965 F.2d 887, 892 (10th Cir.1992). We find no persuasive reason to treat an appellate reversal on sufficiency of evidence grounds any differently. In fact, the two circuits who have addressed this precise issue following Bailey have determined a remand for resentencing was appropriate. United States v. Fennell, 77 F.3d 510, 510-11 (D.C.Cir.1996) (per curiam); United States v. Roulette, 75 F.3d 418, 426 (8th Cir.1996) (“The prohibition against applying the two level enhancement is no longer applicable, because the firearm sentence on Count 4 has been set aside.”). Therefore, we hold when a defendant’s conviction under 18 U.S.C. § 924(c) is reversed on sufficiency of evidence grounds on appeal, the case is subject to remand for resentencing to determine the applicability of the enhancement found at U.S.S.G. § 2D1.1(b)(1) to the facts of each particular case. On remand, the district court must determine whether either Souphaphone or Douangmala Lang possessed a firearm in connection with their drug trafficking activities within the meaning of the guidelines. “The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1 comment, (n. 3). Initially, the government bears the burden of proving by a preponderance of the evidence that the gun was proximate to the drug offense. United States v. Earls, 42 F.3d 1321, 1326 (10th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1800, 131 L.Ed.2d 727 (1995). The government must present evidence demonstrating “that a temporal and spatial relation exited between the weapon, the drug trafficking activity, and the defendant.” United States v. Robertson, 45 F.3d 1423, 1449 (10th Cir.), cert. denied, — U.S.-, 115 S.Ct. 2258, 132 L.Ed.2d 265 (1995) (quoting United States v. Roederer, 11 F.3d 973, 982 (10th Cir.1993)). If the government meets its burden, the onus shifts" }, { "docid": "15464876", "title": "", "text": "warrant introduced diagrams showing the layout of the house and the locations of the various items seized. He said it appeared that someone had been using the living room as a bedroom for an extended stay, judging from the personal effects left there. The china cabinet containing methamphetamine, a loaded gun, and $3,400 in cash was just around the corner from the living room. The district court discounted Hueso’s story that he ordinarily kept the guns inaccessible in a locked trunk, but that he had brought them out temporarily just to be used for the pictures. The court said the story was “belied by the fact that they weren’t in a locked cabinet ... two days after the pictures were taken at the time the search warrant was executed.” The court held that the gun enhancement applied to Lopez because it was not clearly improbable that the weapons were connected to the offense. Even though the Sentencing Guidelines are now advisory rather than mandatory, see United States v. Booker, — U.S. —, — - —, 125 S.Ct. 738, 756-57, 160 L.Ed.2d 621 (2005), the district court must determine the guidelines range before considering other relevant factors. United States v. Mathijssen, 406 F.3d 496, 498 (8th Cir.2005). We review the district court’s application of the Sentencing Guidelines de novo and its factual findings at sentencing for clear error. Id. ■ In particular, we review for clear error the district court’s finding that the defendant possessed a dangerous weapon during a drug-trafficking offense. United States v. Torres, 409 F.3d 1000, 1003 (8th Cir.2005). Because Lopez only argues that the district court erred in assessing the two-level enhancement under • U.S.S.G. § 2Dl.l(b)(l), we need not consider whether the sentence is unreasonable in light of all the factors listed in 18 U.S.C. § 3553(a). See Mathijssen, 406 F.3d at 498. U.S.S.G. § 2Dl.l(b)(l) states that the two-level enhancement applies if “a dangerous weapon (including a firearm) was possessed”-meaning possessed during the offense. See Torres, 409 F.3d at 1003 (reviewing district court’s finding that “defendant possessed a dangerous weapon during a drug trafficking offense”)." }, { "docid": "2232268", "title": "", "text": "the firearm was related to the drug crime. We review a district court’s factual determination to enhance a sentence under section 2D1.1(b)(1) for clear error only. United States v. Vargas, 116 F.3d 195, 197 (7th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 584, 139 L.Ed.2d 421 (1997); United States v. Wetwattana, 94 F.3d 280, 283 (7th Cir.1996). The Sentencing Guidelines provide that, for certain offenses involving drugs, the court should increase the base offense level by two levels if a dangerous weapon, including a firearm, was possessed. U.S.S.G. § 2D1.1(b)(1); Wetwattana, 94 F.3d at 283. Application Note 3 to that section explains that the “enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it was clearly improbable that the weapon was connected with the offense.” As an example of an occasion when the enhancement would not apply, the Application Notes describe an arrest of a defendant at his residence, where police find an unloaded hunting rifle in the closet. The government must prove that this enhancement is warranted by a preponderance of the evidence. Wetwattana, 94 F.3d at 283. The government is not required to demonstrate that the weapon was connected to the offense, but rather only that the weapon was possessed during the offense of conviction or during relevant conduct as that term is defined in Sentencing Guideline section 1B1.3. Id. The government met this burden easily in the instant case because Cain admitted that the gun in the car was his, and also admitted at his plea hearing that he was using the car that day to drive Holmes to and from various drug deals. The burden then shifted to Cain to show that it was clearly improbable that the gun was connected to the offense. Cain offered his statement that he carried the gun for protection from kidnappers and not to facilitate drug deals. ’ The district court did not clearly err in finding that this explanation was not credible. Cain also faults the district court for declining to" }, { "docid": "13008526", "title": "", "text": "“favorable to an accused” and “material either to guilt or to punishment.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Sandoval made a Brady claim in his motion for a mistrial following Quinn’s testimony. In reviewing a Brady claim, - we have held that “[t]he government’s disclosure pattern in a given case does not offend Brady ... so long as the evidence in question is disclosed prior to the end of trial.” United States v. Holmes, 421 F.3d 683, 687 (8th Cir.2005) (citing United States v. Almendares, 397 F.3d 653, 664 (8th Cir.2005), cert. denied, — U.S. ——-, 126 S.Ct. 1448, 164 L.Ed.2d 145 (2006); United States v. Gonzales, 90 F.3d 1363, 1368 (8th Cir.1996)). The government disclosed Quinn as a witness and offered its material related to Quinn’s plea agreement three days before trial began, Quinn was not called until the second day of trial, and Sandoval’s attorney was allowed to cross-examine him at trial. There was no Brady violation. IV. Sentencing Issues We reject Sandoval’s argument that the district court’s imposition of a two-level enhancement for possessing a dangerous weapon in connection with the drug conspiracy convictions, U.S. Sentencing Guidelines (USSG) Manual § 2Dl.l(b)(l), violated the Sixth Amendment as construed in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The Supreme Court remedied the Sixth Amendment violations that resulted from the mandatory application of the Guidelines by making the Guidelines advisory. Id. at 259, 125 S.Ct. 738. District courts continue to apply Guidelines enhancements based on judge-made fact-findings found by a preponderance of the evidence, as long as the Guidelines are treated as advisory. See United States v. Mugan, 441 F.3d 622, 633 (8th Cir.2006) (“Booker did not change the standard of proof for a sentencing court’s factual findings.”); United States v. Garcia-Gonon, 433 F.3d 587, 593 (8th Cir.2006) (“Because the district court applied the Guidelines as advisory, there is no Booker error present in this case.”). The district court did not violate the Sixth Amendment by making the necessary fact-findings to support the enhancement. We" }, { "docid": "13017037", "title": "", "text": "not possess the firearm in connection with the offense. See United States v. Miranda-Santiago, 96 F.3d 517, 529 n. 25 (1st Cir.1996). Section 2Dl.l(b)(l) permits a two-level enhancement “[i]f a dangerous weapon (including a firearm) was possessed.” To garner this enhancement, the government has the initial burden of establishing “that a firearm possessed by the defendant was present during the commission of the offense.” United States v. McDonald, 121 F.3d 7, 10 (1st Cir.1997). Once the government has made that showing, “the burden shifts to the defendant to persuade the factfinder that a connection between the weapon and the crime is clearly improbable.” Id. (emphasis added); see also U.S.S.G. § 2Dl.l(b)(l), cmt. n. 3 (“The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.”). Thus, the burden on the defendant is different for these two sentencing provisions. The application of the safety valve (which requires the defendant to establish by a preponderance of the evidence that he did not possess the firearm in connection with the offense) does not necessarily mean that the defendant can meet the heavier burden, once the government shows that the firearm was present during the commission of the offense, of establishing that it was clearly improbable that the gun was used in connection with the offense. Other courts have addressed similar arguments regarding the interaction of the safety valve adjustment under § 5C1.2 and the firearm enhancement under § 2Dl.l(b)(l). At least two circuits have concluded that the application of a firearm enhancement under § 2Dl.l(b) does not necessarily preclude a safety valve reduction under § 5C1.2. See United States v. Bolka, 355 F.3d 909, 915 (6th Cir.2004) (noting the different burdens of proof under the two sentencing provisions); United States v. Nelson, 222 F.3d 545, 551 (9th Cir.2000) (same). In other words, these courts held that the defendant’s failure to meet the higher burden of proof set forth in the firearm enhancement provision of the guidelines did not necessarily preclude the defendant from meeting the lower burden of proof set forth" }, { "docid": "15464877", "title": "", "text": "125 S.Ct. 738, 756-57, 160 L.Ed.2d 621 (2005), the district court must determine the guidelines range before considering other relevant factors. United States v. Mathijssen, 406 F.3d 496, 498 (8th Cir.2005). We review the district court’s application of the Sentencing Guidelines de novo and its factual findings at sentencing for clear error. Id. ■ In particular, we review for clear error the district court’s finding that the defendant possessed a dangerous weapon during a drug-trafficking offense. United States v. Torres, 409 F.3d 1000, 1003 (8th Cir.2005). Because Lopez only argues that the district court erred in assessing the two-level enhancement under • U.S.S.G. § 2Dl.l(b)(l), we need not consider whether the sentence is unreasonable in light of all the factors listed in 18 U.S.C. § 3553(a). See Mathijssen, 406 F.3d at 498. U.S.S.G. § 2Dl.l(b)(l) states that the two-level enhancement applies if “a dangerous weapon (including a firearm) was possessed”-meaning possessed during the offense. See Torres, 409 F.3d at 1003 (reviewing district court’s finding that “defendant possessed a dangerous weapon during a drug trafficking offense”). Lopez was caught on film in actual possession of a gun and loaded magazine, shortly before the drugs were seized from the garage, so there is no substantial question that Lopez possessed a gun during the offense. The real dispute is whether the guns were connected to the offense. The commentary clarifies that mere possession of a weapon is not enough, but that there must be a connection with the offense: “The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” § 2D1.1, cmt. n. 3. We have paraphrased the commentary’s term “not clearly improbable” as “probable,” see Torres, 409 F.3d at 1003, and we have held that the government has the burden of proving by a preponderance of the evidence that the weapon’s presence was probably connected to the offense. Id. To discharge this burden, “the government need only prove a temporal and spatial nexus among the weapon, defendant, and drug-trafficking activity.” Id. The government need not prove that the defendant" } ]

[ { "docid": "1814142", "title": "", "text": "under the Convention because the ne exeat clause of the divorce agreement constitutes “the right to determine [his children’s] place of residence.” We reject the argument. The “right” granted under a ne exeat clause is, at most, a veto power. Croll v. Croll, 229 F.3d 133, 140 (2d Cir.2000). A parent with custodial rights has the affirmative right to determine the country, city, and precise location where the child will live. This is one of the primary rights óf a custodial parent. By contrast, a ne exeat clause serves only to allow a parent with access rights to impose a limitation on the custodial parent’s right to expatriate his child. At most, Arce could, under the terms of his divorce agreement with Gutierrez, refuse permission for his children to leave Mexico. He cannot,-however, direct with any specificity where the children will reside either within the borders of Mexico or within any other country. This, in our view, hardly, amounts to a right of custody, in the plainest sense of the term. See Article 31.1., Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, T.S. No. 58 (1980), 8 I.L.M. 697 (1969)(“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”)(emphasis added); RANDOM HOUSE DICTIONARY 393 (1979)(defin-ing “determine” as “to settle or decide ... by an authoritative or conclusive deci sion”). By taking the children to the United States, Gutierrez has undoubtedly violated the terms of her divorce agreement, but addressing that violation is not within our purview. We conclude that under the text of the Convention the ne exeat clause is merely a condition designed to protect Arce’s access rights, and no more. 2. Purpose This understanding of custodial rights is also consistent with the purposes of the Convention. The primary purpose of the Convention, as stated in its preamble, is the desire to “protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their" } ]

[ { "docid": "14321014", "title": "", "text": "Relations, May 29, 1934, art. Ill, 48 Stat. 1682, 1683. The 1903 agreement provides that the United States shall lease Guantanamo Bay from the Republic of Cuba for use as a coaling or naval station. Lease Agreement, art. I. Article III of the 1934 Treaty provides that the 1903 lease shall “continue in effect” until the parties agree to modify or abrogate it. As to the legal status of Guantanamo Bay so long as it is leased to the U.S., the 1903 agreement states: While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas. Lease Agreement, art. III. It is telling that in their brief petitioners do not even mention the first clause of the 1903 agreement, which provides that Cuba explicitly retained sovereignty. The omission suggests that they realize that sovereignty is the dispositive issue. Relying instead only on the second clause, petitioners argue that because the Lease Agreement provides that Guantanamo Bay is under the “complete jurisdiction and control” of the United States, the detainees effectively are being held within United States territory and thus are entitled to the writ of habeas corpus. One need only read the lease to realize that petitioners’ argument that “jurisdiction and control” is equivalent to “sovereignty” is wrong. The agreement explicitly distinguishes between the two in providing that Cuba retains “sovereignty” whereas “jurisdiction and control” are exercised by the United States. Cuba and the United States defined the legal status of Guantanamo Bay, and this court has no basis, much less authority, to ignore their determination. Vermilya-Brown Co. v. Connell, 335 U.S. 377, 380, 69 S.Ct. 140, 93 L.Ed. 76 (1948). (“[T]he determination of sovereignty over an area is for the legislative and executive departments.”). In addition to the express terms" }, { "docid": "23207120", "title": "", "text": "therein by purchase or by exercise of eminent domain with full compensation to the owners thereof.” Id., 361. See Joint Resolution No. 24, April 20, 1898, on the recognition of the independence of Cuba, 30 Stat. 738; the Act of March 2, 1901, in fulfillment thereof, 31 Stat. 898, Art. VII; Treaty with Cuba proclaimed June 9, 1934, 48 Stat. 1682, 1683, Art. III. Isthmian Canal Convention, 33 Stat. 2234: “The United States of America and the Republic of Panama being desirous to insure the construction of a ship canal across the Isthmus of Panama to connect the Atlantic and Pacific oceans, and the Congress of the United States of America having passed an act approved June 28, 1902, in furtherance of that object, by which the President of the United States is authorized to acquire within a reasonable time the control of the necessary territory of the Republic of Colombia, and the sovereignty of such territory being actually vested in the Republic of Panama, the high contracting parties have resolved for that purpose to conclude a convention and have accordingly appointed as their plenipotentiaries, —” Id., 2235: “Article III. “The Republic of Panama grants to the United States all the rights, power and authority within the zone mentioned and described in Article II of this agreement and within the limits of all auxiliary lands and waters mentioned and described in said Article II which the United States would possess and exercise if it were the sovereign of the territory within which said lands and waters are located to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power or authority.” Through the Joint Resolution of June 29, 1944, 58 Stat. 625, these provisions were effectuated in leases for 99 years by an agreement of March 14, 1947. 61 Stat. 2834, Treaties and International Acts No. 1611. The rights of control over the areas obtained by the United States from the Republic of the Philippines are quite similar to those obtained over the Bermuda base. The power of control over leased areas obtained" }, { "docid": "22983604", "title": "", "text": "Christina’s return under the Convention by virtue of his rights under the ne exeat clause. The majority mischaracterizes the issue as being a question of whether the ne exeat clause “transmutéis] access rights into rights of custody under the Convention.” Ante at 143. Clearly, the ne exeat clause works no such magic. In my view, the question presented is whether the ne exeat clause — wholly independent of Mr. Croll’s access rights — confers “rights of custody” under the Convention. The Convention’s text, object and purpose, as well as the relevant case law in this area, convincingly direct an answer in the affirmative. A. The Text, Object, and Purpose of the Convention The critical interpretive challenge in this case involves the definition of “rights of custody” as used in the Convention. The majority begins this undertaking by surveying a host of American dictionaries to support its “intuition that custody is something other and more than a negative right or veto.” Ante at 138. Relying on these sources, the majority finds that the “custody of a child entails the primary duty and ability to choose and give sustenance, shelter, clothing, moral and spiritual guidance, medical attention, education, etc., or the (revocable) selection of other people or institutions to give these things.” Ante at 138. While traditional American notions of custody rights are certainly relevant to our interpretation of the Convention, the construction of an international treaty also requires that we look beyond parochial definitions to the broader meaning of the Convention, and assess the “ordinary meaning to be given to the terms of the treaty in their context and in the light of [the Convention’s] object and purpose.” Vienna Convention on the Law of Treaties, May 23, 1969, art. 31.1, 1155 U.N.T.S. 331, 340 (stating general rule on the interpretation of treaties); see also Restatement (Third) of Foreign Relations Law § 325 (1987) (same). Contrary to the majority’s position that “[n]othing in the Hague Convention suggests that the drafters intended anything other than this ordinary understanding of custody,” ante at 139, the Convention and its official history reflect a notably more" }, { "docid": "22983570", "title": "", "text": "construing a statute, we first look to its terms to determine its meaning.” United States v. Alvarez-Machain, 504 U.S. 655, 663, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992) (citing Air France v. Saks, 470 U.S. 392, 397, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985), and Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 11, 57 S.Ct. 100, 81 L.Ed. 5 (1936)); see also Kahn Lucas Lancaster, Inc. v. Lark Int’l Ltd., 186 F.3d 210, 215 (2d Cir.1999) (“Treaties are construed in much the same manner as statutes.”) (citing Alvarez-Machain, 504 U.S. at 663, 112 S.Ct. 2188). The text of the treaty must be interpreted “in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” Vienna Convention on the Law of Treaties, done May 23, 1969, art. 31.1, 1155 U.N.T.S. 331 (emphasis added). Where the text' — read in the context of its structure and purpose — is ambiguous, we may resort to extraneous tools of interpretation such as a treaty’s ratification history and subsequent operation. See Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982) (“The clear import of treaty language controls unless application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories.”) (internal quotation marks and citations omitted); cf. Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134 n. 5, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989) (“Even if the text were less clear, its most natural reading could properly be contradicted only by clear drafting history.”). So far as we can tell, we and the district court in this case are the only courts in the United States to consider whether rights of access coupled with a ne exeat clause confer “custodial rights” on a non-custodial parent within the meaning of the Hague Convention. We therefore start from scratch, and consult (A) the purpose and design of the Convention, (B) its wording, (C) the intent of its" }, { "docid": "22648863", "title": "", "text": "risk for arbitrary detention, torture and ill-treatment, or possible extra-judicial execution. Id. . Even aside from the implementing regulations, it is well-accepted in international law on treaty interpretation that a party-state may not take actions that defeat the object and purpose of the treaty or convention. See Vienna Conv. on the L. of Treaties, May 23, 1969, art. 31(1), 1155 U.N.T.S. 331 (1969) (\"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.''). Thus, the portion of the federal regulations that limits the exclusion of lawfully imposed sanctions to those that are consistent with the object and purpose of the Convention is simply a reaffirmation of the rule that must in any event be applied under controlling international law. . Controversy has raged, largely in the academic world, over the \"ticking bomb\" question. Compare Alan M. Dershowitz, Why Terrorism Worlds: Understanding the Threat, Responding to the Challenge 142-49 (2002) (arguing that torturing the suspect in the \"ticking bomb\" case is permissible); Michael Walzer, Political Action: The Problem of Dirty Hands, in War and Moral Responsibility 62, 69 (Marshall Cohen et al. eds., 1974) (same), with William F. Schulz, The Torturer's Apprentice, The Nation, May 13, 2002, at 26 (arguing that the \"ticking bomb” scenario is flawed and that torture is never permissible). The \"ticking bomb” is a classic case familiar to all those who have survived a freshman philosophy class: \"Suppose the authorities are holding a suspect who knows where a ticking bomb is located, a bomb that will kill hundreds of people if it explodes. Would they be justified in torturing the suspect to procure the information and thereby save innocent lives?” Id. That dispute is irrelevant to the question before us. We are not presented with the use of torture in order to obtain information, but rather, with the authorization of torture as a means of punishment. . See, e.g., 18 U.S.C. § 2340-2340A (criminalizing torture); Arg. Const, ch. 1 (Declarations, Rights and Guarantees)," }, { "docid": "23063621", "title": "", "text": "1683-84, 104 L.Ed.2d 113 (1989). . Vienna Convention on the Law of Treaties, May 22, 1969, art. 31(1), 8 I.L.M. 4 (1969) (hereinafter \"Vienna Convention”); accord Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180, 102 S.Ct. 2374, 2377, 72 L.Ed.2d 765 (1982) (clear import and obvious meaning of treaty language control). Although the United States is not a party to the Vienna Convention, it regards the substantive provisions of the Vienna Convention as codifying the international law of treaties. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES, Part III, introductory note (1986). . Although several cases specify that the language of a treaty must be read \"in context,” see, e.g., Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 534, 111 S.Ct. 1489, 1493, 113 L.Ed.2d 569 (1991); Schlunk, 486 U.S. at 699, 108 S.Ct. at 2108, these cases do not define the word “context.” As the language of a treaty — again, read in context' — is regularly contrasted with information extraneous to the treaty (like the travaux preparatoires), see, e.g., Eastern Airlines, Inc., 499 U.S. at 535, 111 S.Ct. at 1493; Chan, 490 U.S. at 134, 109 S.Ct. at 1683-84, we can infer that the context of a treaty consists of insights drawn from the treaty document itself. Article 31 (2) of the Vienna Convention confirms this inference, for it defines the context of a treaty as the text \"including its preamble and annexes,\" as well as contemporaneous instruments and agreements made by the parties to the treaty \"in connection with the conclusion of treaty.\" Emphasis added. Obviously, inferences drawn from a treaty's structural organization (e.g., the titles of its articles and parts) are also part of the contextual analysis of a treaty. Such contextual analysis can and should inform our understanding the literal language of a treaty provision. Thus, when a court speaks of interpreting the language of a treaty in the context of its structure and purpose, it means construing the literal language of the treaty in light of its structural organization and its purpose — as reflected in the preamble" }, { "docid": "22983569", "title": "", "text": "meaning of the Convention. Christina’s removal from Hong Kong— her habitual residence — was in violation of her father’s right of custody and was, therefore, wrongful pursuant to the Convention. Croll, 66 F.Supp.2d at 559. The court granted Mrs. Croll’s motion to stay its order of return pending expedited appeal to this Court. See Croll v. Croll, No. 99-3566 (S.D.N.Y. Oct.29,1999). DISCUSSION At issue on this appeal are two sets of rights recognized in the Convention to be distinct: rights of custody and rights of access. If Mr. Croll has custody rights, courts in the United States have jurisdiction to order return of Christina to Hong Kong, as the district court has done, and the duty to do so. If, however, Mr. Croll has the lesser rights of access, jurisdiction is lacking and Mr. Croll must rely on other remedies. The proper interpretation of the Hague Convention is an issue of law, which we review de novo. See Klos v. Polskie Linie Lotnicze, 133 F.3d 164, 167 (2d Cir.1997). “In construing a treaty, as in construing a statute, we first look to its terms to determine its meaning.” United States v. Alvarez-Machain, 504 U.S. 655, 663, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992) (citing Air France v. Saks, 470 U.S. 392, 397, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985), and Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 11, 57 S.Ct. 100, 81 L.Ed. 5 (1936)); see also Kahn Lucas Lancaster, Inc. v. Lark Int’l Ltd., 186 F.3d 210, 215 (2d Cir.1999) (“Treaties are construed in much the same manner as statutes.”) (citing Alvarez-Machain, 504 U.S. at 663, 112 S.Ct. 2188). The text of the treaty must be interpreted “in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” Vienna Convention on the Law of Treaties, done May 23, 1969, art. 31.1, 1155 U.N.T.S. 331 (emphasis added). Where the text' — read in the context of its structure and purpose — is ambiguous, we may resort to extraneous tools of interpretation such" }, { "docid": "22983605", "title": "", "text": "child entails the primary duty and ability to choose and give sustenance, shelter, clothing, moral and spiritual guidance, medical attention, education, etc., or the (revocable) selection of other people or institutions to give these things.” Ante at 138. While traditional American notions of custody rights are certainly relevant to our interpretation of the Convention, the construction of an international treaty also requires that we look beyond parochial definitions to the broader meaning of the Convention, and assess the “ordinary meaning to be given to the terms of the treaty in their context and in the light of [the Convention’s] object and purpose.” Vienna Convention on the Law of Treaties, May 23, 1969, art. 31.1, 1155 U.N.T.S. 331, 340 (stating general rule on the interpretation of treaties); see also Restatement (Third) of Foreign Relations Law § 325 (1987) (same). Contrary to the majority’s position that “[n]othing in the Hague Convention suggests that the drafters intended anything other than this ordinary understanding of custody,” ante at 139, the Convention and its official history reflect a notably more expansive conception of custody rights. The report containing the official history and commentary on the Convention clarifies that “the intention [of the Convention] is to protect all the ways in which custody of children can be exercised.” Elisa Pér-ez-Vera, Explanatory Report to the Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session (Child Abduction) 426, para. 71 (1980) (emphasis in original) (“Pérez-Vera Report”). This broad notion of custody rights is also consistent with Article 3, which provides that “rights of custody” may arise from a variety of sources, including by “operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of [the child’s country of habitual residence].” Hague Convention, art. 3, 51 Fed. Reg. at 10,498. In this way, the Convention plainly favors “a flexible interpretation of the terms used, which allows the greatest possible number of cases to be brought into consideration.” Pérez-Vera Report, para. 67. Consequently, in determining whether the rights arising under" }, { "docid": "22176934", "title": "", "text": "repeal of the Original Warsaw Convention, it would be just as possible for us to fill that gap with a rule derived from the law that governed before the Warsaw Convention. Cf. Ruston Gas Turbines, Inc. v. Pan American World Airways, 757 F.2d 29, 30 (2d Cir.1985) (holding that “[d]eregulation of certain common carriers” following enactment of the Airline Deregulation Act of 1978, 92 Stat. 1705, “returns us to the common law”). Fujitsu’s mere recitation of our non-retroactivity holding in Chubb, therefore, is not sufficient to refute FedEx’s abatement argument. However, FedEx’s enticing argument suffers a crucial flaw: the issue of whether the provisions of a treaty have been abated or extinguished following the entry into force of a subsequent treaty is governed by neither the common law doctrine of abatement nor the general savings statute codified at 1 U.S.C. § 109. Rather, when resolving that question, we apply the rules of customary international law enunciated in the Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 (“Vienna Convention”). As we did in Chubb, we rely upon the Vienna Convention here “as an authoritative guide to the customary international law of treaties.” Chubb, 214 F.3d at 309. Because the United States “recognizes the Vienna Convention as a codification of customary international law,” it “considers the Vienna Convention ‘in dealing with day-to-day treaty problems’ ” and acknowledges the Vienna Convention as, in large part, “the authoritative guide to current treaty law and practice.’ ” Id. at 308; see 1 Restatement (THIRD) OF FOREIGN RELATIONS LAW OF the United States, pt. Ill, intro, note, at 144-45 (discussing Vienna Convention’s codification of the customary international law governing international agreements and the acceptance of the Convention by the United States). The ongoing effect of treaties under customary international law is not governed by the same rule governing the ongoing effect of statutes under the common law. Rather, customary international law, as recited by the Vienna Convention in some detail, supplies its own distinct set of rules concerning the amendment, modification, suspension, and termination of international agreements. See Vienna Convention arts." }, { "docid": "22685281", "title": "", "text": "U. S. 483, 489 (1954) (noting evidence concerning the circumstances surrounding the adoption of the Fourteenth Amendment, discussed in the parties’ briefs and uncovered through the Court’s own investigation, “convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive”); Reid v. Covert, 354 U. S. 1, 64 (1957) (Frankfurter, J., concurring in result) (arguing constitutional adjudication should not be based upon evidence that is “too episodic, too meager, to form a solid basis in history, preceding and contemporaneous with the framing of the Constitution”). IV Drawing from its position that at common law the writ ran only to territories over which the Crown was sovereign, the Government says the Suspension Clause affords petitioners no rights because the United States does not claim sovereignty over the place of detention. Guantanamo Bay is not formally part of the United States. See DTA § 1005(g), 119 Stat. 2743. And under the terms of the lease between the United States and Cuba, Cuba retains “ultimate sovereignty” over the territory while the United States exercises “complete jurisdiction and control.” See Lease of Lands for Coaling and Naval Stations, Feb. 23,1903, U. S.-Cuba, Art. III, T. S. No. 418 (hereinafter 1903 Lease Agreement); Rasul, 542 U. S., at 471. Under the terms of the 1934 treaty, however, Cuba effectively has no rights as a sovereign until the parties agree to modification of the 1903 Lease Agreement or the United States abandons the base. See Treaty Defining Relations with Cuba, May 29, 1934, U. S.-Cuba, Art. III, 48 Stat. 1683, T. S. No. 866. The United States contends, nevertheless, that Guantanamo is not within its sovereign control. This was the Government’s position well before the events of September 11, 2001. See, e. g., Brief for Petitioners in Sale v. Haitian Centers Council, Inc., O. T. 1992, No. 92-344, p. 31 (arguing that Guantanamo is territory “outside the United States”). And in other contexts the Court has held that questions of sovereignty are for the political branches to decide. See Vermilya-Brown" }, { "docid": "13944537", "title": "", "text": "particular state’s consent, but may be modified within a state by subsequent legislation or a treaty, provided that the customary international law was not a peremptory norm (jus cogens). Id. § 102 cmts. j, k; id. § 115(l)(a) (“An act of Congress supersedes an earlier rule of international law ... as law of the United States if the purpose of the act to supersede the earlier rule ... is clear or if the act and the earlier rule ... cannot be fairly reconciled.”). A peremptory norm, which by definition permits no derogation, prevails over and invalidates any prior conflicting international agreements or other rules of international law, and “can be modified only by a subsequent norm of general international law having the same character.” Vienna Convention on the Law of Treaties, May 23, 1969, art. 53, 1155 U.N.T.S. 331, 344 (entered into force Jan. 27, 1980); 1 Restatement (ThiRd) of the Foreign Relations Law of the United States § 102 cmt. k. A guide for determining proper sources of international law is the Statute of the International Court of Justice (“ICJ Statute”), to which the United States is a party. Flores, 343 F.3d at 140. Article 38(1) of the ICJ Statute reads: The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of the rules of law. Statute of the International Court of Justice, supra, art. 38(1), 59 Stat. at 1060. Article 59 provides that “[t]he decision of the [International] Court [of Justice] has no binding force except between the parties and in respect of that particular case.” Id. art. 59. Article 38(1) of the ICJ Statute corresponds to the sources of international" }, { "docid": "22685282", "title": "", "text": "Cuba retains “ultimate sovereignty” over the territory while the United States exercises “complete jurisdiction and control.” See Lease of Lands for Coaling and Naval Stations, Feb. 23,1903, U. S.-Cuba, Art. III, T. S. No. 418 (hereinafter 1903 Lease Agreement); Rasul, 542 U. S., at 471. Under the terms of the 1934 treaty, however, Cuba effectively has no rights as a sovereign until the parties agree to modification of the 1903 Lease Agreement or the United States abandons the base. See Treaty Defining Relations with Cuba, May 29, 1934, U. S.-Cuba, Art. III, 48 Stat. 1683, T. S. No. 866. The United States contends, nevertheless, that Guantanamo is not within its sovereign control. This was the Government’s position well before the events of September 11, 2001. See, e. g., Brief for Petitioners in Sale v. Haitian Centers Council, Inc., O. T. 1992, No. 92-344, p. 31 (arguing that Guantanamo is territory “outside the United States”). And in other contexts the Court has held that questions of sovereignty are for the political branches to decide. See Vermilya-Brown Co. v. Connell, 335 U. S. 377, 380 (1948) (“[Determination of sovereignty over an area is for the legislative and executive departments”); see also Jones v. United States, 137 U. S. 202 (1890); Williams v. Suffolk Ins. Co., 13 Pet. 415,420 (1839). Even if this were a treaty interpretation case that did not involve a political question, the President’s construction of the lease agreement would be entitled to great respect. See Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176, 184-185 (1982). We therefore do not question the Government’s position that Cuba, not the United States, maintains sovereignty, in the legal and technical sense of the term, over Guantanamo Bay. But this does not end the analysis. Our cases do not hold it is improper for us to inquire into the objective degree of control the Nation asserts over foreign territory. As commentators have noted, “ ‘[sovereignty’ is a term used in many senses and is much abused.” See 1 Restatement (Third) of Foreign Relations Law of the United States § 206, Comment b," }, { "docid": "11419510", "title": "", "text": "of the Hague Abduction Convention, the object and purpose of the Convention, and the subsequent practice of the parties to the Convention. Text, object and purpose, and subsequent practice are .all set forth as the primary means of treaty interpretation in the Vienna Convention on the Law of Treaties art. 31, May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 (“VCLT”). Our sister circuits have applied the VCLT as an articulation of the customary international law of treaty interpretation, even though the United States is not a party to the treaty itself. See Mora v. New York, 524 F.3d 183, 196 n.19 (2d Cir. 2008); Aquamar, S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1296 n.40 (11th Cir. 1999); Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 638 n.9 (5th Cir. 1994). Furthermore, the Supreme Court has relied on similar tools when interpreting other provisions of the Hague Abduction Convention, which is incorporated into U.S. law under ICARA. 22 U.S.C. § 9003(d) (2012). For example, in Lozano v. Montoya Alvarez, the Court considered the text of the relevant provision of the Convention, the contracting parties’ “intent,” and how the courts of other contracting parties had applied the relevant provision. — U.S. —, 134 S.Ct. 1224, 1229, 1232-33, 188 L.Ed.2d 200 (2014). Similarly, in Abbott v. Abbott, the Court considered the text of the Convention, its “objects and purposes,” and “the views of other contracting states” in order to interpret another provision of the Convention. 560 U.S. 1, 10, 16, 20, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010). The text of Article 13(b) supports the interpretation that an “intolerable situation” can encompass situations where one parent seeks to return a child to a country where courts are unable to adjudicate custody. The customary rules of treaty interpretation begin with, the “ordinary meaning to be given to the terms of the treaty.” VCLT art. 31. Similarly, under U.S. domestic law, “[t]he interpretation of a treaty, like the interpretation of a statute, begins with its text.” Abbott, 560 U.S. at 10, 130 S.Ct. 1983 (quoting Medellín v. Texas," }, { "docid": "23207119", "title": "", "text": "Lease, no laws of the Territory which would derogate from or prejudice any of the rights conferred on the United States by the Lease or by this Agreement shall be applicable within the Leased Area, save with the concurrence of the United States.” P. 1570. There are also articles arranging for postal facilities and tax exemptions. 1 Malloy, Treaties, Conventions, International Acts, Protocols and Agreements (S. Doc. No. 357, 61st Cong., 2d Sess.) 359: “While on the one hand the United States recognizes the continuance of the rdtimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas with the right to acquire (under conditions to be hereafter agreed upon by the two Governments) for the public purposes of the United States any land or other property therein by purchase or by exercise of eminent domain with full compensation to the owners thereof.” Id., 361. See Joint Resolution No. 24, April 20, 1898, on the recognition of the independence of Cuba, 30 Stat. 738; the Act of March 2, 1901, in fulfillment thereof, 31 Stat. 898, Art. VII; Treaty with Cuba proclaimed June 9, 1934, 48 Stat. 1682, 1683, Art. III. Isthmian Canal Convention, 33 Stat. 2234: “The United States of America and the Republic of Panama being desirous to insure the construction of a ship canal across the Isthmus of Panama to connect the Atlantic and Pacific oceans, and the Congress of the United States of America having passed an act approved June 28, 1902, in furtherance of that object, by which the President of the United States is authorized to acquire within a reasonable time the control of the necessary territory of the Republic of Colombia, and the sovereignty of such territory being actually vested in the Republic of Panama, the high contracting parties have resolved for that purpose to" }, { "docid": "22740251", "title": "", "text": "is,” id. at 881 (emphasis added) (internal quotation marks and citation omitted). b. Treaty-Based Jurisdiction: The Hague and Montreal Conventions Treaty law also may provide a basis for a State’s action independent of the principles of customary international law. A treaty creates obligations in States parties to it that may differ from those of customary international law, and it generally is immaterial whether customary international law points in the same or in a different direction than the treaty obligation. ■ See, e.g., The Tunis and Morocco Nationality Decrees Case, (Great Britain v. France) 1923 P.C.I.J. (ser. B) No. 4, at 24 (Feb. 7) (Permanent Court of International Justice, predecessor of the International Court of Justice (“ICJ”), recognizing that a country’s treaty obligations could supersede the general norms of customary international law for the purpose of determining which questions of nationality fall within the domaine reservé of a State); see also Clive Parry, The Sources and Evidences of International Law 33 (1965) (“[I]f two or more States have unequivocally agreed to something by treaty, in relation to the matter in hand nothing other than the treaty has much relevance.”). Norms of customary international law can vitiate a treaty’s effect only in the rare instance where the treaty or a provision thereof violates one of the few so-called “peremptory norms” of international law, or “jus cogens.\" See, e.g., United States v. Matta-Ballesteros, 71 F.3d 754, 764 n. 5 (9th Cir.1995) (stating, in dicta, that “\\j\\us cogens norms, which are nonderogable and peremptory, enjoy the highest status within customary international law, are binding on all nations, and can not [sic] be preempted by treaty”); Comm. of United States Citizens Living in Nicaragua, 859 F.2d at 940 (stating in dicta that “[a] treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law” (internal quotation marks and citations omitted)); see also Vienna Convention on the Law of Treaties, May 23, 1969, art. 53, 1155 U.N.T.S. 332, 344, S. Exec. Doc. L, 92-1 (“Vienna Convention”) (stating that “a treaty is void if it conflicts with a" }, { "docid": "3708298", "title": "", "text": "199 Misc. 191, 99 N.Y.S.2d 245 (1950) (holding that court has in rem jurisdiction over action to recover possession of real property held by a diplomat) (pre-Convention opinion). A treaty is to be interpreted “in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” Vienna Convention on the Law of Treaties, art. 31(1), May 23, 1969, 1155 U.N.T.S. 331 (entered into force January 27, 1980), reprinted in 8 I.L.M. 679 (1969). In this case, the term “real action” has an ordinary legal meaning that does not include breach-of-con-traet actions. See Black’s Law Dictionary (6th ed. 1991) (A real action, “[a]t common law, [was] one brought for the specific recovery of lands, tenements, or heredita-ments— Among [civil law countries], real actions, otherwise called ‘vindications,’ were those in which a man demanded something that was his own.”). There is no evidence that parties to the Convention intended to attribute any special meaning to the term apart from its historical definition. Denza at 161. By contrast, plaintiffs position rests on reading “real action” to mean “action relating to real property,” an interpretation so broad as to encompass not only suits involving rental leases, but any dispute — a claim concerning construction and repair work, an insurance coverage dispute, a personal injury action — somehow related to a piece of real property. Such an expansive reading of “real action” is inconsistent with Article 31 as a whole, which provides diplomats with general immunity from civil jurisdiction, subject to only three exceptions. The purpose of the Convention as stated in the preamble — “to ensure the efficient performance of the functions of diplomatic missions” — confirms that the exceptions to diplomatic immunity should be read narrowly. In sum, plaintiffs suit for breach of a real estate rental contract does' not constitute a “real action relating to private immovable property;” thus, Article 31(l)(a) of the Convention provides no basis for an exercise of this Court’s jurisdiction. III. Plaintiff also asserts that his suit falls within another exception to the general" }, { "docid": "13944396", "title": "", "text": "(entered into force Jan. 27, 1980) (“Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.”); see also J. Mervyn Jones, The Retroactive Effect of the Ratification of Treaties, 29 Am. J. Int’l L. 51 (1935). The Vienna Convention on the Law of Treaties, albeit not ratified by the United States to date, is regarded as largely declaratory of existing law and has been recognized as such by the United States Department of State. Lori FisleR DamROSoh, Louis Henicin, RichaRd Crawford Pugh, Osoar Schachter & Hans Smit, International Law Cases and Materials 452-54 (4th ed.2001); see also David J. Bederman et al„ International Law: A Handbook; for Judges 18 (Am. Soc’y of Int’l Law 2003) (“[E]ven though the United States is not a party [to the Vienna Convention on the Law of Treaties], it regards almost all of the [Convention]^ provisions as binding customary international law.”). As Professor Anderson opined: International law as a general proposition does not permit retroactive application. Akehurst’s treatise refers to the “general principle that laws should not be applied retroactively.” Peter Ma-lanczuk, Akehurst’s Modem Introduction to International Law 155 (7th rev. ed.1997). Two specific treaty examples ... demonstrate the proposition. Article 28 of the Vienna Convention on the Law of Treaties, titled the “non-retroac-tivity of treaties,” provides that unless a special intention is established, a treaty’s provisions “do not bind a party in relation to any act or fact which took place ... before the date of the entry into force of the treaty with respect to that party.” 1155 U.N.T.S. 331 (entry into force 27 January 1980). The Rome Statute of the International Criminal Court ... denies retroactive application; Art. 22(1) provides that a person “shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the" }, { "docid": "22648862", "title": "", "text": "into the record) treatment of deserters in Eritrea has only worsened. The 2002 Report (available at <http://www.state.gOv/g/drl/rls/hrrpt /2002/18202pf.htm>) states, for example, that the government has authorized the use of deadly force against anyone resisting or attempting to flee during searches for deserters and draft evaders. . Nuru's treatment is also substantiated by Amnesty International’s most recent annual report on Eritrea (which is also not a part of the record). The Report states that \"[florture is used as a standard form of military punishment. Prisoners are commonly beaten but the special and principle [sic] torture method is 'tying.' ... The most commonly described torture method is tying with [a] rope, and the most common form is nicknamed 'the helicopter.' \" Amnesty International, Eritrea: ‘You have no right to ask’ — Government resists scrutiny on human rights, May 2004, available at < http ://web. amnesty. orgdibrary/prinR ENGAFR640032004>. The report concludes that national service conscripts, members of the armed forces deserting the army, and critics of the government are among the categories of people who are most at risk for arbitrary detention, torture and ill-treatment, or possible extra-judicial execution. Id. . Even aside from the implementing regulations, it is well-accepted in international law on treaty interpretation that a party-state may not take actions that defeat the object and purpose of the treaty or convention. See Vienna Conv. on the L. of Treaties, May 23, 1969, art. 31(1), 1155 U.N.T.S. 331 (1969) (\"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.''). Thus, the portion of the federal regulations that limits the exclusion of lawfully imposed sanctions to those that are consistent with the object and purpose of the Convention is simply a reaffirmation of the rule that must in any event be applied under controlling international law. . Controversy has raged, largely in the academic world, over the \"ticking bomb\" question. Compare Alan M. Dershowitz, Why Terrorism Worlds: Understanding the Threat, Responding to the Challenge 142-49 (2002) (arguing that" }, { "docid": "14321013", "title": "", "text": "Petitioners argue that the detainees are now within the territorial jurisdiction of the United States and thus are entitled to a writ of habeas corpus. But there is a difference between territorial jurisdiction and sovereignty, and it is the latter concept that is key. See United States v. Spelar, 338 U.S. 217, 70 S.Ct. 10, 11, 94 L.Ed. 3 (1949), in which the Supreme Court observed, “We know of no more accurate phrase in common English usage than ‘foreign country’ to denote territory subject to the sovereignty of another nation.” The Court finds that Guantanamo Bay is not within the sovereign territory of the United States and therefore rejects petitioners’ argument. The legal status of Guantanamo Bay is governed by a lease agreement entered into by the United States and Cuba in 1903 and extended by those countries in 1934. See Lease to the United States of Lands in Cuba for Coaling and Naval Stations, Feb. 16-23, 1903, U.S.-Cuba, T.S. No. 418 (“Lease Agreement”); Treaty Between the United States of America and Cuba Defining Their Relations, May 29, 1934, art. Ill, 48 Stat. 1682, 1683. The 1903 agreement provides that the United States shall lease Guantanamo Bay from the Republic of Cuba for use as a coaling or naval station. Lease Agreement, art. I. Article III of the 1934 Treaty provides that the 1903 lease shall “continue in effect” until the parties agree to modify or abrogate it. As to the legal status of Guantanamo Bay so long as it is leased to the U.S., the 1903 agreement states: While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas. Lease Agreement, art. III. It is telling that in their brief petitioners do not even mention the first clause of" }, { "docid": "8606251", "title": "", "text": "to arbitration, and the aggrieved party initiating the dispute disregards the requirement, a fundamentally different question of arbitrability arises than that of the ignored informal resolution steps in John Wiley. In keeping with the foundational principles expressed above, see, e.g., Stolh-Nielsen, 130 S.Ct. at 1774-75; Howsam, 537 U.S. at 83,123 S.Ct. 588, a John Wiley assumption that the arbitrator is to determine the question of arbitrability cannot sensibly apply here. Accordingly, “[b]ecause we conclude that there can be only one possible outcome on the [arbitrability question] before us,” Stolt-Nielsen, 130 S.Ct. at 1770, namely, that BG Group was required to commence a lawsuit in Argentina’s courts and wait eighteen months before filing for arbitration pursuant to Article 8(3) if the dispute remained, we reverse the orders denying the motion to vacate and granting the cross-motion to confirm the Final Award, and we vacate the Final Award. . Article 32 of the Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 (\"Vienna Convention”), provides that in interpreting a treaty: Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.” Article 31 sets forth the \"General rule of interpretation,” stating in paragraph 1 that \"[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” . Article l(a)(ii) of the Treaty defines an \"investment” to include \"shares in and stock and debentures of a company and any other form of participation in a company, established in the territory of either of the Contracting Parties.” . Article 2(2) of the Treaty provides that \"[¡Investments of investors of each Contracting Party shall at all times be accorded fair and equitable" } ]

[ { "docid": "16844603", "title": "", "text": "tour of duty. However, these findings ignore the factual dispute concerning the outcome of Ryan’s meeting with Dr. Floyd. Ryan alleg es that Dr. Floyd offered her the position of assistant nurse manager, not her former position. Viewing this evidence in favor of the non-moving party (as we must in reviewing a motion for summary judgment, Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir.1991)), summary judgment is inappropriate because the assistant nurse manager position is not of like status to that of nurse manager. The district court erred in resolving this factual dispute in favor of Rush. Rush argues that Ryan has waived her rights under the VRRA because: 1) she rejected the comparable position of nurse manager with temporarily reduced duties; 2) she negotiated for a staff nurse position; and 3) she resigned from her job at Rush to accept employment elsewhere. Rush also urges that Ryan has incurred no damages because she would have received the same salary and benefits had she accepted the proffered position of nurse manager. Lastly, Rush claims the proposed reduction in Ryan’s management responsibilities was motivated by good faith business reasons stemming from her poor job performance rather than her military service. We reject these contentions. The premise underlying Rush’s arguments — that Dr. Floyd offered Ryan the position of nurse manager — cannot be assumed at this stage of the litigation. Ryan maintains that Rush denied her reemployment in the nurse manager position, and she rejected Rush’s offer of the assistant nurse manager position. An employee does not waive her rights under the VRRA by refusing to accept an inferior position. Hanna v. American Motors Corp., 724 F.2d 1300, 1309 (7th Cir.), cert. denied, 467 U.S. 1241, 104 S.Ct. 3512, 82 L.Ed.2d 821 (1984). Likewise, Ryan’s rights are not defeated by her employment in nursing positions that are not comparable to her former position. “A waiver by a veteran of [her] statutory rights must ... be clearly and unequivocally indicated.” O’Mara v. Petersen Sand & Gravel Co., 498 F.2d 896, 897 (7th Cir.1974) (quotation omitted). The VRRA empowers the courts to" } ]

[ { "docid": "3932091", "title": "", "text": "the National Guard and was offered early retirement from the Guard in May 1994, the same time he first sought reemployment with the police department. The City denied his request for reemployment. In September 1994, Paisley took early retirement from the National Guard with the rank of colonel and filed this lawsuit against the City. The Relief Association, opposing Paisley’s lawsuit, intervened. The District Court granted summary judgment to the City and to the Relief Association, and denied Paisley’s motion for summary judgment. Paisley appeals and the City and the Relief Association cross-appeal. We review de novo, Shannon v. Ford Motor Co., 72 F.3d 678, 681 (8th Cir.1996), and now affirm. II. The facts of the case are not in dispute. For his only issue on appeal, Paisley argues that the District Court erred as a matter of law in determining that Paisley waived any reemployment rights he may have had under the Act when he resigned his position with the police department in 1985. We have held that reemployment rights under the Act may be waived if the employee does so “clearly and unequivocally.” Smith v. Missouri Pac. Transp. Co., 313 F.2d 676, 680 (8th Cir.1963). We think that Paisley has done so here. He requested three two-year leaves of absence from his employment as a patrolman, and the City granted them all. As Paisley acknowledged, “There was no requirement that I serve any time or continue in the National Guard. I could have left at any time.” Paisley Deposition at 19. Still, he sought a fourth extension, this time for three years, and the City said no. At that point, Paisley wrote a letter to the police department wherein he clearly stated, “I hereby tender my resignation from the Minneapolis Police Department.” Letter from Duane D. Paisley to Minneapolis Police Dep’t (Dec. 15, 1985). “Though I am disapointed [sic] to leave the department at this time, I am very appreciative of the support that I have been given and the opportunity I have had to accept several challenging assignments in the military.” Id. It is clear that Paisley" }, { "docid": "13457283", "title": "", "text": "This court has, in the past, recognized the duty of an employee, who returns from military service and is wrongfully denied employment by his previous employer, to mitigate damages. In Levine we interpreted section 8 of the Selective Training and Service Act of 1940, 50 U.S.C.App. § 308 (1946), the predecessor to 38 U.S.C. § 2021 et seq., and stated, “[u]nder the general rule of damages, where one is injured or damaged by the wrongful act of another, he is bound to exercise reasonable care and diligence in mitigating the resulting damage .... ” 178 F.2d at 444 (citing Van Doren v. Van Doren Laundry Service, 68 F.Supp. 938, 941 (D.C.N.J.1946)). See also O’Mara v. Petersen Sand & Gravel Co., 498 F.2d at 897-98; Helton v. Mercury Freight Lines, Inc., 444 F.2d 365, 368 (5th Cir.1971); Loeb v. Kivo, 169 F.2d 346, 350 (2nd Cir. 1948). More recently, in Peel v. Florida Department of Transportation, 500 F.Supp. 526 (N.D.Fla.1980), the United States District Court for the Northern District of Florida applied this “mitigation of damages” principle standard to the Vietnam Veterans’ Readjustment Act. See also Chaltry v. Ollie’s Idea, Inc., 546 F.Supp. 44, 52 (W.D.Mich.1982). We further note that in the area of employment discrimination, when employees seek lost wages for the period of discrimination, this court requires the employee to initially establish the amount of damages. The burden then shifts to the employer to prove, as an affirmative defense, that the employee failed to mitigate those damages. As we stated in Sprogis v. United Airlines, Inc., 517 F.2d 387 (7th Cir.1975) (“Spro-gis”), “once the plaintiff has proven [his] case and established what [he] contends to be [his] damages, the burden of going forward to mitigate the liability, or, to rebut the damage claim, rests with the defendant.” 517 F.2d at 392. In order to satisfy its burden of proof, the employer must show that: “(1) the plaintiff failed to exercise reasonable diligence to mitigate his damages, and (2) there was a reasonable likelihood that the plaintiff might have found comparable work by exercising reasonable diligence. ” (emphasis added). Syvock" }, { "docid": "8067376", "title": "", "text": "repeated requests for leave to complete a special training course were denied by the Township of Teaneck, he formed a sham corporation, named himself director, and, although still employed by the Teaneck police force, reapplied listing himself as self-employed. Id. at 407. When Hilliard’s ruse was later discovered, senior officers with the New Jersey Army National Guard offered him the choice of immediately returning to his employment with the Teaneck police or resigning his position and continuing on active duty. Id. Hilliard signed and sent a resignation letter. Id. & n. 2. When Hilliard subsequently presented a claim for reemployment, the district court, observing that the general rule under the VRRA “is that a resignation from civilian employment to enter military service does not deprive a veteran of reemployment rights,” nevertheless held that the “special circumstances present here require a contrary result.” Id. at 410. Sykes correctly argues that the “special circumstances” presented in Hilliard— fraud — are not present in this case. It is beyond dispute that a resignation from a civilian job, whether verbal or written, does not waive reemployment rights under the VRRA. See Green v. Oktibbeha County Hosp., 526 F.Supp. 49, 54 (N.D.Miss.1981); Bottger v. Doss Aeronautical Servs., Inc., 609 F.Supp. 583, (D.Ala.1985); see also Winders v. People Express Airlines, Inc., 595 F.Supp. 1512, 1518 (D.N.J.1984) (stating that where an employee communicates that he is enter ing active military duty even the word “resign” in a communication sent to the employer cannot waive reemployment rights). Without addressing the issue of whether a veteran has the ability to waive statutory reemployment rights prospectively by contract, we note only that Sykes’s “resignation letter,” prepared by C & G and ostensibly addressing seniority and contractual rights, did not even purport to do so. We see no reason to imply a waiver of Sykes’s statutory reemployment rights when there is no record evidence to support such a waiver. Conclusion For the foregoing reasons, we REVERSE the summary judgment entered by the district court, RENDER judgment for Sykes on the issue of entitlement to reemployment under the VRRA, and REMAND to" }, { "docid": "8007685", "title": "", "text": "was no durational limit imposed on a “leave of absence” from employment under VRRA’s § 2024(d). Therefore, King, who requested a three-year leave of absence from his employer, was entitled to reemployment rights upon his return to his civilian position under § 2024(d). The Court referred to VRRA as involving a “congressionally mandated leave of absence” from a civilian position. 502 U.S. at 220, 112 S.Ct. 570. In Paisley v. City of Minneapolis, 79 F.3d 722 (8th Cir.1996), the court determined that VRRA’s reemployment rights did not extend to an employee who served in the military for over fourteen consecutive years. 79 F.3d at 725. The court in Paisley distinguished King by noting that, while there was no durational requirement under § 2024(d), there still could be a waiver of reemployment rights. Id. The Paisley court found that the employee had waived his reemployment rights by expressly resigning from his civilian position before completing his military service. Id. Because he had abandoned his civilian career for a career in the military, id. at 725 n. 5, the employee had waived his VRRA reemployment rights. The court stated: “[T]here is a legally significant distinction between an intent to take a true leave of absence from civilian employment, the length of which is not subject to a reasonableness standard, and an intent to make the military a career, which suggests a choice to forsake one’s civilian job and any reemployment rights attached thereto.” 79 F.3d at 725 n. 5. II. On appeal, Mr. Woodman recognizes that, in order to be eligible for reemployment rights under USERRA, a person must be absent from his civilian job due to military service for a period of less than five years. 38 U.S.C. § 4312(a)(2) (Supp. II 1996). He argues, however, that, because the provisions of USERRA took effect December 12, 1994, his reemployment rights did not expire until December 12, 1999. Therefore, his reemployment rights must be defined under VRRA up to and including December 12, 1994. VRRA, Mr. Woodman asserts, “places no limit on the length of a tour after which [an individual accepting" }, { "docid": "8067377", "title": "", "text": "verbal or written, does not waive reemployment rights under the VRRA. See Green v. Oktibbeha County Hosp., 526 F.Supp. 49, 54 (N.D.Miss.1981); Bottger v. Doss Aeronautical Servs., Inc., 609 F.Supp. 583, (D.Ala.1985); see also Winders v. People Express Airlines, Inc., 595 F.Supp. 1512, 1518 (D.N.J.1984) (stating that where an employee communicates that he is enter ing active military duty even the word “resign” in a communication sent to the employer cannot waive reemployment rights). Without addressing the issue of whether a veteran has the ability to waive statutory reemployment rights prospectively by contract, we note only that Sykes’s “resignation letter,” prepared by C & G and ostensibly addressing seniority and contractual rights, did not even purport to do so. We see no reason to imply a waiver of Sykes’s statutory reemployment rights when there is no record evidence to support such a waiver. Conclusion For the foregoing reasons, we REVERSE the summary judgment entered by the district court, RENDER judgment for Sykes on the issue of entitlement to reemployment under the VRRA, and REMAND to the district court for further proceedings consistent with this opinion. . 38 U.S.C. § 2024(a) was transferred and renumbered as 38 U.S.C. § 4304 pursuant to the Veterans’ Benefit Act of 1992, Pub.L. No. 102-568 § 506(a), 106 Slat. 4340, 4341. The Uniformed Services Employment and Reemployment Rights Act of 1994, Pub.L. No. 103-353 § 8(a)(1), 108 Stat. 3149, amended 38 U.S.C. § 4304 extensively, but provided that the amendments would be effective \"with respect to reem-ployments initiated on or after” October 13, 1994. The former section 4304 (which, in turn, was the former section 2024) continues to apply to reemployment actions, like that of Sykes, initiated prior to October 13, 1994. . A recent GAO report states that the “first enlistment term of duty ... typically is 4 years.” Government Accounting Office, Pub. No. B-257481, Military Recruiting: More Innovative Approaches Needed (Dec. 22, 1994). By statute, however, the various armed services may accept \"original enlistments ... for a period of at least two but not more than six years.” 10 U.S.C. § 505(c) (West" }, { "docid": "3932090", "title": "", "text": "days of active duty for training. In 1973, Paisley began work as a patrolman with the City’s police department. Late in 1979, he requested, and was granted, a two-year leave of absence from his employment with the City to go on active duty with the National Guard. In 1981, Paisley requested a two-year extension of his leave, citing as authority 38 U.S.C. § 2024(b)(1), which permitted reemployment following a leave of absence for active duty service other than for training, provided that the length of service was no longer than four years (with certain exceptions not relevant here). The City granted the request for extension, and then granted another two-year extension in 1983. In 1985 Paisley asked the City for a three-year extension of his leave and also asked to be permitted to take a police department promotional exam, notwithstanding that he was still on leave from the department. These requests were denied, and by letter dated December 15, 1985, Paisley resigned from the police department. After his resignation, Paisley remained on active duty with the National Guard and was offered early retirement from the Guard in May 1994, the same time he first sought reemployment with the police department. The City denied his request for reemployment. In September 1994, Paisley took early retirement from the National Guard with the rank of colonel and filed this lawsuit against the City. The Relief Association, opposing Paisley’s lawsuit, intervened. The District Court granted summary judgment to the City and to the Relief Association, and denied Paisley’s motion for summary judgment. Paisley appeals and the City and the Relief Association cross-appeal. We review de novo, Shannon v. Ford Motor Co., 72 F.3d 678, 681 (8th Cir.1996), and now affirm. II. The facts of the case are not in dispute. For his only issue on appeal, Paisley argues that the District Court erred as a matter of law in determining that Paisley waived any reemployment rights he may have had under the Act when he resigned his position with the police department in 1985. We have held that reemployment rights under the Act may" }, { "docid": "8007684", "title": "", "text": "4301 have served as a basis for the VRR law since its beginning in 1940.” S.Rep. No. 103-158, 103rd Cong. 1st. Sess., 40 (1993); see also H.R.Rep. No. 103-65 at 18, 1994 U.S.C.C.A.N. at 2460 (“employment and reemployment rights are intended to protect non-career servicepersons” regardless of active or non-active duty). We conclude that Congress intended both VRRA and USERRA to apply only with respect to non-career military service. Decisions under VRRA are not inconsistent with this conclusion. In King v. St. Vincent’s Hospital, 502 U.S. 215, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991), the employee sought a three-year leave of absence from his employment to take a full-time appointment with the National Guard. The employer denied the request and sought a declaratory judgment that the request was unreasonable. The Supreme Court held that it would not read a “reasonableness” limit, on the length of a 38 U.S.C. § 2024(d) leave after which the employee would be entitled to reemployment. 502 U.S. at 222, 112 S.Ct. 570. In other words, the Court determined that there was no durational limit imposed on a “leave of absence” from employment under VRRA’s § 2024(d). Therefore, King, who requested a three-year leave of absence from his employer, was entitled to reemployment rights upon his return to his civilian position under § 2024(d). The Court referred to VRRA as involving a “congressionally mandated leave of absence” from a civilian position. 502 U.S. at 220, 112 S.Ct. 570. In Paisley v. City of Minneapolis, 79 F.3d 722 (8th Cir.1996), the court determined that VRRA’s reemployment rights did not extend to an employee who served in the military for over fourteen consecutive years. 79 F.3d at 725. The court in Paisley distinguished King by noting that, while there was no durational requirement under § 2024(d), there still could be a waiver of reemployment rights. Id. The Paisley court found that the employee had waived his reemployment rights by expressly resigning from his civilian position before completing his military service. Id. Because he had abandoned his civilian career for a career in the military, id. at 725 n." }, { "docid": "18160459", "title": "", "text": "he specify the scalemaster position in his application. Nor did O’Mara waive his right by accepting the laborer’s job. “A waiver by a veteran of his statutory rights must be clearly and unequivocally indicated.” Loeb v. Kivo, 169 F.2d 346, 349 (2nd Cir. 1948). The record here contains neither a clear nor unequivocal indication of waiver. The decisions in Hastings v. Reynolds, 165 F.2d 484 (7th Cir. 1947), and Walsh v. Chicago Bridge & Iron Co., 90 F.Supp. 322 (N.D.Ill. 1949), relied on by Petersen, are inapposite. In Hastings the veteran voluntarily entered into an employment contract with his employer’s successor which was subsequently terminated. In Walsh the veteran accepted a different position than the one he left, and remained in it for three years without complaint. Furthermore, O’Mara did not improperly fail to mitigate damages by quitting in January, as Petersen argues. He was not required to continue as a laborer, a position inferior to the position as scale-master. Fessler v. Reading, 138 F.Supp. 202 (E.D.Pa.1955); Loeb v. Kivo, supra. There is no claim that O’Mara was not “still qualified.” Even if he received “like pay” as laborer, that is not conclusive. He was entitled also, under § 459(b) (B)(i), to like “status.” And the fact that his father-in-law was acting scalemaster during O’Mara’s service as laborer cannot support a waiver claim, in the light of O’Mara’s repeated requests for the position, and Petersen’s rejection of those requests and breach of his written agreement. We find no merit in Petersen’s contention that the district court’s injunction compelling O’Mara’s reinstatement for ten months is excessive. Section 459(c)(1) specifically provides that the veteran “shall not be discharged from such [pre-service] position without cause within one year after such restoration.” The one year period runs from May 15, 1973, the date of the order, not from February 29, 1972, the date of O’Mara’s military discharge, or March 8, 1972, the date O’Mara personally applied for reinstatement. To hold otherwise would penalize O’Mara for Petersen’s unlawful conduct. The facts herein are not akin to the “extraordinary” circumstances in Travis v. Schwartz Manufacturing Co.," }, { "docid": "1246944", "title": "", "text": "just as the non-competitive contract provision never came into play in Ballard, supra, because his employment was not voluntarily terminated. Defendants did not offer Peel reinstatement subsequent to his qualification for office and are unable to establish that he preferred candidacy to reemployment; only Peel’s clear and unequivocal rejection of a bona fide offer of reemployment could establish a waiver of his rights under the Veteran’s Reemployment Rights Act. See O’Mara v. Petersen Sand & Gravel Co., Inc., 498 F.2d 896, 897 (7th Cir. 1974). Finally, the court finds no merit in defendants’ argument that Peel is not entitled to interest on the monetary benefits awarded herein. Florida law does not govern an award of interest; Peel’s cause of action arises under 38 U.S.C. § 2021 et seq. and is governed by federal law. Interest is a proper ingredient of the instant “make whole” remedy and should be granted. Prejudgment interest is viewed as effectuating the purposes of the Act, particularly that of encouraging reemployment of veterans or reservists at the earliest opportunity. See Helton v. Mercury Freight Lines, Inc., 444 F.2d 365, 369 (5th Cir. 1971); Accardi v. Pennsylvania Railroad Co., 369 F.2d 805 (2nd Cir. 1966) on remand from 383 U.S. 225 (1966); Armstrong v. Baker, 394 F.Supp. 1380, 1388 (N.D.W.Va., 1975); Sipes v. City of Trenton, 79 CCH Labor Cases ¶ 11,520 (D.N.J., 1976); Schaller v. Board of Ed. of Elmwood Local Sch., 449 F.Supp. 30, 33 (N.D.Ohio, 1978); Thompson v. Shutterbug Ed’s of Caldwell, Inc., 88 CCH Labor Cases ¶ 13,260 (D.N.J., 1977); Manzo v. Pacific Telephone, 76 CCH Labor Cases ¶ 10,768 (C.D.Calif., 1975); Niemann v. Alpine-Brook Triangle Corp., 69 CCH Labor Cases ¶ 12,940 (S.D.N.Y., 1972). This court has determined that 7% interest compounded annually is a fair and reasonable rate of interest to be applied in this particular case. In accordance with all of the above, it is ORDERED AND ADJUDGED: 1. Defendants’ motion for summary judgment (Document 43) is DENIED. 2. Plaintiff’s motion for summary judgment (Document 42) is GRANTED. 3. Plaintiff is awarded back wages in the amount of $13,285.16 and" }, { "docid": "1246943", "title": "", "text": "mitigate damages is an affirmative defense, the burden of which is not met by an employer’s proof that the employee failed to find interim employment. N.L.R.B. v. Pilot Freight Carriers, Inc., 604 F.2d 375 (5th Cir. 1979). “The universal rule is that an employee’s damages will be mitigated only if the employer proves that similar employment opportunity was available.” Ballard v. El Dorado Tire Co., 512 F.2d 901, 905 (5th Cir. 1975). The defendants have introduced absolutely no proof that jobs were available to plaintiff for which he failed to apply. Furthermore, Peel’s self-employment does not constitute a failure to mitigate. Nabors v. N.L.R.B., 323 F.2d 686 (5th Cir. 1963) and Heinrich Motors, Inc. v. N.L.R.B., 403 F.2d 145 (2nd Cir. 1968). Defendants’ argument that Peel, by qualifying to run for public office on July 6, 1976, waived any right to reinstatement as of that date and lost wages after that date, is superficially engaging. Defendants ignore the fact that the employer’s prior unlawful discharge of Peel prevented Section 110.092(4)(a) from ever coming into play, just as the non-competitive contract provision never came into play in Ballard, supra, because his employment was not voluntarily terminated. Defendants did not offer Peel reinstatement subsequent to his qualification for office and are unable to establish that he preferred candidacy to reemployment; only Peel’s clear and unequivocal rejection of a bona fide offer of reemployment could establish a waiver of his rights under the Veteran’s Reemployment Rights Act. See O’Mara v. Petersen Sand & Gravel Co., Inc., 498 F.2d 896, 897 (7th Cir. 1974). Finally, the court finds no merit in defendants’ argument that Peel is not entitled to interest on the monetary benefits awarded herein. Florida law does not govern an award of interest; Peel’s cause of action arises under 38 U.S.C. § 2021 et seq. and is governed by federal law. Interest is a proper ingredient of the instant “make whole” remedy and should be granted. Prejudgment interest is viewed as effectuating the purposes of the Act, particularly that of encouraging reemployment of veterans or reservists at the earliest opportunity. See Helton" }, { "docid": "6449275", "title": "", "text": "military personnel. It seeks to accomplish this goal by guaranteeing veterans [and reservists and National Guardsmen] that the job they had before they entered the military will be available to them upon their return to civilian life” (Alabama Power Co. v. Davis, 431 U.S. 581, 584, 97 S.Ct. 2002, 2004, 52 L.Ed.2d 595 (1977)). Plaintiff’s right to reemployment arises under 38 U.S.C. § 2024(c) which provides protection to “[a]ny member of a Reserve component of the Armed Forces of the United States who is ordered to an initial period of active duty for training of not less than twelve consecutive weeks.” While § 2024(c) speaks only in terms of entitlement to “all reemployment rights and benefits provided . . . for persons inducted . . .,” it is the court’s considered opinion that a reservist returning from an initial period of active duty for training must also meet the conditions imposed upon inductees to be entitled to reemployment rights, such as, (a) satisfactorily completing military service, (b) leaving an “other than temporary” position, and (c) being still qualified to perform his preservice or escalator position. The employer should also be able to raise the limited exception to reemployment of changed circumstances making it impossible or unreasonable to reinstate the reservist. It is the court’s conclusion that plaintiff did not orally resign his employment with defendant in July, 1978. While Mr. Kelly may have mistakenly believed there was a resignation, his failure to ask for a written resignation, which failure was directly contrary to the admitted rules and practice of the hospital, was the direct cause of the ensuing confusion. Moreover, since, in essence, defendant is claiming that plaintiff waived his right to reemployment by allegedly resigning (cf. Fortenberry v. Owen Brothers Packing Co., 267 F.Supp. 605, 607 (S.D.Miss.1966) aff’d. 378 F.2d 373 (5 Cir. 1967) (claim of waiver by failing to give any notice of anticipated military induction)), that “waiver by a veteran [or reservist or National Guardsman] of his statutory rights must ... be clearly and unequivocally indicated’ ” (O’Mara v. Petersen Sand & Gravel Co., Inc., 498 F.2d" }, { "docid": "3932092", "title": "", "text": "be waived if the employee does so “clearly and unequivocally.” Smith v. Missouri Pac. Transp. Co., 313 F.2d 676, 680 (8th Cir.1963). We think that Paisley has done so here. He requested three two-year leaves of absence from his employment as a patrolman, and the City granted them all. As Paisley acknowledged, “There was no requirement that I serve any time or continue in the National Guard. I could have left at any time.” Paisley Deposition at 19. Still, he sought a fourth extension, this time for three years, and the City said no. At that point, Paisley wrote a letter to the police department wherein he clearly stated, “I hereby tender my resignation from the Minneapolis Police Department.” Letter from Duane D. Paisley to Minneapolis Police Dep’t (Dec. 15, 1985). “Though I am disapointed [sic] to leave the department at this time, I am very appreciative of the support that I have been given and the opportunity I have had to accept several challenging assignments in the military.” Id. It is clear that Paisley voluntarily extended his active duty with the National Guard and that he voluntarily resigned from the police department in 1985. See Smith, 313 F.2d at 681 (observing as a factor supporting waiver “that the commitments and requests signed by the Colonel were executed voluntarily”). Moreover, there is no suggestion that Paisley did not understand his legal rights under the Act. See id. Paisley nevertheless argues that he resigned reluctantly and that he did not intend to give up any statutory employment rights that he may have had. But Paisley’s waiver is not equivocal simply because the resignation was difficult for him, or even because the decision was precipitated by the police department’s 1984 refusal to extend his leave or to allow him to take the promotional exam. Given the choice, he elected to make his career with the military. His efforts to maintain his police officer qualifications during Ms leave of absence — but before Ms resignation — do not demonstrate that the waiver was unclear or eqmvocal. Further, after he resigned, Paisley sought and" }, { "docid": "5909671", "title": "", "text": "makes clear that Congress anticipated that the Act would cause inconveniences and possible decreases in productivity for employers but determined that employers could not respond to such effects by denying seniority to employee reservists “solely because of the military obligations,” Monroe, supra, 452 U.S. at 565, 101 S.Ct. at 2519, which is what happened here. Finally, with respect to other cases in this area, courts have found with sound reasoning that requests were reasonable (and therefore protected under the Act) which: 1) sought a four and a half month leave for non-obligatory training causing the employer to fire a new employee or create a superfluous position upon the reservist’s return, Anthony, supra; 2) sought a six-week leave for training sought by plaintiff on his own initiative, after having already taken approximately six weeks of military leave earlier in the year. See Green v. Spartan Stores, Inc., 95 CCH Labor Cases ¶ 13,847 at 22,470 (W.D.Mich. 1982). In the final analysis, while it would appear that plaintiff’s requested 26-day leave, coming on the heels of a two-week leave, at a busy time of year for such leaves, and for a longer than usual period of time may well have caused Doss some serious inconveniences, it nevertheless was a reasonable request as a matter of law and was protected by the Act. Doss’ refusal to grant said request was in violation of the Act. The Effect of Plaintiffs Resignation and Subsequent Extension on Active Duty It is well settled that a resignation prior to entering upon active duty in the military service does not preclude the right to re-employment under the Act, since the purpose of the resignation is directly related to entry in the Armed Forces. Duey v. City of Eufaula, supra. See also Trulson v. Trane Co., 738 F.2d 770 (7th Cir.1984); Winders v. People Express Airlines, Inc., 595 F.Supp. 1512, 1518 (D.N.J.1984); Micalone v. Long Island R. Co., 582 F.Supp. 973, 978 (S.D.N.Y.1983). In this case the factor of plaintiff’s resignation is of even less relevance, since he was denied the requested leave and faced the prospect of being" }, { "docid": "13457282", "title": "", "text": "to compensate an entitled employee. Id. at 445. Accord O’Mara v. Petersen Sand & Gravel Co., 498 F.2d 896, 898 (7th Cir.1974). In this instance, the district court awarded Hanna lost wages but reduced the award based upon its finding that Hanna failed to mitigate damages. The district court’s actions were within its discretionary power to award damages under 38 U.S.C. § 2022 (1976). See id. We next consider whether the district court abused its discretionary power by finding that Hanna failed to mitigate damages. B. FAILURE TO MITIGATE The appellant contends that AMC failed to meet its burden of proof on the affirmative defense of mitigation, and thus, the district court erred in finding that “to a significant extent, AMC has demonstrated that Mr. Hanna has failed to properly mitigate his damages.” To support this contention, the appellant notes that AMC, without calling any of its own witnesses at the trial for damages, simply introduced Hanna’s UW-Parkside student transcript and cross-examined Hanna’s witnesses in an attempt to prove that Hanna failed to mitigate damages. This court has, in the past, recognized the duty of an employee, who returns from military service and is wrongfully denied employment by his previous employer, to mitigate damages. In Levine we interpreted section 8 of the Selective Training and Service Act of 1940, 50 U.S.C.App. § 308 (1946), the predecessor to 38 U.S.C. § 2021 et seq., and stated, “[u]nder the general rule of damages, where one is injured or damaged by the wrongful act of another, he is bound to exercise reasonable care and diligence in mitigating the resulting damage .... ” 178 F.2d at 444 (citing Van Doren v. Van Doren Laundry Service, 68 F.Supp. 938, 941 (D.C.N.J.1946)). See also O’Mara v. Petersen Sand & Gravel Co., 498 F.2d at 897-98; Helton v. Mercury Freight Lines, Inc., 444 F.2d 365, 368 (5th Cir.1971); Loeb v. Kivo, 169 F.2d 346, 350 (2nd Cir. 1948). More recently, in Peel v. Florida Department of Transportation, 500 F.Supp. 526 (N.D.Fla.1980), the United States District Court for the Northern District of Florida applied this “mitigation of damages”" }, { "docid": "3932093", "title": "", "text": "voluntarily extended his active duty with the National Guard and that he voluntarily resigned from the police department in 1985. See Smith, 313 F.2d at 681 (observing as a factor supporting waiver “that the commitments and requests signed by the Colonel were executed voluntarily”). Moreover, there is no suggestion that Paisley did not understand his legal rights under the Act. See id. Paisley nevertheless argues that he resigned reluctantly and that he did not intend to give up any statutory employment rights that he may have had. But Paisley’s waiver is not equivocal simply because the resignation was difficult for him, or even because the decision was precipitated by the police department’s 1984 refusal to extend his leave or to allow him to take the promotional exam. Given the choice, he elected to make his career with the military. His efforts to maintain his police officer qualifications during Ms leave of absence — but before Ms resignation — do not demonstrate that the waiver was unclear or eqmvocal. Further, after he resigned, Paisley sought and received the pension benefits and refunds to wMch he was entitled as a separated police department employee, clearly indicating Ms understandmg that he had terminated his employment and moved on to another career. He stayed with the military until he retired in 1994 with more than fourteen years of continuous active duty service. Based on the foregoing facts, we conclude that Paisley “clearly and unequivocally” waived any statutory reemployment rights he may have had and opted for a military career rather than a career with the police department. Paisley argues that Smith is no longer good law in light of the Supreme Court’s decision in King v. St. Vincent’s Hospital, 502 U.S. 215, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991). In King, the employee sought a three-year leave of absence from Ms employment to take a full-time appointment with the National Guard. His employer derned the request and sought a declaratory judgment that the three-year request was unreasonable and that the employee therefore had no reemployment rights under the Act. The Supreme Court held that" }, { "docid": "5909672", "title": "", "text": "two-week leave, at a busy time of year for such leaves, and for a longer than usual period of time may well have caused Doss some serious inconveniences, it nevertheless was a reasonable request as a matter of law and was protected by the Act. Doss’ refusal to grant said request was in violation of the Act. The Effect of Plaintiffs Resignation and Subsequent Extension on Active Duty It is well settled that a resignation prior to entering upon active duty in the military service does not preclude the right to re-employment under the Act, since the purpose of the resignation is directly related to entry in the Armed Forces. Duey v. City of Eufaula, supra. See also Trulson v. Trane Co., 738 F.2d 770 (7th Cir.1984); Winders v. People Express Airlines, Inc., 595 F.Supp. 1512, 1518 (D.N.J.1984); Micalone v. Long Island R. Co., 582 F.Supp. 973, 978 (S.D.N.Y.1983). In this case the factor of plaintiff’s resignation is of even less relevance, since he was denied the requested leave and faced the prospect of being charged with unexcused absences (Bottger dep. 49-50, 52) which under the employee handbook could have led to his termination (Ex. G at p. 7). He resigned as a result of being faced with that prospect. Furthermore, its only relevance would be under the collective bargaining agreement or other company policy and clearly the Act prevails over either. See Hembree v. Georgia Power Co., 637 F.2d 423, 429 (5th Cir. Unit B 1981). Similarly, plaintiff’s voluntary extension on active duty is irrelevant, for the record would clearly indicate that but for the illegal refusal of plaintiff’s request he would not have resigned and but for his resignation he would not have extended his service on active duty. There is no need therefore for the Court to consider the reasonableness of the length of time of such extension. The Court notes, however, that the court in Anthony, supra, addressed the question of whether there is a 90-day limit on such a leave of absence under the Act and found that none exists, citing rather persuasive legislative history" }, { "docid": "6449276", "title": "", "text": "being still qualified to perform his preservice or escalator position. The employer should also be able to raise the limited exception to reemployment of changed circumstances making it impossible or unreasonable to reinstate the reservist. It is the court’s conclusion that plaintiff did not orally resign his employment with defendant in July, 1978. While Mr. Kelly may have mistakenly believed there was a resignation, his failure to ask for a written resignation, which failure was directly contrary to the admitted rules and practice of the hospital, was the direct cause of the ensuing confusion. Moreover, since, in essence, defendant is claiming that plaintiff waived his right to reemployment by allegedly resigning (cf. Fortenberry v. Owen Brothers Packing Co., 267 F.Supp. 605, 607 (S.D.Miss.1966) aff’d. 378 F.2d 373 (5 Cir. 1967) (claim of waiver by failing to give any notice of anticipated military induction)), that “waiver by a veteran [or reservist or National Guardsman] of his statutory rights must ... be clearly and unequivocally indicated’ ” (O’Mara v. Petersen Sand & Gravel Co., Inc., 498 F.2d 896, 897 (7 Cir. 1974); Peel v. Florida Dept. of Transp., 500 F.Supp. 526, 528 (N.D.Fla.1980)). Mr. Kelly never indicated with the required clarity precisely what plaintiff stated that could be construed as a waiver. And, as of September 8, 1978, plaintiff made it clear to Mr. Kelly that no resignation had ever taken place in July, 1978. Finally, plaintiff’s personnel card shows his resignation as September 22, 1978. Even if plaintiff’s actions in July, 1978, or September, 1978, could be viewed as a resignation, he still cannot be denied reemployment rights under the Act for it is established law under the Act that in determining whether a veteran, reservist or National Guardsman has reemployment rights, “[t]he test is whether or not he was required to leave his employment to report for [military duty] . . . . ” (Fortenberry v. Owen Brothers Packing Co., supra). “[T]he fact that he resigned to do so is of no consequence “Jennings v. Illinois Office of Education, 83 CCH Labor Cases ¶ 10,408 at page 17,628 (S.D.Ill.,1978) aff’d." }, { "docid": "3932098", "title": "", "text": "3149, 3175.) Although Paisley’s complaint was filed on September 1, 1994, it refers to sections of the Act as they were numbered before October 1992, and the District Court opinion followed suit. For the sake of continuity, we also will refer to the pertinent sections under the numbering scheme as it existed before it was changed in 1992. Also, to avoid confusion, we will forego our usual practice of citing United States Code dates parenthetically when citing sections of the Act as they were numbered before October 1992. . Under 38 U.S.C. § 2024(d), as relevant here, an employee who meets the service requirements of the subsection “shall upon request be granted a leave of absence by such person’s employer for the period required to perform active duty for training or inactive duty training in the Armed Forces of the United States,” with reemployment rights upon release. Paisley claims, and the District Court concluded (in a holding challenged here by the City and the Relief Association, see infra Part III), that Paisley satisfied the statutory requirements of § 2024(d) and properly seeks relief under that subsection of the Act. . With the enactment of the 1994 amendments to the Act, which inter alia limit cumulative leaves of absence for military service to five years in order for the employee to qualify for reemployment rights, 38 U.S.C. § 4312(a)(2) (1994), the holding of King v. St. Vincent’s Hospital, 502 U.S. 215, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991), would appear to have only limited, if any, remaining practical significance in cases arising under the Act. . We believe, however, that there is a legally significant distinction between an intent to take a true leave of absence from civilian employment, the length of which is not subject to a reasonableness standard, and an intent to make the military a career, which suggests a choice to forsake one’s civilian job and any reemployment rights attached thereto. As this Court in Smith v. Missouri Pacific Transportation Co., 313 F.2d 676, 682-83 (8th Cir.1963), said in summarizing its conclusion that the veteran had waived reemployment" }, { "docid": "18160458", "title": "", "text": "laborer. A month and a half later, after the Department of Labor again interceded, Petersen agreed in writing to reinstate O’Mara as scalemaster on September 1, 1972, when O’Mara’s father-in-lav/ was to leave the position. Petersen subsequently reneged on his promise and gave the position to his son. He told O’Mara that he would never regain his position as scalemaster. O’Mara quit the laborer’s job on January 25, 1973, found other employment in February, and subsequently filed the suit before us. The district court held a hearing and found that Petersen had wrongfully deprived O’Mara of reemployment as scalemaster in violation of the Act. The court ordered his reinstatement as scalemaster for a period of ten months, but denied his motion for monetary damages. The appeal and cross-appeal followed. A. The district court correctly rejected Petersen’s contention that O’Mara had wáived his right to reinstatement. Section 459(b) is unambiguous. By its terms, when O’Mara “ma[de] application for reemployment,” Petersen was required to “restor[e] [him] to such [pre-service] position . ” There is no requirement that he specify the scalemaster position in his application. Nor did O’Mara waive his right by accepting the laborer’s job. “A waiver by a veteran of his statutory rights must be clearly and unequivocally indicated.” Loeb v. Kivo, 169 F.2d 346, 349 (2nd Cir. 1948). The record here contains neither a clear nor unequivocal indication of waiver. The decisions in Hastings v. Reynolds, 165 F.2d 484 (7th Cir. 1947), and Walsh v. Chicago Bridge & Iron Co., 90 F.Supp. 322 (N.D.Ill. 1949), relied on by Petersen, are inapposite. In Hastings the veteran voluntarily entered into an employment contract with his employer’s successor which was subsequently terminated. In Walsh the veteran accepted a different position than the one he left, and remained in it for three years without complaint. Furthermore, O’Mara did not improperly fail to mitigate damages by quitting in January, as Petersen argues. He was not required to continue as a laborer, a position inferior to the position as scale-master. Fessler v. Reading, 138 F.Supp. 202 (E.D.Pa.1955); Loeb v. Kivo, supra. There is no claim" }, { "docid": "127916", "title": "", "text": "to return to his civilian position.” Id. at 1379. Three years after Woodman, we reaffirmed the core principle of Woodman in Kiszka v. Office of. Personnel Management, 372 F.3d 1301 (Fed.Cir.2004). Though we did not analyze an employee’s rights under USERRA in Kiszka, we did use that case to re-assert the idea that “resignation can result in the loss of reemployment rights.” Id. at 1306. Mr. Moravec .argues that the facts of this case are materially different from those in Woodman and, thus, compel a different result. He argues that Woodman, unlike him, was on active military duty long enough to qualify for full active duty military retirement benefits when he sought reemployment from his civilian employer. Secondly, he points out that, unlike Woodman who was denied reemployment, he was reemployed by his civilian employer. Third, he notes that he exercised his reemployment rights before the expiration of those rights (as determined by the five-year time limit established by USERRA). While all of these facts are undoubtedly true, the petitioner reads our holding in Woodman too narrowly. Our opinion in Woodman does not confine our holding to the facts presented in that case. Using legislative history, we noted in Woodman that Congress’s intent in enacting USERRA was to encourage non-career military service as opposed to career military service. Id. at 1377. We also noted that other courts had reduced the relevant inquiry regarding employment rights to whether or not the employee intended to “forsake one’s civilian job” in order to start a military career. Woodman, 258 F.3d at 1378 (citing Paisley v. City of Minneapolis, 79 F.3d 722, 725 n. 5 (8th Cir. 1996)). Ultimately, we decided that the key inquiry under both VRRA and USER-RA was whether or not Woodman intended to make a career in the military after he left his civilian job. Id. Thus, in this case, our inquiry reduces to whether Mr. Moravec intended to pursue a career of service in the AGR or whether his service can be more properly characterized as a temporary non-career hiatus in his civil service career. All of the Board’s" } ]

[ { "docid": "5119013", "title": "", "text": "Zimmerman and finding “debt” within meaning of FDCPA in part because defendant rendered services to plaintiff “without having to render payment contemporaneously”); See Roberts, 736 F.Supp. at 1527 (“Since plaintiffs check was negotiable upon execution, defendant did not grant plaintiff any right to purchase merchandise and defer payment for it ... There is no authority for plaintiffs argument that payment by cheek absent an agreement by the seller to hold the check for a period of time before presentment to the drawee, constitutes an extension of credit rather than a cash transaction”); Checkrite, slip op. at 2 (citing Zimmerman and finding “acceptance of a check in payment for consumer goods does not constitute the extension of credit as contemplated by the FDCPA because there is no agreed-upon deferral of payment [as of time check was tendered]”). Cederstrand v. Landberg, 933 F.Supp. 804, 806 (D.Mn.1996) (considering whether a dishonored cheek is a “debt” under the FDCPA and concluding that “[a] complaint under the FDCPA which fails to allege an offer or extension of credit fails to state a claim under the FDCPA”) (citing Zimmerman, 834 F.2d at 1168-69). It is true, however, as Plaintiff points out, that the federal courts are not unanimous on this question. See Keele v. Wexler, et al., 1995 WL 549048, at *3 (N.D.Ill. Sept. 12, 1995) (“This court agrees ... that dishonored cheeks are legal obligations to pay money arising out of a transaction when checks are the form of payment and, therefore, qualify as ‘debt’ under the [FDCPA]”); Narwick v. Wexler, et al., 901 F.Supp. 1275, 1281 (N.D.Ill.1995); In re Scrimpsher, 17 B.R. 999, 1010 (Bankr.N.D.N.Y.1982) (“I find as a matter of law that dishonored checks (1) are legal obligations to pay money arising out of a transaction when checks are the form of payment, and therefore (2) qualify as a ‘debt’ under the FDCPA”). Critically, however, those district courts that have found a dishonored check to be a “debt” under the FDCPA were not bound by, and did not rely upon, the definition of “debt” enunciated in Zimmerman, whereas those courts which have reached" } ]

[ { "docid": "7817183", "title": "", "text": "We shall first look at Bass. In that case, the Seventh Circuit, with Judge Bauer dissenting, held that a payment obligation arising from a dishonored cheek created a “debt” triggering the protections of the Act. In so doing, the Seventh Circuit, though agreeing with the result reached in Zimmerman, held that “an offer or extension of credit is hot required for a payment obligation to constitute a ‘debt’ under the Act.” Specifically, the Seventh Circuit stated that “to the extent that the Zimmerman court creates a requirement that only credit-based transactions constitute ‘debt’ under the FDCPA [Act], we must respectfully part ways.” (Judge Bauer, in his dissent, stated he could not in conscience join “[t]he notion that Congress ... had in mind the protection of those who give bad checks for goods or services----”) Charles, Brown and Duffy all followed Bass, as do we. Under the “plain meaning” test, it would seem to us that a “debt” is created where one obtain goods and gives a dishonored check in return therefor. Conclusion We reverse the judgment of the district court holding that a dishonored check, under the circumstances of the present case, does not constitute a “debt” within the purview of the Act. We decline to consider other matters urged here by way of defense which were not considered or ruled on by the district court. Case remanded for further proceedings consonant with the views herein expressed. . The copy of the complaint in Snow’s appendix indicates that it was signed by his counsel on May 19, 1997. From the chronology of other pleadings in the case, we assume, although we do not know for certain, this was in error and that the complaint was actually signed, and pre-sumedly filed, on May 19, 1996. . Within a month after Bass, the Seventh Circuit in Ryan v. Wexler, 113 F.3d 91 (7th Cir.1997) followed the teaching of Bass and held that the Act \"governs collection activities related to dishonored checks.” . We note that in Ditty v. CheckRite, Ltd. Inc,, 973 F.Supp. 1320 (D.Utah, August 11, 1997) a different judge in" }, { "docid": "22134782", "title": "", "text": "has indicated its desire for the courts to structure the confines of § 1692d. S.Rep. No. 95-832, 95th Cong., 1st Sess., reprinted in 1977 U.S.Code Cong. & Ad. News 1695, 1698 (courts will proscribe “other improper conduct which is not specifically addressed”). The above discussion and a review of the case law, see, e.g., Wright v. Credit Bureau of Georgia, Inc., 548 F.Supp. 591 (N.D.Ga.1982); Harvey v. United Adjusters, 509 F.Supp. 1218 (D.Ore.1981); In re Scrimpsher, 17 B.R. 999 (Bankr.N.D.N.Y.1982), lead us to the conclusion that, even when judged by the consumer protective standard we adopt today, § 1692d does not as a matter of law proscribe Credit Bureau’s conduct in this case. Thus, the district court’s grant of summary judgment in favor of Credit Bureau on this issue is affirmed. CONCLUSION For the foregoing reasons, we affirm in part, reverse in part, and remand to the district court for proceedings not inconsistent with this opinion. AFFIRMED in part, REVERSED in part, and REMANDED. . It is undisputed that Credit Bureau is a \"debt collector” within the meaning of the FDCPA, see 15 U.S.C.A. § 1692a(6), and that Credit Bureau’s activities are thus regulated by the FDCPA. It is also undisputed that the \"debt” which Credit Bureau attempted to collect from Jeter arose out of the type of consumer transaction which the FDCPA covers. See 15 U.S.C.A. § 1692a(5) (\"any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services, which are the subject of the transaction are primarily for personal, family, or household purposes____”). . Jeter maintains that discovery was improperly limited by the district court. See infra note 10. . In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. Id. at 1209. . The FTC regulations specifically invoke agency power to prohibit the type of alleged misrepresentation at issue in this case. See 16" }, { "docid": "22426357", "title": "", "text": "status either as debt collector or consumer. . In addition to a few unpublished decisions, Bass relies on the following cases which hold that a dishonored check constitutes a \"debt” under the FDCPA. Narwick v. Wexler, 901 F.Supp. 1275 (N.D.Ill.1995); Newman v. Checkrite California, Inc., 912 F.Supp. 1354 (E.D.Cal.1995); In re Scrimpsher, 17 B.R. 999 (Bankr.N.D.N.Y.1982). We note the existence of several other cases which assume the same. See, e.g., Edwards v. National Business Factors, Inc., 897 F.Supp. 455 (D.Nev.1995); Holmes v. Telecredit Serv. Corp., 736 F.Supp. 1289 (D.Del.1990); Taylor v. Checkrite, Ltd., 627 F.Supp. 415 (S.D.Ohio 1986); West v. Costen, 558 F.Supp. 564, 571 (W.D.Va.1983). We know of only two published decisions specifically holding that a dishonored check does not create a “debt” under the FDCPA, and both opinions rely on Zimmerman's \"holding” that a credit extension is required to create \"debt” covered by the Act. See Sarver v. Capital Recovery Assoc., Inc., 951 F.Supp. 550, 552 (E.D.Penn.1996); Cederstrand v. Landberg, 933 F.Supp. 804 (D.Minn.1996). As discussed infra, we disagree with Zimmerman on this issue. . In limited circumstances, state debtor protection laws will govern. The Act provides that the FTC may exempt by regulation certain debt collection practices of any State if that State's debt- or protection laws provide restrictions on collection practices substantially similar to (or more stringent than) those in the Act, and if the State adequately enforces those laws. See 15 U.S.C. sec. 1692o. . Thus we need not address the parties’ disagreement about whether a merchant who accepts a check is in effect making an extension of credit. . Contrary to the court’s statement, not all other subchapters of the CCPA regulate solely credit transactions. See discussion at part IV infra. . A second form of extrinsic evidence on which Bass urges our reliance is the interpretation of the term \"debt” proffered by the Federal Trade Commission in its Amicus brief. The Act specifically assigns public enforcement responsibility of the FDCPA to the FTC, which has the power to bring independent actions for violation of the Act as \"unfair or deceptive act[s] or practice[s]”" }, { "docid": "5119012", "title": "", "text": "the absence of any allegation of conditionality in connection with the negotiable instrument made at the time of tender, Plaintiffs check was not an extension of credit and, hence, not a “debt” within the meaning of the FDCPA. Perez v. Slutsky, 1994 WL 698519, at *2 (N.D.Ill.Dec. 12, 1994) (“In order to state a claim under the FDCPA, a plaintiff must allege that the debt giving rise to the cause of action is an offer or extension of credit covered by the FDCPA”) (citing Zimmerman, 834 F.2d at 1169). The pleading thus fails to state a claim under the FDCPA. The fact that the check was later dishonored does not affect this result. In finding that a dishonored check — which was intended to be payment when tendered — is not a “debt” under the FDCPA, this Court is in agreement with numerous sister district courts that have considered the question. Cf. Adams v. Law Offices of Stuckert & Yates and Stephen Needles, 926 F.Supp. 521, 526 (E.D.Pa.1996) (applying definition of debt as enunciated in Zimmerman and finding “debt” within meaning of FDCPA in part because defendant rendered services to plaintiff “without having to render payment contemporaneously”); See Roberts, 736 F.Supp. at 1527 (“Since plaintiffs check was negotiable upon execution, defendant did not grant plaintiff any right to purchase merchandise and defer payment for it ... There is no authority for plaintiffs argument that payment by cheek absent an agreement by the seller to hold the check for a period of time before presentment to the drawee, constitutes an extension of credit rather than a cash transaction”); Checkrite, slip op. at 2 (citing Zimmerman and finding “acceptance of a check in payment for consumer goods does not constitute the extension of credit as contemplated by the FDCPA because there is no agreed-upon deferral of payment [as of time check was tendered]”). Cederstrand v. Landberg, 933 F.Supp. 804, 806 (D.Mn.1996) (considering whether a dishonored cheek is a “debt” under the FDCPA and concluding that “[a] complaint under the FDCPA which fails to allege an offer or extension of credit fails to" }, { "docid": "22426358", "title": "", "text": "issue. . In limited circumstances, state debtor protection laws will govern. The Act provides that the FTC may exempt by regulation certain debt collection practices of any State if that State's debt- or protection laws provide restrictions on collection practices substantially similar to (or more stringent than) those in the Act, and if the State adequately enforces those laws. See 15 U.S.C. sec. 1692o. . Thus we need not address the parties’ disagreement about whether a merchant who accepts a check is in effect making an extension of credit. . Contrary to the court’s statement, not all other subchapters of the CCPA regulate solely credit transactions. See discussion at part IV infra. . A second form of extrinsic evidence on which Bass urges our reliance is the interpretation of the term \"debt” proffered by the Federal Trade Commission in its Amicus brief. The Act specifically assigns public enforcement responsibility of the FDCPA to the FTC, which has the power to bring independent actions for violation of the Act as \"unfair or deceptive act[s] or practice[s]” under Section 5 of the Federal Trade Commission Act. See 15 U.S.C. sec. 16921(a). The FTC argues in its brief that the plain language and legislative history support a broad reading of the term \"debt” to include dishonored checks. This interpretation is in accord with the FTC’s comprehensive narrative interpreting the FDCPA, issued in 1988, which includes as an example of \"debt\" dishonored checks tendered in payment for goods or services used primarily for personal, family, or household purposes. See Statements of General Policy or Interpretation, Staff Commentary on the Fair Debt Collection Practices Act, 53 Fed.Reg. 50,097, 50,102 (1988). Although resort to the FTC’s opinion is unnecessary in light of the Act’s unambiguous definition of “debt,” and although we recognize that the FTC’s interpretations of the Act are not binding on the courts, we acknowledge and give due weight to the FTC’s informed interpretation of the term \"debt.” Moreover, had Congress disagreed with the way the FTC was reading the Act in carrying out its assigned power of enforcement, it could easily have made" }, { "docid": "7636009", "title": "", "text": "49 F.3d at 561); Core-Vent, 11 F.3d at 1487-88 (citing Paccar Int'l, Inc. v. Commercial Bank of Kuwait, 757 F.2d 1058, 1065 (9th Cir.1985)). The defendants, the party with the burden of showing-that exercising jurisdiction is unreasonable, have failed to discuss these factors. Thus, the Court is unable to thoroughly discuss them. The Court can, however, assess the interest of the forum state. The state of Arizona maintains a strong interest in providing an effective means of redress for its residents. See Data Disc, 557 F.2d at 1288; Core-Vent, 11 F.3d at 1489. The Court finds that it can assert specific jurisdiction over defendants Fayazi and Merkwan because they chose to direct the letter to the forum state and this dispute arises directly from that letter. These two elements created a presumption that asserting jurisdiction is reasonable. Fayazi and Merkwan have not carried the burden of rebutting that presumption. III. Should the Motion for Leave to Amend be denied as futile because the individuals, Fayazi and Merk-wan, cannot be “debt collectors” under the FDCPA? First Credit further argues that Fayazi and Merkwan may not be considered “debt collectors” under the FDCPA. First Credit explains that the district courts are not all in agreement on the issue, citing two cases involving the same defendant in which the courts reached opposite conclusions. Ernst v. Jesse L. Riddle, P.C., 964 F.Supp. 213 (M.D.La.1997) (court refused to pierce the corporate veil to hold individuals liable); Pikes v. Riddle, 38 F.Supp.2d 639 (N.D.Ill.1998) (an individual personally involved in debt collection practices is within meaning of “debt collector”). While it is true that the courts are not in agreement, the decision of the district court in Louisiana appears to be an anomaly. See Pikes v. Riddle, 38 F.Supp.2d 639 (N.D.Ill.1998) (holding that an individual car be a debt collector under the FDCPA); Pope v. Vogel II, No. 97 C 1835, 1998 WL 111576, at *5 (N.D.Ill. Mar.5, 1998) (same); Ditty v. CheckRite, Ltd., Inc., 973 F.Supp. 1320 (D.Utah 1997) (same); Newman v. Checkrite California, Inc., 912 F.Supp. 1354 (E.D.Cal.1995) (same); West v. Costen, 558 F.Supp. 564" }, { "docid": "7636010", "title": "", "text": "Credit further argues that Fayazi and Merkwan may not be considered “debt collectors” under the FDCPA. First Credit explains that the district courts are not all in agreement on the issue, citing two cases involving the same defendant in which the courts reached opposite conclusions. Ernst v. Jesse L. Riddle, P.C., 964 F.Supp. 213 (M.D.La.1997) (court refused to pierce the corporate veil to hold individuals liable); Pikes v. Riddle, 38 F.Supp.2d 639 (N.D.Ill.1998) (an individual personally involved in debt collection practices is within meaning of “debt collector”). While it is true that the courts are not in agreement, the decision of the district court in Louisiana appears to be an anomaly. See Pikes v. Riddle, 38 F.Supp.2d 639 (N.D.Ill.1998) (holding that an individual car be a debt collector under the FDCPA); Pope v. Vogel II, No. 97 C 1835, 1998 WL 111576, at *5 (N.D.Ill. Mar.5, 1998) (same); Ditty v. CheckRite, Ltd., Inc., 973 F.Supp. 1320 (D.Utah 1997) (same); Newman v. Checkrite California, Inc., 912 F.Supp. 1354 (E.D.Cal.1995) (same); West v. Costen, 558 F.Supp. 564 (W.D.Va.1983) (same). The language of the FDCPA is clear. A “debt collector” is “any person who ... regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). First Credit argues that this cannot apply to Fayazi and Merk-wan because they were merely employees of First Credit acting in their capacities as employees. A court in the District of Arizona was presented with the issue in United States v. ACB Sales & Serv., Inc., 590 F.Supp. 561 (D.Ariz.1984). The district court found that a corporate director may be liable pursuant to the FDCPA only for violations in which he materially participated. Id. at 573 (citing Murphy Tugboat Co. v. Shipowners & Merchants Towboat Co., Ltd., 467 F.Supp. 841, 852 (N.D.Cal.1979) aff'd sub nom. Murphy Tugboat Co. v. Crowley, 658 F.2d 1256 (9th Cir.1981), cert. denied, 455 U.S. 1018, 102 S.Ct. 1713, 72 L.Ed.2d 135 (1982)). The district court in Murphy relied on the basic principles of tort and agency, namely that" }, { "docid": "22426356", "title": "", "text": "Absent an explicit showing that Congress intended a fraud exception to the Act, the wrong occasioned by debtor fraud is more appropriately redressed under the statutory and common law remedies already in place, not by a judicially-created exception that selectively gives a green light to the very abuses proscribed by the Act. VI. The district court is Affirmed. . The statute allows recovery of the face value of the check, actual and exemplary damages, and costs if the drafter knew, should have known, or recklessly disregarded that the check was drawn on a nonexistent account or an account with insufficient funds. Wis.Stat. sec. 943.245. . The parties subsequently stipulated to the award of costs, thus resolving the remaining issues in the case. The district court entered final judgment in favor of plaintiff on April 5, 1996. . The terms \"debt collector\" and \"consumer” are defined in the Act and also serve to limit the scope of the FDCPA. Both definitions are dependent on the definition of “debt.\" In this case, however, neither party challenges their status either as debt collector or consumer. . In addition to a few unpublished decisions, Bass relies on the following cases which hold that a dishonored check constitutes a \"debt” under the FDCPA. Narwick v. Wexler, 901 F.Supp. 1275 (N.D.Ill.1995); Newman v. Checkrite California, Inc., 912 F.Supp. 1354 (E.D.Cal.1995); In re Scrimpsher, 17 B.R. 999 (Bankr.N.D.N.Y.1982). We note the existence of several other cases which assume the same. See, e.g., Edwards v. National Business Factors, Inc., 897 F.Supp. 455 (D.Nev.1995); Holmes v. Telecredit Serv. Corp., 736 F.Supp. 1289 (D.Del.1990); Taylor v. Checkrite, Ltd., 627 F.Supp. 415 (S.D.Ohio 1986); West v. Costen, 558 F.Supp. 564, 571 (W.D.Va.1983). We know of only two published decisions specifically holding that a dishonored check does not create a “debt” under the FDCPA, and both opinions rely on Zimmerman's \"holding” that a credit extension is required to create \"debt” covered by the Act. See Sarver v. Capital Recovery Assoc., Inc., 951 F.Supp. 550, 552 (E.D.Penn.1996); Cederstrand v. Landberg, 933 F.Supp. 804 (D.Minn.1996). As discussed infra, we disagree with Zimmerman on this" }, { "docid": "10035461", "title": "", "text": "P.C., 372 F.Supp.2d 615, 618 (D.Utah 2005). For example, the Eastern District of California has concluded that [b]y being directly involved in the day-to-day operation of Lundgren & Associates, including training and managing employees, and reviewing or supervising the review of all accounts, Lundgren was both directly and indirectly involved in Lundgren & Associates’ collection of debts. Given the plain language of the FDCPA, defendant Lundgren is a debt collector within the meaning of the FDCPA and can be held liable for any acts in which he directly or indirectly attempted to collect debts in violation of the FDCPA. Newman v. Checkrite Cal., Inc., 912 F.Supp. 1354, 1372 (E.D.Cal.1995) (referring to 15 U.S.C. § 1692a(6)). In another case, the Eastern District of New York found personal liability in part because “each employee is himself a ‘debt collector’ within the statutory definition, namely each is a ‘person’ in a business, ‘the principal purpose of which is the collection of any debts or who regularly collects or attempts to collect ... debts owed or due ... another.’ ” Teng v. Metro. Retail Recovery Inc., 851 F.Supp. 61, 67 (E.D.N.Y. 1994) (quoting 15 U.S.C. § 1692a(6)). The district court in Arizona, subsequent to the ACB Sales & Service, Inc. case from that district relied on by Marge-lefsky, has held that personal liability may be found where individual corporate officers “materially participated in the activities of [a debt collection agency] alleged to be collection activities.” Brink v. First Credit Res., 57 F.Supp.2d 848, 862 (D.Ariz. 1999). In other words, contrary to Margelefsky’s argument that he cannot be personally liable because he did not participate in sending the specific letter to Kistner, he may be personally liable on the basis of his participation in the debt collection activities of the LLC more generally. Most similar to the instant action is the case of Ditty v. CheckRite, Ltd., 973 F.Supp. 1320 (D.Utah 1997), in which the district court premised a finding of personal liability on the part of the sole member of a law firm LLC on the grounds that as the firm’s sole attorney, developer" }, { "docid": "21428526", "title": "", "text": "been settled. Merely furnishing information about a particular debt does not draw DeLoney & Associates within the definition of a “consumer reporting agency” Id. at 348-49; Rush v. Macy’s New York Inc., 775 F.2d 1554, 1557 (11th Cir.1985); D’Angelo, 515 F.Supp. at 1253. Because the record at this stage does not permit the court to determine, as a matter of law, whether CheekRite was a “consumer reporting agency,” the court denies Check-Rite’s and plaintiffs’ motions as they pertain to plaintiffs’ FCRA claims. Because DeLoney & Associates was not a “consumer reporting agency” as defined by the FCRA, its motion for summary judgment is granted as to plaintiffs’ FCRA claims. D. CheckRite’s Vicarious Liability While the FDCPA itself is silent on the issue of vicarious liability, a debt collector may be held vicariously liable under the Act for the conduct of its attorney. Newman v. Checkrite California, Inc., 912 F.Supp. 1354, 1370 (E.D.Cal.1995) (citing Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507, 1516 (9th Cir.1994)); see also Martinez v. Albuquerque Collection Servs., 867 F.Supp. 1495, 1502 (D.N.M.1994); Kimber v. Federal Financial Corp., 668 F.Supp. 1480, 1486 (M.D.Ala. 1987); 17 Am.Jur.2d, Consumer Protection § 200 (1990). Plaintiffs advance two theories for finding CheekRite vicariously liable for the collection practices of DeLoney and his law firm: (1) that CheekRite is liable as a joint venturer of DeLoney and DeLoney & Associates, and (2) that CheekRite is liable as the principal of its agents DeLoney and De-Loney & Associates. 1. Joint Venture In Utah, a joint venture “is an agreement between two or more persons ordinarily but not necessarily limited to a single transaction for the purpose of making a profit.” Bassett v. Baker, 530 P.2d 1, 2 (Utah 1974). The joint venture relationship need not be created by a formal agreement and may be proved by the parties’ conduct. Rogers, 738 P.2d at 1032. The requirements for the relationship are not exactly defined, but certain elements are essential: The parties must combine their property, money, effects, skill, labor and knowledge. As a general rule, there must be a community of interest in" }, { "docid": "22164457", "title": "", "text": "services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to a judgment.” 15 U.S.C. § 1692a(5) (emphasis added). Quite simply, Hawthorne’s alleged obligation to Mae Adjustment does not arise out of a consumer transaction; it arises from a tort. In conducting herself in an allegedly negligent manner that precipitated an accident, Hawthorne engaged in no consumer transaction. She neither purchased nor used goods or services. Rather, Hawthorne finds herself indebted to Mac Adjustment because she allegedly failed to conduct herself with the reasonable care that society demands of all of us, and she cannot somehow transform this payment obligation arising out of an accident into a consumer transaction. Thus, we hold that the district court properly granted judgment on the pleadings for Mac Adjustment. Review of other cases concerning the FDCPA confirms our interpretation of the statutory definition of “debt” to exclude tort obligations such as the one at issue in this ease. In Zimmerman v. HBO Affiliate Group, 834 F.2d 1163 (3d Cir.1987), and Shorts v. Palmer, 155 F.R.D. 172 (S.D.Ohio 1994), for example, the courts concluded that obligations to pay money arising out of the alleged theft of property or services did not constitute “debts” under the FDCPA. Obviously, theft is neither consensual nor contractual; nor does it constitute a business dealing. Consequently, it fails to meet the definition of a “transaction” under the FDCPA. See also Mabe v. G.C. Servs. Ltd. Partnership, 32 F.3d 86 (4th Cir.1994) (an obligation to pay child support arising out of an administrative support order issued by Virginia’s Department of Social Services does not qualify as a “debt” under the FDCPA). On the other hand, several courts have concluded that bounced checks may well involve “debts” protected under the FDCPA. See, e.g., Bass, 111 F.3d 1322 (7th Cir.1997); Ernst v. Jesse L. Riddle, P.C., 964 F.Supp. 213 (M.D.La.1997); Narwick v. Wexler, 901 F.Supp. 1275 (N.D.Ill.1995); In re Scrimpsher, 17 B.R. 999 (Bankr.N.D.N.Y.1982). Unlike torts, however, bounced checks represent legal obligations to pay. In other words, they constitute" }, { "docid": "7328272", "title": "", "text": "FDCPA, a defendant must qualify as a “debt collector,” which § 1692a defines as “any person who uses any instrumentality of interstate commerce ... in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). The Staff Commentary on the FDCPA explains that this definition includes “[e]m-ployees of a debt collection business, including a corporation, partnership, or other entity whose business is the collection of debts owed another.” 53 Fed.Reg. 50102 (Dec. 13,1998). When an employee of a debt collection corporation is also a shareholder, officer, or director of that corporation, there is a split of authority about whether the corporate form insulates the shareholder, officer, or director from personal liability under the FDCPA. Specifically, the Sixth Circuit and most district courts that have addressed the issue have held that the corporate structure does not insulate shareholders, officers, or directors from personal liability under the FDCPA. Kistner v. Law Offices of Michael P. Margelefsky, L.L.C., 518 F.Sd 433, 437-38 (6th Cir. 2008); del Campo v. Kennedy, 491 F.Supp.2d 891, 903 (N.D.Cal.2006); Brumbelow v. Law Offices of Bennett & Deloney, P.C., 372 F.Supp.2d 615, 618-21 (D.Utah 2005); Albanese v. Portnoff Law Assocs., Ltd., 301 F.Supp.2d 389, 400 (E.D.Pa.2004); Musso v. Seiders, 194 F.R.D. 43, 46-47 (D.Conn.1999); Brink v. First Credit Res., 57 F.Supp.2d 848, 861-62 (D.Ariz.1999); Pikes v. Riddle, 38 F.Supp.2d 639, 640 (N.D.Ill.1998); Ditty v. CheckRite, Ltd., 973 F.Supp. 1320, 1337-38 (D.Utah 1997); Newman v. Checkrite Cal., Inc., 912 F.Supp. 1354, 1372 (E.D.Cal.1995); Teng v. Metro. Retail Recovery Inc., 851 F.Supp. 61, 67 (E.D.N.Y.1994). On the other hand, the Seventh Circuit has held that, regardless of an individual’s personal involvement with the corporation’s debt collecting activities, a shareholder or officer of a debt collecting corporation cannot be personally liable unless the plaintiff pierces the corporate veil. White v. Goodman, 200 F.3d 1016, 1019 (7th Cir.2000) (concluding that the corporate form protects shareholders from personal liability and that, in naming them," }, { "docid": "18411510", "title": "", "text": "dismissal of [the FDCPA claim.]” Id. Plaintiff Shorts urges this Court to ignore the reasoning of the Zimmerman court. He argues instead for a liberal interpretation of the statute based on definitions of the term “transaction” that he has selected from various dictionaries. As defendants note, not all dictionary definitions of the term “transaction” favor plaintiffs interpretation of the FDCPA, nor does the Court find such a dictionary definition analysis helpful. See Watt v. Western Nuclear, Inc., 462 U.S. 36, 46-47, 103 S.Ct. 2218, 2224-25, 76 L.Ed.2d 400 (1983); Aulston v. United States, 915 F.2d 584, 589 (10th Cir.1990); Poverty Flats Land & Cattle Co. v. United States, 788 F.2d 676, 682 (10th Cir.1986). The legislative history of the FDCPA and the fact that it was enacted as an amendment to the Consumer Credit Protection Act both counsel in favor of the dismissal of plaintiff Shorts’ FDCPA claim. As the Court of Appeals for the Third Circuit noted in Zimmerman, the legislative history indicates that the Consumer Credit Protection Act was enacted for the protection of credit consumers, who for whatever reason, find themselves unable to perform their obligations to creditors. See S.Rep. 382, 95th Cong., 1st Sess. 3, reprinted in 1977 U.S.Code Cong. & Admin.News 1695, 1697 (“This bill applies only to debts contracted by consumers____”) Plaintiffs theft of two boxes of cigars does not constitute a debt contracted by a consumer. Plaintiff offers no authority for the proposition that the FDCPA applies to defendants’ actions. He directs the Court’s attention to one case from the District of Delaware, which has no applicability to the issue presented in this case. Holmes v. Telecredit Service Corporation, 736 F.Supp. 1289 (D.Del 1990). In Holmes, the plaintiff had presented a check to an automobile dealership in satisfaction of a contractual obligation. The cheek was returned unpaid, because the plaintiffs checking account did not contain sufficient funds to cover the payment. Id. at 1290. Telecredit Services Corporation purchased the obligation from the automobile dealership and initiated collection proceedings. Id. The plaintiff sued Telecredit for alleged violations of the FDCPA. The issue presented in" }, { "docid": "21428540", "title": "", "text": "or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. 15 U.S.C. § 1692a(6). Attorneys who regularly engage in consumer debt collection activities are included in this definition. Heintz v. Jenkins, 514 U.S. 291, 299, 115 S.Ct. 1489, 1493, 131 L.Ed.2d 395 (1995); see also Fox v. Citicorp Credit Services, Inc., 15 F.3d 1507, 1513 (9th Cir.1994) (attorney is “debt collector” if regularly engaged in collection of consumer debts); Crossley v. Lieberman, 868 F.2d 566, 570 (3d Cir.1989) (same). Both DeLoney & Associates and Richard DeLoney were “debt collectors” under the FDCPA. Between July 1994 and May 1995, CheckRite referred to DeLoney & Associates more than nine thousand dishonored checks written by Utah residents, and collection work performed for CheckRite accounted for one-third to one-half of the firm’s income. Further, as the, firm’s sole attorney, developer of the . “covenant not to sue” practice, author of the generic letters utilized by the firm, and supervisor of all of the firm’s collection activities, Mr. DeLoney was regularly engaged, directly and indirectly, in the collection of debts. Thus, he may be held personally liable under the FDCPA. See Blakemore v. Pekay, 895 F.Supp. 972, 977 (N.D.Ill.1995) (liability under FDCPA attaches to individual attorney and law firm where both met Act’s definition of “debt collector”); Teng v. Metropolitan Retail Recovery Inc., 851 F.Supp. 61, (E.D.N.Y.1994) (employee of “debt collector” liable under FDCPA if he or she is a “debt collector” within the statutory definition). Mr. DeLoney maintains that simply satisfying the definition of a “debt collector” does not trigger personal liability under the FDCPA. Rather, argues Mr. DeLoney, personal liability attaches only if the court may also pierce the protective veil afforded DeLoney & Associates under Utah law. See Utah Code Ann. § 48-2b-109(l). The little case law cited by Mr. DeLoney does not support his argument. In West v. Costen, 558 F.Supp. 564 (W.D.Va.1983), the court determined that the defendant, the president and majority shareholder of a collection agency, was a “debt collector” under the FDCPA. Id. at 585." }, { "docid": "7636011", "title": "", "text": "(W.D.Va.1983) (same). The language of the FDCPA is clear. A “debt collector” is “any person who ... regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). First Credit argues that this cannot apply to Fayazi and Merk-wan because they were merely employees of First Credit acting in their capacities as employees. A court in the District of Arizona was presented with the issue in United States v. ACB Sales & Serv., Inc., 590 F.Supp. 561 (D.Ariz.1984). The district court found that a corporate director may be liable pursuant to the FDCPA only for violations in which he materially participated. Id. at 573 (citing Murphy Tugboat Co. v. Shipowners & Merchants Towboat Co., Ltd., 467 F.Supp. 841, 852 (N.D.Cal.1979) aff'd sub nom. Murphy Tugboat Co. v. Crowley, 658 F.2d 1256 (9th Cir.1981), cert. denied, 455 U.S. 1018, 102 S.Ct. 1713, 72 L.Ed.2d 135 (1982)). The district court in Murphy relied on the basic principles of tort and agency, namely that “an officer or director is, in general, personally liable for all torts which he authorizes or directs or in which he participates, notwithstanding that he acted as an agent of the corporation and not on his own behalf.” Murphy Tugboat Co., 467 F.Supp. at 852 (quoting Ballantine, Corporations § 112 (rev. ed.1946)) (interpreting Restatement (Second) of Agency § 343 (1957)). Applying these principles, the district court in ACB Sales & Service, Inc. found that the corporate directors were not “debt collectors” because they had not “materially participated” in the collection activities. ACB Sales & Service, Inc., 590 F.Supp. at 575. A district court in California addressed the issue more recently. See Newman v. Checkrite California, Inc., 912 F.Supp. 1354, 1372-1373 (E.D.Cal.1995). The California district court held that the manager of a law firm who engaged in collection of debts was a “debt collector” because he was a person who “regularly attempt[ed] to collect, directly or indirectly, debts owed.” Id. at 1372 (quoting 15 U.S.C. § 1692a(6) (emphasis added)). Using either the plain language of statute" }, { "docid": "17305627", "title": "", "text": "blow on joint wrongdoers.” Kim v. Fujikawa, 871 F.2d 1427, 1433 (9th Cir.1989) (concluding that contribution is not available under ERISA, articulating the view of the Ninth Circuit and various district courts in other circuits that ERISA “does not provide fiduciaries with a cause of action for contribution against co-fiduciaries”). APPLICATION TO CASE AT BAR The Fair Debt Collection Practices Act is Title VIII of the Consumer Credit Protection Act, which includes such other credit-related consumer protection laws as the Truth in Lending Act (Title I), the Fair Credit Reporting Act (Title VI) and the Equal Credit Opportunity Act (Title VII). Its purpose is to protect consumers from unfair debt collection practices, and to regulate the conduct of debt collectors, including attorneys acting as debt collectors. Schroyer v. Frankel, 197 F.3d 1170 (6th Cir.1999) (attorneys acting as debt collectors must comply with FDCPA). Id. at 1175, 15 U.S.C. section 1692(e) (purpose of subchapter to promote State action to protect consumers). One court has found no right of contribution or indemnity by one joint creditor against another in an action under the Truth in Lending Act (“TILA”). McCain v. Clearview Dodge Sales, Inc. v. Jefferson Bank and Trust Co., 574 F.2d 848 (5th Cir.1978) (finding that creditors were jointly and severally liable to consumers, therefore not entitled to contribution or indemnity from each other). A federal court in California has stated in dicta that a debt collection agency may have a cause of action for indemnity against its attorneys, under terms of an indemnification agreement in which they agreed not to violate the FDCPA. Newman v. Checkrite California, Inc., 912 F.Supp. 1354 (E.D.Cal.1995). But where there is a conflict between the FDCPA and state regulation of attorneys, the state law claim is pre-empted by the federal statute. (To the extent there was any conflict between the federal Fan-Debt Collection Practices Act, as it was applied to attorneys retained to collect delinquent debts and California Supreme Court’s own regulation of these same attorneys, federal legislation had to prevail, pursuant to Supremacy Clause.) Id. at 1365. In the case at bar, the FDCPA" }, { "docid": "21428507", "title": "", "text": "This court joins the Seventh and Ninth Circuits in reaching the same conclusion. Accordingly, defendants’ motions for summary judgment are denied on this issue. B. FDCPA Claims Plaintiffs allege that defendants violated the Act by: (1) attempting to collect excessive fees; (2) violating plaintiffs’ debt validation rights; (3) making a variety of threats and misleading representations; (4) and improperly using CheckRite’s cheek verification system (also claimed to be a violation of the FCRA). ' 1. Excessive Fees Plaintiffs maintain that defendants’ attempts, in some instances successful, to collect amounts significantly greater than the face amounts of plaintiffs’ dishonored checks violated § 1692f(l) of the Act, which prohibits “[t]he collection of any amount ... unless such amount is expressly authorized by the agreement creating the debt or permitted by law” and violated § 1692e, which prohibits “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” It is clear that plaintiffs never authorized defendants, by agreement or otherwise, to collect the fees they sought. Therefore, unless such fees are permitted by Utah law, defendants’ collection efforts violated § 1692f(l). See Patzka v. Viterbo College, 917 F.Spp. 654, 659 (W.D.Wis.1996); Newman v. Checkrite, 912 F.Supp. 1354, 1367-68 (E.D.Cal.1995). Utah’s dishonored instruments statute, Utah Code Ann. §§ 7-15-1 to -3 (1995), allows the holder of a dishonored check to “impose a service charge that may not exceed $15.” § 7-15-1(2). The drawer of a dishonored check may be liable for a sum greater than the face amount of the check, plus the service charge, only if a civil collection action is filed. § 7-15-1(3). CheekRite never itself attempted to collect excessive fees. Its collection letters requested from each plaintiff only the face amount of the dishonored check plus a $15.00 service charge. However, as discussed more fully infra, Part III.D, CheekRite may incur vicarious liability under the Act for violations of § 1692f(l) committed by DeLoney & Associates. It is undisputed that DeLoney & Associates attempted to collect fees greater than $15.00 through the “covenant not to sue” practice without first having filed suit. Indeed, the very" }, { "docid": "22164458", "title": "", "text": "F.2d 1163 (3d Cir.1987), and Shorts v. Palmer, 155 F.R.D. 172 (S.D.Ohio 1994), for example, the courts concluded that obligations to pay money arising out of the alleged theft of property or services did not constitute “debts” under the FDCPA. Obviously, theft is neither consensual nor contractual; nor does it constitute a business dealing. Consequently, it fails to meet the definition of a “transaction” under the FDCPA. See also Mabe v. G.C. Servs. Ltd. Partnership, 32 F.3d 86 (4th Cir.1994) (an obligation to pay child support arising out of an administrative support order issued by Virginia’s Department of Social Services does not qualify as a “debt” under the FDCPA). On the other hand, several courts have concluded that bounced checks may well involve “debts” protected under the FDCPA. See, e.g., Bass, 111 F.3d 1322 (7th Cir.1997); Ernst v. Jesse L. Riddle, P.C., 964 F.Supp. 213 (M.D.La.1997); Narwick v. Wexler, 901 F.Supp. 1275 (N.D.Ill.1995); In re Scrimpsher, 17 B.R. 999 (Bankr.N.D.N.Y.1982). Unlike torts, however, bounced checks represent legal obligations to pay. In other words, they constitute evidence of a business dealing, or a “transaction” under the FDCPA. We also reject Hawthorne’s attempt to persuade the Court that our recent decision in Brown requires us to conclude that the obligation at issue in this ease is covered by the FDCPA. Brown rented a truck from Budget Rent-A-Car. In doing so, he signed an agreement and paid Budget cash in an amount that included loss damage waiver protection. Upon leaving Budget, Brown collided the rented vehicle with an underpass and damaged the truck. Budget subsequently demanded damages. Brown’s insurance carrier paid for the damage to the truck, but refused to pay the deductible or loss-of-use fee. Brown also refused to pay these amounts because he believed them to be covered by the loss damage waiver protec tion. Budget retained the services of an agency to initiate collection activities against Brown, and Brown sued for violations of the FDCPA. Budget claimed that the FDCPA did not apply because Brown had not paid on credit, but rather had used cash. We held that the FDCPA" }, { "docid": "21428525", "title": "", "text": "and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports. 15 U.S.C. § 1681a(f). “[T]he term refers to firms that are in the business of assembling and evaluating consumer credit information[,] ‘... a function which involves more than receipt and retransmission of information identifying a particular debt.’” Id. at 349 (quoting D’Angelo v. Wilmington Medical Ctr., Inc., 515 F.Supp. 1250, 1253 (D.Del.1981)). The little evidence in the record regarding CheckRite’s verification activities does not reveal whether CheekRite acted merely as a conduit for debt-related information or as something more. The parties’ unsupported allegations that CheekRite was or was not a consumer reporting agency are not sufficient to meet their respective burdens on summary judgment. The record does reveal, however, that DeLoney & Associates was not a “consumer reporting agency” under the FCRA. There is no evidence that the law firm was in the business of assembling or evaluating consumer credit information. Rather, the record indicates that the firm simply notified CheekRite that a particular account had been settled. Merely furnishing information about a particular debt does not draw DeLoney & Associates within the definition of a “consumer reporting agency” Id. at 348-49; Rush v. Macy’s New York Inc., 775 F.2d 1554, 1557 (11th Cir.1985); D’Angelo, 515 F.Supp. at 1253. Because the record at this stage does not permit the court to determine, as a matter of law, whether CheekRite was a “consumer reporting agency,” the court denies Check-Rite’s and plaintiffs’ motions as they pertain to plaintiffs’ FCRA claims. Because DeLoney & Associates was not a “consumer reporting agency” as defined by the FCRA, its motion for summary judgment is granted as to plaintiffs’ FCRA claims. D. CheckRite’s Vicarious Liability While the FDCPA itself is silent on the issue of vicarious liability, a debt collector may be held vicariously liable under the Act for the conduct of its attorney. Newman v. Checkrite California, Inc., 912 F.Supp. 1354, 1370 (E.D.Cal.1995) (citing Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507, 1516 (9th Cir.1994)); see also Martinez v. Albuquerque Collection Servs., 867 F.Supp. 1495," }, { "docid": "7328273", "title": "", "text": "FDCPA. Kistner v. Law Offices of Michael P. Margelefsky, L.L.C., 518 F.Sd 433, 437-38 (6th Cir. 2008); del Campo v. Kennedy, 491 F.Supp.2d 891, 903 (N.D.Cal.2006); Brumbelow v. Law Offices of Bennett & Deloney, P.C., 372 F.Supp.2d 615, 618-21 (D.Utah 2005); Albanese v. Portnoff Law Assocs., Ltd., 301 F.Supp.2d 389, 400 (E.D.Pa.2004); Musso v. Seiders, 194 F.R.D. 43, 46-47 (D.Conn.1999); Brink v. First Credit Res., 57 F.Supp.2d 848, 861-62 (D.Ariz.1999); Pikes v. Riddle, 38 F.Supp.2d 639, 640 (N.D.Ill.1998); Ditty v. CheckRite, Ltd., 973 F.Supp. 1320, 1337-38 (D.Utah 1997); Newman v. Checkrite Cal., Inc., 912 F.Supp. 1354, 1372 (E.D.Cal.1995); Teng v. Metro. Retail Recovery Inc., 851 F.Supp. 61, 67 (E.D.N.Y.1994). On the other hand, the Seventh Circuit has held that, regardless of an individual’s personal involvement with the corporation’s debt collecting activities, a shareholder or officer of a debt collecting corporation cannot be personally liable unless the plaintiff pierces the corporate veil. White v. Goodman, 200 F.3d 1016, 1019 (7th Cir.2000) (concluding that the corporate form protects shareholders from personal liability and that, in naming them, plaintiffs “should have been sanctioned for what amounts to malicious prosecution”); Pettit v. Retrieval Masters Creditor Bureau, Inc., 211 F.3d 1057, 1059 (7th Cir.2000) (“[U]nder ... White v. Goodman, the extent of control exercised by an officer or shareholder is irrelevant to determining his liability under the FDCPA.”); see also Ernst v. Jesse L. Riddle, P.C., 964 F.Supp. 213, 216 (M.D.La.1997) (noting that the FDCPA lacks language suggesting that “Congress intended the act to supplant state corporate law which generally limits then liability of a corporation’s shareholders, officers, and directors ... ”). While the Ninth Circuit has not yet addressed the issue, this court will adhere to the conclusion reached by the Sixth Circuit and the majority of district courts because it is more consistent with the FDCPA’s broad language. The FDCPA expressly prohibits certain acts by “any person ... in any business.” 15 U.S.C. § 1692a(6) (emphasis added). Without distinguishing between an employee’s position within the corporation, the Staff Commentary also explains that “any person” includes an “employee of a corporation.” 53 Fed.Reg. 50102" } ]

[ { "docid": "22727241", "title": "", "text": "the exception would not apply. Although driving requires the constant exercise of discretion, the official’s decisions in exercising that discretion can hardly be said to be grounded in regulatory policy. As explained above, the agencies at issue here have since been abolished, although they have been replaced by agencies possessing similar discretionary authority. See n. 1, supra. We note that in a recent opinion by Judge Garza, who also wrote the opinion at issue here, the Court of Appeals for the Fifth Circuit refused to extend its decision in Gaubert to impose liability on the FDIC for failure to institute statutory receivership proceedings against a thrift. See Federal Deposit Insurance Corp. v. Mmakat, 907 F. 2d 546, 552 (1990). Justice Scalia, concurring in part and concurring in the judgment. I concur in the judgment and in much of the opinion of the Court. I write separately because I do not think it necessary to analyze individually each of the particular actions challenged by Gaubert, nor do I think an individualized analysis necessarily leads to the results the Court obtains. h-H The so-called discretionary function exception to the Federal Tort Claims Act (FTCA) does not protect all governmental activities involving an element of choice. Berkovitz v. United States, 486 U. S. 531, 536-537 (1988). The choice must be “grounded in social, economic, [or] political policy,” United States v. Varig Airlines, 467 U. S. 797, 814 (1984), or, more briefly, must represent a “policy judgment,” Berkovitz, supra, at 537. Unfortunately, lower courts have had difficulty in applying this test. The Court of Appeals in this case concluded that a choice involves policy judgment (in the relevant sense) if it is made at a planning rather than an operational level within the agency. 885 F. 2d 1284, 1287 (CA5 1989). I agree with the Court that this is wrong. I think, however, that the level at which the decision is made is often relevant to the discretionary function inquiry, since the answer to that inquiry turns on both the subject matter and the office of the decision-maker. In my view a choice is" } ]

[ { "docid": "7293331", "title": "", "text": "not until after the bank had failed and the notes had been acquired by the FDIC through a purchase and assumption transaction that the FDIC learned of the receipts stating that the loans would never have to be repaid. When the FDIC sued to collect on the notes, the defendant raised the side agreement and also asserted that the notes were invalid because they had been given without consideration. The Supreme Court, after examining the statutory scheme that created the FDIC, concluded that the statute evidenced a federal policy to protect the FDIC and the public against misrepresentations as to the assets of insured institutions. Id. at 457, 62 S.Ct. at 679. In order to effect this federal policy, the Court fashioned a common law rule of estoppel precluding a borrower from asserting against the FDIC defenses based upon secret or unrecorded “side agreements” that altered the terms of facially unqualified obligations. The court considered it irrelevant that D’Oench, Duhme and Company was not guilty of violating any statute. Id. at 457, 62 S.Ct. at 679. Rather, it was not the borrower’s intent but his conduct which allowed the bank to overstate its assets and resulted in the bank examiners being deceived. The basic D’Oench “test is whether the note was designed to deceive the creditors or the public authority, or would tend to have that effect” Id. at 460, 62 S.Ct. at 681. The D’Oench doctrine has been considerably extended by the courts since the 1942 decision. Beighley v. Federal Deposit Ins. Corp., 868 F.2d 776, 784 (5th Cir.1989). See also In re CTS Truss, Inc., 859 F.2d 357, 362 (5th Cir.1988). Federally insured savings and loan associations, in addition to insured banks, have for many years come within the purview of the doctrine. Federal Sav. & Loan Ins. Corp. v. Kearney Trust Co., 151 F.2d 720 (8th Cir.1945). The doctrine now applies to the insuring institutions as receivers. Additionally, under D’Oench the courts have protected these entities not only from secret and misleading schemes, but have created a quasi-holder-in-due course status whereby, if the insurer purchases a note" }, { "docid": "14944569", "title": "", "text": "Mellott, 754 F.Supp. 22, 26 (E.D.N.Y.1990); FDZC v. Baker, 739 F.Supp. 1401, 1407 (C.D.Cal.1990). Further, another Kansas court has specifically rejected the Ashley approach, stating that it ran contrary to the weight of authority and public policy, that it did not take into account the jurisdictional limitations of 12 U.S.C. § 1821(d)(13)(D), and that it failed to acknowledge the alternative argument of sovereign immunity. RTC v. Scaletty, No. 92-1101-K, 1992 WL 276628, 1992 U.S.Dist. LEXIS 15424 (D.Kan. Sept. 30, 1992). Government agencies are shielded by sovereign immunity, except to the extent such is waived by the Federal Tort Claims Act (“FTCA”) or by other federal statute. The defendants contend that in filing this action, the RTC has waived sovereign immunity to the affirmative defenses asserted. In light of the policy concerns articulated above, however, courts have held that the affirmative defenses at issue in this case are inconsistent with the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a). FIR-REA charges the RTC with the efficient disposition of the assets of failing institutions, and grants the RTC discretion in implementing that goal. See 12 U.S.C. §§ 1441a(b)(3), 1821(h). Accordingly, the analogy to the FTCA and the resulting argument that sovereign immunity has been waived are inapposite. E.g., Scaletty, supra; FDIC v. Crosby, 774 F.Supp. 584, 587 (W.D.Wash.1991). Defendants also contend that their affirmative defenses relate to proximate cause, in that they should not be held liable for that portion of damages which the RTC may be found to have caused or aggravated by its own conduct and decisionmaking. While such an argument might have some force in an ordinary tort case, “this is not an ordinary tort case. Rather it is one which arises within a special context, invoking special considerations of public policy.” FSLIC v. Roy, No. JFM-87-1227, 1988 WL 96570, 1988 U.S.Dist. LEXIS 6840 (D.Md.1988). The argument that the affirmative defenses at issue here should not be stricken because they are relevant to causation has been specifically rejected by numerous courts: Banking is a business which directly affects the public welfare, and the law" }, { "docid": "6696431", "title": "", "text": "failure to mitigate, comparative assumption of the risk, unclean hands, and set-off of amounts attributable to claims not pursued by Plaintiff. Plaintiff argues these defenses are legally insufficient because Plaintiff in his capacity as receiver owes no duty to Defendants and because the defenses are inconsistent with the doctrine of sovereign immunity. Plaintiff asserts his role as receiver of GW LIFE is analogous to the role of the Resolution Trust Corporation (“RTC”), the Federal Deposit Insurance Corporation (“FDIC”) and the Federal Savings and Loan Insurance Corporation (“FSLIC”) in cases where those agencies act as liquidators of failed financial institutions. Courts have uniformly held the RTC, FDIC and FSLIC when acting as receivers owe no duty to the institutions or their officers and directors, but rather are duty-bound only to the public. See, e.g., FDIC v. Eckert Seamans Cherin & Mellott, 754 F.Supp. 22, 25 (E.D.N.Y.1990); FSLIC v. Roy, No. JFM-87-1227, 1988 WL 96570, at *1, 1988 U.S.Dist. LEXIS 6840, at *3 (D.Md.June 28, 1988). But while these federal regulatory agencies may not be subject to second-guessing of the manner in which they perform their duties, the same is not necessarily true with regard to the West Virginia Insurance Commissioner. West Virginia law grants the Insurance Commissioner in his capacity as receiver of an insurer qualified immunity from suit. W.Va.Code § 33-10-39(a) (1992). But the statute’s language declares in lucid fashion the receiver’s immunity is not absolute; it does not reach “acts or omissions which are malicious or grossly negligent.” Id. Although perhaps unlikely, it is theoretically possible Defendants could mount proof at trial establishing Plaintiff was malicious or grossly negligent in his activities as receiver. In such a scenario, W.Va.Code § 33-10-39(a) (1992) would not shield Plaintiff from liability. The facts of this case as currently developed do not preclude such a possibility. Moreover, regardless of whether Plaintiff owes a duty to Defendants, proof by the Defendants that Plaintiffs own acts were in fact the efficient and legal cause of GW LIFE’S failure could, in theory, absolve Defendants of liability. Plaintiff argues as well Defendants’ assertion of these affirmative defenses" }, { "docid": "10433425", "title": "", "text": "affirmative defense is insufficient if, as a matter of law, the defense cannot succeed under any circumstance. Id. The defenses attacked by RTC’s motion may be generieally categorized as 1) implicating RTC’s conduct, 2) statutes of limitations and, 3) indemnification. 1. RTC argues that the defendants cannot maintain defenses implicating the conduct of the RTC or other federal regulatory agencies which reduces or negates defendants’ liability for otherwise wrongful acts. I agree. Here, RTC moves to strike many of the identical defenses stricken in F.D.I.C. v. Isham. Isham is dispositive. There I held that the affirmative defenses of contributory and comparative negligence, failure to mitigate, waiver, estoppel, ratification, consent, acquiescence, reliance on banking regulators, and assumption of risk were stricken because they placed the Federal Deposit Insurance Corporation’s (FDIC) conduct at issue. Id. at 530. As a matter of law, the defense of laches was also stricken. Id. at 532. Lack of causation was stricken to the extent it placed the FDIC’s conduct at issue. Id. The FDIC’s insulation from affirmative defenses which places its conduct at issue was premised on several considerations. The FDIC’s conduct in fulfilling its mandate involves discretionary decisions that should not be subjected to judicial second guessing. Id. at 532. The FDIC owes no duty to the officers and directors of the failed institution (no duty rule). Id. The banking laws further the public good, and seek to minimize loss to the insurance fund. See generally Id. at 532 (quoting Federal Sav. and Loan Ins. Corp. v. Burdette, 718 F.Supp. 649, 664 (E.D.Tenn.1989)); Federal Deposit Ins. Corp. v. Bank of Boulder, 911 F.2d 1466, 1474 (10th Cir.1990), cert. denied, 499 U.S. 904, 111 S.Ct. 1103, 113 L.Ed.2d 213 (1991). The rule in Isham paints a bright line that maintains the focus on the persons whose alleged wrongdoing brought about the insolvency in the first instance. Isham, 782 F.Supp. at 532. The public policy underlying Isham is equally applicable to the RTC. See 12 U.S.C. § 1441a(b)(4). I decline to reconsider my holding in Isham in light of F.D.I.C. v. Niblo, 821 F.Supp. 441 (N.D.Tex.1993). Niblo" }, { "docid": "203081", "title": "", "text": "belated attempt to amend their complaint also falls short. Their primary reason for requesting leave is to add MB Financial as a defendant to seek to enjoin it from proceeding with foreclosure actions. Yet nothing in the proposed second amended complaint identifies how MB Financial’s foreclosure pursuits result from its own wrongdoing. Rather, the Appellants state that foreclosure is “an attempt to collect upon the illegally imposed interest and other fees,” clearly relating back to InBank’s conduct. Regardless of whether the Appellants name InBank, the FDIC, or MB Financial as defendant, their claims are only exempt from FIRREA’s jurisdictional bar if they identify MB Financial’s independent wrongdoing as the basis for relief. Since they fail to do so, we find that the FDIC, as InBank’s receiver, is the proper defendant in this matter and that the Appellants’ claims are subject to the administrative exhaustion requirement. B. There Is No Evidence That the FDIC Transferred Liability for These Claims to MB Financial The Appellants argue in the alternative that they were not required to exhaust their administrative remedies because MB Financial assumed liability for these claims. This argument also lacks merit. When the FDIC steps in as receiver of a failed bank, it takes over the bank’s assets and operations, collects all monies and obligations due the failed bank, preserves and conserves its assets, and performs all functions of the institution consistent with receivership. 12 U.S.C. § 1821(d)(2)(B). The FDIC has two primary options as receiver of a failed bank: liquidate the bank’s assets or enter into a purchase and assumption transaction with another bank. E.g., FDIC v. Bierman, 2 F.3d 1424, 1438 (7th Cir.1993); FDIC v. Wright, 942 F.2d 1089, 1090 n. 1 (7th Cir.1991). In the latter, the FDIC sells the failed bank’s assets to a healthy bank, which agrees to pay the failed bank’s depositors. Wright, 942 F.2d at 1090 n. 1. The FDIC then pays the successor bank the difference between the value of the assets and what it owes depositors. Id. A purchase and assumption agreement may also address which of the failed bank’s liabilities the" }, { "docid": "4770078", "title": "", "text": "Burdette, 718 F.Supp. 649, 663 (E.D.Tenn.1989). It is well established that federal regulators owe no duty to the officers and directors of federally insured financial institutions. FSLIC v. Roy, 1988 WL 96570, 1988 U.S. Dist. LEXIS 6840 (D.Md.1988) (Motz, J.); Williams, supra; Isham, supra. Courts overwhelmingly agree that FSLIC has been created for the purpose of preserving the integrity of the national banking system by providing an insurance fund to cover the deposits of failed and failing institutions. FSLIC owes no duty to those institutions or to those whose negligence has brought them to the brink of disaster. Self-evidently, it is the public which is the intended beneficiary of FSLIC ... Roy, 1988 WL 96570 at 1, 1988 U.S. Dist. LEXIS 6840 at 4. See also Burdette, 718 F.Supp. at 663. In this context, it is clear that the affirmative defenses of contributory negligence and regulatory negligence must fail because alleged misconduct by RTC cannot vitiate the defendants’ liability. The defendants’ culpability for losses resulting from the six loans at issue is wholly unrelated to any activities of the plaintiff or its predecessor. It is equally clear that the other affirmative defenses specified in plaintiffs motion must be stricken. The policies that underlie the unavailability of affirmative defenses based on the conduct of federal regulators apply with the same force to the defense of estoppel. See Isham, 782 F.Supp. at 532. Dayton and Reynolds have no basis for their estoppel defense because “the FDIC’s own conduct cannot be used to defeat or reduce a recovery to the insurance fund because the FDIC does not act to benefit bank officers and directors.” Id. Likewise, Reynolds cannot use laches as a defense because it is not available in actions brought by the FDIC in its corporate capacity. FDIC v. Roldan Fonseca, 795 F.2d 1102, 1109 (1st Cir.1986) (citations omitted); see also FDIC v. Baker, 739 F.Supp. 1401, 1407 (C.D.Cal.1990); Isham, 782 F.Supp. at 532. Finally, the Court must also strike the portion of Hecht’s defense of lack of causation that relies on the conduct of regulatory authorities or on conditions, like an" }, { "docid": "7262037", "title": "", "text": "v. Stan ley, 770 F.Supp. 1281, 1309 (N.D.Ind.1991); FDIC v. Baker, 739 F.Supp. 1401, 1407 (C.D.Cal.1990); see also Cheng, 787 F.Supp. at 636. Other courts have expressed the view that the policy embodied in the Federal Deposit Insurance Corporation Act and in FIRREA precludes the agency from shouldering any portion of a loss traced to wrongdoing in either pre- or post-failure regulatory activities. See, e.g., Isham, 782 F.Supp. at 531-32. At the core of both lines of reasoning is the conviction that the public is the sole intended beneficiary of the FDIC’s mandate: “[NJothing could be more paradoxical to sound policy than to hold that it is the public which must bear the risk of errors of judgment made by its officials in attempting to save a failing institution.” ... FDIC’s own conduct cannot be used to defeat or reduce a recovery to the insurance fund because the FDIC does not act to benefit [the defendants]. Moreover, FDIC’s conduct in fulfilling its mandate involves discretionary decisions that should not be subjected to judicial second guessing. Isham, 782 F.Supp. at 532 (quoting FSLIC v. Roy, 1988 WL 96570 (D.Md.1988)); see also Burdette, 718 F.Supp. at 663-4. This Court finds no need to adopt one line of reasoning over the other; both are valid, and they are joined at the hip. What is apparent is the emergence of a bright-line rule that a federal banking agency, when bringing a tort claim as surrogate for the public, is exempt from the affirmative defenses arising from its regulatory conduct that would normally apply to private individuals. The Court finds support for this proposition, by negative implication, in the Fifth Circuit’s decision in FDIC v. Ernst & Young, 967 F.2d 166 (5th Cir.1992). In that case, the court held that “the FDIC is not entitled to special protection when it brings a tort claim against a third party on behalf of a defunct financial entity.” Id. at 170. Of critical importance to the decision was that the FDIC, although it was authorized to sue the defendants on its own behalf or on behalf of the" }, { "docid": "4402403", "title": "", "text": "the RTC and its predecessor regulatory agencies have acquired an immense collection of assets which are often of dubious value. In fulfilling its legislative mandate as receiver, the RTC is often required to sell off these assets at significant loss. This mandate reflects a congressional determination that the affected institutions should be removed from receivership as promptly as possible. The directors and officers of the failed institution should not be allowed to profit by this public policy decision by being allowed to assert a defense of failure to mitigate. In FDIC v. Baker, the court observed FIRREA represented a far-reaching attempt to stem the crisis in the nation’s savings industry. In achieving this “massive overhaul,” the court stated, the FDIC and the RTC carry “no duty to any but the public” in determining how best to liquidate failed financial institutions. 739 F.Supp. at 1406. See FDIC v. Lowe, 809 F.Supp. 856 (D.Utah 1992) (“public policy militates against judicial second-guessing of FDIC’s actions or requiring the public at large to bear the costs of FDIC dealing with the intricacies of disposing of the assets of a failed bank.”) These public policy concerns were also developed at length in FSLIC v. Burdette, 718 F.Supp. 649, 663-64 (E.D.Tenn.1989): In cases of the failure of a savings institution, it is important to the public that the receiver rapidly and efficiently convert the assets of that institution to cash to repay the losses incurred by the insurance fund and the depositors for deposits not covered. Suits by the FSLIC as a receiver to recover assets, or to recover damages for wrongdoing, should not be encumbered by an examination in court of the correctness of any specific act of the FSLIC in its receivership. The rule that there is no duty owed to the institution or wrongdoers by the FSLIC/Receiver is simply a means of expressing the broad public policy that the banking laws creating the FSLIC and prescribing its duties are directed to the public good, and that every separate act of the FSLIC as a receiver in collecting assets is not open to second" }, { "docid": "4623947", "title": "", "text": "to Deloitte in a suit brought by Old Sunrise. a. Comparative/Contributory Negligence of FDIC FDIC argues that courts have stricken the affirmative defenses of comparative or contributory negligence when they are asserted against federal regulators. In Federal Deposit Ins. Corp. v. Isham, 782 F.Supp. 524 (D.Colo.1992), in which the FDIC in its corporate capacity brought an action against the officers and directors of several failed banks, the Court granted a motion to strike affirmative defenses of contributory or comparative negligence, failure to mitigate damages, waiver, estoppel, ratification, consent, acquiescence, reliance on banking regulators and assumption of risk. Explaining that its holding extended to regulatory actions taken by FDIC/Corporate before an institution is closed, actions taken by FDIC as receiver after closure and actions taken by FDIC/Corporate as assignee of a failed bank’s assets, the Court explained that its reasoning stemmed from the policy embodied in the Federal Deposit Insurance Act: Put simply, FDIC’s own conduct cannot be used to defeat or reduce a recovery to the insurance fund because the FDIC does not act to benefit bank officers and directors. Moreover, FDIC’s conduct in fulfilling its mandate involves discretionary decisions that should not be subjected to judicial second guessing. Id. at 532. Similarly, in Federal Deposit Ins. Corp. v. Baker, 739 F.Supp. 1401 (C.D.Cal.1990), the Court granted FDIC’s motion to strike several affirmative defenses brought by the former officers and directors of a savings and loan association, but on a slightly different ground than that on which Isham was decided. In Baker, the Court held that the FDIC owed no duty to the officers or directors when the FDIC’s role is either regulator (i.e. when the FDIC acts in its corporate capacity) or receiver of that institution. In reaching its conclusion, the Court relied on Federal Sav. & Loan Ins. Corp. v. Roy, No. JFM-8-1227, 1988 WL 96570, 1988 U.S.Dist. LEXIS 6840 (D.Md. June 28, 1988), which held that FSLIC’s alleged negligence was immaterial to the issues in that ease because the FSLIC owed no duty to those whose negligence brought the institutions to “the brink of disaster.” Id. The" }, { "docid": "14944571", "title": "", "text": "places a heavy duty upon the officers and directors of banking institutions to manage their affairs properly. If officers and directors have negligently recommended and approved a significant number of loans in their institution’s portfolio ..., they have breached this duty. One of the proximate results of this breach is that FSLIC must assume at least some degree of control over the affairs of the institution. That is the only causal connection which may properly be required by application of the doctrine of proximate cause.... FSLIC owes no duty to those institutions or to those whose negligence has brought them to the brink of disaster.... [Njothing could be more paradoxical or contrary to sound policy than to hold that it is the public which must bear the risk of error of judgment made by its officials in attempting to save a failing institution — a risk which would never have been created but for defendants’ wrongdoing in the first instance. FSLIC v. Roy, No. JFM-87-1227, 1988 WL 96570, 1988 U.S.Dist. LEXIS 6840 (D.Md. 1988). See also FDIC v. Isham, 782 F.Supp. 524 (D.Colo.1992); FSLIC v. Shelton, 789 F.Supp. 1367 (M.D.La.1992); FDIC v. Eckert Seamans Cherin & Mellott, 754 F.Supp. 22 (E.D.N.Y.1990); FDIC v. Greenwood, 719 F.Supp. 749 (C.D.Ill.1989); FDIC v. Carlson, 698 F.Supp. 178 (D.Minn.1988); FDIC v. Renda, 692 F.Supp. 128 (D.Kan.1988). Further, claims relating to proximate cause are not appropriately raised as affirmative defenses, as proximate cause is an element of the plaintiff’s prima facie case and therefore is already in issue. FDIC v. Renda, 692 F.Supp. 128, 133 (D.Kan.1988). It should be noted that the RTC must still establish that the defendants’ conduct was the proximate cause of the injury claimed in order to prevail at all; the defendants are free to assert cross-claims against one another or to implead those third parties who they believe should bear responsibility for the losses allegedly incurred by First Federal. However, under the “no-duty” rule, the RTC’s conduct is not on trial, whether under the label of proximate cause or affirmative defense. RTC v. Greenwood, 798 F.Supp. 1391 (D.Minn.1992). Finally, the" }, { "docid": "4623948", "title": "", "text": "benefit bank officers and directors. Moreover, FDIC’s conduct in fulfilling its mandate involves discretionary decisions that should not be subjected to judicial second guessing. Id. at 532. Similarly, in Federal Deposit Ins. Corp. v. Baker, 739 F.Supp. 1401 (C.D.Cal.1990), the Court granted FDIC’s motion to strike several affirmative defenses brought by the former officers and directors of a savings and loan association, but on a slightly different ground than that on which Isham was decided. In Baker, the Court held that the FDIC owed no duty to the officers or directors when the FDIC’s role is either regulator (i.e. when the FDIC acts in its corporate capacity) or receiver of that institution. In reaching its conclusion, the Court relied on Federal Sav. & Loan Ins. Corp. v. Roy, No. JFM-8-1227, 1988 WL 96570, 1988 U.S.Dist. LEXIS 6840 (D.Md. June 28, 1988), which held that FSLIC’s alleged negligence was immaterial to the issues in that ease because the FSLIC owed no duty to those whose negligence brought the institutions to “the brink of disaster.” Id. The Roy Court stated: If this were an ordinary tort ease, defendants’ argument would have merit. In that event, if the evidence were to show that FSLIC’s own negligence (either in connection with general management matters or in working out specific loans) had caused or contributed to its losses, its claims would be barred or reduced. However, this is not an ordinary tort ease. Rather, it is one which arises within a special context, invoking special considerations of public policy. Id. The Court reasoned that because the public was the intended beneficiary of FSLIC’s actions, “nothing could be more ... contrary to sound policy than to hold that it is the public which must bear the risk of errors of judgment made by its officials in attempting to save a failing institution.” Id. It was for these same reasons that I granted FDIC’s motions to strike the affirmative defenses of comparative or contributory negligence raised by the Outside Directors, Blank, Rome and various other defendants in my Orders dated July 29, 1987. Based on these Orders" }, { "docid": "14944565", "title": "", "text": "court finds nothing in the record to indicate that the RTC is proceeding in this action in anything other than a sovereign capacity. The RTC indicates that it is proceeding as receiver; the great weight of the defendants’ affirmative defenses relate to actions of the RTC taken in its receivership capacity. As a receiver, the RTC’s duty “to collect on assets of a failed institution runs to the public and not to the former officers and directors of the failed institution.” FDIC v. Greenwood, 719 F.Supp. 749, 750 (C.D.Ill.1989). See also RTC v. Scaletty, No. 92-1101-K, 1992 WL 276628, 1992 U.S.Dist. LEXIS 15424 (D.Kan. Sept. 30, 1992); RTC v. Kerr, 804 F.Supp. 1091, (W.D.Ark.1992); RTC v. Greenwood, 798 F.Supp. 1391 (D.Minn.1992); FSLIC v. Shelton, 789 F.Supp. 1367 (M.D.La.1992); FDIC v. Isham, 782 F.Supp. 524 (D.Colo. 1992); FDIC v. Crosby, 774 F.Supp. 584 (W.D.Wash.1991); FDIC v. Stanley, 770 F.Supp. 1281, 1307 (N.D.Ind.1991); FDIC v. Stuart, 761 F.Supp. 31 (W.D.La.1991); FDIC v. Baker, 739 F.Supp. 1401 (C.D.Cal.1990); FSLIC v. Burdette, 696 F.Supp. 1183 (E.D.Tenn.1988); FDIC v. Carison, 698 F.Supp. 178 (D.Minn.1988); FSLIC v. Roy, No. JFM-87-1227, 1988 WL 96570, 1988 U.S.Dist. LEXIS 6840 (D.Md.1988). When a savings and loan fails and the RTC is appointed receiver, \"it is important to the public that the receiver rapidly and efficiently convert the assets of that institution to cash to repay the losses incurred by the insurance fund and the depositors for deposits not covered.\" FSLIC v. Burdette, 718 F.Supp. 649, 663 (E.D.Tenn.1989); see also Gunter v. Hutcheson, 674 F.2d 862, 869 (11th Cir.1982) (\"... decisions concerning the appropriate method of dealing with a bank failure must be made with extraordinary speed if the going concern value of the failed institution is to be preserved.\"). This interest in speed means that different concerns are involved in RTC decisionmaking than would be the case in a savings and loan operating under normal conditions. Accordingly, it is in the public interest that the RTC be able to pursue its tasks without being subject to criticism by former officers and directors of the failed institution, endowed with 20/20" }, { "docid": "7262036", "title": "", "text": "officers and directors of Guaranty Federal. See FDIC v. Ernst & Young, 967 F.2d at 170. 2. FDIC’s (or Other Regulatory) Actions Shearson’s affirmative defenses based on federal regulatory conduct before or after the failure of Guaranty Federal are legally insufficient. Such attempts to shift a portion of a banking institution’s losses to the public have been rejected almost uniformly by district courts in recent years. See, e.g., RTC v. Fite, No. SA-92-CA-196, 1993 WL 463252 (W.D.Tex. Mar. 29,1993) (striking the defenses of ratification, waiver, estoppel, and mitigation of damages); FDIC v. Isham, 782 F.Supp. at 530-32 (striking comparative negligence, failure to mitigate, waiver, estoppel, ratification, consent, acquiescence, reliance on banking regulators, assumption of risk, lack of causation, and laches); FDIC v. Stuart, 761 F.Supp. 31, 32 (W.D.La.1991) (striking waiver, laches, and mitigation of damages). Some courts have attributed the defenses’ insufficiency to an absence of any duty of the FDIC to bank officers or directors, or to third parties, such as attorneys and accountants, against whom the FDIC has brought suit. See, e.g., FDIC v. Stan ley, 770 F.Supp. 1281, 1309 (N.D.Ind.1991); FDIC v. Baker, 739 F.Supp. 1401, 1407 (C.D.Cal.1990); see also Cheng, 787 F.Supp. at 636. Other courts have expressed the view that the policy embodied in the Federal Deposit Insurance Corporation Act and in FIRREA precludes the agency from shouldering any portion of a loss traced to wrongdoing in either pre- or post-failure regulatory activities. See, e.g., Isham, 782 F.Supp. at 531-32. At the core of both lines of reasoning is the conviction that the public is the sole intended beneficiary of the FDIC’s mandate: “[NJothing could be more paradoxical to sound policy than to hold that it is the public which must bear the risk of errors of judgment made by its officials in attempting to save a failing institution.” ... FDIC’s own conduct cannot be used to defeat or reduce a recovery to the insurance fund because the FDIC does not act to benefit [the defendants]. Moreover, FDIC’s conduct in fulfilling its mandate involves discretionary decisions that should not be subjected to judicial second guessing." }, { "docid": "14944570", "title": "", "text": "failing institutions, and grants the RTC discretion in implementing that goal. See 12 U.S.C. §§ 1441a(b)(3), 1821(h). Accordingly, the analogy to the FTCA and the resulting argument that sovereign immunity has been waived are inapposite. E.g., Scaletty, supra; FDIC v. Crosby, 774 F.Supp. 584, 587 (W.D.Wash.1991). Defendants also contend that their affirmative defenses relate to proximate cause, in that they should not be held liable for that portion of damages which the RTC may be found to have caused or aggravated by its own conduct and decisionmaking. While such an argument might have some force in an ordinary tort case, “this is not an ordinary tort case. Rather it is one which arises within a special context, invoking special considerations of public policy.” FSLIC v. Roy, No. JFM-87-1227, 1988 WL 96570, 1988 U.S.Dist. LEXIS 6840 (D.Md.1988). The argument that the affirmative defenses at issue here should not be stricken because they are relevant to causation has been specifically rejected by numerous courts: Banking is a business which directly affects the public welfare, and the law places a heavy duty upon the officers and directors of banking institutions to manage their affairs properly. If officers and directors have negligently recommended and approved a significant number of loans in their institution’s portfolio ..., they have breached this duty. One of the proximate results of this breach is that FSLIC must assume at least some degree of control over the affairs of the institution. That is the only causal connection which may properly be required by application of the doctrine of proximate cause.... FSLIC owes no duty to those institutions or to those whose negligence has brought them to the brink of disaster.... [Njothing could be more paradoxical or contrary to sound policy than to hold that it is the public which must bear the risk of error of judgment made by its officials in attempting to save a failing institution — a risk which would never have been created but for defendants’ wrongdoing in the first instance. FSLIC v. Roy, No. JFM-87-1227, 1988 WL 96570, 1988 U.S.Dist. LEXIS 6840 (D.Md. 1988). See" }, { "docid": "4770079", "title": "", "text": "any activities of the plaintiff or its predecessor. It is equally clear that the other affirmative defenses specified in plaintiffs motion must be stricken. The policies that underlie the unavailability of affirmative defenses based on the conduct of federal regulators apply with the same force to the defense of estoppel. See Isham, 782 F.Supp. at 532. Dayton and Reynolds have no basis for their estoppel defense because “the FDIC’s own conduct cannot be used to defeat or reduce a recovery to the insurance fund because the FDIC does not act to benefit bank officers and directors.” Id. Likewise, Reynolds cannot use laches as a defense because it is not available in actions brought by the FDIC in its corporate capacity. FDIC v. Roldan Fonseca, 795 F.2d 1102, 1109 (1st Cir.1986) (citations omitted); see also FDIC v. Baker, 739 F.Supp. 1401, 1407 (C.D.Cal.1990); Isham, 782 F.Supp. at 532. Finally, the Court must also strike the portion of Hecht’s defense of lack of causation that relies on the conduct of regulatory authorities or on conditions, like an economic downturn, which took effect after the loans at issue were made. On this point, Roy, supra, is again instructive. Under similar circumstances, Judge Motz struck the proximate cause defense to the extent it relied on the conduct of the regulators or on any extrinsic factors that are not relevant to the basic fact that the defendants made the loans at issue. Roy, Civil Action No. JFM-87-1227, 1990 WL 488463 (D.Md.1990). The court reasoned that even if conditions arising after the loans were made contributed in some way to the size of the loss, the basic fact that the defendants made the loans remains. The Court Ml apply the principles articulated in Roy and strike the affirmative defense of lack of causation to the extent that the defendant relies on the conduct of regulatory au thorities or on conditions, like an economic downturn, which took effect after the loans at issue were made. V. MOTIONS OF DEFENDANTS MUL-LAN, STAUTBERG, WOODS, IRE-TON, AND FISHER TO DISMISS CLAIMS FOR NEGLIGENCE AND BREACH OF FIDUCIARY DUTY Defendants Mullan," }, { "docid": "6696430", "title": "", "text": "III. 1. Personal Jurisdiction; Failure to State a Claim Upon Which Relief Can Be Granted Among each Defendant’s first affirmative defenses are lack of personal jurisdiction and failure to state a claim upon which relief can be granted. After a period of discovery on the personal jurisdiction issue, the Court held by Order entered July 22, 1993, 830 F.Supp. 316, Plaintiff had established a prima facie case of personal jurisdiction over each of the remaining Defendants. The Court therefore strikes sua sponte each defense asserting lack of personal jurisdiction. The Court also recasts the defense of failure to state a claim upon which relief can be granted as a motion pursuant to Rule 12(b)(6), Fed.R.Civ.P. As such, the Court DENIES the motion without prejudice and strikes the corresponding defense. 2. Defenses Based Upon Conduct of Plaintiff in his Capacity as Receiver The first category of defenses challenged by Plaintiff includes those based upon the conduct of Plaintiff in his capacity as receiver of GW LIFE. They include: comparative negligence, laches, waiver and estoppel, avoidable consequences, failure to mitigate, comparative assumption of the risk, unclean hands, and set-off of amounts attributable to claims not pursued by Plaintiff. Plaintiff argues these defenses are legally insufficient because Plaintiff in his capacity as receiver owes no duty to Defendants and because the defenses are inconsistent with the doctrine of sovereign immunity. Plaintiff asserts his role as receiver of GW LIFE is analogous to the role of the Resolution Trust Corporation (“RTC”), the Federal Deposit Insurance Corporation (“FDIC”) and the Federal Savings and Loan Insurance Corporation (“FSLIC”) in cases where those agencies act as liquidators of failed financial institutions. Courts have uniformly held the RTC, FDIC and FSLIC when acting as receivers owe no duty to the institutions or their officers and directors, but rather are duty-bound only to the public. See, e.g., FDIC v. Eckert Seamans Cherin & Mellott, 754 F.Supp. 22, 25 (E.D.N.Y.1990); FSLIC v. Roy, No. JFM-87-1227, 1988 WL 96570, at *1, 1988 U.S.Dist. LEXIS 6840, at *3 (D.Md.June 28, 1988). But while these federal regulatory agencies may not be subject to" }, { "docid": "10433426", "title": "", "text": "conduct at issue was premised on several considerations. The FDIC’s conduct in fulfilling its mandate involves discretionary decisions that should not be subjected to judicial second guessing. Id. at 532. The FDIC owes no duty to the officers and directors of the failed institution (no duty rule). Id. The banking laws further the public good, and seek to minimize loss to the insurance fund. See generally Id. at 532 (quoting Federal Sav. and Loan Ins. Corp. v. Burdette, 718 F.Supp. 649, 664 (E.D.Tenn.1989)); Federal Deposit Ins. Corp. v. Bank of Boulder, 911 F.2d 1466, 1474 (10th Cir.1990), cert. denied, 499 U.S. 904, 111 S.Ct. 1103, 113 L.Ed.2d 213 (1991). The rule in Isham paints a bright line that maintains the focus on the persons whose alleged wrongdoing brought about the insolvency in the first instance. Isham, 782 F.Supp. at 532. The public policy underlying Isham is equally applicable to the RTC. See 12 U.S.C. § 1441a(b)(4). I decline to reconsider my holding in Isham in light of F.D.I.C. v. Niblo, 821 F.Supp. 441 (N.D.Tex.1993). Niblo applied Texas law in determining the sufficiency of certain affirmative defenses and, in any event, with respect, I am not persuaded by its rationale. I will grant the RTC’s request to strike the D & 0 defendants’ affirmative defenses of contributory and comparative negligence, failure to mitigate, waiver, estoppel, ratification, consent, acquiescence, reliance on banking regulators, assumption of risk, laches, unclean hands, lack of causation, intervening and superseding causes, and reliance to the extent that these defenses implicate the conduct of the RTC or other federal regulatory agencies. However, as in Isham, defendants are free to contest that their acts of commission or omission, if any, did not proximately cause RTC’s damages. Isham is not dispositive, however, as to Engel & Rudman’s defenses implicating RTC’s conduct. First, Engel & Rudman are third party professionals not alleged to have had control, oversight authority, or responsibility over the lending practices giving rise to this action. Second, my review of the pleadings and papers filed by the parties reveal no allegations that Engel & Rudman were “persons whose" }, { "docid": "14944566", "title": "", "text": "698 F.Supp. 178 (D.Minn.1988); FSLIC v. Roy, No. JFM-87-1227, 1988 WL 96570, 1988 U.S.Dist. LEXIS 6840 (D.Md.1988). When a savings and loan fails and the RTC is appointed receiver, \"it is important to the public that the receiver rapidly and efficiently convert the assets of that institution to cash to repay the losses incurred by the insurance fund and the depositors for deposits not covered.\" FSLIC v. Burdette, 718 F.Supp. 649, 663 (E.D.Tenn.1989); see also Gunter v. Hutcheson, 674 F.2d 862, 869 (11th Cir.1982) (\"... decisions concerning the appropriate method of dealing with a bank failure must be made with extraordinary speed if the going concern value of the failed institution is to be preserved.\"). This interest in speed means that different concerns are involved in RTC decisionmaking than would be the case in a savings and loan operating under normal conditions. Accordingly, it is in the public interest that the RTC be able to pursue its tasks without being subject to criticism by former officers and directors of the failed institution, endowed with 20/20 hindsight. Suits by the FSLIC as a receiver to recover assets, or to recover damages for wrongdoing, should not be encumbered by an examination in court of the correctness of any specific act of the FSLIC in its receivership. The rule that there is no duty owed to the institution or wrongdoers by the FSLIC/Receiver is simply a means of expressing the broad public policy that the banking laws creating the FSLIC and prescribing its duties are directed to the public good, and that every separate act of the FSLIC as a receiver in collecting assets is not open to second-guessing in actions to recover damages from wrongdoing directors and officers. If there is no wrongdoing by the officers or directors, there can be no liability, but if wrongdoing is established, the officers or directors should not be allowed to set up as a defense a claim that would permit the detailed examination of the FSLIC's action as a receiver. FSLIC v. Burdette, 718 F.Supp. 649, 663 (E.D.Tenn.1989). See also FDIC v. Lowe, - F.Supp." }, { "docid": "9518613", "title": "", "text": "Housing: Cost Information on FmHA’s Section 515 Program and Other Housing Options” 86 (Aug.1987) (noting a Congressional Budget Office estimate that approximately 70 percent of the section 515 loans issued in 1983 would prepay after twenty years); GAO, \"Rental Housing: Potential Reduction in the Privately Owned and Federal Assisted Inventory” 27 (June 1986) (estimating potential reduction in FmHA portfolio); see also GAO, \"Rural Rental Housing: Impact of Section 515 Prepayments on Tenants and Housing Availability\" 30-35 (Feb.1988) (noting that proximity to cities of 50,000 persons or more was indicative of likelihood to prepay). . See also Miller v. Asensio & Co., Inc., 364 F.3d 223, 232 (4th Cir.2004) (\"establishing loss sufficient to prove liability ... does not require a plaintiff to prove that defendant's [conduct] was the sole cause of plaintiff’s loss”); Aramony v. United Way Replacement Benefit Plan, 191 F.3d 140, 154 (2d Cir.1999) (\"it is unnecessary ... to demonstrate that a defendant’s breach is the sole cause of an injury to recover for the entire injury”). . An example is Long Island Savings Bank, supra, where this court held that the government could not raise actions taken by the bank subsequent to the passage of FIRREA to demonstrate that the statute did not proximately cause the bank to lose profits. The court noted that \"[t]he government’s position ... might affect the amount of lost profits that are recoverable, but it does not constitute a full defense.” 60 Fed.Cl. at 93. The court thereby declined to consider these arguments in the context of causation, holding instead that the \"burden is on the government to show that the bank’s actual efforts at mitigation were unreasonable.” Id. at 93; see also FDIC v. Mijalis, 15 F.3d 1314, 1327-28 (5th Cir.1994) (defendants barred from arguing mitigation could not alternatively argue that FDIC's decisions following takeover of their bank \"proximately caused” the damages in question). . The fountainhead for the rule that lost profits deriving from a breach of contract must be foreseeable is the historic case of Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Rep. 145 (1854); see 1 Robert L." }, { "docid": "7262038", "title": "", "text": "Isham, 782 F.Supp. at 532 (quoting FSLIC v. Roy, 1988 WL 96570 (D.Md.1988)); see also Burdette, 718 F.Supp. at 663-4. This Court finds no need to adopt one line of reasoning over the other; both are valid, and they are joined at the hip. What is apparent is the emergence of a bright-line rule that a federal banking agency, when bringing a tort claim as surrogate for the public, is exempt from the affirmative defenses arising from its regulatory conduct that would normally apply to private individuals. The Court finds support for this proposition, by negative implication, in the Fifth Circuit’s decision in FDIC v. Ernst & Young, 967 F.2d 166 (5th Cir.1992). In that case, the court held that “the FDIC is not entitled to special protection when it brings a tort claim against a third party on behalf of a defunct financial entity.” Id. at 170. Of critical importance to the decision was that the FDIC, although it was authorized to sue the defendants on its own behalf or on behalf of the failed banking institution’s creditors, had chosen to bring its claim solely as the banking institution’s assignee. The court emphasized: “No statutory justification or public policy exists to treat the FDIC differently from other assignees when the FDIC as a matter of choice in this case has limited its claim to that of an assignee.” Id. at 170. In so stressing the FDIC’s limited capacity, the court implied that the FDIC might indeed be exempted from normal defenses should it choose to sue in a capacity that would invoke public policy considerations. Such is the case here. Accordingly, to the extent Shearson’s affirmative defenses are based on pre- or post-failure governmental regulatory conduct, the defenses are legally insufficient. Only in the narrow event that an affirmative defense is based on nonregulatory conduct, and is offered against a claim that the FDIC brings solely in its capacity as Guaranty Federal’s assignee, is the defense legally sufficient in this ease. See Ernst & Young, 967 F.2d at 170. Such a defense, if any, remains for trial. Otherwise, the" } ]

[ { "docid": "22223639", "title": "", "text": "Frey appealed his removal to the Board. On December 19, 2001, Mr. Frey voluntarily withdrew his appeal to the Board in order to permit the agency to investigate his claims of age discrimination and retaliation for whistleblowing. Subsequently, on October 30, 2002, he refiled his appeal after receiving a final decision from the agency denying his discrimination and whistleblowing claims. Before the Board, Mr. Frey asserted the affirmative defenses of age discrimination and retaliation for whistleblowing. II. Reassignments of federal employees are authorized by regulation. See 5 C.F.R. § 335.102 (2000). In that regard, the Board has held that discipline is warranted for refusing to accept a legitimate directed reassignment and that removal is not an unreasonably harsh penalty for such a refusal. See, e.g., Nalbandian v. Dep’t of the Interior, 25 M.S.P.R. 691, 695 (1985). However, where a removal action is based on a refusal to accept a directed geographical reassignment, the agency must prove by a preponderance of the evidence that its reassignment decision “was bona fide, and based upon legitimate management considerations in the interest of the service.” Umshler v. Dep’t of the Interior, 44 M.S.P.R. 628, 630 (1990) (citing Ketterer v. Dep’t of Agric., 2 MSPB 459, 2 M.S.P.R. 294, 298 (1980)). “If the employee can demonstrate that the reassignment had no solid or substantial basis in personnel practice or principle, the Board may conclude that it was not a valid discretionary management determination, but was instead either an improper effort to pressure the appellant to retire, or was at least an arbitrary and capricious adverse action.” Id. (citing Rayfield v. Dep’t of Agric., 26 M.S.P.R. 244, 246 (1985)). Once it is established or unchallenged that a reassignment was properly ordered in an exercise of agency discretion under 5 C.F.R. part 335, the Board will not review the management considerations underlying that exercise of discretion. Ketterer, 2 M.S.P.R. at 299 n. 8. In Mr. Frey’s case, following a hearing, an administrative judge (“AJ”) determined that the agency had established legitimate reasons for reassigning Mr. Frey. Mr. Hooker testified before the AJ that, as early as 1999," } ]

[ { "docid": "14981834", "title": "", "text": "with the AJ’s undisturbed findings of fact. For her part, Ms. Miller argues that the Board correctly determined that the agency failed to meet its burden of showing a bona fide reassignment. She contends that, in reaching its decision, the Board did not exceed the scope of its authority by reviewing whether managerial discretion had been properly invoked by the agency. Ms. Miller urges that the Board properly found that she showed that her reassignment had no basis in personnel practice. While conceding that there is no direct evidence that the agency desired her separation or resignation, she nevertheless insists that the Board was within its authority to infer from the agency’s actions that she was not reassigned in good faith. Significantly, on appeal, Ms. Miller does not challenge the AJ’s credibility determinations, her findings of fact, or her rejection of Ms. Miller’s several affirmative defenses. Neither does Ms. Miller argue any grounds for reversing the AJ’s decision sustaining her removal, other than those upon which the Board relied. The MSPB on appeal agrees with Ms. Miller that the Board reached the correct result in this case. In addition, it contends that, as a part of the Board’s statutory authorization to conduct a de novo review of adverse removal actions, it may look at the merits of an agency’s underlying reassignment order. It urges that the Board must review the agency’s action in its en tirety, including the agency’s management considerations in ordering a reassignment. II. Turning to our analysis, we first hold that the Board erred as a matter of law in abandoning the Ketterer two-step burden-shifting approach described above. In Frey, we examined Ketterer and Umshler, and we set forth the burden-shifting approach that they articulate. 359 F.3d at 1360. Then, referring to Ketterer and Umshler, we stated: “We endorse the Board’s approach in these cases, as set forth above, and adopt it as the law of the circuit.” Id (emphasis added). Thus, contrary to what the Board said in Miller II, we did not merely “endorse” the Ketterer framework. Rather, in clear and certain terms, we made" }, { "docid": "14981815", "title": "", "text": "the reassignment to May 14, 2010. Id. 92. On May 12, Mr. Voluck wrote Mr. Knox asking for a further extension of time. After receiving no response, Mr. Voluck emailed Mr. Knox on May 14, declining Ms. Miller’s directed reassignment. His email stated that the liaison position created a “geographic hardship” that allowed “no other viable option for Ms. Miller other than to decline the Anchorage-based position.” Initial Decision at 3. On May 19, 2010, Mr. Knox presented Ms. Miller with an official notice of proposed removal. J.A. 88-91. The notice outlined the reasons Mr. Knox believed Ms. Miller to be “uniquely qualified to fill the newly created position of Alaska Native Affairs Liaison.” Id. 88. It also explained that removal was necessary because Ms. Miller’s refusal to accept the position, among other things, “undermine[d] the agency’s ability to assign and manage work and efficiently manage its workforce.” Id. 89. On July 26, 2010, Regional Director Susan Masica issued a decision sustaining Ms. Miller’s removal for failure to accept the management-directed reassignment. Id. 80-87. Ms. Masica found unpersuasive Ms. Miller’s preference “to remain in Sitka because of family, financial and medical reasons.” Id. 81. She also found that “removal [was] the appropriate penalty and w[ould] promote the efficiency of the service.” Id. 80. Ms. Miller’s removal became effective August 6, 2010. II. Ms. Miller timely appealed her removal to the Board. Before the Board, she contended that the agency’s decision to direct her reassignment to the Alaska Native Affairs Liaison position was not bona fide because the position was created for the sole purpose of reassigning her from her superintendent position without triggering an adverse action. She also contended that she was not qualified for the position. Initial Decision at 13. Ms. Miller also asserted several affirmative defenses. First, she argued that Ms. Masica should not have been the deciding official because she was one of her immediate supervisors. Id. at 22. Second, she contended that the removal action involved discrimination based on her gender, race, and physical disability. Id. at 23-28. And third, she asserted that the removal was" }, { "docid": "14981822", "title": "", "text": "agency.” Id. (quoting Losure v. Interstate Commerce Comm’n, 2 MSPB 361, 2 M.S.P.R. 195, 201-02 (1980)). Subsequently, in Umshler v. Department of the Interior, the Board reiterated that, once the agency establishes a prima facie case, the burden of going forward with rebuttal evidence shifts to the employee, even though the ultimate burden of proof never shifts from the agency. 44 M.S.P.R. 628, 630 (1990) (citing Ketterer, 2 M.S.P.R. at 298-99). And the Board elaborated: If the employee can demonstrate that the reassignment had no solid or substantial basis in personnel practice or principle, the Board may conclude that it was not a valid discretionary management determination, but was instead either an improper effort to pressure the appellant to retire, or was at least an arbitrary and capricious adverse action. Id. The AJ found that, through the testimony of Mr. Knox and Ms. Masica, the agency had met its initial burden of showing, by a preponderance of the evidence, that it had legitimate management reasons for Ms. Miller’s reassignment. Initial Decision at 6-13. The AJ also found that Ms. Miller had failed to rebut the agency’s prima facie case for reassignment. Id. at 13-21. The AJ determined that the Alaska Native Affairs Liaison position was created based on valid agency concerns. The AJ credited Mr. Knox’s testimony, finding that the position was not created merely for purposes of reassigning Ms. Miller, but had been discussed months in advance of the reassignment order as a result of an undisputed need for a liaison position in the Alaska Region. Id. at 20. With respect to qualifications, the AJ found that Ms. Miller “was qualified to perform the duties ... of the new position.” Id. at 21. At the same time, she found that Ms. Miller’s testimony regarding her application for the liaison position within the Department of the Army to be “not credible” and “unpersuasive.” Id. at 18, 19, 21. The AJ determined that it was “highly improbable” that Ms. Miller would have accepted the Department of the Army position, even if it had been offered. Id. at 19. Based on her" }, { "docid": "14981839", "title": "", "text": "not qualified for the [Alaska Native Affairs Liaison] position.” Id. at 20; see also id. at 17-18 (explaining that Supervisory Human Resource Specialist, Helen Stewart, testified that Ms. Miller was qualified for the liaison position). While the AJ was sympathetic to Ms. Miller’s reservations about leaving Sitka for Anchorage, she found that no evidence presented by Ms. Miller undermined the agency’s basis for reassignment, especially in view of the agency’s broad discretion to reassign employees. Id. at 21; see also Gava v. United States, 699 F.2d 1367, 1370 (Fed.Cir.1983) (“[T]he government has broad discretion to reassign its employees to different locations, and to discharge them for refusal to accept a new assignment.”). The AJ thus found that Ms. Miller did not rebut the agency’s legitimate management decision. Substantial evidence supports that finding. The Board’s statement that “the agency failed to present any evidence showing that its reasons for directing [Ms. Miller’s] reassignment to Anchorage were bona fide such as to support a finding that her removal for refusing to take the reassignment promoted the efficiency of the service,” Miller I, 119 M.S.P.R. at 443-444, is not supported by the record and is contrary to the AJ’s unchallenged findings of fact discussed above. Contrary to the Board’s reasoning, the fact that the agency lost a skilled employee in Ms. Miller and had two position vacancies after her removal does not demonstrate that the efficiency of the service was not served by her removal, or suggest an improper effort to force her separation. See Miller II, 120 M.S.P.R. at 437; Miller I, 119 M.S.P.R. at 444. It is the case in every legitimate removal of an employee for failure to accept a directed reassignment that the agency will be confronted with the loss of an employee with expertise that the agency considered valuable and that the agency will have two vacancies to fill. Quite simply, no evidence cited by the Board supports either its conclusion that credible evidence “cast doubt on the agency’s motivations” or its conclusion that Ms. Miller’s reassignment was a “veil” to effect her removal. Indeed, the AJ’s undisturbed" }, { "docid": "22223647", "title": "", "text": "States, 203 Ct.Cl. 285, 288 (1973); Burton v. United States, 186 Ct.Cl. 172, 404 F.2d 365, 369 (1968)). Our predecessor court consistently upheld the discretion of an agency to terminate an employee who refused a geographical reassignment. See, e.g., Comberiate, 203 Ct.Cl. 285; Burton, 186 Ct.Cl. 172, 404 F.2d 365; Schmidt v. United States, 145 Ct.Cl. 632 (1959). The Board explained in Ketterer that in the case of a removal for cause following a refusal to accept a reassignment, the agency must prove by a preponderance of the evidence that “the removal will promote the efficiency of the service”; that requires a showing that the agency’s decision “was a bona fide determination based on legitimate management considerations in the interest of the service.” . 2 M.S.P.R. at 298; see also Umshler, 44 M.S.P.R. at 630. In Umshler, the Board stated that evidence of “a legitimate management reason for the reassignment,” combined with evidence that the employee not only received adequate notice of the reassignment but also refused to accept it, is sufficient to establish a prima facie case supporting the validity of the reassignment. 44 M.S.P.R. at 630; see also Ketterer, 2 M.S.P.R. at 299. Once a prima facie case is established, the burden of going forward with the evidence shifts to the employee, despite the fact that the burden of proof remains with the agency. Umshler, 44 M.S.P.R. at 630 (citing Ketterer, 2 M.S.P.R. at 299). If the employee can show that “the reassignment had no solid or substantial basis in personnel practice or principle,” the Board may then conclude that the reassignment was not a valid exercise of managerial discretion, but was instead “either an improper effort to pressure the appellant to retire, or was at least an arbitrary and capricious action.” Id. (citing Rayfield, 26 M.S.P.R. at 246). We endorse the Board’s approach in these cases, as set forth above, and adopt it as the law of the circuit. III. Turning to the matter at hand, we see no error in the Board’s decision in this case. The Board determined that three mines under the jurisdiction of" }, { "docid": "14981821", "title": "", "text": "upon refusal to accept a reassignment. “In a removal for cause following a refusal to accept a reassignment,” the Board stated, “the agency must prove by a preponderance of the evidence that the removal will promote the efficiency of the service. This necessarily includes a demonstration that the agency’s decision to reassign the employee was a bona fide determination based on legitimate management considerations in the interests of the service.” Ketterer, 2 M.S.P.R. at 298. The Board continued: “As part of its initial burden, the agency must come forward with evidence showing a legitimate management reason for the reassignment.” Id. at 299. The Board explained that “[tjogether with evidence that the employee had adequate notice of the decision to transfer and that he refused to accept the reassignment, this would ordinarily be sufficient to establish a prima facie case.” Id. The Board stated that, “[o]nce the agency makes out a prima facie case, the burden of going forward with rebuttal evidence shifts to the employee but the burden of persuasion ... never shifts from the agency.” Id. (quoting Losure v. Interstate Commerce Comm’n, 2 MSPB 361, 2 M.S.P.R. 195, 201-02 (1980)). Subsequently, in Umshler v. Department of the Interior, the Board reiterated that, once the agency establishes a prima facie case, the burden of going forward with rebuttal evidence shifts to the employee, even though the ultimate burden of proof never shifts from the agency. 44 M.S.P.R. 628, 630 (1990) (citing Ketterer, 2 M.S.P.R. at 298-99). And the Board elaborated: If the employee can demonstrate that the reassignment had no solid or substantial basis in personnel practice or principle, the Board may conclude that it was not a valid discretionary management determination, but was instead either an improper effort to pressure the appellant to retire, or was at least an arbitrary and capricious adverse action. Id. The AJ found that, through the testimony of Mr. Knox and Ms. Masica, the agency had met its initial burden of showing, by a preponderance of the evidence, that it had legitimate management reasons for Ms. Miller’s reassignment. Initial Decision at 6-13. The AJ" }, { "docid": "14981832", "title": "", "text": "Cir.1998). I. OPM asks us to reverse the Board’s decision reinstating Ms. Miller to her position as Park Superintendent of SNHP. It first argues that the Board committed reversible error because it effectively engaged in a review of the merits of the agency’s reassignment order. It contends that agencies have, and require, broad discretion in the management of their workforces, which includes the reassignment of employees. It points out that reassignment, by itself, is not an “adverse action” subject to the Board’s plenary review. It argues the Board’s review is limited under our precedent in Frey to determining only whether the reassignment had “no solid or substantial basis in personnel practice.” Frey, 359 F.3d at 1360. OPM further contends that the Board’s decision is contrary to the AJ’s undisturbed findings of fact. It points to the AJ’s finding that the agency demonstrated a legitimate need for the liaison position in the Alaska region, as well as her finding that the agency also demonstrated a need for the position to be in Anchorage. See Initial Decision at 20 (“The evidence ... shows that the agency had decided to create the new position ... for valid agency concerns” and that there was a “need for a full time Alaska Native Affairs Liaison position to be based in Anchorage.”). OPM also points to the AJ’s crediting of the testimony of Mr. Knox that Ms. Miller was considered the best qualified employee in the Alaska region. See, e.g., id. (“Mr. Knox credibly testified that he decided to reassign [Ms. Miller] when he was working on creating the new position in the spring of 2010 and discussed her abilities for the new position with Ms. Masica because she had exhibited the very skills they wanted in the position while working as the Superintendent in Sitka.”). OPM further points to the testimony of Ms. Masica that “the appellant was doing a great job of building relationships and had good ideas for solving problems and how to tackle them.” Id. OPM therefore argues that the Board’s conclusion that the agency’s decision was not bona fide is inconsistent" }, { "docid": "22223648", "title": "", "text": "prima facie case supporting the validity of the reassignment. 44 M.S.P.R. at 630; see also Ketterer, 2 M.S.P.R. at 299. Once a prima facie case is established, the burden of going forward with the evidence shifts to the employee, despite the fact that the burden of proof remains with the agency. Umshler, 44 M.S.P.R. at 630 (citing Ketterer, 2 M.S.P.R. at 299). If the employee can show that “the reassignment had no solid or substantial basis in personnel practice or principle,” the Board may then conclude that the reassignment was not a valid exercise of managerial discretion, but was instead “either an improper effort to pressure the appellant to retire, or was at least an arbitrary and capricious action.” Id. (citing Rayfield, 26 M.S.P.R. at 246). We endorse the Board’s approach in these cases, as set forth above, and adopt it as the law of the circuit. III. Turning to the matter at hand, we see no error in the Board’s decision in this case. The Board determined that three mines under the jurisdiction of the Delta Field Office had experienced significant mine fires or accidents in the 1999-2000 time period; that Mr. Kuzar possessed the managerial discretion to determine that Mr. Ramey was better suited than Mr. Frey to address the problems in the Delta Field Office; and that Mr. Frey would face less complicated enforcement problems with surface mines at McAlester. These findings, which are based upon substantial evidence, fully support the Board’s conclusion that the agency established a bona fide, legitimate management reason for Mr. Frey’s geographical reassignment. Mr. Frey’s argument that the agency did not establish the legitimacy of his reas signment is essentially an attack on the AJ’s determination that the testimony of Mr. Kuzar and Mr. Hooker was credible. The evaluation of witness credibility is a matter within the discretion of the AJ and is “virtually unreviewable.” King v. Dep’t of Health & Human Servs., 133 F.3d 1450, 1453 (Fed.Cir.1998) (quoting Clark v. Dep’t of the Army, 997 F.2d 1466, 1473 (Fed.Cir.1993)). Mr. Frey has not advanced sufficient reason for overturning the AJ’s credibility" }, { "docid": "14981841", "title": "", "text": "and unchallenged findings of facts are squarely to the contrary. Ms. Miller and the MSPB argue that the Board’s ultimate decisions in Ketterer and Umshler support affirmance in this case. We disagree. In both Ketterer and Umshler, the Board set aside removal actions that followed an employee’s refusal to accept a reassignment. This case is unlike Ketterer and Umshler, however. In Ketterer, credible evidence was presented that the basis for the appellant’s reassignment was mistaken, that his removal was based on an effort to promote another employee, and that the reassignment location was used “as a place to send employees in order to encourage them to leave the agency by retirement or resignation.” 2 M.S.P.R. at 299-300. Accordingly, the Board ordered the agency to cancel the appellant’s reassignment and removal. In Umshler, the Board found that the agency had established a prima facie case supporting the validity of the appellant’s reassignment. 44 M.S.P.R. at 630-31. It also found, however, that the AJ had erred by improperly limiting the áppellant’s attempt to rebut that case by casting doubt upon the existence of a legitimate management reason for his reassignment. Id. at 631-32 (“[T]he administrative judge erred by denying both of the witnesses the appellant requested to establish that the agency engaged in a pattern and practice of using directed reassignments for improper purposes.”). The Board therefore remanded the case for further proceedings. In short, the ultimate decisions in Ketterer and Umshler are inapposite here. Finally, it is beyond dispute that “[failure to follow instructions or abide by requirements affects the agency’s ability to carry out its mission.” Blevins v. Dep’t of the Army, 26 M.S.P.R. 101, 104 (1985), aff'd, 790 F.2d 95 (Fed.Cir.1986) (table). Ms. Miller’s refusal to accept reassignment thus bore directly on the efficiency of the service. In addition, “[t]o say that an agency must select a penalty other than removal when an employee unjustifiably refuses a reassignment is in effect to say that the agency cannot insist on compliance with a lawful reassignment order.” Wieser, 280 Fed.Appx. at 962; see also Frey, 359 F.3d at 1360 (“Our predecessor" }, { "docid": "14981826", "title": "", "text": "that the AJ erred because the agency lacked legitimate management reasons for reassigning her to the Alaska Native Affairs Liaison position; and (2) that she did not meet the minimum qualifications for the position. On April 3, 2013, the Board issued an Opinion and Order vacating the AJ’s decision and reversing Ms. Miller’s removal. In its decision, the Board revisited and abandoned Ketterer’s two-step analytical framework for reviewing adverse actions based on refusal to accept a directed reassignment. Miller v. Dep’t of the Interior, No. SF-0752-11-0766-1-1 (M.S.P.B. Apr. 3, 2013) (vacated). In its place, the Board adopted a single efficiency of the service standard for analyzing together both the reassignment and the adverse action. Having done so, it ruled that Ms. Miller’s reassignment and removal did not promote the efficiency of the service. Several weeks later, however, on May 13, 2013, the Board reopened the case on its own pursuant to 5 C.F.R. § 1201.118. After doing so, it vacated its April 3 opinion and issued a substitute opinion, still reversing Ms. Miller’s removal. Miller I, 119 M.S.P.R. at 440. In its substitute opinion, the Board again stated that it was abandoning the two-step framework of Ketterer. In the Board’s view, “the burden-shifting apparatus outlined in Ketterer does not meaningfully add to the Board’s adjudication of an adverse action based on a refusal to accept a directed geographic reassignment.” Id. at 441-42. The Board stated that, in “abandoning the cumbersome and unnecessary burden-shifting approach,” it was not departing “from any of the jurisprudential principles otherwise governing [the] review of an adverse action based on a refusal to accept a geographic reassignment.” Id. at 442. The Board stated that henceforth it would “simply weigh all the evidence and make a finding on the ultimate issue of whether the agency proved ... that the misconduct occurred and that its action promotes the efficiency of the service.” Id. Having rejected Ketterer’s burden-shifting framework, the Board ruled that the evidence did not support a finding that Ms. Miller’s reassignment was due to bona fide management considerations or that her removal promoted the efficiency of" }, { "docid": "14981830", "title": "", "text": "(citing Tunik v. Merit Sys. Prot. Bd., 407 F.3d 1326, 1336-38 (Fed.Cir.2005)). The Board also addressed OPM’s argument that it had improperly imposed a new requirement that an agency prove that a reassignment was “necessary” and not based on just a legitimate reason. The Board rejected OPM’s claim that it had added a new requirement in reassignment cases. It explained that, despite its focus on whether Ms. Miller’s position had been 'eliminated, its overall “emphasis” was on the agency’s failure to show a bona fide reason for reassignment. Id. at 431-32. Accordingly, the Board modified Miller I by stating that “an agency need not prove that a geographic reassignment is ‘necessary.’ ” Id. at 433. It further modified Miller I by stating that the agency had failed to show any “rational basis” for requiring Ms. Miller to accept the reassignment because it did not show, for example, that “the Superintendent position had been eliminated” or that there was “no need for [Ms. Miller’s] continued performance.” Id. Finally, the Board reiterated that it had found that “the agency did not show that its reasons for the directed geographic reassignment were bona fide and that the agency instead invoked its discretion to reassign the appellant as a ‘veil’ to effect her separation.” Id. at 438. The Board accordingly affirmed, as modified, its decision in Miller I, making it the final decision of the Board. Id. As noted, pursuant to 5 U.S.C. § 7703(d), OPM petitioned us to review the Board’s final decision, and we granted the petition. Miller, 562 Fed.Appx. 978. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1295(a)(9). Discussion The scope of our review in an appeal from a decision of the Board is limited. 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) unsup ported by substantial evidence. 5 U.S.C. § 7703(e); Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed." }, { "docid": "14981820", "title": "", "text": "qualifications, during its case-in-chief, the agency presented the testimony of Helen Stewart. Id. at 17-18. Ms. Stewart is a Supervisory Human Resource Specialist with the U.S. Fish and Wildlife Service. Ms. Stewart testified, contrary to Mr. Perloff, that Ms. Miller was qualified for the liaison position and that, if she was not qualified for the position, she would not have been qualified for her prior Park Superintendent position at SNHP. Id. at 17. Ms. Stewart also testified that iterative development and classification of new positions is common. She explained that managers often work with classifiers over a period of time to make adjustments to a position description in order to obtain the desired workforce results. In deciding Ms. Miller’s appeal, the AJ employed the analytical framework set forth in Ketterer v. Department of Agriculture, 2 MSPB 459, 2 M.S.P.R. 294 (1980). See Initial Decision at 5-6 (citing Frey v. Dep’t of Labor, 359 F.3d 1355, 1360 (Fed. Cir.2004)). In Ketterer, the Board established a two-step approach for deciding an appeal of a removal action based upon refusal to accept a reassignment. “In a removal for cause following a refusal to accept a reassignment,” the Board stated, “the agency must prove by a preponderance of the evidence that the removal will promote the efficiency of the service. This necessarily includes a demonstration that the agency’s decision to reassign the employee was a bona fide determination based on legitimate management considerations in the interests of the service.” Ketterer, 2 M.S.P.R. at 298. The Board continued: “As part of its initial burden, the agency must come forward with evidence showing a legitimate management reason for the reassignment.” Id. at 299. The Board explained that “[tjogether with evidence that the employee had adequate notice of the decision to transfer and that he refused to accept the reassignment, this would ordinarily be sufficient to establish a prima facie case.” Id. The Board stated that, “[o]nce the agency makes out a prima facie case, the burden of going forward with rebuttal evidence shifts to the employee but the burden of persuasion ... never shifts from the" }, { "docid": "22223640", "title": "", "text": "in the interest of the service.” Umshler v. Dep’t of the Interior, 44 M.S.P.R. 628, 630 (1990) (citing Ketterer v. Dep’t of Agric., 2 MSPB 459, 2 M.S.P.R. 294, 298 (1980)). “If the employee can demonstrate that the reassignment had no solid or substantial basis in personnel practice or principle, the Board may conclude that it was not a valid discretionary management determination, but was instead either an improper effort to pressure the appellant to retire, or was at least an arbitrary and capricious adverse action.” Id. (citing Rayfield v. Dep’t of Agric., 26 M.S.P.R. 244, 246 (1985)). Once it is established or unchallenged that a reassignment was properly ordered in an exercise of agency discretion under 5 C.F.R. part 335, the Board will not review the management considerations underlying that exercise of discretion. Ketterer, 2 M.S.P.R. at 299 n. 8. In Mr. Frey’s case, following a hearing, an administrative judge (“AJ”) determined that the agency had established legitimate reasons for reassigning Mr. Frey. Mr. Hooker testified before the AJ that, as early as 1999, District 9 Director Jack Kuzar had asked him to develop a plan to address perceived deficiencies in field office operations. According to Mr. Hooker, these deficiencies included enforcement and working relationship problems at certain mines, personal relationship problems in some offices, and underachieving inspectors. He explained that after visiting the various field offices and considering a range of options, he concluded that moving supervisory inspectors would be the best way to improve field office operations. Mr. Hooker testified that he proposed a total of six reassignments to Mr. Kuzar. Mr. Kuzar testified that his principal concern involved recent fires and accidents at three mines inspected by the Delta Field Office. He explained that he did not consider Mr. Frey to be one of his strongest inspectors in charge, and he stated that he felt another supervisor could better resolve the problems facing the Delta Field Office. Accordingly, Mr. Kuzar accepted Mr. Hooker’s proposal for reassignments and gained the necessary approval from MSHA headquarters. Among the reassignments that were authorized were the transfers of Larry Ramey" }, { "docid": "14981842", "title": "", "text": "casting doubt upon the existence of a legitimate management reason for his reassignment. Id. at 631-32 (“[T]he administrative judge erred by denying both of the witnesses the appellant requested to establish that the agency engaged in a pattern and practice of using directed reassignments for improper purposes.”). The Board therefore remanded the case for further proceedings. In short, the ultimate decisions in Ketterer and Umshler are inapposite here. Finally, it is beyond dispute that “[failure to follow instructions or abide by requirements affects the agency’s ability to carry out its mission.” Blevins v. Dep’t of the Army, 26 M.S.P.R. 101, 104 (1985), aff'd, 790 F.2d 95 (Fed.Cir.1986) (table). Ms. Miller’s refusal to accept reassignment thus bore directly on the efficiency of the service. In addition, “[t]o say that an agency must select a penalty other than removal when an employee unjustifiably refuses a reassignment is in effect to say that the agency cannot insist on compliance with a lawful reassignment order.” Wieser, 280 Fed.Appx. at 962; see also Frey, 359 F.3d at 1360 (“Our predecessor court consistently upheld the discretion of an agency to terminate an employee who refused a geographical reassignment.”). It was not improper for the agency to remove Ms. Miller after she refused to accept reassignment. Conclusion In her Initial Decision, the AJ properly utilized the Ketterer two-step, burden-shifting framework adopted by this court in Frey as law of the circuit. The AJ determined — based on credibility determinations and findings of fact undisturbed by the Board and unchallenged on appeal— that the agency had made out a prima facie case that the decision to reassign Ms. Miller was supported by legitimate management reasons and that Ms. Miller had failed to rebut that prima facie case. We, accordingly, reverse the decision of the Board vacating the Initial Decision and reversing Ms. Miller’s removal. The case is remanded to the Board, which is instructed to instate the Initial Decision as the final decision of the Board. REVERSED and REMANDED Costs Each party shall bear its own costs. . OPM may petition this court for review of a Board" }, { "docid": "14981827", "title": "", "text": "I, 119 M.S.P.R. at 440. In its substitute opinion, the Board again stated that it was abandoning the two-step framework of Ketterer. In the Board’s view, “the burden-shifting apparatus outlined in Ketterer does not meaningfully add to the Board’s adjudication of an adverse action based on a refusal to accept a directed geographic reassignment.” Id. at 441-42. The Board stated that, in “abandoning the cumbersome and unnecessary burden-shifting approach,” it was not departing “from any of the jurisprudential principles otherwise governing [the] review of an adverse action based on a refusal to accept a geographic reassignment.” Id. at 442. The Board stated that henceforth it would “simply weigh all the evidence and make a finding on the ultimate issue of whether the agency proved ... that the misconduct occurred and that its action promotes the efficiency of the service.” Id. Having rejected Ketterer’s burden-shifting framework, the Board ruled that the evidence did not support a finding that Ms. Miller’s reassignment was due to bona fide management considerations or that her removal promoted the efficiency of the service. Id. at 443. It instead found that Ms. Miller submitted “credible evidence to cast doubt on the agency’s motivations in effecting her removal” and that the reassignment was merely a “veil” to effect her separation. Id. at 444. Specifically, the Board concluded that the agency, while having a legitimate basis for creating the Alaska Native Affairs Liaison position, failed to establish a rational basis for requiring Ms. Miller to accept the reassignment. Id. at 443. In reaching that conclusion, the Board pointed out that the agency had not shown that the reassignment was “necessary” due to the park superintendent position being eliminated or due to a reduction-in-force program. Id. Accordingly, the Board ruled that the “agency ... failed to provide any evidence that the appellant’s geographic reassignment was necessary” or any evidence that her removal was “rationally related to the efficiency of the service.” Id. at 444. Thus, the Board reversed the agency’s re moval and ordered Ms. Miller’s reinstatement as Park Superintendent of SNHP. Id. OPM petitioned the Board to reconsider Miller" }, { "docid": "14981831", "title": "", "text": "“the agency did not show that its reasons for the directed geographic reassignment were bona fide and that the agency instead invoked its discretion to reassign the appellant as a ‘veil’ to effect her separation.” Id. at 438. The Board accordingly affirmed, as modified, its decision in Miller I, making it the final decision of the Board. Id. As noted, pursuant to 5 U.S.C. § 7703(d), OPM petitioned us to review the Board’s final decision, and we granted the petition. Miller, 562 Fed.Appx. 978. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1295(a)(9). Discussion The scope of our review in an appeal from a decision of the Board is limited. 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) unsup ported by substantial evidence. 5 U.S.C. § 7703(e); Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir.1998). I. OPM asks us to reverse the Board’s decision reinstating Ms. Miller to her position as Park Superintendent of SNHP. It first argues that the Board committed reversible error because it effectively engaged in a review of the merits of the agency’s reassignment order. It contends that agencies have, and require, broad discretion in the management of their workforces, which includes the reassignment of employees. It points out that reassignment, by itself, is not an “adverse action” subject to the Board’s plenary review. It argues the Board’s review is limited under our precedent in Frey to determining only whether the reassignment had “no solid or substantial basis in personnel practice.” Frey, 359 F.3d at 1360. OPM further contends that the Board’s decision is contrary to the AJ’s undisturbed findings of fact. It points to the AJ’s finding that the agency demonstrated a legitimate need for the liaison position in the Alaska region, as well as her finding that the agency also demonstrated a need for the position to be in Anchorage. See Initial Decision" }, { "docid": "14981824", "title": "", "text": "factual findings and credibility determinations, the AJ sustained the agency’s directed reassignment as being “bona fide.” Id. at 21, 30. The AJ stated: I find that the management directed reassignment was lawful, that it was based on legitimate management considerations and that the appellant was given adequate notice of the reassignment. I also find no merit in the appellant’s assertion that she is not qualified for the position. Lastly, there is no dispute that the appellant declined the management directed reassignment. The record contains her written election. Id. at 19-20 (citation omitted). Ruling on Ms. Miller’s affirmative defenses, the AJ held that Ms. Miller had failed to establish any error associated with Ms. Masica serving as the deciding official; in the AJ’s view, the decision was properly made by an official superior to the proposing official, Mr. Knox. Id. at 23. The AJ also determined that Ms. Miller had failed to establish her several claims of discrimination. Id. at 23-28. The AJ rejected Ms. Miller’s claim of retaliation, finding that there was no nexus between any of her equal employment opportunity complaints and the removal. Id. at 28-29. Finally, the AJ held that the agency’s action removing Ms. Miller for failure to accept the directed reassignment was reasonable and promoted the efficiency of the service. Citing Doe v. Department of Justice, 565 F.3d 1375, 1379 (Fed.Cir.2009), and Brown v. Department of the Navy, 229 F.3d 1356, 1358 (Fed.Cir.2000), the AJ found that Ms. Miller’s refusal to accept the directed reassignment provided the necessary nexus to the efficiency of the service. Initial Decision at 30. As far as reasonableness of the penalty was concerned, citing Frey, 359 F.3d at 1357, the AJ stated: “It is well established that removal is not an unreasonably harsh penalty, for refusing to accept a directed reassignment.” Id. (relying further on Wieser v. Dep’t of the Army, 280 Fed.Appx. 959, 962 (Fed.Cir.2008)). The AJ accordingly affirmed Ms. Miller’s removal for declining a legitimate reassignment order. III. Ms. Miller petitioned the Board for review of the AJ’s decision. In her petition, she made two main arguments: (1)" }, { "docid": "14981833", "title": "", "text": "at 20 (“The evidence ... shows that the agency had decided to create the new position ... for valid agency concerns” and that there was a “need for a full time Alaska Native Affairs Liaison position to be based in Anchorage.”). OPM also points to the AJ’s crediting of the testimony of Mr. Knox that Ms. Miller was considered the best qualified employee in the Alaska region. See, e.g., id. (“Mr. Knox credibly testified that he decided to reassign [Ms. Miller] when he was working on creating the new position in the spring of 2010 and discussed her abilities for the new position with Ms. Masica because she had exhibited the very skills they wanted in the position while working as the Superintendent in Sitka.”). OPM further points to the testimony of Ms. Masica that “the appellant was doing a great job of building relationships and had good ideas for solving problems and how to tackle them.” Id. OPM therefore argues that the Board’s conclusion that the agency’s decision was not bona fide is inconsistent with the AJ’s undisturbed findings of fact. For her part, Ms. Miller argues that the Board correctly determined that the agency failed to meet its burden of showing a bona fide reassignment. She contends that, in reaching its decision, the Board did not exceed the scope of its authority by reviewing whether managerial discretion had been properly invoked by the agency. Ms. Miller urges that the Board properly found that she showed that her reassignment had no basis in personnel practice. While conceding that there is no direct evidence that the agency desired her separation or resignation, she nevertheless insists that the Board was within its authority to infer from the agency’s actions that she was not reassigned in good faith. Significantly, on appeal, Ms. Miller does not challenge the AJ’s credibility determinations, her findings of fact, or her rejection of Ms. Miller’s several affirmative defenses. Neither does Ms. Miller argue any grounds for reversing the AJ’s decision sustaining her removal, other than those upon which the Board relied. The MSPB on appeal agrees with" }, { "docid": "14981838", "title": "", "text": "created to effect Ms. Miller’s reassignment. Id. at 8, 9-10, 20. With respect to Ms. Miller’s qualifications, the AJ credited the testimony of Mr. Knox and Ms. Masica. As seen, they testified that, as Ms. Miller’s supervisors, they believed she had the unique strengths to fill the Alaska Native Affairs Liaison position. The AJ, in fact, found it noteworthy that Ms. Miller told Mr. Knox she would consider the position if it was graded higher, at a GS-14 level. Id. at 10. Thus, the AJ found that the agency had acted to reassign Ms. Miller based on legitimate management considerations. Id. at 12, 20. Substantial evidence supports that finding. The AJ further determined that Ms. Miller did not rebut the agency’s prima facie case for reassignment. The AJ explained in detail that Ms. Miller’s conflicting testimony “put the appellant’s credibility in question.” Id. at 19. She found “unpersuasive” Ms. Miller’s testimony about applying for the Department of the Army liaison position in Washington State and found “no merit in the appellant’s assertion that she is not qualified for the [Alaska Native Affairs Liaison] position.” Id. at 20; see also id. at 17-18 (explaining that Supervisory Human Resource Specialist, Helen Stewart, testified that Ms. Miller was qualified for the liaison position). While the AJ was sympathetic to Ms. Miller’s reservations about leaving Sitka for Anchorage, she found that no evidence presented by Ms. Miller undermined the agency’s basis for reassignment, especially in view of the agency’s broad discretion to reassign employees. Id. at 21; see also Gava v. United States, 699 F.2d 1367, 1370 (Fed.Cir.1983) (“[T]he government has broad discretion to reassign its employees to different locations, and to discharge them for refusal to accept a new assignment.”). The AJ thus found that Ms. Miller did not rebut the agency’s legitimate management decision. Substantial evidence supports that finding. The Board’s statement that “the agency failed to present any evidence showing that its reasons for directing [Ms. Miller’s] reassignment to Anchorage were bona fide such as to support a finding that her removal for refusing to take the reassignment promoted the efficiency" }, { "docid": "14981823", "title": "", "text": "also found that Ms. Miller had failed to rebut the agency’s prima facie case for reassignment. Id. at 13-21. The AJ determined that the Alaska Native Affairs Liaison position was created based on valid agency concerns. The AJ credited Mr. Knox’s testimony, finding that the position was not created merely for purposes of reassigning Ms. Miller, but had been discussed months in advance of the reassignment order as a result of an undisputed need for a liaison position in the Alaska Region. Id. at 20. With respect to qualifications, the AJ found that Ms. Miller “was qualified to perform the duties ... of the new position.” Id. at 21. At the same time, she found that Ms. Miller’s testimony regarding her application for the liaison position within the Department of the Army to be “not credible” and “unpersuasive.” Id. at 18, 19, 21. The AJ determined that it was “highly improbable” that Ms. Miller would have accepted the Department of the Army position, even if it had been offered. Id. at 19. Based on her factual findings and credibility determinations, the AJ sustained the agency’s directed reassignment as being “bona fide.” Id. at 21, 30. The AJ stated: I find that the management directed reassignment was lawful, that it was based on legitimate management considerations and that the appellant was given adequate notice of the reassignment. I also find no merit in the appellant’s assertion that she is not qualified for the position. Lastly, there is no dispute that the appellant declined the management directed reassignment. The record contains her written election. Id. at 19-20 (citation omitted). Ruling on Ms. Miller’s affirmative defenses, the AJ held that Ms. Miller had failed to establish any error associated with Ms. Masica serving as the deciding official; in the AJ’s view, the decision was properly made by an official superior to the proposing official, Mr. Knox. Id. at 23. The AJ also determined that Ms. Miller had failed to establish her several claims of discrimination. Id. at 23-28. The AJ rejected Ms. Miller’s claim of retaliation, finding that there was no nexus between" } ]

[ { "docid": "21758321", "title": "", "text": "the issue in a post-trial motion for a new trial. It is apparent, however, that the court became overly involved in the questioning of witnesses in this case. Indeed, it would not be difficult to conclude that the court’s interruptions and interventions abused its discretion and, in the words of Judge Murnaghan, seemed “to be on, or tending to be on, the side of the Government.” Cassiagnol, 420 F.2d at 878. Without belaboring the point, we simply assume trial error and proceed with the Olano analysis. We will therefore consider whether, in light of the evidence, the judge’s involvement constitutes plain error depriving either Godwin or Curry-Robinson of a fair trial. 1. As noted earlier, supra Part III.B, when we review an issue only for plain error, we examine for (1) error; (2) that is plain; and (3) that affects substantial rights. See United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Even if all three prongs are met, it is within our discretion whether to remedy the error, and we should refrain from intervening unless the error “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. at 736, 113 S.Ct. 1770. 2. As to prong one of Olano, we will assume, as we have said, that trial error was committed. Regarding Olano’s second prong, an error is plain when the law at the time is settled. See Hastings, 134 F.3d at 239. As we recognize, the legal principles governing judicial interference claims have been long settled. See supra Part III.D. 3. With the first two elements of the Olano inquiry satisfied, we turn to the third step in that analysis. In order to establish an effect on their substantial rights, the de fendants must demonstrate to us “that the error actually affected the outcome of the proceedings.” Hastings, 134 F.3d at 240. As such, Godwin and Curry-Robinson must establish “that the jury actually convicted” them based upon the trial error. Id. The defendants fail on this third prong of Olano. Because of the compelling and overwhelming evidence presented against them," } ]

[ { "docid": "22675867", "title": "", "text": "what we’re saying. All we’re saying is that you can find from the evidence that it’s foreseeable that a person who sells powder [cocaine] should expect that powder is going to be turned into crack. That’s a decision you have to make. J.A. 447-48. Neither defense counsel nor the court raised an issue regarding the government’s analogy, and the government proceeded with its closing argument. The jury convicted Baptiste on all counts. Baptiste received concurrent sentences of 300 months’ imprisonment on each of the five counts. This appeal followed. II. Baptiste raises four distinct arguments on appeal. First, he argues that the district court erred when it failed to voir dire jurors following the alleged incident of jury intimidation. Second, he asserts that the court erred in allowing Detective Russell to testify as an expert witness because Russell did not have a reliable methodology supporting his expert testimony. Third, he argues that the court erred in allowing Russell to testify as both an expert and a fact witness without establishing any safeguards to prevent jury confusion about Russell’s dual role. Finally, Baptiste asserts that the court erred in permitting the prosecutor to include in his closing statement an improper metaphor that involved Baptiste unwittingly funding a terrorist act. We will consider each argument in turn. Because Baptiste did not raise any of these issues at trial, we review for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). On plain-error review, “ ‘[i]t is the defendant rather than the Government who bears the burden of persuasion.’ ” United States v. Hastings, 134 F.3d 235, 240 (4th Cir.1998) (quoting Olano, 507 U.S. at 734, 113 S.Ct. 1770) (alterations in original). Accordingly, to succeed on any one of his arguments, Baptiste must persuade us that there was “an ‘error’ that [was] ‘plain’ and that ‘affect[ed] substantial rights.’ ” Olano, 507 U.S. at 732, 113 S.Ct. 1770 (quoting Fed.R.Crim.P. 52(b)). With regard to the third element of that standard, Baptiste must show that the alleged error actually “affected the outcome of the" }, { "docid": "23077307", "title": "", "text": "not be subjected to a punishment beyond the maximum of 20 years provided for in § 841(b)(1)(C). B. On appeal, Reid now contends that the jury’s failure to find any drug quantity requires reversal of his conviction on Count 1 because the district court’s instructions permitted the jury to convict him only if it concluded that the conspiracy involved the threshold amounts of 50 or more, or 5 or more, grams of crack. Because Reid did not raise this argument below, our review is for plain error. United States v. Evans, 416 F.3d 298, 300 (4th Cir.2005). To establish plain error, Reid must show that an error occurred, that the error was plain, and that the error affected his substantial rights. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Even if Reid makes this threshold showing, Fed.R.Crim.P. 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals. See id. at 735-36, 113 S.Ct. 1770. We conclude that the district court erred in instructing the jury that it could convict Reid on Count 1 only if it also found that the drug conspiracy involved specified quantities of crack. As we explained in Collins, “[g]uilt of the substantive offense defined in § 841(a) is not dependent upon a determination of the amount or type of narcotics distributed.” 415 F.3d at 314. Rather, in order to obtain a conviction on Count 1, the government was required to prove that (1) an agreement to possess cocaine with intent to distribute existed between two or more persons; (2) Reid knew of the conspiracy; and (3) Reid knowingly and voluntarily became a part of this conspiracy. United States v. Burgos, 94 F.3d 849, 857 (4th Cir.1996) (en banc). In instructing the jury that a specific drug quantity was an element of conviction under § 841(a), the district court misstated the law and heightened the government’s burden of proof. We must next determine whether the error was plain. To be plain, an error must be “clear” or “obvious.” Olano, 507 U.S. at" }, { "docid": "22941390", "title": "", "text": "silver revolver and cash seized from McNeal’s Hyattsville residence.. McNeal objected on the ground that the prosecutors had not linked him to the residence, and. thus any evidence seized therefrom was irrelevant. The trial court, however, overruled McNeal’s objection. After the prosecutors proffered evidence — outside the presence of the jury — -that McNeal had confirmed his residence in response to routine booking questions, McNeal stipulated that he lived at the Hyattsville residence. C. The jury found Stoddard guilty on all seven counts. It found McNeal guilty on three charges — the conspiracy offense in Count One and the two offenses in Counts Six and Seven arising from the New Year’s Eve-robbery. McNeal and Stoddard thereafter .filed motions for judgments of acquittal. McNeal contended, inter alia, that the government had failed to prove that he knew the purpose and goal of the conspiracy was to commit armed bank' robbery, a crime under 18 U.S.C. .§ 2113(d), as opposed to bank robbery, a lesser-included offense under § 2113(a). The district court denied the acquittal motions, ruling that “a rational trier of fact could find that the conspiracy was to commit armed bank robbery.” See J.A. 1046. On November 7, 2014, the district, court sentenced Stoddard to life in prison and McNeal to 184 months. McNeal and Stod-dard have timely appealed, and we possess jurisdiction pursuant to 28 U.S.C. § 1291. II. We review de novo a district court’s determinations of questions of law. See United States v. Beyle, 782 F.3d 159, 166 (4th Cir.2015). We review evidentiary rulings made by a trial court for abuse of discretion. See United States v. Vogt, 910 F.2d 1184, 1192 (4th Cir.1990). An issue pursued on appeal but not preserved in the lower court is reviewed for plain error only. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To satisfy that standard, a defendant must show “(1) that an error was made; (2) that the error was plain; and (3) that the error affected his substantial rights.” United States v. Carthorne, 726 F.3d 503, 510 (4th Cir.2013)." }, { "docid": "7649906", "title": "", "text": "violated his right to counsel. Williamson did not object to the admission of the recording at trial, so our review is for plain error. Because Williamson has failed to meet the stringent requirements to justify reversal for plain error, we affirm on the issue. Under Federal Rule of Criminal Procedure 52(b) and the plain-error analysis explained by the Supreme Court in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), an appellate court may correct a forfeited error when: “(1) there is an error; (2) the error is plain; (3) the error affects substantial rights; and (4) the court determines, after examining the particulars of the case, that the error ‘seriously affeet[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” United States v. Wilkinson, 137 F.3d 214, 223 (4th Cir. 1998) (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770). “Meeting all four prongs is difficult, ‘as it should be.’ ” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 n. 9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). “[A]n error is plain when the law at the time is settled.” United States v. Godwin, 272 F.3d 659, 679 (4th Cir.2001). To show that a plain error affected his substantial rights, the accused must demonstrate that “the error actually affected the outcome of the proceedings.” Id. at 679-80. As a practical matter, this means that the accused “must establish ‘that the jury actually convicted’ [him] based upon the trial error.” Id. at 680 (quoting United States v. Hastings, 134 F.3d 235, 240 (4th Cir.1998)). “It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. “Where the evidence is overwhelming and a perfect trial would reach the same result, a substantial right is not affected.” Godwin, 272 F.3d at 680 (citing United States v. Moore, 11 F.3d 475, 482 (4th Cir.1993)). Even if the accused establishes the first three prongs, he must" }, { "docid": "22941391", "title": "", "text": "that “a rational trier of fact could find that the conspiracy was to commit armed bank robbery.” See J.A. 1046. On November 7, 2014, the district, court sentenced Stoddard to life in prison and McNeal to 184 months. McNeal and Stod-dard have timely appealed, and we possess jurisdiction pursuant to 28 U.S.C. § 1291. II. We review de novo a district court’s determinations of questions of law. See United States v. Beyle, 782 F.3d 159, 166 (4th Cir.2015). We review evidentiary rulings made by a trial court for abuse of discretion. See United States v. Vogt, 910 F.2d 1184, 1192 (4th Cir.1990). An issue pursued on appeal but not preserved in the lower court is reviewed for plain error only. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To satisfy that standard, a defendant must show “(1) that an error was made; (2) that the error was plain; and (3) that the error affected his substantial rights.” United States v. Carthorne, 726 F.3d 503, 510 (4th Cir.2013). Even if those three prongs are satisfied, we will correct a plain error only when necessary to prevent “a miscarriage of justice” or to ensure “the fairness, integrity or public reputation of judicial proceedings.” United States v. Whitfield, 695 F.3d 288, 303 (4th Cir.2012). III. McNeal and Stoddard’s opening brief on appeal presents four assignments of error. First, the pair challenges the sufficiency of the evidence on the brandishing offenses, arguing that the government failed to prove that the handguns used in the robberies were functional. Second, McNeal contends that the evidence was insufficient to support his conviction for conspiracy to commit armed bank robbery. In his third assignment of error, McNeal’maintains that the trial court erred in denying his suppression motions. Finally, McNeal challenges the court’s evidentiary rulings admitting the silver revolver and the cash seized from his Hyattsville residence. We address those contentions in turn. A. McNeal and Stoddard challenge the sufficiency of,the evidence supporting the brandishing offenses in Counts Three (Stoddard), Five (Stoddard), and Seven (both McNeal and Stoddard). They contend that" }, { "docid": "19371789", "title": "", "text": "As a result I find that in this case Section 2L1.2’s sentencing range does not necessarily reflect a sentence that might achieve Section 3553(a)’s objectives. Id. Acting on these two policy disagreements, the district court sentenced Mr. Rosales-Miranda to thirty-six months in prison. Mr. Rosales-Miranda filed a timely notice of appeal. II On appeal, the parties agree that the district court committed a sentencing error and that the error was clear or obvious. The parties also agree that Mr. Rosales-Miranda failed to preserve an objection to that error. This forfeiture triggers plain-error review. See Fed.R.Crim.P. 52(b); United States v. Vasquez-Alcarez, 647 F.3d 973, 976 (10th Cir.2011) (“If [the defendant] has forfeited the ... argument, we review ... only for plain error.”); United States v. Gonzalez-Jaquez, 566 F.3d 1250, 1251 (10th Cir.2009) (reviewing for plain error, where defense counsel failed to object to the district court’s finding that offense was a crime of violence implicating sentencing enhancement); see also United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (prescribing plain-error review for cases involving “errors that were forfeited because not timely raised in district court”). The parties only disagree about whether Mr. Rosales-Miranda fully satisfies our plain-error test. . As one of our sister circuits has deftly noted, “[t]he Supreme Court has cautioned appellate courts against the ‘reflexive inclination’ to reverse unpreserved error.” United States v. Carthorne, 726 F.3d 503, 510 (4th Cir.2013) (quoting Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009)), cert. de nied, — U.S. -, 134 S.Ct. 1326, 188 L.Ed.2d 337 (2014). “As a result, relief on plain error review is ‘difficult to get, as it should be.’ ” Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 n. 9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). Thus, Mr. Rosales-Miranda “[cannot] prevail unless ‘ he [can] successfully run the gauntlet created by our rigorous plain-error standard of review.” United States v. Bader, 678 F.3d 858, 894 n. 24 (10th Cir.2012) (quoting United States v. McGehee, 672 F.3d 860, 866 (10th Cir.2012)). Under this" }, { "docid": "22275797", "title": "", "text": "court’s error was plain, the error did not affect Appellants’ substantial rights. See, e.g., United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (“There must be an ‘error’ that is ‘plain’ and that ‘affects substantial rights.’ ” (internal alteration omitted)). IV. Appellants next contend that the district court committed prejudicial error when de livering three of its jury instructions. First, they argue that the district court erred by instructing the jury that it was “the only jury that has ever decided or will decide whether the government’s carried its burden of proof.” (J.A. at 1549.) Second, they argue that the district court failed to instruct the jury on all the elements of a conspiracy charge insomuch as the court’s instructions presumed the existence of “an unlawful agreement.” (J.A. at 1552.) Third, they argue that the district court narrowed the Government’s burden of proof by providing examples of a conspiracy that closely resembled the facts of the case with respect to Powell. Because Appellants failed to object at trial, we review the district court’s jury instructions for plain error. See United States v. Stitt, 250 F.3d 878, 888 (4th Cir.2001). Under plain error review, Appellants must show that (1) the district court committed error, (2) the error was plain, and (3) the error affected their substantial rights. See, e.g., Olano, 507 U.S. at 732, 113 S.Ct. 1770. If Appellants satisfy this three-part showing, “correction of the error nevertheless remains within our discretion, which we should not exercise unless the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Hadden, 475 F.3d 652, 670 (4th Cir.2007). We conclude that Appellants cannot satisfy the first prong of the test because the district court did not err. As to Appellants’ first contention, they argue that by telling the jury that it was the.only jury that would ever decide the question, the district court delivered something akin to an impermissible, i.e. coercive, Allen charge. “[T]he principal concern that we have had with Allen charges is to ensure that they apply pressure to the" }, { "docid": "22841789", "title": "", "text": "contends that the district court erred by failing to instruct the jury that it must unanimously agree as to which three violations of Title 21 constituted the series of transactions that comprised the CCE. After Simms was convicted and sentenced, the Supreme Court held that, in a prosecution for engaging in a CCE under 21 U.S.C.A. § 848, the jury “must agree unanimously about which three crimes the defendant committed.” Richardson v. United States, 526 U.S. 813, 818, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). Because Simms failed to object to the CCE jury instruction before the district court, we review for plain error. See United States v. Lewis, 235 F.3d 215, 218 (4th Cir.2000). To establish plain error, Simms must demonstrate: (1) that error occurred; (2) that the error was plain; (3) that the error affected his substantial rights; and (4) that the error “seriously affected the fairness, integrity or public reputation” of the judicial proceeding. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation marks omitted). Here, the district court failed to instruct the jury on this unanimity requirement because at the time, Fourth Circuit precedent did not require such an instruction. See United States v. Hall, 93 F.3d 126, 129-30 (4th Cir.1996) (holding that the jury was not required to unanimously agree that three or more drug violations were related to each other), overruled by Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). Thus, the jury instruction was erroneous, establishing the first prong of the plain error test. Likewise, the error was plain. As the Supreme Court noted in Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), “where the law at the time of trial was settled and clearly contrary to the law at the time of appeal — it is enough that an error be ‘plain’ at the time of appellate consideration.” Id. at 468, 117 S.Ct. 1544. Although the first two prongs of the plain error test have been established, Simms cannot demonstrate that the" }, { "docid": "22307208", "title": "", "text": "question for plain error. See Fed. R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Carthorne did not object to the district court’s classification of the Virginia ABPO conviction as a crime of violence, even after the district court inquired about the issue, nor did Carthorne object to the court’s determination that he qualified as a career offender. Accordingly, we review this issue for plain error. The Supreme Court has cautioned appellate courts against the “reflexive inclination” to reverse unpreserved error. See Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (citation omitted). As a result, relief on plain error review is “difficult to get, as it should be.” United States v. Dominguez Benitez, 542 U.S. 74, 83 n. 9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). To establish plain error, a defendant has the burden of showing: (1) that an error was made; (2) that the error was plain; and (3) that the error affected his substantial rights. Henderson v. United States, — U.S.-, 133 S.Ct. 1121, 1126, 185 L.Ed.2d 85 (2013); Olano, 507 U.S. at 732-35, 113 S.Ct. 1770. When a defendant has established each of the above elements, the decision to correct the error remains within an appellate court’s discretion, and we have held that we will exercise that discretion only if the error “would result in a miscarriage of justice or would otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” United States v. Whitfield, 695 F.3d 288, 303 (4th Cir.2012) (quoting United States v. Robinson, 627 F.3d 941, 954 (4th Cir.2010) (internal quotation marks omitted)). B. We therefore turn to address the first requirement for plain error, and consider whether the district court erred in determining that assault and battery of a police officer in Virginia is categorically a crime of violence within the meaning of the Guidelines’ residual clause. The Guidelines define a “crime of violence” as any state or federal offense punishable by imprisonment for a term exceeding one year, that (1) has as an element" }, { "docid": "22216115", "title": "", "text": "a three-level enhancement for Slade’s leadership role in the offense, and a three-level reduction for acceptance of responsibility. It then calculated the range of imprisonment at 292 to 365 months. After hearing from counsel and taking the allocution from Slade, the court sentenced him to 365 months. Slade timely appealed. II. A. Slade first argues that the district court erred in calculating the base drug amount attributable to him under § 2Dl.l(a)(3) of the Sentencing Guidelines. More specifically, he contends that the district court considered unreliable and unsubstantiated evidence in the PSR to find him responsible for the equivalent of 20,515 kilograms of marijuana. Slade’s argument is merit-less. “We review the district court’s calculation of the quantity of drugs attributable to a defendant for sentencing purposes for clear error.” United States v. Randall, 171 F.3d 195, 210 (4th Cir.1999) (citing United States v. McDonald, 61 F.3d 248, 255 (4th Cir.1995)). Under § 1B1.3(a)(1)(B) the defendant is responsible not only for his own acts, but also for “all reasonably foreseeable acts” of his co-conspirators in furtherance of the joint criminal activity. Id.; United States v. Lipford, 203 F.3d 259, 271-72 (4th Cir.2000). The defendant bears the burden of establishing that the information relied upon by the district court — here the PSR — is erroneous. Randall, 171 F.3d at 210-11 (citing United States v. Love, 134 F.3d 595, 606 (4th Cir.1998)). Because Slade failed to object to the drug-quantity calculation before the district court, we review for plain error. See United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Slade argues that because he was incarcerated when the drug deals occurred' — ■ namely during several months in 2006 — it was physically impossible for him to have facilitated them. The government responds that Slade was sentenced in August, and therefore had eight months to complete the alleged transactions. Yet the PSR indicates that Slade was arrested subsequent to his first arrest in January 2006, indicating that he was not incarcerated but instead out on bail. This reading is also supported by the fact that" }, { "docid": "4246250", "title": "", "text": "778 (6th Cir.2007). However, we refuse Bailey’s request to create an automatic-remand rule whenever the district court does not explicitly acknowledge that the Guidelines are advisory. Because Bailey does not marshal evidence in support of the position that the district court actually failed to apply the Guidelines as advisory, we conclude that Bailey’s argument is without merit. B. Procedural Reasonableness Bailey makes two arguments as to why he believes his sentence is procedurally unreasonable. First, he makes a general argument that the district court did not clearly articulate and communicate its reasoning and that the record does not demonstrate sufficient consideration of the statutory factors. Second, Bailey makes a more specific argument that the district court did not adequately consider or articulate its consideration of the family and community support expressed for Bailey. When objections are properly preserved, we review a sentence for reasonableness. United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 1110, 163 L.Ed.2d 919 (2006). However, when the district court asks at sentencing whether there are any objections to the sentence and the appellant raises none, we review the sentence only for plain error. United States v. Clark, 469 F.3d 568, 570 (6th Cir.2006). After pronouncing Bailey’s sentence, the district court asked Bailey whether he had any objections; he responded in the negative. The plain-error standard applies here, because Bailey failed to raise his objections to the district court below. For this court to find plain error, “there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ ” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (alteration in original) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Generally, an error does not affect substantial rights unless it is prejudicial — in other words, the error “must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. The defendant bears the burden of persuasion that the error was prejudicial. Id. If the first" }, { "docid": "8013876", "title": "", "text": "mandatory guideline regime in existence at the time of sentencing, that maximum would have been calculated according to an Offense Level of 10 (corresponding to a prescribed range of 6 to 12 months’ imprisonment), which is the maximum authorized by the facts found by the jury. The imposition of a 46-month sentence, in part based on facts found by the judge, therefore constituted error. 2. “Next, the error must be plain.” Hastings, 134 F.3d at 239. For purposes of plain-error review, “ ‘[pjlain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’ ” Olano, 507 U.S. at 734, 113 S.Ct. 1770. An error is plain “where the law at the time of trial was settled and clearly contrary to the law at the time of appeal.” Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); accord United States v. David, 83 F.3d 638, 645 (4th Cir.1996) (holding that an error is plain when “an objection at trial would have been indefensible because of existing law, but a supervening decision prior to appeal reverses that well-settled law”). When Hughes was sentenced, any claim that imposition of a sentence greater than the maximum authorized under the guidelines by the facts found by the jury alone would violate the Sixth Amendment was foreclosed by circuit precedent. See United States v. Kinter, 235 F.3d 192, 199-202 (2000). Booker has now abrogated our previously settled law. The error committed by the district court in sentencing Hughes was therefore plain. 3. a. “Third, [Hughes] must establish that the error affected his substantial rights, ie., that it was prejudicial.” Hastings, 134 F.3d at 240. To demonstrate that the error was prejudicial, Hughes must show that “the error actually affected the outcome of the proceedings.” Id.; accord United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2339, 159 L.Ed.2d 157 (2004) (explaining that if an error is not structural, “relief ... is tied in some way to prejudicial effect, and the standard phrased as ‘error that affects substantial rights,’ used in Rule 52, has previously been taken to mean error with a" }, { "docid": "22841782", "title": "", "text": "the activities of a defendant charged with conspiracy facilitated the endeavors of other alleged coconspirators or facilitated the venture as a whole, evidence of interdependence is present.”). Accordingly, the evidence was sufficient to support Livingston’s conspiracy conviction. G. Livingston next challenges his conviction and sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), with respect to his conviction under Count 1 for conspiracy to possess with intent to distribute marijuana. During the pendency of this appeal, the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. Livingston argues that his 360-month sentence is invalid in light of Ap-prendi because, he maintains, it exceeds the maximum statutory penalty authorized by the jury verdict. Because Livingston failed to raise this argument before the district court, our review is for plain error. See United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To establish our authority to notice an error not preserved by a timely objection, Livingston must show: (1) that an error occurred; (2) that the error was plain; (3) that the error affected his substantial rights; and (4) that the error seriously affected the fairness, integrity or public reputation of judicial proceedings. Id. at 732, 113 S.Ct. 1770. Livingston concedes that Count 1 properly charged drug quantity and type and challenges only the jury instruction, wherein the district court informed the jury that “[i]t is not necessary for the government to prove the exact or precise amount of controlled substances alleged in the indictment.” (T.T. at 78). Because the indictment properly charged drug quantity and type, the only error is with respect to the jury instruction. We have recently held that drug quantity and type are elements of § 841. United States v. Promise, 255 F.3d 150 (4th Cir.2001) (en banc); United States v. Angle, 254 F.3d 514 (4th Cir.2001) (en banc). However," }, { "docid": "8013875", "title": "", "text": "to all cases on direct review.”). B. Hughes’ sentence exceeded the maximum sentence then authorized by the facts found by the jury alone, in violation of Booker. However, Hughes raised this issue for the first time on appeal. Because this issue was not advanced in the district court, we review the district court decision for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Notwithstanding the heavy burden that a defendant faces when alleging plain error in sentencing, we conclude that the district court plainly erred in imposing a sentence on Hughes that exceeded the maximum allowed based on the facts found by the jury alone. 1. “In reviewing for plain error, our initial inquiry is whether an error occurred.” United States v. Hastings, 134 F.3d 235, 239 (4th Cir.1998). In Booker, the Court ruled that a sentence exceeding the maximum allowed based only on the facts found by the jury violates the Sixth Amendment. See Booker, 125 S.Ct. at 756. Here, under the mandatory guideline regime in existence at the time of sentencing, that maximum would have been calculated according to an Offense Level of 10 (corresponding to a prescribed range of 6 to 12 months’ imprisonment), which is the maximum authorized by the facts found by the jury. The imposition of a 46-month sentence, in part based on facts found by the judge, therefore constituted error. 2. “Next, the error must be plain.” Hastings, 134 F.3d at 239. For purposes of plain-error review, “ ‘[pjlain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’ ” Olano, 507 U.S. at 734, 113 S.Ct. 1770. An error is plain “where the law at the time of trial was settled and clearly contrary to the law at the time of appeal.” Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); accord United States v. David, 83 F.3d 638, 645 (4th Cir.1996) (holding that an error is plain when “an objection at trial would have been indefensible because of existing law, but a supervening decision prior to" }, { "docid": "19551841", "title": "", "text": "into the wall, and punched Hamrick in the back of the head. While engaging in these acts of gratuitous force, Cowden repeated that the HCSO was \"our house\" and that Hamrick had to \"play by our rules,\" statements Cowden earlier had made in anticipation of Hamrick's arrival at the HCSO station. And, notably, several of Cowden's fellow officers who witnessed these events testified that Cowden's actions were neither justified nor reasonable. From this evidence, the jury could conclude that Cowden, while acting as a law enforcement officer, willfully used unreasonable force against Hamrick. See Kingsley v. Hendrickson , --- U.S. ----, 135 S.Ct. 2466, 2473, 192 L.Ed.2d 416 (2015) (reviewing a Section 1983 action and stating that \"a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable\"). IV. Cowden also challenges the district court's decision refusing his proposed jury instruction on lesser-included offenses. We note at the outset that although Cowden submitted a proposed instruction on this legal principle, he did not object contemporaneously to the jury instructions that the district court ultimately gave. Accordingly, we review Cowden's challenge to the jury instructions for plain error. United States v. Nicolaou , 180 F.3d 565, 569 (4th Cir. 1999) (reviewing for plain error a claim that the jury instruction was improper because the defendant did not object when the court gave the jury different instructions than those proposed by the defendant); Fed. R. Crim. P. 30(d) ; Fed. R. Crim. P. 52(b). Under the plain error standard, Cowden has the burden to show that: (1) there was error; (2) the error was plain; and (3) the error affected his substantial rights. United States v. Carthorne , 726 F.3d 503, 510 (4th Cir. 2013) (citation omitted). When these conditions are satisfied, we may exercise our discretion to correct the error only if the error \"seriously affect[s] the fairness, integrity[,] or public reputation of judicial proceedings.\" United States v. Olano , 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citation omitted). We conclude that Cowden has failed to show any error, much" }, { "docid": "19551842", "title": "", "text": "instructions that the district court ultimately gave. Accordingly, we review Cowden's challenge to the jury instructions for plain error. United States v. Nicolaou , 180 F.3d 565, 569 (4th Cir. 1999) (reviewing for plain error a claim that the jury instruction was improper because the defendant did not object when the court gave the jury different instructions than those proposed by the defendant); Fed. R. Crim. P. 30(d) ; Fed. R. Crim. P. 52(b). Under the plain error standard, Cowden has the burden to show that: (1) there was error; (2) the error was plain; and (3) the error affected his substantial rights. United States v. Carthorne , 726 F.3d 503, 510 (4th Cir. 2013) (citation omitted). When these conditions are satisfied, we may exercise our discretion to correct the error only if the error \"seriously affect[s] the fairness, integrity[,] or public reputation of judicial proceedings.\" United States v. Olano , 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citation omitted). We conclude that Cowden has failed to show any error, much less plain error. In reviewing a challenge to the denial of a particular jury instruction, we initially consider whether the omitted instruction was covered substantially by the instructions given. See United States v. Lighty , 616 F.3d 321, 366 (4th Cir. 2010). A violation under Section 242 constitutes a felony offense if the defendant caused bodily injury to the victim, but the violation is a misdemeanor offense when no bodily injury resulted. See 18 U.S.C. § 242. The instructions given by the district court correctly explained these statutory distinctions, permitting the jury to find Cowden guilty of a misdemeanor rather than a felony if the jury determined that Hamrick had not suffered a bodily injury as a result of Cowden's actions. The district court thus instructed the jury, although in different words, as Cowden had requested. Accordingly, the district court did not plainly err in declining to instruct the jury using Cowden's preferred instruction. Cowden next maintains that the district court erred in presenting to the jury a verdict form that included special interrogatories. The" }, { "docid": "11664578", "title": "", "text": "the jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.”). Second, Michael asserts that he was denied a fair trial because of prosecutorial misconduct. Specifically, he posits that the prosecution suppressed material, exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that the prosecution made use of evidence at trial that the prosecutor had agreed would not be presented. Because Michael failed to raise either of these issues in the district court, we review these contentions for plain error. See Fed.R.Crim.P. 52(b); United States v. Fisher, 58 F.3d 96, 100 (4th Cir.1995). To meet the standard of review for plain error, Michael must demonstrate to us that there was (1) an error, (2) that it was plain, and (3) that it affected substantial rights. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)(construing the requirements of Fed.R.Crim.P. 52(b)). Furthermore, the correction of plain error lies within the discretion of this Court, and is not to be exercised “unless the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). Third, Michael contends that his sentence violated the Sentencing Guidelines because the district court misapplied the Guidelines’ loss enhancement provisions. When addressing an application of the Guidelines, we review the district court’s “factual findings for clear error and legal interpretations de novo.” United States v. Colton, 231 F.3d 890, 911 (4th Cir.2000). Fourth, Michael contests the validity of the district court’s order of restitution. Although he does not challenge the magnitude of the restitution award, Michael asserts that the payment schedule developed by the court did not properly consider his financial status and prospects as required by the Mandatory Victims Restitution Act of 1996 (MVRA). We review a district court’s order on restitution for an abuse of discretion. United States v. Henoud, 81 F.3d 484, 487 (4th Cir.1996). Fifth, Michael contends that he was" }, { "docid": "22257710", "title": "", "text": "argument that this failure means we review those instructions for plain error. Rule 30 requires that defendants object to instructions “before the jury retires to deliberate” or face plain error review under Rule 52(b). Fed.R.Crim.P. 30(d). This rule applies even where settled law at the time of trial rejected the defendant’s position. See Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (applying plain error review to an unchallenged jury instruction error where the law at trial was clear but had been reversed prior to appeal). This rule is necessary to avoid casual reversal of district courts who follow settled law to which no objection was raised at trial. Under the plain error standard, Robinson must establish that the district court erred, that the error was plain, and that it “affect[ed] [his] substantial rights.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting Fed.R.Crim.P. 52(b)). Even if Robinson makes this showing, we retain discretion to deny relief; plain errors should only be corrected where not doing so would result in a “miscarriage of justice,” Olano, 507 U.S. at 736, 113 S.Ct. 1770 (quotation omitted), or would otherwise “seriously affect[] the fairness, integrity or public reputation of judicial proceedings,” id. at 736, 113 S.Ct. 1770 (quotation omitted). In light of Watson, the district court’s use instruction was plainly erroneous. See Johnson, 520 U.S. at 468, 117 S.Ct. 1544 (“[W]here the law at the time of trial was settled and clearly contrary to the law at the time of appeal,” the trial court’s use of the prior settled law is plain error.). But Robinson cannot prove that the error “actually] prejudiced” him as required under Olano’s third prong. United States v. Myers, 280 F.3d 407, 414 (4th Cir.2002). In United States v. Hastings, 134 F.3d 235 (4th Cir.1998), we discussed how plain error review’s prejudice requirement applies where a defendant was indicted under multiple prongs of an offense but subjected to erroneous jury instructions on one of those prongs. We held that such a defendant “must demonstrate that the erroneous" }, { "docid": "22841783", "title": "", "text": "Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To establish our authority to notice an error not preserved by a timely objection, Livingston must show: (1) that an error occurred; (2) that the error was plain; (3) that the error affected his substantial rights; and (4) that the error seriously affected the fairness, integrity or public reputation of judicial proceedings. Id. at 732, 113 S.Ct. 1770. Livingston concedes that Count 1 properly charged drug quantity and type and challenges only the jury instruction, wherein the district court informed the jury that “[i]t is not necessary for the government to prove the exact or precise amount of controlled substances alleged in the indictment.” (T.T. at 78). Because the indictment properly charged drug quantity and type, the only error is with respect to the jury instruction. We have recently held that drug quantity and type are elements of § 841. United States v. Promise, 255 F.3d 150 (4th Cir.2001) (en banc); United States v. Angle, 254 F.3d 514 (4th Cir.2001) (en banc). However, the failure to instruct the jury on an element of an offense does not constitute error per se. Neder v. United States, 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (holding that failure to instruct the jury on an essential element of the offense is not structural error). For purposes of this appeal we conclude that the district court’s jury instruction with respect to drug quantity was erroneous. We further conclude that the error is plain. Nevertheless, we affirm Livingston’s sentence because Livingston has not shown that the error affected his substantial rights. To establish that the error affected his substantial rights, Livingston must demonstrate that it was prejudicial — that it “actually affected the outcome of the proceedings.” United States v. Hastings, 134 F.3d 235, 240 (4th Cir.1998). Thus, Livingston must demonstrate that the 360-month sentence imposed by the district court was longer than that which would otherwise have been authorized by the jury verdict. In light of Livingston’s prior felony drug conviction, Livingston was subject to a 360-month sentence upon" }, { "docid": "22675868", "title": "", "text": "confusion about Russell’s dual role. Finally, Baptiste asserts that the court erred in permitting the prosecutor to include in his closing statement an improper metaphor that involved Baptiste unwittingly funding a terrorist act. We will consider each argument in turn. Because Baptiste did not raise any of these issues at trial, we review for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). On plain-error review, “ ‘[i]t is the defendant rather than the Government who bears the burden of persuasion.’ ” United States v. Hastings, 134 F.3d 235, 240 (4th Cir.1998) (quoting Olano, 507 U.S. at 734, 113 S.Ct. 1770) (alterations in original). Accordingly, to succeed on any one of his arguments, Baptiste must persuade us that there was “an ‘error’ that [was] ‘plain’ and that ‘affect[ed] substantial rights.’ ” Olano, 507 U.S. at 732, 113 S.Ct. 1770 (quoting Fed.R.Crim.P. 52(b)). With regard to the third element of that standard, Baptiste must show that the alleged error actually “affected the outcome of the district court proceedings.” Id. at 734, 113 S.Ct. 1770. However, “[e]ven if the error is plain and affects substantial rights, ... we [do] not exercise our discretion to correct the error ‘unless a miscarriage of justice would result or the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings independent of the defendant’s innocence.’ ” United States v. Johnson, 219 F.3d 349, 353 (4th Cir.2000) (quoting United States v. Cedelle, 89 F.3d 181, 184 (4th Cir.1996)) (last alteration in original). Using this framework, we turn to consideration of Baptiste’s contentions. A. Baptiste first argues that the court erred in failing to adequately address the issue of juror intimidation. He asserts that, upon learning that jurors felt intimidated by stare-downs from members of the crowd, the court was obligated under Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), to conduct a voir dire examination of the jurors. Remmer instructs: “In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a" } ]

[ { "docid": "10933296", "title": "", "text": "21 F.3d 512, 520 (2d Cir.1994). In clarifying the requirement that the RICO allegations must constitute a pattern, the statute defines only a minimum: a complaint must set forth two predicate acts that occurred within ten years of each other. 18 U.S.C. § 1961(5). The Supreme Court has further explained that the two-act minimum represents, at best, a broad outer limit on what may constitute a pattern. See H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 237, 109 S.Ct. 2893, 2899, 106 L.Ed.2d 195 (1989). The legislative history of RICO reveals that Congress did not intend that “ ‘proof of two acts of racketeering activity, without more,’” would establish a pattern. H.J. Inc., 492 U.S. at 238, 109 S.Ct. at 2900 (citation omitted). Rather, the numerical minimum “assumes that there is something to a RICO pattern beyond simply the number of predicate acts involved.” Id. at 238, 109 S.Ct. at 2900 (emphasis in original). According to the Court, Congress intended plaintiffs to prove a pattern of racketeering activity by “showing] that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.” Id. at 239, 109 S.Ct. at 2900. Thus the pattern element of a RICO claim consists of two prongs: relatedness and continuity. Defendants do not contest that the predicate acts alleged by Plaintiffs are related; they argue only that Plaintiffs have failed adequately to plead the required continuity. See Defendants’ Memorandum of Law in Support of Motion to Dismiss at 15. IV. Discussion The Supreme Court has defined two types of continuity. Continuity is “both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition.” H.J. Inc., 492 U.S. at 241, 109 S.Ct. at 2902. “In determining whether continuity exists the court should not limit its consideration to the duration of the scheme, but should also look at the ‘overall context in which the acts took place.’ ” Deem v. Lockheed Corp., No. 87-7017, 1991 WL 196171, at" } ]

[ { "docid": "11920213", "title": "", "text": "v. Coiro, 922 F.2d 1008, 1016 (2d Cir.1991)) (internal quotation marks omitted). “When seeking to satisfy the continuity requirement, a plaintiff must show that the defendants’ activities were ‘neither isolated or sporadic.’ ” SKS Constructors, Inc. v. Drinkwine, 458 F.Supp.2d 68, 77 (E.D.N.Y.2006) (quoting GICC Capital Corp. v. Tech. Fin. Group, Inc., 67 F.3d 463, 467 (2d Cir.1995)). “The continuity necessary to prove a pattern can be either ‘elosed-ended continuity,’ or ‘open-ended continuity.’ ” Cofacredit, 187 F.3d at 242. “In determining whether continuity exists the court should not limit its consideration to the duration of the scheme, but should also look at the overall context in which the acts took place.” Pier Connection, Inc. v. Lakhani, 907 F.Supp. 72, 75 (S.D.N.Y.1995) (quoting Deem v. Lockheed Corp., No. 87-CV-7017, 1991 WL 196171, at *9 (S.D.N.Y. Sept. 25, 1991) (internal quotation marks omitted)). At the pleading stage, the hurdle is relatively low. See Procter & Gamble Co. v. Big Apple Indus. Bldgs., Inc., 879 F.2d 10, 18 (2d Cir.1989) (“Whether defendants’ actions are continuing in nature or isolated or sporadic will be the subject of proof at trial.”). 1. Closed-End Continuity “A party alleging a RICO violation may demonstrate continuity over a closed period by proving a series of related predicates extending over a substantial period of time.” H.J. Inc., 492 U.S. at 242, 109 S.Ct. 2893. “Predicate acts are ‘related’ when they ‘have the same or similar purposes, results, participants, victims, methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.’ ” Weizmann Inst. of Sci. v. Neschis, 421 F.Supp.2d 654, 688 (S.D.N.Y.2005) (quoting H.J. Inc., 492 U.S. at 240, 109 S.Ct. 2893) (finding predicate acts unrelated where the only connection was that they involved the same parties); accord Jacobson v. Cooper, 882 F.2d 717, 720 (2d Cir.1989) (finding separate acts related where they involved the same alleged purpose, victim, and effect). “Although elosed-ended continuity is primarily a temporal concept, other factors such as the number and variety of predicate acts, the number of both participants and victims, and the presence of separate schemes are also" }, { "docid": "11920259", "title": "", "text": "contract cannot be cited by plaintiffs to extend the duration of the fraudulent scheme.”); Pier Connection, Inc. v. Lakhani 907 F.Supp. 72, 76 (S.D.N.Y.1995) (noting that “continuing to reap ... benefits [from wire fraud] is not itself a predicate act; it is only an effect of the alleged acts of wire fraud”); Gotham Print, Inc. v. Am. Speedy Printing Ctrs., Inc., 863 F.Supp. 447, 460 (E.D.Mich.1994) (‘When the Supreme Court spoke of the threat of repetition, it was referring to the threat of repeated victimization ..., not merely the retention of the ill-gotten fruits of previous crimes.”). “Plaintiffs interpretation ... would permit any plaintiff once defrauded to state a RICO claim if the defendants continued to derive a benefit from the property they obtained.” Plater-Zyberk, 1998 WL 67545, at *10; see also Bingham v. Zolt, 683 F.Supp. 965, 970 (S.D.N.Y.1988) (“To say that [defendants’] continuing control of the music companies constituted ongoing criminal activity would allow plaintiffs to turn every finite scheme — or at least those involving economic crimes — into an enterprise simply by characterizing the defendant’s subsequent enjoyment of the proceeds of the scheme as continuous criminal activity.”). Thus, the pattern of racketeering acts for the THQ Defendants, the LLC, and the Jakks Defendants ends in August 1998, just after the LLC is formed and the videogame license is granted. As an additional argument for extending the racketeering acts into this decade, Plaintiff cites concealment by Shenker, Bell, the Jakks Defendants, and the THQ Defendants in connection with the civil litigation in Connecticut state court. (Am. Compl. ¶ 195.) Specifically, Plaintiff alleges that these defendants destroyed evidence of the bribery, provided perjured testimony, made false statements to auditors, and concealed documents. (Id. ¶¶ 191-239.) These allegations, however, fail as a matter of law to extend the pattern of racketeering acts. It is true that acts of concealment may sometimes constitute a predicate act for the purposes of RICO. See United States v. Coiro, 922 F.2d 1008, 1017 (2d Cir.1991) (“[T]he evidence established that ... [the defendant’s] activities designed to prevent detection and prosecution of the organization’s illegal" }, { "docid": "6204809", "title": "", "text": "(2d Cir.1995). The Supreme Court has explained the continuity requirement as follows: “Continuity” is both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition _A party alleging a RICO violation may demonstrate continuity over a closed period by proving a series of related predicates extending over a substantial period of time. Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement: Congress was concerned in RICO with long-term criminal conduct. Often a RICO action will be brought before continuity can be established in this way. In such cases, liability depends on whether the threat of continuity is demonstrated. H.J. Inc., 492 U.S. at 241-42, 109 S.Ct. 2893 (emphasis in original). “To satisfy open-ended continuity, the plaintiff ... must show that there was a threat of continuing criminal activity beyond the period during which the predicate acts were performed.” Cofacredit, S.A. v. Windsor Plumbing Supply Co., 187 F.3d 229, 242 (2d Cir.1999). Alternatively, to establish a “closed period of repeated conduct” sufficient to satisfy the continuity requirement, H.J. Inc., 492 U.S. at 241, 109 S.Ct. 2893, “ ‘a plaintiff must provide some basis for a court to conclude that defendants’ activities were neither isolated nor sporadic,’ ” and that defendants engaged in such activity for a substantial period of time. DeFalco, 244 F.3d at 321 (quoting GICC Capital, 67 F.3d at 467 (additional quotation marks omitted)); accord Kades v. Organic Inc., No. 00-CV-3671 (LTS), 2003 WL 470331, at *12 (S.D.N.Y. Feb. 24, 2003). Many of the Doctor Defendants argue that plaintiff has failed to allege a pattern of racketeering by each of them individually. See, e.g., Hoatson v. N.Y. Archdiocese, No. 06-CV-10467 (PAC), 2007 WL 431098, at *3 (S.D.N.Y. Feb. 8, 2007) (granting motion to dismiss civil RICO claims where “[t]here is not even a minimal attempt to allege which predicate acts were performed by which Defendants”), aff'd, 280 Fed.Appx. 88 (2d Cir.2008); Merrill Lynch, Pierce, Fenner & Smith," }, { "docid": "11920211", "title": "", "text": "RICO; and (vi) the 2004 Release does not bar Plaintiffs RICO claims against the Jakks Defendants, (see Decl. of Jonathan J. Lerner, Ex. B (“Lerner Decl.”)). “RICO defines ‘racketeering activity’ to include a host of criminal offenses, which are in turn defined by federal and state law.” Cofacredit, 187 F.3d at 242 (citing 18 U.S.C. § 1961(1)). Here, Plaintiff charges Defendants with committing mail fraud under 18 U.S.C. § 1341, wire fraud under 18 U.S.C. § 1343, money laundering under 18 U.S.C. §§ 1956, 1957, as well as violating the Travel Act, 18 U.S.C. § 1952, the National Stolen Property Act, 18 U.S.C. §§ 2314, 2315, and New York Penal Law § 180.03, which proscribes commercial bribery. (Am. Compl. ¶ 247.) C. Pattern of Racketeering Activity To plead a pattern of racketeering activity, the RICO statute requires that— at a minimum — a complaint set forth two predicate acts occurring within ten years of each other. See 18 U.S.C. § 1961(5); H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 238, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). A RICO plaintiff must show that each defendant participated in the RICO enterprise by engaging in at least two predicate acts. See Hoatson v. N.Y. Archdiocese, No. 05-CV-10467, 2007 WL 431098, at *4 (S.D.N.Y. Feb. 8, 2007) (“A complaint alleging RICO violations based on mail or wire fraud must allege that the defendant participated in at least two acts of mail or wire fraud.”); US Certified Merchs., LLC v. Koebel, 262 F.Supp.2d 319, 332 (S.D.N.Y.2003). The Supreme Court has held that “to prove a pattern of racketeering activity a plaintiff or prosecutor must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.” H.J. Inc., 492 U.S. at 239, 109 S.Ct. 2893. The Second Circuit has described the pattern requirement as involving “multiple racketeering predicates— which can be part of a single ‘scheme’— that are related and that amount to, or threaten the likelihood of, continued criminal activity[.]” United States v. Reifler, 446 F.3d 65, 91 (2d Cir.2006) (quoting United States" }, { "docid": "11920273", "title": "", "text": "businesses together to form an enterprise, the principal goal of which was to procure, through fraud and corruption, certain licenses from Plaintiff. But, this is not the same as saying that Jakks, THQ, SSAI and the other components of the alleged enterprise normally did business via racketeering. On this point, for example, the allegations regarding the legitimate perfumed doll deal and THQ’s miti&lly-legitimate efforts to procure the videogame license critically undermine Plaintiffs position. Therefore, Plaintiff must allege, but does not, that the racketeering acts are Defendants’ “regular way of conducting [their otherwise] ongoing legitimate businesses].” H.J. Inc., 492 U.S. at 242, 109 S.Ct. 2893. Plaintiff has a fail-back position, however, which is that because the enterprise engaged in bribery and money laundering, which are inherently unlawful acts, it has established open-ended continuity. (See Pl.’s Opp’n 25-26.) While embezzlement, extortion, bribery, and money laundering are in pursuit of inherently unlawful goals, see United States v. Coiro, 922 F.2d 1008, 1017 (2d Cir.1991) (finding bribery and money laundering in context of long-term organized crime organization to be in pursuant of inherently unlawful goal); Metro. Transp. Auth., 2005 WL 1565524, at *4 (determining money laundering activity to be in pursuit of inherently unlawful goal), fraud is not, see Aulicino, 44 F.3d at 1111-13; Int’l Bhd. of Teamsters v. Carey, 297 F.Supp.2d 706, 715 (S.D.N.Y.2004) (finding fraud committed by union with finite goal not to be in pursuit of inherently unlawful goal); Boucher v. Sears, No. 89-CV-1353, 1995 WL 283742, at *7 (N.D.N.Y. May 8, 1995) (finding that frauds, particularly those which are inherently terminable, are not inherently in pursuit of unlawful goals). Additionally, Plaintiff ignores the axiom that “the totality of the circumstances surrounding the commission of the predicate acts are considered to determine whether those acts pose a threat of continuing criminal activity.” Busacca, 936 F.2d at 238 (citing Kaplan, 886 F.2d at 542-43). In other words, a RICO plaintiff does not adequately plead open-ended continuity by simply alleging bribery. Instead, the key issue is the context in which the bribery is alleged to have taken place, with a particular view to" }, { "docid": "5169620", "title": "", "text": "than the “scienter” requirement under 10(b).”); see also Browning Ave. Realty Corp. v. Rosenshein, 774 F.Supp. 129 (S.D.N.Y.1991). In Browning, this Court dismissed plaintiffs’ RICO claim and found that plaintiffs’ burden of specifically pleading and proving defendants’ fraudulent intent had not been met. See id. at 137; see also Beck v. Manufacturers Hanover Trust Co., 820 F.2d 46, 49 (2d Cir.1987), cert, denied, 484 U.S. 1005, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988) (“In general, the mail and wire fraud statutes require, inter alia, a showing of intentional fraud.”). Plaintiffs have not adequately alleged that Defendants knowingly participated in a scheme to defraud. In fact, the written communications, if anything, acted to warn Plaintiffs of their risky investments’ financial difficulties. Further, Plaintiffs have failed to allege how the use of the interstate mails furthered a fraudulent scheme. B. The Miami Plaintiffs Fail to Allege the Requisite Continuity Necessary to Establish a Pattern of Racketeering Activity The Supreme Court has held that to establish a RICO pattern, a plaintiff must show that the “racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.” H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 2900, 106 L.Ed.2d 195 (1989); see also Procter & Gamble Co. v. Big Apple Indus. Bldgs., Inc., 879 F.2d 10,17 (2d Cir.1989), cert denied, 493 U.S. 1022, 110 S.Ct. 723, 107 L.Ed.2d 743 (1990) (pattern requirement ensures that RICO-related activity is neither “sporadic nor isolated”). In H.J. Inc., the Supreme Court held that “ ‘[continuity’ is both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition.” Id. at 241, 109 S.Ct. at 2901. Accordingly, the Court held that in order to sufficiently allege RICO violations, plaintiffs must demonstrate: continuity over a closed period by proving a series of related predicates extending over a substantial period of time. Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy" }, { "docid": "11920212", "title": "", "text": "106 L.Ed.2d 195 (1989). A RICO plaintiff must show that each defendant participated in the RICO enterprise by engaging in at least two predicate acts. See Hoatson v. N.Y. Archdiocese, No. 05-CV-10467, 2007 WL 431098, at *4 (S.D.N.Y. Feb. 8, 2007) (“A complaint alleging RICO violations based on mail or wire fraud must allege that the defendant participated in at least two acts of mail or wire fraud.”); US Certified Merchs., LLC v. Koebel, 262 F.Supp.2d 319, 332 (S.D.N.Y.2003). The Supreme Court has held that “to prove a pattern of racketeering activity a plaintiff or prosecutor must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.” H.J. Inc., 492 U.S. at 239, 109 S.Ct. 2893. The Second Circuit has described the pattern requirement as involving “multiple racketeering predicates— which can be part of a single ‘scheme’— that are related and that amount to, or threaten the likelihood of, continued criminal activity[.]” United States v. Reifler, 446 F.3d 65, 91 (2d Cir.2006) (quoting United States v. Coiro, 922 F.2d 1008, 1016 (2d Cir.1991)) (internal quotation marks omitted). “When seeking to satisfy the continuity requirement, a plaintiff must show that the defendants’ activities were ‘neither isolated or sporadic.’ ” SKS Constructors, Inc. v. Drinkwine, 458 F.Supp.2d 68, 77 (E.D.N.Y.2006) (quoting GICC Capital Corp. v. Tech. Fin. Group, Inc., 67 F.3d 463, 467 (2d Cir.1995)). “The continuity necessary to prove a pattern can be either ‘elosed-ended continuity,’ or ‘open-ended continuity.’ ” Cofacredit, 187 F.3d at 242. “In determining whether continuity exists the court should not limit its consideration to the duration of the scheme, but should also look at the overall context in which the acts took place.” Pier Connection, Inc. v. Lakhani, 907 F.Supp. 72, 75 (S.D.N.Y.1995) (quoting Deem v. Lockheed Corp., No. 87-CV-7017, 1991 WL 196171, at *9 (S.D.N.Y. Sept. 25, 1991) (internal quotation marks omitted)). At the pleading stage, the hurdle is relatively low. See Procter & Gamble Co. v. Big Apple Indus. Bldgs., Inc., 879 F.2d 10, 18 (2d Cir.1989) (“Whether defendants’ actions are continuing in nature or" }, { "docid": "11920258", "title": "", "text": "on the license. (Am. Compl. ¶ 184.) However, “[o]nce an allegedly fraudulent transaction is complete, a plaintiff may not rely on the defendants’ retention or use of his assets to establish open-ended continuity.” Plater-Zyberk v. Abraham, No. 97-CV-3322, 1998 WL 67545, at *10 (E.D.Pa. Feb.17, 1998). In the instant case, there was nothing illegal about selling videogames or paying (or receiving) royalties pursuant to a contract. Nor is there a plausible allegation that these royalty payments were intended to conceal or disguise the supposedly corrupt means Defendants used to procure the videogame license. Indeed, WWE knew what payments the licensees would be entitled to under the licensing agreement, even if it did not know the precise split of the proceeds among the joint venture parties. Therefore, the post-bribery royalty payments from the LLC to Jakks do not constitute predicate acts and cannot extend the pattern of racketeering activity. See Vemco, Inc. v. Camardella, 23 F.3d 129, 134 (6th Cir.1994) (“[Defendant’s] conduct in sending out billing notices from 1991 through 1992 pursuant to an allegedly fraudulent contract cannot be cited by plaintiffs to extend the duration of the fraudulent scheme.”); Pier Connection, Inc. v. Lakhani 907 F.Supp. 72, 76 (S.D.N.Y.1995) (noting that “continuing to reap ... benefits [from wire fraud] is not itself a predicate act; it is only an effect of the alleged acts of wire fraud”); Gotham Print, Inc. v. Am. Speedy Printing Ctrs., Inc., 863 F.Supp. 447, 460 (E.D.Mich.1994) (‘When the Supreme Court spoke of the threat of repetition, it was referring to the threat of repeated victimization ..., not merely the retention of the ill-gotten fruits of previous crimes.”). “Plaintiffs interpretation ... would permit any plaintiff once defrauded to state a RICO claim if the defendants continued to derive a benefit from the property they obtained.” Plater-Zyberk, 1998 WL 67545, at *10; see also Bingham v. Zolt, 683 F.Supp. 965, 970 (S.D.N.Y.1988) (“To say that [defendants’] continuing control of the music companies constituted ongoing criminal activity would allow plaintiffs to turn every finite scheme — or at least those involving economic crimes — into an enterprise simply" }, { "docid": "6676687", "title": "", "text": "537 (1989); United States v. Indelicato, 865 F.2d 1370 (2d Cir.1989). A pattern is established for RICO purposes where the predicate acts “themselves amount to, or ... otherwise constitute a threat of, continuing racketeering activity.” H.J. Inc. v. Northwestern Bell Telephone Co., — U.S. -, 109 S.Ct. 2893, 2901, 106 L.Ed.2d 195 (1989) (emphasis in original). The Supreme Court in H.J. Inc. explained that predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy the pattern requirement. Id. 109 S.Ct. at 2902. In this case, plaintiff alleges a single predicate transaction, i.e., that the agreed upon compensation which LLL & M offered and defendants Moskovitz, Schiller and Young accepted to breach their partnership agreement and transfer certain client accounts from their former firm to LLL & M constituted commercial bribery. Plaintiff alleges no facts from which a threat of continued bribery may rationally be inferred. See Continental Realty Corp. v. J.C. Penney Co., 729 F.Supp. 1452 (S.D.N.Y.1990); USA Network v. Jones Intercable, Inc., 729 F.Supp. 304, 318 (S.D.N.Y.1990) (no threat of continuity where alleged purpose of fraudulent scheme was “essentially accomplished”); Airlines Reporting Corp. v. Aero Voyagers, Inc., 721 F.Supp. 579, 584 (S.D.N.Y.1989) (no pattern of racketeering activity where complaint alleged “a closed-ended, single scheme involving three perpetrators ..., one victim ..., and an uncomplicated transaction. ...”) LLL & M’s continued payment of compensation to Moskovitz, Schiller and Young will not transform a single alleged bribe into a pattern for RICO purposes. See also Bingham v. Zolt, 683 F.Supp. 965, 970 (S.D.N.Y.1988) (improper to “character-iz[e] the defendant’s subsequent enjoyment of the proceeds of the scheme as continuous criminal activity,”) (analyzing enterprise element). Nor is there any showing that a threat of continuity exists because the predicate acts are a regular way of conducting defendant’s ongoing legitimate business. H.J. Inc., 109 S.Ct. at 2902. Plaintiff alleges no facts tending to show that LLL & M makes a practice of subverting mainstay client accounts at other firms by luring away the billing partners as a means of increasing LLL & M’s profitability or building" }, { "docid": "17023659", "title": "", "text": "three men. The complaint also sufficiently alleges an open-ended RICO scheme under Gould, Inc. v. Mitsui Mining & Smelting Co., 750 F.Supp. 838 (N.D.Ohio 1990), because the Defendants threaten to commit predicate acts through their utilization of the stolen trade secrets. In Gould, a plaintiff brought a RICO claim against two companies that received stolen trade secrets from a former employee of plaintiff. In finding that plaintiff sufficiently alleged a RICO claim, the court noted that there were threats of continued activity because the defendants would be continuing to use plaintiffs trade secrets. Defendants claim that each successive use of a trade secret does not constitute a new predicate act of theft and thus subsequent use does not serve to continue a RICO scheme, relying on Management Computer Services, Inc. v. Hawkins, Ash, Baptie & Co., 883 F.2d 48 (7th Cir.1989). In that case, the plaintiff contended that the defendant schemed to steal plaintiffs proprietary software. The plaintiff claimed that each time the defendant used the software constituted another predicate act. The court disagreed, finding that the theft occurred only when the defendant first copied the software. [Defendant’s] subsequent use of the allegedly stolen software cannot be characterized as subsequent thefts. When a thief steals $100, the law does not hold him to a new theft each time he spends one of those dollars. The same is true of the [software] ____ Its subsequent and varied uses of the stolen software would not constitute new offenses but would go only to the issue of damages. 883 F.2d at 51. The Management Computer Services is not persuasive as applied to the facts of this ease. “When the Supreme Court spoke of the threat of repetition, it was referring to the threat of repeated victimization ..., not merely the retention of the ill-gotten fruits of previous crimes.” Gotham Print, Inc. v. American Speedy Printing Centers, Inc., 863 F.Supp. 447, 460 (E.D.Mich.1994). The thief who steals $100 and then spends it a dollar at a time has victimized the owner only once, at the time the theft occurs. But the thief who steals" }, { "docid": "17023654", "title": "", "text": "because complaint alleged single criminal episode where defendant committed crimes to get one plaintiff to pay for one paint system), cert. denied, - U.S. -, 115 S.Ct. 579, 130 L.Ed.2d 495 (1994); Gotham Print, Inc. v. American Speedy Printing Centers, Inc., 863 F.Supp. 447 (E.D.Mich.1994) (holding isolated acts of mail and wire fraud over 18 month period did not satisfy pattern element of RICO). Under other circumstances, shorter schemes have been found sufficient to support a RICO allegation. See, e.g., Gould, Inc. v. Mitsui Mining & Smelting Co. Ltd., 750 F.Supp. 838 (N.D.Ohio 1990) (where plaintiff brought RICO claim against two companies that allegedly received stolen trade secrets from plaintiffs former employee, court held thirteen months of predicate acts were sufficient to establish continuity). Defendants claim that the complaint alleges a single scheme which cannot constitute a RICO pattern because it lasted for only four months. Defendants claim that the first alleged predicate act occurred on December 1, 1992, when Lopez allegedly first stole documents. Tr. at 8. Defendants further claim that the scheme ended on April 10, 1993, when VW received the last of the documents. Tr. at 8. Because the existence of a single scheme is “in the eye of the beholder”, the court must look to the parameters set forth in H.J., Inc. and the multifactor test set forth in' Columbia to determine if the complaint sufficiently alleges a RICO pattern. The court finds that the allegations meet both the standards for a closed-ended scheme and for an open-ended scheme. The complaint alleges that the scheme began as early as August of 1992 when VW first contacted Lopez to induce him to steal Plaintiffs’ trade secrets and bring them to VW. Complaint para. 54. Plaintiffs contend that the phone call to Lopez constituted the predicate act of wire fraud. Tr. at 34-35; Complaint para. 231. The scheme did not terminate when VW received the documents, but allegedly continued while Defendants made use of the documents and engaged in various coverup activities. A RICO scheme is extended by each related predicate act that the defendant committed. For example," }, { "docid": "11920260", "title": "", "text": "by characterizing the defendant’s subsequent enjoyment of the proceeds of the scheme as continuous criminal activity.”). Thus, the pattern of racketeering acts for the THQ Defendants, the LLC, and the Jakks Defendants ends in August 1998, just after the LLC is formed and the videogame license is granted. As an additional argument for extending the racketeering acts into this decade, Plaintiff cites concealment by Shenker, Bell, the Jakks Defendants, and the THQ Defendants in connection with the civil litigation in Connecticut state court. (Am. Compl. ¶ 195.) Specifically, Plaintiff alleges that these defendants destroyed evidence of the bribery, provided perjured testimony, made false statements to auditors, and concealed documents. (Id. ¶¶ 191-239.) These allegations, however, fail as a matter of law to extend the pattern of racketeering acts. It is true that acts of concealment may sometimes constitute a predicate act for the purposes of RICO. See United States v. Coiro, 922 F.2d 1008, 1017 (2d Cir.1991) (“[T]he evidence established that ... [the defendant’s] activities designed to prevent detection and prosecution of the organization’s illegal activities were part of a consistent pattern that was likely to continue for the indefinite future, absent outside intervention.”). The alleged coverup here, however, does not qualify because it post-dates — by a couple of years — the underlying and completed bribery scheme. It is a cardinal rule of criminal law that “acts of concealment may have significance in lengthening the life of a criminal conspiracy only when these acts are done in furtherance of the main criminal objectives of the conspiracy — such as when the conspirators in a kidnaping conspiracy hide while waiting for the delivery of ransom.” United States v. Eppolito, 436 F.Supp.2d 532, 573 (E.D.N.Y.2006) (internal quotation marks omitted); see also Grunewald v. United States, 353 U.S. 391, 405-06, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957) (noting that post-crime concealment “indieate[s] nothing more than that the conspirators do not wish to be apprehended — a concomitant, certainly, of every crime since Cain attempted to conceal the murder of Abel from the Lord”). Here, some defendants allegedly lied to Plaintiff and withheld" }, { "docid": "5129136", "title": "", "text": "specific threat of repetition extending indefinitely into the future.” Id. (noting that implicit in extortionate demands for monthly payments from storeowners in return for “insurance” against broken windows was the threat of continued demands). Alternatively, the threat of continued criminal activity over an open period can be established where discrete predicates “can be attributed to a defendant operating as part of a long-term association that exists for criminal purposes.” Id. at 243, 109 S.Ct. 2893. This is such a case. Long-term criminal associations plainly include “those traditionally grouped under the phrase ‘organized crime,’ ” id., of which the Gambino crime family is an example, see United States v. Yannotti, 541 F.3d at 115-16. As the Indictment asserts, the Gambino family exists for the purpose of making money from a wide variety of criminal activities. Further, the family uses crime, notably violent crime, to protect its money-making operations. Thus, an agreement to participate in the affairs of such an enterprise through a pattern of racketeering activity, even one manifested by only two predicate acts, poses an open-ended risk of continuing criminal conduct that does not necessarily con- elude with the last pleaded predicate. This is not to foreclose the possibility of racketeering conspiracies with limited objectives even within organized crime enterprises. We hold only that where, as here, the affairs of the enterprise in which a defendant agreed to participate through a pattern of racketeering are broadly defined to encompass all its criminal moneymaking objectives and all means used to protect those objectives, the conspiracy does not end, as a matter of law, with the last proved predicate. This conclusion comports with the law’s general recognition of conspiracy as a “continuing crime,” that is “not complete until the purposes of the conspiracy have been accomplished or abandoned.” See United States v. Eppolito, 543 F.3d at 47 (internal quotation marks omitted). As we have already noted, the purpose of a RICO conspiracy is to conduct or to participate in the conduct of a charged enterprise’s affairs, “not ... to commit predicate acts.” United States v. Persico, 832 F.2d at 713. Thus, whether" }, { "docid": "17023660", "title": "", "text": "that the theft occurred only when the defendant first copied the software. [Defendant’s] subsequent use of the allegedly stolen software cannot be characterized as subsequent thefts. When a thief steals $100, the law does not hold him to a new theft each time he spends one of those dollars. The same is true of the [software] ____ Its subsequent and varied uses of the stolen software would not constitute new offenses but would go only to the issue of damages. 883 F.2d at 51. The Management Computer Services is not persuasive as applied to the facts of this ease. “When the Supreme Court spoke of the threat of repetition, it was referring to the threat of repeated victimization ..., not merely the retention of the ill-gotten fruits of previous crimes.” Gotham Print, Inc. v. American Speedy Printing Centers, Inc., 863 F.Supp. 447, 460 (E.D.Mich.1994). The thief who steals $100 and then spends it a dollar at a time has victimized the owner only once, at the time the theft occurs. But the thief who steals a trade secret victimizes the owner every time the trade secret is used because the owner suffers a new loss with each use of the secret. See, e.g., Uniroyal Goodrich Tire Co. v. Mutual Trading Corp., 63 F.3d 516, 523 (7th Cir.1995) (“repeated infliction of economic injury upon a single victim of a single scheme is sufficient to establish a pattern of racketeering”), cert. denied, — U.S. -, 116 S.Ct. 916, 133 L.Ed.2d 846 (1996); American Automotive Accessories, Inc. v. Fishman, 1996 WL 480369 (N.D.Ill. Aug. 22, 1996) (plaintiffs alleged that defendants obtained checks by repeated mail and wire fraud; plaintiffs alleged repeated economic injury by a single scheme because they alleged that each timé new cheek was cashed, plaintiffs were damaged). Moreover, although the predicate. acts constituting the original theft of trade secrets do not threaten to be repeated, a fair and warranted inference to be drawn from the complaint is that the predicate acts of wire fraud, witness tampering, travel to aid racketeering, and transportation of stolen goods threaten to be repeated as" }, { "docid": "16335997", "title": "", "text": "perjury and mail fraud continued for some time after Sohrab filed his bankruptcy petition, no predicate acts have occurred since December 1999, which suggests that the scheme has wound to a close. In any event, even if it has not, continued silent concealment of assets is not a predicate act. See Thai Airways Int’l Ltd. v. United Aviation Leasing B.V., 891 F.Supp. 113, 119 n. 1 (S.D.N.Y.1994), aff'd, 59 F.3d 20 (2d Cir.1995) (per curiam). Thus, assuming arguendo that the alleged predicate acts set forth above were adequately pled, and evaluating the RICO allegations with respect to each defendant individually, see De Falco, 244 F.3d at 306, 322 n. 22; Persico, 832 F.2d at 714, we conclude that the alleged predicate acts do not “amount to or pose a threat of continued criminal activity,” H.J. Inc., 492 U.S. at 239, 109 S.Ct. 2893, and, accordingly, that the Amended Complaint fails to allege an open-ended pattern of racketeering activity- A closed-ended pattern of racketeering activity involves predicate acts “extending over a substantial period of time.” GICC, 67 F.3d at 466 (internal quotation marks omitted). Notably, this Court has never found a closed-ended pattern where the predicate acts spanned fewer than two years. See FCAM I, 150 F.Supp.2d at 634 & nn. 37-41; Mason Tenders Dist. Council Pension Fund v. Messera, 1996 WL 351250 at *8-9, 1996 U.S. Dist. LEXIS 8929, at *20-21 (S.D.N.Y. June 25, 1996) (citing, inter alia, GICC, 67 F.3d at 467). Although continuity is “primarily a temporal concept, other factors such as the number and variety of predicate acts, the number of both participants and victims, and the presence of separate schemes are also relevant in determining whether closed-ended continuity exists.” De Falco, 244 F.3d at 321; accord Cofacredit, 187 F.3d at 242-44; GICC, 67 F.3d at 467-68; see also Estate of Andy Warhol, 119 F.3d at 98 (“[C]ourts must take care to ensure that the plaintiff is not artificially fragmenting a singular act into multiple acts simply to invoke RICO”). Thus, while two years may be the minimum duration necessary to find closed-ended continuity, the mere fact" }, { "docid": "18183401", "title": "", "text": "with the plaintiff. The plaintiff does not allege in the Complaint that this fee was eventually paid or that the .defendant has withheld it from him. In order to plead standing under RICO, the plaintiff must allege that he incurred a cognizable injury to his “busi-. ness or property.” 18 U.S.C. § 1964(c); Uzan, 322 F.3d at 135. The plaintiff must allege injury that is “to [his] property, and not, for example, physical, emotional or reputational harm.” World Wrestling Entm’t, Inc. v. Jakks Pac., Inc., 530 F.Supp.2d 486, 518 (S.D.N.Y.2007) (quoting State Farm Mut. Auto. Ins. Co. v. CPT Med. Servs., P.C., 375 F.Supp.2d 141, 152 (E.D.N.Y.2005)), aff'd, 328 Fed.Appx. 695 (2d Cir.2009). The plaintiff must allege “actual, quantifiable injury.” McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 227 (2d Cir.2008) (emphasis in original), abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 659, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008). Courts ■ have required that the plaintiff show “concrete financial loss” in order to show injury under RICO. Makowski v. United Bhd. of Carpenters & Joiners of Am., No. 08cv6150, 2010 WL 3026510, at *12 (S.D.N.Y. Aug. 2, 2010) (citing Evans v. City of Chicago, 434 F.3d 916, 932 (7th Cir.2006)); Maio v. Aetna, Inc., 221 F.3d 472, 482-83 (3d Cir.2000); see also Chaset v. Fleer/Skybox Int’l, LP, 300 F.3d 1083, 1087 (9th Cir.2002). Here, the plaintiff is alleging that his share of the actual finder’s fee that he was owed for successfully finding an investor for the Follieri Venture was greater than he was originally informed. Therefore, the plaintiffs only injury that he could allege is the expectation of receiving a larger finder’s fee. However, he does not allege that he has received any of the finder’s fee at all, or that the defendant has received the fee and is withholding it from him. Consequently, the plaintiff has not shown any actual, quantifiable injury to his business or property, and lacks standing' under RICO to state a claim based on this alleged act. Furthermore, this alleged predicate act is time-barred. The Complaint" }, { "docid": "11920261", "title": "", "text": "activities were part of a consistent pattern that was likely to continue for the indefinite future, absent outside intervention.”). The alleged coverup here, however, does not qualify because it post-dates — by a couple of years — the underlying and completed bribery scheme. It is a cardinal rule of criminal law that “acts of concealment may have significance in lengthening the life of a criminal conspiracy only when these acts are done in furtherance of the main criminal objectives of the conspiracy — such as when the conspirators in a kidnaping conspiracy hide while waiting for the delivery of ransom.” United States v. Eppolito, 436 F.Supp.2d 532, 573 (E.D.N.Y.2006) (internal quotation marks omitted); see also Grunewald v. United States, 353 U.S. 391, 405-06, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957) (noting that post-crime concealment “indieate[s] nothing more than that the conspirators do not wish to be apprehended — a concomitant, certainly, of every crime since Cain attempted to conceal the murder of Abel from the Lord”). Here, some defendants allegedly lied to Plaintiff and withheld documents to cover up an already-completed scheme. In fact, these acts were allegedly done long after Bell and Shenker were terminated in 2000, for reasons unrelated to their alleged criminal conduct at issue in this case. Because no bribery activities were alleged to be ongoing by 2000, any alleged coverup could not have been intended or designed to further the still-alive scheme, but instead only to cover up past misconduct. Therefore, the alleged obstruction, perjury and false statements in 2000 and beyond — shocking as they may be — do not extend the pattern of racketeering activity. See Ray Larsen Assocs., 1996 WL 442799, at *7 n. 8 (“Plaintiff also alleges acts of obstruction of justice during the pendency of this lawsuit as predicate acts for the RICO scheme. These allegations must be excluded because efforts by a defendant to cover up the underlying conduct are inadequate to satisfy the continuity requirement of the RICO statute.”); Barsam v. Pure Tech Int’l, Inc., 864 F.Supp. 1440, 1450 (S.D.N.Y.1994) vacated in aid of settlement, 907 F.Supp. 79" }, { "docid": "22581867", "title": "", "text": "district court, thus providing plaintiffs an opportunity to address it. A RICO claim “must allege a violation of 18 U.S.C. § 1962, which con sists of four elements: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Gillmor, 490 F.3d at 797 (quotation omitted). A “pattern” requires at least two predicate acts. 18 U.S.C. § 1961(5). In addition, “[t]o satisfy RICO’s pattern requirement, [a plaintiff must] allege not only that the defendants had committed two or more predicate acts, but also that the predicates themselves amount to, or that they otherwise constitute a threat of, continuing racketeering activity.” Hall v. Witteman, 584 F.3d 859, 867 (10th Cir.2009) (quotation omitted). A viable RICO claim requires a showing of “continuity plus relationship.” Sedima, 473 U.S. at 496 n. 14, 105 S.Ct. 3275 (quotation omitted). “The relationship test is not a cumbersome one for a RICO plaintiff. A showing that predicate acts have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events is essentially all that is needed.” Boone v. Carlsbad Bancorporation, Inc., 972 F.2d 1545, 1555 (10th Cir. 1992) (quotations omitted). The showing required for “continuity,” on the other hand, “is more difficult to meet.” Id. “ ‘Continuity’ is both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition.” H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 241, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). The Supreme Court has determined “that when Congress said predicates must demonstrate ‘continuity’ before they may form a RICO pattern, it expressed an intent that RICO reach activities that amount to or threaten long-term criminal activity.” Id. at 243 n. 4, 109 S.Ct. 2893. Plaintiffs’ complaint alleges that defendants engaged in a single scheme to accomplish the discrete goal of transferring METCO’s uranium mining interests to another corporation (UKL, which then allegedly transferred them to Monaro). “[T]he facts as alleged fail to show" }, { "docid": "17023653", "title": "", "text": "For example, petitioners’ allegations that Northwestern Bell attempted to subvert public utility commissioners who would be voting on the company’s rates might be described as a single scheme to obtain a favorable rate, or as multiple schemes to obtain favorable votes from individual commissioners on the ratemaking decision. Similarly, though interference with ratemaking spanning several ratemaking decisions might be thought of as a single scheme with advantageous rates as its objective, each ratemaking decision might equally plausibly be regarded as distinct and the object of its own “scheme.” There is no obviously “correct” level of generality for courts to use in describing the criminal activity alleged in RICO litigation. Id. Courts have not adopted a bright line test of what period of time constitutes a minimum duration for a closed-ended scheme. Under some circumstances, schemes lasting as long as eighteen months have been found insufficient to support a RICO claim. See, e.g., Vemco, Inc. v. Camardella, 23 F.3d 129 (6th Cir.1994) (holding racketeering activity over seventeen month period did not satisfy continuity requirement under RICO because complaint alleged single criminal episode where defendant committed crimes to get one plaintiff to pay for one paint system), cert. denied, - U.S. -, 115 S.Ct. 579, 130 L.Ed.2d 495 (1994); Gotham Print, Inc. v. American Speedy Printing Centers, Inc., 863 F.Supp. 447 (E.D.Mich.1994) (holding isolated acts of mail and wire fraud over 18 month period did not satisfy pattern element of RICO). Under other circumstances, shorter schemes have been found sufficient to support a RICO allegation. See, e.g., Gould, Inc. v. Mitsui Mining & Smelting Co. Ltd., 750 F.Supp. 838 (N.D.Ohio 1990) (where plaintiff brought RICO claim against two companies that allegedly received stolen trade secrets from plaintiffs former employee, court held thirteen months of predicate acts were sufficient to establish continuity). Defendants claim that the complaint alleges a single scheme which cannot constitute a RICO pattern because it lasted for only four months. Defendants claim that the first alleged predicate act occurred on December 1, 1992, when Lopez allegedly first stole documents. Tr. at 8. Defendants further claim that the scheme ended" }, { "docid": "18183400", "title": "", "text": "in June 2007. The plaintiff was indicted on the federal charges in November 2007, and the Complaint alleges that the plaintiff first learned that the defendant disclosed privileged information in December 2007. Am. Compl. ¶¶ 146-47. Therefore, the latest the plaintiff learned about any injury arising from these alleged acts is well before January 2010, which is four years prior to the date this action was brought. As discussed above, the plaintiffs argument that there is a continuous conspiracy does not extend the statute of limitations for these time-barred predicate acts. iii. The plaintiffs sixth alleged predicate act relates to the Follieri Venture. The plaintiff argues that the defendant committed an act of wire fraud under 18 U.S.C. § 1343 by misleading the plaintiff about the finder’s fee, originally informing him that it was $1.5 million when it was actually $2.5 million. The plaintiff alleges that the defendant sent him an e-mail claiming not to know about the fee, and also told the plaintiff over the phone that the fee was intended to be split with the plaintiff. The plaintiff does not allege in the Complaint that this fee was eventually paid or that the .defendant has withheld it from him. In order to plead standing under RICO, the plaintiff must allege that he incurred a cognizable injury to his “busi-. ness or property.” 18 U.S.C. § 1964(c); Uzan, 322 F.3d at 135. The plaintiff must allege injury that is “to [his] property, and not, for example, physical, emotional or reputational harm.” World Wrestling Entm’t, Inc. v. Jakks Pac., Inc., 530 F.Supp.2d 486, 518 (S.D.N.Y.2007) (quoting State Farm Mut. Auto. Ins. Co. v. CPT Med. Servs., P.C., 375 F.Supp.2d 141, 152 (E.D.N.Y.2005)), aff'd, 328 Fed.Appx. 695 (2d Cir.2009). The plaintiff must allege “actual, quantifiable injury.” McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 227 (2d Cir.2008) (emphasis in original), abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 659, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008). Courts ■ have required that the plaintiff show “concrete financial loss” in order to show injury under RICO." } ]

[ { "docid": "22666496", "title": "", "text": "ed., Supp. III), as the solution to a bail crisis in the federal courts. The Act represents the National Legislature’s considered response to numerous perceived deficiencies in the federal bail process. By providing for sweeping changes in both the way federal courts consider bail applications and the circumstances under which bail is granted, Congress hoped to “give the courts adequate authority to make release decisions that give appropriate recognition to the danger a person may pose to others if released.” S. Rep. No. 98-225, at 3. To this end, § 3141(a) of the Act requires a judicial officer to determine whether an arrestee shall be detained. Section 3142(e) provides that “[i]f, after a hearing pursuant to the provisions of subsection (f), the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, he shall order the detention of the person prior to trial.” Section 3142(f) provides the arrestee with a number of procedural safeguards. He may request the presence of counsel at the detention hearing, he may testify and present witnesses in his behalf, as well as proffer evidence, and he may cross-examine other witnesses appearing at the hearing. If the judicial officer finds that no conditions of pretrial release can reasonably assure the safety of other persons and the community, he must state his findings of fact in writing, § 3142(i), and support his conclusion with “clear and convincing evidence,” § 3142(f). The judicial officer is not given unbridled discretion in making the detention determination. Congress has specified the considerations relevant to that decision. These factors include the nature and seriousness of the charges, the substan-tiality of the Government’s evidence against the arrestee, the arrestee’s background and characteristics, and the nature and seriousness of the danger posed by the suspect’s release. § 3142(g). Should a judicial officer order detention, the detainee is entitled to expedited appellate review of the detention order. §§ 3145(b), (c). Respondents Anthony Salerno and Vincent Cafaro were arrested on March 21,1986, after being charged in" } ]

[ { "docid": "22413663", "title": "", "text": "order. If the proper scope of review were as narrow as appellant suggests, the excluded opinion evidence arguably would be more important. However, we have rejected the scope of review suggested by Delker in favor of an independent determination of the release issue by the district court. The court’s detention decision was properly based on the factors deemed important by Congress, as supported by the facts adduced at the hearing. Those facts clearly and convincingly showed that Delker posed a danger to the community. See infra Section III C. In this context the opinion of a witness regarding those facts is less crucial. The final procedural argument pressed by the appellant is that he had inadequate notice of the format of the detention hearing in the district court. Such a proposition must be rejected. The Bail Reform Act of 1984 sets forth the procedural requirements for a pretrial detention hearing, § 3142(f), and the factors to be considered by the judicial officer in determining whether there are conditions of release that will reasonably assure the safety of the community, § 3142(g). As Delker concedes, the government made virtually the same arguments in the district court as it had made before the magistrate. While the paucity of court decisions construing the new Act may have contributed some uncertainty regarding the interstices of the statute, this seems no different from the situation whenever any new law takes effect. There was no due process violation in this regard. C. Appellant also challenges the district court’s conclusion that no conditions regarding his release would reasonably assure the safety of the community. In ascertaining whether to detain or release a defendant, the judicial officer is directed by the statute to consider the available information concerning several factors, including: (1) the nature and seriousness of the offense charged; (2) the weight of evidence against the defendant; (3) the defendant’s character, physical and mental condition, family and community ties, past conduct, history relating to drug or alcohol abuse, and criminal history; and (4) the nature and seriousness of the danger to any person or the community that" }, { "docid": "19654187", "title": "", "text": "imprisonment of ten years or more is prescribed, there is a rebuttable presumption that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community.” 18 U.S.C. § 3142(e). Although the presumption shifts a burden of production to the defendant, the burden of persuasion remains with the government. See United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir.1991). A finding that a defendant is a danger to any other person or the community must be supported by “clear and convincing evidence.” 18 U.S.C. § 3142(f)(2)(B). If a defendant proffers evidence to rebut the presumption of dangerousness, the court considers four factors in determining whether the pretrial detention standard is met: (1) the nature and circumstances of the offense charged, including whether the offense is a federal crime of terrorism; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including the person’s character, physical and mental condition, family and community ties, employment, financial resources, past criminal conduct, and history relating to drug or alcohol abuse; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the defendant’s release. 18 U.S.C. § 3142(g). See United States v. Winsor, 785 F.2d 755, 757 (9th Cir.1986); United States v. Motamedi, 767 F.2d 1403, 1407 (9th Cir.1985). The presumption is not erased when a defendant proffers evidence to rebut it; rather the presumption “remains in the case as an evidentiary finding militating against release, to be weighed along with other evidence relevant to factors listed in § 3142(g).” United States v. Dominguez, 783 F.2d 702, 707 (7th Cir.1986). In reviewing a district court’s pretrial detention order, we must be careful to ensure that the “order is consistent with the defendant’s constitutional and statutory rights.” United States v. Townsend, 897 F.2d 989, 994 (9th Cir.1990). See also Motamedi, 767 F.2d at 1405 (explaining that “[t]he Fifth and Eighth Amendments’ prohibitions of deprivation of liberty without due process and of excessive bail require careful review of pretrial" }, { "docid": "23295755", "title": "", "text": "Orena faction and one who readily furthers its criminal objectives through violence. Moreover, while Amato may argue that he is harmless in comparison to Orena, that argument merely underlines Orena’s criminal and violent propensities but is hardly persuasive of Amato’s pacific nature. We therefore conclude that the detention period contemplated does not, in light of the causes of delay and the dangerousness of Amato, violate due process. The only remaining question, therefore, is whether the conditions of bail mitigate the threat that Amato represents to the community. Section 3142(g) sets forth the factors determining whether “there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(g). These factors include the nature and circumstances of the offense charged, the weight of the evidence against the person, the history and characteristics of the person, and \"the nature and seriousness of the danger to any person or the community that would be posed by the person’s release.” 18 U.S.C. § 3142(g)(4). Where the court concludes by clear and convincing evidence that “no condition or combination of conditions will reasonably assure ... the safety of any other person and the community,” detention shall be ordered. 18 U.S.C. § 3142(e); see also 18 U.S.C. § 3142(f). We do not agree that the bail conditions set by the district court eliminate the danger to the community or are superior to detention for purposes of the Bail Reform Act. See United States v. Rodriguez, 950 F.2d 85, 89 (2d Cir.1991). As noted, the first two statutory factors, the nature and circumstances of the offense charged and the weight of the evidence, weigh heavily against pretrial release. We agree with Judge Glasser’s conclusions in Gotti, which involved substantially the same conditions as are at issue here, that the electronic surveillance systems can be circumvented by the “wonders of science and of sophisticated electronic technology,” and that the monitoring equipment can be rendered inoperative. Gotti, 776 F.Supp. at 672-73. We rejected reliance upon similar bail conditions in United States v." }, { "docid": "22230571", "title": "", "text": "trial is not necessary in all proceedings. The Act provides for some procedural safeguards. The detention hearing must be held immediately upon the defendant’s initial appearance; it may be continued for no more than five days without good cause. Although traditional rules of evidence do not apply at the hearing, the defendant has a right to counsel, a right to testify, a right to call witnesses, and a right to cross-examine witnesses. 18 U.S.C. § 3142(f). We agree with the other courts which have concluded that these procedures adequately protect the liberty interest at stake in this case. Delker, 757 F.2d at 1397; Jessup, 757 F.2d at 386; Freitas, 602 F.Supp. at 1292; United States v. Hazzard, 598 F.Supp. 1442, 1453-54 (N.D.Ill.1984). Finally, Mr. Portes argues that the potential length of his detention violates due process. He relies on the district court’s opinion in United States v. Colombo, 616 F.Supp. 780 (E.D.N.Y.1985). There, the district court considered the length of pre-trial delay an important factor in determining that detention was improper. Mr. Portes argues that this case should be remanded to require the district court to consider the fact that there are numerous defendants and pre-trial motions which could create a long period of detention before trial. We recognize that, at some point, the length of delay may raise due process objections and we urge that district courts expedite the trials of those detained pending trial. However, as the Second Circuit noted in its review and reversal of the Colombo decision, at this stage of the proceedings, a determination that the length of detention is impermissible “both as a statutory and constitutional matter, is premature.” United States v. Colombo, 777 F.2d 96, 100 (2d Cir.1985). CONCLUSION We hold that the magistrate and the district court properly applied the 1984 Bail Reform Act and that the Act does not violate the fifth or eighth amendment. The order detaining Mr. Portes pending his trial is affirmed. Affirmed. . At oral argument, Mr. Portes’ attorney agreed that it would be fair to characterize the indictment as alleging that Mr. Portes was a mid-level" }, { "docid": "13816003", "title": "", "text": "of 1984 requires the court to detain a defendant unless a condition or combination of conditions will reasonably assure (1) the defendant’s appearance as required and (2) the safety of any other person and the community. 18 U.S.C. § 3142(e). The Court of Appeals for the Seventh Circuit held that the Bail Reform Act of 1984 did not violate the Fifth and Eighth Amendments of the Constitution of the United States. United States v. Portes, 786 F.2d 758 (7th Cir. 1985). The government bears the burden to prove either that the defendant is a flight risk or a danger to the community. United States v. Daniels, 772 F.2d 382, 383 (7th Cir.1985). The government’s burden, under the danger to the community element of the statute is to prove by clear and convincing evidence that the defendant is a danger to any other person or the community. United States v. Portes, 786 F.2d 758, 764 (7th Cir.1985). Under the risk of flight element of the statute the government need only prove by a preponderance of evidence that a condition or combination of conditions will reasonably assure the appearance of the defendant as required. When analyzing whether the government has met the requisite burden of proof, the court may consider several factions. 18 U.S.C. § 3142(g). Those factors include: (1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence ...; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including (A) his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, ...; Id. The evidence presented to the court at a detention hearing is not limited by rules concerning the admissibility of evidence in criminal trial. 18 U.S.C. § 3142(f). Further, as Judge Posner pointed out in United States v. Diaz, 777 F.2d 1236 (7th Cir. 1985), the court is “obligated to give weight” to the fact “that persons facing heavy sentences for particular types of offenses are likely to jump bail.” Id., at 1238." }, { "docid": "51823", "title": "", "text": "763 F.Supp. at 1323; United States v. Strong, 775 F.2d 504, 508 (3d Cir.1985). The Circuit has explained: Unlike a defendant who has not yet been convicted and for whom the [1984 Act] gives a presumption for bail except in certain circumstances, see 18 U.S.C. § 3142(b), once a defendant has been convicted, albeit not yet sentenced, the burden shifts to defendant. The court “shall order” detention unless the defendant shows by “clear and convincing evidence” that (1) s/he is not likely to flee or (2) pose a danger to the safety of the community or any person therein if released. Strong, 775 F.2d at 505. In making a determination concerning whether there are conditions of release, which will assure the future appearance of a convicted defendant and the safety of the community, the Clark court explained that the factors enumerated in Section 3142(g), regarding bail pending trial, must be considered. Clark, 763 F.Supp. at 1323. Section 3142(g) provides that the court must consider available information regarding: (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including— (A) the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person’s release ____ 18 U.S.C. § 3142(g). a. The Risk of Flight The factors to be considered in assessing the risk of flight include: (1) the nature and circumstances of the offense, (2) the defendant’s family ties, (3) the defendant’s employment status," }, { "docid": "21956669", "title": "", "text": "a serious flight risk and that no combination of conditions exist that would reasonably assure his appearance at future court proceedings if released from custody. BAIL REFORM ACT OF 1984 “The Bail Reform Act [the ‘Act’], 18 U.S.C. §§ 3141-3150, authorizes and sets forth the procedures for a judicial officer to order the release or detention of an arrested person, pending trial, sentence, and appeal.” The Act requires a district court to order a defendant detained pending trial if “no condition or combination of conditions will reasonably assure the appearance of the person as required.... ” 18 U.S.C. § 3142(e); United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir.1991); United States v. Motamedi, 767 F.2d 1403, 1405 (9th Cir.1985). “The district court has a duty to engage in a two-step inquiry-before ordering a defendant released or detained pending trial.” United States v. Hollender, 162 F.Supp.2d 261, 264 (S.D.N.Y.2001); 18 U.S.C. § 3142(b) and (e). First, the district court must make a finding as to whether the defendant presents a “serious risk that such person will flee” if not detained. 18 U.S.C. § 3142(f)(2)(A). “Second, if the defendant is likely to flee, the district court must determine whether some set of conditions would sufficiently vitiate that risk.” Hollender, 162 F.Supp.2d. at 264; 18 U.S.C. § 3142(g). In making the determination whether conditions exist that would reasonably assure a defendant’s appearance, Section 3142(g) requires the district court to take into account four statutory factors: (1) the nature and circumstances of the offense charged; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (4) the nature and seriousness of the danger to any person or community that would be posed by the person’s release. 18 U.S.C. § 3142(g). The weight to be accorded to each of these factors rests in the Court’s discretion. Hollender, 162" }, { "docid": "1310594", "title": "", "text": "more than ten years, there is in this case a rebuttable presumption that no combination of conditions will reasonably assure their appearance or the safety of the community. 18 U.S.C. § 3142(e). This, however, simply requires the defendants to produce some evidence to rebut the presumptions. United States v. Jessup, 757 F.2d 378, 381-82 (1st Cir.1985). They have done so. The burden of persuasion remains with the government with regard to the questions of flight and danger. Id. at 383-84. The court, however, must still consider as weighing in favor of detention the fact that Congress found that alleged drug traffickers generally pose special risks of flight and danger to the community. Id. at 384. Nonetheless, the court “may still conclude ^ that what is true in general is not true in the particular case before [it].” Id.; United States v. Perez-Franco, 839 F.2d 867, 870 (1st Cir.1988). Along with the rebuttable presumptions, the court must also consider the following factors in determining whether detention is warranted: (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including— (A) the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (B) whether at the time of the current offense or arrest, the person was on probation, or parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person’s release. 18 U.S.C. § 3142(g). With regard to the foregoing factors, it is appropriate for the court to consider the evidence of DiGiacomo’s and Spagnolo’s membership in the Mafia as a factor militating in favor of detention. See e.g., United States v." }, { "docid": "10492118", "title": "", "text": "in this case, and (2) that there are reasonable conditions which can be imposed upon his release sufficient to assure his presence at trial and the safety of any person and the community. The Bail Reform Act of 1984 makes substantial revisions in the federal law governing pretrial release of criminal defendants. Most significant in this case are the changes which now compel federal judges to consider community safety in setting nonfinancial conditions of release and to order the pretrial detention of certain defendants who, if released, are likely to flee or endanger other persons and the commu nity. Section 3142 of the Bail Act provides that a judicial officer shall issue an order pending trial to detain a defendant if, after a hearing, the judicial officer determines that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(e). The statute specifies four factors which the court is required to consider in making a determination as to whether a defendant should be released or detained: (1) the “nature and circumstances of the offense charged,” including whether the crime involves a narcotic drug, (2) “the weight of the evidence against the person,” (3) “the history and characteristics of the person,” and (4) “the nature and seriousness of the danger to any person or the community that would be posed by the person’s release.” 18 U.S.C. § 3142(g). At the detention hearing, the defendant has a right to be represented by counsel, to testify and present witnesses on his own behalf, to cross-examine witnesses who appear at the hearing, and to offer any other relevant information by proffer or otherwise. 18 U.S.C. § 3142(f). As for the standard of proof that should apply to these proceedings, the statute provides that a finding of dangerousness must be supported by “clear and convincing evidence,” but is silent on the question of how much proof is necessary to support a finding that the defendant presents a flight risk. Id. The Act also states that where" }, { "docid": "20250279", "title": "", "text": "forward with evidence to rebut that of the government. Chimurenga, 760 F.2d at 405. See also Rodriguez, 950 F.2d at 88; Martir, 782 F.2d at 1144. I find that the defendants in each of their proffers, as well as in the collective proffer made on their behalf, have not come forward with sufficient evidence to offset the government’s claims of dangerousness and risk of flight, nor have they presented anything that would constitute reasonable answers to the questions listed above. As previously stated and reiterated, we cannot abandon the principles established in the United States Constitution when deciding the government’s motion to detain. This has not been done, and the defendants, by way of four days of hearing, have received the due process to which they are entitled under the Fifth Amendment as it relates to the issue of bail or detention. However, the United States Constitution does not require that the Court abandon or disregard common sense and the drawing of reasonable inferences based on circumstantial evidence in making its determination. I have considered each and every one of the factors set forth in 18 U.S.C. § 3142(g), to wit: (1) the nature and circumstances of the offense charged...; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including (A) the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal or completion of sentence for an offense under Federal, state or local law; and (4)the nature and seriousness of the danger to any person or the community that would be posed by the person’s release. The defendants have attacked the validity of the charge placed against each of them on the ground that 18 U.S.C. § 2339B is unconstitutional because of vagueness and in support of" }, { "docid": "2571937", "title": "", "text": "government, however, has introduced evidence and made a proffer that satisfy the court that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community.” 18 U.S.C. § 3142(e). The statute sets forth the factors that the court is to consider in ordering detention. These factors are: (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; (2) the weight of the evidence against the person; (3) the history and characteristics of the-person, including— (A) his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (B) whether, at the time of the current offense or arrest, he was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal State, or local law, and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person’s release ____ 18 U.S.C. § 3142(g). The court has considered all of these factors. The defendant is charged with very serious offenses in this case, most notably, the charge under 21 U.S.C. § 848 which carries a life sentence. The prospect of a life sentence surely provides an incentive for a defendant to flee. United States v. Kostadinov, 572 F.Supp. 1547, 1552 (S.D.N.Y.), aff'd, 721 F.2d 411 (2d Cir.1983). Further, the charges involve narcotics which is equated with crimes of violence in the text of the statute itself. 18 U.S.C. § 3142(g)(1). The weight of the evidence against the defendant is strong. The government introduced transcripts of a number of telephone conversations. These conversations, while they do not refer to the defendant by name, are to be corroborated by an alleged co-conspirator of the defendant. The government also submitted inventory lists of property seized from the residences of the defendant’s alleged co-conspirators. The" }, { "docid": "960596", "title": "", "text": "findings on both appearance and safety before detention could be ordered, would defeat the overriding purpose of the Bail Reform legislation.” Kouyoumdjian, 601 F.Supp. at 1510. Prior to the 1984 Act, a court could only consider the risk of flight by the defendant. In passing the Act, Congress intended to permit courts to consider the additional factor of the danger to the community. Congress did not intend to increase the government’s burden of proof, but rather intended to allow judges more flexibility in making detention decisions. See Report of the Committee on the Judiciary, United States Senate on S. 215, Rept No. 96-147 (May 25, 1983) at 32. Therefore, logic necessitates a disjunctive reading. This conclusion is reinforced by the fact that sections 3142(b) and (c) are written in the disjunctive, e.g., “the judicial officer shall order the pretrial release ... unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.” § 3142(b). See also United States v. Bey, Crim. No. 84-205, slip op. (N.D.Ohio 1985). Finally, defendant contends that even if the statute is to be read in the disjunctive, the government has failed to meet its burden of proving by clear and convincing evidence that there is no condition or combination of conditions which will assure the safety of any other person or of the community; this burden of proof is set forth in section 3142(f). Under the new Act, before ordering pretrial detention, I must consider a number of factors, including: the nature of the offense charged and its circumstances, 18 U.S.C. § 3142(g)(1); the weight of the evidence against the defendant, § 3142(g)(2); the history and characteristics of the defendant, § 3142(g)(3); and the nature and seriousness of the threat to the community posed by the pretrial release of the defendant, § 3142(g)(4). The government has filed its motion for pretrial detention pursuant to § 3142(f)(1)(D) which applies when a defendant is charged with a felony after having been convicted of two or more prior" }, { "docid": "7552867", "title": "", "text": "assured only Colombo’s presence at trial, id. at 308, other conditions of release could assure the safety of the community. Furthermore, a “substantial additional basis for [the district court’s] decision to confirm the Magistrate’s decision to release the defendant is that the necessary delay in bringing the case to trial will require him to be incarcerated from 13 months to two years before a trial can be completed.” Id. at 317. Ac cording to the district court’s reasoning, the extended period of incarceration likely to eventuate in this complex multi-defendant case must be considered in order for preventive detention to withstand constitutional attack. We hold that the release conditions set by the district court are inadequate to protect the community, and, in addition, that the release of Colombo predicated on anticipated length of incarceration is unwarranted at this stage of the proceedings. DISCUSSION As this court has noted elsewhere, “[section 3142 of the new Bail Reform Act dramatically changes prior law by including ‘the nature and seriousness of the danger to the community that would be posed by the person’s release’ as a factor to be considered in determining conditions of pretrial release, and by authorizing detention pending trial where ‘no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.’ ” Chimurenga, 760 F.2d at 403 (quoting 18 U.S.C. § 3142(e), (g)(4)); see United States v. Orta, 760 F.2d 887, 890 (8th Cir.1985). Congress has expressed its concern about “the growing problem of crimes committed by persons on release,” and the “small but identifiable group of particularly dangerous defendants as to whom neither the imposition of stringent release conditions nor the prospect of revocation of release can reasonably assure the safety of the community.” S.Rep. No. 225, 98th Cong., 1st Sess. 6-7, reprinted in 1984 U.S.Code Cong. & Ad.News at 3182, 3188-89. There is no question that both the magistrate and the district court determined that the evidence proffered at the April 29th hearing before Magistrate Chrein clearly and convincingly demonstrated that Colombo presents" }, { "docid": "2208796", "title": "", "text": "take into account the available information concerning-(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including-(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. 18 U.S.C. § 3142(g), See, e.g., United States v. Townsend, 897 F.2d 989, 993 (9th Cir.1990). B. Risk of Flight. Only if the government establishes by a preponderance of the evidence that no condition or set of conditions under 18 U.S.C. § 3142(c) will reasonably assure the Defendant’s appearance, can a Defendant be detained before trial. United States v. Orta, 760 F.2d 887, 891 (8th Cir.1985). The judicial officer “cannot require more than an objectively reasonable assurance of ... the defendant’s appearance at trial.” Orta, 760 F.2d at 892. C. Dangerousness. The Bail Reform Act of 1984, 18 U.S.C. § 3141, et seq. represents “a water shed in the criminal law. It transformed preexisting practice in very significant ways, providing among other things for the pretrial detention of persons charged with certain serious felonies of the ground of dangerousness — a ground theretofore not cognizable.” United States v. Tortora, 922 F.2d 880, 884 (1st Cir.1990). Only if the government establishes by clear and convincing evidence that no release condition or set of conditions will reasonably assure the safety of the community may the defendant be detained before trial. Orta, 760 F.2d at 891. III. THE REBUTTABLE PRESUMPTION. Subject to rebuttal by a" }, { "docid": "22763761", "title": "", "text": "burden of proof at that hearing. The government must prove risk of flight by a preponderance of the evidence, see, e.g., United States v. Xulam, 84 F.3d 441, 442 (D.C.Cir.1996) (per curiam); United States v. Quartermaine, 913 F.2d 910, 917 (11th Cir.1990), and it must prove dangerousness to any other person or to the community by clear and convincing evidence, 18 U.S.C. § 3142(f). “[I]n determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community,” the judicial officer must consider: (1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including— (A) the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person’s release. 18 U.S.C. § 3142(g). If, after the hearing and consideration of the above factors, a judicial officer orders that a defendant be detained, the order must “include written findings of fact and a written statement of the reasons for the detention.” Id. § 3142(i)(l); see also Fed. R.App. P. 9(a)(1) (“The district court must state in writing, or orally on the record, the reasons for an order regarding the release or detention of a defendant in a criminal case.”). The Arizona magistrate judge held a § 3142(f) hearing for Cisneros and a co-defendant and, after stating its factual findings, concluded that the Government has failed to show reliable evidence" }, { "docid": "960600", "title": "", "text": "was filed in Janu ary 1985. An indictment was issued the next month. Therefore, I must reject defendant’s position. Under the Act, the government must demonstrate to my satisfaction by clear and convincing evidence that, if released pending trial defendant Askari would pose a threat to members of his community. I conclude that the government has met that burden with respect to defendant Askari. I therefore make the following conclusions of law. CONCLUSIONS OF LAW 1. The Bail Reform Act of 1984, 18 U.S.C. § 3142(e) expressly provides that the court shall order the detention of a defendant prior to trial if, after a hearing, the court finds “that no condition or combination of conditions will reasonably assure ... the safety of any other person and the community ... ”. 2. Under the Bail Reform Act, there must be a sufficient evidentiary basis for the court’s determination that pretrial detention is necessary. In making my determination I am required to consider: (1) the nature and circumstances of the offense, including whether the offense is a crime of violence; (2) the weight of the evidence against the defendant; (3) the history and characteristics of the defendant including his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, appearance record, and whether at the time of the offense he was on probation, parole, or other type of release pending trial, sentencing or appeal; and (4) the nature and seriousness of any alleged danger to any person or the community that was posed by the defendant’s release. 18 U.S.C. § 3142(g). 3. I find that there exists probable cause to believe that defendant Askari committed a felony after having been convicted twice of committing a “crime of violence” within the meaning of 18 U.S.C. § 3156(a)(4), and therefore, the government is properly proceeding under § 3142(f)(1)(D). 4. The indictment charges defendant Askari with possession of a firearm by a convicted felon in violation of Title 18, United States Code, Appendix, Section 1202(a)(1). I" }, { "docid": "17992030", "title": "", "text": "detained before trial “[o]nly if the government shows by clear and convincing evidence that no release condition or set of conditions will reasonably assure the safety of the community and by a preponderance of the evidence that no condition or set of conditions ... will reasonably assure the defendant’s appearance .... ” United States v. Kisling, 334 F.3d 734, 735 (8th Cir.2003) (quoting United States v. Orta, 760 F.2d 887, 891 (8th Cir.1985) (en banc); 18 U.S.C. § 3142(c), (e)-(f)). Because the district court found probable cause Abad committed an offense under 18 U.S.C. § 2423, a statutory rebut-table presumption arises “that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community.” 18 U.S.C. § 3142(e). Assuring a criminal defendant’s appearance at trial is a legitimate government objective. Detaining adults who prey on children for the adult’s sexual gratification or for the production of child pornography is also a legitimate government objective. One of the fundamental duties of government is public safety, including protecting children from sexual predators. In determining if release conditions exist that will reasonably assure the appearance of a defendant at trial and the safety of the community, the court considers the following: (1) the nature and circumstances of the crime; (2) the weight of the evidence against the defendant; (3) the history and characteristics of the defendant, including mental condition, family ties, employment, community ties, and past conduct; and (4) the seriousness of the danger to the community or to an individual. 18 U.S.C. § 3142(g). “In a presumption case such as this, a defendant bears a limited burden of production-not a burden of persuasion-to rebut that presumption by coming forward with evidence he does not pose a danger to the community or a risk of flight.” United States v. Mercedes, 254 F.3d 433, 436 (2d Cir.2001). “Once a defendant has met his burden of production relating to these two factors, the presumption favoring detention does not disappear entirely, but remains a factor to be considered among those weighed by the district court.” Id." }, { "docid": "7890977", "title": "", "text": "release only if no conditions will reasonably assure (1) the defendant’s appearance and (2) the safety of the community, § 3142(e), and should resolve doubts about the propriety of release in the defendant’s favor, see, e.g., United States v. Hammond, 204 F.Supp.2d 1157, 1161 (E.D.Wis.2002); United States v. Barnett, 986 F.Supp. 385, 392 (W.D.La.1997). In determining whether (and which) conditions of release will reasonably assure the appearance of the defendant and the safety of the community, the court considers (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; (2) the weight of the evidence against the defendant; (3) the history and characteristics of the defendant; and (4) the nature and seriousness of the danger, if any, that release would pose. 18 U.S.C. § 3142(g). If the court finds probable cause to believe that the defendant committed a drug offense for which the maximum penalty is ten years or more or an offense under 18 U.S.C. § 924(c), a rebuttable presumption arises that no condition(s) will reasonably assure the appearance of the defendant and the safety of the community. § 3142(e). The presumption shifts the burden of production to the defendant to come forward with some evidence that if released he will not flee or endanger the community. Portes, 786 F.2d at 764. Even if the defendant rebuts it, the presumption remains in the case as an evidentiary finding militating against release, but the ultimate burden of persuasion rests on the government. United States v. Dominguez, 783 F.2d 702, 707 (7th Cir.1986). When the government seeks detention based on the defendant’s alleged dangerousness, it must establish “by clear and convincing evidence that no condition or set of conditions will ensure the safety of the community.” Portes, 786 F.2d at 764. When the government seeks detention based on the defendant’s risk of flight, it must establish by a preponderance of the evidence that no conditions will reasonably assure his appearance in court. Id. at 765. However, it is important to note that the Bail Reform Act does not" }, { "docid": "22230576", "title": "", "text": "Act of September 15, 1980 (21 U.S.C. 955a), or an offense under section 924(c) of title 18 of the United States Code. . If convicted on all counts, Mr. Portes faces a possible fifty-four year prison sentence. . On appeal, Mr. Portes does not vigorously contest that the government had probable cause. . The conditions need not guarantee appearance but they must reasonably assure appearance. United States v. Orta, 760 F.2d 887, 890-92 (8th Cir.1985). . Section 3142(g) provides: Factors to be considered. — The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information concerning— (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including— (A) his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (B) whether, at the time of the current offense or arrest, he was on probation, on pa role, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person’s release. . We are aware that the Ninth Circuit has apparently adopted the slightly higher standard of \"clear preponderance.\" United States v. Montamedi, 767 F.2d 1403, 1407 (9th Cir.1985). . See supra note 8. . At oral argument, Mr. Portes’ counsel argued that Portes' detention in Chicago approximately one hour from his attorney's office combined with the fact that Mr. Portes does not speak English make it impossible to develop an effective defense. He argued that the pre-trial detention denies Mr. Portes effective assistance of" }, { "docid": "2208795", "title": "", "text": "temporary detention to permit, among other things, revocation of conditional release, or (4) pretrial detention. The judicial officer most often will be deciding between the first and the second alternatives. The statutorily mandated progression from one choice to the next is critical: a judicial officer cannot determine that a detention hearing and the possible imposition of pretrial detention is appropriate merely by determining that release on personal recognizance will not \"reasonably assure\" the defendant's appearance at trial or \"will endanger\" the community. The judicial officer must also consider whether one of the codified conditions or any combination of the conditions will \"reasonably assure\" the defendant's appearance and the safety of the community. The wide range of restrictions available ensures, as Congress intended, that very few defendants will be subject to pretrial detention. United States v. Orta, 760 F.2d 887, 890-891 (8th Cir.1985) The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information concerning-(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including-(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. 18 U.S.C. § 3142(g), See, e.g., United States v. Townsend, 897 F.2d 989, 993 (9th Cir.1990). B. Risk of Flight. Only if the government establishes by a" } ]

[ { "docid": "21353301", "title": "", "text": "of guilty with a defendant in the absence of counsel deprives a defendant of counsel when he needs counsel most. Anderson v. North Carolina, 221 F.Supp. 930, 935 (D.N.C.1963); Shupe v. Sigler, 230 F.Supp. 601 (D.Neb.1964). While petitioner was without counsel the prosecutor came to petitioner’s cell and bargained for a guilty plea. The prosecutor threatened petitioner and his codefendant with a life sentence under the mandatory provisions of Oregon law if they were found guilty. The prosecutor also added the specter of Federal prosecution and offered to recommend leniency if they entered guilty pleas in the State Court. He injected urgency into the bargaining by informing petitioner and his codefendant that Federal authorities planned to take them into custody on the following day and by arranging for an after-hours court session to receive their pleas. Finally, the prosecutor arranged for the presence of one attorney to represent both defendants, although he knew that their defenses might conflict because of petitioner’s earlier assertion that he had been kidnapped by Harris. The critical stage in these proceedings occurred during the bargaining with the prosecutor while petitioner was without counsel and when petitioner made his decision to plead guilty. The appointment of counsel after the successful negotiation of the guilty plea and minutes before its entry was ineffective, and did not give petitioner the representation required by the Constitution. Appointed counsel could not have reviewed the facts of the crime, the possible defenses or the hazards of a trial, nor could he have evaluated the bargain offered by the prosecutor. For all practical purposes, the petitioner entered his plea of guilty without advice of counsel. Although the right to counsel can be waived, the trial judge must insure that the accused did so intelligently and voluntarily. Waiver of counsel cannot be presumed from a silent record. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). There is nothing in the record to suggest that petitioner waived counsel. On the contrary, the fact that the prose* cutor arranged for counsel’s presence in anticipation of the appointment of counsel shows" } ]

[ { "docid": "17097539", "title": "", "text": "RIPPLE, Circuit Judge. Illinois inmate Gregory Moore brought a petition for a writ of habeas corpus under 28 U.S.C. § 2254, alleging that his trial counsel was ineffective for incorrectly advising him about the sentencing consequences of pleading guilty. The district court denied the petition on the ground that Mr. Moore had procedurally defaulted his ineffective assistance claim in state court, but granted Mr. Moore a certificate of appealability. For the reasons set forth in this opinion, we reverse the judgment of the district court and remand the case for further proceedings. I BACKGROUND A. State Court Proceedings In 1994, when Mr. Moore was 15 years old, he was charged as an adult with first-degree murder for his involvement in a shooting. Attorney James Kuehl was appointed to represent Mr. Moore. In May 1995, just before the ease was scheduled to go to trial, Mr. Moore pleaded guilty in exchange for the state’s recommendation that he receive the minimum twenty-year prison sentence. The trial court accepted the guilty plea and sentenced Mr. Moore to 20 years of imprisonment. Shortly thereafter, however, Mr. Moore moved to withdraw his plea, and the trial court appointed another attorney, Sherman Brown, to represent him-. Attorney Brown then filed an amended motion to withdraw the guilty plea. That motion submitted that Mr. Moore’s plea was not knowingly or voluntarily made because, among other things, Attorney Kuehl had told Mr. Moore that, if he were convicted after a trial, Illinois’ newly enacted good-time credit statute would require that he serve 85% of the sentence imposed. By comparison, if he pleaded guilty immediately, he would serve, under the then-current Illinois law, 50% of a twenty-year sentence. However, Mr. Moore did not face the choice posed to him by his counsel. The new good-time statute, 730 ILCS 5/3 — 6— 3(a)(2), only applied to offenses committed after its passage in August 1995, and thus did not apply to Mr. Moore’s 1994 offense. At the hearing on the amended motion to withdraw his guilty plea, Mr. Moore testified that, about a week before trial was to begin, Attorney Kuehl" }, { "docid": "11425950", "title": "", "text": "and because that affidavit asserted that a \"full confession” had been made. Read in context, however, the state court declared only that it believed the affidavit as to one particular assertion it contained — that Moore's counsel had reviewed Moore’s statement — not that it believed every single statement contained in the affidavit, including those that it did not discuss until three pages later when for the first time it mentioned Moore's alleged confession to Ziegler. In any case, the state court entirely ignored the \"relevant” and “highly probative” conflicting evidence consisting of Ziegler's statements at the interrogation, rendering its factfinding process “defective” and unworthy of our deference under AEDPA. See Taylor, 366 F.3d at 1000-01. . The dissent misses the point when it observes that \"Moore obtained the lowest sentence available under Oregon law for felony murder.” Dis. op. at 1136. Without Moore's confession and the other evidence it produced, Moore likely would not have been convicted of, or even charged with felony murder, but rather would have faced some lesser charge. . After the involuntary confession was suppressed, the state might well have offered a more generous plea bargain. Moore need not show that he would have rejected any and all plea bargains the state might have offered. Under Hill, it is enough that there is a reasonable probability that he would have chosen trial over the plea bargain he was actually offered. Accordingly, we need not consider whether Moore could also establish prejudice by showing a reasonable probability that he would have obtained a better plea bargain had his attorney moved to suppress his confession. . For example, the first two dramatic sentences of the dissent, in which Judge Bybee purports to describe the facts of the case, parrot the statement provided by Moore's counsel in his effort to defend himself against charges of incompetence. It appears that Moore's counsel inferred these facts from statements his client had made and from Moore’s half-brother’s confession, both of which were inadmissible. It is likely for this reason that the state did not offer any of the arguments that Judge" }, { "docid": "11426047", "title": "", "text": "or for anyone else. The majority grants Moore a writ of habeas corpus and orders the state either to permit Moore to withdraw his plea or to release him. Oregon will surely allow Moore to withdraw his plea and then prosecute him to the hilt. When it does, Oregon will be under no obligation to offer Moore any kind of a deal, and if it does decide to bargain, it has no obligation to offer Moore a plea bargain as attractive as what he got in this case. It may even decide to seek the death penalty. And even if Oregon were to offer a new plea deal, Moore’s counsel must reject it until he has filed every conceivable pre-trial motion he can. After today’s decision, no conscientious defense attorney should even consider accepting a plea deal — no matter how good the bargain and no matter what other evidence the prosecutor has — if there are potentially “meritorious” motions that can be filed. Oregon will try Moore and, given his confessions to family and friends, the available eyewitnesses, and other incontrovertible evidence, Moore will likely be found guilty of murder. For that, he is likely to receive a sentence well in excess of the bargain he negotiated. It is quite possible that Moore will be worse off for having prevailed here. Nor is it clear that anyone else after Moore will actually benefit from today’s ruling. In fact, defendants whose counsel cannot negotiate plea agreements until after exhausting their pre-trial motions are likely to be worse off for the majority’s effort. Today’s decision is not a liberty-enhancing decision. It will actually hamper defense counsel’s ability to avoid trial and negotiate plea agreements. And our decision is so unnecessary. Moore is plainly guilty of felony murder, or worse. He took a fair deal from the prosecutor on the advice of competent counsel. Justice was served. There is no reason for us to up end the orderly administration of justice in Oregon in this way. I respectfully dissent. . To meet the first prong, \"the defendant must show that counsel’s representation" }, { "docid": "17097540", "title": "", "text": "years of imprisonment. Shortly thereafter, however, Mr. Moore moved to withdraw his plea, and the trial court appointed another attorney, Sherman Brown, to represent him-. Attorney Brown then filed an amended motion to withdraw the guilty plea. That motion submitted that Mr. Moore’s plea was not knowingly or voluntarily made because, among other things, Attorney Kuehl had told Mr. Moore that, if he were convicted after a trial, Illinois’ newly enacted good-time credit statute would require that he serve 85% of the sentence imposed. By comparison, if he pleaded guilty immediately, he would serve, under the then-current Illinois law, 50% of a twenty-year sentence. However, Mr. Moore did not face the choice posed to him by his counsel. The new good-time statute, 730 ILCS 5/3 — 6— 3(a)(2), only applied to offenses committed after its passage in August 1995, and thus did not apply to Mr. Moore’s 1994 offense. At the hearing on the amended motion to withdraw his guilty plea, Mr. Moore testified that, about a week before trial was to begin, Attorney Kuehl told him that he thought Mr. Moore would lose at trial and that a new good-time statute was going into effect soon that would require him to serve 85% of his sentence. • Attorney Kuehl told Mr. Moore that, if convicted, the court would impose a sentence within the range of 25 to 30 years of which he would have to serve 22 to 27 years; ■ if he accepted the plea offer, he would only have to serve 10 years of a twenty-year sentence. Attorney Kuehl therefore had recommended that Mr. Moore accept the state’s offer. Mr. Moore testified that he was scared at the time. He did not want to accept the offer, but did not know what else to do. Mr. Moore’s mother corroborated her son’s testimony. Attorney Kuehl also testified at the healing. He stated that he indeed was concerned about Mr. Moore’s having to serve more time, if he was convicted after the new good-time statute became effective and that he had discussed those concerns with Mr. Moore. Attorney Kuehl,." }, { "docid": "19795925", "title": "", "text": "about one hour and 35 minutes after Pine and Moore began talking — the detectives arrived at Moore’s cell. Moore told them that he was willing to talk about the pending charges. They moved him to a nearby interview room, where they were joined by Campanell. The detectives told Moore that he was in serious trouble; but before they began asking questions, they handed him an advice of rights and waiver form. By this point, Moore had decided it was in his best interest to cooperate. He read the form aloud, initialed each paragraph, and signed on the bottom. Over the next 45 minutes, the detectives asked him where he got the gun; who else in Norwalk possessed a gun; whether he had information about several cold homicide cases; and what he knew about the carjacking and attempted robbery for which he had been arrested. Moore gave evasive answers to the first two inquiries. He did disclose his role in the carjacking and attempted robbery, but refused to provide a written statement without speaking to counsel. The detectives ended the interview. The following day (September 25, 2002), Moore was arraigned on the state charges. Later, the United States Attorney obtained an indictment against Moore on the federal charge of being a felon in possession of a firearm. See 18 U.S.C. § 922(g). In the federal criminal case, Moore moved to suppress his statements to investigators (and the gun) on the grounds that he was not advised of his Miranda warnings and that his questioning violated his Sixth Amendment right to counsel, which he argues attached when the state prosecutor filed an information along with the application for an arrest warrant. The district court suppressed the initial, unwarned statement Moore provided to Pine and Campanell while in the lockup. The district court did not suppress the gun as a fruit of the unwarned statement, however, because the gun was physical evidence obtained from a voluntary statement. Moore, 2007 WL 708789, at *5 n. 5 (citing United States v. Patane, 542 U.S. 630, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004)). The district" }, { "docid": "7767180", "title": "", "text": "motion and would no longer recommend an acceptance-of-responsibility adjustment. On October 7, the prosecution sought and obtained a writ of habeas corpus to return Moore to federal custody on October 9. The application for the writ said “[ajppearanee is necessary for the purpose of sentencing.” The record does not indicate whether Moore’s counsel was served with this writ, or if he was, when he received it. Moore was brought into court on October 9, 2002. His counsel had been given only one day’s notice of Moore’s court appearance and had not been told that Moore would be sentenced that day. Moore’s counsel immediately moved for a continuance, saying that he had not had the opportunity to see his client since Moore had been apprehended and before he saw him at the hearing. The court’s response was to ask counsel whether he had been ready to go forward with sentencing on July 10. Counsel acknowledged that he had been so prepared. The court then denied the continuance motion, noting that “[t]he matter was fully prepared, and I see no reason to continue the disposition because it’s been delayed.” In light of the court’s statement, counsel did not press further his reasons for asking for a continuance. At Moore’s insistence, counsel next moved to withdraw as Moore’s attorney, but the district court convinced Moore that having counsel withdraw was unwise. Then, counsel moved to withdraw Moore’s guilty plea. After hearing from both counsel and Moore, the court denied the motion, stating that “[t]he plea as it was entered was knowing, intelligent and voluntary and all accurately explained.” The district court denied the government’s motion to withdraw its § 5K1.1 motion but noted that the government was not bound to its earlier sentencing recommendation. Because of Moore’s flight, the court refused to grant him an adjustment for acceptance of responsibility. The applicable offense level thus moved from 29 to 32, and the applicable guideline sentencing range became 210 to 262 months of imprisonment. The government recommended a sentence of 262 months based on a number of factors, including the defendant’s flight (which violated" }, { "docid": "11426046", "title": "", "text": "rather than proving prejudice under Hill, her approach actually achieves the opposite effect: Instead of being required to demonstrate that he would not have pled guilty but would have insisted on going to trial, Moore would only be required to demonstrate that he might have obtained a more favorable plea agreement. This attempt misconceives the nature of plea bargaining, potentially violates principles of federalism and separation of powers, and ignores Supreme Court precedent on how to conduct the prejudice inquiry following plea agreements. Even if I were to agree that an ambiguity about the relationship between Hill, Kimmelman, and Strickland existed, it is not our job on AEDPA review to resolve it. III. CONCLUSION I cannot join anything the majority has written. For the reasons I have stated, I believe the majority to be wrong on the facts and the law, and I believe that it fails to accord the state court’s decision the deference that AEDPA commands. At the end of the day, it is not clear what the majority has accomplished, for Moore or for anyone else. The majority grants Moore a writ of habeas corpus and orders the state either to permit Moore to withdraw his plea or to release him. Oregon will surely allow Moore to withdraw his plea and then prosecute him to the hilt. When it does, Oregon will be under no obligation to offer Moore any kind of a deal, and if it does decide to bargain, it has no obligation to offer Moore a plea bargain as attractive as what he got in this case. It may even decide to seek the death penalty. And even if Oregon were to offer a new plea deal, Moore’s counsel must reject it until he has filed every conceivable pre-trial motion he can. After today’s decision, no conscientious defense attorney should even consider accepting a plea deal — no matter how good the bargain and no matter what other evidence the prosecutor has — if there are potentially “meritorious” motions that can be filed. Oregon will try Moore and, given his confessions to family and" }, { "docid": "7767178", "title": "", "text": "stated that he was no longer in a position to agree to Moore’s motion to self-report to serve any imposed term of imprisonment. Counsel relayed the bad news to Moore. That same day, the government filed its downward departure motion under seal. The next day, Moore and his attorney arrived at court at nine o’clock in the morning for the sentencing hearing and learned that the hearing was actually scheduled for two o’clock. Counsel told Moore that he could leave the courthouse and should return just before two o’clock. Moore returned to the courthouse with his girlfriend. He met his counsel and spoke to the AUSA separately. Before entering the courtroom, Moore told counsel that he wanted to say goodbye to his girlfriend. Counsel entered the courtroom without Moore and then, when he went back to look for Moore a few minutes later, Moore was nowhere to be found. The district court postponed the hearing until 3:45, declined to issue a bench warrant for Moore’s arrest at that time, and stated that “if we find him this afternoon I’m not going to hold it against him.” Moore never showed, so the court issued a bench warrant for his arrest. Counsel and the AUSA expressed to the court their surprise at Moore’s absence, given that Moore had met all of his other obligations, and the court indicated that Moore would “be treated with great respect” when brought back into court. While a fugitive, Moore filed a pro se motion to withdraw his guilty plea; the motion included a claim that he was innocent of the charges. The court denied the motion because Moore was a fugitive and because he still had court-appointed counsel. Moore was arrested by state authorities on October 2, 2002. That day, the government filed a motion under seal seeking to withdraw its § 5K1.1 motion and giving notice of its intent to abrogate the plea agreement. By letter dated October 2, the AUSA notified Moore’s counsel that Moore had now committed new crimes, subjecting him to lengthy imprisonment, and that the government had withdrawn its § 5K1.1" }, { "docid": "11425861", "title": "", "text": "confession. Before doing so, however, he extracted several statements from Moore regarding his custody status and the voluntariness of the confession he was about to give. In response to a series of questions, Moore agreed with the officers that he had voluntarily returned to the police station, that he was not in custody, that the police had offered nothing in exchange for his confession other than that they would make a “recommendation! ]” to the District Attorney, and that he understood his right to counsel and was waiving it. In short, as one of the interrogating officers explained: “[t]he main thing is we want everybody on this recording to know that you guys are not in custody ... [a]nd this is not an ... in custody interrogation type of thing.” In the recorded confession that he then made, Moore described how he, Salyer, and Woolhiser went to Rogers’s home after Salyer informed the two that Rogers had stolen property from his cabin. Moore stated that Woolhiser confronted Rogers about the theft, assaulted him, and placed him in the trunk of a car. They then drove Rogers to a remote wooded area and began to walk him blindfolded up a hill. At some point during this walk, Woolhiser handed Moore a loaded gun. Moore explained that they had no intention of killing Rogers; they were simply going to frighten him by leaving him on top of the hill and forcing him to find his way back home. As the four climbed the hill, however, Rogers stumbled and fell back into Moore, causing the gun in his hands to discharge. As a result, Rogers died of an accidental gunshot wound to the head. Following his confession, Moore was appointed counsel and charged with one count of felony murder with a firearm. He entered a plea of no contest, and was given a mandatory sentence of twenty-five years imprisonment, with five years to be served concurrently as a sentencing enhancement for the use of a firearm, in addition to a life term of post-prison supervision. Moore appealed his sentence to the Oregon Court" }, { "docid": "7767174", "title": "", "text": "affirm, with a cautionary note. I. Darnell A. Moore was charged with two counts of unarmed robbery, in violation of 18 U.S.C. § 2113(a), on July 19, 2000. He initially pled not guilty and then, on November 28, 2001, entered into a plea and cooperation agreement with the government. Under the plea agreement, the government agreed (1) to recommend an aceeptance-of-responsibility adjustment under U.S.S.G. § 3E1.1 if Moore accepted responsibility and did not engage in any untruthful or illegal conduct and (2) to recommend a downward departure pursuant to U.S.S.G. § 5K1.1 if Moore provided substantial assistance to the government. The plea agreement did not specify the particular sentence that the government would recommend if Moore rendered substantial assistance; it provided explicitly that “[t]he U.S. Attorney reserves the right to recommend a particular sentence or sentencing range, or to make no recommendation at Defendant’s sentencing.” On February 20, 2002, Moore informed the court that he wished to change his plea and proceed to trial. Then, on March 13, 2002, the government returned a superseding indictment that charged Moore with two additional bank robberies. At this point, Moore, who had already run into problems with the first appointed counsel, sought to have his second appointed attorney withdraw as counsel. Moore and his attorney filed motions to that effect, the attorney was allowed to withdraw, and Moore’s present attorney was appointed to represent him. The government agreed to dismiss the superseding indictment after sentencing if Moore pled guilty to the original indictment. At a Fed.R.Crim.P. 11 hearing on May 29, 2002, Moore pled guilty to the original indictment. The district court made the complete inquiry required by Rule 11(b); Moore does not argue otherwise. During the hearing, the court calculated the applicable guideline range. Moore was determined to be a career offender under U.S.S.G. § 4Bl.l(a). The offense statutory maximum for 18 U.S.C. § 2113(a) is twenty years of imprisonment, so Moore was assigned an offense level of 32 under § 4Bl.l(b)(C). That offense level was greater than the offense level that would have been applicable to 18 U.S.C. § 2113(a) had" }, { "docid": "21485998", "title": "", "text": "imposed. Moore was attended at all times by his personally employed counsel, an experienced criminal trial lawyer. No motion for withdrawal of the plea of Guilty under F.R.Crim.P. 32(d) was made. No appeal was taken. About three months after the date of sentence (December 11, 1961) on March 6, 1962, Moore, through new counsel, filed with the District Court his Title 28 U.S.C. § 2255 Motion to Vacate the sentence. The Motion was supported by affidavits of the movant-Defendant Moore and his wife. An Answer was filed by the Government denying material portions of the Motion, supported by affidavits executed by Moore’s original attorney, the Assistant United States Attorney, who prosecuted the case, and the Court Reporter, who was present throughout the arraignment and sentence proceedings. Briefs were submitted by the respective counsel. A detailed and lengthy opinion was filed by the District Judge giving his reasons for denying the Motion, and for doing so without an evi-dentiary hearing. Based upon the Opinion on file (not reported) the trial judge entered his Order denying the Motion. This appeal then ensued. Three questions are raised by the appeal, all decided adversely to Moore by the District Court: (1) As below, he contends that it was represented to him by his counsel that for pleading Guilty to one Count he would receive a five-year sentence, the minimum under the Boggs Act, and that a trade to this effect had been made with the Assistant U. S. Attorney in charge of the case. He asserts that this false information was the inducement upon which his Guilty plea was entered. The tenor of Moore’s and his wife’s affidavits are to this effect, but there is no contention advanced that a trade had, in fact, been made with the prosecuting Assistant U. S. Attorney. The affidavit of the Assistant U. S. Attorney categorically denies- that a trade was made, and the affidavit of Moore’s original attorney denies the existence of a trade, and further denies that any false information to this effect was imparted to Moore. (2) As he contended below, Moore asserts here that" }, { "docid": "7767177", "title": "", "text": "Moore was permitted to remain on release, subject to conditions, until then. The day before the July sentencing hearing, Moore was in counsel’s office reviewing the presentence report. While Moore was there, his counsel received a call from the AUSA prosecuting the case, who informed him that his superiors had disagreed with the sentence he was going to recommend to the court in connection with the government’s § 5K1.1 departure motion. The AUSA had recommended 96 months of imprisonment (eight years) to his superiors, and he later acknowledged before the district court that he had “made prior representations [to Moore and counsel] based on my best estimate of where I thought our office was going to come out, where my immediate supervisor and my former supervisor thought our office was going to come out.” There was an intervening change in administration, however, and the new U.S. Attorney for Massachusetts and the downward departure committee disagreed with the AUSA’s request and decided upon a recommended sentence of 120 months of imprisonment (ten years). The AUSA also stated that he was no longer in a position to agree to Moore’s motion to self-report to serve any imposed term of imprisonment. Counsel relayed the bad news to Moore. That same day, the government filed its downward departure motion under seal. The next day, Moore and his attorney arrived at court at nine o’clock in the morning for the sentencing hearing and learned that the hearing was actually scheduled for two o’clock. Counsel told Moore that he could leave the courthouse and should return just before two o’clock. Moore returned to the courthouse with his girlfriend. He met his counsel and spoke to the AUSA separately. Before entering the courtroom, Moore told counsel that he wanted to say goodbye to his girlfriend. Counsel entered the courtroom without Moore and then, when he went back to look for Moore a few minutes later, Moore was nowhere to be found. The district court postponed the hearing until 3:45, declined to issue a bench warrant for Moore’s arrest at that time, and stated that “if we find" }, { "docid": "7767179", "title": "", "text": "him this afternoon I’m not going to hold it against him.” Moore never showed, so the court issued a bench warrant for his arrest. Counsel and the AUSA expressed to the court their surprise at Moore’s absence, given that Moore had met all of his other obligations, and the court indicated that Moore would “be treated with great respect” when brought back into court. While a fugitive, Moore filed a pro se motion to withdraw his guilty plea; the motion included a claim that he was innocent of the charges. The court denied the motion because Moore was a fugitive and because he still had court-appointed counsel. Moore was arrested by state authorities on October 2, 2002. That day, the government filed a motion under seal seeking to withdraw its § 5K1.1 motion and giving notice of its intent to abrogate the plea agreement. By letter dated October 2, the AUSA notified Moore’s counsel that Moore had now committed new crimes, subjecting him to lengthy imprisonment, and that the government had withdrawn its § 5K1.1 motion and would no longer recommend an acceptance-of-responsibility adjustment. On October 7, the prosecution sought and obtained a writ of habeas corpus to return Moore to federal custody on October 9. The application for the writ said “[ajppearanee is necessary for the purpose of sentencing.” The record does not indicate whether Moore’s counsel was served with this writ, or if he was, when he received it. Moore was brought into court on October 9, 2002. His counsel had been given only one day’s notice of Moore’s court appearance and had not been told that Moore would be sentenced that day. Moore’s counsel immediately moved for a continuance, saying that he had not had the opportunity to see his client since Moore had been apprehended and before he saw him at the hearing. The court’s response was to ask counsel whether he had been ready to go forward with sentencing on July 10. Counsel acknowledged that he had been so prepared. The court then denied the continuance motion, noting that “[t]he matter was fully prepared, and" }, { "docid": "18019967", "title": "", "text": "BUTZNER, Circuit Judge: James R. Moore appeals from the district court’s dismissal of his petition to set aside his guilty plea and his sentence. We remand with instructions to reduce the sentence or set aside the plea. Moore entered into a bargain to plead guilty to one count of a two-count indictment charging violations of the narcotics laws, in return for the government’s promise to drop the other count of the indict-, ment and to recommend a 12-year prison sentence. In summarizing the applicable penalties before accepting the guilty plea, the district court correctly informed Moore that the relevant criminal statute required a special parole term of at least three years. This portion of the examination went as follows: THE COURT: Well, under the law on which this first court is based . the possible maximum penalty is a fine of up to $25,000 or imprisonment for up to 15 years, and if any period of confinement is imposed, the law requires the imposition of a special parole term of at least three years. Do you understand that’s the possible maximum penalty under the law in this case? DEFENDANT MOORE: Yes, sir. The court then permitted Moore to change his plea to guilty. After the government recommended a sentence of 12 years and dropped the other count of the indictment, the court sentenced Moore to 15 years, the maximum possible prison term, and to an additional three-year special parole term. Shortly after he was incarcerated, Moore filed a petition pursuant to 28 U.S.C. § 2255, seeking to vacate the sentence. He argued that his plea was invalid because he had not understood the maximum penalty for the offense and because it had not been explained to him. He also submitted an affidavit of his trial attorney stating that the attorney had not discussed special parole with him. The district court dismissed the petition without a hearing, finding that its mention of the fact that any prison sentence would be accompanied by a special parole term of not less than three years sufficed to comply with Rule 11 of the Federal" }, { "docid": "11425977", "title": "", "text": "connected to the trial itself as would be a mid-trial hearing of a similar kind. . One reason the dissent may think the inquiry is so difficult is that it portrays the question as whether the prosecutor would, offer a better plea bargain, see Dis. op. at 1156-57, rather than whether it was reasonably probable that defense counsel could secure such an arrangement. BYBEE, Circuit Judge, dissenting: Randy Moore and others beat Kenneth Rogers until he bled, stripped him, bound him in duct tape, placed him in the trunk of a car, drove him to a remote location, and forced him to march up a hill at gunpoint. While marching Rogers through the woods, Moore shot Rogers— accidentally, he said — through the temple. Moore confessed to his older brother, Raymond, and his step-brother’s girlfriend, Debbie Ziegler, what he had done. He then talked to police, corroborating the evidence the police had already obtained. Before Moore could be indicted, he negotiated a plea bargain under which Moore obtained the lowest sentence available under Oregon law for felony murder. Moore’s counsel, an experienced defense attorney, recommended that he accept the offer. Counsel explained that he did not think he had grounds to suppress Moore’s formal confession and, even if he could have suppressed it, Raymond and Ziegler could “repeat[Moore’s informal] confession in full detail.” Under the circumstances, counsel thought he had secured the best deal he could get for Moore. The Oregon courts and the district court agreed. Not so, says the majority: Moore’s attorney offered constitutionally deficient advice because he advised Moore to accept the plea offer before he moved to suppress Moore’s confession to the police. The majority reasons that Moore would have prevailed on a motion to suppress, and, knowing the state was without his confession, Moore would have insisted on going to trial rather than pleading guilty to felony murder. The majority dismisses counsel’s explanation that there was no reason to go to trial in any event because the state had a second confession — Moore’s confession to Raymond and Ziegler- — by ignoring the state and" }, { "docid": "13822637", "title": "", "text": "refuse to consider mitigating circumstances. We therefore hold that the sentencing judge did not commit constitutional error in imposing petitioner’s sentence. IV. Validity of Petitioner’s Plea ■ In his cross-appeal, petitioner attacks the validity of his guilty plea, alleging that it was not intelligently and knowingly made. In Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), the Supreme Court held that a guilty plea is voluntarily made when the accused understands the nature of the constitutional protections he is waiving and he completely understands the charge. Id. at 645 n. 13, 96 S.Ct. at 2257 n. 13. “Without adequate notice of the nature of the charge against him, or proof that he in fact understood the charge, the plea cannot be voluntary [as an intelligent admission of guilt].” Id. Moore argues that he did not understand the elements of malice murder and that the record before the sentencing judge demonstrates Moore’s lack of understanding. Petitioner notes that the trial judge never explained the terms “malice aforethought,” “intention,” “provocation,” or “abandoned and malignant heart.” Moore asserts that he did not intend to kill Mr. Stapleton and specifically denied such intent on numerous. occasions. Petitioner argues that we must determine his understanding by referring only to the record before the sentencing judge. Petitioner admitted that he was in fact guilty of the offense charged in the indictment. At the entry of his guilty plea and during the sentencing proceeding, Moore acknowledged that he had authorized his counsel, Mr. Pierce, to enter a plea of guilty. Petitioner indicated that he understood the court’s inquiries, that he had not entered his plea as a result of threats, coercion, or promises of benefit, and that he had conferred with his attorney concerning the charges against him and the questions posed to him by the court. The question before this panel is therefore whether Moore was given sufficient notice of the nature of the charges facing him in order to understand the crime. As a preliminary matter, we hold that the district court properly used the testimony received from petitioner and" }, { "docid": "17097541", "title": "", "text": "told him that he thought Mr. Moore would lose at trial and that a new good-time statute was going into effect soon that would require him to serve 85% of his sentence. • Attorney Kuehl told Mr. Moore that, if convicted, the court would impose a sentence within the range of 25 to 30 years of which he would have to serve 22 to 27 years; ■ if he accepted the plea offer, he would only have to serve 10 years of a twenty-year sentence. Attorney Kuehl therefore had recommended that Mr. Moore accept the state’s offer. Mr. Moore testified that he was scared at the time. He did not want to accept the offer, but did not know what else to do. Mr. Moore’s mother corroborated her son’s testimony. Attorney Kuehl also testified at the healing. He stated that he indeed was concerned about Mr. Moore’s having to serve more time, if he was convicted after the new good-time statute became effective and that he had discussed those concerns with Mr. Moore. Attorney Kuehl,. however, said that, at the time he gave the advice, he did not have a copy of the statute and was unsure whether it would apply to Mr. Moore. Attorney Kuehl testified that Mr. Moore ultimately decided that it was in his best interest to accept the plea offer, but did so reluctantly- The trial court denied the motion to withdraw the plea; it concluded that Mr. Moore had entered his plea knowingly and voluntarily. The Illinois Appellate Court affirmed his conviction in June 1997. The appellate court noted that Mr. Moore had waived his ineffective assistance claim by failing to argue it in the trial court, but the court then went on to reject the claim on the merits. Mr. Moore then petitioned the Supreme Court of Illinois for leave to appeal. The court denied leave to appeal, but vacated part of the appellate court’s decision denying Mr. Moore presentence credit. In May 1998, Mr. Moore filed a timely pro se petition for post-conviction relief under the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1," }, { "docid": "3030770", "title": "", "text": "Moore changed his plea to guilty, and as a result of plea bargaining with the government, was sentenced to a prison term of three years. For some time he refused to implicate Bige-leisen. Moore testified that while he was in prison Bigeleisen agreed to give him $500 a month until Moore’s wife could find work. Bigeleisen made one such payment, but when he failed to make another, Moore telephoned an Assistant United States Attorney and offered to cooperate. As a result of Moore’s cooperation, Bigeleisen was indicted and brought to trial. In return for Moore’s cooperation, the government agreed to make his cooperation known to the sentencing judge and to the United States Parole Commission. The Assistant United States Attorney who represented the government before the Grand Jury and at Bigeleisen’s trial, explained the agreement to the Grand Jury as follows: Moore’s deal with me was Moore called from North Dakota after he was put in jail and asked for help with the parole board and I said I would write a letter to the Judge for him or to the parole commission, whichever was the appropriate authority, if he cooperated with us and then I would, “make his cooperation known to the authorities.” So, that’s when Moore decided to cooperate and that was after he had been in jail for some time before he called up and said I would like to cooperate and what can you do for me. * * * * * * We could never put the cocaine from Bigeleisen’s hands to Moore’s hands [without Moore’s cooperation] because we didn’t know what happened in Florida. He is in jail on a three year sentence and it was, as I told you before, Moore who called us and offered to cooperate if I would make his cooperation known to both the sentencing judge for the purposes of reduction of sentence and also to the parole commission. Now, no specific dates were given. I didn’t say to Moore I’m going to, you have one year and I will get the judge to reduce your sentence. The deal" }, { "docid": "18121613", "title": "", "text": "afford to pay Billy Ponds. She said she couldn’t .... I didn’t say I didn’t want to do it. I just want to know what I’m getting myself into before I do it .... I don’t really understand it .... I mean what am I facing and everything. Upon hearing all this, the court decided that Mr. Ponds’ relationship with Moore “may not be a fully successful attorney-client relationship”; the court therefore appointed the Federal Public Defender to take over as Moore’s counsel and recessed to allow the new counsel a chance to confer with Moore. Even after new counsel had “discuss[ed] the guidelines extensively” with Moore, and “talked in detail about the various possibilities,” however, Moore was still “not prepared to go forward with the plea” that day. Counsel informed the court that Moore again wanted a chance to speak with his family “to help him make this decision.” The court again obliged but warned, “He’s either going to plea[d] on Friday [June 13] or he’s not going to plea[d]. Enough of this yes I am, no, I’m not, yes, I am, no, I’m not.” On June 13 Moore pleaded guilty. Under § 3El.l(a) of the United States Sentencing Guidelines in effect as of the date of Moore’s offense, the district court may reduce by two the offense level of a defendant who “clearly demonstrates acceptance of responsibility for his offense.” A defendant who qualifies for a decrease under § 3El.l(a) may receive an additional reduction of one level under § 3El.l(b) if he has assisted authorities in the investigation or prosecution of his own misconduct by ... (1) timely providing complete information to the government concerning his own involvement in the offense; or (2) timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently. At sentencing, the district court granted Moore a two-level reduction for acceptance of responsibility under § 3El.l(a) but denied him the additional one-level reduction available under subsection § 3El.l(b). In so doing, the court" }, { "docid": "6857448", "title": "", "text": "ILANA DIAMOND ROVNER, Circuit Judge. This petition for habeas corpus brought by Gregory Moore under 28 U.S.C. § 2254 is before this court for the second time. In our prior opinion, we held that Moore did not proeedurally default his claim of ineffective assistance of counsel in state court, and we remanded the case for consideration of the merits of his claim. Moore v. Bryant, 295 F.3d 771 (7th Cir. 2002). On remand, the district court granted habeas relief, holding that the state court decision rejecting his ineffectiveness claim was an unreasonable application of established Supreme Court law, and that Moore’s counsel’s inaccurate advice regarding Moore’s potential sentence was a material factor that in all probability impacted his decision to plead guilty. The state has appealed that determination by the district court, and we affirm. The facts underlying Moore’s claim are set forth in our prior opinion, and will be repeated here only to the extent necessary for this appeal. At the age of 15, Moore was charged as an adult with first degree murder. Although the evidence demonstrated that Moore was not present at the shooting and was not a shooter, the state’s theory of criminal liability was based upon Moore’s involvement as one of a group of individuals who chased the victim. Moore maintained his innocence during the pretrial process. In May 1995, just before the case was scheduled for trial, Moore pled guilty in exchange for the state’s recommendation that he receive the minimum 20-year prison sentence. Shortly thereafter, however, Moore sought to withdraw the plea. In his amended motion to withdraw the guilty plea, Moore alleged that the plea was not knowing and voluntary for a number of reasons, including the erroneous advice given to him by his attorney. He alleged that his attorney had informed him that the law in Illinois was changing and that good-time credits to which he currently would be entitled were being limited. As a result of that change in Illinois law, his attorney told him that, if convicted, he would serve 85% of the sentence imposed, whereas if he pled" } ]

[ { "docid": "21177503", "title": "", "text": "the numbers specified in the indictment would fall within these series, but it was testified that “there were numbers skipping in between.” The record was then left without specific proof that the particular numbers set forth in the indictment were in fact among those in the package. Accepting that under such circumstances there was a failure of proof in this regard, we are faced with the questions whether, assuming the offense as charged has otherwise been made out, this variance from the indictment was fatal to the verdict and judgment of conviction, or amounted, as claimed by appellant, to a failure to prove the corpus delicti. The Federal Rules of Criminal Procedure provide that “[a]ny * * * variance which does not affect substantial rights shall be disregarded.” R. 52 (a). This Court has long ago announced the test to be followed in assessing the effect of a variance: “the controlling consideration should be whether the charge was fairly and fully enough stated to apprise defendant of what he must meet, and to protect him against another prosecution, and whether those particulars in which the proof may differ in form from the charge support the conclusion that respondent could have been misled to his injury.” Harrison v. United States, 200 F. 662, 673 (CA 6, 1912). See also Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314, 1318 (1935). Turning first to the question whether Crowder could have been misled by the specification in the indictment, it is difficult to imagine how the variance could have injured him unless his defense was that he had conspired. only with respect to money orders bearing different serial numbers. Compare Cortez v. United States, 328 F.2d 51 (CA 5, 1964); Strauss v. United States, 311 F.2d 926 (CA 5, 1963), cert. denied, 373 U.S. 910, 83 S.Ct. 1299, 10 L.Ed.2d 412 (1963); United States v. McCormick, 309 F.2d 367 (CA 7, 1962), cert. denied, 372 U.S. 911, 83 S.Ct. 724, 9 L.Ed.2d 719 (1963); Johnson v. United States, 195 F.2d 673 (CA 8, 1952); United States v. Cox," } ]

[ { "docid": "12828688", "title": "", "text": "facts different from the single widespread conspiracy alleged in the second superseding indictment. The government’s evidence only established beyond a reasonable doubt that Defendant participated with at least one other person in a conspiracy on November 19, 1993. According to the jury’s notation, the evidence did not establish that Defendant was guilty of the broader conspiracy alleged in Count 1. However, even where a variance exists, we will reverse Defendant’s conviction only upon a showing of substantial prejudice. See Edwards, 69 F.3d at 432-33. A variance between the indictment and the proof is reversible error only if it has affected the substantial rights of the defendant. See Berger, 295 U.S. at 82, 55 S.Ct. at 630. Defendant contends that his rights were prejudiced by the admission of evidence tending to show other conspiracies in which the jury did not believe he participated. The requirement that allegations and proof correspond is intended to safeguard basic Fifth and Sixth Amendment rights of the accused. See United States v. Stoner, 98 F.3d 527, 536 (10th Cir.1996). The accused must (1) be informed of the charges against him so that he may present his defense and not be surprised by the evidence offered at trial; and (2) be protected against another prosecution for the same offense. See Berger, 295 U.S. at 82, 55 S.Ct. at 630; Stoner, 98 F.3d at 536. A variance “is not fatal unless the defendant could not have anticipated from the indictment what evidence would be presented at trial or unless the conviction based on an indictment would not bar a subsequent prosecution.” 3 Charles Alan Wright, Federal Practice and Procedure § 516, at 27 (2d ed.1982); see Stoner, 98 F.3d at 536-37. We also have adopted the Supreme Court’s holding that there is no fatal variance where a defendant “is convicted upon evidence which tends to show a narrower scheme than that contained in the indictment, provided that the narrower scheme is fully included within the indictment.” Mobile, 881 F.2d at 874 (citing United States v. Miller, 471 U.S. 130, 135-40, 105 S.Ct. 1811, 1814-17, 85 L.Ed.2d 99 (1985))." }, { "docid": "5521263", "title": "", "text": "make a down payment toward the purchase of the Galena loan package. At trial, evidence was introduced that Haddock instead used the money to make a loan payment on an unrelated loan at Kaw Valley State Bank. However, Haddock testified at trial that the $50,000 check given by the Bank of White City to First Finance had nothing to do with the purchase of the Galena loans. He testified that $25,000 of the money was to be placed into an escrow account and to be forwarded to First Finance as the Bank of White City received additional loans. He further testified that both entities agreed that First Finance could use the remaining $25,000 however it wished. Based on this evidence related to Counts 1 and 8, we hold that Haddock was entitled to a good faith instruction in relation to those counts. Therefore, we reverse the convictions on Counts 1 and 8 and remand for new trial on those counts. V. Variance Between Indictment and Evidence at Trial A variance between an indictment and proof at trial occurs “when ‘the charging terms are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment.’ ” Hunter v. New Mexico, 916 F.2d 595, 598 (10th Cir.1990) (quoting United States v. Hathaway, 798 F.2d 902, 910 (6th Cir.1986)), cert. denied, — U.S. -, 111 S.Ct. 1693, 114 L.Ed.2d 87 (1991). When such a variance occurs, “ ‘convictions generally have been sustained as long as the proof upon which they are based corresponds to an offense that was clearly set out in the indictment.’ ” Id. at 599 (quoting United States v. Miller, 471 U.S. 130, 136, 105 S.Ct. 1811, 1815, 85 L.Ed.2d 99 (1985)). A variance “is fatal only when the defendant is prejudiced in his defense because he cannot anticipate from the indictment what evidence will be presented against him or is exposed to the risk of double jeopardy.” Id. On appeal, Haddock seems to argue two different “variances.” He first contends that although the indictment charged Haddock “with violating policies and laws prohibiting conflicts of" }, { "docid": "3385239", "title": "", "text": "273, 4 L.Ed.2d 252 (1960). Every accused has the right to be informed of the nature and cause of the accusations filed against him. U.S. Const, amend VI; Government of V.I. v. Joseph, 765 F.2d 394, 397 (3d Cir.1985). A fatal variance denies a defendant this fundamental guarantee because it destroys his right to be on notice of the charge brought in the indictment. United States v. Peterman, 841 F.2d 1474, 1477 (10th Cir.1988), cert. denied, 488 U.S. 1004, 109 S.Ct. 783, 102 L.Ed.2d 774 (1989); Ricalday, 736 F.2d at 207 and n. 4. A simple variance occurs \"when 'the charging terms are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment.’ ” United States v. Hathaway, 798 F.2d 902, 910 (6th Cir.1986) (quoting United States v. Castro, 776 F.2d 1118, 1121 (3d Cir.1985), cert. denied, 475 U.S. 1029, 106 S.Ct. 1233, 89 L.Ed.2d 342 (1986)); see also United States v. Mobile Materials, Inc., 881 F.2d 866, 872 (10th Cir.1989) (variance occurs when trial evidence establishes facts different than those charged), cert. denied, — U.S. -, 110 S.Ct. 837, 107 L.Ed.2d 833 (1990). This type of variance triggers harmless error analysis. Browning v. Foltz, 837 F.2d 276, 280 (6th Cir.1988), cert. denied, 488 U.S. 1018, 109 S.Ct. 816, 102 L.Ed.2d 805 (1989). Where a simple variance exists, “convictions generally have been sustained as long as the proof upon which they are based corresponds to an offense that was clearly set out in the indictment.” United States v. Miller, 471 U.S. 130, 136, 105 S.Ct. 1811, 1815, 85 L.Ed.2d 99 (1985). Such a variance is fatal only when the defendant is prejudiced in his defense because he cannot anticipate from the indictment what evidence will be presented against him or is exposed to the risk of double jeopardy. United States v. Whitman, 665 F.2d 313, 318 (10th Cir.1981); United States v. Young, 730 F.2d 221, 225 (5th Cir.1984). On the other end of the variance spectrum are more severe alterations described as “constructive amendments” of the indictment. “An indictment is constructively amended if the" }, { "docid": "11578308", "title": "", "text": "the acts alleged in the conspiracy count accurately describe her conduct, so there is no question of notice. Slater argues that notice is irrelevant because there was a constructive amendment of the grand jury indictment, and the amendment invalidates her conviction despite the full description of her conduct. The government characterizes the claim as one of fatal variance between indictment and proof. Slater cannot succeed on this theory, because a defendant cannot receive relief for a variance unless it is material and prejudices his substantial rights. See, e.g., United States v. Morgan, 117 F.3d 849, 858 (5th Cir.), cert. denied, - U.S. -, 118 S.Ct. 454, 139 L.Ed.2d 389 (1997). As long as the defendant receives notice and is not subject to a risk of double jeopardy, his substantial rights are not affected. See, e.g., Berger v. United States, 295 U.S. 78, 83, 55 S.Ct. 629, 631, 79 L.Ed. 1314 (1935). Because the conspiracy count accurately described the conduct, and the substantive count stated the date and the fact that Bank One was involved, there was no problem with notice, and double jeopardy could not occur. Slater urges us to apply the more stringent rule for constructive amendments: Where a constructive amendment has occurred, the conviction cannot stand; there is no prejudice requirement. See, e.g., United States v. Salinas, 654 F.2d 319 (5th Cir. 1981), overruled on other grounds by United States v. Adamson, 700 F.2d 953 (5th Cir. 1983) (en banc). This argument fails, too, because a constructive amendment cannot occur where the indictment completely and accurately describes the conduct, so that the grand jury is not misled about the basis for the indictment. This criterion distinguishes the cases Slater cites from her own. In Salinas, the case most closely analogous, the defendant was charged with conspiring to defraud a bank. The indictment alleged that he conspired with the bank’s president. The evidence showed, however, that the defendant had conspired with the executive viee president. We reversed, holding as follows: The mistake in the particular name of the officer involved is not like a variance in a date or" }, { "docid": "23024995", "title": "", "text": "an indictment need contain only those facts and elements of the alleged offense necessary to sufficiently inform the accused of the charge and to safeguard the accused from double jeopardy. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). When analyzing challenges to the sufficiency of an indictment, courts give the indictment a common sense construction, and its validity is to be determined “by practical, not technical, considerations.” United States v. Morano, 697 F.2d 923, 927 (11th Cir.1983); United States v. Varkonyi, 645 F.2d 453, 456 (5th Cir. Unit A 1981). The indictment in this case was clearly sufficient to meet this standard. Paragraph 9 of the conspiracy count charged the defendants with knowingly presenting false claims to Medicare; it adequately set forth the elements of the alleged offenses and the nature of the defendants’ criminal scheme, which was further defined in paragraphs 10-19 of that count and in the overt acts listed under paragraph 20. Warren also complains that the government sought to prove her involvement in the conspiracy by relying upon proof of events at trial that were not listed in the overt acts section of the indictment. Properly understood, however, a variance exists where the evidence at trial proves facts different from those alleged in the indictment, as opposed to facts which, although not specifically mentioned in the indictment, are entirely consistent with its allegations. See, e.g., Berger v. United States, 295 U.S. 78, 81, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935) (fatal variance exists where indictment charges single conspiracy and evidence demonstrates two different and disconnected smaller conspiracies); United States v. Guthartz, 573 F.2d 225, 228 (5th Cir.), cert. denied, 439 U.S. 864, 99 S.Ct. 187, 58 L.Ed.2d 173 (1978) (fatal variance exists where “an indictment enumerates the particular facts alleged to constitute the element of a charged crime and the proof makes out the elements in a different manner”); Project, Thirteenth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1982-83, 72 Geo.L.J. 249, 390-91 (1983). There is no constructive amendment here. Warren’s" }, { "docid": "12828691", "title": "", "text": "November 19, 1993. Defendant had notice that his activities on November 19, 1993, were part and parcel of the larger, single conspiracy alleged in Count 1. The conspiracy to distribute cocaine base or crack cocaine was fully included within the indictment. The indictment was sufficiently explicit to inform Defendant of the charges against him and to protect him from double jeopardy. See id. at 144-45, 105 S.Ct. at 1819-20; United States v. Hazeem, 679 F.2d 770, 773-74 (9th Cir.), cert. denied, 459 U.S. 848, 103 S.Ct. 106, 74 L.Ed.2d 95 (1982). We are not persuaded by Defendant’s argument that he was convicted for an offense not charged in the indictment. The discrepancy between the allegation in Count 1 and the proof at trial did not taint Defendant’s conviction where he was the only individual on trial. As noted above, we have frequently analyzed variances in the context of multiple defendants appealing their convictions. Typically, a variance is prejudicial when guilt is imputed to the defendant from other defendants’ conduct. See Kotteakos, 328 U.S. at 775-77, 66 S.Ct. at 1253. For example, “guilt is transferred to the defendant from ‘incriminating evidence presented in connection with the prosecution of another in the same trial for a crime in which the accused did not participate.’” Powell, 982 F.2d at 1431 (quoting Dickey, 736 F.2d at 581 (citation omitted)). In Kotteakos, thirty-two persons were indicted, nineteen defendants were brought to trial, thirteen names were submitted to the jury, and at least eight separate conspiracies were proved. In this case, however, Mr. Ailsworth and six other persons were indicted, Mr. Ailsworth was the only defendant on trial because the six alleged coconspirators made plea arrangements prior to trial, and the evidence proved two conspiracies at most. Compare Kotteakos, 328 U.S. at 753, 766-71, 66 S.Ct. at 1242, 1248-51, with Berger, 295 U.S. at 79-84, 55 S.Ct. at 629-31, and United States v. Wright, 932 F.2d 868, 874-75 (10th Cir.) (holding harmless a variance occurring when government’s evidence at trial proved existence of two conspiracies rather than one broad conspiracy charged in the indictment), cert. denied," }, { "docid": "22290827", "title": "", "text": "United States, 442 U.S. 100, 105, 99 S.Ct. 2190, 2193, 60 L.Ed.2d 743 (1979) (“A variance arises when the evidence adduced at trial establishes facts different from those alleged in an indictment.”). The second type of variance, known as a constructive amendment of the indictment, is “more dangerous” than a simple variance “because it actually modifies an essential element of the offense charged,” thereby “effectively altering] the substance of the indictment.” Hunter, 916 F.2d at 599. With respect to the prohibition against simple variances, which is at issue in this case, we note the mere fact that a variance occurred does not automatically warrant relief. “Where a simple variance exists, ‘convictions generally have been sustained as long as the proof upon which they are based corresponds to an offense that was clearly set out in the indictment.’” Hunter, 916 F.2d at 599 (citing United States v. Miller, 471 U.S. 130, 136, 105 S.Ct. 1811, 1815, 85 L.Ed.2d 99 (1985)). This follows from the fact that the prohibition against variances is designed to insure notice of the charges; thus, a variance, without more, will not warrant relief as long as the proof corresponds to an offense clearly charged in the indictment because the defendant will have had notice of that charge and cannot claim prejudice. But when the variance rises to the level of a “fatal” variance, relief is appropriate. See Hunter, 916 F.2d at 598-99. “A variance ‘is fatal only when the defendant is prejudiced in his defense because he cannot anticipate from the indictment what evidence will be presented against him or is exposed to the risk of double jeopardy.’ ” Haddock, 956 F.2d at 1548 (quoting Hunter, 916 F.2d at 599). A review of the evidence in this case demonstrates that the defendant has failed to establish a variance. Therefore, we reject this claim. In United States v. Roberts, 14 F.3d 502 (10th Cir.1993), we reviewed a simple variance claim in the context of determining whether, as in this case, the government’s proof established two separate conspiracies when the indictment charged only a single conspiracy. In rejecting this" }, { "docid": "15059726", "title": "", "text": "the same effect); United States v. Troop, 890 F.2d 1393, 1399-1400 (7th Cir.1989) (same); but see United States v. Broadwell, 870 F.2d 594, 603-05 (11th Cir.) (finding error but holding lack of foreseeability language was not prejudicial), cert. denied, 493 U.S. 840, 110 S.Ct. 125, 107 L.Ed.2d 85 (1989). Defendant also asserts a fatal variance between Count 2 and the court’s instruction: Count 2 of the indictment charged him personally with committing the assault, but the jury instruction allowed him to be convicted for the acts of a co-conspirator. The government argues that this is a simple variance that did not prejudice defendant. Our cases recognize two types of variance between proof and the indictment. A fatal variance denies a defendant this fundamental guarantee because it destroys his right to be on notice of the charge brought in the indictment.... A simple variance occurs when the charging terms are unchanged, but the evidence at trial proves facts materially different from those alleged in. the indictment. Hunter v. State, 916 F.2d 595, 598 (10th Cir.1990) (en banc) (citations and quotations omitted), cert. denied, 500 U.S. 909, 111 S.Ct. 1693, 114 L.Ed.2d 87 (1991); United States v. Williamson, 53 F.3d 1500, 1512-14 (10th Cir.) (simple variance generally allows upholding conviction because the proof at trial “corresponds to an offense clearly charged in the indictment,” but a fatal variance is prejudicial because a defendant cannot anticipate the evidence to be presented against him or be protected from double jeopardy), cert. denied, — U.S. -, 116 S.Ct. 218, 133 L.Ed.2d 149 (1995); see also United States v. Haddock, 956 F.2d 1534, 1548-49 (10th Cir.), cert. denied, 506 U.S. 828, 113 S.Ct. 88, 121 L.Ed.2d 50 (1992). The government’s evidence did not attempt to establish that defendant personally committed the assault and the government’s affidavit originally filed with the information, I R. doc. 1, does n'ot assert that defendant personally committed the assault. The superseding indictment charged the assault occurred “in furtherance of the conspiracy.” Defendant acknowledged at the close of the government’s ease that Count 2 liability depended upon Pinkerton, underscoring for defendant the" }, { "docid": "5521264", "title": "", "text": "at trial occurs “when ‘the charging terms are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment.’ ” Hunter v. New Mexico, 916 F.2d 595, 598 (10th Cir.1990) (quoting United States v. Hathaway, 798 F.2d 902, 910 (6th Cir.1986)), cert. denied, — U.S. -, 111 S.Ct. 1693, 114 L.Ed.2d 87 (1991). When such a variance occurs, “ ‘convictions generally have been sustained as long as the proof upon which they are based corresponds to an offense that was clearly set out in the indictment.’ ” Id. at 599 (quoting United States v. Miller, 471 U.S. 130, 136, 105 S.Ct. 1811, 1815, 85 L.Ed.2d 99 (1985)). A variance “is fatal only when the defendant is prejudiced in his defense because he cannot anticipate from the indictment what evidence will be presented against him or is exposed to the risk of double jeopardy.” Id. On appeal, Haddock seems to argue two different “variances.” He first contends that although the indictment charged Haddock “with violating policies and laws prohibiting conflicts of interest,” evidence at trial showed that he made proper disclosures and abstained from voting so that he did not commit such violations. We note that this alleged error is not in the nature of a “variance” as described in our cases because — as Haddock’s argument concedes — the indictment warned Haddock of the need to defend against conflict-of-interest accusations. Furthermore, after reviewing the indictment's language, we conclude that the few references to Haddock’s conflict-of-interest responsibilities did not substantially prejudice his rights. Haddock also contends that the government argued at trial that Haddock violated conflict-of-interest rules. This argument is more in the nature of a “variance” argument because the indictment’s charging language does not refer to such violations. However, after reviewing the record, we conclude that the few innocuous references related to conflict-of-interest rules were closely related to the charges in Counts 3 and 5 that Haddock engaged in a scheme to defraud the Bank of White City. Therefore, we conclude that the evidence at trial did not prove facts materially different from those alleged" }, { "docid": "23619027", "title": "", "text": "among the cases that in a criminal case a variance should never be regarded as material where the allegation and proof substantially correspond, where the variance is not of the character that could have misled the defendant at the trial, and where the variance is not such as to deprive the accused of his right to be protected against another prosecution for the same offense. Berger v. United States, supra, 295 U.S. at p. 83, 55 S.Ct. 629; Washington & Georgetown R. Co. v. Hickey, 166 U.S. 521, 531, 17 S.Ct. 661, 41 L.Ed. 1101 (1896). “The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to ‘affect the substantial rights’ of the accused.” Berger v. United States, supra, 295 U.S. at p. 82, 55 S.Ct. at p. 630. Here the charge set out in the indictment was definite and informative and it is difficult to see how appellant could possibly have been unable to prepare his defense or could have been surprised. The overt acts naming him all took place in the year 1960. He was incarcerated in federal institutions for the entire period the conspiracy was alleged to have existed with the exception of a two and one-half year period from May 1958 until December 1960. Nor can it be said that this variance is such as to deprive appellant of protection against another prosecution for this same offense. Appellant was placed in jeopardy for this particular offense for the entire period set out in the indictment and restriction of the proof to a smaller period within the period set out in that indictment will not vitiate the protection against subsequent prosecution for that entire period for that same offense. Appellant’s single authority, United States v. Russano, 257 F.2d 712 (2d Cir. 1958), is inapposite for in that case the indictment charged a continuing conspiracy from 1951 to 1957 but the proof disclosed two conspiracies in those years which the indictment had lumped together thus prejudicing defendants by allowing admission of evidence not otherwise admissible." }, { "docid": "7709899", "title": "", "text": "383 F.2d 345 (9th Cir.), cert. denied, 389 U.S. 986, 88 S.Ct. 469, 19 L.Ed.2d 478 (1967). The court decided that Fredericks was no longer viable in light of new criminal statutes and Fed.R.Crim.P. 52(a) and announced that a variance between the single overt act alleged in an indictment and the one proved at trial constituted harmless error beyond a reasonable doubt. We agree with the aforementioned Circuits that the harmless error rule may properly be applied when an overt act in furtherance of a conspiracy proven at trial differs from any of the overt acts alleged in the indictment. Such a variance does not amount to an amendment of the indictment to alter an element of the alleged crime of the sort held impermissible in Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252, 257 (1960). The section 371 requirement that an overt act be committed need not necessarily be considered an element of the offense. “[A]n overt act is necessary to complete the offense,” Fiswick v. United States, supra, 329 U.S. at 216, 67 S.Ct. at 227, 91 L.Ed. at 200; it may, however, be considered apart from the offense “either an indispensable mode of corroborating the existence of the conspiracy or a device for affording a locus poenitentiae.” Braverman v. United States, 317 U.S. 49, at 53, 63 S.Ct. 99, at 101, 87 L.Ed. 23, at 28. Since the variance is not fatal per se, it must be examined in light of Fed.R. Grim.P. 52(a) to determine if it prejudiced defendant’s substantial rights. United States v. Somers, 496 F.2d 723, 743-46 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974). In this case, those rights are primarily fair notice and avoidance of double jeopardy. Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046, 8 L.Ed.2d 240, 250 (1962). We do not find that Kearney was surprised by the introduction of evidence of acts different from those alleged in the indictment because, as will become clear, the difference in the facts was slight. We" }, { "docid": "1721101", "title": "", "text": "to prevent being placed in jeopardy twice for the same offense.’” Bolton, 68 F.3d at 400 (quoting United States v. Staggs, 881 F.2d 1527, 1530 (10th Cir.1989), cert. denied, 493 U.S. 1020, 110 S.Ct. 719, 107 L.Ed.2d 739 (1990)). In this case, the indictment adequately informed Meyers of the charges against him; therefore, we hold it was valid on its face and cannot be attacked further. Notably, because conspiracy does not require the government to establish any overt acts, Meyers’ contention that the overt acts alleged in the indictment were false is irrelevant. See United States v. Johnson, 42 F.3d 1312, 1319 (10th Cir.1994) (“Under the drug conspiracy statute, the government need not prove the commission of any overt act in furtherance of the conspiracy.”) (citing United States v. Shabani, — U.S. -, -, 115 S.Ct. 382, 385, 130 L.Ed.2d 225 (1994)). III. Improper Amendment of Indictment Meyers contends that the district court erred in denying his motion to dismiss on the grounds that the indictment was improperly amended by the proof at trial. Meyers asserts that the government presented, facts at trial which were materially and substantially different from the facts presented to the grand jury and that this variance is reversible error. A variance arises when the evidence presented at trial establishes facts which are different from those alleged in the indictment. Dunn v. United States, 442 U.S. 100, 105, 99 S.Ct. 2190, 2193-94, 60 L.Ed.2d 743 (1979); United States v. Powell, 982 F.2d 1422, 1431 (10th Cir.1992), cert. denied, 507 U.S. 946, 113 S.Ct. 1356, 122 L.Ed.2d 736 (1993). However, no variance occurs when the government’s theory on which the case was tried is the same as that charged in the indictment. Dunn, 442 U.S. at 106, 99 S.Ct. at 2194. Moreover, even if a variance exists, we will not reverse unless the variance affects the defendant’s substantial rights. Powell, 982 F.2d at 1431; United States v. Harrison, 942 F.2d 751, 759 (10th Cir.1991) (“variance did not affect defendant’s right to a fair trial”). Here, the indictment charged that: On or about between January, 1994, through and" }, { "docid": "22290826", "title": "", "text": "seven months. The ultimate questions of whether a variance existed, and whether it was fatal such that relief is required, are questions of law that we review de novo. See United States v. Cardall, 885 F.2d 656, 670 (10th Cir.1989). “[I]t is a fundamental precept of federal constitutional law that a ‘court cannot permit a defendant to be tried on charges that are not made in the indictment.’” Hunter v. New Mexico, 916 F.2d 595, 598 (10th Cir. 1990) (quoting Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (I960)), cert. denied, 500 U.S. 909, 111 S.Ct. 1693, 114 L.Ed.2d 87 (1991). Case law recognizes two different types of variances, similar in kind and different in degree. The first type of variance, referred to as a simple variance, “occurs when the charging terms are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment.” United States v. Haddock, 956 F.2d 1534, 1548 (10th Cir.1992) (citations and internal quotations omitted); see also Dunn v. United States, 442 U.S. 100, 105, 99 S.Ct. 2190, 2193, 60 L.Ed.2d 743 (1979) (“A variance arises when the evidence adduced at trial establishes facts different from those alleged in an indictment.”). The second type of variance, known as a constructive amendment of the indictment, is “more dangerous” than a simple variance “because it actually modifies an essential element of the offense charged,” thereby “effectively altering] the substance of the indictment.” Hunter, 916 F.2d at 599. With respect to the prohibition against simple variances, which is at issue in this case, we note the mere fact that a variance occurred does not automatically warrant relief. “Where a simple variance exists, ‘convictions generally have been sustained as long as the proof upon which they are based corresponds to an offense that was clearly set out in the indictment.’” Hunter, 916 F.2d at 599 (citing United States v. Miller, 471 U.S. 130, 136, 105 S.Ct. 1811, 1815, 85 L.Ed.2d 99 (1985)). This follows from the fact that the prohibition against variances is designed to insure notice of" }, { "docid": "13466553", "title": "", "text": "the constructive amendment of the indictment that occurred in Wilson’s state court trial amounted to a deprivation of Wilson’s due process rights. A safely guarded embodiment of the Sixth Amendment and Fourteenth Amendment right to due process is the right of a criminal defendant to have notice of the charges pending against him. Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 614, 92 L.Ed. 644 (1948) (“No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.”). A constructive amendment, sometimes referred to as a fatal variance, denies a criminal defendant this fundamental guarantee. See e.g., Hunter v. State of New Mexico, 916 F.2d 696, 698-60 (10th Cir.1990), cert. denied, 111 S.Ct. 1693 (1991). An unconstitutional amendment of the indictment occurs when the charging terms are altered, either literally or constructively, such as when the trial judge instructs the jury. United States v. Helmsley, 941 F.2d 71, 89 (2d Cir.), cert. denied, — U.S. -, 112 S.Ct. 1162, 117 L.Ed.2d 409 (1991). In contrast, a variance occurs when the charging terms are unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment. Id. It is important to note here the distinction between a constructive amendment of the indictment which is per se reversible error and a variance between the indictment and proof, which does not compel reversal of the conviction if the variance is harmless. Id. The classic example of a constructive amendment case is Stirone. In Stirone, the grand jury indicted Stirone on a charge of obstructing shipments of sand into Pennsylvania by means of extortion in violation of the Hobbs Act. However, the government also introduced evidence that the defendant had obstructed the export of steel out of Pennsylvania through extortion. In- its charge, the trial court' instructed the jury that it could convict Stirone if it found that" }, { "docid": "12828689", "title": "", "text": "must (1) be informed of the charges against him so that he may present his defense and not be surprised by the evidence offered at trial; and (2) be protected against another prosecution for the same offense. See Berger, 295 U.S. at 82, 55 S.Ct. at 630; Stoner, 98 F.3d at 536. A variance “is not fatal unless the defendant could not have anticipated from the indictment what evidence would be presented at trial or unless the conviction based on an indictment would not bar a subsequent prosecution.” 3 Charles Alan Wright, Federal Practice and Procedure § 516, at 27 (2d ed.1982); see Stoner, 98 F.3d at 536-37. We also have adopted the Supreme Court’s holding that there is no fatal variance where a defendant “is convicted upon evidence which tends to show a narrower scheme than that contained in the indictment, provided that the narrower scheme is fully included within the indictment.” Mobile, 881 F.2d at 874 (citing United States v. Miller, 471 U.S. 130, 135-40, 105 S.Ct. 1811, 1814-17, 85 L.Ed.2d 99 (1985)). There has been no showing that the variance prejudiced the fairness of Defendant’s trial in any way. Although the second superseding indictment charged a broad conspiracy among seven individuals to possess and distribute cocaine base or crack cocaine between March 1993 and March 1994 in Count 1, it also alleged many specific offenses which made up that widespread conspiracy. The jury in this casé found Defendant guilty of six underlying substantive offenses. The jury believed that Defendant conspired to commit three of those offenses,, charged in Counts 26, 27, and 28, with Mr. Douglas on November 19, 1993. The evidence proving these charges, while narrower than the conspiracy alleged in Count 1, did not extend-or broaden the indictment in any way. See Miller, 471 U.S. at 140-45, 105 S.Ct. at 1814-17. The government did not offer proof of new facts or new offenses not alleged in the indictment. See id. at 138, 105 S.Ct. at 1816. Defendant, therefore, was not prejudicially surprised at trial by evidence proving that Defendant conspired to commit the offenses on" }, { "docid": "23024996", "title": "", "text": "the conspiracy by relying upon proof of events at trial that were not listed in the overt acts section of the indictment. Properly understood, however, a variance exists where the evidence at trial proves facts different from those alleged in the indictment, as opposed to facts which, although not specifically mentioned in the indictment, are entirely consistent with its allegations. See, e.g., Berger v. United States, 295 U.S. 78, 81, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935) (fatal variance exists where indictment charges single conspiracy and evidence demonstrates two different and disconnected smaller conspiracies); United States v. Guthartz, 573 F.2d 225, 228 (5th Cir.), cert. denied, 439 U.S. 864, 99 S.Ct. 187, 58 L.Ed.2d 173 (1978) (fatal variance exists where “an indictment enumerates the particular facts alleged to constitute the element of a charged crime and the proof makes out the elements in a different manner”); Project, Thirteenth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1982-83, 72 Geo.L.J. 249, 390-91 (1983). There is no constructive amendment here. Warren’s claim is highly similar to that raised by the appellant in United States v. Malatesta, 583 F.2d 748 (5th Cir.1978), rehearing en banc, 590 F.2d 1379, 1381 (5th Cir.) cert. denied, 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 777 (1979). In Malatesta, the court noted that “when the indictment charges a violation of a statute in general terms, proof of acts of the kind described, although those acts are not specifically mentioned in the indictment, does not constructively amend it, at least absent a demonstration that this was, or might have been, prejudicial to the defendant.” Id. at 756. Because Warren was not convicted of an offense other than that alleged in the indictment, United States v. Gonzalez, 661 F.2d 488, 492 (5th Cir. Unit B 1981), nor inadequately apprised of the nature of the charges against her, Berger, 295 U.S. at 82, 55 S.Ct. at 630, she has not demonstrated any prejudice to her “substantial rights” as required by Fed.R.Crim.P. 52(a) and her challenge must be rejected. B. Coconspirator Hearsay Dr. Gold contends" }, { "docid": "3785710", "title": "", "text": "that the indictment charged and the government proved one conspiracy. Even if the government had proved two conspiracies, however, the variance might have been “harmless.” Berger, 295 U.S. at 81, 55 S.Ct. at 630; see Martino, 648 F.2d at 382. “The true inquiry ... is not whether there has been a variance ... but whether there has been such a variance as to ‘affect the substantial rights’ of the accused.” Berger, 295 U.S. at 81, 55 S.Ct. at 630. The indictment clearly gave the appellants notice of the charge against them. They did not object at trial to the nature of Mesa’s testimony, and the government’s proof did not surprise or unfairly prejudice them. Next, we must address whether the appellants face “the risk of another prosecution for the same crime.” Berger, 295 U.S. at 82, 55 S.Ct. at 630. The government may not split one conspiracy into two prosecutions, and any subsequent prosecution of the appellants would be judged by the five factors identified in United States v. Marable, 578 F.2d 151, 154 (5th Cir.1978): (1) time, (2) persons acting as conspirators, (3) the statutory offense charged in the indictment, (4) the location where the conspiracy took place, and (5) the overt acts charged by the government or any other description of the charged offense that indicates the scope and nature of the activities that the government sought to punish in each case. See also United States v. Dunn, 775 F.2d 604 (5th Cir.1985). If the appellants are again indicted and make a “nonfrivolous” claim of double jeopardy, then the government will have to show that the subsequent indictment charges a different offense than the indictment in the case before us. United States v. Nichols, 741 F.2d 767, 771 (5th Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1186, 84 L.Ed.2d 333 (1985). We hold that the indictment and our interpretation of it adequately protect the appellants from the risk of another prosecution for the same conspiracy. VI. Counts III and IV: Sufficiency of the Evidence As set out above, Counts III and IV charged not only substantive offenses" }, { "docid": "23364264", "title": "", "text": "impermissible amendment of the indictment. Counsel for defendant Smith conceded at the conference on jury instructions that the conspiracy count was immune from attack on the ground of variance, and the other defense counsel apparently acquiesced in that concession. In any event, Count One charged a conspiracy with respect to both Schedule I and Schedule II drugs, encompassing both heroin and cocaine. Though the indictment does charge a heroin-related overt act in furtherance of the conspiracy, proof of this conspiracy did not require proof of that particular overt act. Section 846 of Title 21 does not require proof of any overt act. United States v. Bermudez, 526 F.2d 89, 94 (2d Cir. 1975), cert. denied, 425 U.S. 970, 96 S.Ct. 2166, 48 L.Ed.2d 793 (1976). The conspiracy count alleged a scheme among the defendants to distribute Schedule I and II controlled substances, and proof of either a cocaine-related or a heroin-related overt act was sufficient for conviction, as was proof of no overt act at all. However, if we assume that there was sufficient evidence of cocaine to support a conviction, the conviction on Count Two, the substantive count, would raise a different issue. Count Two charged distribution of and possession with intent to distribute heroin. The question would be whether allowing the jury to convict if they found the substance to be cocaine rather than heroin was an impermissible amendment of the indictment. In Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), the Court said: “The true inquiry ... is not whether there has been a variance in proof, but whether there has been such a variance as to ‘affect the substantial rights’ of the accused. The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at trial; and (2) that he may be protected against another prosecution for the same offense.” 295 U.S." }, { "docid": "23155966", "title": "", "text": "charges against him and have suffered no undue prejudice as a result of the proof offered.” United States v. Frank, 156 F.3d at 339. Accordingly, the rule for pleading and proof remains the same: “the statute of limitations may be satisfied by proof of an overt act not explicitly listed in the indictment, as long as a defendant has had fair and adequate notice of the charge for which he is being tried, and he is not unduly prejudiced by the asserted variance in the proof.” Id. We address the question of fair notice in the next section. See id. at 338 n. 5 (observing that issue of whether conspiracy may be proved by an unalleged overt act frequently reduces to the question whether there was a “variance” between the indictment and the proof at trial). 2. Constructive Amendment and Variance Benussi submits that even if an unal-leged overt act can satisfy the statute of limitations, in his case the government im-permissibly “amended and varied the indictment by relying on evidence that the charged conspiracy continued by virtue of [Pasciutoj’s sale of non-stolen Thermo-Mizer warrants whereas the [Indictment S5] referred only to the sale of stolen Thermo-Mizer warrants.” Appellant’s Br. at 55. a. Constructive Amendment “To prevail on a constructive amendment claim, a defendant must demonstrate that either the proof at trial or the trial court’s jury instructions so altered an essential element of the charge that, upon review, it is uncertain whether the defendant was convicted of conduct that was the subject of the grand jury’s indictment.” United States v. Frank, 156 F.3d at 337; see also United States v. Wallace, 59 F.3d 333, 337 (2d Cir.1995). “Where charges are constructively narrowed or where a generally framed indictment encompasses the specific legal theory or evidence used at trial,” there is no constructive amendment. United States v. Wallace, 59 F.3d at 337 (internal quotation marks omitted); cf. Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) (noting that indictment written in general terms may support conviction on alternative bases). In short, not all modifications" }, { "docid": "21156021", "title": "", "text": "with a bill of particulars, it is \"strictly limited to proving what it has set forth in it.\"). However, we will reverse on account of a variance only if it prejudices the defendant by infringing on the \"substantial rights\" that indictments exist to protect-\"to inform an accused of the charges against him so that he may prepare his defense and to avoid double jeopardy.\" Dupre, 462 F.3d at 140; see also Glaze, 313 F.2d at 759 (\"it is well settled that a variance between the proof and the bill of particulars is not grounds for reversal unless the [defendant] is prejudiced by the variance.\"). Assuming arguendo there was a variance, we detect no prejudice to Kap-lan's ability to prepare his defense or interpose a defense of double jeopardy. MThere the defendant has notice of the \"core of criminality\" to be proven at trial, we have permitted \"significant flexibility\" in proof without finding prejudice. See United States v. LaSpina, 299 F.3d 165, 181-82 (2d Cir.2002); see also Salmonese, 352 F.3d at 621 (\"A defendant cannot demonstrate that he has been prejudiced by a variance where the pleading and the proof substantially correspond .. . .\"). For example, in Dnpre, we concluded that the proof of a wire transfer other than that specified in the indictment was a variance but did not prejudice the defendant because she was not surprised by the proof, 462 F.3d at 141-42, and suffered no risk of double jeopardy, id. at 143 n. 12. Additionally, we have routinely found that no prejudice results from a variance between overt acts charged in an indictment and those proved at trial. See, e.g., Frank, 156 F.3d at 337; LaSpina, 299 F.3d at 182-83; Salmonese, 352 F.3d at 622 (\"In this case, because [the][i]ndictment gave [defendant] fair and adequate notice that the conspiratorial scheme achieved its ultimate economic purpose through the conspirators' multiple sales of stripped securities and their receipt of proceeds through June 1996, [defendant] cannot show that he was prejudiced by proof of a few uncharged proceed receipts after May 8, 1996.\"). The alleged variance here in issue similarly" } ]

[ { "docid": "23280347", "title": "", "text": "holding, the court announced a common law conflict of laws rule for the choice of law to be applied in deciding the merits of certain issues. No statute was controlling, and there was no question of when or where the cause of action arose, though apparently it arose at the place of wrong. Here we have a very different situation. Under the Pennsylvania borrowing statute a court is required to apply the statute of limitations of the state where the cause of action arose without regard to any contacts of any other state with the parties and their prior dealings. And certainly neither the Griffith case nor any other of which we know suggests that the residence of the parties or the place of their earlier dealings before the claim became suable have any relevance to determining when or where the cause arose. Indeed, in Foley v. Pittsburgh-Des Moines Co., supra, Chief Justice Stern explicitly stated that the accrual of a cause of action occurs when suable harm is done the plaintiff, “not when the causes are set in motion which ultimately produce injury as a consequence”. 363 Pa. at 38, 68 A.2d at 535. Perhaps it would be arguable, on the merits of the present controversy, that in determining the existence or extent of an obligation to indemnify, the forum should be guided, as was the court in the Griffith case, by the substantive law of Pennsylvania because of cumulatively significant Pennsylvania “contacts”. But we do not have that problem here. We have to answer only the narrow question of the meaning of the phrase “where the cause of action arose”, as used in the Pennsylvania borrowing statute and applied to a situation in which the cause of action came into existence upon the happening of certain events in Florida. It remains to determine what period of limitations Florida law specifies for such an action as this. Section 95.11(5) (e) of Florida Statutes Annotated stipulates that “an action upon a contract, obligation or liability not founded upon an instrument of writing” must be brought within three years after the" } ]

[ { "docid": "22991798", "title": "", "text": "court concluded for other reasons that the action should be dismissed and brought anew in Scotland. Because we reverse the dismissal, it will be necessary for the trial judge to decide that issue based upon additional information. If it is held that Reyno does not have representative capacity, it will be necessary to allow a substitution of parties so that the decedents’ estates can bring the action directly. Such a substitution would not destroy diversity and should be granted in the interests of justice. Guiding the trial judge’s decision should be the requirement of Fed.R.Civ.P. 17(b) that the capacity of an individual to sue in a representative capacity “shall be determined by the law of the state in which the district court is held.” In addition to examining the laws of California and Pennsylvania to determine whether Reyno has representative capacity, the trial court should consider whether the defendants’ challenge to the plaintiff’s capacity to sue has come too late in the litigation. b. Pennslyvania Conflicts Law Applied to Hartzell Citing Griffith v. United Airlines, the district court applied the “significant contacts approach to determine that Scotland’s standard of liability, rather than that of Ohio or Pennsylvania, applied to Hartzell. But a close examination of Griffith and, more importantly, subsequent elaborations by the Pennsylvania Supreme Court reveals that Pennsylvania’s approach to choice of law is quite similar, at least for purposes of this litigation, to that of California. Pennsylvania first looks to identify and thus avoid false conflicts, and then, when a true conflict is present, examines and compares the competing governmental interests. In Griffith, the Pennsylvania Supreme Court overturned the old rule that the law of the state of wrong governs all issues in tort actions but it did not specifically set forth the contours of that rule’s replacement. In fact, as the court later indicated, once governmental interests were examined Griffith involved a false conflict situation. The state in which an airplane crashed was held to have no interest in enforcing its limitation of damages for wrongful death when neither party was a resident. The Pennsylvania Supreme Court" }, { "docid": "6291921", "title": "", "text": "applicable statute of limitation by the “significant contacts” rule of the Griffith case because of the statutory rule of the Pennsylvania “Borrowing Act”. An eloquent dissent by Judge Freedman highlights the majority’s decision that the Pennsylvania conflict of laws rules are applicable to determine the statute of limitations because Judge Freedman believed that the court was free to analyze the significant contacts to determine the meaning of the statutory language “the place where the cause of action arose.” There has been no case in the Appellate Courts of Pennsylvania since Griffith that has extended the “interest analysis” approach to the Pennsylvania)) conflict of law rules governing the appli-JI cable statute of limitations. It appears I that the rule of Rosenzweig v. Heller, cit. supra, is still the controlling law. It is so recognized by United States District Courts sitting in Pennsylvania in cases subsequent to the Griffith decision. Gross v. McDonald, 354 F.Supp. 378 [E.D.Pa.1973]; Mata v. Budd Co., 44 F.R.D. 225 [E.D.Pa.1968], as well as the Court of Appeals for this circuit, Mack Trucks, Inc. v. Bendix-Westinghouse Auto. A.B. Co., supra. While we would agree that the significant contacts of this cause of action with Pennsylvania are minimal, being solely the domicile of the defendant corporation, nevertheless Pennsylvania has a valid public interest in the administration of its judicial system sufficient to support a separate conflict of laws rule on the applicable statute of limitations on actions brought under foreign law. The plaintiffs have moved for a transfer of the within action to the Southern District of Ohio under 28 U.S. C. § 1404(a). We are of the opinion that the transferee court would be obligated to apply the state law that would have been applied had there been no change of venue, under Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S.Ct. 805, 11 L.Ed.2d 945 [1964], and that such a transfer were it otherwise possible would be a useless procedure. The motion to transfer will, therefore, be denied. The plaintiffs urge that they have sufficiently pleaded a claim for breach of warranty to which the Pennsylvania" }, { "docid": "3223966", "title": "", "text": "in Pennsylvania, as well as in New Jersey. Since the parties conclude that Pennsylvania law controls for totally different reasons, I find it necessary to independently determine which state’s law applies in this action. This court must apply the choice-of-law rule of the forum state since jurisdiction, in this case, is based on diversity. See Klaxon Co. v. Stentor Electric Mfgr. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The Pennsylvania courts use a flexible choice-of-law rule. In Griffith v. United Airlines, 416 Pa. 1, 13-23, 203 A.2d 796, 802-06 (1964), the Pennsylvania Supreme Court adopted a combination of the “interest analysis,” and the Restatement (Second) of Conflict of Laws (“Restatement II”) approach in determining which state’s law should be applied in a tort claim. The test in Griffith has been extended to contract actions. See American Contract Bridge v. Nationwide Mutual Fire Ins. Co., 752 F.2d 71, 74-75 (3d Cir.1985); Melville v. American Home Assurance Co., 584 F.2d 1306, 1313 (3d Cir.1978). Accordingly, the test announced in Griffith will determine the appropriate state law to be applied in this case. Under the “interest analysis” arm of the test, I am to examine the competing interests of the states involved, and determine which state has the most significant contacts with the controversy. The interests of Massachusetts, Liberty Mutual's domicile, are insignificant. Massachusetts’ only contact with the controversy is based on the fact that Liberty Mutual is incorporated in that state. New Jersey is also only incidentally connected with the controversy. New Jersey is involved simply because Swope Oil and Chemical Company chose Pennsauken as a place for storage. Pennsylvania clearly has the most significant interest in the controversy. The contract was negotiated and entered into in Pennsylvania. Triangle’s domicile, and the site of all of its property, is located in Pennsylvania. Under the basic tenets of contract law, these factors are most important when weighing the competing interests of the states. See generally R. Weintraub, Com mentary of the Conflict of Laws, at 348 (2d ed. 1980). Pennsylvania is also the state most connected with the controversy" }, { "docid": "1504888", "title": "", "text": "(E.D.Pa.1969). Nevertheless, appellants urge that we decline to give effect to the provision here. Appellants contend that Pennsylvania has embraced the “grouping of contacts” principle as its choice-of-law rule in contract actions. They press the application of Griffith v United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), which provided that in tort actions Pennsylvania courts will apply the substantive law of the state most intimately concerned with the outcome of the litigation. Appellants note that Griffith cites with approval the New York case of Auten v. Auten, 308 N.Y. 155, 124 N.E.2d 99 (1954), in which Judge (now Chief Judge) Fuld rejected the inflexibility of the traditional lex loci contractus rules and adopted instead the “grouping of contacts” theory as the controlling choice of law rule in New York contract actions. It is significant that the separation agreement in Auten, unlike the pension plan before us, did not contain a contractual choice of law provision. Even putting this consideration aside, however, and with no intent to deprecate the interest-oriented approach, we conclude that Pennsylvania would not extend the grouping of contacts rule to the facts before us. In the six years since Griffith was decided, the Pennsylvania Supreme Court has not applied its rule in a contract case. That state’s intermediate appellate court, in the ^ost-Griffith case of Crawford v. Manhattan Life Ins. Co., 208 Pa.Super. 150, 221 A.2d 877 (1966), explicitly grounded its decision on the: traditional conflict of laws rule: “Under the traditional Pennsylvania rule, the construction of a contract is governed by the law of the state where the contract was made.” Id. at 880. It made only supplemental reference to the newer grouping-of-contacts theory: “The result would be the same even if the standards enunciated in Griffith * * are applied in this case.” Id. at 881. (emphasis supplied). Our court’s decisions in Mannke v. Benjamin Moore & Co., 375 F.2d 281 (3 Cir. 1967) and Goulding v. Sands, 355 F.2d 230 (3 Cir. 1966) do not, as appellants insist, indicate the adoption of the grouping of contacts theory in Pennsylvania contract actions." }, { "docid": "22269662", "title": "", "text": "actions which was adopted by the Pennsylvania Supreme Court in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). Griffith was read as employing a combination of Professor Currie’s “interest analysis” and the Restatement (Second) of Conflict of Laws (“Restatement II”) grouping of contacts theory. These two methods were applied seriatim by the court. The district court judge concluded that neither New York, Pennsylvania, nor Delaware had a significant interest in having its law apply. Professor Currie’s suggestion that in such an “unprovided for case” the law of the forum should be applied on grounds of convenience was rejected, however. Rather, in order to prevent forum shopping, the district court turned to the contacts approach of Restatement II. Analyzing the factors listed in Restatement II § 188, it concluded that New York law should apply since that state was both the place of negotiation, and the place of performance under the policy, as well as the residence of American. The court explicitly eschewed application of Restatement II § 192, which provides that rights created by an insurance contract are generally to be governed by the law of the state where the insured is domiciled, on grounds that the Pennsylvania courts would find that section of Restatement II too inflexible to justify automatic application. Melville of course attempts to sustain the judgment of the district court, primarily by arguing that Restatement II § 192 is not applicable and that New York has an interest in enforcing the contractual obligations of its own domiciliaries according to New York law even when this would operate to the benefit of a nonresident. Brief for Appellee 16-22. American advances two main arguments in seeking to reverse the decision of the district court. It first contends that the presumption concerning suicide is purely procedural and, as such, must be determined in accordance with the law of the forum, which in this case is Pennsylvania. In the alternative it argues that Pennsylvania would extend to contract actions the modern conflicts approach found in Griffith v. United Air Lines, Inc., supra, and that under" }, { "docid": "6291920", "title": "", "text": "forum state to analyze the significant contacts between the suit and the states having such contacts in order to determine the state having the most significant contacts and then to apply the substantive law of that state. Despite the possible appearance of a trend in some jurisdictions to disregard a distinction between the choice of law rules governing the substantive law to be applied and the procedural law to be applied we find no indication that the courts of Pennsylvania have abandoned that distinction subsequent to 1964, the year of the Griffith decision. This is clearly indicated in a case considered by the Court of Appeals for this circuit subsequent to Griffith, Mack Trucks, Inc. v. Bendix-Westinghouse Auto. A. B. Co., 372 F.2d 18 [3rd Cir. 1966]. The court held that Pennsylvania had announced in Griffith a common law * conflict of laws rule for the choice of law to be applied in deciding the merits of certain issues. It rejected the argument that the forum court should be guided on the question of the applicable statute of limitation by the “significant contacts” rule of the Griffith case because of the statutory rule of the Pennsylvania “Borrowing Act”. An eloquent dissent by Judge Freedman highlights the majority’s decision that the Pennsylvania conflict of laws rules are applicable to determine the statute of limitations because Judge Freedman believed that the court was free to analyze the significant contacts to determine the meaning of the statutory language “the place where the cause of action arose.” There has been no case in the Appellate Courts of Pennsylvania since Griffith that has extended the “interest analysis” approach to the Pennsylvania)) conflict of law rules governing the appli-JI cable statute of limitations. It appears I that the rule of Rosenzweig v. Heller, cit. supra, is still the controlling law. It is so recognized by United States District Courts sitting in Pennsylvania in cases subsequent to the Griffith decision. Gross v. McDonald, 354 F.Supp. 378 [E.D.Pa.1973]; Mata v. Budd Co., 44 F.R.D. 225 [E.D.Pa.1968], as well as the Court of Appeals for this circuit, Mack Trucks," }, { "docid": "10356123", "title": "", "text": "was merely an aberration. Given the potential significance of Danz to the evolution of Pennsylvania choice of law, it is surprising that it has received so little notice in the Circuit. Travelers, which followed Danz by several years, suggested that Pennsylvania would use interest analysis in contracts choice of law. It did not cite Danz, but rather relied solely on Griffith in holding that Pennsylvania would apply interest analysis to a case concerning arbitrability of the meaning of an insurance contract; Massachusetts was found to be “interested” because “the contract was made there,” but Pennsylvania’s interest was greater because “decedent and his executors are citizens of that state.” 490 F.2d at 543. In Siata International, an action on a bond covering a contract, the court relied on Neville in finding that the district judge had employed the correct test of “most significant relationship,” but remanded for a determination, inter alia, of whether an express choice by the parties should be considered as an additional factor in the calculus, noting that in the process “additional state interests and contacts may become manifest.” 498 F.2d at 820. Kademenos, a case of tortious interference with contractual relations, hence straddling between tort and contract, was the next Circuit case in the wake of Danz. It cited Griffith and Neville and spoke of Pennsylvania’s “greater interest,” but in analyzing that interest utilized Restatement II territorial contacts exactly as Neville had, focusing on the place of the policy’s delivery, the place of the policy’s cancellation, etc. 513 F.2d at 1073. Daburlos, however, which also followed shortly thereafter returned to Restatement I language in saying that: [ijnitially, there can be no question that under the doctrine of conflict of laws, the Pennsylvania substantive law applies for the insurance policies in this case were issued and delivered in Pennsylvania. 521 F.2d at 20. The Court’s footnote somewhat cryptically cited Griffith, Pittsburgh Bridge and Neville. We now turn to the Circuit cases which followed the most recent development in the Pennsylvania state cases, Giilan, in which the Superior Court for the first time read Griffith expansively (while ignoring Danz)," }, { "docid": "3252787", "title": "", "text": "to appeal from that order and it moved, in the alternative, for reconsideration of the order. By order dated August 17, 2004, the district court granted Plaza’s motion for certification under 28 U.S.C. § 1292(b) but denied its motion for reconsideration. We granted Plaza’s petition for permission to appeal on November 4, 2004. II. DISCUSSION As we have indicated the sole question presented on appeal is a narrow conflicts-of-law issue: whether the court should use Pennsylvania common law or New York’s statutory law to determine if Plaza can be liable. We exercise plenary review over the choice of law question raised by this appeal. See Simon v. United States, 341 F.3d 193, 199 (3d Cir.2003); Shuder v. McDonald’s Corp., 859 F.2d 266, 269 (3d Cir.1988). In a diversity of citizenship action, we determine which state’s substantive law governs by applying the choice-of-law rules of the jurisdiction in which the district court sits, here Pennsylvania. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941); Petrella v. Kashlan, 826 F.2d 1340, 1343 (3d Cir.1987); Melville v. American Home Assur. Co., 584 F.2d 1306, 1308 (3d Cir.1978). Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), is Pennsylvania’s leading conflicts-of-laws case. In that case, the Pennsylvania Supreme Court abandoned the traditional lex loci delicti conflicts rule in which the law of the place of the wrong governed the substantive rights and liabilities of the parties and substituted “a more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court.” Id. at 805. We have indicated that this methodology has evolved into a hybrid approach that “combines the approaches of both Restatement [ (Second) of Conflict of Laws] (contacts establishing significant relationships) and ‘interest analysis’ (qualitative appraisal of the relevant States’ policies with respect to the controversy).” Melville, 584 F.2d at 1311. Under Pennsylvania law, before assessing the governmental interests of the jurisdictions whose law may control and examining their contacts with the dispute, we must determine what type of “conflict,” if any," }, { "docid": "18220325", "title": "", "text": "Griffith carefully pointed out, would be best served by application of Pennsylvania law under which decedent’s estate would not be limited in its recovery. The primary importance of the Griffith decision is the Court’s insistence that in considering choice of law problems, it is necessary to analyze the policies and interests underlying the particular issue before the Court. Applying the “interest analysis” approach of Griffith, we have concluded that Pennsylvania, not New Jersey, has the most significant relationship with this litigation. The following Pennsylvania “contacts” are important: (1) The relationship between plaintiff’s decedent and the defendant Hospital was entered into and centered in Pennsylvania when Mr. Reilley entered the University of Pennsylvania Hospital for diagnostic study; (2) The alleged negligent acts, as well as the alleged breach of warranty occurred in Pennsylvania where the drug Thorotrast was administered to plaintiff’s decedent; (3) Pennsylvania is the place of incorporation of the defendant University and the state in which the University conducts its principal corporate activities; therefore, the University certainly could have anticipated law suits brought under Pennsylvania law and could not justifiably have relied on defenses available under New Jersey law, including the $10,000 limitation on damages which defendant now relies upon. It is true that the symptoms of cancer which allegedly caused Mr. Reilley’s death did not emerge, and were not identified until 1963 when he entered a New Jersey hospital. We conclude, however, that this fact, combined with the fact that the decedent resided in New Jersey, died there, and his estate was administered there, bears little relationship to the issues before the Court under any interest analysis approach. The Court in Griffith emphasized that a “contact counting” or a “quantitative” contacts approach to conflicts issues was to be avoided. In the present case we are fully convinced that, qualitatively speaking, Pennsylvania has the most significant contacts with this litigation. Even if we were to hold that New Jersey substantive law applies, we would not apply New Jersey limitation on damages. The Court in Griffith examined the policies and interests which Colorado had in the case before it and" }, { "docid": "6064222", "title": "", "text": "F.2d 897, 899 (3d Cir.1976). III. Our analysis of the merits begins by recognizing that third-party actions for contribution arising out of FELA claims are governed by state law. Denicola v. G.C. Murphy Co., 562 F.2d 889, 895 (3d Cir. 1977); Kennedy v. Pennsylvania Railroad Co., 282 F.2d 705, 709 (3d Cir.1960); see also Alabama Great Southern Railroad Co. v. Chicago & Northwestern Railway Co., 493 F.2d 979, 983 (8th Cir.1974) (citing cases). Here, the question of which state’s law applies is of crucial significance. If Indiana law applies, Conrail has no right to contribution. Jackson v. Record, 211 Ind. 141, 5 N.E.2d 897, 898 (1937); Elcona Homes Corp. v. McMillan Bloedell, Ltd., 475 N.E.2d 713, 715 (Ind.Ct.App.1985); Ind. Code Ann. § 34-4-33-7 (Burns Supp.1986). If Pennsylvania law applies, Conrail possesses a right of contribution among joint tortfeasors. Elder v. Orluck, 515 A.2d 517, 519 (Pa.1986); Rivera v. Philadelphia Theological Seminary, 507 A.2d 1, 12 (Pa. 1986); 42 Pa.Cons.Stat. § 8324 (1982). A. A district court’s choice of law determination is governed by the choice of law rules of the forum state. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941); American Contract Bridge League v. Nationwide Mutual Fire Insurance Co., 752 F.2d 71, 74 (3d Cir. 1985). Because Pennsylvania was the forum for this action, its choice of law rules apply to Conrail’s claim for contribution. Modern Pennsylvania choice of law principles first emerged from Justice Samuel J. Roberts’ landmark opinion in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). In Griffith, Pennsylvania abandoned the strict lex loci delicti rule and essentially adopted the Restatement (Second) view commonly known as the most significant relationship test: Contacts considered vital in determining the state of most significant relationship include place of injury, place of conduct, domicile of the parties, and the place where the relationship between the parties is centered. § 379(2) [now Restatement (Second) of Conflict of Laws § 145(2) (1971) ]. The importance of the respective contacts is determined, in part, by considering the" }, { "docid": "22991799", "title": "", "text": "the district court applied the “significant contacts approach to determine that Scotland’s standard of liability, rather than that of Ohio or Pennsylvania, applied to Hartzell. But a close examination of Griffith and, more importantly, subsequent elaborations by the Pennsylvania Supreme Court reveals that Pennsylvania’s approach to choice of law is quite similar, at least for purposes of this litigation, to that of California. Pennsylvania first looks to identify and thus avoid false conflicts, and then, when a true conflict is present, examines and compares the competing governmental interests. In Griffith, the Pennsylvania Supreme Court overturned the old rule that the law of the state of wrong governs all issues in tort actions but it did not specifically set forth the contours of that rule’s replacement. In fact, as the court later indicated, once governmental interests were examined Griffith involved a false conflict situation. The state in which an airplane crashed was held to have no interest in enforcing its limitation of damages for wrongful death when neither party was a resident. The Pennsylvania Supreme Court noted three general approaches competing to replace the old rule: (1) Professor Currie’s early emphasis on applying the forum’s law when the forum has a legitimate interest in the issue presented; (2) Professor Ehrenzweig’s stress on the interests of the parties, specifically looking to whether the defendant would have planned by insurance for the risks to which he would be exposed by the applicable law; and (3) the “significant contacts” approach of the Restatement (Second) of Conflicts, under which a court applies the law of the state with the most significant relationship with the occurrence and the parties. Rather than choose among these alternative approaches, the Pennsylvania Supreme Court adopted what it believed was the essence of all three: “a more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court.” Subsequent cases confirm that Pennsylvania courts follow a governmental interest analysis approach, with a state’s contacts being considered significant only when the behavior giving rise to the contact furthers or abrogates a state policy. Where the place" }, { "docid": "17597528", "title": "", "text": "and tort actions, respectively. In Griffith v. United Air Lines Inc., 416 Pa. 1, 203 A.2d 796 (1964), the Pennsylvania Supreme Court expressly abandoned the “lexi loci delicti” rule “in favor of a more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court.” Id. at 805. Under this new approach, Pennsylvania courts are to apply the law of the forum with the “most interest in the problem,” rather than the law of the place of injury. Id. at 806. In the wake of Griffith, it was unclear whether this new approach to tort choice-of-law questions would displace Pennsylvania’s traditional “lex loci contractus” rule. Several years later, in Melville v. American Home Assurance Co., 584 F.2d 1306 (3d Cir.1978), we predicted that, when the occasion arises, “Pennsylvania [will] extend its Griffith conflicts methodology to contract actions.” Id. at 1313. In reaching this conclusion, we examined several Pennsylvania conflicts decisions, including In re Hunter, 421 Pa. 287, 218 A.2d 764, 767 (1966) (choosing Pennsylvania law to govern the validity of child-relinquishment forms because Pennsylvania had an “overriding and continuing interest” in the issue); Crawford v. Manhattan Life Ins. Co. of N.Y., 208 Pa.Super. 150, 221 A.2d 877, 881 (1966) (choosing West Virginia law to govern a life insurance policy because the contract was delivered there, but also observing the “result would be the same even if the standards enunciated in Griffith applied” because West Virginia had the “most significant relationship with and interest in the occurrence and the parties”); and Gillan v. Gillan, 236 Pa.Super. 147, 345 A.2d 742, 744 (1975) (“[I]t would be error for us to apply the old, single reference rule that ... the place where the contract became binding, or the place where it was to be performed, controls the choice of law.”). . In the years following Melville, the Pennsylvania Superior Court, federal district courts, and this Court have continued to apply Griffith’s “interests/contacts” approach to contract choice-of-law questions. See, e.g., Am. Contract Bridge League v. Nationwide Mut. Fire Ins. Co., 752 F.2d 71 (3d Cir.1985) (finding under Griffith" }, { "docid": "15779099", "title": "", "text": "policy of Anthony Evangelista also contains an excess clause, under Pennsylvania law both policies must be treated of equal status. III. DISCUSSION A. Applicable Law In diversity actions, federal courts are to apply the choice of law rules of the forum state. Klaxon Co. v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). Under traditional Pennsylvania choice of law rules, insurance contracts are governed by the law of the state where they are made. Pennsylvania courts have determined that contracts are “made” at the place of delivery. Jamison v. Miracle Mile Rambler, Inc., 536 F.2d 560, 562 n. 1 (3d Cir.1976) (citing Crawford v. Manhattan Life Ins. Co. of N.Y., 208 Pa.Super. 150, 221 A.2d 877). Two decades ago, however, the Pennsylvania Supreme Court rejected the traditional lex loci delicti approach and adopted a hybrid version of “interest” and “significant contacts” analysis. Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). Although the Griffith court only applied the analysis to tort actions, the Third Circuit determined that the Griffith analysis applies generally to contract actions and specifically to insurance contracts. Melville v. American Home Assurance Co., 584 F.2d 1306, 1313 (3d Cir.1978). Using the Griffith approach, this court must weigh the contacts [to the respective states] on a qualitative scale according to their relation to the policies and interests underlying the [primary issues]. Shields v. Consolidated Rail Corp., 810 F.2d 397, 400 (3d Cir.1987) (citations omitted). If there were a conflict between the laws of Pennsylvania and Missouri, I would be required to examine the policies and interests of the two states as they related to each of the three issues in contention. However, because I find and the parties agree that there is no difference between the law of the Commonwealth of Pennsylvania and the law of the State of Missouri, the interests and contacts of the two states need not be addressed. B. Mark Evangelista’s Household Mark Evangelista’s USAA insurance policy entitles covered persons to claim uninsured motorist benefits. See Part C of USAA policy." }, { "docid": "6291919", "title": "", "text": "the shorter here. v\\ The Pennsylvania courts have re-' quired the application of the Pennsylvania statute of limitations in this situation. Rosenzweig v. Heller, 302 Pa. 279, 153 A. 346 [1931]; Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1, 68 A.2d 517 [1949]; this is the rule of Restatement 2d, Conflict of Laws, § 142(1) [1971]. The rule has been held constitutional under the full faith and credit clause of the United States Constitution, Art. IV, § 1. Wells v. Simonds Abrasive Co., 345 U.S. 514, 73 S.Ct. 856, 97 L.Ed. 1211 [1953]. It was recognized by the Court of Appeals for this circuit in a case arising in a United States District sitting in Pennsylvania. Hartwell v. Piper Aircraft Corporation, 186 F.2d 29 [3d Cir. 1951]. . Plaintiffs argue that the landmark case of Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 [1964], has abrogated this rule. In Griffith, the Supreme Court of Pennsylvania adopted the “interest analysis” approach to conflict of laws problems which requires the court of the forum state to analyze the significant contacts between the suit and the states having such contacts in order to determine the state having the most significant contacts and then to apply the substantive law of that state. Despite the possible appearance of a trend in some jurisdictions to disregard a distinction between the choice of law rules governing the substantive law to be applied and the procedural law to be applied we find no indication that the courts of Pennsylvania have abandoned that distinction subsequent to 1964, the year of the Griffith decision. This is clearly indicated in a case considered by the Court of Appeals for this circuit subsequent to Griffith, Mack Trucks, Inc. v. Bendix-Westinghouse Auto. A. B. Co., 372 F.2d 18 [3rd Cir. 1966]. The court held that Pennsylvania had announced in Griffith a common law * conflict of laws rule for the choice of law to be applied in deciding the merits of certain issues. It rejected the argument that the forum court should be guided on the question of the" }, { "docid": "19055708", "title": "", "text": "Laws contacts theory employed by the Pennsylvania Supreme Court in the tort case of Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), is to be extended to contracts actions. Thus, under Pennsylvania choice-of-law-principles, the place having the most interest in the problem and which is the most intimately concerned with the outcome is the forum whose law should be applied. Griffith, 416 Pa. at 22, 203 A.2d at 805-806. Applying Griffith, we believe that Pennsylvania’s choice-of-law rules on the validity of the power of attorney refer us to the law of India. India has a more compelling interest in that the “agent” was from India even though the “principal” now allegedly resides in Bangladesh. Similarly, all contacts to the document are in India. The special power of attorney was “executed” in India and purports to bear the alleged stamp or attestation of Indian judicial officials. If the signature of Mrs. Chatterjee on the power of attorney was forged, the forgery occurred in India. Thus, the validity of the special power of attorney of December 17, 1975 should be determined by Indian law if an actual conflict exists with respect to the potentially applicable foreign rule of law, so as -to make the use of the forum’s law appropriate. If the foreign law to which the forum’s choice-of-law rule refers does not differ from that of the forum on the issue, the issue presents a “false conflict.” To properly assess whether an actual conflict exists in this ease, we must compare the Indian law controlling the contractual relationship of principal and agent, which derives from English common law, as well as Indian law on fraud and forgery, with the common law of Pennsylvania. Any differences in India’s laws and Pennsylvania’s laws must have a significant effect on the outcome of the trial in order to present an actual conflict in terms of choice of law. See e.g., Melville, supra. Under both Pennsylvania and Indian law, a principal is generally not liable on account of acts committed by an agent outside of the actual or apparent scope" }, { "docid": "22269661", "title": "", "text": "1020, 85 L.Ed. 1477 (1941), the district court properly applied Pennsylvania’s conflicts rule that when a sister state’s law is unknown or unclear it is presumed to be the same as Pennsylvania’s. In re Trust of Pennington, 421 Pa. 334, 219 A.2d 353, 356 (1966). For purposes of this case, Delaware’s and Pennsylvania’s presumptions against suicide were thus viewed as identical. Turning to Pennsylvania’s conflicts rules in order to determine whether Pennsylva nia, Delaware, or New York’s presumption against suicide properly controlled, the district court concluded that Pennsylvania’s conflicts methodology was in disarray as regards contract actions. In an effort to apply accurately Pennsylvania’s conflicts decisions, the court proceeded along two discrete lines of inquiry suggested by relevant case law. The district court first examined the traditional rules of the Restatement of Conflict of Laws (“Restatement I”) which are grounded on notions of territorial sovereignty. Under either the place of contracting or the place of performance provisions, the district court judge concluded that New York law would govern. He then applied the approach for tort actions which was adopted by the Pennsylvania Supreme Court in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). Griffith was read as employing a combination of Professor Currie’s “interest analysis” and the Restatement (Second) of Conflict of Laws (“Restatement II”) grouping of contacts theory. These two methods were applied seriatim by the court. The district court judge concluded that neither New York, Pennsylvania, nor Delaware had a significant interest in having its law apply. Professor Currie’s suggestion that in such an “unprovided for case” the law of the forum should be applied on grounds of convenience was rejected, however. Rather, in order to prevent forum shopping, the district court turned to the contacts approach of Restatement II. Analyzing the factors listed in Restatement II § 188, it concluded that New York law should apply since that state was both the place of negotiation, and the place of performance under the policy, as well as the residence of American. The court explicitly eschewed application of Restatement II § 192, which provides" }, { "docid": "17719492", "title": "", "text": "during his lifetime, would suddenly be withdrawn upon his death when his personal representative brings the action under the survival statute. Given the stated purpose of this statute — to continue the common law rights the decedent possessed in his lifetime — and given Pennsylvania’s constitutional mandate that this right not be abridged, appellee nevertheless contends the Pennsylvania choice of law decisions support the district court’s conclusion. It is to those decisions we now turn. III. Modern Pennsylvania choice of law teaching begins with Justice Roberts’ landmark opinion in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). There Pennsylvania abandoned the wooden lex loci delicti rule, and essentially adopted the Restatement view commonly known as the most significant relationship test: Contacts considered vital in determining the state of most significant relationship include place of injury, place of conduct, domicile of the parties, and the place where the relationship between the parties is centered. § 379(2). [Now Restatement (Second) of Conflict of Laws § 145(2) (1971).]' The importance of the respective contacts is determined, in part, by considering the issues, the nature of the tort, and the purposes of the tort rules involved. § 379(3) [now § 145, Comments c — f]. However, Section 379a [redrafted as § 146] of the new Restatement provides: “In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless some other state has a more significant relationship with the occurrence and the parties as to the particular issue involved, in which event the local law of the latter state will govern.” 203 A.2d at 802-03. Applying this test in actions brought in Pennsylvania by decedents’ representatives under wrongful death and survival statutes, the Supreme Court of Pennsylvania has held that (1) where a plane crashed in Colorado and caused the death of a Pennsylvania domiciliary, the Pennsylvania measure of damages would apply, and not the more restricted amount of damages provided by Colorado, Griffith, supra; (2) where a plane crashed in Georgia and resulted in" }, { "docid": "19994181", "title": "", "text": "of the courts of this commonwealth.” 12 P.S. § 39. Thus, if the cause of action “arose” in Illinois, reference must be made to the appropriate Illinois statute of limitations. In determining where the cause of action arose, we are guided by Mack Trucks, Inc. v. Bendix-Westinghouse Auto. A. B. Co., 372 F.2d 18 (3d Cir. 1966). Mack Trucks held that a manufacturer’s action against a supplier for indemnity for a Florida judgment paid more than three years earlier was barred by the Florida statute of limitations. The Court there said: “We think the concept of when a cause of action arises and the concept of where a cause arises, both used to aid in the application of statutes of limitations, are in pari materia. In other words, the cause arises where as well as when the final significant event that is essential to a suable claim occurs.” In the present case, the “final significant event” occurred in Illinois, whether this event is the construction of the roof or the occurrence or appearance of the damage to the roof. The same result is reached if we apply the approach to this problem espoused by Judge Freedman in his dissent in Mack Trucks. He suggested that “when” a cause of action arises should be determined by applying the general choice of law principles as found, for example, in Griffith v. United Airlines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). Griffith rejected the old “lex loci delecti” rule in favor of what might be called a “center of gravity” or “grouping of contacts” test under which the law of the jurisdiction having the greater interest in the outcome is to be applied. Plaintiff argues, however, that even if Illinois law applies and the cause of action arose in Illinois, Pennsylvania law still applies to determine when the cause of action arose. At first blush this argument appears to be completely without merit. The Pennsylvania Borrowing Statute, 12 P.S. § 39, requires the court to determine whether the cause of action is barred by the laws of the jurisdiction under which it" }, { "docid": "14095595", "title": "", "text": "Court would apply the statute of limitations of its forum. The single statutory exception to this rule arises where the cause of action accrues in a jurisdiction other than Pennsylvania. In such a case, a Pennsylvania state court would be compelled to follow Pennsylvania’s “borrowing statute” which provides: The period of limitation applicable to a claim accruing outside this Commonwealth shall be either that provided or prescribed by the law of the place where the claim accrued or by the law of this Commonwealth, whichever first bars the claim. 42 Pa.Cons.Stat.Ann. 5521(b). The rule in Guaranty Trust obligates me to apply this choice-of-law principle. Lustgarten v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 528 F.Supp. 1125, 1127-28 (E.D.Pa.1981). In determining where plaintiff’s cause of action accrued, I am bound by the decision of the Court of Appeals for the Third Circuit in Mack Trucks, Inc. v. Bendix-Westinghouse Automotive Air Brake Co., 372 F.2d 18, 20-21 (3d Cir.1966), cert. denied, 387 U.S. 930, 87 S.Ct. 2053, 18 L.Ed.2d 992 (1967). In that case, the court ruled that a cause of action accrues for purposes of Pennsylvania’s borrowing statute, “where as well as when the final significant event that is essential to a suable claim occurs.” The court expressly rejected the argument that this question is governed by the conflict of laws doctrine enumerated in Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796 (1964). The court stated in Mack Trucks: Under the Pennsylvania borrowing statute a court is required to apply the statute of limitations of the state where the cause of action arose without regard to any contacts of any other state with the parties and their prior dealings. And certainly neither the Griffith case nor any other of which we know suggests that the residence of the parties or the place of their earlier dealings before the claim became suable have any relevance to determining when or where the cause arose. 372 F.2d at 21. When Pennsylvania’s borrowing statute is triggered, the Griffith significant interest analysis simply has no bearing on the question of where a plaintiff’s" }, { "docid": "22269666", "title": "", "text": "defend under the applicable policy exception . . . .” Id. at 462-63. Cf. Headen v. Pope & Talbot, Incorporated, 252 F.2d 739 (3d Cir. 1958) (Pennsylvania, the forum state, marital presumptions applied because they reflect social policy, not because they are procedural). B Since we are of the opinion that Pennsylvania would treat the presumption against suicide as substantive, we must next examine the Pennsylvania conflicts cases to determine which state’s presumption it would apply. The threshold task in this analysis is to determine whether the flexible conflicts methodology adopted by the Pennsylvania Supreme Court for tort actions in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), has been extended to contract actions. Although no Pennsylvania case clearly so holds, we think, as explained below, that the evolution of Pennsylvania conflicts decisions ineluctably leads to the conclusion that the Griffith approach will be employed in contract actions when the occasion arises. The Griffith decision brought Pennsylvania into the modern era of conflicts methodology. In this wrongful death action arising from an airplane crash in Colorado, the Pennsylvania Supreme Court rejected the Restatement I approach — requiring application of the law of the place of the wrong — to which it had earlier adhered and adopted a flexible methodology entailing analysis of the policies and contacts of the various concerned jurisdictions. This methodology combines the approaches of both Restatement II (contacts establishing significant relationships) and “interest analysis” (qualitative appraisal of the relevant States’ policies with respect to the controversy). It takes into account both the grouping of contacts with the various concerned jurisdictions and the interests and policies that may be validly asserted by each jurisdiction. Fairly read, Griffith, in drawing upon Restatement II’s analysis and “interest analysis” may be said to have combined both in the Griffith “flexible rule.” It is that rule which the Griffith court claims “permits analysis of the policies and interests underlying the particular issue before the court.” 203 A.2d at 805. See Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966). Under Pennsylvania law, it is firmly established" } ]

[ { "docid": "22992654", "title": "", "text": "Title 28, U.S.C.A., Section 2401. Every civil action . . . shall be barred unless the complaint is filed within six years after the right of action first accrues. The action of any person under legal disability . at the time the claim accrues may be commenced within 3 years after the disability ceases. 28 U.S.C.A. § 2401 (emphasis added). See also Erceg v. United States, 9th Cir. 1950, 179 F.2d 510, 12 Alaska 569; Neher v. United States, D. Minn.1967, 265 F.Supp. 210. As the emphasized language indicates, whether appellant is beyond the 6-year period depends upon a determination of when his cause of action first accrued. The government contends Coin and Currency holds that the taking of appellant’s property was unlawful and void at the time of such taking. The Court there did state that the conduct being penalized by such forfeiture proceedings was constitutionally immune from punishment and that such rule was to be completely retroactive. Under this analysis the government would have made an unconstitutional seizure in 1963, and ap pellant would have 6 years from that date in which to bring suit. See Steel Improvement & Forge Company v. United States, 1966, 355 F.2d 627, 174 Ct.Cl. 24, Carignan v. United States, D. Mass. 1969, 48 F.R.D. 323. We reject the government’s analysis. The period of limitations does not always begin on the date of the wrong. See Cooper v. United States, 7th Cir. 1971, 442 F.2d 908. No cause of action generally accrues until the plaintiff has a right to enforce his cause. Hodge v. Service Machine Company, 6th Cir. 1971, 438 F.2d 347; Mack Trucks, Incorporated v. Bendix-Westinghouse Automotive Air Brake Company, 3d Cir. 1966, 372 F.2d 18; Missouri Pacific Railroad Company v. Austin, 5th Cir. 1961, 292 F.2d 415; Versluis v. Town of Haskell, Oklahoma, 10th Cir. 1946, 154 F.2d 935; Cannon v. United States, 1956, 146 F.Supp. 827, 137 Ct.Cl. 104; Levine v. United States, 1956, 137 F.Supp. 955, 133 Ct.Cl. 774. The right to sue is hollow indeed until the right to succeed accompanies. Patently, appellant in the instant case" } ]

[ { "docid": "8403135", "title": "", "text": "50 and the six-year limitation period began to run on that day. In this case, however, the appellants insist their right of action accrued much later because of the “discovery rule.” Under the discovery rule, “a cause of action accrues when the injured party discovers — or in the exercise of due diligence should have discovered' — that it has been injured.” Nat’l Treasury Emps. Union v. FLRA, 392 F.3d 498, 501 (D.C.Cir.2004) (internal quotation omitted). The appellants contend that, under the rule, their right of action did not accrue until they discovered their procedural injuries, which did not occur until at least July 2000 when BASF raised its preemption defense in the Arkansas class action and thereby put them on notice that the Facet products had been registered under FIFRA. Thus, they maintain, their August 3, 2004 complaint in this action was timely filed. Appellants’ Br. 15; see also Pis.’ Combined Reply in Supp. of Their Mot. For Summ. J. & Resp. in Opp’n. to EPA’s Mot. for Summ. J. at 8-9, Hardin v. Johnson, C.A. No. 04-1299 (filed Oct. 27, 2008). The appellees respond that the discovery rule does not apply to an action subject to section 2401(a)’s limitation period, which must be construed strictly in favor of the government, or to a claim of procedural error, for which applicable precedent directs that the limitation period begins to run upon final agency action. We conclude, as did the district court, that, even assuming the discovery rule applies here— an issue we do not decide — the appellants’ action was filed out of time. Exercising “due diligence,” the appellants or their counsel should have discovered that EPA had registered the Facet products long before BASF raised its preemption defense in July 2000. It is undisputed that in 1995 the appellants filed suit against Facet 50 applicators in Arkansas state court. See BASF’s Mem. of Points & Auths. in Supp. of Mot. to Dismiss, or, in the Alternative, for Summ. J., & in Opp’n to Pis.’ Mot. for Summ. J. at 2 n. 1, Hardin v. Johnson, C.A. No. 04-1299" }, { "docid": "8227821", "title": "", "text": "Pis.’ Opp’n at 9.) ANALYSIS I. COUNT I: LEGAL MALPRACTICE Defendants claim that plaintiffs’ legal malpractice claims are barred by the statute of limitations. In the District of Columbia, the statute of limitations for a legal malpractice claim is three years. D.C.Code § 12-301(8) (2001). Given that the complaint was filed on May 15, 2008, the starting point for the statute of limitations period is May 15, 2005. However, under the discovery rule, the statute of limitations does not begin to run until the plaintiff knows, or by the exercise of reasonable diligence should know, of “(1) an injury, (2) its cause, and (3) some evidence of wrongdoing.” Wagner v. Sellinger, 847 A.2d 1151, 1154 (D.C.2004) (citing Bussineau v. President and Dirs. of Georgetown Coll., 518 A.2d 423, 435 (D.C.1986)). Defendants argue that the IRS Explanations of Items, which plaintiffs started receiving in June 2002, put them on notice of a potential injury regarding De May’s personal income tax that had been caused by defendants’ malpractice. (Defs.’ SJ Mem. at 17.) Because the Explanations of Items were received before May 15, 2005, defendants contend that the legal malpractice claim is time-barred. (Id. at 17-18.) Similarly, defendants contend that plaintiffs’ claims regarding De May’s gift tax liability are barred by the statute of limitations since he was on notice when he received the January 14, 2004 “Discussion Draft” regarding the IRS’s position that De May owed gift taxes of over $2.7 million. (Id. at 24; Defs.’ Exh. 17.) Plaintiffs do not contest defendants’ arguments about the discovery rule. (Pis.’ Opp’n at 9.) Instead, plaintiffs argue that their claim is timely under the continuous representation doctrine, which provides an exception to the discovery rule. (Id. at 9-10.) The continuous representation rule states: when the injury to the client may have occurred during the period the attorney was retained, the malpractice cause of action does not accrue until the attorney’s representation concerning the particular matter in issue is terminated. R.D.H. Communications v. Winston, 700 A.2d 766, 768 (D.C.1997) (quoting Weisberg v. Williams, Connolly & Califano, 390 A.2d 992, 995 (D.C.1978)). According to plaintiffs," }, { "docid": "5940509", "title": "", "text": "during his entire relationship with defendants. See Meridien Int’l Bank v. Liberia, 23 F.Supp.2d 439, 446 (S.D.N.Y.1998) (plaintiff benefits from equitable tolling where \"some action on the [defendant’s] part made it such that the [plaintiff was] unaware that the cause of action existed.”). Plaintiff is mistaken that he can benefit from equitable tolling on his fraud claim. \"The Statute of Limitations for actual fraud is six years from the commission of the fraud or two years from the time of discovery.” Mechanical Plastics Corp. v. Rawlplug Co., 119 A.D.2d 641, 501 N.Y.S.2d 85, 88 (N.Y.App.Div.1986) (citing N.Y. C.P.L.R. §§ 213(8), 203(f)); Dull v. South New Berlin Valley Supply, Inc., 80 A.D.2d 946, 438 N.Y.S.2d 25, 26 (N.Y.App.Div.1981); Glynwill Invs., N.V. v. Prudential Sec., Inc., No. 92 Civ. 9267(CSH), 1995 U.S. Dist. LEXIS 8262, 1995 WL 362500, at *4 (S.D.N.Y. June 16, 2005) (“applicability of [the equitable tolling] doctrine cannot extend the limitations period beyond the two years prescribed by the statute” (citing Riis v. Mfrs. Hanover Trust Co., 632 F.Supp. 1098, 1105 (S.D.N.Y.1986))). Plaintiff concedes that he had knowledge of the facts giving rise to his fraud claims by April 2000, well more than two years before the filing of this complaint. (Pl.’s Opp’n Br. 5-10.) Therefore, the doctrine of equitable tolling does not allow him in this case to assert claims more than six years past the date of the fraud. However, the Court declines to decide whether it should treat the alleged fraudulent acts as a single continuous fraudulent scheme, in which case the limitations period for the entire scheme (from 1995 to 2000) would only begin to accrue on the date of the final fraudulently concealed conveyance. The parties have not properly briefed this question. . The New York Court of Appeals has declined to extend the limitations period for breach of contract claims where plaintiff was ignorant of the injury. See Ely-Cruikshank Co., 599 N.Y.S.2d 501, 615 N.E.2d at 988 (refusing to extend \"highly exceptional discovery notion to general breach of contract actions”). Thus, plaintiff may only recover for breaches occurring within six years of the" }, { "docid": "21412937", "title": "", "text": "for the reasons discussed in Section I of the Discussion. The Court denies the USCIT R. 12(b)(5) motions of Customs, the ITC, and Timken for the reasons discussed in Section II. I. USCIT R 12(b) (1) Motions The jurisdictional challenges present two questions: (1) when did the causes of action accrue, and (2) is Koyo’s action premature? A. Accrual of Causes of Action Actions brought pursuant to 28 U.S.C. § 1581(i) are subject to a two-year statute of limitations. 28 U.S.C. § 2636(i) (2000); Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973 (Fed.Cir.1994); Stone Container Corp. v. United States, 229 F.3d 1345, 1348 (Fed.Cir.2000). “The basic rule is that the clock of a statute of limitations begins to run from the date the plaintiffs cause of action ‘accrues’; that is the term typically found in the statutes. The clock stops on the date the plaintiff files his complaint in a court of proper jurisdiction.” Hair v. United States, 350 F.3d 1253, 1260 (Fed.Cir.2003) (internal citation omitted). Thus, the Court must decide which of Plaintiffs’ claims, if any, accrued within the two-year periods ending with the filing of the respective complaints. Koyo argues that statutes of limitations do not apply to “facial free speech and equal protection claims.” (PI. Koyo Corp. of U.S.A.’s Opp’n to Defs.’ & Defs.-Intervenor’s Mot. to Dismiss (“Koyo’s Opp’n”) 9.) The Ninth and Fourth Circuit Courts of Appeals have questioned in dicta whether statutes of limitations can bar facial constitutional challenges on First Amendment grounds. See Maldonado v. Harris, 370 F.3d 945, 955 n. 6 (9th Cir. 2004) (expressing “serious doubt that a facial challenge under the First Amendment can ever be barred by a statute of limitations”); Nat’l Advertising Co. v. City of Raleigh, 947 F.2d 1158, 1168 (4th Cir. 1991) (“it is doubtful that an ordinance facially offensive to the First Amendment can be insulated from challenge by a statutory limitations period”). Nevertheless, we recognize that constitutional claims are generally subject to statutes of limitations. See, e.g., Hair, 350 F.3d at 1259-60 (applying six-year statute of limitations to bar the plaintiffs’ takings claim);" }, { "docid": "5758370", "title": "", "text": "of the defendants wears two hats ... [as] both a lender and settlement service provider.” (Pis.’ Opp’n at 23.) Aside from the fact that they cite no authority for this proposition, there are also no allegations in the complaint to this effect. In short, plaintiffs’ Section 8 claims under RE SPA (12 U.S.C. § 2607) fail as a matter of law. E. The Bloom Plaintiffs’ RESPA Claims are Time-Barred 1. Plaintiffs’ Claims Accrued in 1987 Defendants’ final contention is that the Bloom plaintiffs’ RESPA claims are time-barred. (See Defs.’ Mot. at 20.) Private RESPA claims carry a one-year statute of limitations. 12 U.S.C. § 2614. Defendants contend that the alleged non-disclosure of the Demand and Reconveyance Fees took place over six years ago in 1987, (First Am.Compl. ¶ 27), and hence, any RESPA claims plaintiffs may have are now untimely. Plaintiffs respond that the Bloom plaintiffs’ claims did not accrue until October 1993, when they paid fees which were not disclosed on the HUD-1 form. (Pis.’ Opp’n at 24.) “Under federal law a cause of action accrues when the plaintiff is aware of the wrong and can successfully bring a cause of action.” Acri v. International Ass’n of Machinists & Aerospace Workers, 781 F.2d 1393, 1396 (9th Cir.), cert. denied, 479 U.S. 816, 107 S.Ct. 73, 93 L.Ed.2d 29 (1986). “[K]nowledge of injury is essential for a cause of action to accrue.” Shiny Rock Mining Corp. v. United States, 906 F.2d 1362, 1364 (9th Cir.1990). Actual knowledge is not required, however, as constructive knowledge of the injury will suffice. Id. at 1364-65. Here, the Bloom plaintiffs’ claim of ignorance is without merit. The Mortgage Loan Rider executed by each Bloom plaintiff in November 1987 clearly states that the “The Trustee named in the Security instrument ... may charge a reasonable reconveyance fee_” (Philmon Decl.Ex. B at ¶ 5.) Similarly, the Deed of Trust executed by these same parties in November 1987 states that the “Lender may collect a [demand] fee ... for furnishing a statement of obligation as provided by Section 2943 of the Civil Code of California.” (Id., Ex." }, { "docid": "7853609", "title": "", "text": "insurer to simply bury a denial of coverage and wait for the statute of limitations to run” in direct contravention of ERISA’s requirement that the insurer notify a claimant of any denial of benefits. In Mitchell v. Shearson Lehman Bros., No. 97 Civ 0526, 1997 WL 277381 (S.D.N.Y.1997), the court followed Price in refusing to accept plan-prescribed accrual dates. The question of when a cause of action for an ERISA violation accrues is a matter of federal law, and a court need not — and should not — defer to a policy provision that is inconsistent with federal law. See also Lowry v. Aetna Life Ins. Co., 1996 WL 529211 (S.D.N.Y.1996) (rejecting a plan-prescribed accrual date because delays in an internal appeal ought not shorten the limitations period since ERISA was designed to remove “procedural obstacles” which have prevented participants from recovering benefits); Patterson-Priori (determining the accrual date under federal law despite a policy provision stating suit must be filed within three years of the time proof of claim is required). No suit for benefits can be maintained as of the date that proof of loss must be submitted because no denial has yet occurred. Accordingly, it seems clear that this is not an appropriate accrual date. Cf. Williams v. UNUM Life Ins. Co. of Am., 113 F.3d 1108, 1111-12 (9th Cir.1997) (explaining that accrual provision measuring the limitations period from the time proof of loss was required is only applicable if claimant fails to provide such proof; if proof is submitted, cause of action does not accrue until benefits are denied); but see Ingram v. Travelers Ins. Co., 897 F.Supp. 1160 (N.D.Ind.1995) (proof of loss is an acceptable accrual date because the exhaustion requirement is merely discretionary), aff'd, 78 F.3d 586 (7th Cir.1996). Moreover, despite John Hancock’s heavy reliance on the Chilcote and Doe cases, it is not at all clear that the reasoning of those cases would justify granting summary judgment for the defendant. The Doe court indicated that, where a plaintiff seeks to recover for a period of continuing disability, plaintiff may sue to recover for any" }, { "docid": "2709962", "title": "", "text": "City to contribute provided the Plaintiffs with a cause of action. Thus, Plaintiffs should be permitted to pursue only those claims accruing within the one-year period preceding the notice of claim on November 30, 1990. Likewise, Provo argues that Utah’s two-year limitations period bars all of Plaintiffs’ claims under 42 U.S.C. § 1983 arising prior to two years before this action was filed. See Utah Code Ann. § 78-12-28(3) (1992). In response, Plaintiffs contend that, because they were unaware that other Provo employees received employer contributions on overtime pay, they could not have known that Provo had violated the Ordinance. Plaintiffs argue that they were unaware of the disparity in Provo City’s contributions for overtime until December of 1989. See Pi’s Mem. in Opp’n to Defs Mot. for Summ. J., Exhibit 2 (Aff. of Mark West). Under Plaintiffs’ argument, Plaintiffs’ causes of action would not accrue until December of 1989. It is clear, however, that “mere ignorance of the existence of a cause of action does not prevent the running of the limitations period.” Canadian Indem. Co. v. K & T, Inc., 745 F.Supp. 661, 664 (D.Utah 1990) (citing Becton Dickinson, 668 P.2d at 1257). To temper the application of this rule, the Utah Supreme Court has recognized several exceptions to the general principle that a cause of action accrues upon the happening of the last event necessary to complete the cause of action. Id. The court has found several particular exceptions. In some areas of the law, the discovery rule is incorporated into the statute whereby the statute does not begin to run until the facts forming the basis for the cause of action are discovered. In other circumstances, concealment or misleading by a party prevents that party from relying on the statute of limitations. Finally, where there are exceptional circumstances that would make application of the general rule irrational or unjust, this Court has adopted the discovery rule by judicial action. Id. (citing Becton Dickinson, 668 P.2d at 1257). From the facts presented in this case, none of these exceptions apply to Plaintiffs’ claims. First, the applicable statutes" }, { "docid": "8403134", "title": "", "text": "that the applicable statute of limitations is 28 U.S.C. § 2401(a), which provides: Except as provided by the Contract Disputes Act of 1978, every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. The action of any person under legal disability or beyond the seas at the time the claim accrues may be commenced within three years after the disability ceases. Under this statute, a party challenging final agency action must commence his suit within six years after the right of action accrues and the “right of action first accrues on the date of the final agency action.” Harris v. FAA, 353 F.3d 1006, 1009-10 (D.C.Cir.2004); see also Fetter v. Kempthorne, 473 F.3d 1255, 1259 (D.C.Cir.2007) (“Actions usually accrue ‘when [they] come[ ] into existence.’ ” (quoting United States v. Lindsay, 346 U.S. 568, 569, 74 S.Ct. 287, 98 L.Ed. 300 (1954))). Thus, ordinarily, the appellants’ right of action accrued on October 13, 1992 when EPA conditionally registered Facet 50 and the six-year limitation period began to run on that day. In this case, however, the appellants insist their right of action accrued much later because of the “discovery rule.” Under the discovery rule, “a cause of action accrues when the injured party discovers — or in the exercise of due diligence should have discovered' — that it has been injured.” Nat’l Treasury Emps. Union v. FLRA, 392 F.3d 498, 501 (D.C.Cir.2004) (internal quotation omitted). The appellants contend that, under the rule, their right of action did not accrue until they discovered their procedural injuries, which did not occur until at least July 2000 when BASF raised its preemption defense in the Arkansas class action and thereby put them on notice that the Facet products had been registered under FIFRA. Thus, they maintain, their August 3, 2004 complaint in this action was timely filed. Appellants’ Br. 15; see also Pis.’ Combined Reply in Supp. of Their Mot. For Summ. J. & Resp. in Opp’n. to EPA’s Mot. for Summ. J. at 8-9, Hardin v." }, { "docid": "9788281", "title": "", "text": "begin running back in 1997. In response, MetLife contends that the limitations period began to run when MetLife stopped making monthly payments to Witt because, at that point, Witt knew or should have known that his claim had been denied. In the context of claims for health benefits under ERISA, óur prior decisions suggest that the statute of limitations generally begins to run when a cause of action accrues and the plaintiff can file suit. See, e.g., Harrison, 183 F.3d at 1241 n. 8 (“It is undisputed that if a one-year statute of limitations is applied, Harrison’s claims are time barred because it is clear from the face of her complaint that she did not file her claims within a year from the time her cause of action accrued.”); see also Heimeshoff v. Hartford Life & Accident Ins. Co., 571 U.S. -, -, 134 S.Ct. 604, 610, 187 L.Ed.2d 529 (2013) (“As a general matter, a statute of limitations begins to run when the cause of action accrues — that is, when the plaintiff can file suit and obtain relief.” (quotations omitted)). The more difficult issue here is: When did Witt’s ERISA cause of action accrue? An ERISA cause of action generally “does not accrue until an application [for benefits] is denied.” Paris v. Profit Sharing Plan for Emps. of Howard B. Wolf, Inc., 637 F.2d 357, 361 (5th Cir.1981) ; see also Heimeshoff, 571 U.S. at -, 134 S.Ct. at 610 (“A participant’s cause of action under ERISA ... does not accrue until the plan issues a final denial.”). But what happens when the defendant says it issued a formal denial letter and the plaintiff says he never received the letter, but it is undisputed the defendant terminated benefits and did not pay the plaintiff any benefits for 12 years? This Court has not addressed this situation before. This Court has suggested, however, that an ERISA cause of action may accrue when a claimant receives an underpayment on his benefits claim. See In re Managed Care, 756 F.3d 1222, 1238 (11th Cir.2014) (stating that claimants’ “ERISA claims based on" }, { "docid": "2709961", "title": "", "text": "a governmental entity. This court will address each of these issues separately. I. Statutes of Limitation A. Application of the “Discovery Rule” Before considering the relevant limitation periods’ effect on Plaintiffs’ claims, this court must address Plaintiffs’ assertion that the “discovery rule” applies to their claims. Pursuant to the Utah Governmental Immunity Act, Plaintiffs filed a notice of claim with Provo City on November 30,1990. See Utah Code Ann. § 63-30-13 (1991). Provo City rejected Plaintiffs’ claim in compliance with Utah Code section 63-30-14. Subsequently, Plaintiffs properly filed this action on May 29, 1991, within one year after Provo City rejected the claim. See Utah Code Ann. § 78-12-30 (1992). Section 78-12-30 provides a one-year limitations period for Plaintiffs’ state law claim for negligence. Id. Under Utah law, a cause of action accrues upon the happening of the last event necessary to complete the cause of action. Becton Dickinson & Co. v. Reese, 668 P.2d 1254, 1257 (Utah 1983). Provo City contends that Plaintiffs’ claims accrued on a bi-monthly basis because each failure of Provo City to contribute provided the Plaintiffs with a cause of action. Thus, Plaintiffs should be permitted to pursue only those claims accruing within the one-year period preceding the notice of claim on November 30, 1990. Likewise, Provo argues that Utah’s two-year limitations period bars all of Plaintiffs’ claims under 42 U.S.C. § 1983 arising prior to two years before this action was filed. See Utah Code Ann. § 78-12-28(3) (1992). In response, Plaintiffs contend that, because they were unaware that other Provo employees received employer contributions on overtime pay, they could not have known that Provo had violated the Ordinance. Plaintiffs argue that they were unaware of the disparity in Provo City’s contributions for overtime until December of 1989. See Pi’s Mem. in Opp’n to Defs Mot. for Summ. J., Exhibit 2 (Aff. of Mark West). Under Plaintiffs’ argument, Plaintiffs’ causes of action would not accrue until December of 1989. It is clear, however, that “mere ignorance of the existence of a cause of action does not prevent the running of the limitations period.” Canadian" }, { "docid": "12358617", "title": "", "text": "as accrued causes of action. Causes of action are separate assets which must be formally listed. Vreugdenhill, 950 F.2d at 526. Simply listing the underlying asset out of which the cause of action arises is not sufficient. See id. at 525 (stating that debtor who scheduled parts as an asset failed properly to list a cause of action for failure to accept those parts). Cusano contends that his royalty claims for pre-petition compositions involved an open book account, see Cal. Code Civ. Proc. § 337a, and thus no legal claim accrued until the entry of the last item, see § 337, well after his bankruptcy. We reject this contention. It is true that, generally, a debtor has no duty to schedule a cause of action that did not accrue prior to bankruptcy. Brassfield v. Jack McLendon Furniture, Inc., 953 F.Supp. 1424, 1433 (M.D.Ala.1996); Erickson v. Baxter Healthcare, 94 F.Supp.2d 907, 912-13 (N.D.Ill.2000). To determine when a cause of action accrues, we look to state law. In re Folks, 211 B.R. 378, 384 (B.A.P. 9th Cir.1997). It is important, however, to distinguish principles of accrual from principles of discovery and tolling, which may cause the statute of limitations to begin to run after accrual has occurred for purposes of ownership in a bankruptcy proceeding. In re Swift, 129 F.3d 792, 796, 798 (5th Cir.1997). We conclude that Cusano’s open book account claim accrued for bankruptcy purposes to the extent that sums were owed on that account at the time he filed his petition. An action could have been brought for those sums at that time. Our conclusion is not affected by the fact that limitations on such an action had not yet begun to run. An action for open book account in California must commence within four years of the entry of the last item on the account. See CaLCode Civ. Proc. § 337. Cusano’s alleged open book ac count with Defendants has been open for years, and could continue to remain open for years to come. Cusano cannot avoid disclosing on his bankruptcy schedules a claim for an unpaid royalties" }, { "docid": "1480587", "title": "", "text": "cause of action under ERISA § 502(a)(3) to recalculate benefits in accordance with the requirements of ERISA, so courts must look to the most analogous state statute of limitations, which this Court concludes is the six-year limitation on contracts. 2. Accrual Much more significant than the appropriate statute' of limitations is the point when the statute of limitations began to run, a question of federal common law. Salcedo, 38 F.Supp.2d at 42; see also Carey v. Int'l Bhd. of Elec. Workers Local 368 Pension Plan, 201 F.3d 44, 47-48 (2d Cir.1999); Union Pac. R.R. Co. v. Beckham, 138 F.3d 325, 330-31 (8th Cir.1998); cf. Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 353 (1st Cir.1992) (section 1983 claim). See generally 19 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procediere §'4519, at 622 & n. 74 (2d ed. 1996 & Supp.2000) (collecting cases). In general, a statute of limitations is measured from the date the cause of action “accrued,” and thus this discussion will use the word “accrued” to mean nothing more than when the statute of limitations began to run. The word “accrued” might also refer to when a plaintiff first had a legal right to bring a claim, but this discussion will use the word “arose” for that purpose, even though the word “arose” could be used to refer to when the wrong occurred. Cf. Heinrich ex rel. Heinrich v. Sweet, 118 F.Supp.2d 73, 79-81 (D.Mass.2000) (distinguishing “arose” from “accrued”). In this case, the wrong occurred in 1976 when the Plan adopted the illegal terms; a cause of action arose with respect to each class member as soon as he joined the Plan (or in 1976, if he joined the Plan before then), at which time he could have forced the Plan to conform with ERISA; and each class member actually was “injured,” for lack of a better word, when he received a lump sum distribution that was less than that required by law. Given the dates when the wrong occurred, when the causes of action arose, and when the class members actually were injured," }, { "docid": "23330897", "title": "", "text": "in which the § 1983 claim arises. Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516, 519 (6th Cir.1997). The parties agree that a one-year limitation period, borrowed from Tennessee law, Tenn.Code Ann. § 28-3-104(a)(3), applies in this case. Plaintiff contends his cause of action did not accrue until the juvenile court proceedings concluded on October 22, 2004. He argues that his complaint, filed on October 24, 2005, was timely filed, because the date on which the one-year period would have expired, October 22, 2005, fell on a Saturday and the first business day thereafter was October 24, 2005. The date on which the statute of limitations begins to run in a § 1983 action is a question of federal law. Kuhnle Bros., 103 F.3d at 520. Ordinarily, the limitation period starts to run when the plaintiff knows or has reason to know of the injury which is the basis of his action. Id. at 520. “[I]n determining when the cause of action accrues in section 1983 actions, we have looked to what event should have alerted the typical lay person to protect his or her rights.” Id. (quoting Dixon v. Anderson, 928 F.2d 212, 215 (6th Cir.1991)). See also, Bell v. Ohio State University, 351 F.3d 240, 247 (6th Cir.2003); Hughes v. Vanderbilt University, 215 F.3d 543, 548 (6th Cir.2000). The precipitating event in this action, plaintiff concedes, was defendants’ initial removal of his daughters from his custody on November 18, 2003. At the time of the initial removal, plaintiff knew of the injury which is the basis of his claims. Yet, plaintiff argues that defendants’ continuing wrongful conduct, from the date of the initial removal through the completion of the 90-day trial placement period on October 22, 2004, constituted a continuing violation, extending accrual of his cause of action. The test for determining whether a continuing violation exists is summarized as follows: First, the defendant’s wrongful conduct must continue after the precipitating event that began the pattern.... Second, injury to the plaintiff must continue to accrue after that event. Finally, further injury to the plaintiff[ ] must" }, { "docid": "11089793", "title": "", "text": "part of property that is the subject of the action is situated .... ”). The Court does not address the applicability of Section 1391(b)(2), however, because Plaintiff concedes that the transactional venue standard is not met if the transaction or occurrence requirement of Rule 20(a)(2)(A) is not met. (PL’s Opp’n 4 n. 1 (\"[S]atisfaction of the Rule 20 standard necessarily dictates satisfaction of the transactional venue standard[;][P]laintiff does not ... set forth a separate transactional venue analysis ....”).) The Court notes, however, that from the allegations in Plaintiff’s Second Amended Complaint, Plaintiff likely could not demonstrate that “significant events or omissions material to [his] claim [against Tweed] ... occurred in [this] district,” Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 357 (2d Cir.2005), as required to establish venue under Section 1391(b)(2). . Plaintiffs Second Amended Complaint alleges that Tweed’s misconduct occurred \"[tjhroughout the ... years [Plaintiff] was incarcerated at Elmira Correctional Facility, and on multiple occasions on or subsequent to September 18, 2004.” (SAC ¶ 161.) Plaintiff was released from prison on September 20, 2006. {Id. ¶ 167.) Therefore, all of his claims against Tweed must have accrued between the time he was first incarcerated at Elmira Correctional Facility (which was, the Court can infer, by or before September 18, 2004) and September 20, 2006 (when he was released). See Brown v. Capoziello, No. 03-CV-8712, 2008 WL 4201636, at *4 (S.D.N.Y. Sept. 12, 2008) (explaining that under federal law, a claim under Section 1983 \"accrues 'when the plaintiff knows or has reason to know of the injury which is the basis of his action' ” (quoting Pearl, 296 F.3d at 80)); Connolly v. McCall, 254 F.3d 36, 41 (2d Cir. 2001) (\" '[A Section 1983] claim accrues when the plaintiff knows or has reason to know of the harm.' ” (quoting Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994))). If the case is dismissed and re-filed, however, the three-year statute of limitations on some or all of Plaintiff's claims against Tweed may be expired, depending upon when the last instance of Tweed’s alleged misconduct occurred. Thus, at a" }, { "docid": "15243625", "title": "", "text": "that he would have been promoted when first eligible, in April 1990. Pl.’s Opp’n at 1. When given the opportunity to clarify his allegations during the hearing on the government’s motion to dismiss, Mr. Chisolm vaguely asserted that the promotion would have occurred between 1989 and 1995, and ultimately settled on the year 1993. Tr. at 7-8, 10. But in any event, precision on this point is not necessary, both because the merits of the claims are not before the court at this time and because the Servicemembers Civil Relief Act, 50 U.S.C. app. §§ 501-527, tolled the statute of limitations for Mr. Chisolm’s claims until his discharge. See 50 U.S.C. app. § 526(a) (Supp. V 2005); Lowe, 79 Fed.Cl. at 224-25. Thus, no matter when the NCOER allegedly blocked his promotion during his time of active service, Mr. Chisolm’s time in which to file a lawsuit for back pay did not start running until March 31, 1996, which was indisputably the date he was honorably discharged. See Att. 1 to Def.’s Mot. to Dismiss; Tr. at 4, 11, 16, 30. The problem for Mr. Chisolm is that he did not file his lawsuit within six years of April 1, 1996. His complaint was filed in this court on July 6, 2007, more than five years too late. Plaintiff alleges that his cause of action did not accrue until January 18, 2006, when the ABCMR’s director informed him (for at least the third time) that the board would not consider the matter further. See Compl. ¶ 4; Tab F to Pl.’s Opp’n at 2-3. He argues that this final action by the board was a prerequisite to the filing of his lawsuit. Pl.’s Opp’n at 8-9. But Mr. Chisolm misunderstands the nature of military back pay actions in our court. Activity before a military correction board is optional, not mandatory, and is not required to ripen a claim nor works to postpone the running of the limitations period. Martinez, 333 F.3d at 1306-10. Plaintiffs claims accrued when the Army decided not to promote him, not when the ABCMR decided to" }, { "docid": "20154156", "title": "", "text": "Action. See generally Pis.’ Opp’n to S. Lundebye Mot. to Dismiss. Nonetheless, they argue that res judicata does not apply “because Plaintiffs’ previous case partaking of largely similar issues, never reached a point of consideration of its merits because this Court Order with which Plaintiffs were unable to comply represented to Plaintiffs an impossible task ... and a dismissal due to impossibility of compliance could not conceivably be con sidered a dismissal on the merits.” Id. at 6-7. The plaintiffs maintain that “an attempt to condense their 160+ page Complaint down to only ten pages was beyond anyone’s ability to do, and certainly beyond Plaintiffs’.” Id. at 8. According to the plaintiffs, “a litigant’s impossibility of performance of a court order cannot logically be ‘a judgment on the merits.’ ” Id. With the exception of defendants Furse and Covington, every defendant named in this case was also named as a defendant in the 04-350 Action. Compare Compl., Ficken v. Golden, Civ. Action No. 04-0350 (D.D.C. Mar. 4, 2004) with Compl. Furthermore, based on the court’s review of the complaint underlying this case and the complaint filed in the 04-350 Action, it is abundantly clear that the two actions arise out of exactly the same events and concern nearly identical allegations and causes of action. Compare Compl., Ficken v. Golden, Civ. Action No. 04-0350 (D.D.C. Mar. 4, 2004) ivith Compl. Indeed, the plaintiffs expressly acknowledge as much, noting that “the present cause of action at issue here largely duplicates (with substantial editing, additions of dates which this Court wanted, and additional claims being added) Plaintiffs’ previous claim in this Court which was denominated CV04-350.” Pl.’s Mot. to Remand at 3. The plaintiffs do not dispute that the March 24, 2005 and October 11, 2005 orders dismissing many of the plaintiffs’ claims constituted resolutions on the merits. See generally Pis.’ Opp’n to S. Lundebye Mot. to Dismiss. It is equally clear that the December 27, 2007 order, dismissing the remainder of the plaintiffs’ claims based on them failure comply with the court order directing them to provide a more definite statement, also" }, { "docid": "9696472", "title": "", "text": "claims which are fraud-based, such as § 10(b) and Rule 10b-5 claims, but not to § 11 or § 12 claims which do not sound in fraud and therefore are governed by the original one year-three year regime. See In re WorldCom, Inc. Sec. Litig., No.02 Civ. 3288, 03 Civ. 9499, 2004 WL 1435356, *4 (S.D.N.Y.2004).” . The plaintiffs’ argument appears to rest in part on the mistaken understanding that the one year-three year statute of limitations period means that claims can be brought within one year of the discovered wrongdoing, regardless of when the underlying wrongful conduct occurred. (See Pis.’ Mem. in Opp’n to the Motions of the Royal Ahold Defs. at 27.) (\"the claims at issue here arose following the February 24, 2003 announcement and since the first action was filed on or about February 26, 2003 there is no possibility that such claims were time barred when filed even if the old statute of limitations applied.”). The Supreme Court ruled in Lampf, however, that the three year period of repose served as an absolute limit to when a claim could be brought after the alleged wrongdoing occurred. 501 U.S. at 363-64, 111 S.Ct. 2773. See also Brumbaugh v. Princeton Partners, 985 F.2d 157, 161 (4th Cir.1993) (citing Lampf for the proposition that claims brought pursuant to § 10b and Rule 10b-5 must be commenced \"within three years after such violation”); In re WorldCom, 2004 WL 1435356 at *6 (noting that the \"one-year/three-year regime.. made any claim brought more than three years after the occurrence of the alleged violation untimely”); L-3 Communications Corp. v. Clevenger, No. 03-CV-3932, 2004 WL 1941248, *3 (E.D.Pa.2004) (\"Under the Lampf statute of limitations, plaintiff was required to file by the earlier of one year after discovery or three years after the fraud.”); In re Heritage Bond Litig., 289 F.Supp.2d 1132, 1149 (C.D.Cal. 2003) (\"The three-year limit is a period of repose which serves as an outside limit and is not subject to equitable tolling.”). Therefore, any of the plaintiffs’ claims that are based on conduct occurring three years prior to the effective date" }, { "docid": "23330896", "title": "", "text": "716 (6th Cir.2005). The reviewing court must construe the complaint in a light most favorable to plaintiff, accept all well-pled factual allegations as true, and determine whether plaintiff undoubtedly can prove no set of facts in support of those allegations that would entitle him to relief. Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir.2005). Yet, to survive a motion to dismiss, the complaint must contain either direct or inferential allegations respecting all material elements to sustain a recovery under some viable legal theory. Mezibov, 411 F.3d at 716. Conclusory allegations or legal conclusions masquerading as factual allegations will not suffice. Id. See also, Bell Atlantic Corp. v. Twombly, — U.S. -, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (explaining that complaint must contain something more than a statement of facts that merely creates speculation or suspicion of a legally cognizable cause of action). B. Continuing Violation The statute of limitations applicable to a § 1983 action is the state statute of limitations applicable to personal injury actions under the law of the state in which the § 1983 claim arises. Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516, 519 (6th Cir.1997). The parties agree that a one-year limitation period, borrowed from Tennessee law, Tenn.Code Ann. § 28-3-104(a)(3), applies in this case. Plaintiff contends his cause of action did not accrue until the juvenile court proceedings concluded on October 22, 2004. He argues that his complaint, filed on October 24, 2005, was timely filed, because the date on which the one-year period would have expired, October 22, 2005, fell on a Saturday and the first business day thereafter was October 24, 2005. The date on which the statute of limitations begins to run in a § 1983 action is a question of federal law. Kuhnle Bros., 103 F.3d at 520. Ordinarily, the limitation period starts to run when the plaintiff knows or has reason to know of the injury which is the basis of his action. Id. at 520. “[I]n determining when the cause of action accrues in section 1983 actions, we have looked to what event" }, { "docid": "3203647", "title": "", "text": "of the date the cause of action accrued, or within two years of the time the plaintiff discovered or could have discovered the fraud with reasonable diligence, whichever is greater. N.Y. C.P.L.R. § 213(8); see Carbon Capital Mgmt., LLC v. Am. Express Co., 88 A.D.3d 933, 939, 932 N.Y.S.2d 488 (2d Dep’t 2011). “A cause of action to recover for damages for fraud cannot accrue until every element of the claim, including injury, can truthfully be alleged.” Carbon Capital Mgmt., 88 A.D.3d at 939, 932 N.Y.S.2d 488 (alterations omitted) (quoting N.Y.C. Transit Auth. v. Morris J. Eisen, PC, 276 A.D.2d 78, 85, 715 N.Y.S.2d 232 (1st Dep’t 2000)). KM’s causes of action based on fraudulent misrepresentations or omissions in the offering documents accrued on the dates it invested in Ascot Fund — October 1, 2002 and January 1, 2004. see id.; accord Malone v. Bayerische Hypo-Und Vereins Bank, No. 08 Civ. 7277(PGG), 2010 WL 391826, at *5 (S.D.N.Y. Feb. 4, 2010), aff'd, 425 Fed.Appx. 43 (2d Cir.2011) (summary order); AIG Managed Mkt. Neutral Fund v. Askin Capital Mgmt., LP, 197 F.R.D. 104, 108 n. 2 (S.D.N.Y.2000); Cuccolo v. Lipsky, Goodkin & Co., 826 F.Supp. 763, 770 (S.D.N.Y.1993); Gould v. Berk & Michaels, P.C., No. 89 Civ. 5036(SWK), 1991 WL 152613, at *5 (S.D.N.Y. July 29, 1991). Under the six-year rule, these claims are untimely, because KM’s Complaint was filed on March 7, 2013. They are also untimely under the two-year discovery rule, because Madoffs fraud, Ascot Fund’s exposure to Madoff, and the alleged misrepresentations were revealed in December 2008, more than four years before the Complaint was filed. Thus, absent an applicable toll, KM’s fraud claims based on misrepresentations in the offering documents are untimely. KM concedes as much. See PI. Br. 20 (“With American Pipe tolling, KM has filed these claims in timely fashion.”). 2. American Pipe Tolling KM argues that the relevant limitations period was tolled, under the American Pipe doctrine, by the putative federal class action in In re Merkin, which, as noted, was filed on December 16, 2008 and is currently pending in this District. See" }, { "docid": "12927380", "title": "", "text": "statute of limitations on potential plaintiffs’ claims be tolled”). Signed consents do not relate back to the original filing date of the complaint. See Davis v. Lenox Hill Hosp., 03 Civ. 3746, 2004 WL 1926086, at *8, 2004 U.S. Dist. LEXIS 17283, at *29-30 (S.D.N.Y. Sept. 1, 2004). Courts have held that for the purposes of establishing the statute of limitations under the FLSA, a new cause of action accrues with each payday following an allegedly unlawful pay period. See Acosta v. Yale Club, 94 Civ. 0888, 1995 WL 600873, at *3, 1995 U.S. Dist. LEXIS 14881, at *8 (S.D.N.Y. Oct. 12, 1995) (“In FLSA cases involving overtime pay, a new cause of action accrues for purposes of § 255(a) at each regular payday immediately following the workweek during which services were rendered and for which overtime compensation is claimed.”); see also Franklin v. New York Law Publishing Co., 95 Civ. 1024, 1995 U.S. Dist. LEXIS 9566, at *3, 1995 WL 408390, at *1 (S.D.N.Y. July 11, 1995). 1. Individual Plaintiff Plaintiff Lee has not yet filed with the Court his written consent, opting into an FLSA collective action. Defendants contend that Plaintiff is now time-barred from doing so. (Defs.’ Mem. Law at 7.) They argue that because Plaintiff last worked for Defendants in November of 1999, and he has not yet filed his opt-in consent, his collective action claim is barred by the statute of limitations. (Defs.’ Mem. Law at 7.) Plaintiff argues that the procedural posture of his Complaint has always been to proceed as a collective action. (Pl.’s Reply Mem. Law at 1; Am. Compl. 111.) The implication of this argument is that Plaintiff has satisfied the policy rationale for the written consent requirement, which is to establish that plaintiffs are certain and actual participants so that defendants may know the parties. Plaintiff argues that his motion for collective action certification was timely made three-and-a-half months after the Court denied Defendants’ motion for summary judgment. (Pi’s Mem. at 13.) Plaintiff argues that because the Court postponed class action motions until it issued an Opinion on Defendants’ motion" } ]

[ { "docid": "22708071", "title": "", "text": "Per Curiam. Petitioner, who was sentenced to death while his co-defendant was given life, appealed to the Maryland Court of Appeals which affirmed his conviction. 227 Md. 615, 177 A. 2d 877. We granted certiorari “limited to the point of law raised in Hamilton v. Alabama, 368 U. S. 52.” See 371 U. S. 909. Petitioner was arrested on May 27, 1960, and brought before a magistrate on May 31, 1960, for a preliminary hearing. But that hearing was. postponed and not actually held until August 9,1960. At that time petitioner was not yet represented by a lawyer. When arraigned at that preliminary hearing he pleaded guilty. What Mary land calls the “arraignment” was first held September 8, 1960; but since petitioner was not represented by counsel, his arraignment was postponed and counsel appointed for him on September 9, 1960. He was finally arraigned on November 25,1960, and entered'pleas of “not guilty” and “not guilty by reason of insanity.” At his trial the plea of .guilty made at the preliminary hearing on' August 9, 1960, was introduced in evidence. Since he did not have counsel at the time of the preliminary hearing, he argued that Hamilton v. Alabama, supra, applied. The Court of Appeals disagreed, saying that arraignment in Alabama is “a critical stage in a criminal proceeding” where rights' are preserved or lost (368 U. S. 53-54), while.under Maryland law there was “no requirement (nor. any practical possibility under our present criminal procedure) to appoint counsel” for petitioner at the “preliminary hearing . . . nor was it necessary for appellant to enter a plea at that time.” 227 Md., at 625, 177 A. 2d, at 882. Whatever may be the normal function of the “preliminary hearing” under Maryland law, it was in this case as “critical” a stage as arraignment under Alabama law. For petitioner entered a plea before the magistrate and that plea was taken at a time when he had no counsel. Wé repeat what we said in Hamilton v. Alabama, supra, at 55, that we do not stop to determine whether prejudice resulted: “Only the" } ]

[ { "docid": "22611448", "title": "", "text": "v. United States, 425 U. S. 80 (1976); Herring v. New York, 422 U. S. 853 (1975); Argersinger v. Hamlin, 407 U. S. 25 (1972); Gideon v. Wainwright, 372 U. S. 335 (1963); Chandler v. Fretag, 348 U. S. 3 (1954); Glasser v. United States, 315 U. S. 60 (1942); Powell v. Alabama, 287 U. S. 45 (1932). We have described this right as “fundamental,” Gideon v. Wainwright, supra, at 344, and have stated that “[t]he assistance of counsel is often a requisite to the very existence of a fair trial.” Argersinger v. Hamlin, supra, at 31. In Powell v. Alabama, supra, the Court stated: “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.” Id., at 68-69. Given the importance of counsel to the presentation of an effective defense, it should be obvious that a defendant has an interest in his relationship with his attorney. As we noted in Faretta v. California, 422 U. S. 806, 834 (1975), “[t]he right to defend is personal.” It is the defendant’s interests, and freedom, which are at stake. Counsel is provided to assist the defendant in presenting his defense, but in order to do so effectively the attorney must work closely with the defendant in formulating" }, { "docid": "11443778", "title": "", "text": "judge who accepted his plea did not comply with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), thus the defendant entered his guilty plea without a full understanding of what the plea connotes and its consequences. Since we determine that Ford’s guilty plea was entered without effective assistance of counsel, we find it is unnecessary to discuss the appellant’s alternative argument. II For over fifteen years, it has been clear beyond doubt that a defendant pleading guilty to a felony charge has a federal constitutional right to the assistance of counsel. White v. Maryland, 373 U.S. 59, 59-60, 83 S.Ct. 1050, 1051, 10 L.Ed.2d 193 (1963); Arsenault v. Massachusetts, 393 U.S. 5, 6, 89 S.Ct. 35, 36, 21 L.Ed.2d 5 (1968). See also McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970); McQueen v. Swenson, 498 F.2d 207, 213 (8th Cir. 1974). Furthermore, as we stated in McQueen v. Swenson, supra, “[s]ince the days of the ‘Scottsboro boys’ rape case, Powell v. Alabama, 287 U.S. 45 [53 S.Ct. 55, 77 L.Ed. 158] (1932), it has also been accepted that a state defendant has a right not only to the timely appointment of counsel but also to the assistance of counsel whose quality of performance does not fall below a minimum level of effectiveness.” McQueen v. Swenson, supra, 498 F.2d at 213. See McMann v. Richardson, supra, 397 U.S. at 771 n.14, 90 S.Ct. at 1449; Reece v. Georgia, 350 U.S. 85, 90, 76 S.Ct. 167, 170, 100 L.Ed. 77 (1955); Glasser v. United States, 315 U.S. 60, 69-70, 62 S.Ct. 457, 464, 86 L.Ed. 680 (1942). In this Circuit, counsel fails to render effective assistance when he does not exercise the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances. See Morrow v. Parratt, 574 F.2d 411, 412 (8th Cir. 1978); Benson v. United States, 552 F.2d 223, 224 (8th Cir. 1977), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 120 (1977). We evaluate a habeas corpus petition alleging ineffective assistance" }, { "docid": "22059168", "title": "", "text": "on uncontested evidence. In the latter case, the conviction is not based on the defendant’s admission but on the evidence: the trial judge may always acquit, if unpersuaded, and an appellate court may find the illegally seized evidence not to have contributed to the verdict. See discussion of the differences for appeal purposes between a plea of guilty and a stipulation to evidence in United States v. Mizell, 488 F. 2d, at 99-101 (guilty plea not appealable), and United States v. Mendoza, 491 F. 2d 534, 536-538 (CA5 1974) (conviction on stipulated evidence appealable). See also United States v. Cox, 464 F. 2d, at 944-945. Because of the possibility that prior Second Circuit law, e. g., United States ex rel. Rogers v. Warden, 381 F. 2d 209 (1967), and United States ex rel. Molloy v. Follette, 391 F. 2d 231 (1968), affirmatively misled respondent’s lawyer into believing that federal law does permit collateral relitigation of the antecedent Fourth Amendment violation after a New York guilty plea, the best course would have been to permit all those, including Newsome, who pleaded guilty before the date of this decision in reliance on Second Circuit law to replead. United States v. Mizell, supra, at 101. Cf. Santobello v. New York, 404 U. S. 257 (1971). Mr. Justice Powell, with whom The Chief Justice and Mr. Justice Rehnquist join, dissenting. I would reverse the judgment of the Court of Appeals for the reasons set forth in my concurring opinion in Schneckloth v. Bustamonte, 412 U. S. 218, 250 (1973). This case is even more inappropriate for federal collateral review of a state prisoner’s Fourth Amendment claim. The prisoner here, with advice of counsel, pleaded guilty in open court. He does not question the voluntariness of his plea nor does he assert innocence. Rather, he argues that his conviction is reviewable in federal habeas corpus because of an uncommon New York statute which allows appeal from an adverse suppression ruling notwithstanding the guilty plea. Yet the Court today holds that respondent is entitled to seek federal habeas corpus relief. This ruling distorts beyond recognition the" }, { "docid": "22750432", "title": "", "text": "disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily. This Court has not yet passed on the question of the retroactivity of this new requirement. Machibroda v. United States, 368 U. S. 487, 493 (1962); Waley v. Johnston, 316 U. S. 101, 104 (1942); Walker v. Johnston, 312 U. S. 275, 286 (1941); Chambers v. Florida, 309 U. S. 227 (1940); Kercheval v. United States, 274 U. S. 220, 223 (1927). See Brookhart v. Janis, 384 U. S. 1 (1966); Adams v. United States ex rel. McCann, 317 U. S. 269, 275 (1942); Johnson v. Zerbst, 304 U. S. 458, 464 (1938); Patton v. United States, 281 U. S. 276, 312 (1930). Since an intelligent assessment of the relative advantages of pleading guilty is frequently impossible without the assistance of an attorney, this Court has scrutinized with special care pleas of guilty entered by defendants without the assistance of counsel and without a valid waiver of the right to counsel. See Pennsylvania ex rel. Herman v. Claudy, 350 U. S. 116 (1956); Von Moltke v. Gillies, 332 U. S. 708 and 727 (1948) (opinions of Black and Frankfurter, JJ.); Williams v. Kaiser, 323 U. S. 471 (1945). Since Gideon v. Wainwright, 372 U. S. 335 (1963), it has been clear that a guilty plea to a felony charge entered without counsel and without a waiver of counsel is invalid. See White v. Maryland, 373 U. S. 59 (1963); Arsenault v. Massachusetts, 393 U. S. 5 (1968). The importance of assuring that a defendant does not plead guilty except with a full understanding of the charges against him and the possible consequences of his plea was at the heart of our recent decisions in McCarthy v. United States, supra, and Boykin v. Alabama, 395 U. S. 238 (1969). See nn. 3 and 4, supra. Such a possibility seems to have been rejected by the District Court in the §2255 proceedings. That court found that “the plea of guilty was made by the petitioner by reason of other matters and not by reason of the statute . ." }, { "docid": "22059152", "title": "", "text": "York defendant who has utilized § 813-c in the state courts may pursue his constitutional claim on a federal habeas corpus petition. E. g., United States ex rel. Rogers v. Warden, 381 F. 2d 209; United States ex rel. Molloy v. Follette, 391 F. 2d 231. The Uniform Rules of Criminal Procedure would create an even broader right of appeal than is currently provided for in New York, permitting post-guilty-plea appeal of any order denying a pretrial motion which, if granted, would be dispositive of the case. Uniform Rule Crim. Proc. 444 (d). Mr. Justice White, with whom The Chief Justice and Mr. Justice Rehnquist join, dissenting. Because I believe that federal law provides respondent Newsome no right to set aside his plea of guilty — a solemn, counseled admission in open court that he is in fact guilty — even assuming that he had previously been the victim of a search which did not measure up to federal standards, I respectfully dissent. I The federal habeas corpus statute, pursuant to which Newsome sought to have the courts below set aside his plea of guilty, provides relief only if the petitioner can establish that \"he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U. S. C. § 2254 (a). It is common ground, I take it, that the Federal Constitution does not itself entitle a defendant who has pleaded guilty to have that plea set aside upon a showing that he has previously been the victim of an unconstitutional search, even if he can also show that he pleaded guilty only because the prosecution planned to use the fruits of the search against him at trial. Blackledge v. Perry, 417 U. S. 21 (1974); Tollett v. Henderson, 411 U. S. 258 (1973); Brady v. United States, 397 U. S. 742 (1970); McMann v. Richardson, 397 U. S. 759 (1970); Parker v. North Carolina, 397 U. S. 790 (1970). In Tollett, we said: “We thus reaffirm the principle recognized in the Brady trilogy: a guilty plea represents a break in the chain" }, { "docid": "22664323", "title": "", "text": "guilty plea). Instead, petitioner relies entirely on the claim that his plea was “involuntary” as a result of ineffective assistance of counsel because his attorney supplied him with information about parole eligibility that was erroneous. Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice “was within the range of competence demanded of attorneys in criminal cases.” McMann v. Richardson, 397 U. S. 759, 771 (1970). As we explained in Tollett v. Henderson, 411 U. S. 258 (1973), a defendant who pleads guilty upon the advice of counsel “may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from coun sel was not within the standards set forth in McMann. ” Id., at 267. Our concern in McMann v. Richardson with the quality of counsel’s performance in advising a defendant whether to plead guilty stemmed from the more general principle that all “defendants facing felony charges are entitled to the effective assistance of competent counsel.” 397 U. S., at 771, and n. 14; see Reece v. Georgia, 350 U. S. 85, 90 (1955); Powell v. Alabama, 287 U. S. 45 (1932). Two Terms ago, in Strickland v. Washington, 466 U. S. 668 (1984), we adopted a two-part standard for evaluating claims of ineffective assistance of counsel. There, citing McMann, we reiterated that “[w]hen a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” 466 U. S., at 687-688. We also held, however, that “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., at 694. This additional “prejudice” requirement was based on our conclusion that “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id., at 691. Although our decision" }, { "docid": "22667292", "title": "", "text": "claims, the Court holds that respondents are not even entitled to a hearing which would afford them an opportunity to substantiate their allegations. I cannot agree, for it is clear that the result reached by the Court is inconsistent not only with the prior decisions of this Court but also with the position adopted by virtually every court of appeals that has spoken on this issue. I The basic principle applicable to this case was enunciated for the Court by Mr. Justice Black in Pennsylvania ex rel. Herman v. Claudy, 350 U. S. 116, 118 (1956): “[A] conviction following trial or on a plea of guilty based on a confession extorted by violence or by mental coercion is invalid under the Federal Due Process Clause.” The critical factor in this formulation is that convictions entered on guilty pleas are not valid if they are “based on” coerced confessions. A defendant who seeks to overturn his guilty plea must therefore demonstrate the existence of a sufficient interrelationship or nexus between the plea and the antecedent confession so that the plea may be said to be infected by the State's prior illegal action. Thus to invalidate a guilty plea more must be shown than the mere existence of a coerced confession. The Court of Appeals so held; respondents do not disagree. The critical question, then, is what elements in addition to the coerced confession must be alleged and proved to demonstrate the invalidity of a guilty plea. The Court abruptly forecloses any inquiry concerning the impact of an allegedly coerced confession by decreeing that the assistance of “reasonably competent” counsel insulates a defendant from the effects of a prior illegal confession. However, as the Court tacitly concedes, the absolute rigor of its new rule must be adjusted to accommodate cases such as Chambers v. Florida, 309 U. S. 227 (1940). In that case, the four defendants confessed. Subsequently, three of them pleaded guilty, while the fourth pleaded not guilty and was tried before a jury. Each of the defendants, represented by counsel, stated during the trial that he had confessed and was" }, { "docid": "22685053", "title": "", "text": "the Sixth Amendment was violated in the circumstances of this case. The Sixth Amendment provides that an accused shall enjoy the right “to have the Assistance of Counsel for his defense.” This right, fundamental to our system of justice, is meant to assure fairness in the adversary criminal process. Gideon v. Wainwright, 372 U. S. 335, 344 (1963); Glasser v. United States, 315 U. S. 60, 69-70, 75-76 (1942); Johnson v. Zerbst, 304 U. S. 458, 462-463 (1938). Our cases have accordingly been responsive to proved claims that governmental conduct has rendered counsel's assistance to the defendant ineffective. Moore v. Illinois, 434 U. S. 220 (1977); Geders v. United States, 425 U. S. 80 (1976); Herring v. New York, 422 U. S. 853 (1975); Gilbert v. California, 388 U. S. 263 (1967) ; United States v. Wade, 388 U. S. 218 (1967); Massiah v. United States, 377 U. S. 201 (1964). At the same time and without detracting from the fundamental importance of the right to counsel in criminal cases, we have implicitly recognized the necessity for preserving society’s interest in the administration of criminal justice. Cases involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests. Our relevant cases reflect this approach. In Gideon v. Wainwright, supra, the defendant was totally denied the assistance of counsel at his criminal trial. In Geders v. United States, supra, Herring v. New York, supra, and Powell v. Alabama, 287 U. S. 45 (1932), judicial action before or during trial prevented counsel from being fully effective. In Black v. United States, 385 U. S. 26 (1966), and O’Brien v. United States, 386 U. S. 345 (1967), law enforcement officers improperly overheard pretrial conversations between a defendant and his lawyer. None of these deprivations, however, resulted in the dismissal of the indictment. Rather, the conviction in each case was reversed and the Government was free to proceed with a new trial. Similarly, when before trial but after the institution of adversary proceedings, the" }, { "docid": "22059151", "title": "", "text": "of 28 U. S. C. §2254 by presenting his federal claims to the state courts on direct appeal. See Francisco v. Gathright, 419 U. S. 59. In Fay v. Noia, supra, the Court held that a federal habeas judge may deny relief to an applicant who has deliberately bypassed the orderly state-court procedures for reviewing his constitutional claim. 372 U. S., at 438. But the Court also held that if the state courts have entertained the federal constitutional claims on the merits in a subsequent proceeding, notwithstanding the deliberate bypass, the federal courts have no discretion to deny the applicant habeas relief to which he is otherwise entitled. Id., at 439. It would seem to follow necessarily that when there is no bypass of state appellate procedures, deliberate or otherwise, and the state courts entertained the federal claims on the merits, a federal habeas corpus court must also determine the merits of the applicant’s claim. At the time Newsome pleaded guilty the Court of Appeals for the Second Circuit had repeatedly held that a New York defendant who has utilized § 813-c in the state courts may pursue his constitutional claim on a federal habeas corpus petition. E. g., United States ex rel. Rogers v. Warden, 381 F. 2d 209; United States ex rel. Molloy v. Follette, 391 F. 2d 231. The Uniform Rules of Criminal Procedure would create an even broader right of appeal than is currently provided for in New York, permitting post-guilty-plea appeal of any order denying a pretrial motion which, if granted, would be dispositive of the case. Uniform Rule Crim. Proc. 444 (d). Mr. Justice White, with whom The Chief Justice and Mr. Justice Rehnquist join, dissenting. Because I believe that federal law provides respondent Newsome no right to set aside his plea of guilty — a solemn, counseled admission in open court that he is in fact guilty — even assuming that he had previously been the victim of a search which did not measure up to federal standards, I respectfully dissent. I The federal habeas corpus statute, pursuant to which Newsome sought to" }, { "docid": "22351092", "title": "", "text": "S. 1039 (1983). The Sixth Amendment right to counsel is much more pervasive because it affects the ability of the accused to assert any other rights he might have. It is indisputable that the Amendment assures “ ‘Assistance’ at trial, when the accused [is] confronted with both the intricacies of the law and the advocacy of the public prosecutor.” United States v. Ash, 413 U. S. 300, 309 (1973); see also Perry v. Leeke, 488 U. S. 272, 279 (1989); United States v. Cronic, 466 U. S. 648, 659, n. 25 (1984). That guarantee applies equally whether the defendant is presenting his case or the State is rebutting or impeaching the defendant’s evidence. The State’s interest in truthseeking is congruent with the defendant’s interest in representation by counsel, for it is an elementary premise of our system of criminal justice “‘that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.’” Cronic, 466 U. S., at 655 (quoting Herring v. New York, 422 U. S. 853, 862 (1975)); see also Penson v. Ohio, 488 U. S. 75, 84 (1988). The accused’s right to the assistance of counsel is not limited to participation in the trial itself. A defendant is entitled to the aid of his lawyer from the time of arraignment “when consultation, thoroughgoing investigation and preparation [are] vitally important,” Powell v. Alabama, 287 U. S. 45, 57 (1932), through the time of first appeal. See Penson, 488 U. S., at 85; Anders v. California, 386 U. S. 738 (1967); Douglas v. California, 372 U. S. 353 (1963). Just as the Sixth Amendment’s right to “the Assistance” of counsel necessarily encompasses a right to the effective assistance of counsel, see Cronic, 466 U. S., at 654-655; Avery v. Alabama, 308 U. S. 444, 446 (1940), so too the accused’s right to have counsel “for his defence” in a “criminal prosecutio[n]” in- eludes the right to rely on counsel after the government’s role has shifted from investigation to accusation and the “defendant finds himself faced with the" }, { "docid": "22750433", "title": "", "text": "(1956); Von Moltke v. Gillies, 332 U. S. 708 and 727 (1948) (opinions of Black and Frankfurter, JJ.); Williams v. Kaiser, 323 U. S. 471 (1945). Since Gideon v. Wainwright, 372 U. S. 335 (1963), it has been clear that a guilty plea to a felony charge entered without counsel and without a waiver of counsel is invalid. See White v. Maryland, 373 U. S. 59 (1963); Arsenault v. Massachusetts, 393 U. S. 5 (1968). The importance of assuring that a defendant does not plead guilty except with a full understanding of the charges against him and the possible consequences of his plea was at the heart of our recent decisions in McCarthy v. United States, supra, and Boykin v. Alabama, 395 U. S. 238 (1969). See nn. 3 and 4, supra. Such a possibility seems to have been rejected by the District Court in the §2255 proceedings. That court found that “the plea of guilty was made by the petitioner by reason of other matters and not by reason of the statute . . . .” We here make no reference to the situation where the prosecutor or judge, or both, deliberately employ their charging and sentencing powers to induce a particular defendant to tender a plea of guilty. In Brady’s case there is no claim that the prosecutor threatened prosecution on a charge not justified by the evidence or that the trial judge threatened Brady with a harsher sentence if convicted after trial in order to induce him to plead guilty. For a more elaborate discussion of the factors that may justify a reduction in penalty upon a plea of guilty, see American Bar Association Project on Standards for Criminal Justice, Pleas of Guilty § 1.8 and commentary, pp. 37-52 (Approved Draft 1968). of all It has been estimated that about 90%, and perhaps 95%, of all criminal convictions are by pleas of guilty; between 70% and 85% of all felony convictions are estimated to be by guilty plea. D. Newman, Conviction, The Determination of Guilt or Innocence Without Trial 3 and n. 1 (1966). Malloy v. Hogan," }, { "docid": "22691386", "title": "", "text": "not taken at that time shall be deemed to be waived. . . N. C. Gen. Stat. §9-23 (1969 Repl. vol.). See State v. Rorie, 258 N. C. 162, 128 S. E. 2d 229 (1962). Under North Carolina law, a guilty plea does not waive objections to racial exclusion in the selection of the grand jury if, before the plea of guilty, the defendant raises his objection in a motion to quash the indictment. State v. Covington, 258 N. C. 501, 128 S. E. 2d 827 (1963). Mr. Justice Black, concurring. I concur in the judgment of affirmance and also concur in the opinion except that part on pp. 794-795 stating, “It may be that under United States v. Jackson, 390 U. S. 570 (1968), it was unconstitutional to impose the death penalty under the statutory framework which existed in North Carolina at the time of Parker’s plea.” Mr. Justice Brennan, with whom Mr. Justice Douglas and Mr. Justice Marshall join, dissenting in No. 268, and concurring in the result in No. 270, ante, p. 742. In United States v. Jackson, 390 U. S. 570 (1968), we held that the operative effect of the capital punishment provisions of the Federal Kidnaping Act was unconstitutionally “to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial.” 390 U. S., at 581. The petitioners in these cases claim that they were the victims of the very vices we condemned in Jackson. Yet the Court paradoxically holds that each of the petitioners must be denied relief even if his allegations are substantiated. Indeed, the Court apparently holds that never, except perhaps in highly unrealistic hypothetical situations, will the constitutional defects identified in Jackson vitiate a guilty plea. In so holding, the Court seriously undermines the rational underpinnings of Jackson and departs broadly from our prior approach to the determination of the voluntariness of guilty pleas and also confessions. This is merely one manifestation of a design to insulate all guilty pleas from subsequent attack no matter what influences" }, { "docid": "22667288", "title": "", "text": "found that the petition for habeas corpus did not allege with sufficient specificity that the plea of guilty was infected by the allegedly coerced confession. United States ex rel. Rosen v. Follette, 409 F. 2d 1042 (C. A. 2d Cir. 1969). The majority and concurring opinions in the Dash case relied on decisions in several other circuits: United States ex rel. Collins v. Maroney, 382 F. 2d 547 (C. A. 3d Cir. 1967); Jones v. Cunningham, 297 F. 2d 851 (C. A. 4th Cir. 1962); Smith v. Wainwright, 373 F. 2d 506 (C. A. 5th Cir. 1967); Carpenter v. Wainwright, 372 F. 2d 940 (C. A. 5th Cir. 1967); Bell v. Alabama, 367 F. 2d 243 (C. A. 5th Cir. 1966), cert. denied, 386 U. S. 916 (1967); Reed v. Henderson, 385 F. 2d 995 (C. A. 6th Cir. 1967); Smiley v. Wilson, 378 F. 2d 144 (C. A. 9th Cir. 1967); Doran v. Wilson, 369 F. 2d 505 (C. A. 9th Cir. 1966). New York law now permits a defendant to. challenge the admissibility of a confession in a pretrial hearing and to appeal from an adverse ruling on the admissibility of the confession even if the conviction is based on a plea, of guilty. N. Y. Code Crim. Proc. § 813-g (Supp. 1969) (effective July 16, 1965). A similar provision permits a defendant to appeal an adverse ruling on a Fourth Amendment claim after a plea of guilty. N. Y. Code Crim. Proc. § 813-c (Supp. 1969) (effective April 29, 1962). Pennsylvania ex rel. Herman v. Claudy, 350 U. S. 116 (1956), involved a plea of guilty made by a defendant without assistance of counsel. Herman did not hold that a plea of guilty, offered by a defendant assisted by competent counsel, is invalid whenever induced by the prosecution’s possession of a coerced confession. Likewise, Chambers v. Florida, 309 U. S. 227 (1940), does not support the position taken by the Court of Appeals in these cases. In Chambers the voluntariness of the confessions was properly considered by this Court both because the alleged coercion producing the confessions" }, { "docid": "22667289", "title": "", "text": "of a confession in a pretrial hearing and to appeal from an adverse ruling on the admissibility of the confession even if the conviction is based on a plea, of guilty. N. Y. Code Crim. Proc. § 813-g (Supp. 1969) (effective July 16, 1965). A similar provision permits a defendant to appeal an adverse ruling on a Fourth Amendment claim after a plea of guilty. N. Y. Code Crim. Proc. § 813-c (Supp. 1969) (effective April 29, 1962). Pennsylvania ex rel. Herman v. Claudy, 350 U. S. 116 (1956), involved a plea of guilty made by a defendant without assistance of counsel. Herman did not hold that a plea of guilty, offered by a defendant assisted by competent counsel, is invalid whenever induced by the prosecution’s possession of a coerced confession. Likewise, Chambers v. Florida, 309 U. S. 227 (1940), does not support the position taken by the Court of Appeals in these cases. In Chambers the voluntariness of the confessions was properly considered by this Court both because the alleged coercion producing the confessions appeared to carry over to taint the guilty pleas and because the convictions were based on the confessions as well as the guilty pleas. See Chambers v. State, 136 Fla. 568, 187 So. 156 (1939), rev’d, 309 U. S. 227 (1940). We do not here consider whether a conviction, based on a plea of guilty entered in a State permitting the defendant pleading guilty to challenge on appeal the admissibility of his confession (as in New York after July 16, 1965, see n. 11, supra), would be open to attack in federal habeas corpus proceedings on the grounds that the confession was coerced. Cf. United States ex rel. Rogers v. Warden, 381 F. 2d 209 (C. A. 2d Cir. 1967). Since Gideon v. Wainwright, 372 U. S. 335 (1963), it has been clear that a defendant pleading guilty to a felony charge has a federal right to the assistance of counsel. See White v. Maryland, 373 U. S. 59 (1963); Arsenault v. Massachusetts, 393 U. S. 5 (1968). It has long been recognized that the" }, { "docid": "22667290", "title": "", "text": "appeared to carry over to taint the guilty pleas and because the convictions were based on the confessions as well as the guilty pleas. See Chambers v. State, 136 Fla. 568, 187 So. 156 (1939), rev’d, 309 U. S. 227 (1940). We do not here consider whether a conviction, based on a plea of guilty entered in a State permitting the defendant pleading guilty to challenge on appeal the admissibility of his confession (as in New York after July 16, 1965, see n. 11, supra), would be open to attack in federal habeas corpus proceedings on the grounds that the confession was coerced. Cf. United States ex rel. Rogers v. Warden, 381 F. 2d 209 (C. A. 2d Cir. 1967). Since Gideon v. Wainwright, 372 U. S. 335 (1963), it has been clear that a defendant pleading guilty to a felony charge has a federal right to the assistance of counsel. See White v. Maryland, 373 U. S. 59 (1963); Arsenault v. Massachusetts, 393 U. S. 5 (1968). It has long been recognized that the right to counsel is the right to the effective assistance of counsel. See Reece v. Georgia, 350 U. S. 85, 90 (1955); Glasser v. United States, 315 U. S. 60, 69-70 (1942); Avery v. Alabama, 308 U. S. 444, 446 (1940); Powell v. Alabama, 287 U. S. 45, 57 (1932). Mr. Justice Brennan, with whom Mr. Justice Douglas and Mr. Justice Marshall join, dissenting. In this case the Court moves yet another step toward the goal of insulating all guilty pleas from subsequent attack no matter what unconstitutional action of government may have induced a particular plea. Respondents alleged in some detail that they were subjected to physical and mental coercion in order to force them to confess; that they succumbed to these pressures; and that because New York provided no constitutionally acceptable procedures for challenging the validity of their confessions in the trial court they had no reasonable alternative to pleading guilty. Respondents’ contention, in short, is that their pleas were the product of the State’s illegal action. Notwithstanding the possible truth of the" }, { "docid": "22667312", "title": "", "text": "defendant as a witness in his behalf.” Chambers v. State, 113 Fla. 786, 792, 152 So. 437, 438 (1934), on subsequent appeal, 136 Fla. 568, 187 So. 156 (1939), rev’d, 309 U. S. 227 (1940). Indeed, one of the dissenting opinions in Harrison concludes that “[similarly, an inadmissible confession preceding a plea of guilty would taint the plea.” 392 U. S., at 234 (White, J., dissenting). In response to this suggestion, the Court noted that “we decide here only a case in which the prosecution illegally introduced the defendant’s confession in evidence against him at trial in its case-in-chief.” 392 U. S., at 223 n. 9. Of course, in Harrison we did consider a case in which evidence had been introduced at trial. It hardly follows, however, that the fruit-of-the-poisonous-tree rationale has no application apart from the narrow confines of the Harrison factual context. See generally Fahy v. Connecticut, 375 U. S. 85 (1963); Wong Sun v. United States, 371 U. S. 471 (1963); Nardone v. United States, 308 U. S. 338 (1939). There are factual differences between Harrison and the instant-case, but they are insufficient to undermine the analogy. For example, in Harrison the inadmissible confessions had actually been used in proceedings against the defendant, whereas here no more is involved than the potential use of the coerced confessions. However, confessions have traditionally been considered extremely valuable evidentiary material, and, in the ordinary course of events, it is not to be expected that the prosecution would, on its own initiative, refrain from attempting to introduce a relevant confession. Of course, when a guilty plea is attacked on the ground that it was induced by an involuntary confession, it is always open to the prosecution to establish that there was no confession, that any confession was not coerced, or that the prosecution had decided not to use the confession against the defendant and had communicated this fact to him. Moreover, it is perhaps not as clear in the instant case as it was in Harrison that the prosecution’s illegality infected the subsequent proceedings involving the respective defendants. In Harrison, the" }, { "docid": "22656527", "title": "", "text": "would be entitled to have his sentence vacated and the matter was remanded for an evidentiary hearing. State convictions founded upon coerced or unfairly induced guilty pleas have also received increased scrutiny as more fundamental rights have been applied to the States. After Powell v. Alabama, 287 U. S. 45, the Court held that a state defendant was entitled to a lawyer’s assistance in choosing whether to plead guilty. Williams v. Kaiser, 323 U. S. 471. In Herman v. Claudy, 350 U. S. 116, federal habeas corpus was held to lie where a lawyer-less and uneducated state prisoner had pleaded guilty to numerous and complex robbery charges. And, a guilty plea obtained without the advice of counsel may not be admitted at a subsequent state prosecution. White v. Maryland, 373 U. S. 59. Thus, while plea bargaining is not per se unconstitutional, North Carolina v. Alford, 400 U. S. 25, 37-38, Shelton v. United States, 242 F. 2d 101, aff’d en banc, 246 F. 2d 571 (CA5 1957), a guilty plea is rendered voidable by threatening physical harm, Waley v. Johnston, supra, threatening to use false testimony, ibid., threatening to bring additional prosecutions, Machibroda v. United States, supra, or by failing to inform a defendant of his right of counsel, Walker v. Johnston, supra. Under these circumstances it is clear that a guilty plea must be vacated. But it is also clear that a prosecutor’s promise may deprive a guilty plea of the “character of a voluntary act.” Machibroda v. United States, supra, at 493. Cf. Bram v. United States, 168 U. S. 532, 542-543. The decisions of this Court have not spelled out what sorts of promises by prosecutors tend to be coercive, but in order to assist appellate review in weighing promises in light of all the circumstances, all trial courts are now required to interrogate the defendants who enter guilty pleas so that the waiver of these fundamental rights will affirmatively appear in the record. McCarthy v. United States, 394 U. S. 459; Boykin v. Alabama, 395 U. S. 238. The lower courts, however, have uniformly held" }, { "docid": "22667311", "title": "", "text": "v. Green, 387 F. 2d 136 (C. A. 6th Cir. 1967); Reed v. Henderson, 385 F. 2d 995 (C. A. 6th Cir. 1967); United States ex rel. Collins v. Maroney, 382 F. 2d 547 (C. A. 3d Cir. 1967); Smiley v. Wilson, 378 F. 2d 144 (C. A. 9th Cir. 1967); Carpenter v. Wainwright, 372 F. 2d 940 (C. A. 5th Cir. 1967); Doran v. Wilson, 369 F. 2d 505 (C. A. 9th Cir. 1966); White v. Pepersack, 352 F. 2d 470 (C. A. 4th Cir. 1965); Zachery v. Hale, 286 F. Supp. 237 (D. C. M. D. Ala. 1968); United States ex rel. Cuevas v. Rundle, 258 F. Supp. 647 (D. C. E. D. Pa. 1966); People v. Spencer, 66 Cal. 2d 158, 424 P. 2d 715 (1967); Commonwealth v. Baity, 428 Pa. 306, 237 A. 2d 172 (1968). “[E]ach of the defendants testified on the trial that the confessions were freely and voluntarily made and that the respective statements of each made upon the trial was the free and voluntary statement of such defendant as a witness in his behalf.” Chambers v. State, 113 Fla. 786, 792, 152 So. 437, 438 (1934), on subsequent appeal, 136 Fla. 568, 187 So. 156 (1939), rev’d, 309 U. S. 227 (1940). Indeed, one of the dissenting opinions in Harrison concludes that “[similarly, an inadmissible confession preceding a plea of guilty would taint the plea.” 392 U. S., at 234 (White, J., dissenting). In response to this suggestion, the Court noted that “we decide here only a case in which the prosecution illegally introduced the defendant’s confession in evidence against him at trial in its case-in-chief.” 392 U. S., at 223 n. 9. Of course, in Harrison we did consider a case in which evidence had been introduced at trial. It hardly follows, however, that the fruit-of-the-poisonous-tree rationale has no application apart from the narrow confines of the Harrison factual context. See generally Fahy v. Connecticut, 375 U. S. 85 (1963); Wong Sun v. United States, 371 U. S. 471 (1963); Nardone v. United States, 308 U. S. 338 (1939). There are" }, { "docid": "22617438", "title": "", "text": "available to assist in preparing and submitting a brief to the appellate court, Swenson v. Bosler, 386 U. S. 258 (1967) (per curiam), and must play the role of an active advocate, rather than a mere friend of the court assisting in a detached evaluation of the appellant’s claim. See Anders v. California, 386 U. S. 738 (1967); see also Entsminger v. Iowa, 386 U. S. 748 (1967). B Gideon v. Wainwright, supra, held that the Sixth Amendment right to counsel was “ ‘so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the States by the Fourteenth Amendment. ’ ” Id., at 340, quoting Betts v. Brady, 316 U. S. 455, 465 (1942); see also Powell v. Alabama, 287 U. S. 45 (1932); Johnson v. Zerbst, 304 U. S. 458 (1938). Gideon rested on the “obvious truth” that lawyers are “necessities, not luxuries” in our adversarial system of criminal justice. 372 U. S., at 344. “The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” Herring v. New York, 422 U. S. 853, 862 (1975). The defendant’s liberty depends on his ability to present his case in the face of “the intricacies of the law and the advocacy of the public prosecutor,” United States v. Ash, 413 U. S. 300, 309 (1973); a criminal trial is thus not conducted in accord with due process of law unless the defendant has counsel to represent him. As we have made clear, the guarantee of counsel “cannot be satisfied by mere formal appointment,” Avery v. Alabama, 308 U. S. 444, 446 (1940). “That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command. ... An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.” Strickland" }, { "docid": "22667291", "title": "", "text": "right to counsel is the right to the effective assistance of counsel. See Reece v. Georgia, 350 U. S. 85, 90 (1955); Glasser v. United States, 315 U. S. 60, 69-70 (1942); Avery v. Alabama, 308 U. S. 444, 446 (1940); Powell v. Alabama, 287 U. S. 45, 57 (1932). Mr. Justice Brennan, with whom Mr. Justice Douglas and Mr. Justice Marshall join, dissenting. In this case the Court moves yet another step toward the goal of insulating all guilty pleas from subsequent attack no matter what unconstitutional action of government may have induced a particular plea. Respondents alleged in some detail that they were subjected to physical and mental coercion in order to force them to confess; that they succumbed to these pressures; and that because New York provided no constitutionally acceptable procedures for challenging the validity of their confessions in the trial court they had no reasonable alternative to pleading guilty. Respondents’ contention, in short, is that their pleas were the product of the State’s illegal action. Notwithstanding the possible truth of the claims, the Court holds that respondents are not even entitled to a hearing which would afford them an opportunity to substantiate their allegations. I cannot agree, for it is clear that the result reached by the Court is inconsistent not only with the prior decisions of this Court but also with the position adopted by virtually every court of appeals that has spoken on this issue. I The basic principle applicable to this case was enunciated for the Court by Mr. Justice Black in Pennsylvania ex rel. Herman v. Claudy, 350 U. S. 116, 118 (1956): “[A] conviction following trial or on a plea of guilty based on a confession extorted by violence or by mental coercion is invalid under the Federal Due Process Clause.” The critical factor in this formulation is that convictions entered on guilty pleas are not valid if they are “based on” coerced confessions. A defendant who seeks to overturn his guilty plea must therefore demonstrate the existence of a sufficient interrelationship or nexus between the plea and the antecedent confession" } ]

[ { "docid": "23334255", "title": "", "text": "¥ and slot ¥, crcmlc D, and the' bolt and pitman, substantially as set' forth. 3. The corribimation of _ the bolt O, prometed with the lug c, pitnnan E, operating as a pitman and spring, and ergnh T) to hold the bolt, substantially as set forth. 4. In a cylindrical door-bolt, the pitman E, mTanged'and adapted to operate as a pitman and- spring, substantially as set forth.” It will be observed that the first and second claims of the reissued patent are substantially the same as the first and sec-_ ond claims of the original patent, but as there is no allegation or proof of any infringement by the appellee of either of these they may both, be dismissed from further consideration. The third claim of the original patent ,is omitted, from the reissue, its place being taken by the third and fourth claims of the -latter-. The whole question is, whether the patentee and his assignee are entitled, under the circumstances of the case, to claim the pitman E, operating as a pitman and spring in. a door-bolt, as a distinct and separate invention, irrespective of its combination with the exterior and interior cases mentioned in. the first and second claims. This right is affirmed by the appellant and dénied by the appellee. The invalidity of the reissued patent. is maintained by the appellee on two grounds : 1st, that the reissue embraces a' difr ferent invention in the third and fourth claims from any described or contained in the- original specification; and, 2d, that, if it were otherwise, the patentee and assignee had, at the time of the application for a reissue, lost their rights to correct the defects in the original by their own laches. It was upop the latter of these grounds' that the Circuit Court proceeded in dismissing the bill. The undisputed facts on this pprt of the case are stated by the Circuit Court in its opinion, and are as follows: “ The inventor, a carpenter by trade and not an educated. man, invented the device in November, 1877, and applied, ,in January," } ]

[ { "docid": "16463829", "title": "", "text": "are expanded, so that thereunder the appellee now claims a monopoly, as against every chock which the inventive faculty can devise,” provided only that it will clear the mud guard, or, in other words, provided that it is not of such dimensions as to prevent the revolution of the wheel to which it is attached. The assignees of Ells, who owned the patent, had, at least two years prior to the reissue, notice of the Schestopol patent, which, it is admitted, anticipated the claims of the Ells patent as they were framed. Where a patentee seeks a reissue with broadened claims 5 years and 5 months after the original issue, it must he presumed, in the absence of a showing that the 'delay was unavoidable, that he abandoned the new matter to the public. Mahn v. Harwood, 112 U. S. 354, 5 Sup. Ct. 174, 6 Sup. Ct. 451, 28 L. Ed. 665; Woolensak v. Reiher, 115 U. S. 96, 5 Sup. Ct. 1137, 29 L. Ed. 350; Topliff v. Topliff, 145 U. S. 156, 12 Sup. Ct. 825, 36 L. Ed 658; Chapman v. Wintroath, 252 U. S. 126, 40 Sup. Ct 234, 64 L. Ed. 491. The appellant here has intervening rights as against the reissue, for it has acquired the right to manufacture and sell that which Ells failed to claim, and, having expended considerable sums of money in the manufacture of a device at a time when the original Ells patent was as yet unsurrendered, it cannot be held to infringe the added claims of the reissue. Ives v. Sargent, 119 U. S. 652, 7 Sup. Ct. 436, 30 L. Ed. 544; Autopiano Co. v. American Player Action Co., 222 Fed. 276, 138 C. C. A. 38; Diamond Drill Contracting Co. v. Mitchell (C. C. A.) 269 Fed. 261; Keller v. Adams-Campbell Co. (C. C. A.) 287 Fed. 838; Ashley v. Samuel C. Tatum Co. (D. C.) 240 Fed. 979. We find no conflict between these views and the decision in Abercrombie & Fitch Co. v. Baldwin, 245 U. S. 198, 38 Sup. Ct. 104, 62" }, { "docid": "4327454", "title": "", "text": "which, when it has been done, seems to have required the exercise of mechanical skill only. It would, however, be unfair to determine invention by such methods. The most difficult problems, when solved and understood, seem simple. It is unnecessary to analyze in detail the various devices cited against Krauth’s machine. It is sufficient to say that every one of them, when considered as a single, distinct device, is unlike his. The combinations and functions materially differ. None of these machines could do the work of Krauth’s. While his patent is not basic, and he does not claim the discovery of a new principle, he brought together old principles into a new combination, which produced useful results and filled a long-felt need. He was therefore entitled to a patent. Diamond Rubber Co. v. Consolidated Tire Co., 220 U. S. 428, 435, 31 Sup. Ct. 444, 55 L. Ed. 527; Low et al. v. McMaster (C. C. A.) 266 Fed. 518, 523; Wire Wheel Corporation of America v. Madison Motor Car Co. (D. C.) 267 Fed. 220. There is no question, in my opinion, about infringement. The defendant’s machine is practically a counterpart of Krauth’s. The only real questions are the reissue and anticipation, and, these being decided against the contention of defendant, it follows that complainants should have injunctive relief and damages as prayed for. On Reargument. After the decision of this court holding that the plaintiffs patent in the'above stated cause was valid, and infringed by the corporate defendant, a notice for an application of reargument was given on the following grounds: (1) Plaintiffs are estopped as against defendants from enforcing any infringement of any claim in the Krauth reissue that was not also in the Krauth original, because of the intervening rights of the defendants. (2) The patent is invalid, because neither the original nor the reissue discloses the particular rear pins used upon some of the machines of the complainants. (3) The patent is invalid, because neither the original nor the reissue discloses the particular shape of the pins. (4) The defendant’s device is invalid, because in" }, { "docid": "13500225", "title": "", "text": "basis of tbe two-year rule as to reissues should be called laches rather than estoppel, yet the name is not important, for it is the reliance by the publie on the dedication, to the public’s (presumptive) injury, which in the typical case develops mere delay into fatal laches., For these reasons, the decree must he reversed, and the ease remanded, with instructions to dismiss the bill. It is also not without importance, although we do not consider it as here vital, that the plaintiff was moved to the reissue only by learning that the defendant, a competitor, had built these or one of these noninfringing machines. Mahn v. Harwood, 112 U. S. 354, 361, 5 S. Ct. 174, 6 S. Ct 451, 28 L. Ed. 665; Coon v. Wilson, 113 U. S. 268, 5 S. Ct. 537, 28 L. Ed. 963; Parker Co. v. Yale Co., 123 U. S. 87, 8 S. Ct. 38, 31 L. Ed. 100; Topliff v. Topliff, 145 U. S. 156, 165, 169, 12 S. Ct 825, 36 L. Ed. 658; Autopiano Co. v. American Co. (C. C. A. 2) 222 F. 276, 282; Keller v. Adams Co. (C. C. A. 9) 287 F. 838; Supreme Co. v. Security Co. (C. C. A. 9) 299 F. 65." }, { "docid": "4327449", "title": "", "text": "record, and I cannot say that it is in the instant case. Topliff v. Topliff, 145 U. S. 156, 174, 12 Sup. Ct. 825, 36 L. Ed. 658; Ashley v. Samuel C. Tatum Co. (D. C.) 240 Fed. 979, 981. In the reissue of the Krauth patent seven new claims were added, and these were based upon the disclosures made in the reissue specification. As to these new claims the original patent was inoperative, and these claims, or at least some of them, the defendant alleges, were based upon the “new matter” introduced into the specification. Defendant’s Exhibit 36 is the reissue letters patent, and the defendant has bracketed with pen and ink therein the so-called new fnatter added to the specification. The provision that “no new matter shall be introduced into the specification” is only \"another way of saying that the reissued patent shall be for “the same invention” as the original. The same invention refers to whatever invention was described in the original letters patent and appears therein to have been intended to be secured thereby. It is not new matter within the meaning of this provision to state a new use of the invention shown in the original; to explain, in a reissue, thé operation of a device which in the original was only described; to vary and enlarge the description of anything inadequately described in the original. Walker on Patents (4th Ed.) § 240, and cases there cited. An examination of the so-called new matter, bracketed as above stated, will disclose that it is not new matter within the meaning of the statute. Section 4916, U. S. R. S. (Comp. St. § 9461). The “new matter” is the statement of a new use, an explanation of the operation of the device or the varying of the description in the original patent. Was the reissue applied for with due diligence so as to save the patentee from the charge of abandonment of the “new matter” to the public? The Supreme Court in the case'of Topliff v. Topliff, supra, after an exhaustive review of the cases on the" }, { "docid": "23257878", "title": "", "text": "the applicant, and upon payment of the required fee for a reissue for each of such reissued letters patent. The specifications and claims in every such case shall be subject to revision and restriction in the same manner as original applications are. Every patent so reissued, together with the corrected specifications, shall have the same effect and operation in law, on the trial of all actions for causes thereafter arising, as if the same had been originally filed in such corrected form; but no new matter shall be introduced into the specification, nor in case of a machine patent shall the model or drawings be amended, except each by the other; but when there is neither model nor drawing, amendments may be made upon proof satisfactory to the commissioner that such new matter or amendment was a part of the original invention, and was omitted from the specification by inadvertence, accident, or mistake, as aforesaid.” Stimpson v. West Chester Railroad Co. (1846) 4 How. 380; Battin v. Taggert, (1854) 17 How. 74; Miller v. Brass Co., (1881) 104 U. S. 350; Mahn v. Harwood, (1884) 112 U. S. 354; Coon v. Wilson, (1885) 113 U. S. 268; Wollensak v. Reiher, (1885) 115 U. S. 96; White v. Dunbar, (1886) 119 U. S. 47; Newton v. Furst & Bradley Co., (1886) 119 U. S. 373; Ives v. Sargent, (1887) 119 U. S. 652; Parker & Whipple Co. v. Yale Clock Co., (1887) 123 U. S. 87; Electric Gas Co. v. Boston Electric Co., (1891) 139 U. S. 481; Topliff v. Topliff, (1892) 145 U. S. 156; Leggett v. Standard Oil Co., (1893) 149 U. S. 287; Dunham v. Dennison Manufacturing Co., (1894) 154 U. S. 103; Abercrombie & Fitch Co. v. Baldwin, (1917) 245 U. S. 198; Keller v. Adams-Campbell Co., (1924) 264 U. S. 314, and cases there cited; Altoona Theatres v. Tri-Ergon Corp., (1935) 294 U. S. 477; Wooster v. Handy, (1884) 21 F. 51; Ashley v. Samuel C. Tatum Co., (1917) 240 F. 979; General Refractories Co. v. Ashland Fire Brick Co., (1926) 15 F. 2d 215, reversed" }, { "docid": "21509088", "title": "", "text": "of reissue patent No. 15,624 — is distinct from the subject-matter of the prior suit of December 29, 1921, which was the validity of the original patent, No. 1,007,498. The decree in the prior suit adjudging the patent there involved invalid could not be pleaded as a bar to the New York suit based upon reissue patent No. 15,624; for a decision as to the validity or invalidity of the reissue patent requires a determination of other questions than the mere validity or invalidity of the original patent, No. 1,007.498. Penn Electrical & Mfg. Co. v. Conroy (C. C. A.) 185 F. 511, 514. This being so, the present plaintiff, at the time Of bringing this suit, had not established, as against the plaintiff in the New York suit, that the article he was manufacturing and selling to the defendant in that suit was not an infringement of the reissue patent, or that that patent was invalid. As the decree in the prior suit would not work an estoppel, should the present plaintiff plead it in the New York suit, where he has intervened, so in this suit for an injunction it does not establish the plaintiff’s trade right as against the reissue patent, as was the ease in Kessler v. Eldred, 206 U. S. 285, 27 S. Ct. 611, 51 L. Ed. 1065, for there the patent sued upon in the original suit, as well as in the subsequent one which Kessler sought to enjoin, was the same, and the parties to both actions were the same. The reissue .patent being presumptively valid (Cantrell v. Wallick, 117 U. S. 689, 6 S. Ct. 970, 29 L. Ed. 1017), its owner had the legal right to decide what infringers he would sue and where he would bring suit, without interference from the plaintiff, who has not established his right against the reissue patent. See Rubber Tire Co. v. Goodyear Co., 232 U. S. 413, 416, 418, 34 S. Ct. 403, 58 L. Ed. 663. Furthermore, it has not been made clearly to appear that the plaintiff cannot obtain full and" }, { "docid": "4327456", "title": "", "text": "the complainant’s machine the writing table is mounted between the side frames, so that its upper surface, over which the webs pass, is slightly below the upper edges .of the side frames, whereby the walls of the frames serve as guides for the webs, and this is not true of the defendant’s device. The motion was argued, and was in effect a reargument, and as such I have considered it. It has been established by many decisions that, when a person has an original patent of narrow and limited claims and secures a reissue with broad claims, covering a device not embraced within the original claims, the patentee will be estopped from enforcing the broad claims against the defendant, who has spent large sums of money and built up a business between the original issue and the reissue of patent. Likewise, when the claims of his original patent are broad, and the patentee secures a reissue with narrow claims, from which the broad claims have been omitted, and then secures a second reissue, containing both the narrow and broad claims, he will be es-topped from enforcing the broad claims of the second reissue against the defendant, who has between the reissues spent money and built up a business in the belief that the patentee had abandoned his broad claims to the public. In the first case, by not claiming them, he is held to have abandoned them. Miller v. Brass Co., 104 U. S. 350, 26 L.Ed. 783; Mahn v. Harwood, 112 U. S. 354, 5 Sup. Ct. 174, 6 Sup. Ct. 451, 28 L. Ed. 665; Autopiano Co. v. American Player Action Co., 222 Fed. 276, 138 C. C. A. 38; American Automotoneer Co. et al. v. Porter, 232 Fed. 456, 146 C. C. A. 450; Ashley et al. v. Tatum Company (D. C.) 240 Fed. 979. In the case at bar, however, the original patent contained broad claims. The reissue patent contained all of the broad claims of the original and other narrow claims in addition. I held that some of the claims both in the original and" }, { "docid": "13607639", "title": "", "text": "Office not to allow written descriptions in the case of design patents was apparently disapproved of by the Circuit Court of Appeals, and the customs and legal theories of many of the patent profession were disturbed. Under these circumstances, the trial of every expedient, and a protracted consideration, were unusually justified. The reissue patent should not, under such circumstances, be held invalid for laches. Ever since the issue of its patent for the diamond inkstand granted July 6, 1909, the defendant has done a business in the manufacture and sale of these inkstands which I have held infringed complainant’s reissue patent. This business appears to have been larger in the first two or three years after the issue' of the Hilles patent than it has been since. While, therefore, the defendant may not have manufactured or sold large quantities of its inkstands, it is nevertheless an incontrovertible fact that it has manufactured and sold under the Hilles patent a substantial number of inkstands, and that neither the patent nor the inkstand infringed Ashley’s original patent according to the construction placed thereon by the Circuit Court of Appeals. I can feel no doubt that a business of some importance has been built up by the defendant between the dates of the granting of the original patent and of the reissue, and that consequently intervening rights have arisen within the legal acceptation of the term. Under these circumstances, complainants cannot be allowed to claim “infringement by this particular defendant in continuing the manufacture and sale which it entered upon while the * * * [original patent] was the only public announcement of complainant’s alleged monopoly.’’ See Autopiano Co. v. American Player Action Co., 222 Fed. 282, 138 C. C. A. 38. A reissue of a design patent, the original of which was taken out at a time when the rules of the Patent Office limited the applicant to a diagrammatic description, is not open to suspicion because the claims cover the dominant features and are not limited to a verbal description of nothing more than the exact diagrammatic drawing shown in the" }, { "docid": "4327448", "title": "", "text": "was allowed contrary to law and tire rules of the Patent Office, and the Krauth patent was anticipated and did not contain invention. Krauth set forth the grounds for the reissue in the affidavit accompanying his petition. He stated that the patent was inoperative, for the reason that the specification thereof was insufficient, and that the errors which rendered tire patent inoperative arose by inadvertence. If an inventor has produced and described in his specification two or more inventions, which may be secured in one patent, but covers only one of them by his claims, then his patent is operative only as to the one claimed. Under such circumstances, if the failure to claim all his invention disclosed was due to inadvertence, a reissue may be granted. The Commissioner of Patents in granting the reissue ipso facto decided that the insufficiency arose by reason of inadvertence. Otherwise, the reissue would not have been allowed. His decision upon the question of inadvertence, accident, or mistake will not be reviewed, unless the matter is manifest from the record, and I cannot say that it is in the instant case. Topliff v. Topliff, 145 U. S. 156, 174, 12 Sup. Ct. 825, 36 L. Ed. 658; Ashley v. Samuel C. Tatum Co. (D. C.) 240 Fed. 979, 981. In the reissue of the Krauth patent seven new claims were added, and these were based upon the disclosures made in the reissue specification. As to these new claims the original patent was inoperative, and these claims, or at least some of them, the defendant alleges, were based upon the “new matter” introduced into the specification. Defendant’s Exhibit 36 is the reissue letters patent, and the defendant has bracketed with pen and ink therein the so-called new fnatter added to the specification. The provision that “no new matter shall be introduced into the specification” is only \"another way of saying that the reissued patent shall be for “the same invention” as the original. The same invention refers to whatever invention was described in the original letters patent and appears therein to have been intended to" }, { "docid": "15254087", "title": "", "text": "Co., 248 Fed. 919, 926, 161 C. C. A. 37; Dey Time Register Co. v. Syracuse Time Recorder Co. (C. C.) 152 Fed. 440, 451; Walker on Patents, § 348; Curtis, Patents (4th Ed.) § 310. The evidence shows that, prior to any knowledge on their part of the Keller patent, the appellees had been working on their device, and had made and sold a few of them, but subsequently learned of and became familiar with the original Keller patent, and before proceeding with the manufacture and sale of their own device, and prior to the making of the application for the reissued Keller patent, they applied to the attorneys who procured the original Keller patent for information as to whether their device was an infringement upon that of Keller, saying that they did not wish to infringe, and, being told that it would not be an infringement, they proceeded with the manufacture and sale of their own on a substantial basis. We therefore think it clear that the appellees had and have such intervening rights as were properly protected by the court below. See Coon v. Wilson. 113 U. S. 268, 5 Sup. Ct. 537, 28 L. Ed. 963; Topliff v. Topliff, 145 U. S. 156, 12 Sup. Ct. 825, 36 L. Ed. 658; Dunham v. Dennison, 154 U. S. 103, 111, 14 Sup. Ct. 986, 38 L. Ed. 924; Auto-Piano Co. v. American Player Action Co., 222 Fed. 276, 138 C. C. A. 38. The decree of the court below is affirmed." }, { "docid": "4024616", "title": "", "text": "invention included both, and it was held that the intervening rights of immunity of the infringer did not ex tend beyond the date of the reissue. It is insisted, however, that the Fitch Case was not one of an enlarged claim, or at any rate that a reissue was unnecessary because the original claim would have sufficed. The views of the Circuit Courts of Appeals on the general subject of the scope of intervening rights are not entirely easy to reconcile. Crown Cork & Seal Co. v. Aluminum Stopper Co., 108 Fed. 845; General Electric Co. v. Richmond Ry. Co., 178 Fed. 84; A. D. Howe Mach. Co. v. Coffield Motor Washer Co., 197 Fed. 541; Autopiano Co. v. American Player Action Co., 222 Fed. 276; American Automotoneer Co. v. Porter, 232 Fed. 456. The question, if it were really before us, would be one sufficiently important therefore to justify our consideration of it on certiorari. Both the District Court and the Circuit Court of Appeals in their final disposition of the case gave color of support to the claim of the petitioners that the question of intervening rights was in this case. The District Judge in dismissing the bill said: “ Without further discussion, I think the defendants occupy the position of one who has intervening rights and under those circumstances I think the plaintiffs are not entitled to a reissue of the patent as against the defendants.” So the Circuit Court of Appeals, after reciting the evidence showing that the defendants had made the shields in question and built the machinery for future manufacture before the patentee applied for reissue and after being advised by counsel that they would not infringe the ’original patent, said: “ We, therefore, think it clear that the appellees had and have such intervening rights as were properly protected by the court below.” Yet an analysis of the record and the reasons given in the body of the opinions of the two courts leads to a different conclusion. The District Court said of the alleged infringing device: “ The defendants’ bracket is an" }, { "docid": "16463830", "title": "", "text": "12 Sup. Ct. 825, 36 L. Ed 658; Chapman v. Wintroath, 252 U. S. 126, 40 Sup. Ct 234, 64 L. Ed. 491. The appellant here has intervening rights as against the reissue, for it has acquired the right to manufacture and sell that which Ells failed to claim, and, having expended considerable sums of money in the manufacture of a device at a time when the original Ells patent was as yet unsurrendered, it cannot be held to infringe the added claims of the reissue. Ives v. Sargent, 119 U. S. 652, 7 Sup. Ct. 436, 30 L. Ed. 544; Autopiano Co. v. American Player Action Co., 222 Fed. 276, 138 C. C. A. 38; Diamond Drill Contracting Co. v. Mitchell (C. C. A.) 269 Fed. 261; Keller v. Adams-Campbell Co. (C. C. A.) 287 Fed. 838; Ashley v. Samuel C. Tatum Co. (D. C.) 240 Fed. 979. We find no conflict between these views and the decision in Abercrombie & Fitch Co. v. Baldwin, 245 U. S. 198, 38 Sup. Ct. 104, 62 L. Ed. 240, cited by the appellee. In the latter case it was held that the reissue did not enlarge the original patent, and the court was of the opinion that the original claims were sufficient in their scope to include, under the doctrine of equivalents, the more explicit claims of the reissue. It is manifest that in such a case there could be no loss of rights by delay in applying for a reissue, and there could be no impediment byway of intervening fights; the original claims being found sufficient to protect the whole invention of the patentee. The construction to be placed upon claim 6 of the Chapman patent is largely controlled by the proceedings had upon the application in the Patent Office. It there appears that the claim was rejected on the ground that it was substantially met by the patent to Gillespie, No. 1,-666,828, issued January 4, 1916, and the patent to Fils. There was no appeal from that finding of fact, and Chapman canceled the claim. The claim was finally" }, { "docid": "4327457", "title": "", "text": "the narrow and broad claims, he will be es-topped from enforcing the broad claims of the second reissue against the defendant, who has between the reissues spent money and built up a business in the belief that the patentee had abandoned his broad claims to the public. In the first case, by not claiming them, he is held to have abandoned them. Miller v. Brass Co., 104 U. S. 350, 26 L.Ed. 783; Mahn v. Harwood, 112 U. S. 354, 5 Sup. Ct. 174, 6 Sup. Ct. 451, 28 L. Ed. 665; Autopiano Co. v. American Player Action Co., 222 Fed. 276, 138 C. C. A. 38; American Automotoneer Co. et al. v. Porter, 232 Fed. 456, 146 C. C. A. 450; Ashley et al. v. Tatum Company (D. C.) 240 Fed. 979. In the case at bar, however, the original patent contained broad claims. The reissue patent contained all of the broad claims of the original and other narrow claims in addition. I held that some of the claims both in the original and in the reissue were valid and infringed. It nowhere appears that the complainants 'dedicated to the public or abandoned anything which they are now claiming. And neither does it appear that they have at any time acquiesced in the infringement of the defendant. As to the defendant’s intervening rights, its status was not changed in any way by the reissue. It merely began to infringe the reissue as soon as issued and continued to infringe the original claims. My attention has not been called to a single case in which the complainants have been estopped, on the ground of intervening rights, where the original claims, which were broader than the reissue claims, were all retained in the reissue when it was applied for within a reasonable time. On the second and third points it is sufficient to say that the defendants’ device is responsive to the claims of the patent without the rear pins, on which complainants state they have another patent. While the specification and claims are silent as to the particular shape of" }, { "docid": "13607640", "title": "", "text": "according to the construction placed thereon by the Circuit Court of Appeals. I can feel no doubt that a business of some importance has been built up by the defendant between the dates of the granting of the original patent and of the reissue, and that consequently intervening rights have arisen within the legal acceptation of the term. Under these circumstances, complainants cannot be allowed to claim “infringement by this particular defendant in continuing the manufacture and sale which it entered upon while the * * * [original patent] was the only public announcement of complainant’s alleged monopoly.’’ See Autopiano Co. v. American Player Action Co., 222 Fed. 282, 138 C. C. A. 38. A reissue of a design patent, the original of which was taken out at a time when the rules of the Patent Office limited the applicant to a diagrammatic description, is not open to suspicion because the claims cover the dominant features and are not limited to a verbal description of nothing more than the exact diagrammatic drawing shown in the specification of the original patent — in other words, because the claims have been broadened. The defendant’s inkstand is undoubtedly within the claims of the reissue patent and contains all the dominant features of the Ashley design. It is not enough for defendant, while using this design as a basis, to superimpose ornamentation thereon, even though the ornamentation is sufficient to make defendant’s inkstand readily distinguishable by the casual observer from complainants. The changes made by the defendant must have proceeded so far that it cannot fairly be said that Ashley’s, design is a substantial and easily discernible feature of the completed structure. Such is not, I think, the case here. While, therefore, the reissue patent is valid and infringed, this suit cannot be maintained against this particular defendant, because of its intervening rights, and the bill must be dismissed, with costs." }, { "docid": "7459054", "title": "", "text": "rights, and the reissue was not an attempt to incorporate aftcr-acquired knowledge, but was simply an effort to express in technically correct phraseology what had been botched by the first solicitor. So much has been written as to reissues that an elaborate review of the authorities collated and commented upon by respective counsel seems unnecessary. The fundamental test in considering the reissue statute is good faith. Somehow the courts are usually able to- see through a situation, and to realize whether the reissue has been applied for and obtained in good faith, for the purpose of curing inadvertence or mistake, or whether the reissue merely represents an attempt to corral the art in essential particulars, which the inventor never disclosed and probably knew nothing about. It is quite clear that, through error which has arisen by inadvertence or mistake and without any fraudulent or deceptive intention, the original patent was inoperative for the purposes intended, as is required by section 4916, Rev. St. I think that the statute does not mean that the patent as such must be inoperative or invalid, but does mean that the patent is inoperative or invalid to secure the enjoyment of the invention which the patent within its four corners fairly discloses. Topliff v. Topliff, 145 U. S. 156, 12 Sup. Ct. 825, 36 L. Ed. 658; Autopiano Co. v. American Player Action Co., 222 Fed. 276, - C. C. A.-; Baldwin v. Abercrombie Fitch Co., 227 Fed. 455, affirmed 228 Fed. 895. Within the principles stated in these cases (and others which could be cited), the facts in the suit at bar sustain the reissue. And thus, if I am right, the romance ends with the success of the original patentees in securing and retaining for themselves the fruits of their ability, instead of being compelled to look on as regretful spectators while others enjoy what is justly theirs. Finally, I am asked to pass upon a question of practice in respect of which it is said the members of the bar are somewhat in doubt. The defendant objected to the admission in evidence" }, { "docid": "4024615", "title": "", "text": "creating intervening rights in such a case presents a question not free from difficulty. That a reissued patent enlarging claims of the original, although not specifically mentioned in § 4916, Rev. Stats., is authorized by that section, when the failure to claim the larger claims justified by the actual invention was due to inadvertence, accident or mistake, is settled by the decision of this Court in Topliff v. Topliff, 145 U. S. 156, and other cases. That case also recognizes that one who, pending the application and granting of the reissue, manufactures and sells articles which infringe the reissued patent may be protected on principles of estoppel from the literal application of § 4916, Rev. Stats., which makes the operation of the reissue relate to the date of the original patent. In Abercrombie & Fitch Co. v. Baldwin, 245 U. S. 198, a change, in the reissue, of the language of an original claim made it cover not only a bent pipe as shown, but a straight pipe as well, where the substance of the invention included both, and it was held that the intervening rights of immunity of the infringer did not ex tend beyond the date of the reissue. It is insisted, however, that the Fitch Case was not one of an enlarged claim, or at any rate that a reissue was unnecessary because the original claim would have sufficed. The views of the Circuit Courts of Appeals on the general subject of the scope of intervening rights are not entirely easy to reconcile. Crown Cork & Seal Co. v. Aluminum Stopper Co., 108 Fed. 845; General Electric Co. v. Richmond Ry. Co., 178 Fed. 84; A. D. Howe Mach. Co. v. Coffield Motor Washer Co., 197 Fed. 541; Autopiano Co. v. American Player Action Co., 222 Fed. 276; American Automotoneer Co. v. Porter, 232 Fed. 456. The question, if it were really before us, would be one sufficiently important therefore to justify our consideration of it on certiorari. Both the District Court and the Circuit Court of Appeals in their final disposition of the case gave color" }, { "docid": "9364131", "title": "", "text": "Colt held a patent valid, though its subject-matter was described, but not claimed, in a patent to the same inventor issued 13 months before the patent in suit was filed, and claiming a machine whose operation involved the same process. The decision says: “Under these circumstances, has the invention been abandoned to the public? The language of the supreme court in Miller v. Brass Co., 104 U. S. 350 [26 L. Ed. 783], James v. Campbell, 104 U. S. 356 [26 L. Ed. 786], and Mahn v. Harwood, 112 U. S. 354, 5 S. Ct. 174 [6 S. Ct. 451, 28 L. Ed. 665], is cited as sustaining the proposition that the omission of Appel to claim his process invention in the machine patent was in law a dedication of that invention to the public. The supreme court in these cases was dealing with the subject of reissues under the statute. In this ease we are not dealing with the law of reissues. * * * I do not understand that the Supreme Court have held that such prior description is a dedication to the public of the second invention. The invention of a machine, and a process employed in the use of the machine, being different things, it is diffi cult to see how the application, for a patent on one should operate as an abandonment of any claim to a patent on the other: Provided, of course, the application for the second patent is made before the statutory forfeiture of two years’ prior use has run. This view is in harmony with the decisions of the circuit courts where the question has arisen. Vermont Farm-machine Co. v. Marble [C. C.] 19 F. 307 [Id. (C. C.)] 20 F. 117; Graham v. McCormick [C. C.] 11 F. 859; Graham v. Geneva Lake C. Manuf’g Co. [C. C.] 11 F. 138; McMillan v. Rees [C. C.] 1 F. 722; Hatch v. Moffitt [C. C.] 15 F. 252; Cahn v. Wong Town On [C. C.] 19 F. 424; Collender v. Griffith, 18 Blatchf. 110, 2 F. 206. The patent in suit" }, { "docid": "13500224", "title": "", "text": "Since in the latter ease there is no publication aud hence no dedication upon which the defendant may rely, it is suggested that no estoppel can be involved, and that hence it follows that tbe two-year limit in reissue does not depend on any theory of estoppel. In each of these later cases there was a delay by the applicant, equivalent, as the court thought, to the statutory two-year bar which had been tbe basis by analogy of tbe reissue decisions, and this delay was held to be laches which invalidated the patent, just as such delay, whether it be called laches or estoppel in favor of the publie generally, invalidates a broadening reissue. While it must be conceded, as the court below held, that the Supreme Court has never expressly upheld the defense of a private intervening right, or distinguished from the general publie intervening rights, but has recognized the unsettled character of the questions (Keller v. Adams, 264 U. S. 314, 44 S. Ct. 356, 68 L. Ed. 705), and while perhaps the basis of tbe two-year rule as to reissues should be called laches rather than estoppel, yet the name is not important, for it is the reliance by the publie on the dedication, to the public’s (presumptive) injury, which in the typical case develops mere delay into fatal laches., For these reasons, the decree must he reversed, and the ease remanded, with instructions to dismiss the bill. It is also not without importance, although we do not consider it as here vital, that the plaintiff was moved to the reissue only by learning that the defendant, a competitor, had built these or one of these noninfringing machines. Mahn v. Harwood, 112 U. S. 354, 361, 5 S. Ct. 174, 6 S. Ct 451, 28 L. Ed. 665; Coon v. Wilson, 113 U. S. 268, 5 S. Ct. 537, 28 L. Ed. 963; Parker Co. v. Yale Co., 123 U. S. 87, 8 S. Ct. 38, 31 L. Ed. 100; Topliff v. Topliff, 145 U. S. 156, 165, 169, 12 S. Ct 825, 36 L. Ed. 658;" }, { "docid": "23632187", "title": "", "text": "seen, Sloper maintained his casing in shape for volucanization by an expansible metal segmental ring, positioned to expand automatically within the shaped tire, the Hopkinson reissue patent describes a buckled inflatable bag which, when raised in operation to a position within the shaped casing and released, expands and functions as a retaining means. This patent is said to be infringed by the defendant’s Nichols expander. We are confronted at the outset with the contention that the reissue claims are invalid because there is no disclosure as to the nature of the inadvertence, accident, or mistake upon which the reissue application was based. All that the applicant says upon that subject is that “a failure to present claims of the scope indicated arose inadvertently through an oversight of the inventor.” While the statute is not specific as to that which constitutes inadvertence, accident, or mistake, and the courts have read into it a right to reissue where justified by equitable principles, Keller v. Adams-Campbell Co., 264 U. S. 314, 317, 44 S. Ct. 356, 68 L. Ed. 705, it seems to us clear from the authorities that while great liberality must be accorded the inventor who has failed in his original application to claim his true invention, and that upon substantial showing that he has failed to do so through some error innocently made, the decision of the Commissioner as to his right to a reissue will not be reviewed, yet, where no basis for a conclusion that there was such error is either asserted or proved, or where the evidence is conclusive that there was none, the reissue is void. Peoria Target Co. v. Cleveland Target Co., 58 F. 227, 239 (C. C. A. 6). In our most recent decisions on this subject, the rule has been fully considered and the authorities carefully reviewed. H. W. Roos Co. v. McMillan, 64 F.(2d) 568; Union Switch & Signal Co. v. Louisville Frog, Switch & Signal Co., 73 F.(2d) 550, 552. In the latter case we took pains to point out that the oath there considered failed to comply with Rule 87" }, { "docid": "21536147", "title": "", "text": "clamps in use in the early part of 1927. Keffer never manufactured or sold any of his clamps, and appellant did not acquire any right or interest in the patent or expend any money to develop it prior to November 6, 3926. Subsequently and perhaps before the making of the license contract, it did expend a considerable sum of money in equipping itself to manufacture and sell the device. This expenditure, however, was made after the filing of the application for the reissue. Doubt lias been expressed as to whether a reissue patent may he held valid at large but invalid as to one who has acquired intervening rights. Cf. Otis Elevator Co. v. Atlantic Elevator Co. (C. C. A.) 47 F.(2d) 545, 549, 550. The question, as such, was not decided in Ashland Fire Brick Co. v. General Refractories Co., 27 F.(2d) 744 (6 C. C. A.). It lias also been thought that a private intervening right is but an'aspect of ladies in its full sense. Compare the two cases referred to. Wo pass upon the claim to sueli rights here, however, as argued; that is, as relating to the validity of the patent as against the defendant’s device apart from the effect of laches in general. Upon this feature of the case it contended that the period in which private rights may attach extends from the date of the original issue to the date of the grant of the reissue rather than the date of the application for the reissue. We think the authorities do not sustain that position, but limit the interim to the dato of the application for the reissue. Walker on Patents (6th Ed.) § 299; Odell v. Stout (C. C.) 22 F. 159, 163 ; Ashland Fire Brick Co. v. General Refractories Co., supra; Naivette, Inc., v. Bishinger, 61 F.(2d) 433 (6 C. C. A.); Topliff v. Topliff, 145 U. S. 156, 169,12 S. Ct. 825, 36 L. Ed. 658. As thus limited, it is obvious that the defense of estoppel, because of vested private rights, is not available, for prior to that date" } ]

[ { "docid": "5898628", "title": "", "text": "consider evidence as to an alleged earlier offense, in determining the state of mind or intent with which the accused did the acts charged in the indictment.” The government urges that the trial court was referring to evidence of other securities sales not specifically alleged as counts in the indictment. We have held that where intent and knowledge are essential elements of an offense, evidence of acts similar in nature and closely related in time to those in the indictment are admissible to prove intent and guilty knowledge. See Von Feldt and Inland Oil Co. v. United States, 407 F.2d 95 (8 Cir. 1969). The problem here, as pointed out by defendant’s counsel in his oral exception, is that the instruction could be interpreted to apply to Wyum’s prior conviction. Under the language used, without further clarification, we find the instruction erroneous. However, in view of the prior limiting instruction and in consideration of the overwhelming evidence of guilt on Wyum’s part, we hold the error to be harmless, having no substantial effect upon the jury. Defendant also asserts error in the trial court’s instruction that “[t]here is nothing peculiarly different in the manner in which a jury is to consider the proof in a criminal case from that in which all reasonable persons treat any question depending upon evidence presented to them.” Defendant maintains that this is inconsistent with the requirement that in a criminal case the evidence must be such so as to prove guilt beyond a reasonable doubt. We must agree. The instruction has no legal foundation and should not have been given. However, the trial court did instruct the jury that all elements of the offenses charged must be proven beyond a reasonable doubt. The court repeated this several times. In weighing the prejudicial effect of the above instruction we are not faced with the singular application of a different standard to a specific element of the offense in contrast to the other elements to be proven. Cf. Stump v. Bennett, 398 F.2d 111 (8 Cir. 1968). Here the instruction is given generally and at best" } ]

[ { "docid": "2005959", "title": "", "text": "court recently resolved this issue in United States v. Barrera-Gonzales, 952 F.2d 1269 (10th Cir.1992). In Barrera, we held that giving this particular “reasonable doubt” instruction did not constitute plain error, although we recognized this court’s preference for a different instruction employing “hesitate to act” language. Barrera, at 1272. In Barrera we found significant that “the trial judge used the terms ‘reasonable doubt’ or ‘beyond a reasonable doubt’ twelve times during the course of his instructions to the jury,” id. at 1271, thus diminishing the risk that the jury might have been confused and applied a different standard. The instant case is controlled by Barrera; it involves the same instruction, the same plain error standard, and the same repeated emphasis on the term “reasonable doubt.” The district court here also repeatedly emphasized that the government had the burden of proof. XI R. 98, 100-01, 109-110, 119; see also XII R. 8 (“the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.”). Defendant also complains that the following instruction compounded the error: There is nothing peculiarly different in the way a jury should consider the evidence in a criminal case from that in which all reasonable persons treat any question depending upon evidence presented to them. You are expected to use your good sense, consider the evidence in the case for only those purposes for which it has been admitted and give it a reasonable and fair construction in the light of your common knowledge of the natural tendencies and inclinations of human beings. XII R. 8. The government concedes that this instruction has been disapproved by this court, see United States v. Calabrese, 645 F.2d 1379, 1388 (10th Cir.), cert. denied, 451 U.S. 1018, 101 S.Ct. 3008, 69 L.Ed.2d 390 (1981); United States v. Pepe, 501 F.2d 1142, 1144 (10th Cir.1974), and would have been better omitted, but it argues the instruction is not plain error. Once again we disapprove of the instruction but hold that even in tandem with the “reasonable doubt” instruction it did not" }, { "docid": "15854373", "title": "", "text": "an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. The attitude of jurors at the outset of their deliberation is important. It is seldom helpful for a juror, upon entering the jury room, to announce an emphatic opinion on the case or a determination to stand for a certain verdict. When a juror does that at the outset, individual pride may become involved, and the juror may later hesitate to recede from an announced position even when shown it is incorrect. You are not partisans. You are judges — -judges of the facts. Your sole interest is to ascertain the truth. You will make a worth-while contribution to the administration of justice if you arrive at an impartial verdict in this case. There is nothing peculiarly different in the way a jury is to consider the proof in a criminal case from that in which all reasonable persons treat any question depending upon evidence presented to them. You are expected to use your good sense; consider the evidence for only those purposes for which it has been admitted and give it a reasonable and fair construction. Bear in mind at all times that it would be a violation of your sworn duty to base a verdict upon anything but the evidence in the case. If the accused be proved guilty, say so. If not proved guilty, say so. Remember at all times that a defendant is entitled to acquittal if any reasonable doubt remains in your minds. Remember also that the question before you can never be: will the Government win or lose the case? The Government always wins when justice is done, regardless of whether the verdict be guilty or not guilty. Under these instructions you may find all the defendants guilty" }, { "docid": "22845025", "title": "", "text": "fails to do so, under your oath, you would have to find that Defendant not guilty. But while the Government’s burden is a heavy burden, it is not necessary that the Defendant’s guilt be proved beyond a reasonable doubt, because that is generally impossible. The law does not require a mathematical certainty, only the exclusion of any reasonable doubt concerning that Defendant’s guilt. In that regard, a “reasonable doubt” is defined as a real doubt, based upon reason and common sense after a careful and impartial consideration of the entire evidence in this case, or the lack of evidence. Proof beyond a reasonable doubt, in other words, is proof of such a convincing character that you would be willing to rely or act upon it without hesitation in a decision involving the most important of your affairs. But you take a common sense view.... You may not find a Defendant guilty unless you find that the inferences you draw from the evidence are consistent with the theory of his guilt and inconsistent with reasonable theories of innocence. If you are convinced that a Defendant has been proved guilty beyond a reasonable doubt, say so with a verdict of guilty. On the contrary, if you have reasonable doubt, then under your oath, you would have to find that Defendant not guilty. R22-174-75 (emphasis added). No objection was made as to this instruction. R22-206-09. The passage, as provided to the jury in the written charge, read: Thus, while the Government’s burden of proof is a strict or heavy burden, it is not necessary that a Defendant’s guilt be proved beyond all possible doubt. It is only required that the Government’s proof exclude any “reasonable doubt” concerning a Defendant’s guilt. R6-133-2. “[W]e consider [a reasonable doubt] instruction as a whole to determine if the instruction misleads the jury as to the government’s burden of proof.” Harvell v. Nagle, 58 F.3d 1541, 1542 (11th Cir.1995). The jury must be instructed that defendant’s guilt must be proved by the government “beyond a reasonable doubt” on each element of the charged offense, but the trial court" }, { "docid": "23081815", "title": "", "text": "revealed that the plastic bag contained 5.8 grams of cocaine base. Before trial, Defendant and the government submitted proposed jury instructions to the district court. The government’s instructions included a definition of reasonable doubt identical to this Circuit’s Pattern Jury Instructions. James submitted two possible definitions of reasonable doubt. The first was an excerpt from the Eleventh Circuit Pattern Jury Instruc tions, reading “Proof beyond a reasonable doubt is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.” James’s alternative definition of reasonable doubt was the same Eleventh Circuit Pattern Jury Instruction submitted by the government, which also included the above quoted language. The district court, after reviewing the parties’ proposed instructions, prepared preliminary draft instructions. James’s counsel reviewed the draft instructions and stated that he had no objections. The district court instructed the jury using the reasonable doubt standard from the Eleventh Circuit Pattern Jury Instructions, which had been both proposed and approved by James. Those instructions read: Now, the United States has the burden of proof, of proving a defendant guilty beyond a reasonable doubt. And if it fails to do so, you must find that defendant not guilty. But while the United States’ burden of proof is a strict or heavy burden, it is not necessary that a defendant’s guilt be proved beyond all possible doubt. It is only required that the United States’ prove [sic] — proof exclude any reasonable doubt concerning the defendant’s guilt. A reasonable doubt is a real doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case. Proof beyond a reasonable doubt is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs. If you are convinced that the defendant has been proved guilty beyond a reasonable doubt, then during your deliberations you should say so. If you are not sufficiently convinced by the evidence, then during your" }, { "docid": "23665018", "title": "", "text": "the paramount requirement that the jury in a criminal case be guided by instructions framed in language which is unmistakably clear. 363 F.2d at 175. Thereafter, the Notaro court held the first paragraph of the instruction correct but the second faulty in several respects. The court found it reasonably probable that the language “On the other hand, if the jury should find from the evidence,” confused the jury. Employment of the words “On the other hand” in the critical paragraph, without guidance on burden of proof, could have created the impression in lay minds that defendant carried the burden as to the positive elements of his defense. The instruction’s “should find from the evidence” language was also improper because the defendant was entitled to acquittal not only if the jury found that he had no previous intent or purpose to commit the offense, but also if the jury entertained reasonable doubt about defendant’s predisposition. 363 F.2d at 175-76. The instruction given by the district court in the case at bar never mentions the quantum of proof required (beyond a reasonable doubt) and upon whom this burden falls. For those reasons it was prejudicially erroneous. The language of an entrapment instruction must unmistakably apprise the jury that the burden is upon the government to prove beyond a reasonable doubt that, before anything at all occurred respecting the alleged offense for which the defendant is being prosecuted, the defendant was ready and willing to commit such crimes whenever an opportunity was afforded, and that government agents did no more than offer the opportunity. The instruction also must be unmistakably clear in informing the jury that if the evidence in the case leaves a reasonable doubt as to whether defendant had the predisposition to commit an offense of the character charged, apart from the government inducement or persuasion, the defendant must be found not guilty. The government also argues on this appeal that the district court’s general charge on the government’s burden of proving guilt beyond a reasonable doubt cures any defect with the specific portion of the charge dealing with entrapment. This" }, { "docid": "18313473", "title": "", "text": "the first paragraph is not consistent with this elementary proposition or with other portions of the charge in which the court correctly stated the rules. We think that the defect in the instruction could be cured by either omitting the first paragraph, or modifying it by inserting after the word “question” the words “arising in the most important of their affairs and.” It would also be wise to rephrase the concluding paragraph to read: “If the accused be proved guilty beyond a reasonable doubt, say so; if not so proved guilty, say so.” Cf. Devitt & Blackmar, Federal Jury Practice and Instructions, § 17.06 (1970). If the second modification that we suggest is made, we doubt that the first paragraph, as given, would be error at all, much less reversible error, but we think that it would be better to omit the paragraph or modify it as we suggest. 5. Cross-examination of character witnesses. The cross-examination of Cummings’ two character witnesses about the defendant’s arrest on a charge of receiving stolen property, when the prosecutor knew that the charges had been dismissed, was not improper. The Supreme Court has long held that a defendant’s character witnesses may be cross-examined concerning rumors about the defendant and about arrests, even though the arrest did not culminate in convictions. Michelson v. United States, 1948, 335 U.S. 469, 479, 482, 69 S.Ct. 213, 93 L.Ed. 168. See generally United States v. Wolfson, 2 Cir., 1968, 405 F.2d 779; Josey v. United States, 1943, 77 U.S.App.D.C. 321, 135 F.2d 809. The only limitation on this form of cross-examination is that the questions be asked in good faith. United States v. Beno, 2 Cir., 1963, 324 F.2d 582; Malatkofski v. United States, 1 Cir., 1960, 179 F.2d 905. There is nothing in the record to indicate that the prosecutor’s questions were asked in bad faith. Other errors assigned, if error at all, are not likely to recur at a new trial, and need not be considered. Reversed and remanded for a new trial. . The government argues that since Section 7203 was not repealed by the" }, { "docid": "15854374", "title": "", "text": "verdict in this case. There is nothing peculiarly different in the way a jury is to consider the proof in a criminal case from that in which all reasonable persons treat any question depending upon evidence presented to them. You are expected to use your good sense; consider the evidence for only those purposes for which it has been admitted and give it a reasonable and fair construction. Bear in mind at all times that it would be a violation of your sworn duty to base a verdict upon anything but the evidence in the case. If the accused be proved guilty, say so. If not proved guilty, say so. Remember at all times that a defendant is entitled to acquittal if any reasonable doubt remains in your minds. Remember also that the question before you can never be: will the Government win or lose the case? The Government always wins when justice is done, regardless of whether the verdict be guilty or not guilty. Under these instructions you may find all the defendants guilty or all of-them not guilty, or you may find one or more of them guilty and the others not guilty of the charge. At any time during your deliberations you may return into court your verdict of guilty or not guilty with respect to any defendant as to whom you have unanimously agreed. As you recall, the case as to defendant Mary Bernadette Doyle has been severed from this trial because of her illness. Hence you are not called upon to' return any verdict as to the guilt or innocence of defendant Mary Bernadette Doyle. Upon retiring to the jury room, you will select one of your number to act as foreman. The foreman will preside over your deliberations and be your spokesman in court. Forms of verdict have been prepared for your convenience. [Forms of verdict read.] You will take these forms to the jury room and when you have reached unanimous agreement as to your verdict, you will have your foreman fill in, date and sign the form to state the verdict upon" }, { "docid": "8579988", "title": "", "text": "ALARCON, Circuit Judge: James Newport and Dennis Thomas appeal their convictions stemming from their participation in a scheme to manufacture and distribute phenyl-2-propanone and methamphetamine. We must decide whether a jury instruction which equates “reasonable doubt” with “real doubt” diminishes the government’s burden of proof in violation of due process. We conclude that giving a “real doubt” instruction to the jury does not constitute constitutional error and affirm. i The district court gave the following instructions on reasonable doubt: The defendants are presumed by law to be innocent. The law does not require a defendant to prove his innocence or produce any evidence at all. The government has the burden of proving each defendant guilty beyond a reasonable doubt, and if it fails to do so, you must acquit him. Thus, while the government’s burden of proof is a strict or heavy burden, it is not necessary that the defendant’s guilt be proved beyond all possible doubt. It is only required that the government’s proof exclude any reasonable doubt concerning the defendant’s guilt.. A reasonable doubt is a real doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case. Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs. If you are convinced that the accused have been proven guilty beyond a reasonable doubt, say so. If you are not convinced, say so. Unless the government proves beyond a reasonable doubt that the defendant has committed every element of the offense with which he is charged, you must find him not guilty. Newport and Thomas argue, without citation to any authority, that “there would appear to be a Due Process constitutional infirmity with the ‘real doubt’ instruction given by the Court.” They also contend that “[a]s defined by Webster, the term ‘real’ must mean ‘indubitable’ or ‘unquestionable.’ ” This argument ignores the fact that the same source lists other meanings for the term “real,” which preceed those" }, { "docid": "23081840", "title": "", "text": ". At the time of James's trial, in 2009, this Circuit was still using the 2003 edition of the pattern instructions. This Circuit released new pattern jury instructions in August 2010. This new instruction on reasonable doubt is substantially similar, but not identical. See Eleventh Circuit Pattern Jury Instructions (Criminal Cases), Basic Instruction 3 (2010). . James’s counsel argued that in order to be convinced beyond a reasonable doubt, you have to have proof that is of such strength, of such character that you would be willing to rely on it without hesitation in the most important of your own affairs. When you compare that instruction, that you have to have proof of a character so convincing that you would rely upon it without hesitation in the most important of your own personal affairs, how does that square with [the police officer’s] opportunity to see the individual dropping a baggie for two seconds and never sees his face? . The court responded with the following supplemental instruction: Members of the jury, as stated in the instructions, the United States’ burden is to prove each element of the alleged offense beyond a reasonable doubt. In other words, the United States' proof must exclude every reasonable doubt, but not necessarily every possible doubt. A reasonable doubt is a real doubt based upon reason and common sense after careful and impartial consideration of all of the evidence in the case. If you find unanimously that the United States has proved each element of the alleged offense beyond a reasonable doubt, then your verdict is guilty. If you find unanimously that the United States has failed to prove any element of the alleged offense beyond a reasonable doubt, then your verdict is not guilty. Although the preceding two paragraphs refer primarily to the instructions on page 3 of the written instructions you received, you should not single out or exclude any instruction, and you should consider all of the court’s instructions as a whole. . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court adopted as binding" }, { "docid": "23081816", "title": "", "text": "instructions read: Now, the United States has the burden of proof, of proving a defendant guilty beyond a reasonable doubt. And if it fails to do so, you must find that defendant not guilty. But while the United States’ burden of proof is a strict or heavy burden, it is not necessary that a defendant’s guilt be proved beyond all possible doubt. It is only required that the United States’ prove [sic] — proof exclude any reasonable doubt concerning the defendant’s guilt. A reasonable doubt is a real doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case. Proof beyond a reasonable doubt is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs. If you are convinced that the defendant has been proved guilty beyond a reasonable doubt, then during your deliberations you should say so. If you are not sufficiently convinced by the evidence, then during your deliberations you should say so. After the court instructed the jury, the court called counsel to sidebar and asked, “Did I give an instruction that I said I would omit or otherwise err in the instructions?” James’s counsel replied, “No, Your Honor.” James’s counsel later relied upon the phrase “proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs,” in closing argument. During deliberations, the jury sent back a note with the question, “If we have, believe [sic], there is a possible doubt, should we return a verdict of guilty?,” and the court responded with a supplemental instruction, reiterating its original reasonable doubt instruction. James objected to the court’s response to the jury, essentially requesting that the court repeat its original reasonable doubt instruction exactly, including the last paragraph of the pattern instructions, the “subjective component.” The court overruled this objection because the jury had requested an instruction on “possible doubt,” rather than a mere repetition of the" }, { "docid": "1958838", "title": "", "text": "accompanied by careful cautionary instructions as to their use and limited significance, is within the discretion accorded the Trial Court in order that it may guide and assist the jury in understanding and judging the factual controversy. Shane v. Warner Mfg. Corp., 229 F.2d 207 (3rd Cir. 1956), dismissed, 351 U.S. 959, 76 S.Ct. 860, 100 L.Ed. 1481 (1956); Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395, 68 A.L.R.2d 761; 5B C.J.S. Appeal and Error § 1782; 89 C.J.S. Trial § 467. The appellants have alleged prejudice, but they have failed to convinee us of its existence by cogent argument. They would have us rely upon bare conjecture of prejudice in order to convert the blackboard’s use in the courtroom and during the j ury deliberation into plain error. This court will not usurp the Trial Court’s discretion absent a clear showing of abuse and resulting prejudice. United States v. Brumley, 466 F.2d 911 (10th Cir. 1972), cert. denied 412 U.S. 929, 93 S.Ct. 2755, 37 L.Ed.2d 156 (1973); United States v. Kienlen, 415 F.2d 557 (10th Cir. 1969). No such abuse and prejudice has been shown. III. Appellants contend that the Trial Court erred in giving Instruction Number 30, in that it was inconsistent with the appellants’ right to be proved guilty beyond a reasonable doubt. The instruction complained of and given by the Court reads: There is nothing peculiarly different in the way a jury is to consider the proof in a criminal case from that in which all reasonable persons treat any question depending upon evidence presented to them. You are expected to use your good sense; consider the evidence for only those purposes for which it has been admitted, and give it a reasonable and fair construction in the light of your common knowledge of the natural tendencies and inclinations of human beings. Appellants argue that while the instruction is similar to that contained in 1 Devitt and. Blackmar, Federal Jury Practice and Instructions § 17.06 (2nd Ed. 1970), the Trial Court omitted the language, “If the accused be proved guilty beyond reasonable doubt say" }, { "docid": "11012465", "title": "", "text": "Jury Instructions Having raised no objections to any aspect of the jury instructions at trial, Aponte now claims plain error both in the court’s explanation of reasonable doubt and in its failure to give a requested instruction on the defendant’s exercise of his right to remain silent. The following instructions (emphasis ours) contain the alleged errors: A reasonable doubt is a doubt based upon reason and common sense, and may arise from a careful and impartial consideration of all the evidence, or from lack of evidence. Proof beyond a reasonable doubt is proof that leaves you firmly convinced that the defendant is guilty. If after a careful and impartial consideration with your fellow jurors of all the evidence, you, are not convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not guilty. On the othér hand, if after a careful and impartial consideration with your fellow jurors of all the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant guilty. ... Each defendant is presumed to be innocent and does not have to testify or present any evidence to prove innocence. The government has the burden of proving every element of the charge beyond a reasonable doubt. If it fails to do so, you must return a not-guilty verdict. A.. Aponte contends that by the first paragraph the court permitted the jury to convict by a degree of proof lower than constitutionally required. He argues that “firmly convinced” suggests a burden of proof akin to the civil “clear and convincing” standard, use of which is impermissible in a criminal case. See Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1808-09, 60 L.Ed.2d 323 (1979) (clear and convincing is an “intermediate standard” between preponderance of the evidence and proof beyond a reasonable doubt); In re Winship, 397 U.S. 358, 363-64, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970) (g-uilt in a criminal case must be proved by no less a standard than “beyond a reasonable doubt”). According to" }, { "docid": "8093023", "title": "", "text": "guilty beyond a reasonable doubt. ... The presumption of innocence alone is sufficient to acquit a defendant unless you are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and important consideration of all the evidence in the case. In this case, as in every criminal case, the burden of proof is upon the Government to establish, first, the fact that the crime charged was committed; and, second, that the defendant on trial is guilty of the commission of that crime beyond a reasonable doubt. The burden never shifts to the accused, but remains with the Government throughout the trial. The law does not require a defendant to prove his innocence, to produce any evidence, or to call any witnesses. A reasonable doubt means in law just what the words imply. J.A. 441-42. In summary, before you return' a guilty verdict on Count One, you must find [the Government] established beyond a reasonable doubt that the conspiracy actually existed as charged, and that the defendant willfully joined this conspiracy with the specific intent of accomplishing the unlawful purpose of distributing cocaine, also known as coke. If you have any reasonable doubt whatsoever as to either of these two elements, then you must return a verdict of not guilty on Count One. In order to find the defendant guilty of the offenses charged in Counts Two, Three, and Four, the Government must prove to you the following things beyond a reasonable doubt: J.A. 450-51. Furthermore, when read together with the preceding paragraph, the erroneous instruction, as given, is internally inconsistent and, simply makes no sense. The preceding paragraph explains that if the evidence “convinces you beyond a reasonable doubt that the defendant is guilty” then it is the jury’s duty to convict. J.A. 457. The incorrect paragraph begins: “On the other hand, if a reasonable doubt exists,” but then continues to read that the defendant should likewise be found guilty. We simply do not believe that a reasonable jury would have been mislead by this isolated mistake, especially considering the idea ingrained in the psyche of all Americans that" }, { "docid": "23659258", "title": "", "text": "accomplice testimony”); United States v. Lee, 506 F.2d 111, 120 (D.C.Cir.1974) (holding failure to give instruction harmless because accomplice’s testimony was “materially corroborated”); United States v. Williams, 463 F.2d 393, 396 (10th Cir.1972) (“considerable evidence” corroborated the accom.plice’s testimony). Scott received an accomplice instruction that required the jury to look for additional corroboration, just not in the language he proposed. There is no error here, much less one justifying a writ. 2. Definition of Reasonable Doubt The trial judge read Ohio’s statutory definition of reasonable doubt to the jury, which included the phrase “firmly convinced,” and added some concluding remarks that essentially repeated the same language: Now, the Legislature of Ohio has specifically established the legal meaning of the term “reasonable doubt,” and I will read that definition to you: “Reasonable doubt is present when, the jurors, after they have carefully considered and compared all evidence, cannot say they are firmly convinced of the truth of the charge. It is a doubt based upon reason and common sense. Reasonable doubt is not mere possible doubt, because everything relating to human affairs or dependent upon moral evidence is open to some possible or imaginary doubt.” “Proof beyond a reasonable doubt is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his affairs.” All of the evidence should be examined carefully and conscientiously by you, and, if after a full and impartial consideration of all the evidence, you are firmly convinced beyond a reasonable doubt of the truth of the charge or charges, then the State has proved its case and you must find the defendant guilty. If you are not firmly convinced of the truth of the charge, then the State has not proved its case and you must find the defendant not guilty. Scott claims that this definition unconstitutionally conflates the reasonable doubt standard with the less demanding “clear and convincing” standard. The district court correctly relied on Thomas v. Am, 704 F.2d 865, 867-69 (6th Cir.1983), which held this precise definition to not violate due process." }, { "docid": "18313472", "title": "", "text": "evidence in a criminal case, from that in which all reasonable persons treat any question depending upon proof or evidence that is presented to them. “First of all, you’re expected to use your good common sense; consider the evidence in this case for only those purposes for which it has been admitted, and give it a reasonable and fair construction, in the light of your common knowledge of the natural tendencies and inclinations of human beings. “Should the accused be proved guilty, say so. If not proved guilty, say so.” Cummings argues that this instruction, and especially the first paragraph, intrudes upon the defendant’s right to be proved guilty beyond a reasonable doubt. It was so held in Tarvestad v. United States, 8 Cir., 1969, 418 F.2d 1043, 1048-1049, although the error was also found harmless because of other instructions. We agree with Cummings’ criticism. In considering the evidence, the jury is bound to bear in mind that the evidence must do more than convince; it must convince beyond a reasonable doubt. The language in the first paragraph is not consistent with this elementary proposition or with other portions of the charge in which the court correctly stated the rules. We think that the defect in the instruction could be cured by either omitting the first paragraph, or modifying it by inserting after the word “question” the words “arising in the most important of their affairs and.” It would also be wise to rephrase the concluding paragraph to read: “If the accused be proved guilty beyond a reasonable doubt, say so; if not so proved guilty, say so.” Cf. Devitt & Blackmar, Federal Jury Practice and Instructions, § 17.06 (1970). If the second modification that we suggest is made, we doubt that the first paragraph, as given, would be error at all, much less reversible error, but we think that it would be better to omit the paragraph or modify it as we suggest. 5. Cross-examination of character witnesses. The cross-examination of Cummings’ two character witnesses about the defendant’s arrest on a charge of receiving stolen property, when the prosecutor" }, { "docid": "4144539", "title": "", "text": "1408. The court apparently meant that the magistrate, at the presiding judge's direction, had questioned the jurors. For procedures commonly followed in screening Puerto Rico jurors for language proficiency, see Thornburg v. United States, 574 F.2d 33, 35 (1st Cir.1978). . The district judge stated that questions proposed by the defendant had been posed to the panel of prospective jurors. 729 F.Supp. at 1409. This suggests that in addition to posing standard questions, the magistrate included others requested by defense counsel. . In Rodriguez-Cardona, the judge gave the following reasonable doubt instruction: The government has the burden of proving [the defendant] guilty beyond a reasonable doubt, and if the government fails to do so, you must acquit. Thus, while the government's burden of proof is a strict or a heavy burden, it is not necessary that the defendant's guilt be proved beyond all reasonable [sic] doubt. It is only required that the government’s proof exclude any reasonable doubt concerning the defendant’s guilt. Now, a reasonable doubt is a real doubt based upon reason and common sense after a careful and impartial consideration of all the evidence in the case. The jury will remember that the defendant is never to be convicted on mere suspicion or conjecture. Proof beyond a reasonable doubt therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs. Consequently, ladies and gentleman of the jury, if you are convinced that the accused had been proved guilty beyond a reasonable doubt, say so. If you are not convinced, say so. Rodriguez-Cardona, 924 F.2d at 1159-60. . While the instructions in Rodriguez-Cardona also equated reasonable doubt with real doubt, the defendant in that case apparently did not focus upon, and the court did not address, that portion of the instructions. Here, in contrast, defendant argues that equating reasonable doubt with real doubt reduces the government’s burden because in common parlance, to have a \"real doubt” is to think there is a high likelihood of error. To find reasonable doubt, however," }, { "docid": "18313471", "title": "", "text": "presumption is outweighed, the jury should find in accordance with the presumption of innocence.” This instruction is one of several dealing with evidentiary matters. Cummings argues that it suggests that any evidence contrary to the presumption of innocence will overcome that presumption. We find merit in this argument. The presumption of innocence is not an ordinary evidentiary presumption; it is the converse of the government’s burden to prove and persuade beyond a reasonable doubt. Both the presumption and the burden remain throughout the trial and go with the jury when it deliberates. The presumption does not disappear when evidence to the contrary is received; it is overcome only by evidence convincing the jury beyond a reasonable doubt. The instruction would be unobjectionable, however, as one dealing with evidentiary presumptions, if all reference to the presumption of innocence were eliminated. 3. Fifteen pages later, there is the following: “Now, although serving as a juror in criminal cases is a very serious responsibility, there is really nothing particularly different in the way a jury should consider the evidence in a criminal case, from that in which all reasonable persons treat any question depending upon proof or evidence that is presented to them. “First of all, you’re expected to use your good common sense; consider the evidence in this case for only those purposes for which it has been admitted, and give it a reasonable and fair construction, in the light of your common knowledge of the natural tendencies and inclinations of human beings. “Should the accused be proved guilty, say so. If not proved guilty, say so.” Cummings argues that this instruction, and especially the first paragraph, intrudes upon the defendant’s right to be proved guilty beyond a reasonable doubt. It was so held in Tarvestad v. United States, 8 Cir., 1969, 418 F.2d 1043, 1048-1049, although the error was also found harmless because of other instructions. We agree with Cummings’ criticism. In considering the evidence, the jury is bound to bear in mind that the evidence must do more than convince; it must convince beyond a reasonable doubt. The language in" }, { "docid": "1958839", "title": "", "text": "F.2d 557 (10th Cir. 1969). No such abuse and prejudice has been shown. III. Appellants contend that the Trial Court erred in giving Instruction Number 30, in that it was inconsistent with the appellants’ right to be proved guilty beyond a reasonable doubt. The instruction complained of and given by the Court reads: There is nothing peculiarly different in the way a jury is to consider the proof in a criminal case from that in which all reasonable persons treat any question depending upon evidence presented to them. You are expected to use your good sense; consider the evidence for only those purposes for which it has been admitted, and give it a reasonable and fair construction in the light of your common knowledge of the natural tendencies and inclinations of human beings. Appellants argue that while the instruction is similar to that contained in 1 Devitt and. Blackmar, Federal Jury Practice and Instructions § 17.06 (2nd Ed. 1970), the Trial Court omitted the language, “If the accused be proved guilty beyond reasonable doubt say so. If not so proved guilty, say so.”, and the further phrase, “. . . . and remember as well that the law never impoes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.” Accordingly, appellants urge that the instruction, as given, intruded upon their right to be proved guilty beyond a reasonable doubt. Appellants acknowledge that the Court did not omit any material instruction. Instead, they seem to contend that because of the order in which the Court submitted the instructions, that the jury likely associated the “burden of proof beyond a reasonable doubt” instruction only with the definitions of the crimes involved, and to the areas of credibility and inferences. We have carefully reviewed each of the instructions given by the Court. They were well considered, comprehensive and clear. The Court made it abundantly clear that the prosecution’s burden of proof beyond a reasonable doubt applied to each and every essential element of the offenses charged. The Court made repeated references to the" }, { "docid": "2005960", "title": "", "text": "also complains that the following instruction compounded the error: There is nothing peculiarly different in the way a jury should consider the evidence in a criminal case from that in which all reasonable persons treat any question depending upon evidence presented to them. You are expected to use your good sense, consider the evidence in the case for only those purposes for which it has been admitted and give it a reasonable and fair construction in the light of your common knowledge of the natural tendencies and inclinations of human beings. XII R. 8. The government concedes that this instruction has been disapproved by this court, see United States v. Calabrese, 645 F.2d 1379, 1388 (10th Cir.), cert. denied, 451 U.S. 1018, 101 S.Ct. 3008, 69 L.Ed.2d 390 (1981); United States v. Pepe, 501 F.2d 1142, 1144 (10th Cir.1974), and would have been better omitted, but it argues the instruction is not plain error. Once again we disapprove of the instruction but hold that even in tandem with the “reasonable doubt” instruction it did not confuse or dilute the reasonable doubt standard or shift the burden of proof from the government. We note the numerous references in the jury instructions to proof beyond a reasonable doubt and the specific, clear and repeated direction that the government had the burden of proof. See Calabrese, 645 F.2d at 1387-88 (“nothing peculiarly different” instruction not reversible error where court repeatedly referred to reasonable doubt standard); Pepe, 501 F.2d at 1144 (same); United States v. Downen, 496 F.2d 314, 322 (10th Cir.) (“nothing peculiarly different” instruction not reversible error when court repeatedly referred to both reasonable doubt standard and burden of proof upon government), cert. denied, 419 U.S. 897, 95 S.Ct. 177, 42 L.Ed.2d 142 (1974). Considering the instructions as a whole, we do not find plain error. IV Defendant also objects to the sentence imposed upon him. In sentencing, the district court increased defendant’s offense level by four, finding that he was an organizer or leader of criminal activity involving five or more participants. See U.S.S.G. § 3Bl.l(a). We review this finding under" }, { "docid": "5344033", "title": "", "text": "accordance with the instructions given you, is established beyond a reasonable doubt. There is nothing peculiarly different in the way a jury should consider the evidence in a criminal case, from that in which all reasonable persons treat any question depending upon evidence presented to them. You are expected to use your good sense; consider the evidence in the case for only those purposes for which it has been admitted, and give it a reasonable and fair construction, in the light of your common knowledge of the natural tendencies and inclinations of human beings. Appellant complains that the first instruction quoted above combined, in an ambiguous and confusing manner, the presumption of innocence and the presumption of sanity. The second instruction quoted above is attacked by appellant on the basis that it detracted from the presumption of innocence. An examination of the instructions as a whole reveals that the trial court explained to the jurors with sufficient clarity the presumptions of innocence and sanity, and instructed them several times that both guilt and sanity had to be established by proof beyond a reasonable doubt. Record, vol. II, at 63-64, 67-70, 72-73. It is well established that habeas corpus is not available to set aside a conviction on the basis of erroneous jury instructions unless the error has such an effect upon the trial as to render it so fundamentally unfair that it constitutes the denial of a fair trial in the constitutional sense. Linebarger v. Oklahoma, 404 F.2d 1092, 1095 (10th Cir. 1968) (footnote omitted), cert. denied, 394 U.S. 938, 89 S.Ct. 1218, 22 L.Ed.2d 470 (1969). Accord, Lorraine v. United States, 444 F.2d 1 (10th Cir. 1971) (per curiam); York v. Page, 433 F.2d 941 (10th Cir. 1970); Ortiz v. Baker, 411 F.2d 263 (10th Cir.) (per curiam), cert. denied, 396 U.S. 935, 90 S.Ct. 279, 24 L.Ed.2d 234 (1969). We conclude that appellant’s assertions of error with respect to the jury instructions raise only questions of trial errors without federal constitutional significance for which federal habeas corpus relief is not available. Ortiz v. Baker, 411 F.2d 263 (10th" } ]

[ { "docid": "12371663", "title": "", "text": "cases where the defendant’s conduct itself is unprotected by the first amendment. We apply these doctrines quite rigorously when a statute is directed at “pure speech,” especially to its expressive content. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). On the other hand, if the state has attempted to regulate conduct for reasons unrelated to any expressive content, and the regulation has an incidental inhibiting effect on expression, in determining its facial validity we must weight the legitimate interest of the state in regulating the conduct against the potential deterrence, or “chill,” of the exercise of first amendment freedoms. Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Parker v. Levy, 417 U.S. 733, 760, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). The balancing required of us in deciding whether to apply the vagueness and overbreadth doctrines resembles that required in determining whether a statute regulating conduct constitutes an impermissible abridgement of first amendment interests. See, e. g., Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968). S.ection 2.3 requires that a professor strive for accuracy, restraint, and respect for the opinions of others. On its face, section 2.3 is directed at “pure speech,” not at expressive conduct. The state cannot regulate any protected speech on the basis of content. Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). Even in the case of “pure speech,” however, the deference which must be accorded first amendment interests attenuates when the state attempts to regulate not the expressive content of the speech, but its external effects, such as noise. Grayned, supra; Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448," } ]

[ { "docid": "5130835", "title": "", "text": "a substantial number of instances exist in which the law cannot be applied constitutionally,” is facial invalidation on overbreadth grounds appropriate. Richland Bookmart, Inc., 555 F.3d at 532 (alteration in original) (quoting N.Y. State Club Ass’n v. City of New York, 487 U.S. 1, 14, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988)). The void-for-vagueness doctrine and the overbreadth doctrine vindicate overlapping values in First Amendment jurisprudence. In general, vague laws fail to “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited,” risk “trapping the innocent,” and create a danger of “arbitrary and discriminatory enforcement.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). When a law implicates First Amendment freedoms, vagueness poses the same risk as overbreadth, as vague laws may chill citizens from exercising their protected rights. Accordingly, the Supreme Court has indicated that “stricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech.” Smith v. California, 361 U.S. 147, 151, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). “Although ordinarily ‘[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others,’ we have relaxed that requirement in the First Amendment context, permitting plaintiffs to argue that a statute is overbroad because it is unclear whether it regulates a substantial amount of protected speech.” Williams, 128 S.Ct. at 1845 (quoting Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95 & nn. 6 & 7, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)). This court has not shied away from invalidating a regulatory scheme in its entirety when the threat of impermissible applications and the consequent chilling effect unambiguously warranted this remedy. See Odle v. Decatur County, 421 F.3d 386, 395, 399 (6th Cir.2005) (holding that a Decatur County ordinance, which prohibited, inter alia, nudity and the performance of arguably sexually suggestive acts in any place where liquor was sold, served or consumed, was overbroad because “it reache[d] a wide swath of public places" }, { "docid": "6302639", "title": "", "text": "or expression.”). The overbreadth doctrine, however, “attenuates as the otherwise unprotected behavior that [a statute] forbids ... moves from ‘pure speech’ toward conduct.” Virginia v. Hicks, 539 U.S. 113, 124, 123 S.Ct. 2191, 2199, 156 L.Ed.2d 148, 160 (2003) (quoting Broadrick, 413 U.S. at 615, 93 S.Ct. at 2917, 37 L.Ed.2d at 841). Thus, under the First Amendment a “less rigorous standard of review is applied to monetary contributions than to pure speech.” United States v. Afshari, 412 F.3d 1071, 1079 (9th Cir.2005). “Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating).” Hicks, 539 U.S. at 124, 123 S.Ct. at 2199, 156 L.Ed.2d at 160 (parentheses in original). Indeed, “like most exceptions to established principles,” the scope of the First Amendment overbreadth doctrine “must be carefully tied to the circumstances in which facial invalidation of a statute is truly warranted.” Ferber, 458 U.S. at 769, 102 S.Ct. at 3361, 73 L.Ed.2d at 1130. “Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, [the Supreme Court has] recognized that the overbreadth doctrine is ‘strong medicine’ and [has] employed it with hesitation, and then ‘only as a last resort.’ ” Id. (citing Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916, 37 L.Ed.2d at 840-41). Accordingly, “the overbreadth involved [must] be ‘substantial’ before the statute involved will be invalidated on its face.” Id.; see also Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362, 369 (1982) (“In a facial challenge to the overbreadth ... of a law, a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail.”). Whether a statute’s overbreadth is “substantial” is judged against the statute’s legitimate sweep. Berg, 865 F.2d at 804-05 (internal citation omitted). “In making that" }, { "docid": "1916177", "title": "", "text": "abortion services, the restrictions on Plaintiffs’ speech would be “incidental to their anti-abortion message” and, therefore, permissible. See Id. at -, 114 S.Ct. at 2524. d. FACE is neither constitutionally vague nor overbroad. Plaintiffs also contend that FACE is unconstitutionally vague and overbroad. The Supreme Court has explained that in cases involving a facial challenge to the over-breadth and vagueness of a statute, a court should first consider whether the statute is overbroad, and, assuming it is not, then consider whether it is unconstitutionally vague. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). As the Fifth Circuit has explained: The vice of an overbroad statute in the First Amendment context is that “persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions by a statute susceptible of application to protected expression.” Thus, the concern with an overbroad statute stems not so much from its application to completed conduct, but rather from the possibility that the threat of its application may deter others from engaging in otherwise protected expression. CISPES, 770 F.2d at 472 (citations omitted). Because “invalidation of a statute on over-breadth grounds risks total judicial abrogation of an otherwise valid and rational legislative scheme,” a statute “need not fall in tato merely because it is capable of some unconstitutional applications.” Id. at 472. Consequently, “in order to invalidate a statute on overbreadth grounds, the overbreadth ‘must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.’ ” Id. at 473 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830 (1973)). “Thus, a statute should not be invalidated unless it reaches a substantial number of permissible activities.” CISPES, 770 F.2d at 473. Furthermore, “an important corollary of the ‘substantial overbreadth test’ is that a federal court, faced with the challenged over-breadth of a federal statute, must construe the statute to avoid constitutional infirmities, if such construction is possible.” Id. The objection raised by Plaintiffs is that" }, { "docid": "6302640", "title": "", "text": "1130. “Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, [the Supreme Court has] recognized that the overbreadth doctrine is ‘strong medicine’ and [has] employed it with hesitation, and then ‘only as a last resort.’ ” Id. (citing Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916, 37 L.Ed.2d at 840-41). Accordingly, “the overbreadth involved [must] be ‘substantial’ before the statute involved will be invalidated on its face.” Id.; see also Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362, 369 (1982) (“In a facial challenge to the overbreadth ... of a law, a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail.”). Whether a statute’s overbreadth is “substantial” is judged against the statute’s legitimate sweep. Berg, 865 F.2d at 804-05 (internal citation omitted). “In making that determination, a court should evaluate the ambiguous as well as the unambiguous scope of the enactment.” Flipside, 455 U.S. at 494-95 n. 6, 102 S.Ct. at 1191 n. 6, 71 L.Ed.2d at 369 n. 6. Put another way, a statute “is not violative of the overbreadth doctrine unless the law, ‘taken as a whole, is substantially over-broad judged in relation to its plainly legitimate sweep.’ ” Sattar, 272 F.Supp.2d at 362 (considering an overbreadth challenge to Section 2339B) (quoting Hicks, 539 U.S. at 122, 123 S.Ct. at 2198, 156 L.Ed.2d at 159) (emphasis original). Furthermore, even assuming that substantial over-breadth exists, “a significant interference with protected rights of political association [nonetheless] may be sustained if the State demonstrates [1] a sufficiently important interest and [2] employs means closely drawn to avoid unnecessary abridgement of associational freedoms.” Boim v. Quranic Literacy Inst. & Holy Land Found. for Relief And Dev., 291 F.3d 1000, 1026-27 (7th Cir.2002) (internal quotation and punctuation omitted). Under these principles, Section 2339B is not unconstitutionally overbroad. Regarding Section 2339B’s limit on contributing" }, { "docid": "15422421", "title": "", "text": "and the conditions of his confinement therein constituted cruel and unusual punishment. The district court ruled, on a motion for summary judgment, that the prison regulation had been unconstitutionally applied to Ross, and ordered an immediate return to minimum custody (which, as a matter of fact, had already occurred). At trial confined to the eighth amendment claim and the immunity and damages issues on the first amendment claim the court directed a verdict for the defendants on all counts. Ross then took this appeal. II Ross’s first contention is that the district court erred in not striking down the prison regulation as unconstitutionally overbroad and vague. He seeks injunctive and declaratory relief against future enforcement of the regulation. The law does not entitle him to relief on this claim. We agree with Ross initially that when overbreadth or vagueness challenges to a law are made, those challenges usually should be resolved before the validity of the law as applied is addressed. See Hoffman Estates v. The Flipside, Hoffman Estates, 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). To be stricken for overbreadth, the regulation must reach a substantial amount of constitutionally protected conduct, Hoffman, 455 U.S. at 494, 102 S.Ct. at 1191; and because the regulation purports to cover both speech and conduct its overbreadth is less easily established than if it covered speech alone, see Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973). The regulation in issue could only be stricken for vagueness if it is “impermissibly vague in all of its applications,” Hoffman, 455 U.S. at 495, 102 S.Ct. at 1191. In order to resolve Ross’s facial challenges, we would need first to look to the extent of first amendment rights had by prison inmates. Fundamentally, we know that a prison inmate retains those first amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Thus, challenges to prison restrictions that are asserted to inhibit first amendment interests must be analyzed in terms of legitimate" }, { "docid": "2595688", "title": "", "text": "of Hoffman Estates v. Flipside, Hoffman Estates, Inc. 455 U.S. 489, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). If it reaches a substantial amount, it can be found overly broad. See Stoianoff v. State of Mont., 695 F.2d 1214, 1218 (9th Cir.1983). There is a policy against applying the overbreadth doctrine in facial review unless the First Amendment is implicated. See Stoianoff 695 F.2d at 1218 (citing Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). If a statute implicates no constitutionally protected conduct, it should be upheld unless it is impermissibly vague in all of its applications. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). The degree of vagueness that is allowable depends partly upon the nature of the challenged statute, and greater tolerance is given to statutes with “civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.” Id. at 1193. However, if a law interferes with free speech rights, a more stringent vagueness test should apply. See Hoffman, 102 S.Ct. at 1193-94 (1981). If the statute imper-missibly regulates protected speech, then the strict scrutiny test applies, if the speech is not constitutionally protected then it is reviewed only to see if it is rationally related to a legitimate state interest. See Melugin v. Homes, 38 F.3d 1478, 1483-84 (9th Cir.1994). “The need for definiteness is greater when the ordinance ... implicates constitutionally protected rights than when it regulates the economic behavior of businesses.” Nunez v. City of San Diego, 114 F.3d 935, 940 (9th Cir.1997). The government must use narrow specificity to regulate in the First Amendment context in order to avoid problems with vagueness; the standards of permissible statutory vagueness are strict. See National Ass’n for Advancement of Colored People v. Button, 371 U.S. 415, 83 S.Ct. 328, 337-38, 9 L.Ed.2d 405 (1963). Where a statute implicating basic First Amendment freedoms is vague, it creates a chilling effect on the exercise of those freedoms, leading citizens to “steer far wider of the unlawful zone" }, { "docid": "12662352", "title": "", "text": "analysis.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n. 6, 102 S.Ct. 1186, 1191 n. 6, 71 L.Ed.2d 362 (1982). A previous version of the Clark County regulation, which prohibited working as an escort, was struck down by the Nevada Supreme Court as impermissibly vague because it failed to give adequate notice of what conduct was forbidden: “For example, persons functioning as social secretaries — as companions to the aged, lonely or infirm — or even as babysit ters, arguably might be guilty of impermissible conduct.” Eaves v. Board of Clark County Commissioners, 96 Nev. 921, 924, 620 P.2d 1248, 1260 (1980). The regulation was subsequently revised to license rather than prohibit escort activities and to refine the definition of “escort.” The current regulation also exempts from the escort licensing requirement businesses that are otherwise licensed by the state or county and that “perform an escort or escort bureau function as a service merely incidental to [their] primary function.” CCC § 8.32.150. Nevertheless, it is not clear that the amendments have resolved the ambiguities cited in Eaves. Babysitters, companions, and social secretaries may all fall into the category of persons held out to the public as available for hire and paid to accompany others to social affairs, places of amusement, or public resorts. These individuals are not required to obtain licenses under state law. Moreover, for a paid companion or social secretary, the “escort function” is the primary focus of employment. Thus the post-Eaves amendments do not appear to have removed these individuals from the Clark County regulation’s scope. However, Clark County has offered no justification at all for licensing these associations. Its licensing scheme affects all first amendment associations in which one person is paid to associate with another, regardless of whether the association creates any of the harms that the county seeks to prevent. In this regard, the Clark County regulation differs significantly from the zoning ordinances targeted at adult establishments which the Supreme Court upheld in City of Renton and Young. The zoning regulations were carefully limited to the particular type" }, { "docid": "14176250", "title": "", "text": "989 (1954). Similarly, the statutory term “self-assessment” has a simple meaning in this context apparent to ordinary common sense. Plaintiffs point to numerous differing technical uses of the words “assessment” and “self-assessment” in tax statutes, regulations and cases, but these uses are beside the point. Read in the context of the statute at issue here, it is obvious that the term refers simply to the taxpayer’s representations to the government on his or her return regarding taxes due. See part I, supra; Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938); Macatee v. United States, 214 F.2d 717, 720 (5th Cir.1954); Treas.Reg. § 601.103(a), 26 C.F.R. § 601.103(a). But plaintiffs’ vagueness challenge must fail on an even more immediate ground. The Supreme Court has made it clear that “[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). Inasmuch as plaintiffs’ actions fall squarely within the statute’s unambiguous prohibitions (see part I, supra ), they lack standing to raise the vagueness objections. B. Overbreadth Plaintiffs’ overbreadth challenges are equally meritless. “In a facial challenge to the overbreadth ... of a law, a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail.” Hoffman Estates, supra, 455 U.S. at 494, 102 S.Ct. at 1191. See also New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 3360-63, 73 L.Ed.2d 1113 (1982); Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973). As was demonstrated in part II, supra, § 6702 does not infringe constitutionally protected conduct. It therefore cannot be struck down as overbroad. IV. Procedural Challenges Finally, plaintiffs attack the penalties by asserting defects in the procedures by which they were assessed and may be challenged. These claims too are without merit. A. Freedom of Information Provisions" }, { "docid": "14483504", "title": "", "text": "104 S.Ct. 3244; McCabe, 12 F.3d at 1562-63. Because Willis’s dancing is not protected First Amendment activity, Willis had no protected right to associate for the purpose of dancing. We therefore need not consider Willis’s associational claims further. Willis also contends that the Town’s lewd-dancing policy is unconstitutionally vague and overbroad. While “vagueness and overbreadth are related constitutional concepts, they are separate and distinct doctrines, subject in application to different standards and intended to achieve different purposes.” United States v. Morison, 844 F.2d 1057, 1070 (4th Cir.1988). “The vagueness doctrine is rooted in due process principles and is basically directed at lack of sufficient clarity and precision in the statute; overbreadth, on the other hand, would invalidate a statute when it infringes on expression to a degree greater than justified by the legitimate governmental need which is the valid purpose of the statute.” Id. (footnotes, internal quotation marks and alteration omitted). Our conclusion that dancing is not protected speech forecloses these arguments. See, e.g., Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (“In a facial challenge to the overbreadth ... of a law, a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail.” (footnotes omitted)); id. at 494-95, 102 S.Ct. 1186 (explaining that where policy alleged to be vague “implicates no constitutionally protected conduct,” the vagueness challenge should be upheld “only if the enactment is impermissibly vague in all of its applications”). Because the kind of dancing at issue here is not expressive conduct, the Town’s regulation of it does not implicate the First Amendment and any further review of the Town’s action must be undertaken under a different provision of the Constitution. See Neinast v. Board of Trustees, 346 F.3d 585, 592 (6th Cir.2003) (concluding that conduct regulations adopted by public library did not directly regulate speech and thus did not implicate the First Amendment and were subject only to rational-basis review under other provisions of the Constitution), cert." }, { "docid": "8139653", "title": "", "text": "have to be hammered out case by case—and tested only by those hardy enough to risk criminal prosecution to determine the [statute’s] proper scope.” Dombrowski v. Pfister, 380 U.S. at 487, 85 S.Ct. at 1121. The Supreme Court has indicated that there may sometimes be strong policy reasons against applying the overbreadth doc trine in a facial review of a statute’s constitutionality. See Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). A major exception to this approach, however, is in the area of first amendment rights. See, e.g., Stoianoff v. Montana, 695 F.2d 1214, 1218 (9th Cir.1983). In the case of an ordinary facial challenge to the over-breadth of a law, “a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail.” Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982) (footnote omitted). See also Kolender v. Lawson, — U.S. —, — n. 8, 103 S.Ct. 1855, 1859 n. 8, 75 L.Ed.2d 903 (1983); Stoianoff v. Montana, 695 F.2d at 1218; Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943, 946 (11th Cir.), cert. denied, 459 U.S. 859, 103 S.Ct. 132, 74 L.Ed.2d 113 (1982). The Supreme Court’s decision in Broadrick, however, “implies that a finding of substantial over-breadth is necessary only when the challenged statute regulates conduct and not speech.” Turchick v. United States, 561 F.2d 719, 722 (8th Cir.1977). In first amendment overbreadth cases, “a challenge to a statute regulating pure speech would succeed on a lesser showing of facial over-breadth.” Id. at 722 n. 6. For these reasons, then, we do not hesitate to entertain plaintiffs’ first amendment facial challenges to House Bill 626. ABSTENTION Defendants’ general argument that federal courts should abstain from deciding the constitutionality of House Bill 626 until the Washington state courts first have an opportunity to construe its provisions was rejected by the district court. Spokane Arcade, Inc. v. Eikenberry, 544 F.Supp. at 1037. We will reverse the district" }, { "docid": "8978094", "title": "", "text": "v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940)). Where the statute regulates both conduct and speech, as in the matter sub judice, the Supreme Court has held that the “over- breadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick, 413 U.S. at 615, 93 S.Ct. at 2917; see also Rode, 845 F.2d at 1200. In Broad-rick, the Court noted that the Oklahoma statute need not be discarded in toto merely “because some persons’ arguably protected conduct may or may not be caught or chilled by the statute.” The court noted that the statute attempted to regulate in an evenhanded manner, its scope had been narrowed by administrative interpretation and the litigant’s conduct was clearly within the statute’s permissible scope. Broadrick, 413 U.S. at 616-18, 93 S.Ct. at 2918-19. Thus, in the present context the overbreadth doctrine is applicable if “the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail.” Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982) (emphasis added). The plaintiff argues that the phrases “engaging in,” “participating in” and “any political or election campaign” sweep far too much within the statute’s ambit of prohibition. However, in the context of a facial overbreadth challenge, a court will not declare a statute invalid where a limiting construction has been or could be placed on the challenged statute. Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916. No state court has construed the statute in the face of a constitutional challenge. Here the statute permits first class townships to sanction police officers for actively engaging in election campaigning. The plaintiffs anticipated conduct clearly falls within the legitimate sweep of the statute. The statute is aimed at the particular evils that active involvement in election campaigns may visit on the appearance of police services to the community. The statute clearly prohibits active campaigning in a political or election campaign. The wording of" }, { "docid": "2509356", "title": "", "text": "private suits, or to curtail their free speech rights. Although the plaintiffs have not argued that Article XXVIII is unconstitutionally vague, vagueness affects the overbreadth analysis because in determining whether Article XXVIII is so overbroad as to deter others from engaging in otherwise protected expression the court has to evaluate the ambiguous as well as the unambiguous scope of the Article. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n. 6, 102 S.Ct. 1186, 1191 n. 6, 71 L.Ed.2d 362 (1982). While the defendants’ assertion that the examples of Article XXVIII’s unconstitutional reach proffered by the plaintiffs are too extreme to demonstrate the Article’s facial unconstitutionality because they represent situations which plainly do not come within the rational parameters of Article XXVIII may be correct, the defendants’ assertion only emphasizes Article XXVIII’s potential for chilling First Amendment rights. See Baggett v. Bullitt, 377 U.S. 360, 373, 84 S.Ct. 1316, 1323, 12 L.Ed.2d 377 (1964). If those affected by Article XXVIII are unclear as to its coverage, the result will be that they will “ ‘steer far wider of the unlawful zone’ ... than if the boundaries of the forbidden areas were clearly marked.” Id. at 372, 84 S.Ct. at 1322. Yniguez’s self-imposed decision to refrain from speaking Spanish while performing her job, a decision vociferously criticized as unfounded by the defendants, is but a product of her legitimate sensitivity to the perils posed by the Article’s language and her desire to restrict her conduct to that which is unquestionably safe. Id. A law which reasonably results in such restrictions is substantially overbroad. In determining the facial constitutionality of Article XXVIII the court must also consider any authoritative limiting construction placed on the enactment by Arizona state courts or enforcement agencies, Broadrick v. Oklahoma, 413 U.S. at 618, 93 S.Ct. at 2919, because a state law cannot be facially invalidated as overbroad if it is readily susceptible to a narrowing construction that would make it constitutional. Virginia v. American Booksellers Ass’n, 484 U.S. at 397, 108 S.Ct. at 645. As the Supreme Court has noted, the" }, { "docid": "12662298", "title": "", "text": "be held void on its face and when ‘such summary action’ is inappropriate.” Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973) (quoting Coates v. City of Cincinnati, 402 U.S. 611, 617, 91 S.Ct. 1686, 1690, 29 L.Ed.2d 214 (1971) (Black, J., concurring in part and dissenting in part)). A facial attack against a law’s constitutionality may proceed along four axes: (1) the law may impermissibly burden the plaintiff’s rights, (2) it may impermissibly burden the rights of third parties, (3) it may fail to provide adequate notice of what conduct is prohibited, or (4) it may lack sufficient guidelines to prevent arbitrary and discriminatory enforcement. See Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495-98, 102 S.Ct. 1186, 1191-93, 71 L.Ed.2d 362 (1982). The first two assail the law as a prior restraint or an invalid time, place, or manner restriction. See Shuttlesworth, 394 U.S. 147, 151-55, 89 S.Ct. 935, 938-41, 22 L.Ed.2d 162; City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-53, 106 S.Ct. 925, 928-32, 89 L.Ed.2d 29 (1986). The second additionally is an attack for over-breadth, in which the plaintiff asserts the rights of third parties. See Broadrick v. Oklahoma, 413 U.S. at 611-14, 93 S.Ct. at 2915-17. The third and fourth are challenges for vagueness. Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). The escort services assert all four as grounds for invalidating the county’s regulation. Our first task is to determine whether the regulation impermissibly burdens the plaintiffs’ or third parties’ rights. Stated another way, does the regulation reach “a substantial amount of constitutionally protected conduct”? Flipside, 455 U.S. at 494, 102 S.Ct. at 1191. III. Dating and the Freedom of Association The conduct for which the escort services claim constitutional protection is dating. The county submitted much evidence that escorts were nothing more than call girls and that the escort bureaus operated as panderers. 599 F.Supp. at 1406-08 & n. 7. Although given ample opportunity by the district court to describe the activities" }, { "docid": "11119795", "title": "", "text": "facially overbroad and vague. Since it is impossible to determine from the verdict to what extent appellants’ convictions were based upon conspiracy to use interstate means to violate section 982, as opposed to other sections, the constitutionality of section 982 is critical to assessing the validity of those convictions. If section 982 is unconstitutional the convictions cannot be sustained. See Stromberg v. California, 283 U.S. 359, 367-68, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1931). In support of the vagueness and overbreadth arguments, the appellants offer numerous hypothetical applications of the statute, the purpose of which is to show that the law is ambiguous on its face or has conceivable applications not intended by the Oklahoma legislature. We agree with the Oklahoma Court of Criminal Appeals that the statute is neither overbroad nor vague. Appellants’ overbreadth challenge must fail because the statute does not reach “a substantial amount of constitutionally protected conduct.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). We have evaluated “the ambiguous as well as the unambiguous scope” of section 982 and have concluded that its language does not cause citizens to forego lawful enterprises in order to avoid the reach of the statute. 102 S.Ct. at 1191 n. 6. Moreover, First Amendment rights are not implicated in any significant way. Therefore, this is not a case in which appellants have standing to challenge a statute because of its adverse effect upon the First Amendment rights of others not presently before the court. See Broadrick v. Oklahoma, 413 U.S. 601, 611-13, 93 S.Ct. 2908, 2915-2916, 37 L.Ed.2d 830 (1973). In advancing their vagueness argument, appellants claim that the statute is so vague that a person of reasonable intelligence cannot possibly understand its scope. They cite three allegedly fatal flaws. They first fault the statute on the basis that, by its literal terms, it proscribes the conduct of those who operate or otherwise have a financial stake in a commercial gambling enterprise, but it does not proscribe the conduct of a “better” who does business" }, { "docid": "3149638", "title": "", "text": "of constitutionally protected conduct.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). “[Wjhere a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its overbreadth is not only real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Osborne v. Ohio, 495 U.S. 103, 112, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990)(quotations and citation omitted). “[T]he mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.” Taxpayers for Vincent, 466 U.S. at 800, 104 S.Ct. 2118. If the statute is overbroad, the question then becomes whether to apply the over-breadth doctrine to strike it down. The Supreme Court has recognized that the overbreadth doctrine is “strong medicine” and has, therefore, “been employed by the Court sparingly and only as a last resort.” Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). “Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute.” Id. “In evaluating a facial challenge to a state law, a federal court must, of course, consider any limiting construction.” Hoffman Estates, 455 U.S. at 494 n. 4, 102 S.Ct. 1186. Pursuant to a “well-established principle,” this Court must interpret the statute to “avoid constitutional difficulties.” Frisby v. Schultz, 487 U.S. 474, 483, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). Nevertheless, “federal courts are without power to adopt a narrowing construction of a state statute unless such construction is reasonable and readily apparent.” Boos v. Barry, 485 U.S. 312, 330, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988); Stenberg v. Carhart, 530 U.S. 914, 944-45, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000). 2) The Appropriate Constitutional Standard. The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const., amend." }, { "docid": "5623437", "title": "", "text": "charged with its enforcement.” Ward v. Rock Against Racism, 491 U.S. 781, 795, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). The Court then found that “[a]d-ministrative interpretation and implementation of a regulation are, of course, highly relevant to our analysis, for ‘[i]n evaluating a facial challenge to a state law, a federal court must ... consider any limiting construction that a state court or enforcement agency has proffered.’ ” Id. at 795-96, 109 S.Ct. 2746 (quoting Hoffman Estates v. The Flipside, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)). Finally, the Court concluded that any defect on the face of the ordinance was “more than remedied by the city’s narrowing construction.” Id. Rock Against Racism is not the only example of the federal courts’ reluctance to strike an ordinance, even on a First Amendment facial challenge, unless absolutely necessary. When the Supreme Court first announced its intention to allow First Amendment facial challenges, it tempered that decision by noting that “we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). This language in Broadrick was quoted by the Court when it held that “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.” City, Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) (finding that an ordinance could not be challenged facially when there was no proof that it would be applied any differently to others than it had been applied to plaintiffs). There is no realistic danger that this ordinance will compromise First Amendment rights of third parties when the enforcing organization, the City of Paducah, has agreed to interpret the statute in a way that comports with the First Amendment. When we analyze the mandatory language of the ordinance itself and take" }, { "docid": "12662351", "title": "", "text": "S.Ct. 826, 836, 63 L.Ed.2d 73 (1980) (striking down ordinance prohibiting solicitation by charities that spend more than 25% of receipts on salaries and administrative expenses, noting that prohibition of fraudulent misrepresentation was less intrusive means of achieving same goal); United States v. Robel, 389 U.S. 258, 267, 88 S.Ct. 419, 425, 19 L.Ed.2d 508 (1967) (striking down statute limiting employment of members of Communist groups at defense facilities, commenting that “Congress can, of course, prescribe criminal penalties for those who engage in espionage and sabotage”); see also Posadas de Puerto Rico, 106 S.Ct. at 2985 (Brennan, J., dissenting) (Puerto Rico could directly address the harms associated with casino gambling rather than prohibiting constitutionally protected advertising). The comprehensive, discretionary licensing scheme that Clark County has adopted is not the least restrictive means available to achieve its ends. It is therefore constitutionally impermissible. C. Overbreadth In assessing an overbreadth challenge, the courts must look to “the ambiguous as well as the unambiguous scope” of the regulation; in this respect, “the vagueness of a law affects overbreadth analysis.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n. 6, 102 S.Ct. 1186, 1191 n. 6, 71 L.Ed.2d 362 (1982). A previous version of the Clark County regulation, which prohibited working as an escort, was struck down by the Nevada Supreme Court as impermissibly vague because it failed to give adequate notice of what conduct was forbidden: “For example, persons functioning as social secretaries — as companions to the aged, lonely or infirm — or even as babysit ters, arguably might be guilty of impermissible conduct.” Eaves v. Board of Clark County Commissioners, 96 Nev. 921, 924, 620 P.2d 1248, 1260 (1980). The regulation was subsequently revised to license rather than prohibit escort activities and to refine the definition of “escort.” The current regulation also exempts from the escort licensing requirement businesses that are otherwise licensed by the state or county and that “perform an escort or escort bureau function as a service merely incidental to [their] primary function.” CCC § 8.32.150. Nevertheless, it is not clear that the" }, { "docid": "8670505", "title": "", "text": "in its favor. On appeal, plaintiffs contend that: (1) the Ordinance’s definition of regulated businesses is facially overbroad; (2) the ban on the sale of sexual devices is facially void-for-vagueness and overbroad and violates the right to privacy; (3) requiring applicants and employees to provide significant personal information in order to obtain licenses violates the First Amendment; (4) the Signage and Painting Restrictions violate the First Amendment- and the Equal Protection Clause; (5) the Open Booth Restrictions violate the First Amendment; and (6) the judicial review provision is invalid. A. Standard of Review We review de novo the question of whether a state law or municipal ordinance violates the United States Constitution. See Gresham v. Peterson, 225 F.3d 899, 903 (7th Cir.2000). However, in assessing the constitutionality of an allegedly vague or overbroad state law or ordinance, “a federal court must, of course, consider any limiting construction that a state court or enforcement agency has proffered.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n. 5, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). In the present case, no Indiana court has interpreted the Ordinance, and therefore, we have no authoritative judicial construction of the Ordinance’s terms. See Gresham, 225 F.3d at 908. B. Regulated Businesses Plaintiffs contend that the Ordinance is impermissibly overbroad because the definition of regulated Media incorporates an excessive amount of protected speech. The Ordinance provides the following relevant definitions: “Adult Bookstore”, “Adult Novelty Store” or “Adult Video Store” means a commercial establishment which has as a significant or substantial portion of its stock-in-trade or derives a significant or substantial portion of its revenues or devotes a significant or substantial portion of its interior business or advertising to the sale or rental, for any form of consideration, [from:] a. Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, slides, or other visual representations [collectively “Media”] which are characterized by the depiction or description of [nudity] or [sexual activities]. Section 125.02(A)(2). Although municipalities may regulate adult bookstores, they may not impermissibly burden protected speech, see, e.g., Genusa v." }, { "docid": "3149637", "title": "", "text": "that free expression may be inhibited almost as easily by the potential or threatened use of power as by the actual exercise of that power. Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). Both exceptions, however, are narrow ones: the first kind of facial challenge will not succeed unless the court finds that “every application of the statute created an impermissible risk of suppression of ideas,” Taxpayers for Vincent, supra, 466 U.S. at 798, n. 15, 104 S.Ct. 2118, and the second kind of facial challenge will not succeed unless the statute is “substantially” overbroad, which requires the court to find “a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” 466 U.S. at 801, 104 S.Ct. 2118. Id. See also Spingola v. Village of Granville, 39 Fed.Appx. 978, 981 (6th Cir.2002)(unpublished opinion). “In a facial challenge to the overbreadth and vagueness of a law, a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). “[Wjhere a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its overbreadth is not only real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Osborne v. Ohio, 495 U.S. 103, 112, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990)(quotations and citation omitted). “[T]he mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.” Taxpayers for Vincent, 466 U.S. at 800, 104 S.Ct. 2118. If the statute is overbroad, the question then becomes whether to apply the over-breadth doctrine to strike it down. The Supreme Court has recognized that the overbreadth doctrine is “strong medicine” and has, therefore, “been employed by the Court sparingly and only as a last resort.” Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). “Facial overbreadth has" }, { "docid": "17065694", "title": "", "text": "that a physician or surgeon could advertise that he or she is a Diplómate of the Academy in pain management, but could not use the term “board certified.” The California legislation, even if not the least restrictive restriction, is a reasonable fit between the legislature’s ends and the means chosen to accomplish those ends. C. Are the Statute and its Implementing Regulations Overbroad or Vague? Although the Supreme Court has stated that the overbreadth doctrine does not ap ply to regulations of purely commercial speech, Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), an overbreadth challenge to a statute or regulation that reaches beyond purely commercial speech to encompass fully protected speech is appropriate. S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1143 n. 6 (9th Cir.1998). The Plaintiffs argue that section 651(h)(5)(B) and its implementing regulations reach fully protected speech. The statute and regulations, however, apply only to commercial speech. Accordingly, the Plaintiffs’ overbreadth challenge fails. See Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 462 n. 20, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978) (stating that the attorney-appellant could not raise a successful overbreadth challenge to a bar rule regulating commercial solicitation); Bates v. State Bar of Arizona, 433 U.S. 350, 381, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977) (declining to apply the overbreadth doctrine to a regulation of professional advertising). With regard to vagueness, the statute and regulations are clear that in order to advertise the term “board certified,” the certifying organization must qualify by (1) ABMS designation; (2) have standards equivalent to the ABMS; or (3) approval of the board’s required postgraduate education by the Accrediting Council for Graduate Medical Education. These standards are well-established and are not vague. D. Do the Statute and Implementing Regulations Deprive the Academy Members of Their First Amendment Right to Association? The district court correctly held that the statute and its implementing regulations impinge upon only commercial association. Association that is merely commercial does not implicate any fundamental right and, thus, is subject only to rational" } ]

[ { "docid": "373404", "title": "", "text": "the maximum one-year sentence on Count V, to be served after the completion of Terrovona’s state sentence for murder. Terrovona now appeals from the district court’s order, arguing that the federal sentence should be served concurrently with the state sentence. He contends that: (1) the district court failed to exercise its discretion in imposing the one-year consecutive sentence; and (2) the sentence violates the eighth amendment under the facts of this case. The initial question is whether the district court had discretionary authority to specify that the federal sentence run concurrently with the state sentence. Some of our prior decisions have interpreted former 18 U.S.C. § 3568 to mean that federal judges have no authority to impose federal sentences which run concurrently with state sentences when the prisoner is in state custody. United States v. Segal, 549 F.2d 1293, 1301 (9th Cir.1977); United States v. Myers, 451 F.2d 402, 404 (9th Cir.1972). In United States v. Williams, 651 F.2d 644, 647 n. 2 (9th Cir.1981), we held that the district court also had no authority to specify that the sentence be served consecutively with a state sentence, stating that this decision was up to the Bureau of Prisons. However, in enacting the Crime Control Act of 1984 (the “Act”), Congress made it clear that it intended the district courts to have authority to specify that a federal sentence either be served concurrently or consecutively with a prior state sentence. As a part of the Act, Congress enacted a new section, codified as 18 U.S.C. § 3584, which states: § 3584. Multiple sentences of imprisonment (a) Imposition of concurrent or consecutive terms. — If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively, except that the terms may not run consecutively for an attempt and for another offense that was the sole objective of the attempt. Multiple terms of imprisonment imposed at the same time run concurrently unless the" } ]

[ { "docid": "23233904", "title": "", "text": "prison not less than one-third of the term of supervised release.” That would be seven months for Hill. The statute does not say that the one-third must be served consecutively to any other sentence, but the spirit of the statute could be thought to require that. We leave that ques tion for resolution by the district judge in the first instance, as it has not been argued to us. One loose end remains to be- tied up, and we are done. The power of a district judge to effectuate his decision whether to impose a consecutive or a concurrent sentence is not entirely clear. Although Congress’s intention in the Sentencing Reform Act to empower the district judge to make the decision is plain enough, see 18 U.S.C. § 3584; S.Rep. No. 225, 98th Cong., 2d Sess. 127 (1984); United States v. D’Iguillont, 979 F.2d 612, 615 (7th Cir.1992); United States v. Terrovona, 785 F.2d 767, 769-70 (9th Cir. 1986), overruled on other grounds in United States v. Hardesty, 977 F.2d 1347 (9th Cir. 1992), the Act is equally plain that the responsibility for deciding when the federal sentence shall be deemed to begin — whether when the defendant began serving his state sentence, which would make the federal sentence concurrent, or not until the defendant, having completed his state prison term, was delivered into federal custody, which would make the federal sentence consecutive — remains with the Attorney General of the United States. See 18 U.S.C. §§ 3585(a), 3621(b); cf. United States v. Wilson, 503 U.S. 329, 333-37, 112 S.Ct. 1351, 1354-55, 117 L.Ed.2d 593 (1992); United States v. Roller, 956 F.2d 1408, 1417 (7th Cir.1992). Does this mean that the Attorney General can override the district judge’s determination? It would be premature to attempt to answer this ques- ■ tion, as there is no suggestion that the Attorney General would attempt to do so in this case. Remember that the government’s lawyers were content to allow the district judge to make the entire sentence concurrent — and not because they intended to advise their superiors to disregard the judge’s" }, { "docid": "23233903", "title": "", "text": "question in our minds whether, given the incomplete overlap between the offenses for which the state has punished Hill and the grounds for the revocation of his supervised release, a fully concurrent sentence would be proper. For it might result in no incremental sanction for Hill’s violation of the terms of his supervised release. We invite the judge to consider the possibility of making Hill’s sentence partly consecutive and partly concurrent as a way of more precisely matching Hill’s incremental punishment for violating the.conditions of his supervised release to the gravity of his offense and other relevant circumstances. We are not impressed by the length of his state sentence. So hardened has the nation become to murder, lucrative drug deals, and gigantic swindles that a “mere” thief is likely to seem undeserving of substantial punishment; but we do not think that so insouciant an attitude toward theft can be justified. We point out further that 18 U.S.C. § 3583(g) requires a defendant who has violated his supervised release by possessing illegal drugs “to serve in prison not less than one-third of the term of supervised release.” That would be seven months for Hill. The statute does not say that the one-third must be served consecutively to any other sentence, but the spirit of the statute could be thought to require that. We leave that ques tion for resolution by the district judge in the first instance, as it has not been argued to us. One loose end remains to be- tied up, and we are done. The power of a district judge to effectuate his decision whether to impose a consecutive or a concurrent sentence is not entirely clear. Although Congress’s intention in the Sentencing Reform Act to empower the district judge to make the decision is plain enough, see 18 U.S.C. § 3584; S.Rep. No. 225, 98th Cong., 2d Sess. 127 (1984); United States v. D’Iguillont, 979 F.2d 612, 615 (7th Cir.1992); United States v. Terrovona, 785 F.2d 767, 769-70 (9th Cir. 1986), overruled on other grounds in United States v. Hardesty, 977 F.2d 1347 (9th Cir. 1992), the" }, { "docid": "22981177", "title": "", "text": "committed in Tennessee, and Crozier now suggests that the United States could only have been arguing the propriety of venue. In light of the United States’s arguments to the district court, we will assume that Crozier properly preserved the venue issue. Nonetheless, we find against him on the merits of his claim. Burton took an overt action in the Eastern District of Tennessee in furtherance of the drug conspiracy when he robbed the Clinton, Tennessee, Rite-Aid. Accordingly, venue in that district was proper as to all co-conspirators, including Crozier. VI. The United States argues on cross-appeal that the district court erred in awarding Burton six hundred fifty days credit for the time he spent awaiting trial on the instant charges. Whether a district court has the power to award credit for time served is a question of law which we review de novo. See United States v. Wilson, 916 F.2d 1115, 1117 (6th Cir.1990), overruled on other grounds, 503 U.S. 329, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). The United States is correct in asserting that the power to grant credit for time served lies solely with the Attorney General and the Bureau of Prisons. See 18 U.S.C. § 3585(b); United States v. Wilson, 503 U.S. 329, 333, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). Nonetheless, Burton argues that the district court did not award him credit for time served under 18 U.S.C. § 3585(b). Rather, he claims it implicitly applied Section 5G1.3(c) of the Sentencing Guidelines and allowed Burton to serve six hundred fifty days of his federal sentence concurrent with his state prison term. See United States v. Dorsey, 166 F.3d 558, 560 (3d Cir.1999) (interpreting district court’s power to award partially concurrent sentence under § 5G1.3(b) as not conflicting with Bureau of Prison’s authority under 18 U.S.C. § 3585(b) to award credit for time served). The sentencing hearing transcript belies Burton’s assertion that the district court intended to award a partially concurrent sentence. The district court quite clearly imposed the sentences to run consecutively, but then responded to what it considered an inappropriate refusal by the United" }, { "docid": "23054400", "title": "", "text": "run from the date on which [the prisoner] is received at the penitentiary, reformatoiy, or jail for service of such sentence.... No sentence shall prescribe any other method of computing the term.\" 18 U.S.C. § 3568 (1982) (emphasis added); see Meagher, 943 F.2d at 1282 (\"This court, and others, have uniformly interpreted the language of Section 3568 and its predecessors as precluding the calculation of the time served on a federal charge from any date other than that on which the defendant was delivered to federal prison officials.”); see also United States v. Segal, 549 F.2d 1293, 1301 (9th Cir.) (\"|T]he district judge has no authority to impose a federal sentence concurrent with a state sentence because a federal term cannot begin until a prisoner has been received by federal authorities.\") (citing 18 U.S.C. § 3568), cert. denied, 431 U.S. 919, 97 S.Ct. 2187, 53 L.Ed.2d 231 (1977). The Sentencing Reform Act of 1984, which took effect after the defendant in Meagher was convicted, repealed this longstanding rule. Section 3568 was replaced with new §§ 3584 and 3585. While new § 3585 also provides that a federal sentence commences when the defendant is received into federal custody, see 18 U.S.C. § 3585(a) (1994), it is clear that Congress intended to authorize a district court to order that a federal sentence run concurrently to a state sentence. The clause prohibiting \"any other method of computing the term” was omitted from new § 3585. Furthermore, new § 3584 specifically authorizes a federal sentence to run concurrently to \"an undischarged term of imprisonment.” 18 U.S.C. § 3584(a). The legislative history for both sections makes Congress’ intent clear. See S.Rep. No. 98-225, at 129 (1984) (\"The Committee ... does not intend that [new § 3585] be read to bar concurrent Federal and State sentences for a defendant who is serving a State sentence at the time he receives a Federal sentence.”), reprinted in 1984 U.S.C.C.A.N. 3182, 3312; id. at 126-27 & nn. 310, 314 (commenting that new § 3584(a) “changes the law that now applies to a person sentenced for a Federal offense who" }, { "docid": "23397407", "title": "", "text": "on 18 U.S.C. § 3585(b) which provides: A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences (1) as a result of the offense for which the sentence was imposed; or (2) as a result of any other charge for which the defendant was arrested after the commencement of the offense for which the sentence was imposed; that has not been credited against another sentence. The Attorney General, acting through the Bureau of Prisons, makes the calculations “as an administrative matter when imprisoning the defendant.” United States v. Wilson, - U.S. -,-, 112 S.Ct. 1351, 1355, 117 L.Ed.2d 593 (1992). There is no dispute that the time for which credit is sought qualifies for credit. The state and federal offenses are not the same. Arguably, however, Kayfez was arrested on the state charge after he commenced' his federal offenses, and thus § 3585(b)(2) was fulfilled. In addition, a federal detainer was filed within five days of the arrest, so that his official detention from then on may well have resulted from his federal offenses, fulfilling (b)(1). United States v. Haney, 711 F.2d 113, 114 (8th Cir.1983). In any event the government makes no argument that any of the period of detention does not qualify for credit. It argues only that 416 of the 443 days prior to January 12, 1990 have been credited against another sentence. The Bureau of Prisons treats Kayfez’s federal sentence as if it commenced to run January 12, 1990 (this has the effect of crediting him with the time spent in state custody from January 12 until May 29, 1990, so that the period in dispute remains 416 of the 443 days in official custody prior to January 12). As of January 12 he had indeed received credit of 416 days against concurrent state sentences (consecutive to each other), aggregating seven years. Assuming, as the Bureau does for this purpose, that a state seven-year sentence runs seven years, Kayfez would have to serve 27 months after" }, { "docid": "22981178", "title": "", "text": "that the power to grant credit for time served lies solely with the Attorney General and the Bureau of Prisons. See 18 U.S.C. § 3585(b); United States v. Wilson, 503 U.S. 329, 333, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). Nonetheless, Burton argues that the district court did not award him credit for time served under 18 U.S.C. § 3585(b). Rather, he claims it implicitly applied Section 5G1.3(c) of the Sentencing Guidelines and allowed Burton to serve six hundred fifty days of his federal sentence concurrent with his state prison term. See United States v. Dorsey, 166 F.3d 558, 560 (3d Cir.1999) (interpreting district court’s power to award partially concurrent sentence under § 5G1.3(b) as not conflicting with Bureau of Prison’s authority under 18 U.S.C. § 3585(b) to award credit for time served). The sentencing hearing transcript belies Burton’s assertion that the district court intended to award a partially concurrent sentence. The district court quite clearly imposed the sentences to run consecutively, but then responded to what it considered an inappropriate refusal by the United States to approve at the sentencing hearing six hundred fifty days credit on Burton’s forty-six year and ten month prison sentence. Although the United States informed the district court that only the Bureau of Prisons has the power to award credit for time served, the district court responded that such a lengthy sentence imposed on a man of Burton’s age is effectively a sentence of life imprisonment, and expressed frustration at its inability to grant Burton even the Pyrrhic victory of six hundred fifty days credit for time served. Accordingly, it amended Burton’s sentence to include credit for the time he spent awaiting trial in Tennessee. We sympathize with the district court’s frustration, but the law is clear. Credit for time served may be awarded only by the Bureau of Prisons, and the district court erred in granting the credit itself. Accordingly, we vacate Burton’s amended sentence and remand with instructions to reinstate his original sentence. VII. For the forgoing reasons, we AFFIRM the district court on all grounds except Burton’s sentence. We VACATE Burton’s" }, { "docid": "13477392", "title": "", "text": "for resolution. Credit for time served is indeed á matter which generally falls within the province of the Bureau of Prisons under 18 U.S.C. § 3585(b). See United States v. Wilson, 503 . U.S. 329, 332-36, 112 S.Ct. 1351, 1354-55, 117 L.Ed.2d 593 (1992). Nevertheless, we see no reason why the principles underlying Wilson would apply to this case. Here, Drake seeks to invoke a Guidelines provision to reduce his federal sentence. The applicability of a Guidelines provision is a question for the sentencing court. See United States v. Kiefer, 20 F.3d 874, 876 (8th Cir.1994) (“[W]e find nothing in Wilson suggesting that the Attorney General’s authority under § 3585(b) limits a sentencing court’s power to apply § 5G1.3 of the Guidelines.”). Indeed, as the Court in Wilson explained, “[a]fter a District Court sentences a federal offender, the Attorney General, through the Bureau of Prisons, has the responsibility for administering the sentence.” Wilson, 503 U.S. at 335, 112 S.Ct. at 1355 (emphasis added). Such language presumes that the district court will first sentence the offender — applying the relevant Sentencing Guidelines — before credit determinations shall be made by the Bureau of Prisons. Application of section 5G1.3(b) is a matter for the court, not the Bureau, to decide. III As to the merits, 18 U.S.C. § 924(e)(1) requires that a defendant with three prior violent felonies who violates section 922(g) be “imprisoned not less than fifteen years.” Yet if Drake’s interpretation is correct, the federal sentence imposed will fall below this mandatory minimum. We thus must determine whether Drake’s state sentence constitutes “imprisonment” for the purposes of 18 U.S.C. § 924(e)(1) such that the total sentence served will satisfy the mandatory minimum. The Eighth Circuit confronted precisely this issue in United States v. Kiefer, 20 F.3d 874 (8th Cir.1994), and its reasoning is persuasive. The Kiefer court began by recognizing that, in certain circumstances, time served prior to sentencing can reduce the ultimate sentence imposed under 18 U.S.C. § 924(e)(1). For example, a defendant who has spent time in “official detention” prior to the commencement of a section 924(e)(1) mandatory" }, { "docid": "15090005", "title": "", "text": "laws and order that their sentences run concurrently with, or consecutively to, any pre-existing sentences. The two sentences would then be in conflict, which “creates uncertainty and ambiguity” and may “result in problems in calculation of service of [the] sentence.” Eastman, 758 F.2d at 1318. The better rule, which has been adopted by the Ninth Circuit, is that concurrent or consecutive sentences operate only with respect to sentences imposed previously or at the same time, but cannot be imposed prospectively on future sentences, especially those from another jurisdiction. Id. at 1317-18; Clayton, 927 F.2d at 493. Respondent’s contention that it is not required to honor a state concurrent sentence is further undermined by the legislative history of § 3584(a), which reveals that Congress expressly intended to give federal judges the power to order a federal sentence to run concurrently with a pre-existing state sentence. See S.Rep. No. 225, 98th Cong., 2d Sess., p. 127, reprinted in 1984 U.S.Code Cong. & Admin. News 3182, 3310. Section 3584(a) was intended to “be construed contrary to the holding in United States v. Segal,” 549 F.2d 1293, 1301 (9th Cir.1977), which held that a federal sentence could not run concurrently with a pre-existing state sentence because the federal sentence had to be served in federal prison. Id. Similarly, the legislative history of § 3585(a) explains that: The Committee does not intend that this provision be read to bar concurrent Federal and State sentences for a defendant who is serving a State sentence at the time he receives a Federal sentence. It should be possible for the Bureau of Prisons to use its authority to contract with State facilities to make equitable arrangement for a defendant to continue to reside in the State facility while serving part of his Federal sentence. S.Rep. No. 225, p. 129, 1984 U.S.Code Cong. & Admin. News at 3312. Thus, Congress clearly contemplated that a federal sentence could run concurrently with a state sentence and that the BOP would facilitate service of those concurrent sentences, inter alia, by designating the state prison as the place for service of the federal" }, { "docid": "2181587", "title": "", "text": "whose decisions are then subject to appeal and ultimately judicial review. See United States v. Wilson, 503 U.S. 329, 112 S.Ct 1351, 117 L.Ed.2d 593 (1992). But as Chavez clarified in supplemental briefing, a favorable decision on remand would have the effect of changing the date used to calculate the start of the federal sentence, a question over which the district court must have exclusive control, given its inherent authority under Setser to decide whether a sentence runs consecutive to or concurrent with a yet-to-be-imposed state sentence. . Chavez seems to have assumed that a modification from a concurrent to a consecutive sentence would change the effective date of his federal sentence from January 31, 2012 (the date he was received in federal custody) to August 30, 2011 (the date his federal sentence was imposed). Yet, as noted above, Chavez has been incarcerated since April 29, 2010. Chavez does not explain the basis for his apparent assumption that the district court could not make his sentence retroactively concurrent with the state sentence, such that both sentences are calculated to begin on the first day of presentence detention. Because presentence federal detention can only be applied against one federal sentence, see 18 U.S.C. § 3585(b), this method of calculating a sentence seems to be, under some circumstances, the only means by which a federal sentencing court could make a sentence truly concurrent with a state sentence. Thus, if retroactive concurrency is not possible, then any continuance of a federal sentencing hearing for defendants like Chavez functions to extend the length of the federal sentence by the length of the continuance. Further, for defendants (such as Chavez) who are cooperating with law enforcement, sentencing might often be delayed until after trials for other non-cooperating accomplices or co-conspirators. Yet without retroactive concurrency, the defendants could be penalized for their cooperation because the later sentencing will effectively extend the length of the sentence. At the same time, we acknowledge there is a split among the circuits on whether a sentence can begin to run before the actual date it is imposed, though we seem" }, { "docid": "8461665", "title": "", "text": "to serve the federal prison sentence consecutively to his state sentence for burglary. This legal issue is reviewed de novo. Sharp, 941 F.2d at 814. We find no error on the part of the district court. In United States v. Thornton, 710 F.2d 513, 516 (9th Cir.1983), we held that although former- 18 U.S.C. § 3568 limits the authority of district courts to order federal sentences of imprisonment to run concurrently with previously-imposed state sentences, there is no limit on the authority to order that the federal sentence not begin until completion of the state sentence; that is, consecutively. But the three-judge panel in United States v. Terrovona, 785 F.2d 767, 770 (9th Cir.1986), cert. denied, 476 U.S. 1186, 106 S.Ct. 2926, 91 L.Ed.2d 553 (1986), concluded that district courts may not order consecutive sentences under § 3568, and may only make a recommendation to the Bureau of Prisons. Former § 3568 was repealed by Pub.L. 98-473, tit. II, § 212(a)(2), 98 Stat. 1987, 2031 (1984), but applies where, as here, the crimes were committed before November 1, 1987. Thornton and Terrovona were in direct conflict until United States v. Hardesty, 977 F.2d 1347 (9th Cir., 1992), clarified the law on consecutive sentences in the Ninth Circuit. In Hardesty, defendant was convicted in federal district court for possession of a sawed-off shotgun in violation of 26 U.S.C. §§ 5861(d) and 5871 and sentenced to ten years in prison. The district court ordered that Hardesty’s sentence run consecutively to a state prison sentence that he was serving at the time of his federal conviction. Relying on Terrovona, Hardesty argued that the consecutive sentence was illegal and filed a motion to correct the sentence. The government relied on Thornton in opposing Hardesty’s motion. After reviewing the conflict between Terrovona and Thornton, the en banc panel in Hardesty held that the district court did not err in ordering Hardesty’s sentence to run consecutively to his undischarged state sentence and overruled Terrovona to the extent that it is inconsistent with Thornton. Id. at 1349. In so doing, Hardesty unequivocally held that consecutive sentencing is" }, { "docid": "23233905", "title": "", "text": "Act is equally plain that the responsibility for deciding when the federal sentence shall be deemed to begin — whether when the defendant began serving his state sentence, which would make the federal sentence concurrent, or not until the defendant, having completed his state prison term, was delivered into federal custody, which would make the federal sentence consecutive — remains with the Attorney General of the United States. See 18 U.S.C. §§ 3585(a), 3621(b); cf. United States v. Wilson, 503 U.S. 329, 333-37, 112 S.Ct. 1351, 1354-55, 117 L.Ed.2d 593 (1992); United States v. Roller, 956 F.2d 1408, 1417 (7th Cir.1992). Does this mean that the Attorney General can override the district judge’s determination? It would be premature to attempt to answer this ques- ■ tion, as there is no suggestion that the Attorney General would attempt to do so in this case. Remember that the government’s lawyers were content to allow the district judge to make the entire sentence concurrent — and not because they intended to advise their superiors to disregard the judge’s order and make the sentence consecutive! REVERSED AND REMANDED." }, { "docid": "22956970", "title": "", "text": "sentence. Although section 3584(a) empowers, even encourages, district judges to give a consecutive sentence as a sentence necessarily imposed at a different time from a state sentence, the sentencing judge nevertheless explicated his reasons for so doing and advised that he had considered the factors enumerated in section 3553(a). Cf. United States v. D’Iguillont, 979 F.2d 612, 615 (7th Cir.1992) (The decision that a federal sentence run consecutive to a state sentence pursuant to section 3584(a) “is not one that requires reasons to be stated on the rec ord.”), cert. denied, — U.S. -, 113 S.Ct. 1873, 123 L.Ed.2d 492 (1993). The sentencing order shows that the district court honored the statutory directives of section 3553(a), such as considering the nature of the federal crime as well as the appropriate deterrent punishment, and followed analogous Sentencing Guidelines policies in formulating Ballard’s federal sentence. Our analysis is not complete, however, with the determination that the district court had the authority to impose a federal sentence consecutively to a\" state sentence. While section 3584(a) and (b) provides' guidance, neither the statute nor its legislative history addresses precisely the question before. us: Does the district court have the authority to impose a federal sentence consecutive to an unrelated, unimposed state sentence on pending charges? This appeal is distinctive, both within our circuit and nationwide. First, it is distinguished from other cases concerning a federal sentence running consecutively to a state sentence in our circuit because, while Ballard was in state custody when he .committed his federal offense, he had not yet been tried or sentenced by the state court. Second, our review indicates that Ballard’s appeal is distinctive nationally inasmuch as he deliberately and admittedly committed his federal offense with the intention of being sentenced first by the federal court so that his prospective state sentence would be served concurrently in federal prison, thereby avoiding state incarceration. As Ballard has contended on appeal, our first concern involves principles of dual sovereignty regarding a federal sentence ordered to run consecutively to an unimposed state sentence on pending charges. All of the cases that we" }, { "docid": "22589799", "title": "", "text": "5G1.3(e) Policy Statement. See also Sentencing Guidelines § 5G1.3(c) Policy Statement (1994) (“In any other case, the sentence for the instant offense shall be imposed to run consecutively to the prior undischarged term of imprisonment to the extent necessary to achieve a reasonable punishment for the instant offense.”). In each set of circumstances, however, the predicate is that the defendant’s prior prison term remains “undischarged.” There is no provision, either in the Act or in the Guidelines, stating that the court may order that the sentence it imposes be deemed to have been served concurrently with a prior prison term that has been fully discharged. If the defendant has completed his state prison term before the federal sentence is imposed, § 5G1.3 does not apply, and his federal prison term cannot be imposed concurrently. See, e.g., United States v. Adeniyi, 912 F.2d 615, 618 (2d Cir.1990). Third, with respect to a defendant’s entitlement to credit in connection with a prior sentence, the Act provides as follows: (b) Credit for prior custody. — A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences— (1) as a result of the offense for which the sentence was imposed; or (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence. 18 U.S.C. § 3585(b) (emphasis added). Under the last quoted phrase, a defendant has no right to credit on his federal sentence for time that has been credited against his prior state sentence. Further, this section does not specify what entity is to calculate the credit to which the defendant is entitled, and the Supreme Court has concluded that “§ 3585(b) does not authorize a district court to compute the credit at sentencing.” United States v. Wilson, 503 U.S. 329, 334, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). Rather, credit “is granted by the Attorney General through the Bureau of" }, { "docid": "22913455", "title": "", "text": "sentencing credit for the time he spent in state prison. It reasoned, “[t]he determination by federal authorities that Bloomgren’s federal sentence would run consecutively to his state sentence is a federal matter which cannot be overridden by a state court provision for concurrent sentencing on a subsequently-obtained state conviction.” Although Leal’s state conviction was not subsequently obtained, the state court order for concurrent sentencing post-dated the federal conviction and sentence in this case. He is contending, in contravention of the decisional authority of several other circuits, that the U.S. Marshals Service was required to comply with the state trial court’s order that Leal be taken to a federal prison to serve out his concurrent state sentence. He has cited no binding legal authority mandating such a result. Because the nine months he spent in state custody between November 1998 and August 1999 were “credited against another sentence,” the BOP was not required to credit that time toward his federal sentence. Accordingly, the judgment of the district court is AFFIRMED. Leal’s motion for appointment of counsel, deferred by the district court, is DENIED. . See United States v. Wilson, 503 U.S. 329, 331-32, 334, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992); 18 U.S.C. § 3585(b). . 18 U.S.C. § 3585(a). . § 3585(b). . 980 F.2d 1269, 1270 (9th Cir.1992). . Id. .Id. . Id. . Id. . Id. . Id. at 1270-71. . Id. at 1270. . Id. . Id. at 1271. In the recent Taylor v. Sawyer, the Ninth Circuit rejected a claim similar to Del Guzzi’s and quoted language from the concurrence in Del Guzzi, which stated: Federal prison officials are under no obligation to, and may well refuse to, follow the recommendation of state sentencing judges that a prisoner be transported to a federal facility. Moreover, concurrent sentences imposed by state judges are nothing more than recommendations to federal officials. Those officials remain free to turn those concurrent sentences into consecutive sentences by refusing to accept the state prisoner until the completion of the state sentence and refusing to credit the time the prisoner spent in state" }, { "docid": "22956965", "title": "", "text": "not begin until he is released from custody by the state, nor shall he be entitled to any credit toward his federal sentence for the time served in state custody Rl-20-1-3 (emphasis added). At sentencing, the district judge permitted defense counsel to make objections to his sentencing order and to address the authority of the court to impose a sentence consecutive to any prospective state sentence that Ballard might receive. Ballard’s attorney argued that the consecutive federal sentence violated Ballard’s due process rights because he was presumed innocent until proven guilty of the state charge, and that the court was “making this consecutive to a state sentence that has not been imposed as to a charge that is still pending” and for which a trial date had not been set. R2-7. For the reasons stated in his sentencing order, the district judge sentenced Ballard ' to twenty-one months of imprisonment to be served consecutively to any state sentence received on the pending state robbery charge. Ballard ap peals his sentence, contending that the district court violated the principle of dual sovereignty by preventing the state court from making his state sentence concurrent with his federal sentence.., II. DISCUSSION “The imposition of consecutive rather than concurrent sentences is ... an issue of law subject to plenary review.” United States v. Perez, 956 F.2d 1098, 1101 (11th Cir.1992) (per curiam). “Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.” 18 U.S.C. § 3584(a). The court’s discretion in determining whether a consecutive or concurrent sentence is appropriate is tempered by the statutory requirement that the sentencing court consider the factors listed in 18 U.S.C. § 3553(a). 18 U.S.C. § 3584(b); United States v. Harris, 990 F.2d 594, 597 (11th Cir.1993); United States v. Fossett, 881 F.2d 976, 980 (11th Cir.1989). Those factors include the nature of the offense and the Sentencing Guidelines in effect on the date that the defendant was sentenced. 18 U.S.C. § 3553(a)(1) & (4). The applicable Sentencing Guidelines do not address Ballard’s exact situation, or that of" }, { "docid": "22913456", "title": "", "text": "deferred by the district court, is DENIED. . See United States v. Wilson, 503 U.S. 329, 331-32, 334, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992); 18 U.S.C. § 3585(b). . 18 U.S.C. § 3585(a). . § 3585(b). . 980 F.2d 1269, 1270 (9th Cir.1992). . Id. .Id. . Id. . Id. . Id. . Id. at 1270-71. . Id. at 1270. . Id. . Id. at 1271. In the recent Taylor v. Sawyer, the Ninth Circuit rejected a claim similar to Del Guzzi’s and quoted language from the concurrence in Del Guzzi, which stated: Federal prison officials are under no obligation to, and may well refuse to, follow the recommendation of state sentencing judges that a prisoner be transported to a federal facility. Moreover, concurrent sentences imposed by state judges are nothing more than recommendations to federal officials. Those officials remain free to turn those concurrent sentences into consecutive sentences by refusing to accept the state prisoner until the completion of the state sentence and refusing to credit the time the prisoner spent in state custody. 284 F.3d 1143 (9th Cir.2002), cert. denied, 537 U.S. 1119, 123 S.Ct. 889, 154 L.Ed.2d 799 (2003) (quoting Del Guzzi, 980 F.2d at 1272-73 (Norris, J., concurring)). . 948 F.2d 688, 690-91 (10th Cir.1991). . Id. at 690. . Id. . Id. at 691. . Id. . Id. Other courts have reached similar results in similar circumstances. See Jake v. Herschberger, 173 F.3d 1059, 1066 (7th Cir.1999) (“The state court’s designation of [the defendant's] state sentence as concurrent with his prior federal sentence created no obligation on the Attorney General to provide him with credit for time served in the state prison.”); Pinaud v. James, 851 F.2d 27, 30 (2d Cir.1988) (reasoning that the defendant cannot, through agreement with state authorities, compel the federal government to grant a concurrent sentence). Leal relies on Buggs v. Crabtree, 32 F.Supp.2d 1215, 1220-21 (D.Or.1998), which held that the BOP was obliged to credit a prisoner for time spent in state prison when the state courts had ordered concurrent sentences. The court in Buggs acknowledged the holding in" }, { "docid": "20135581", "title": "", "text": "v. Watford, 468 F.3d 891, 915-16 (6th Cir.2006). That determination is based, in part, on the Guidelines and policy statements of the Sentencing Commission. Johnson, 553 F.3d at 997. In particular, the first appeal involved the application of USSG § 5G1.3(c), which provides that “[i]n any other case involving an undischarged term of imprisonment, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.” At resentencing, defendant continued to urge the district court to impose a partially concurrent sentence under § 5G1.3(c), but also argued that the district court could adjust the length of the sentence to take into account the time served for which the BOP might not give him credit. The district court expressed the view that defendant should receive credit for time served from the time of his arrest on the federal warrant on January 10, 2006 — rather than from his release to federal custody in January 2009 — but recognized that the power to determine such credit would lie solely with the Attorney General and the Bureau of Prisons. See 18 U.S.C. § 3585(b); United States v. Wilson, 503 U.S. 329, 333, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). Rather than adopting either of defendant’s suggestions, the district court imposed the same within-Guidelines sentence of 108 months’ imprisonment with credit for time served from January 10, 2006. The amended judgment specifically recommended that defendant receive such credit. Claiming error, defendant argues first that the amended judgment did not accurately reflect the oral pronouncement of sentence in which the district judge stated that he “want[ed] to give [defendant] credit” for time served from January 10, 2006. The record does not support this claim, however. The district judge explained more than once that although he could make a recommendation in the judgment, the BOP would not necessarily accept his calculation of the credit for time served. The district judge not only explicitly recognized that his recommendation would not be binding on the BOP, but also" }, { "docid": "13516367", "title": "", "text": "have been served regardless of whether he committed his federal crime; hence the court is not required to impose concurrent sentences. See U.S.S.G. § 5G1.3(b) (1992). The court does not believe that his federal sentence should be effectively reduced by virtue of Mr. BrasselTs state time for the crimes on which he was on probation when he committed his federal crime. Consecutive sentencing is necessary to achieve a reasonable incremental punishment for the tax conspiracy. U.S.S.G. 5G1.3(c) (1992). Accordingly, pursuant to the Sentencing Reform Act of 1984, it is the judgment of the court that the defendant, Jay C. Bras-sell, is hereby committed to the Bureau of Prisons to be imprisoned for 37 months. The sentence shall be served consecutively to the Indiana sentence in Indiana cause number 71-D08-9205-CF-00517, a sentence the defendant is presently serving. Sentencing Memorandum at 3-4. Mr. Bras-sell made no objection at sentencing. On appeal, Mr. Brassell argues that the district court should have imposed the federal prison sentence to run concurrently to the state prison sentences. II. Analysis Because Mr. Brassell made no objection at the time of sentencing, review is limited to the standard of plain error. United States v. Korando, 29 F.3d 1114, 1120 (7th Cir.), cert. denied, — U.S. -, 115 S.Ct. 496, 130 L.Ed.2d 406 (1994). Plain error must be clear, prejudicial, and affecting substantial rights. See United States v. Olano, — U.S. -,-, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993). Because of certain unresolved questions, the resolution of which may have a substantial impact on Mr. Brassell’s sentence, we remand for re-sentencing. First, on the record before us, it is unclear why the district court used the 1992 version of the Guidelines, when Mr. Brassell was sentenced in 1994. Second, it appears that the district court did not apply the methodology of § 5G1.3 Application Note 3 before deciding to make Mr. Brassell’s federal sentence consecutive to his state sentence. Third, it appears, on the record before us, that the state sentences for theft, which had expired by the time of federal sentencing, nevertheless influenced the district court’s decision" }, { "docid": "21021981", "title": "", "text": "order, which, necessarily, did not specify that Pineyro’s sentence was to run concurrently with any subsequent sentence imposed for his unrelated state armed robbery charges. Absent an order that a term of imprisonment is to run concurrently with a term of imprisonment imposed at a different time, the terms run consecutively. See 18 U.S.C. § 3584(a). Because Pineyro did not appeal this order, he cannot do so now. See Fed. R.App. P. 4(b); United States v. Ferraro, 992 F.2d 10, 11 (2d Cir.1993) (per curiam). To the extent that Pineyro argues that the district court should have modified Pineyro’s sentence via an order declaring his federal and state sentences to run concurrently, after the state sentence was imposed, the district court did not have the authority to modify the original sentence. See Fed. R.Crim.P. 35(e) (district court may only correct a sentence imposed in clear error within seven days of imposing sentence); United States v. Lussier, 104 F.3d 32, 37 (2d Cir. 1997). This leaves Pineyro’s argument that the district court should have issued an order directing BOP to credit him with the time he spent in state custody, based on the original sentencing order in this case. We reject this argument as well. The district court’s August 9 order, from which Pineyro appeals, was only a nonbinding recommendation that BOP not credit Pineyro with the time he spent in state custody. After a defendant is sentenced, it falls to BOP, not the district judge, to determine when a sentence is deemed to “commence,” see 18 U.S.C. § 3585(a); whether the defendant should receive credit for time spent in custody before the sentence “commenced,” see id. § 3585(b); and whether the defendant should be awarded credit for “good time,” see id. § 3624(b). See United States v. Wilson, 503 U.S. 329, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) (BOP determines credit issues, not the district courts). It also falls to BOP to determine a defendant’s place of confinement. See 18 U.S.C. § 3621(b). While BOP may consider the recommendation of the sentencing judge in determining the place of a confinement," }, { "docid": "23285542", "title": "", "text": "already served 34 months on the undischarged state sentence. At sentencing, Ross argued that U.S.S.G. § 5G1.3(b) required the court to impose his federal sentence concurrently with the undischarged residential burglary sentence. Ross further argued that Application Note 2 to § 5G1.3 required the court to reduce his presumptive federal sentence by the 34 months he had already served on the undischarged state sentence. The district court, without objection from the government, agreed on both points. The court properly ordered the federal prison term to run concurrently with the remainder of the state prison term based on its determination that Ross’s burglary conviction was “fully taken into account” in the offense level calculation. See, e.g., United States v. Bell, 28 F.3d 615, 618-19 (7th Cir.1994); United States v. Evans, 1 F.3d 654, 654 (7th Cir.1993) (per curiam). But instead of sentencing Ross to 154 months, as Ross had argued was appropriate, the court sentenced Ross to 188 months and attempted to order the BOP to give Ross a 34-month credit against that term. It was this step in the process that Ross claims was error, and the government now agrees with him. Ross notes that the BOP not only has not given him credit, but worse, that 18 U.S.C. § 3585(b) bars it from doing so, because the state had already credited the 34 months against his state sentence. Ross is correct. The district court had no authority to order the BOP to give Ross the credit because that authority rests exclusively with the BOP. See United States v. Wilson, 503 U.S. 329, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992); United States v. McGee, 60 F.3d 1266, 1272 (7th Cir.1995). Even if the BOP had desired to effectuate the sentencing court’s intent, it could not have done so because § 3585(b) forbids the BOP from giving credit for presentence custody when that credit has been applied against another sentence. See United States v. Walker, 98 F.3d 944, 945 (7th Cir.1996). And here, the state obviously was giving Ross credit for his time served in state prison on a state sentence." } ]

[ { "docid": "22746118", "title": "", "text": "purpose, they provoke questions in the field of international affairs. And specialized regulation of the conduct of an alien before naturalization is a matter which Congress must consider in discharging its constitutional duty “To establish an Uniform Rule of Naturalization . . .” It cannot be doubted that both the state and the federal registration laws belong “to that class of laws which concern the exterior relation of this whole nation with other nations and governments.” Consequently the regulation of aliens is so intimately blended and intertwined with responsibilities of the national government that where it acts, and the state also acts on the same subject, “the act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it.” And where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or aux iliary regulations. There is not — and from the very nature of the problem there cannot be — any rigid formula or rule which can be used as a universal pattern to determine the meaning and purpose of every act of Congress. This Court, in considering the validity of state laws in the light of treaties or federal laws touching the same subject, has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference. But none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked formula. Our primary function is to determine whether, under the circumstances of this particular case, Pennsylvania’s law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. And in that determination, it is of importance that this legislation is in a" } ]

[ { "docid": "8777220", "title": "", "text": "§ 1306(a). Unlike Section 1306(a), H.B. 56 § 10(a), by its plain language, does not apply to aliens lawfully present in the United States who fail to register or be fingerprinted in violation 8 U.S.C. § 1306(a). The United States argues that H.B. 56 § 10 is conflict preempted because it interferes with the federal alien registration scheme. (Doc. 2 at 28-31.) As noted, every preemption analysis “must be guided by two cornerstones.” Wyeth, 129 S.Ct. at 1194. The first is that “ ‘the purpose of Congress is the ultimate touchstone.’ ” Id. (quoting Lohr, 518 U.S. at 485, 116 S.Ct. 2240.) The second is that a presumption against preemption applies when “Congress has legislated ... in a field which the States have traditionally occupied.” Id. Because the states have not traditionally occupied the field of alien registration, the court applies no presumption against preemption for H.B. 56 § 10. The current federal registration system set forth in 8 U.S.C. §§ 1302, 1304, and 1306, creates a comprehensive scheme for alien registration. See Hines, 312 U.S. at 74, 61 S.Ct. 399. The federal system requires aliens to register, 8 U.S.C. § 1302, and requires registered aliens to obtain a certificate of alien registration or an alien registration card, 8 U.S.C. § 1304(d). The INA provides criminal penalties for aliens who fail to carry a registration card or certificate, 8 U.S.C. § 1304(e), and who willfully fail to register, notify the federal government of a change of address, make fraudulent statements, and produce counterfeit documents. 8 U.S.C. § 1306(a)-(d). The United States relies primarily on Hines to support its assertion that H.B. 56 § 10 is preempted. (See doc. 2 at 28-30.) In Hines, the Supreme Court considered whether the federal Alien Registration Act, the precursor to the INA, preempted the Alien Registration Act adopted in Pennsylvania. Hines, 312 U.S. at 56, 61 S.Ct. 399. The subject of both the federal Act and the Pennsylvania Act was the registration of aliens. Id. at 61, 61 S.Ct. 399. The Court stated: [Wjhere the federal government, in the exercise of its superior authority" }, { "docid": "22746113", "title": "", "text": "violates § 16 of the Civil Rights Act of 1870; (3) exceeds Pennsylvania’s constitutional power in requiring registration of aliens without Congressional consent. Appellees’ final contention is that the power to restrict, limit, regulate and registefeahj*ijg& a distinct group is not an equal and continucmiH^BHfeg concurrent power of state and nation, but thafillpn if the state can legislate on this subject at all, its power is subordinate to supreme national law. Appellees conclude that by its adoption of a comprehensive, integrated scheme for regulation of aliens — including its 1940 registration act — Congress has precluded state action like that taken by Pennsylvania. In the view we take it is not necessary to pass upon appellees’ first, second, and third contentions, and so we pass immediately to their final question, expressly leaving open all of appellees’ other contentions, including the argument that the federal power in this field, whether exercised or unexercised, is exclusive. Obviously the answer to appellees’ final question depends upon an analysis of the respective powers of state and national governments in the regulation of aliens as such, and a determination of whether Congress has, by its action, foreclosed enforcement of Pennsylvania’s registration law. First. That the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution, was pointed out by the authors of The Federalist in 1787, and has since been given continuous recognition by this Court. When the national governmenJáMÉamty or statute has established rules and regulations touching the rights, privileges, obligations or burdens of aliens as such, the treaty or statute is the supreme law of the land. No state can add to or take from the force and effect of such treaty or statute, for Article VI of the Constitution provides that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State" }, { "docid": "20573865", "title": "", "text": "and criminal penalties. In attempting to determine whether the federal statute had preempted the state statute, the Court stated: “There is not — and from the very nature of the problem there cannot be— any rigid formula or rule which can be used as a universal pattern to determine the meaning and purpose of every act of Congress. This Court, in considering the validity of state laws in the light of . federal laws touching the same subject, has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation ; curtailment; and interference. But none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked formula. Our primary function is to determine whether, under the circumstances of this particular case, [the state] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” The Court went on to state that: “The nature of the power exerted by Congress, the object sought to be attained, and the character of the obligations imposed by the law, are all important in considering the question of whether supreme federal enactments preclude enforcement of state laws on the same subject.” Clearly, there are two gross conflicts between the federal and state statutes involved in the case at bar. The federal statute provides for a twenty-eight year copyright, with a permissible twenty-eight year extension, while the state statute contains no time limitation at all. In addition, the federal statute provides for very elaborate notice and registration requirements. Such requirements prevent inadvertent infringe ments and the initiation of fraudulent copyright claims. The state statute, however, contains no notice or registration requirements. Under the state statute, an innocent copier could be convicted of selling copies of a sound recording regardless of whether the master disc had been copyrighted. The same result would accrue even if the copying occurred more than fifty-six years after the master disc had been fixed. In the face of these conflicts, the defendants argue" }, { "docid": "22746117", "title": "", "text": "recognize as to our nationals abroad. In general, both treaties and international practices have been aimed at preventing injurious discriminations against aliens. Concerning such treaties, this Court has said: “While treaties, in safeguarding important rights in the interest of reciprocal beneficial relations, may by their express terms afford a measure of protection to aliens which citizens of one or both of the parties may not be able to demand against their own government, the general purpose of treaties of amity and commerce is to avoid injurious discrimination in either country against the citizens of the other.” Legal imposition of distinct, unusual and extraordinary burdens and obligations upon aliens — such as subjecting them alone, though perfectly law-abiding, to indiscriminate and repeated interception and interrogation by public officials — thus bears an inseparable relationship to the welfare and tranquillity of all the states, and not merely to the welfare and tranquillity of one. Laws imposing such burdens are not mere census requirements, and even though they may be immediately associated with the accomplishment of a local purpose, they provoke questions in the field of international affairs. And specialized regulation of the conduct of an alien before naturalization is a matter which Congress must consider in discharging its constitutional duty “To establish an Uniform Rule of Naturalization . . .” It cannot be doubted that both the state and the federal registration laws belong “to that class of laws which concern the exterior relation of this whole nation with other nations and governments.” Consequently the regulation of aliens is so intimately blended and intertwined with responsibilities of the national government that where it acts, and the state also acts on the same subject, “the act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it.” And where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress," }, { "docid": "20393437", "title": "", "text": "aliens themselves, § 1325, for example, imposes civil and criminal penalties for unlawful entry into the United States. Congress has similarly authorized criminal penalties for individuals who bring aliens into the United States, id. § 1323, aid the entry of an inadmissible alien, id. § 1327, and import an alien for an immoral purpose, id. § 1328. In enacting these provisions, the federal government has clearly expressed more than a “peripheral concern” with the entry, movement, and residence of aliens within the United States, see De Canas, 424 U.S. at 360-61, 96 S.Ct. at 939, and the breadth of these laws illustrates an overwhelmingly dominant federal interest in the field. GLAHR, 691 F.3d at 1263-64 (footnote omitted). We found support for the conclusion that the similar sections of Georgia’s immigration law were preempted by looking to the recent Arizona decision and Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640 (1956). Section 3 of Arizona’s Senate Bill 1070 (S.B. 1070) added a “state-law penalty for conduct proscribed by federal law”— the failure to complete and carry alien registration documents as required by 8 U.S.C. §§ 1304(e), 1306(a). Arizona, 132 S.Ct. at 2501. The Court explained the comprehensive nature of the current federal registration scheme, which holds aliens to certain standards of conduct and penalizes their willful failure to register with the federal government. Id. at 2502. Based on the breadth of federal regulation, the Court concluded that “the Federal Government has occupied the field of alien registration” and therefore found impermissible “even complementary state regulation” within that field. Id.; see also id. (“Even if a State may make violation of federal law a crime in some instances, it cannot do so in a field ... that has been occupied by federal law.”). The Supreme Court dismissed the state’s argument that its goal of concurrent enforcement was appropriate in a field occupied by federal regulation. Id. at 2502-03. Like the federal registration scheme addressed in Arizona, Congress has provided a “full set of standards” to govern the unlawful transport and movement of aliens. Id. at 2502. The INA" }, { "docid": "22746124", "title": "", "text": "such rules had been adopted in slavery times to secure the peace of society.” For many years bills have been regularly presented to every Congress providing for registration of aliens. Some of these bills proposed annual registration of aliens, issuance of identification cards containing information about and a photograph of the bearer, exhibition of the cards on demand, payment of an annual fee, and kindred requirements. Opposition to these bills was based upon charges that their requirements were at war with the fundamental principles of our free government, in that they would bring about unnecessary and irritating restrictions upon personal liberties of the individual, and would subject aliens to a system of indiscriminate questioning similar to the espionage systems existing in other lands. When Congress passed the Alien Registration Act of 1940, many of the provisions which had been so severely criticized were not included. The Congressional purpose, as announced by the chairman of the Senate subcommittee which drafted the final bill, was to “work . . . the new provisions into the existing [immigration and naturalization] laws, so as to make a harmonious whole.” That “harmonious whole” included the “Uniform Rule of Naturalization” the Constitution empow ered the Congress to provide. And as a part of that “harmonious whole,” under the federal Act aliens need not carry cards, and can only be punished for wilful failure to register. Further, registration records and fingerprints must be kept secret and cannot be revealed except to agencies — such as a state — upon consent of the Commissioner and the Attorney General. We have already adverted to the conditions which make the treatment of aliens, in whatever state they may be located, a matter of national moment. And whether or not registration of aliens is of such a nature that the Constitution permits only of one uniform national system, it cannot be denied that the Congress might validly conclude that such uniformity is desirable. The legislative history of the Act indicates that Congress was trying to steer a middle path, realizing that any registration requirement was a departure from our traditional policy" }, { "docid": "7088985", "title": "", "text": "swear that he is not a Communist, tomorrow the same logic will justify control of movement from one state to another, for that is no less useful in communication than travel abroad. By no great extension of the court’s reasoning, an oath can be required as a condition to the enjoyment of every other right we have. Food, clothing, shelter, education, recreation— all help to sustain the individual, develop his powers, and make him a more dangerous antagonist. The due process problem is not avoided by reliance upon Galvan v. Press, 1954, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911; nor the First Amendment problem by reliance upon American Communications Ass’n v. Douds, 1950, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925. In holding in Galvan that Congress could constitutionally provide for deportation of an alien who becomes a Communist after entry, the Supreme Court said: “The power of Congress over the admission of aliens and their right to remain is necessarily very broad, touching as it does basic aspects of national sovereignty, more particularly our foreign relations and the national security.” The greater power which the Government possesses in respect of aliens may legitimatize treatment which could not lawfully be directed against citizens. Galvan provides no constitutional basis for banishing a citizen who becomes a Communist. So far as the First Amendment problem is concerned, whether we apply the “clear and present danger test,” or some aspect of the “reasonable relation” test, we are engaged in weighing the individual’s need to be free against the Government’s need to restrain him. Each case is bound to turn on the nature of the freedom involved, the public detriment it conflicts with and the type of restraint imposed. It is unlikely that a case arising in one context will determine a case arising in another. Douds falls far short of determining our present problem. In Douds the Court upheld the constitutionality of § 9(h) of the National Labor Relations Act, 29 U.S.C.A. § 159 (h), withdrawing N.L.R.B. privileges from unions whose officers fail to submit non-Communist affidavits. The Court found" }, { "docid": "5972142", "title": "", "text": "of an express or implied denial of that authority in the Constitution or valid federal laws and regulations promulgated thereunder. See Northern States Power Co. v. Minnesota, 8 Cir., 447 F.2d 1143, 1146, aff’d, 405 U.S. 1035, 92 S.Ct. 1307, 31 L.Ed.2d 576. Compare Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248, and Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447, with Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233. Plaintiff contends subsection 19(G) conflicts with the AECA. In order to reach our determination of this issue, we review the leading cases of Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581, and Perez v. Campbell, supra. In Hines, the Supreme Court was confronted with an alleged conflict between the Pennsylvania Alien Registration Act of 1939 and the Federal Alien Registration Act of 1940. The Court ultimately held the federal act formed a comprehensive integrated scheme for the regulation of aliens and precluded the enforcement of state alien registration acts such as that adopted by Pennsylvania. In so holding, the Court had to make a determination of “whether, under the circumstances of this particular case, Pennsylvania’s law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” 312 U.S. at 67, 61 S.Ct. at 404. This language is instructive in two respects. First, the Court uses the language “in this particular case” indicating these matters must be decided on a case by case basis. The Court makes this clearer by saying “[t]here is not . . any rigid formula or rule which can be used as a universal pattern to determine the meaning and purpose of every act of Congress.” Id. at 67, 61 S.Ct. at 404. Second, it indicates there must be an inquiry into congressional purpose and objective and a comparison with the state law purpose and objective. In making such a comparison in Hines, the Court says “where the federal government, in the exercise of its superior" }, { "docid": "5402429", "title": "", "text": "statute was designed to occupy a field in which the Supreme Court had held that the states cannot act (the famous gap), these cases dealt with sales after transportation in interstate commerce and were related to transportation and distribution, not to transportation and gathering. Even more, the existence of a gap presupposes that the states have no power to regulate activities of the type in which Phillips was engaged. But not only is that field not preempted by the commerce clause, for, as the Supreme Court said 340 U.S. at page 186, 71 S.Ct. at page 219, in the Cities Service case i “It is now well settled that a state may regulate matters of local concern over which federal authority has not been exercised, even though the regulation has some impact on interstate commerce,” and 340 U.S. at page 187, 71 S.Ct. at page 220, “Nor should we lightly translate the quiescence of federal power into an affirmation that the national interest lies in complete freedom from regulation,” but by § 1(b) the Congress specifically reaffirmed the power of the states to deal with this problem if the existence of such power had previously been in doubt. Panhandle v. Public Service Comm, of Indiana, 1947, 332 U.S. 507, 517, 519, 68 S.Ct. 190. Since the majority opinion leans so heavily upon the Interstate decision, it may perhaps be well to compare that case with the instant one in order to determine whether Interstate really is controlling here. There, the Commission found and determined, and pointed out to the courts, that the sales were made after the gathering process had been completed and after there had been some transportation in a pipe line transmission system. Here, the Commission made a contrary finding. There, the State of Louisiana never opposed Federal jurisdiction; here, the states involved very vigorously objected to Commission jurisdiction because, they asserted, such regulation would interfere with state regulation or state conservation policies. That conflict clearly brings into play the exception contemplated in the 'Interstate opinion. And finally, there, the Supreme Court based its decision not upon the" }, { "docid": "22667667", "title": "", "text": "the different factors which, in my opinion, are involved in the constitutional adjudication of state and federal obscenity cases. Third, relevant distinctions between the two obscenity statutes here involved, and the Court’s own definition of “obscenity,” are ignored. In final analysis, the problem presented by these cases is how far, and on what terms, the state and federal governments have power to punish individuals for disseminating books considered to be undesirable because of their nature or supposed deleterious effect upon human conduct. Proceeding from the premise that “no issue is presented in either case, concerning the obscenity of the material involved,” the Court finds the “dispositive question” to be “whether obscenity is utterance within the area of protected speech and press,” and then holds that “obscenity” is not so protected because it is “utterly without redeeming social importance.” This sweeping formula appears to me to beg the very question before us. The Court seems to assume that “obscenity” is a peculiar genus of “speech and press,” which is as distinct, recognizable, and classifiable as poison ivy is among other plants. On this basis the constitutional question before us simply becomes, as the Court says, whether “obscenity,” as an abstraction, is protected by the First and Fourteenth Amendments, and the question whether a particular book may be suppressed becomes a mere matter of classification, of “fact,” to be entrusted to a fact-finder and insulated from independent constitutional judgment. But surely the problem cannot be solved in such a generalized fashion. Every communication has an individuality and “value” of its own. The suppression of a particular writing or other tangible form of expression is, therefore, an individual matter, and in the nature of things every such suppression raises an individual constitutional problem, in which a reviewing court must determine for itself whether the attacked expression is suppressable within constitutional standards. Since those standards do not readily lend themselves to generalized definitions, the constitutional problem in the last analysis becomes one of particularized judgments which appellate courts must make for themselves. I do not think that reviewing courts can escape this responsibility by" }, { "docid": "1761050", "title": "", "text": "the multiplicity of control by several agencies of various immigration activities should be eliminated. In general, the subcommittee has come to the conclusion that, although there are some points in the mechanism where coordinated action is necessary and duplication must be eliminated, the over-all structural pattern ought to be maintained. The subcommittee is persuaded to the position on the grounds that (1) the distribution of responsibility places additional barriers in the way of undesirable aliens, additional fences of protection which the alien must surmount, and (2) the present system operates satisfactorily and the suggested modifications will eliminate most of the existing difficulties. S.Rep.No.1515, 81st Cong., 2d Sess., 332 (1950). The Special Subcommittee to Investigate Immigration and Naturalization, author of the report, considered and rejected a proposal advanced by the Hoover Commission to transfer the Visa Division of the Department of State to the Justice Department in order more effectively to centralize control. The subcommittee decided to recommend continuation of the bifurcation of power to maintain “an additional barrier to the entry of inadmissible aliens,” id. at 327, 331, feeling that most of the problems presented by the dual system could be corrected by improving the consular officers’ knowledge of the standards applied by INS, id. at 333. Moreover, the subcommittee considered the problem of the issuance of passports to be closely related to those presented in the issuance of visas. Id. at 331. Senator McCarran introduced a bill reflecting these views in the 81st Congress, but the measure was committed for further study. The 82nd Congress thereafter drew upon the previous experience in enacting its sweeping reform of the immigration and naturalization laws. See H.Rep.No.1365, 82nd Cong., 2d Sess., 27 (1952). Among the ideas expressed by the Senate report that carried over into the 1952 legislation is the desire to jjrovide more thorough screening of aliens. Id. at 52. . The Supreme Court’s decision in Rusk v. Cort, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962), makes this remedy equally available to persons not within the United States. . This court summarized the basic principles governing the availability" }, { "docid": "3419094", "title": "", "text": "from the federal government to remain in the United States.” A.R.S. § 13-1509(F). Essentially, Section 3 makes it a state crime to violate federal registration laws and provides for state prosecutions and penalties for violations of the federal registration law. The United States argues that Section 3 is preempted because it interferes with comprehensive federal alien registration law, seeks to criminalize unlawful presence, and will result in the harassment of aliens. (Pl.’s Mot. at 34-39.) Arizona asserts that Section 3 neither conflicts with federal law nor regulates in a federally occupied field. (Defs.’ Resp. at 21-22.) “[T]he power to restrict, limit, regulate, and register aliens as a distinct group is not an equal and continuously existing concurrent power of state and nation[;] ... whatever power a state may have is subordinate to supreme national law.” Hines, 312 U.S. at 68, 61 S.Ct. 399. In Hines, the Supreme Court found that, where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or inter- fere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations. 312 U.S. at 66-67, 61 S.Ct. 399. Hines also stated that a state statute is preempted where it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. at 67, 61 S.Ct. 399. The Supreme Court determined in Hines that the purpose of the Federal Alien Registration Act was to “make a harmonious whole” and that the Alien Registration Act “provided a standard for alien registration in a single integrated and all-embracing system.” Id. at 72, 74, 61 S.Ct. 399. As a result, the Hines court held that the state registration scheme at issue could not be enforced. Id. at 74, 61 S.Ct. 399. The current federal alien registration requirements create an integrated and comprehensive system of registration. See id. (finding that the Alien Registration Act, the precursor to the current alien registration scheme, created" }, { "docid": "20205324", "title": "", "text": "criminal penalties for individuals who bring aliens into the United States, id § 1323, aid the entry of an inadmissible alien, id § 1327, and import an alien for an immoral purpose, id. § 1328. In enacting these provisions, the federal government has clearly expressed more than a “peripheral concern” with the entry, movement, and residence of aliens within the United States, see De Canas, 424 U.S. at 360-61, 96 S.Ct. at 939, and the breadth of these laws illustrates an overwhelmingly dominant federal interest in the field. The Supreme Court’s recent decision in Arizona v. United States provides an instructive analogy. Section 3 of Arizona’s Senate Bill 1070 (S.B. 1070) added a “state-law penalty for conduct proscribed by federal law” — the failure to complete and carry alien registration documents as required by 8 U.S.C. §§ 1304(e), 1306(a). Arizona, 132 S.Ct. at 2501. The Court explained the comprehensive nature of the current federal registration scheme, which holds aliens to certain standards of conduct and penalizes their willful failure to register with the federal government. Id at 2502. Based on the breadth of federal regulation, the Court concluded that “the Federal Government has occupied the field of alien registration” and therefore found impermissible “even complementary state regulation” within that field. Id; see also id. (“Even if a State may make violation of federal law a crime in some instances, it cannot do so in a field ... that has been occupied by federal law.”). The Supreme Court dismissed the state’s argument that its goal of concurrent enforcement was appropriate in a field occupied by federal regulation. Id. at 2502-03. Like the federal registration scheme addressed in Arizona, Congress has provided a “full set of standards” to govern the unlawful transport and movement of aliens. Id. at 2502. The INA comprehensively addresses criminal penalties for these actions undertaken within the borders of the United States, and a state’s attempt to intrude into this area is prohibited because Congress has adopted a calibrated framework within the INA to address this issue. See id. at 2502-03. Our conclusion also finds support in the" }, { "docid": "22722830", "title": "", "text": "shipped. 27 Fed. Reg. 5135-5136, 6705, 8265, 9175, 10091; 26 Fed. Reg. 3692, 4928, 5418-5419, 6429, 7694, 8663 ; 25 Fed. Reg. 5476, 7712, 8903, 9170, 9888 ; 24 Fed. Reg. 1152, 3105, 4050, 4828, 5824-5825, 6904, 7354, 8444, 9123, 9262;- 23 Fed. Reg. 1025-1026, 4351-4352, 5477, 6318, 7344, 7943, 8047, 9056, 9689 ; 22 Fed. Reg. 3652, 4251-4252, 5680, 6746, 7173-7174, 7357-7358, 8118 ; 21 Fed. Reg. 3307-3308, 3488, 6329-6330; 20 Fed. Reg. 3427,'4178-4179; 6699-6700, 7876, 8328-8329, 8688; 19 Fed. Reg. 4404-4405, 4601, 4862, 5469, 5966, 5967, 6368, 6604, 6625, 7477. Similar orders have been issued from time to time concerning maturity of imported avocados. See, e. g., 25 Fed. Reg. 5445; 24 Fed. Reg. 4134, 4829, 5825, 5996; 23 Fed. Reg. 4352, 6027; 22 Fed. Reg. 3957; 21 Fed. Reg. 4257. “There is not — and from the very nature of the problem there cannot be — any rigid formula or rule which can be used as a universal pattern to determine the meaning and purpose of every act of Congress. This Court, in considering the validity of state laws in the light of . . . federal laws touching the same subject, has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference. But none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked formula. Our primary function is to determine whether, under the circumstances of this particular case, Pennsylvania’s law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U. S. 52, 67. (Emphasis added.) Compare ante, p. 141. We do not imply that these regulations governing the fitness of avocados in terms of maturity-would preclude application of local regulations. concerning, for example, bacteria content or DDT content. Cf. Huron Co. v. Detroit, 362 U. S. 440. Neither health regulation nor safety considerations, cf. Lyons v. Thrifty Drug Stores Co., 105 Cal. App. 2d 844, 234 P." }, { "docid": "22746122", "title": "", "text": "entry and before naturalization. If during the time he is residing here he should be found guilty of conduct contrary to the rules and regulations laid down by Congress, he can be deported. At the time he enters the country, at the time he applies for permission to acquire the full status of citizenship, and during the intervening years, he can be subjected to searching investigations as to conduct and suitability for citizenship. And in 1940 Congress added to this comprehensive scheme a complete system for alien registration. The nature of the power exerted by Congress, the object sought to be attained, and the character of the obligations imposed by the law, are all important in considering the question of whether supreme federal enactments preclude enforcement of state laws on the same subject. Opposition to laws permitting invasion of the personal liberties of law-abiding individuals, or singling out aliens as particularly dangerous and undesirable groups, is deep-seated in this country. Hostility to such legislation in America stems back to our colonial history, and champions of freedom for the individual have always vigorously opposed burdensome registration systems. The drastic requirements of the alien Acts of 1798 brought about a political upheaval in this country the repercussions from which have not even yet wholly subsided. So violent was the reaction to the 1798 laws that almost a century elapsed before a second registration act was passed. This second law, which required Chinese to register and carry identification cards with them at all times, was enacted May 5, 1892. An opponent of this legislation, speaking in the Senate of the requirement that cards be carried, said: “[The Chinese covered by the Act] are here ticket-of-leave men; precisely as, under the Australian law, a convict is allowed to go at large upon a ticket-of-leave, these people are to be allowed to go at large and earn their livelihood, but they must have their tickets-of-leave in their possession. . . . This inaugurates in our system of government a new departure; one, I believe never before practised, although it was suggested in conference that some" }, { "docid": "5972143", "title": "", "text": "precluded the enforcement of state alien registration acts such as that adopted by Pennsylvania. In so holding, the Court had to make a determination of “whether, under the circumstances of this particular case, Pennsylvania’s law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” 312 U.S. at 67, 61 S.Ct. at 404. This language is instructive in two respects. First, the Court uses the language “in this particular case” indicating these matters must be decided on a case by case basis. The Court makes this clearer by saying “[t]here is not . . any rigid formula or rule which can be used as a universal pattern to determine the meaning and purpose of every act of Congress.” Id. at 67, 61 S.Ct. at 404. Second, it indicates there must be an inquiry into congressional purpose and objective and a comparison with the state law purpose and objective. In making such a comparison in Hines, the Court says “where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation . . . states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law or enforce additional or auxiliary regulations.” Id. at 66-67, 61 S.Ct. at 404. At first blush, this is strong, confining language. “[I]nconsistently with the purpose of Congress,” however, seems to be somewhat of a qualifying phrase indicating that in some cases where the state and federal purposes are not necessarily inconsistent, certain conflicts between state and federal law will not necessarily render the state law invalid. It should be noted Hines offers no absolute test. The Court points out there is no “infallible constitutional test or an exclusive constitutional yardstick.” Id. at 67, 61 S.Ct. at 404. Perez interpreted Hines as establishing a “controlling principle that any state legislation which frustrates the full effectiveness of federal law is rendered invalid by the Supremacy Clause.” 402 U.S. at 652, 91 S.Ct. at 1712. In Perez the Court held Arizona’s Motor Vehicle Safety Responsibility Act" }, { "docid": "16901862", "title": "", "text": "U.S. -, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012), the Supreme Court reiterated the familiar maxims that a state or local law is preempted under the Supremacy Clause not only where Congress enacts “an express preemption provision” but also where congressional “intent to displace state law altogether can be inferred from a framework of regulation ‘so pervasive ... that Congress left no room for the States to supplement it,’ ” id. at 2501 (alteration in original) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)), or “where the challenged state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’ ” id. (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)). I believe the Hines Court’s earlier discussion of the overlap and interplay of these related formulations continues to provide useful guidance as to the ultimate practical inquiry under implied preemption doctrine: There is not — and from the very nature of the problem there cannot be— any rigid formula or rule which can be used as a universal pattern to determine the meaning and purpose of every act of Congress. This Court, in considering the validity of state laws in the light of treaties or federal laws touching the same subject, has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference. But none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked formula. Our primary function is to determine whether, under the circumstances of [a] particular case, [the challenged state or local] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Hines, 312 U.S. at 67-68, 61 S.Ct. 399. Like my colleagues who join the lead opinion, as well as the original panel and the district court below, I conclude that the Farmers Branch Ordinance presents such an obstacle" }, { "docid": "16901863", "title": "", "text": "the problem there cannot be— any rigid formula or rule which can be used as a universal pattern to determine the meaning and purpose of every act of Congress. This Court, in considering the validity of state laws in the light of treaties or federal laws touching the same subject, has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference. But none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked formula. Our primary function is to determine whether, under the circumstances of [a] particular case, [the challenged state or local] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Hines, 312 U.S. at 67-68, 61 S.Ct. 399. Like my colleagues who join the lead opinion, as well as the original panel and the district court below, I conclude that the Farmers Branch Ordinance presents such an obstacle to the purposes of federal law, and therefore cannot stand. II In my view, this case largely is controlled by the longstanding, unremarkable principle that the federal government’s authority to exclude or remove foreign nationals, and to otherwise regulate the residence of noncitizens within the United States, is necessarily exclusive of infringement by state or local legislation. The Supreme Court made this clear more than sixty years ago: The Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization. Hines [,] [312 U.S. at 66, 61 S.Ct. 399]. Under the Constitution the states are granted no such powers; they can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states. Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 419, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948). This past year, in Arizona," }, { "docid": "20573864", "title": "", "text": "state laws are not facially in conflict because a party would not incur the penalty of the one law by obeying the dictates of the other. In light of the absence of an actual repugnancy between the acts, and the stated Congressional purpose to exercise its paramount authority, the defendant contends that the state law should not be set aside, especially when that law is enacted under the police powers of the state. As previously discussed, Congress has permitted states to regulate copyright to some extent, and this Court finds neither the intent on the part of Congress nor the necessity in interpreting Title 17 as amended by Public Law 92-140 to preempt the field. However, the absence of federal preemption does not in itself validate state statutes regulating the field. In the case of Hines v. Davidowitz, the Supreme Court was faced with issues similar to those raised by the case at bar. Both a state and the federal government had enacted similar laws regarding a single subject which provided for differing regulatory schemes and criminal penalties. In attempting to determine whether the federal statute had preempted the state statute, the Court stated: “There is not — and from the very nature of the problem there cannot be— any rigid formula or rule which can be used as a universal pattern to determine the meaning and purpose of every act of Congress. This Court, in considering the validity of state laws in the light of . federal laws touching the same subject, has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation ; curtailment; and interference. But none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked formula. Our primary function is to determine whether, under the circumstances of this particular case, [the state] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” The Court went on to state that: “The nature of the power" }, { "docid": "20393438", "title": "", "text": "to complete and carry alien registration documents as required by 8 U.S.C. §§ 1304(e), 1306(a). Arizona, 132 S.Ct. at 2501. The Court explained the comprehensive nature of the current federal registration scheme, which holds aliens to certain standards of conduct and penalizes their willful failure to register with the federal government. Id. at 2502. Based on the breadth of federal regulation, the Court concluded that “the Federal Government has occupied the field of alien registration” and therefore found impermissible “even complementary state regulation” within that field. Id.; see also id. (“Even if a State may make violation of federal law a crime in some instances, it cannot do so in a field ... that has been occupied by federal law.”). The Supreme Court dismissed the state’s argument that its goal of concurrent enforcement was appropriate in a field occupied by federal regulation. Id. at 2502-03. Like the federal registration scheme addressed in Arizona, Congress has provided a “full set of standards” to govern the unlawful transport and movement of aliens. Id. at 2502. The INA comprehensively addresses criminal penalties for these actions undertaken within the borders of the United States, and a state’s attempt to intrude into this area is prohibited because Congress has adopted a calibrated framework within the INA to address this issue. See id. at 2502-03. ... In Nelson, the Court held that Pennsylvania’s sedition act, which “proscribe[d] the same conduct” as the federal sedition statute, was preempted by federal law. Id. at 499, 76 S.Ct. at 479. As it did in Arizona, the Court rejected the state’s argument that its purported supplementation of federal law shielded the state statute from federal preemption. See id. at 504, 76 S.Ct. at 481; see also Charleston & W. Carolina Ry. Co. v. Varnville Furniture Co., 237 U.S. 597, 604, 35 S.Ct. 715, 717, 59 L.Ed. 1137 (1915) (“When Congress has taken the particular subject-matter in hand, coincidence is as ineffective as opposition, and a state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go.”). The Court later" } ]

[ { "docid": "22728321", "title": "", "text": "report and recommendation. The district court for the District of Puerto Rico has adopted in substance the relevant section of the Federal Magistrate’s Act, 28 U.S.C. § 636(b)(1). Puerto Rico District Court Rule 510.2, in its pertinent part, states as follows: “Any party may object to a Magistrate’s proposed findings, recommendations or report ... within ten (10) days after being served with a copy thereof, unless a different period of time is prescribed by the Magistrate or a Judge. Such party shall file with the Clerk of the Court, and serve on the Magistrate and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the legal basis for such objections. Any party may respond to another party’s objections within ten (10) days after being served with a copy thereof, unless the time is shortened by the Magistrate or the Judge. A Judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate.” In Park Motor Mart, 616 F.2d at 605, and Escoboza Vega, 678 F.2d at 379, we held that a party waived his right to a de novo review of a magistrate’s report by failure to file objections within ten days. Since these rulings, the Supreme Court has pronounced itself on this waiver issue in Thomas v. Arn, — U.S. -, 106 S.Ct. 466, 475, 88 L.Ed.2d 435 (1985) as follows: “We hold that a court of appeals may adopt a rule conditioning appeal, when taken from a district court judgment that adopts a magistrate’s recommendation, upon the filing of objections with the district court identifying those issues on which further review is desired. Such a rule, at least when it incorporates clear notice to the litigants and an opportunity to seek an extension of time for filing objections, is a valid exercise of the supervisory power that does not violate either the" } ]

[ { "docid": "22648984", "title": "", "text": "cert. denied, - U.S. -, 115 S.Ct. 180, 130 L.Ed.2d 115 (1994); Campbell v. Sonat Offshore Drilling, Inc., 979 F.2d 1115, 1125 & n. 13 (5th Cir.1992) (emphasis added) (issues raised for first time on appeal \"are only reviewed for plain error — in other words, whether failure to consider them results in manifest injustice ”). . Compliance is excused also in the Sixth Circuit when a district court considers untimely objections. Patterson v. Mintzes, 717 F.2d at 286. . We address only a party's failure to object to a magistrate judge's report and recommendation after that party has been served with notice of the consequences of such a failure. We do not consider other hypothetical situations, if any, for which the plain error standard might not suffice. See Olano, 507 U.S. at 734, 113 S.Ct. at 1777 (court did \"not consider the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified”); id. at 734-36, 113 S.Ct. at 1778 (court did not decide \"whether the phrase 'affecting substantial rights' is always synonymous with 'prejudicial' ”); id. (noting that \"[t]here may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome\"). We note, however, the existence of other avenues of relief. See Fed R.Civ.P. 60(b) (relief from judgment); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d at 605 (\"[t]he remedy, if any, of a dissatisfied party who failed to object [to a magistrate judge's report and recommendation] should be by way of a motion for reconsideration disclosing the grounds”); see also Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (addressing situations in which the law changes during the pendency of a case). . Our former rule used the phrase “accepted or adopted”; the phrase \"or adopted” is redundant. The word \"adopted” does not appear in 28 U.S.C. § 636, Fed.R.Civ.P. 72, or the Rules Governing Habeas Corpus Cases Under Section 2254 or Section 2255. We have deleted it" }, { "docid": "20797714", "title": "", "text": "have the drugs kept elsewhere, to be delivered to Arden Street as the deal progressed. Consistent with the clear language of note 12 to section 2D1.1 of the guidelines, the negotiated amount is the applicable quantity unless Wihbey can show both “no intent” and “no capacity” to produce that amount. The sentencing judge found that Wihbey failed to make that showing, and that finding was not clearly erroneous. 2. Whitman’s Sentence: Leadership Role Whitman urges that the sentencing judge committed clear error in finding that he had a leadership role over Camyre justifying an enhancement under U.S.S.G. § 3Bl.l(c). His argument is twofold: (1) the trial evidence was insufficient to support the leadership finding, and (2) Whitman’s youth relative to Camyre and the other conspirators indicates that Whitman was at most a “co-equal,” not a leader. The second argument is easily dismissed: although age often correlates with one’s organizational status, eommon experience provides enough counterexamples to indicate that there is little probative value in that correlation. As to the first argument, the evidence in this case strongly suggests that Whitman did play a leadership role. The excerpts of Camyre’s testimony cited in the government’s brief show that Camyre responded to Whitman’s orders, that Whitman set the timing of the planned transaction, and that Camyre expected a smaller share of the profit than Whitman. Whitman points to no evidence that suggests a non-leadership role, other than his age relative to that of his co-conspirators. The judge who presided at trial and at sentencing is in the best position to make this factual finding. Our review of the record finds significant support for the judge’s finding, and there is certainly no clear error. IV. CONCLUSION For the foregoing reasons, the judgments and the sentences are affirmed. . Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts requires a party who objects to a magistrate judge’s findings and recommendations to identify specifically the objectionable portions of the proposed findings and recommendations and to state the basis for objection. The magistrate judge's report" }, { "docid": "23284884", "title": "", "text": "judicial proceedings”). Normally, in order for an error to “affect substantial rights” under the third prong of the Olano test, the error must have been “prejudicial” — in other words, “[i]t must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. It is the defendant who bears the burden of persuasion with respect to prejudice. Id. However, the Supreme Court has cautioned that some errors to which no objection was made should be “presumed prejudicial” if the defendant cannot make a specific showing of prejudice. Id. at 735, 113 S.Ct. 1770. Furthermore, there may be a special category of forfeited errors that can be corrected “regardless of their effect on the outcome.” Id. Notwithstanding this guidance, the federal circuit courts of appeal have been inconsistent -in their application of Olano when reviewing violations of the right of allocution on direct appeal to which no objection was raised in the district court. As explained above, in our view, a fair reading of Olano dictates that when a defendant fails to object to a violation of his right of allocution, his claim on appeal is reviewed for plain error — which requires the defendant to make a specific showing of prejudice, unless he can show that the error should be presumed prejudicial, or that the error belongs in a special category of errors that should be corrected regardless of prejudice (i.e., the category of structural errors). We recently had the opportunity to address a violation of the right of allocution in United States v. Beckett, 208 F.3d 140 (3d Cir.2000). Following the lead of the United States Court of Appeals for the Fourth Circuit in United States v. Lewis, 10 F.3d 1086 (4th Cir.1993), we held that “even were we to assume that [the defendant] was denied the right of allocution,” he was not entitled to automatic resentenc-ing because he was not prejudiced by the denial in light of the fact that “he was sentenced to the [Sentencing] Guidelines minimum” sentence. Beckett, 208 F.3d at 148. While the ultimate result in Beckett is sound," }, { "docid": "22975311", "title": "", "text": "“prejudicial,” that is that it “affected the outcome of the district court proceedings.” 507 U.S. at 734, 113 S.Ct. 1770. However, as we recently recognized in United States v. Adams, 252 F.3d 276 (3d Cir.2001), “the Supreme Court has cautioned that some errors to which no objection was made should be ‘presumed prejudicial’ if the defendant cannot make a specific showing of prejudice.” Id. at 285 (quoting Olano, 507 U.S. at 735, 113 S.Ct. 1770). We also noted that under Olano, “there may be a special category of forfeited errors that can be corrected ‘regardless of their effect on the outcome,’ ” and stated our assumption that this category is coextensive with the category of “structural” constitutional errors. Id. at 285 & n. 6 (quoting Olano, 507 U.S. at 735, 113 S.Ct. 1770). We concluded that “Olano dictates that when a defendant fails to object[,] ... his claim on appeal is reviewed for plain error — which requires the defendant to make a specific showing of prejudice, unless he can show that the error should be presumed prejudicial, or that the error belongs in a special category of errors that should be corrected regardless of prejudice (i.e., the category of structural errors).” Id. at 285. Adams addressed a denial of the right of allocution (i.e., the right of a criminal defendant to make a statement prior to sentencing). Adams did not reach the issue whether the denial of the right of allocution constituted structural error; rather it held that it fell into the other category of errors that should be presumed prejudicial. The question in this case, therefore, is whether constructive amendments fall into either of the two exceptions to the general rule that a defendant must demonstrate prejudice under plain error review. We turn first to the question whether constructive amendments fall into Olano’s category of “those errors that should be presumed prejudicial if the defendant cannot make a specific showing of prejudice.” Olano, 507 U.S. at 735, 113 S.Ct. 1770. In Adams, we found that the denial of a defendant’s constitutional right of allocution falls within Olano’s category" }, { "docid": "23284883", "title": "", "text": "is subject to Rule 52(b) plain error analysis. As such, Olano provides the proper framework for analyzing Adams’ claim. Before we can grant Adams relief, the District Court must have committed (1) “error” (2) that is “plain” (3) that “affect[s] substantial rights.” Olano, 507 U.S. at 732, 113 S.Ct. 1770. If all three of these conditions are met, we “ha[ve] [the] authority to” correct the District Court, “but [we are] not required to do so,” because Olano makes clear that we should exercise our discretion to correct the error only if it “seriously affectfs] the fairness, integrity or public reputation of judicial proceedings.” Id. at 735-36, 113 S.Ct. 1770. This involves an examination of the seriousness of the error in the context of the entire case. Johnson, 520 U.S. at 469, 117 S.Ct. 1544; see also Young, 470 U.S. at 15-16, 105 S.Ct. 1038 (explaining that reviewing courts must assess an alleged error “against the entire record” so as to deter mine whether such error “seriously affect[s] the fair ness, integrity or public reputation of judicial proceedings”). Normally, in order for an error to “affect substantial rights” under the third prong of the Olano test, the error must have been “prejudicial” — in other words, “[i]t must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. It is the defendant who bears the burden of persuasion with respect to prejudice. Id. However, the Supreme Court has cautioned that some errors to which no objection was made should be “presumed prejudicial” if the defendant cannot make a specific showing of prejudice. Id. at 735, 113 S.Ct. 1770. Furthermore, there may be a special category of forfeited errors that can be corrected “regardless of their effect on the outcome.” Id. Notwithstanding this guidance, the federal circuit courts of appeal have been inconsistent -in their application of Olano when reviewing violations of the right of allocution on direct appeal to which no objection was raised in the district court. As explained above, in our view, a fair reading of Olano dictates that when a defendant" }, { "docid": "20797715", "title": "", "text": "case strongly suggests that Whitman did play a leadership role. The excerpts of Camyre’s testimony cited in the government’s brief show that Camyre responded to Whitman’s orders, that Whitman set the timing of the planned transaction, and that Camyre expected a smaller share of the profit than Whitman. Whitman points to no evidence that suggests a non-leadership role, other than his age relative to that of his co-conspirators. The judge who presided at trial and at sentencing is in the best position to make this factual finding. Our review of the record finds significant support for the judge’s finding, and there is certainly no clear error. IV. CONCLUSION For the foregoing reasons, the judgments and the sentences are affirmed. . Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts requires a party who objects to a magistrate judge’s findings and recommendations to identify specifically the objectionable portions of the proposed findings and recommendations and to state the basis for objection. The magistrate judge's report contained a clear warning about this rule, advising Wihbey that failure to comply would preclude appellate review, citing United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986) (approving such a local rule). See also 28 U.S.C. § 636(b)(1). . After stating that a forfeited error was prejudicial if it affected the outcome of the proceedings, the Supreme Court in Olano stated: \"There may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome....” The Court also adverted, without specificity, to a class of errors \"that should be presumed prejudicial if the defendant cannot make a specific showing of prejudice.\" 507 U.S. at 734-36, 113 S.Ct. at 1778. . We recognize that, after the prosecutor’s summation, Wihbey’s lawyer asked “Your honor, may I approach sidebar?” We must assume he intended to object to the prosecutor’s remarks. The judge told counsel to move on with his closing argument. Upon being rebuffed, counsel did not state an objection or press further the request to approach. In any event, counsel" }, { "docid": "17632652", "title": "", "text": "Olano, — U.S. at -, 113 S.Ct. at 1777. An error consists of deviation from a legal rule, unless that rule has been waived. Id. Waiver extinguishes any error derived from the waived legal rule; failure to object, forfeiture, does not extinguish the error, but limits the right to correction of that error on appeal. See id. Here there was no waiver, and the comment was improper; there was therefore error. Second, the error must be “plain,” which is “synonymous with ‘clear’ or, equivalently, ‘obvious.’ ” Id. We assume arguendo that the error in this case was plain, although the fact that counsel did not object to the comment when made is an indication that the error may not have been as plain as the majority seems to believe. Third, the error must “affect substantial rights.” Id. at -, 113 S.Ct. at 1777-78. In general, substantial rights are not affected unless a showing of prejudice is made. “[T]he error must have been prejudicial: It must have affected the outcome of the District Court proceedings.” Id. at -, 113 S.Ct. at 1778. The prejudice analysis in the plain error context is similar to a harmless error inquiry, “with one important difference:” In plain error review, the party claiming error bears the burden of showing that the error was prejudicial. See id. Rush, therefore, as the party claiming plain error in this case, bears the burden of showing specific prejudice to meet the third prong of the plain error standard. The Supreme Court has recognized only two possible exceptions to the plain error requirement that specific prejudice resulted from a forfeited error: There “may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome,” and there may be errors “that should be presumed prejudicial if [the party claiming error] cannot make a specific showing of prejudice.” Id. Nevertheless, “[n]or-mally ... the [party claiming error] must make a specific showing of prejudice to satisfy the ‘affecting substantial rights’ prong....” Id. Finally, once the three threshold requirements of the plain error standard have been met, the" }, { "docid": "5789211", "title": "", "text": "The date of January 21, 1987, appears in the order. The sequence of dates leads us to believe that January 21, 1988, may have been intended. . References to \"app.” are to the appendix filed by Eddie Antar. References to \"JA\" áre to the appendix filed jointly by the government and Mitchell Antar. . Although Eddie Antar’s brief details the argument, Mitchell Antar joined in this portion of Eddie’s argument. Therefore, this discussion applies to both appellants. . Although Eddie's counsel mentioned in his brief and at oral argument that the plain error standard of review applies, we have some doubt about that proposition. The recusal argument is premised on a statement the district judge made after conviction and during a sentencing hearing. Counsel may well have thought — quite reasonably — that making a recusal motion at that point would be pointless. Of course, Eddie could have moved for a new trial on the basis that the judge should have disqualified himself. At any rate, because the appellants concede the applicability of the plain error doctrine, we will exercise that standard of review. . In Olano, the Supreme Court pointed out that Rule 52(b)’s requirement that the error affect substantial rights \"in most cases ... means that the error must have been prejudicial: It must have affected the outcome of the District Court proceedings.” Id. at -, 113 S.Ct. at 1778. The Court did not decide whether the phrase \"is always synonymous with 'prejudicial,'\" leaving the possibility that \"[tjhere may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome.” Id. Since the discussion of prejudice grew out of the \"harmless error” review, it has no bearing here. The touchstone of recusal is the integrity of the judiciary, and therefore once the appearance of partiality is shown, prejudice is presumed. .Michael Chertoff was United States Attorney for the District of New Jersey at the time. . The defense attorney. . Arseneault was Eddie's attorney. . Shivah is a seven-day period of mourning observed after the funeral of a family member or" }, { "docid": "22975310", "title": "", "text": "general statements from Castro and Somers must be read to extend to the plain error context, it is uncertain whether this application of the per se rule has survived Olano, which recognized broader discretion for appellate courts exercising plain error review. See United States v. Dipentino, 242 F.3d 1090, 1095 (9th Cir.2001) (noting that it is uncertain whether the Ninth Circuit’s per se reversal rule for constructive amendments under plain error review has survived Ola-no, but declining to decide). Several courts of appeals have considered the question whether a constructive amendment is per se reversible under the plain error standard, but the circuits are divided and the resulting law is checkered, as explained in the margin. However, the question whether the per se reversal rule of Castro and Somers applies in the context of plain error review appears to be one of first impression for us. As noted above, Olano stated that in order for an error to “affect substantial rights” under the plain error test, the defendant usually must show that the error was “prejudicial,” that is that it “affected the outcome of the district court proceedings.” 507 U.S. at 734, 113 S.Ct. 1770. However, as we recently recognized in United States v. Adams, 252 F.3d 276 (3d Cir.2001), “the Supreme Court has cautioned that some errors to which no objection was made should be ‘presumed prejudicial’ if the defendant cannot make a specific showing of prejudice.” Id. at 285 (quoting Olano, 507 U.S. at 735, 113 S.Ct. 1770). We also noted that under Olano, “there may be a special category of forfeited errors that can be corrected ‘regardless of their effect on the outcome,’ ” and stated our assumption that this category is coextensive with the category of “structural” constitutional errors. Id. at 285 & n. 6 (quoting Olano, 507 U.S. at 735, 113 S.Ct. 1770). We concluded that “Olano dictates that when a defendant fails to object[,] ... his claim on appeal is reviewed for plain error — which requires the defendant to make a specific showing of prejudice, unless he can show that the error should" }, { "docid": "9473205", "title": "", "text": "4 F.3d at 479. In this case, the district court scrupulously sustained Bey’s objections to the government’s queries into marital communications before Catherine Bey became a participant in the criminal conspiracy. Only after the government demonstrated Catherine Bey’s complicity in concrete fashion, did the district court permit her to testify regarding her confidential communications with Bey that took place after she became a participant. Bey’s argument, therefore, is unavailing. II. The Prosecutor’s Closing Argument Bey also challenges the manner in which the trial prosecutor conducted the closing argument on the government’s behalf. Bey argues that the prosecutor improperly vouched for the credibility of a government witness and erroneously referred to certain factual matters as undisputed. As Bey failed to object at trial to the comments he now challenges on appeal, however, we review his claims for plain error. See United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 1776-79, 123 L.Ed.2d 508 (1993) (describing the plain error standard); United States v. Wihbey, 75 F.3d 761, 769-70 & n. 4 (1st Cir.1996). We will not reverse a conviction on plain error review unless the error affects the substantial rights of the defendant. See Fed.R.Crim.P. 52(b). We cannot find that an error has affected the defendant’s substantial rights unless it is clear that the error affected the outcome of the proceedings. See Olano, 507 U.S. at 734, 113 S.Ct. at 1777-78. With these limitations in mind, we address Bey’s contentions in turn. A. Prosecutorial Vouching “[A] prosecutor may not place the prestige of the government behind a witness by making personal assurances about the witnesses] credibility;” nor may the prosecutor indicate that facts outside the jury’s cognizance support the testimony of the government’s witnesses. United States v. Neal, 36 F.3d 1190, 1207 (1st Cir.1994). Bey argues that the prosecutor engaged in improper vouching during rebuttal argument by referring to Moore’s plea bargain agreement with the government and the fact that the judge presiding over Bey’s trial also would consider Moore’s truthfulness when determining Moore’s sentence. Bey contends that the challenged statements indirectly suggested that both the prosecutor and the trial" }, { "docid": "20797716", "title": "", "text": "contained a clear warning about this rule, advising Wihbey that failure to comply would preclude appellate review, citing United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986) (approving such a local rule). See also 28 U.S.C. § 636(b)(1). . After stating that a forfeited error was prejudicial if it affected the outcome of the proceedings, the Supreme Court in Olano stated: \"There may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome....” The Court also adverted, without specificity, to a class of errors \"that should be presumed prejudicial if the defendant cannot make a specific showing of prejudice.\" 507 U.S. at 734-36, 113 S.Ct. at 1778. . We recognize that, after the prosecutor’s summation, Wihbey’s lawyer asked “Your honor, may I approach sidebar?” We must assume he intended to object to the prosecutor’s remarks. The judge told counsel to move on with his closing argument. Upon being rebuffed, counsel did not state an objection or press further the request to approach. In any event, counsel had the opportunity to raise Comment Two as grounds for mistrial, but specified only Comments One (and Comment Three, which we discuss further on). . This improper remark by the prosecutor is not in the class of forfeited errors adverted to in Olano, 507 U.S. at-, 113 S.Ct. at 1778, which are presumed to be prejudicial without regard to their affect on the outcome. Indeed, if Wihbey had objected and preserved the error, it would be subject to harmless error review, which of course focuses on the effect of the error on the outcome. See United States v. Hasting, 461 U.S. 499, 508-12, 103 S.Ct. 1974, 1980-82, 76 L.Ed.2d 96 (1983). .The relevant portions of the jury instruction follow: The law presumes a defendant to be innocent of a crime. Thus, a defendant, although accused, begins the trial with a clean slate, with no evidence against him. The presumption of innocence alone is sufficient to acquit a defendant____ The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. Now I told" }, { "docid": "7362896", "title": "", "text": "requirement. “The second limitation on appellate authority under Rule 52(b) is that the error be ‘plain.’ ” Id. at 630 (quoting Olano, 507 U.S. at 734, 113 S.Ct. 1770). Because ex parte conferences are generally disallowed under the law of this Circuit, see Minsky, 963 F.2d at 874, the error is “plain.” “The third limitation on appellate authority under Rule 52(b) ‘is that the plain error affect[s] substantial rights.’ ” Thomas, 11 F.3d at 630 (quoting Olano, 507 U.S. at 734, 113 S.Ct. 1770). Generally, “the phrase ‘affect substantial rights’ means ‘prejudicial’ in the sense that the asserted error ‘must have affected the outcome of the district court proceedings.’ ” United States v. Hayes, 218 F.3d 615, 622 (6th Cir.2000) (quoting Olano, 507 U.S. at 734, 113 S.Ct. 1770). However, the Supreme Court noted, and this Circuit recognized, that “[tjhere may be a special category of forfeited errors that can be corrected regardless of them affect on the outcome” and “errors that should be presumed prejudicial if the defendant cannot make a specific showing of prejudice.” Olano, 507 U.S. at 735, 113 S.Ct. 1770; see also Hayes, 218 F.3d at 622. The Supreme Court listed as examples of these types of errors instances where “a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence ...” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). By allowing ex parte conferences before and during trial, the district court demonstrated a willingness to share intimate discourse with the government while excluding Defendant. Once an affinity between the district court and the government has been established, the district court’s ability to serve as a neutral arbiter is suspect. This affinity perverts the adversarial process and creates an intolerable air of partiality. The Supreme Court found that a trial conducted before “a judge who [i]s not impartial” to be a “structural defect affecting the framework within which the trial proceeds.” Id. at 309-10, 111 S.Ct. 1246. In light of the foregoing, the majority’s conclusion that the ex parte communications did not affect Carmichael’s" }, { "docid": "22648938", "title": "", "text": "“waiver”. Therefore, consistent with our precedent, discussed infra, we refer to our circuit’s rule as an appellate “forfeiture”, rather than a “waiver”, rule. As the Supreme Court emphasized in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), in clarifying plain error review, Fed.R.Crim.P. 52(b) (“Plain Error”) is premised on there being a forfeiture, rather than a waiver; otherwise, in general, there could be no correction of the error on appeal. “Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.” Id. at 733, 113 S.Ct. at 1777 (internal quotation marks and citations omitted). “Mere forfeiture, as opposed to waiver, does not extinguish an ‘error’.” Id. This is noted in our post-Olano en banc opinion on plain error, United States v. Calverley, 37 F.3d 160, 162 (5th Cir.1994) (en banc) (“forfeited legal error, or unobjected-to, unwaived error, may be reviewable if it qualifies”), cert. denied, - U.S. -, 115 S.Ct. 1266, 131 L.Ed.2d 145 (1995). Under our former rule, our court treated the failure to object to a magistrate judge’s report and recommendation as a forfeiture, rather than as a waiver, thereby permitting, inter alia, plain error review. Consistent with 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72 provides that “a party may serve and file specific, written objections to the proposed findings and recommendations” of a magistrate judge within 10 days after being served with a copy of the report and recommendation, and thereby secure de novo review by the district court; but, again consistent with § 636(b)(1), it is silent with respect to the consequences of a party’s failure to object. The advisory committee’s note to Rule 72(b) states that, “[w]hen no timely objection is filed, the [district] court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation”. Fed.R.Civ.P. 72(b) advisory committee’s note (1983). With respect to the consequences for appellate review, the note states that “[f]ailure to make timely objection to the" }, { "docid": "22614464", "title": "", "text": "States v. David, 83 F.3d 638, 645 (4th Cir.1996) (holding that an error is plain when “an objection at trial would have been indefensible because of existing law, but a supervening decision prior to appeal reverses that well-settled law”). After Booker, sentencing courts must treat the guidelines as advisory and consider them along with various other factors in determining a defendant’s sentence. See Booker, 125 S.Ct. at 764-65. And, based on the directive in Booker that the advisory guidelines regime must be applied to all cases on direct review, we conclude that the error of sentencing White under a mandatory guidelines regime is plain. C. Third, White must show that the error of sentencing him under a mandatory guidelines regime “affect[ed][his] substantial rights.” Olano, 507 U.S. at 732, 113 S.Ct. 1770 (internal quotation marks omitted). “[I]n most cases [this] means that the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” Id. at 734, 113 S.Ct. 1770; accord Hastings, 134 F.3d at 240. Thus, “[njormally, although perhaps not in every case; the defendant must make a specific showing of prejudice to satisfy the ‘affecting substantial rights’ prong of Rule 52(b).” Olano, 507 U.S. at 735, 113 S.Ct. 1770. However, the Olano Court noted, without deciding, that there may be “errors that should be presumed prejudicial if the defendant cannot make a specific showing of prejudice” and that “[t]here may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome.” Id. We consider each of these three possibilities below. See id. at 737, 113 S.Ct. 1770; United States v. Tipton, 90 F.3d 861, 874 (4th Cir.1996). 1. We first consider whether sentencing White under a mandatory guidelines regime falls within the special category of forfeited errors suggested in Olano “that should be presumed prejudicial if the defendant cannot make a specific showing of prejudice.” Olano, 507 U.S. at 735, 113 S.Ct. 1770. Although we have never held that any particular unpreserved error must be presumed prejudicial, we have acknowledged that such errors might exist. See United" }, { "docid": "22679015", "title": "", "text": "the Guidelines and their mandatory nature .... ” Barnett, 398 F.3d at 528. In turn, “[t]his well-established case law substantially undermined any need or incentive for sentencing courts pre-Booker to note their objections and reservations in sentencing defendants under the then- mandatory Guidelines.” Id. at 529; see also Heldeman, 402 F.3d at 224, 2005 WL 708397, at *3 (“we have recognized that a district judge [pre-Booker] may well not have expressed his or her reservations because the guidelines made them hopeless”); Paladino, 401 F.3d at 482-83, (suggesting that, pr e-Booker, “[a] conscientious judge” was “one who took the guidelines seriously whatever his [or her] private views”). Thus, I agree with the Sixth Circuit that “[i]t would be improper,” and indeed cruelly ironic, for us to now “require defendants such as” Gonzalez-Huerta “to produce this type of evidence — -that sentencing courts had no reason to provide under our pr e-Booker case law — in order to establish that their substantial rights have been affected.” Barnett, 398 F.3d at 529. IV.' Olano itself provides a way out of this thicket by recognizing that the prejudice component (or the so-called “third prong”) of the plain error test can be modified in extreme cases: We need not decide whether the phrase “affecting substantial rights” is always synonymous with “prejudicial.” (citation omitted). There may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome, but this issue need not be addressed. Nor need we address those errors that should be presumed prejudicial if the defendant cannot make a specific showing of prejudice. Normally, although perhaps not in every case, the defendant must make a specific showing of prejudice to satisfy the “affecting substantial rights” prong of Rule 52(b). 507 U.S. at 735, 113 S.Ct. 1770 (emphasis added). This language recognizes two possible exceptions to the “normal” formulation of the third prong. The first of these exceptions is for “structural errors,” i.e., the so-called “special category of forfeited errors that can be corrected regardless of their effect on the outcome.” Id. at 735, 113 S.Ct. 1770; see" }, { "docid": "22648939", "title": "", "text": "131 L.Ed.2d 145 (1995). Under our former rule, our court treated the failure to object to a magistrate judge’s report and recommendation as a forfeiture, rather than as a waiver, thereby permitting, inter alia, plain error review. Consistent with 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72 provides that “a party may serve and file specific, written objections to the proposed findings and recommendations” of a magistrate judge within 10 days after being served with a copy of the report and recommendation, and thereby secure de novo review by the district court; but, again consistent with § 636(b)(1), it is silent with respect to the consequences of a party’s failure to object. The advisory committee’s note to Rule 72(b) states that, “[w]hen no timely objection is filed, the [district] court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation”. Fed.R.Civ.P. 72(b) advisory committee’s note (1983). With respect to the consequences for appellate review, the note states that “[f]ailure to make timely objection to the magistrate’s report prior to its adoption by the district judge may constitute a waiver of appellate review of the district judge’s order”. Id. (citing United States v. Walters, 638 F.2d 947 (6th Cir.1981)). The Supreme Court has held that the courts of appeals may, in the exercise of their supervisory rule-making power, deny appellate review for failure to object to a magistrate judge’s report and recommendation. Thomas v. Arn, 474 U.S. at 155, 106 S.Ct. at 474-75. For such failure, Thomas condones the denial of appellate review not only of accepted proposed factual findings, but also of such legal conclusions. Id. at 150, 106 S.Ct. at 472. The Court observed that the Sixth Circuit’s decision to require filing objections to preserve the right to appellate review both of accepted factual findings and of legal conclusions is supported by “sound considerations of judicial economy”. Id. at 148, 106 S.Ct. at 471. Absent such a rule, any issue before the magistrate would be a proper subject for appellate review. This would either force the court of appeals" }, { "docid": "21758339", "title": "", "text": "that [she] ... appeared] to usurp the role of ... the prosecutor.” United States v. Parodi, 703 F.2d 768, 776 (4th Cir.1983). Accordingly, the judge’s approach was plain error, a point the majority does not challenge. Moreover, as I will explain, the error affected the substantial rights of the defendants. As a general rule, an error affects substantial rights only when the defendant establishes that the error was prejudicial, that is, it “affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734. But a showing of actual prejudice is not required in every instance: “[t]here may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome.” Id. at 735, 113 S.Ct. 1770. As we have said, “[e]rrors that are not susceptible to harmless error review fall within this special category and therefore ‘necessarily’ affect substantial rights.” United States v. Neal, 101 F.3d 993, 999 (4th Cir.1996). When the trial judge unmistakably adopts the role of prosecutor, there is a “special category” error that affects substantial rights regardless of whether the defendant can show actual prejudice. See Neal, 101 F.3d at 999 (finding a “special category” error, not requiring a showing of actual prejudice, when the trial judge fully assumed the role of prosecutor in a criminal contempt proceeding); United States v. Van Dyke, 14 F.3d 415, 423 n. 1 (8th Cir.1994) (“[W]e consider the court’s excessive intervention and lack of neutrality as plain error which deprived the defendant of a fair trial.”); Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (citing Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), for the proposition that a showing of actual prejudice is not required when the trial judge lacks impartiality). A defendant, in sum, has a right to an impartial judge-one who takes care not to signal to the jury that she believes the defendant is guilty. This right to an impartial judge cannot be trampled, not even by overwhelming evidence of guilt. See Turney, 273 U.S. at 535, 47 S.Ct." }, { "docid": "20797677", "title": "", "text": "the DEA agents’ plans for a second controlled buy from Camyre and Whitman later that afternoon did not precipitate the decision to arrest Wihbey without a warrant. Wihbey objected to the magistrate judge’s report and recommendation, but the district court adopted the report and denied the motion to suppress. Before reviewing the- ruling below, we narrow the issues because Wihbey has forfeited some of his Fourth Amendment arguments by failing to press his objections below. Wihbey’s challenge to the suppression ruling is therefore limited to those issues that he specifically raised in his objection to the magistrate judge’s report and recommendation. We ignore Wihbey’s attempt to “generally object” to the magistrate judge’s report, as well as his attempt to incorporate by reference the arguments made in his pre-hearing memorandum. Wihbey made two objections with sufficient specificity: (1) the magistrate judge erred in determining that it was reasonable for the agents to delay preparing for a warrant application until Saturday morning when they learned Wihbey’s name and address, and (2) the magistrate judge erred in determining that there was a compelling necessity for immediate action, because the exigency was created by the agents’ investigative strategy. We note that Wihbey did not object to any of the magistrate judge’s proposed findings of the underlying facts, but only to the reasonableness of the agents’ actions and whether the facts constituted exigent circumstances. In particular, Wihbey did not object to the finding that Wihbey consented to the search after he was arrested; thus the issue before us is whether the warrantless arrest was justified by exigent circumstances. In any event, we find no error, let alone clear error, in the magistrate judge’s findings as to the underlying facts. As to the forfeited arguments that Wihbey now raises, we find that none of the asserted errors rises to the level of plain error which might justify reversal. See United States v. Olano, 507 U.S. 725, 730-37, 113 S.Ct. 1770, 1776-1779, 123 L.Ed.2d 508 (1993). a. Should the agents have started a warrant application earlier? Contrary to his assertion on appeal, Wihbey’s right to be free" }, { "docid": "20797685", "title": "", "text": "he would give the name of the friend’s source. Then the prosecutor said: Now, if Mr. St. Clair [Wihbey’s lawyer] can stand up and explain away that conversation to you, then you should let Bob Wihbey walk out of here with a verdict of acquittal. But he can’t do that, ladies and gentlemen, because that is not a conversation that an innocent man, who’s been falsely accused, would have under those circumstances. There’s just no other explanation except the one that’s been provided from the witness stand by the eight witnesses called by the government. (emphasis added). At the end of the prosecutor’s summation, during which the prosecutor made Comments One and Two, Wihbey’s lawyer asked to approach the bench, but the trial judge ordered him instead to “move on with it for now.” Wihbey’s lawyer therefore proceeded with his closing argument; Whitman’s lawyer followed. After the prosecutor’s rebuttal, Wihbey and Whitman both moved for a mistrial, citing Comment One as an improper comment on their failure to testify, and eiting as improper a third comment. We assume arguendo that defense counsel’s attempt to approach, coupled with specific mention in the mistrial motion, was a sufficient objection to Comment One to preserve the issue for appeal. We consider Wihbey’s failure to mention Comment Two in the motion for mistrial, however, as a failure to object; therefore if there was an error in Comment Two, the error was forfeited and is reviewed for plain error only. See Olano, 507 U.S. at 730-37, 113 S.Ct. at 1776-1779. Comment by -a prosecutor on a defendant’s failure to testify violates the Fifth Amendment guarantee against self-incrimination. Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965). A court determines if a prosecutor’s remarks violate Griffin by asking “whether, in the circumstances of the particular case, the language used was manifestly intended or was of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” United States v. Akinola, 985 F.2d 1105, 1111 (1st Cir.1993) (quoting" }, { "docid": "17632645", "title": "", "text": "if the defendant cannot make a specific showing of prejudice.” Id. HANSEN, Circuit Judge, concurring specially. I agree with most all of the court’s opinion and I readily concur in its judgment. I believe that the court is correct in finding plain error, but I write separately because I do not believe a “possible effect” on the jury or “the potential for prejudice,” ante, at 922, is sufficient as a matter of current law to support a plain error reversal. As we have very recently observed, for there “to be plain error in a civil case, [the error] must have ‘almost surely affected the outcome of the case.’ ” Champagne v. United States, 40 F.3d 946, 947 (8th Cir.1994) (quoting Angelo v. Armstrong World Indus., Inc., 11 F.3d 957, 961 (10th Cir.1993)) (other quotation omitted) (emphasis added). Similarly, the criminal cases interpreting the Supreme Court’s most recent elucidation of the plain error standard (applying Fed.R.Crim.P. 52(b)) in Olano, indicate that a “possible effect” or “potential for prejudice” is insufficient to establish plain error. See, e.g., United States v. Turcks, 41 F.3d 893, 898 (3d Cir.1994) (under Olano to establish “prejudice” requirement defendant must “show that the outcome of his trial was actually affected”) (emphasis added); United States v. Miro, 29 F.3d 194, 200 (5th Cir.1994) (under Olano in normal case defendant must show “actual prejudice ”) (emphasis added); United States v. Ullyses-Salazar, 28 F.3d 932, 938 (9th Cir.1994) (plain error requires “highly prejudicial error” affecting substantial rights) (emphasis added). I would conclude that the trial judge’s comments here constituted plain error by finding that those comments give rise to a rebuttable presumption of prejudice. The Supreme Court specifically observed in Ola-no that there may be a category of cases where otherwise forfeited errors could be corrected regardless of their effect on the trial’s outcome, or that there exists a category of errors that are presumed prejudicial even if the defendant cannot make a specific showing of prejudice. — U.S. at -, 113 S.Ct. at 1778. As our court’s opinion notes, ante, at 923, n. 3, the Supreme Court did not" } ]

[ { "docid": "22739423", "title": "", "text": "Dallinger, Judge: This is a suit against the United States, arising at the port of New York, brought to recover certain customs duties alleged to have been improperly exacted on a particular impor tation of brass shells. Duty was levied thereon at the rate of 45 per centum ad valorem under paragraph 397 of the Tariff Act of 1930 as manufactures of metal not specially provided for. It is claimed that said articles are properly dutiable at the rate of 35 per centum ad valorem under paragraph 353 of said act as parts of articles suitable for producing or distributing electrical energy, or, alternatively, at the same rate under the same paragraph as parts of articles having as an essential feature an electrical element or device. This case was originally decided on November 6, 1940, Abstract 44688, and is again before us as the result of a rehearing granted the Government. At the first hearing, held at New York on October 9, 1939, it was stipulated by and between counsel for the respective parties that the merchandise herein was similar in all material respects to that passed upon by this court in N. Minami & Co., Inc. v. United States, Abstract 37615, 73 Treas. Dec. 1104. Samples of the merchandise at bar were admitted in evidence as collective exhibit 1, and a Christmas-tree lighting set, of which the imported article is alleged to form an essential and indispensable part, was admitted in evidence as illustrative exhibit A. In addition to said exhibits, the plaintiff offered in evidence the testimony of Abraham L. Buschman, who is in charge of the electrical department of the plaintiff-corporation. After identifying the exhibits, he testified in part as follows: Q. Will you please state how Exhibit 1 is used in connection with Illustrative Exhibit A?' — A. The screw shells are set into the insulated material and electric wires lead to each individual brass screw shell, and the wire leads to the next socket or the next outlet and at the end we have an outlet connecting the electric wires to a plug which in" } ]

[ { "docid": "19182631", "title": "", "text": "Almond, Judge. The United States appeals from the decision and judgment of the Second Division of the United States Customs Court sustaining the protests herein and overruling the tariff classification of machinery used for making heavy steel anchor drains for vessels. Two protests and two separate shipments are involved. The first shipment, entered in April 1958, consisted of a heavy-duty transport system the function of which was to convey partially manufactured chains from one processing or manufacturing station to the next ensuing station. The second shipment, entered in May 1958, consisted of five machines to be used in the step-by-step production of the chains. This latter shipment comprised (1) an electrical resistance heater, (2) a hydraulic bending machine, (3) an automatic flash welding machine, (4) a clamping device, and (5) a hydraulically operated steel press. The heavy-duty transport system, first shipment, was classified as other articles having as an essential feature an electrical device or element, not specially provided for, under paragraph 353 of the Tariff Act of 1930, as modified, T.D. 52789, and assessed duty at the rate of 13% percent ad valorem. Appellees (plaintiffs below) protested (62/8017) claiming that the merchandise is properly dutiable at 11 percent under paragraph 353. The merchandise comprising the second shipment was classified as follows: Article Tariff provision Duty 1. Electrical resistance Par. 353, as modified, T.D. 52739 12)4% beater. . (electric heater). 2. Hydraulic bending Par. 372, as modified, T.D. 51802 15% machine. (machine tools). 3. Automatic flash welding. Par. 353, as modified, T.D. 54108 11% machine. (electric welding apparatus). 4. Clamping device. Par. 372, as modified, T.D. 54108 12% (machine nspf). 5. Hydraulically operated Par. 372, as modified, T.D. 51802 15% stud press. (machine tools). In protesting those classifications (protest 62/10442), appellee claimed that the articles should be classified as an entirety with duty at 11% under paragraph 353 (welding apparatus, instruments and devices). The pertinent provisions of the Tariff Act of 1930 are: Classified under: Paragraphs 353, as modified, T.D. 52739: Articles having as an essential feature an electrical element or device, such as electrical motors, fans, locomotives, portable tools," }, { "docid": "22633048", "title": "", "text": "Lawrence, Judge: Certain imported electric flatirons were classified by the collector of customs as household utensils pursuant to the provisions of paragraph 339 of the Tariff Act of 1930 (19 U. S. C. § 1001, par. 339), and duty was imposed thereon at the rate of 40 per centum ad valorem. Plaintiffs, by their protest, claim that the merchandise should be classified as articles having as an essential feature an electrical element or device and dutiable, accordingly, at 15 per centum ad valorem as provided in paragraph 353 of said act (19 U. S. C. § 1001, par. 353), as modified by the General Agreement on Tariffs and Trade (82 Treas. Dec. 305, T. D. 51802), or, alternatively, that the merchandise consists of articles or wares not specially provided for, composed of metal, and dutiable at 22% per centum ad valorem in paragraph 397 of said act (19 U. S. C. § 1001, par. 397), as modified by said General Agreement on Tariffs and Trade. The Statutes The statutes above cited read, so far as pertinent here, as follows: Paragraph 339 of the Tariff Act of 1930: Par. 339. Table, household, kitchen, and hospital utensils, and hollow or flat ware, not specially provided for: * * * composed wholly or in chief value of copper, brass, steel, or other base metal, not plated with platinum, gold, or silver, and not specially provided for, 40 per centum ad valorem; the foregoing rates shall apply to the foregoing articles whether or not containing electrical heating elements as constituent parts thereof. Paragraph 353 of said act, as modified, supra: * * * articles having as an essential feature an electrical element or device, such as electric motors, fans, locomotives, portable tools, furnaces, heaters, ovens, ranges, washing machines, refrigerators, and signs; all the foregoing (not including electrical wiring apparatus, instruments, and devices), finished or unfinished, wholly or in chief value of metal, and not specially provided for: * * * * * * * Other articles (except machines for determining the strength of materials or articles in tension, compression, torsion, or shear; flashlights; batteries;" }, { "docid": "16162770", "title": "", "text": "be applied when the converter was started after a shut-down. At an initial start-up, it might be used for as long as 3 or 4 days, and in subsequent start-ups for periods ranging from 4 to 24 hours. A gas-fired ¡heater could have been designed for use in place of the electric heater, but it has been characteristic of every Casale synthesis unit to have an electric heater. The synthesis gas compressor was also built for use exclusively with an electric motor, and, according to the witness, it could be connected to a gas engine only with substantial trouble and expense for modifications. In the opinion of the witness, the entire unit illustrated in exhibit 1 has electrical devices as essential features. These features consist of the electric start-up heater, and the motors on the compressor, the cooler and the condenser. Plaintiff claims that all the components included in the three entries before the court are parts of a single entity, the Casale ammonia synthesis unit; that said unit is a machine, and that the imported parts are dutiable either under paragraph 372, supra, as parts of a machine, not specially provided for, or, under paragraph 353, supra, as parts of an article having as an essential feature an electrical element or device. The parts classified under TSTJS are claimed to be dutiable under item 678.50 as parts of machines, not specially provided for. Defendant counters with three arguments: (1) That plaintiff has failed to offer any evidence with respect to the merchandise classified under paragraph 397, supra; (2). that the merchandise covered by protest 65/13029 must be classified under the specific provisions therefor under TSUS, whether or not they are parts of any other articles, and (3) that the merchandise which consists of internals for the converter is more specifically provided for under paragraph 319(b), supra, as catalyst chambers or tubes, converters and parts thereof, than under either paragraph 372 or paragraph 353. Plaintiff has called to our attention several cases in which complete plants consisting of a number of parts were held dutiable as machines, not specially provided" }, { "docid": "3610037", "title": "", "text": "Maletz, Judge: The importations in this case consist of auto-collimators which were invoiced as “Optical assemblies modified without electrical equipment * * * suitable for assembly with electrical parts into a complete precision autocollimator * * They were classified by the collector as optical measuring instruments under paragraph 228(a) of the Tariff Act of 1930, as modified, and assessed with duty at the rate of 50 percent ad valorem. Plaintiff’s claim is that the collector’s classification is erroneous and that the autocollimators are properly classifiable under paragraph 360 of the act, as modified, as scientific or laboratory instruments dutiable at 251/2 percent ad valorem. Alternatively it is claimed that the imports are properly classifiable under paragraph 353 of the act, as modified, as articles having as an essential feature an electrical element or device dutiable at 13% percent ad valorem. Quoted below are the tariff provisions involved: Classified under: Paragraph 228(a) of the Tariff Act of 1930, as modified by T.D. 52739 and supplemented by T.D. 52820: _ * * * optical measuring or optical testing instruments, * * * frames and mountings therefor, and parts of any of the foregoing; all the foregoing, finished or unfinished_50% ad val. Claimed under: Paragraph 360 of the Tariff Act of 1930, as modified by T.D. 54108: Scientific and laboratory instruments, apparatus, utensils, appliances (including mathematical instruments but not including surveying instruments), and parts thereof, wholly or in chief value of metal, and not plated with gold, silver, or platinum, finished or unfinished, not specially provided for: ****** * Other (except * * * )_25%% ad val. Paragraph 353 of the Tariff Act of 1930, as modified by T.D. 52739 and supplemented by T.D. 52820: Articles having as an essential feature an electrical element or device, such as electric motors, fans, locomotives, portable tools, furnaces, heaters, ovens, ranges, washing machines, refrigerators, and signs, finished or unfinished, wholly or in chief value of metal and not specially provided for: •I» ‡ ^ ‡ $ Other (except * * )-13%% ad val. We now consider the facts in the case as established in the record," }, { "docid": "22739432", "title": "", "text": "this particular article? — A. Yes, sir. X Q. Does this article operate like an electric sign, an ordinary electric sign you see in the street? — A. Yes, sir. X Q. It has as an essential feature an electrical element or device? Is that correct? — A. Yes, sir. On redirect examination the witness testified in part as follows: R Q. When you said it was operated like a sign, you meant merely a sign, a light sign that is made by screwing in electric light bulbs? You didn’t mean Neon or anything like that, did you? — A. No. On recross-examination the witness testified in part as follows: R. X Q.\" When you speak of electric signs, they are made by a series of electric bulbs fitting into brass shells, as in Illustrative Exhibit A? The ordinary sign other than Neon, or other §igns, that have circuit breakers, going off and on, is a fixed sign, forming letters by means of the bulbs? — A. Yes; most signs are fixed, not movable or changeable; operates similar to that. On tbis record counsel for the plaintiff in their brief filed herein contend that the so-called female brass shells constituting the imported merchandise at bar are properly classifiable under two different classes of merchandise mentioned in paragraph 353, to wit, parts of “articles suitable for producing * * * or distributing electrical energy” and also parts of “articles having as an essential feature an electrical element or device,” and in support of their contention counsel cite the decisions in the cases of German American Import Co. v. United States, T. D. 46488, 63 Treas. Dec. 1130; N. Minami & Co., Inc. v. United States, Abstract 37615, 73 Treas. Dec. 1104; N. Minami & Co., Inc. v. United States, C. D. 72, 1 Cust. Ct. 307; and W. X. Huber Co. v. United States, C. D. 359, 5 Cust. Ct. 1. In view of the fact that it is stipulated in the instant case that the merchandise is similar in all material respects to that involved in N. Minami & Co.," }, { "docid": "10549214", "title": "", "text": "herein that, if the court should disagree with the primary claim herein, said merchandise is, nevertheless, dutiable at the rate of 12% per centum ad valorem as a heater under the provisions of paragraph 353 of the Tariff Act of 1930, as modified by said Torquay protocol, supra. The pertinent text of the statutes relied upon is here set forth: Paragraph 353 of the Tariff Act of 1930, as modified by the Torquay protocol, supra: Articles having as an essential feature an electrical element or device, such as electric motors, fans, locomotives, portable tools, furnaces, beaters, ovens, ranges, washing machines, refrigerators, and signs, finished or unfinished, wholly or in chief value of metal, and not specially provided for: Electric motors, furnaces, heaters, and ovens_12%% ad val. ******* Other (* * *)_13%% ad val. Paragraph 372 of the Tariff Act of 1930, as modified by the Sixth protocol, supra: Machines, finished or unfinished, not specially provided for: * * * * * * * * * * machines for making paper or paper pulp; * * *_ 8%% ad val. * ****** Parts, not specially provided for, wholly or in chief value The rate for of metal or porcelain, of any article provided for in any the article of item 372 in this Part. which they are parts. The record herein consists of a stipulation received in evidence as plaintiff’s exhibit 1, blueprints and photographs, received as plaintiff’s collective exhibit 2, and the testimony of Edwin E. Burr, a well-qualified mechanical engineer who supervised the installation of the involved merchandise in plaintiff’s plant. Based upon the stipulation, in which it is agreed that the merchandise imported herein consists, among other things, of “A hydraulically controlled four-roll paper-making press * * *” and the testimony of Mr. Burr, there appears to be no question that the imported merchandise is a paper-making machine. The question before the court is whether a paper-making machine having electrical features is properly dutiable under paragraph 353, supra, or under the eo nomine provision contained in paragraph 372, supra. Before this question may be answered, the court must" }, { "docid": "10494725", "title": "", "text": "Ford, Judge: The merchandise involved in the suits listed in schedule “A,” annexed hereto and made a part hereof, consolidated for purpose of trial, consists of certain pulp drying equipment and parts thereof. The collector assessed duty at the rate of 17% per centum ad valorem under paragraph 353 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T.D. 51802, on the merchandise covered by protest 59/9105, which is described on the invoice as “24-Special Circulating Fans including drives & belts. Pulp mill equipment,” as articles having as an essential feature an electrical element or device, such as blowers and fans. The merchandise covered by the remaining protests were assessed with duty at the rate of 13% per centum ad valorem under paragraph 353 of the Tariff Act of 1930, as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade,.86 Treas. Dec. 121, T.D. 52739, as other articles having as an essential feature an electrical element or device. Plaintiff contends that all of the merchandise involved in these suits is properly dutiable at the rate of 9% per centum ad valorem under paragraph 372 of the Tariff Act of 1930, as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, 91 Treas. Dec. 150, T.D. 54108, as machines or parts thereof for making paper or paper pulp. The pertinent portions of the statutes involved are as follows: Paragraph 353, Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, supra: Articles suitable for' producing, rectifying, modifying, controlling, or distributing electrical energy, and articles having as an essential feature an electrical element or device, such as electric motors, fans, locomotives, portable tools, furnaces, heaters, ovens, ranges, washing machines, refrigerators, and signs; all the foregoing (not including electrical wiring apparatus, instruments, and devices), finished or unfinished, wholly or in chief value of metal, and not specially provided for: * * * fans; blowers; * * *_17%% ad val. Paragraph. 353, Tariff Act of 1930, as modified" }, { "docid": "5448121", "title": "", "text": "long as 3 or 4 days, and in subsequent start-ups for periods ranging from 4 to 24 hours. A gas-fired heater could have been designed for use in place of the electric heater, but it has been characteristic of every Casale synthesis unit to have an electric heater. The synthesis gas compressor was also built for use exclusively with an electric motor, and, according to the witness, it could be connected to a gas engine only with substantial trouble and expense for modifications. In the opinion of the witness, the entire unit illustrated in exhibit 1 has electrical devices as essential features. These features consist of the electric start-up heater, and the motors on the compressor, the cooler and the condenser. Plaintiff claims that all the components included in the three entries before the court are parts of a single entity, the Casale ammonia synthesis unit; that said unit is a machine, and that the imported parts are dutiable either under paragraph 372, supra, as parts of a machine, not specially provided for, or, under paragraph 353, supra, as parts of an article having as an essential feature an electrical element or device. The parts classified under TSUS are claimed to be dutiable under item 678.50 as parts of machines, not specially provided for. Defendant counters with three arguments: (1) That plaintiff has failed to offer any evidence with respect to the merchandise classified under paragraph 397, supra; (2) that the merchandise covered by protest 65/13029 must be classified under the specific provisions therefor under TSUS, whether or not they are parts of any other articles, and (3) that the merchandise which consists of internals for the converter is more specifically provided for under paragraph 319(b), supra, as catalyst chambers or tubes, converters and parts thereof, than under either paragraph 372 or paragraph 353. Plaintiff has called to our attention several eases in which complete plants consist of a number of parts were held dutiable as machines, not specially provided for. C. F. Drew & Co., Inc v. United States, 63 Treas.Dec. 1564, Abstract 24293; Emery Industries, Inc. v. United" }, { "docid": "22784917", "title": "", "text": "Rich, Judge, delivered the opinion of the court: This appeal by the government is from a judgment of the United States Customs Court, C.D. 1955, sustaining the protest of Electrolux Corporation, appellee, that imported finished electrical floor polishers were properly dutiable under paragraph 353 of the Tariff Act,of, 1930, (as modified) as articles having as an essential feature an electrical element or device, rather than as household utensils under paragraph 339, as classified by the Collector. The pertinent provisions are: Paragraph 339, as modified by T.D. 52739: ' , Table, household, kitchen and hospital utensils, and hollow or flat ware, not specially provided for, * * * whether or not containing electrical heating elements as constituent parts: $ * * Other base metal, including steel (except electric flatirons and household food grinding or cutting utensils)_20% ad. val. Paragraph 353, as modified by T.D. 52739: Articles having as an essential feature an electrical element or device, such as electric motors, fans, locomotives, portable tools, furnaces, heaters, ovens, ranges, washing machines, refrigerators,-- and * signs, finished or unfinished, wholly or in chief value of metal, and not specially provided for: ******* Other * * •_13%% ad val. The case was submitted upon an agreed statement of facts, those pertinent being, briefly, that the merchandise consists of finished electrical floor polishers containing all of the electrical parts necessary to enable them to function solely by means of electrical power, each polisher having as an essential feature a built in 110 volt AC-DC electric motor as an integral part thereof, that the polishers are incapable of operation without such motors, do not contain any electrical heating elements, and are chiefly used in the household or home. The Customs Court came to the conclusion that the imported electric floor polishers were improperly classified as household utensils and that they should be classified in paragraph 353 as articles having as an essential feature an electrical element or device. All agree with the view of the lower court that the electric motor of the floor polisher is “an electrical element or device” within the meaning of paragraph" }, { "docid": "22577228", "title": "", "text": "parts thereof; or, alternatively, under paragraph 397, as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, 91 Treas. Dec. 150, T.D. 54108, as manufactures of metal, not specially provided for, dutiable at 20 per centum ad valorem. By amendment, made at the trial without objection, plaintiff added an additional claim for classification as an entirety under paragraph 353, as modified by T.D. 52739, as other articles, except flashlights, having as an essential feature an electrical element or device, dutiable at 13% per centum ad valorem. The pertinent text of the competing statutes is as follows: Classified under: Paragraph 353 of the Tariff Act of 1930: Articles having as an essential feature an electrical element or device * * *; All the foregoing, and parts thereof, finished or unfinished, wholly or in chief value of metal, and not specially provided for, 35 per centum ad valorem. Paragraph 396 of the Tariff Act of 1930, as modified by T.D. 52739 and T.D. 52820: * * * screw drivers * * * and parts thereof, wholly or in chief value of metal, not specially provided for_22%% ad val. Claimed under: Paragraph 396 of the Tariff Act of 1930, as modified by T.D. 52739 and T.D. 52820: * * * screw drivers * * * and parts thereof, wholly or in chief value of metal, not specially provided for-22%% ad val. Paragraph 397 of the Tariff Act of 1930, as modified 'by T.D. 54108: Articles or wares not specially provided for, whether partly or wholly manufactured: Composed wholly or in chief value of iron, steel, copper, brass, nickel, pewter, zinc, aluminum, or other base metal (except lead), but not plated with platinum, gold, or silver, or colored with gold lacquer: Other * * * 20% ad val. Paragraph 353 of the Tariff Act of 1930, as modified by T.D. 52739: Articles having as an essential feature an electrical element or device, such as * * *: Other (except the following * * * flashlights * * *)-13%% ad val. The issues presented for determination are, simply" }, { "docid": "18851601", "title": "", "text": "Dallinger, Judge: This is a suit against the United States, arising at the port of Buffalo, brought to recover certain customs duties alleged to have been improperly exacted on a particular importation of flashlight cases. Duty was levied thereon at the rate of 45 per centum ad valorem under paragraph 397 of the Tariff Act of 1930 as manufactures of metal not specially provided for. It is claimed that said articles are properly dutiable at but 35 per centum ad valorem under paragraph 353 of said act, which reads as follows: Par. 353. All articles suitable for producing, rectifying, modifying, controlling, or distributing electrical energy; electrical telegraph (including printing and typewriting), telephone, signaling, radio, welding, ignition, wiring, therapeutic, and X-ray apparatus, instruments (other than laboratory), and devices; and articles having as an essential feature an electrical element or device, such as electric motors, fans, locomotives, portable tools, furnaces, heaters, ovens, ranges, washing machines, refrigerators, and signs; all the foregoing, and parts thereof, finished or unfinished, wholly or in chief value of metal, and not specially provided for, 35 per centum ad valorem. A sample of the imported flashlight cases is in evidence as Exhibit 1. It is a metal case equipped with lens, bulb, and wiring, apparently ready to receive the electric battery to make it immediately available for use as a complete electric flashlight. Also admitted in evidence as Illustrative Exhibits A to G, inclusive, are pictorial representations of certain articles constructed and designed for producing, rectifying, modifying, controlling, and distributing electrical energy. In addition to said exhibits the plaintiffs offered in evidence the testimony of Duane L. Tower of C. J. Tower & Sons, the plaintiffs herein, who identified the exhibits. The defendant offered in evidence the testimony of two witnesses. The first, Arthur T. Hinckley, a consulting electrochemist in the employ of the National Carbon Co., testified that the production of electrical energy is dependent on any one of three conditions, the moving of a wire through an electric or magnetic field, by friction, or by the conversion of chemical energy; that the two generators shown on" }, { "docid": "16162771", "title": "", "text": "imported parts are dutiable either under paragraph 372, supra, as parts of a machine, not specially provided for, or, under paragraph 353, supra, as parts of an article having as an essential feature an electrical element or device. The parts classified under TSTJS are claimed to be dutiable under item 678.50 as parts of machines, not specially provided for. Defendant counters with three arguments: (1) That plaintiff has failed to offer any evidence with respect to the merchandise classified under paragraph 397, supra; (2). that the merchandise covered by protest 65/13029 must be classified under the specific provisions therefor under TSUS, whether or not they are parts of any other articles, and (3) that the merchandise which consists of internals for the converter is more specifically provided for under paragraph 319(b), supra, as catalyst chambers or tubes, converters and parts thereof, than under either paragraph 372 or paragraph 353. Plaintiff has called to our attention several cases in which complete plants consisting of a number of parts were held dutiable as machines, not specially provided for. C. F. Drew & Co., Inc. v. United States, 63 Treas. Dec. 1564, Abstract 24293; Emery Industries, Inc. v. United States, 68 Treas. Dec. 39, T.D. 47789; John A. Steer and Co. v. United States, 24 CCPA 293, T.D. 48737. The case last cited involved several shipments of merchandise comprising, when assembled, a completed anhydrous ammonia plant composed of compressors, heaters, tanks, condensers, and refrigerators, used in the production of liquid anhydrous ammonia from hydrogen and nitrogen by a process of synthesis. From the description given in the opinion of the court, it would appear that the plant resembled the Casale ammonia synthesis unit here involved. The court held that the apparatus was a machine within the purview of paragraph 372 of the Tariff Act of 1930; that the presence of electrical heaters did not constitute it an article having as an essential feature an electrical element or device. In the instant case, we do not have before us a complete ammonia synthesis unit, but only articles claimed to be parts thereof. On the" }, { "docid": "22739433", "title": "", "text": "changeable; operates similar to that. On tbis record counsel for the plaintiff in their brief filed herein contend that the so-called female brass shells constituting the imported merchandise at bar are properly classifiable under two different classes of merchandise mentioned in paragraph 353, to wit, parts of “articles suitable for producing * * * or distributing electrical energy” and also parts of “articles having as an essential feature an electrical element or device,” and in support of their contention counsel cite the decisions in the cases of German American Import Co. v. United States, T. D. 46488, 63 Treas. Dec. 1130; N. Minami & Co., Inc. v. United States, Abstract 37615, 73 Treas. Dec. 1104; N. Minami & Co., Inc. v. United States, C. D. 72, 1 Cust. Ct. 307; and W. X. Huber Co. v. United States, C. D. 359, 5 Cust. Ct. 1. In view of the fact that it is stipulated in the instant case that the merchandise is similar in all material respects to that involved in N. Minami & Co., Inc. v. United States, Abstract 37615, supra, and the long line of cases both tried and submitted on stipulation in which this court has held Christmas-tree lighting sets to be properly classifiable under said paragraph 353, we would ordinarily have no hesitancy in deciding the instant case in favor of the plaintiff. Inasmuch, however, as the United States Court of Customs and Patent Appeals in the very recent case of United States v. N. Minami & Co., Inc., C. A. D. 188, decided December 29, 1941, has intimated that so-called electrical fixtures including lamps per se are not within the purview of paragraph. 353, as disclosed by the Congressional history thereof, but are dutiable under paragraph 397 of the Tariff Act of 1930 as manufactures of metal not specially provided for, we fear that all decisions theretofore rendered would no longer be. controlling. Nevertheless, we are of the opinion that Christmas-tree lighting sets are articles having as an essential feature an electrical element or device such as signs, as were the Christmas wreaths in the" }, { "docid": "5448122", "title": "", "text": "paragraph 353, supra, as parts of an article having as an essential feature an electrical element or device. The parts classified under TSUS are claimed to be dutiable under item 678.50 as parts of machines, not specially provided for. Defendant counters with three arguments: (1) That plaintiff has failed to offer any evidence with respect to the merchandise classified under paragraph 397, supra; (2) that the merchandise covered by protest 65/13029 must be classified under the specific provisions therefor under TSUS, whether or not they are parts of any other articles, and (3) that the merchandise which consists of internals for the converter is more specifically provided for under paragraph 319(b), supra, as catalyst chambers or tubes, converters and parts thereof, than under either paragraph 372 or paragraph 353. Plaintiff has called to our attention several eases in which complete plants consist of a number of parts were held dutiable as machines, not specially provided for. C. F. Drew & Co., Inc v. United States, 63 Treas.Dec. 1564, Abstract 24293; Emery Industries, Inc. v. United States, 68 Treas.Dec. 39, T.D. 47789; John A. Steer and Co. v. United States, 24 CCPA 293, T.D. 48737. The case last cited involved several shipments of merchandise comprising, when assembled, a completed anhydrous ammonia plant composed of compressors, heaters, tanks, condensers, and refrigerators, used in the production of liquid anhydrous ammonia from hydrogen and nitrogen by a process of synthesis. From the description given in the opinion of the court, it would appear that the plant resembled the Casale ammonia synthesis unit here involved. The court held that the apparatus was a machine within the purview of paragraph 372 of the Tariff Act of 1930; that the presence of electrical heaters did not constitute it an article having as an essential feature an electrical element or device. In the instant case, we do not have before us a complete ammonia synthesis unit, but only articles claimed to be parts thereof. On the ground that all of the imported articles were constructed to specification for use in such a unit and had no other application," }, { "docid": "18685813", "title": "", "text": "Dallinger, Judge: This is a suit against the United States, arising at the port of St. Louis, brought to recover certain customs duties alleged to have been improperly exacted on a particular importation described in the invoice as an “ automatic stamping press for 3 stamps for round hexagon pencils arranged, for electric di’ive but without motor,” and described in the entry as a “stamping press.” Duty was levied thereon at the rate of 35 per centum ad valorem under paragraph 353 of the Tariff Act of 1930 as an article having as an essential feature an electrical element or device. It is claimed that said article is properly dutiable at but 25 per centum ad valorem under paragraph 372 of said act as printing machinery. At the hearing held at St. Louis on November 14, 1940, the plaintiff offered a pictorial representation of the imported mechanism, which was admitted in evidence as illustrative exhibit A; a number of lead pencils on which were inscribed “My Country Tis of Thee, U. S. A. 1776” and a white colored map of the United States, which pencils were admitted in evidence as illustrative exhibit B; certain pieces of foil having thereon certain printed words, which foil was admitted in evidence as collective illustrative exhibit C; and a photograph of the dieholdér used in connection with the imported machine, which was admitted in evidence as illustrative exhibit D. In addition to said exhibits, the plaintiff offered in evidence the testimony of Arthur W. Forsyth, vice president of the plaintiff-corporation, who testified that the machine constituting the imported merchandise at bar was imported in a knocked-down condition; that said machine as set up is operated by an electric motor connected thereto by a belt; that said machine stamps a name, design, or slogan on the wooden part of a pencil, as shown by collective illustrative exhibit B; that the material used is a pigment combined with a binder which causes it to adhere to the surface of the pencil; that this pigment or color is applied by means of a die, which die is" }, { "docid": "18846513", "title": "", "text": "Laweence, Judge: This case was originally decided adversely to plaintiff (9 Cust. Ct. 212, C. D. 696). It is again before us as the result of a rehearing, and has been resubmitted upon a stipulation placing in evidence four illustrative exhibits, as well as the original record herein. The mechanism in controversy was advisorily returned by the appraiser as an “Old & Used Textile Finishing Machine.” The collector classified it under the provision in paragraph 372 of the Tariff Act of 1930 for “all other textile machinery, finished or unfinished, not specially provided for,” and levied duty thereon at the rate of 40 per centum ad valorem. The protest of plaintiff invokes the following claims under said act for rates of duty lower than that assessed: 1. 35 per centum ad valorem under paragraph 353 as articles having as an essential feature an electrical element or device, or parts thereof, finished or unfinished. 2. 27% per centum ad valorem under paragraph 372 as machines or parts thereof not specially provided for. 3. 25 per centum ad valorem under paragraph 372, by virtue of the trade agreement with the United Kingdom (74 Treas. Dec. 253, T. D. 49753). 4. 25 or 27% per centum ad valorem under paragraph 353, by virtue of said trade agreement. While all of said claims were pressed when the cáse was first decided, nevertheless, plaintiff, in its brief, now stresses only the claims that the merchandise is dutiable at the rate of 27% per centum ad valorem under paragraph 372 as a machine or parts thereof not specially provided for, or, at the same rate of duty under paragraph 353, as modified by said trade agreement, as— Machines having as an essential feature an electrical element or device and which would be dutiable under paragraph 872, Tariff Act of 1930, if of a kind which could be designed to operate without such electrical element or device * * * all the foregoing, not specially provided for, finished or unfinished, wholly or in chief value of metal, and not provided for heretofore in any item numbered 353" }, { "docid": "14506838", "title": "", "text": "Hardness Testing 'Machines,” composed of base metals and' designed to determine the hardness of metals, was assessed for duty at 60 per centum ad valorem under paragraph 228 (a) of the Tariff Act of 1930, as “optical measuring or optical testing instruments,” on account of having a microscope permanently attached to the articles. The merchandise was claimed to be dutiable at only 20 per centum ad valorem under paragraph 353 of said act, as modified by the provision of the trade agreement with Switzerland (T. D. 48093), reading as follows: testing machines for determining the strength of materials or articles in tenl sion, compression, torsion, or shear, having as an essential feature an electrica-element or device, and parts thereof; any of the foregoing, finished or unfinished, wholly or in chief value of metal, and not specially provided for, 20% ad val., or under paragraph 372 of said act, as modified by said trade agreement, as machines not specially provided for, finished or unfinished, for determining the strength of materials or articles in tension, compression, torsion, or shear, 20% ad val. This court found that the imported merchandise was more specifically described in both paragraphs 353 and 372 of said act than in paragraph 228 (a), under which assessed, but held the merchandise dutiable under paragraph 353, as modified by said trade agreement, at 20 per centum ad valorem. On appeal the appellant contended that the articles were not classifiable under paragraph 353 as modified by the Swiss Trade Agreement, for the reason that (1) they were not machines “for determining the strength of materials or articles in tension, compression, torsion, or shear,” as provided in the modifications of both paragraphs 353 and 372 by the Swiss Trade Agreement, and (2) that they were also not classifiable under paragraph 353 for the reason that they had no electrical element or device as an essential feature. Upon the first point, pur appellate court was of the opinion that the appellant’s claim was without merit. Upon the second point— whether or not the articles there involved had as an essential feature an electrical" }, { "docid": "22739434", "title": "", "text": "Inc. v. United States, Abstract 37615, supra, and the long line of cases both tried and submitted on stipulation in which this court has held Christmas-tree lighting sets to be properly classifiable under said paragraph 353, we would ordinarily have no hesitancy in deciding the instant case in favor of the plaintiff. Inasmuch, however, as the United States Court of Customs and Patent Appeals in the very recent case of United States v. N. Minami & Co., Inc., C. A. D. 188, decided December 29, 1941, has intimated that so-called electrical fixtures including lamps per se are not within the purview of paragraph. 353, as disclosed by the Congressional history thereof, but are dutiable under paragraph 397 of the Tariff Act of 1930 as manufactures of metal not specially provided for, we fear that all decisions theretofore rendered would no longer be. controlling. Nevertheless, we are of the opinion that Christmas-tree lighting sets are articles having as an essential feature an electrical element or device such as signs, as were the Christmas wreaths in the last-cited case. It is a well-known fact that Christmas-tree lighting sets are not used like ordinary fixtures or lamps for illuminating the house, but are solely employed during the Christmas season to decorate Christmas trees both indoors and outdoors. They are more or less symbolical in character of the Christmas season and perform precisely the same function as did the Christmas wreaths involved in the last above-cited case. Upon all the facts and the law applicable thereto we follow the last-cited decision of the United States Court of Customs and Patent Appeals in N. Minami & Co., Inc. v. United States, C. A. D. 188, and hold the imported brass shells to be properly dutiable at the rate of 35 per centum ad valorem under said paragraph 353 as parts of articles having as an essential feature an electrical element or device such as signs, as alleged by the plaintiff. That claim is therefore sustained; but as to all other merchandise the claims are overruled. Judgment will be rendered accordingly." }, { "docid": "1205482", "title": "", "text": "MALETZ, Judge: The importations in this case consist of autocollimators which were invoiced as “Optical assemblies modified without' electrical equipment * * suitable for assembly with electrical parts into a complete precision auto collimator * They were classified by the collector as optical measuring instruments under paragraph 228(a) of the Tariff Act of 1930, as modified, and assessed with duty at the rate of 50 percent ad valorem. Plaintiff’s claim is that the collector’s classification is erroneous and that the autoeollimators are properly classifiable under paragraph 360 of the act, as modified, as scientific or laboratory instruments dutiable at 25% percent ad valorem. Alternatively it is claimed that the imports are properly classifiable under paragraph 353 of the act, as modified, as articles having as an essential feature an electrical element or device dutiable at 13% percent ad valorem. Quoted below are the tariff provisions involved: Classified under: Paragraph 228(a) of the Tariff Act of 1930, as modified by T.D. 52739 and supplemented by T.D. 52820: * * * optical measuring or optical testing instruments, * * * frames and mountings therefor, and parts of any of the foregoing; all the foregoing, finished or unfinished......................50% ad val. Claimed under: Paragraph 360 of the Tariff Act of 1930, as modified by T.D. 54108: Scientific and laboratory instruments, apparatus, utensils, appliances (including mathematical instruments but not including surveying instruments), and parts thereof, wholly or in chief value of metal, and not plated with gold, silver, or platinum, finished or unfinished, not specially provided for: -X- -X- * * * * * -X- Other (except * * *) ..................25%% ad- val. Paragraph 353 of the Tariff Act of 1930, as modified by T.D. 52739 and supplemented by T. D. 52820: Articles having as an essential feature an electrical element or device, such as electric motors, fans, locomotives, portable tools, furnaces, heaters, ovens, ranges, washing machines, refrigerators, and signs, finished or unfinished, wholly or in chief value of metal and not specially provided for: -X- * * * * * *• * Other (except * * *) ...................13%% ad val. We now consider the" }, { "docid": "23141126", "title": "", "text": "Ford, Judge: The merchandise at issue was invoiced as “3 only Cambio 66 Débárkers according to American 190.496 standard.” The involved merchandise was classified by the collector as parts, not specially provided for, of articles having as an essential feature an electrical element or device, and assessed at 13% per centum ad valorem under the provisions of paragraph 353 of the Tariff Act of 1930, as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, 86 Treas. Dec. 121, T.D. 52739. Plaintiff contends that said merchandise is properly dutiable at 11% per centum ad valorem under the provisions of paragraph 372 of the Tariff Act of 1930, as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, 91 Treas. Dec. 150, T.D. 54108, as machines and parts, not specially provided for. Claims for all other merchandise similarly assessed have been abandoned. The pertinent portions of the statutes involved herein read as follows: Paragraph 353 of the Tariff Act of 1930, as modified by T.D. 52739, supra: Articles having as an essential feature an electrical element or device, such as electric motors, fans, locomotives, portable tools, furnaces, heaters, ovens, ranges, washing machines, refrigerators, and signs, finished or unfinished, wholly or in chief value of metal, and not specially provided for: ******* Other * * *_13%% ad val. Parts, finished or unfinished, wholly or in chief value of metal, not specially provided for, of articles provided -for in any item 353 of this Part (not including X-ray tubes or parts thereof) _The same rate of duty as the articles of which they are parts. Paragraph 372 of the Tariff Act of 1930, as modified by T.D. 54108, supra: Machines, finished or unfinished, not specially provided for: ******* •Other * * *. 11%% ad val. Parts, not specially provided for, wholly or in chief value of The rate for metal or porcelain, of any article provided for in any item the article 372 in this Part. of which they are parts. The record herein consists of the testimony of one witness called" } ]

[ { "docid": "4467567", "title": "", "text": "of the calibration points” and “generating data including data of the calibration points” are not enabled. With regards to the second argument, the Court has already found that Dr. Welch’s testimony regarding enablement is admissible. See Order Granting in Part Plaintiffs Motions in Limine at 10-11. Dr. Welch’s enablement analysis is based on UltimatePointer’s infringement contentions. Essentially, Dr. Welch opines that by identifying the Wii sensor bar as the “first point” and/or a “calibration point,” UltimatePointer makes it impossible for one of ordinary skill in the art to figure out how to use the distance between the specified points or data regarding those points to control a cursor on the screen through direct pointing. Dr. Welch also opines that the addition of orientation limitations in dependent claims 3 and 6 does not cure the enablement problems. There is, therefore, admissible evidence in support of Nintendo’s contention that claims 1, 3, 5, 6, and 12 of the \"729 patent are invalid for lack of enablement. B. Equitable Defenses Nintendo has asserted a number of equitable defenses against plaintiffs infringement claims. The Court has already determined that the accused product does not infringe any of the asserted claims. See Order Granting Defendants’ Motion for Summary Judgment of Non-Infringement. Thus, there is no need to determine whether equity bars plaintiffs claims. For all of the foregoing reasons; plaintiffs motion for summary judgment is, for the most part, DENIED. The only argument on which UltimatePointer is entitled to summary judgment relates to Nintendo’s contention that claims 5, 6, and 12 of the '729 patent are invalid because the claimed “image sensor generating data including data of the calibration points” and “generating data including data of the calibration points” are not enabled. That particular invalidity argument is now foreclosed. With regards to the other invalidity defenses, Nintendo has either raised a genuine issue of material fact or has shown that, in fact, Nintendo is entitled to judgment as a matter of law. Having found that claims 1, 3, 5, and 6 of the '729 patent are indefinite, the Court hereby enters summary judgment of invalidity" } ]

[ { "docid": "11830456", "title": "", "text": "using that apparatus because they claim “a handheld device including: an image sensor, said image sensor generating data” and other similar “generating data” .limitations. . Indefiniteness Opinion, 73 F,.Supp.3d at 1308 (quoting '729 patent, col. 33 ll. 64-65). The court concluded that the inclusion of the “image sensor generating data” limitation made it unclear whether infringement occurred when ah infringing system is assembled, or when “the apparatus is used to perform the specified function.” Id. Accordingly, the court concluded that the' claims were invalid as indefinite. .UltimatePointer argues that the claims are not invalid as indefinite because they simply claim a, handheld device with an image sensor capable of generating data, and recite sufficient structure for,that, ca pability. UltimatePointer contends that because claims 1, 3, 5, and 6 of the '729 patent claim a structure in connection with the claimed functionality, the claims are more similar to those in MEC. Id. 60-62. Nintendo responds that the claims do not clearly tie the functional language to the device’s capability. Nintendo argues that the district court’s decision is consistent with this court’s precedent, and that the United States Patent and Trademark Office (“USPTO”) routinely rejects claims similar to those appearing in the '729 patent on IPXL grounds. We agree with UltimatePointer that claims 1, 3, 5, and 6 of the '729 patent are not invalid as indefinite, as the claims do reflect the capability of the claimed apparatus. Unlike IPXL and similar cases, the claims at issue here make clear that the “generating data” limitation reflects the capability of that structure rather than the activities of the user. In reaching this conclusion, review of our precedent is instructive. In IPXL, our first ease to address the claiming of two statutory classes, the claim at issue recited a system including input means, wherein “the user uses the input means” IPXL, 430 F.3d at 1384. The claims were unclear whether infringement occurred when the system was created, or when the user used the system. See id. We also affirmed a district court’s conclusion finding a claim invalid as indefinite for being directed to two" }, { "docid": "4467562", "title": "", "text": "the Ishi-no reference. 2. Obviousness For the reasons stated in the “Order Granting in Part Plaintiffs Motions in Limine,” Dr. Welch may testify regarding obviousness to the extent those opinions are based on his anticipation analysis. Although he may not testify regarding his vague and conclusory opinion that claim 12 of the '321 patent is obvious in light of the Leichner reference, the exclusion of that evidence does not warrant summary judgment in plaintiffs favor. Dr. Welch opines that a number of references invalidate claim 12 of the '321 patent: that evidence remains and precludes summary judgment. 3. Indefiniteness A claim will be invalid for indefiniteness if it is “not amendable to construction” or is “insolubly ambiguous.” Star Scientific, Inc. v. R.J. Reynolds Tobacco Co., 655 F.3d 1364, 1373 (Fed.Cir.2011). Claims 1, 3, 5, and 6 of the '729 patent are apparatus claims disclosing “a handheld device including: an image sensor, said image sensor generating data....” The claims set forth both an apparatus — a handheld device including an image sensor — and a use for the apparatus — “generating data.” Such claims are indefinite because it is unclear whether the claim is infringed when one creates the system described (as one would normally expect with an apparatus claim) or whether infringement occurs only when the system is put to the specified use. Manual of Patent Examination Procedure, § 2173.05(p)(II) (8th ed. rev.2010) (“A single claim which claims both an apparatus and the method steps of using the apparatus is indefinite under 35 U.S.C. § 112, second paragraph.”); Rembrandt Data Techs., LP v. AOL, LLC, 641 F.3d 1331, 1339-40 (Fed.Cir.2011); In re Katz Interactive Call Processing Patent Litig., 639 F.3d 1303, 1318 (Fed.Cir.2011); IPXL Holdings, LLC v. Amazon.com, Inc., 430 F.3d 1377, 1383-84 (Fed.Cir.2005); UltimatePointer, LLC v. Nintendo Co., Ltd., 2013 WL 2325118, at *22-23 (E.D.Tex., May 28, 2013) (invalidating claims 15, 19, 20, 23, and 25 of the '321 patent because they are “not definite as to whether the claim is infringed when the pointing-device apparatus is made or sold, or when a user actually uses it to direct" }, { "docid": "11830433", "title": "", "text": "LOURIE, Circuit Judge. UltimatePointer, LLC' (“UltimatePoin-ter”) ' appeals from a final judgment in favor of Nintendo Co., Ltd. and Nintendo of America, Inc. (collectively, “Nintendo”) after the district court granted summary judgment (i) that Nintendo did not infringe claims 1, 3, 5, 6, and 12 of Ultimar tePointer’s U.S. Patent 8,049,729 (the “'729 patent”), UltimatePointer, LLC v. Nintendo Co., No. 2:14-cv00865-RSL, 2014 WL 7340604, at *1-2 (WD.Wash. Dec. 22, 2014) (“Infringement Opinion”), and (2) that claims 1, 3, 5, and 6 of the '729 patent are invalid as indefinite, UltimateP-ointer, LLC v. Nintendo Co., 73 F.Supp.3d 1305, 1308-09 (W,D.Wash.2014) (“Indefiniteness Opinion ”). For the reasons that follow, we affirm the judgment of nonin-fringement and reverse the determination of. indefiniteness. Background UltimatePointer is the owner of the '729 patent,, entitled “Easily Deployable Interactive Direct-Pointing System and Presentation Control System and Calibration Method Therefor.” The '729 patent describes a handheld pointing device that can be used to control the cursor on a projected computer screen, thereby improving a presenter’s ability to control the cursor while making a presentation to an audience. See '729 patent, col. 1 11. 24-42, Figure' 2 illustrates one configuration ‘ of the invention: \" ’’ Id. fig. 2. The pointing device (20) can measure its location and orientation relative to the projected image (70), and use that measurement to determine where on the image to display the cursor. Id. col. 7 11. 11-17.. Claim 1 is exemplary and reads as follows: 1. An apparatus for controlling a feature on a computer generated image, the apparatus comprising: a handheld device including: an image sensor, said image sensor generating data related to the distance between a first point and a second point, the first point having a predetermined relation to the computer generated image and the second point having a predetermined relation to a handheld enclosure; and a processor coupled to said han-dheld device to receive said generated data related to the distance between a first point and a second point and programmed to use the distance between the first point and the second point to control the fea-' ture" }, { "docid": "11830438", "title": "", "text": "then petitioned this court for a writ of mandamus. ,. While' the petition for mandamus was pending, proceedings continued in the Texas district court. On May 28, 2013, the district court issued an opinion construing numerous claim terms, many of which Ulti-matePointer contests on appeal. As will be explained infra, review of only one of those constructions is necessary to resolve this appeal: “handheld device” in claims 1, 3, 5j 6, and 12. The parties disputed whether “handheld device” should be limited to a direct-pointing device, or whether the term also included indirect-pointing devices. The district court adopted Nintendo’s proposed construction, construing the term to mean “handheld direct pointing device.” UltimatePointer, LLC v. Nintendo Co., No. 6:11-cv-00496-LED, 2013 WL 2325118, at *2-4 (E.D.Tex. May 28, 2013) (“Claim Construction Opinion”). The court reasoned that “[t]he specification characterizes the invention as a whole as a direct-pointing system that improves upon both indirect-pointing devices and prior direct-pointing devices,” and that indirect pointing is used only when direct pointing is impossible or undesirable. Id. at *3. Even in those situations, the district court noted, the patent indicates that indirect pointing may be used “as described in the cited prior art.” Id. Thus, the district court concluded that “although the specification mentions indirect pointing, it is clear that the invention is aimed at direct pointing.” Id. After claim construction,.the petition for .a writ of mandamus was granted, In re Nintendo Co., 544 Fed.Appx. 934 (Fed.Cir. 2013), and the action was transferred to the Washington district court. On December 22, 2014, the Washington district court then granted summary judgment that Nintendo did not infringe claims 1, 3, 5, 6, and 12 of the '729 patent. Infringement Opinion, 2014 WL 7340604, at *1. 'Although there were several bases for thé district court’s decision, the primary basis was that'the'Wii remote was not a “handheld device,” as the term had been construed by the Texas court. The Washington court began by noting that, under the Texas court’s construction, the claims required a “ ‘direct,’ as opposed to an ‘indirect,’ pointing device,” id., which the court characterized as “a product" }, { "docid": "11830443", "title": "", "text": "” Id. at 1315 (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir. 1996)). See also Trustees of Columbia Univ. v. Symantec Corp., 811 F.3d 1359, 1362-64 (Fed.Cir.2016). We have cautioned against importing limitations from the specification into the claims when performing claim construction, Innogenetics, N.V. v. Abbott Labs., 512 F.3d 1363, 1370 (Fed.Cir.2008); however, we have also recognized that “repeated derogatory statements” can indicate that the criticized technologies were not intended to be within the scope of the claims, Chicago Bd. Options Exch. v. Int’l Sec. Exch., 677 F.3d 1361, 1372 (Fed.Cir.2012). UltimatePointer argues that the Texas district court imported the “direct pointing” limitation from the specification into claims 1, 3, 5, 6, and 12. Although UltimatePointer recognizes that “specific embodiments [ip tire '729 patent] may be ‘aimed’ at direct pointing,” it argues that those embodiments do not restrict the broad claim language. Appellant’s Br. 26. The correct analysis, UltimatePointer argues, requires determining whether the patentee explicitly defined the relevant claim term or disclaimed claim scope. Because the patentee did not provide an explicit definition or disclaim subject matter, UltimateP-ointer continues, reading “direct pointing” into the claims was incorrect and the Texas district court’s construction should be reversed in favor of “a piece of equipment or system component-intended to be held in the user’s hand.” Id. at 24. UltimatePointer also argues that, even if the Washington district court was correct in construing the “handheld device” to be a direct-pointing device, the court incorrectly further limited the claim construction in resolving summary judgment by requiring that the Wii remote “placet ] the cursor on the screen at the physical point of aim.” Id. at 28-31. Nintendo responds that direct pointing “is intertwined'with every facet of the '729 patent.” Appellees’ Br. 33. At every turn, Nintendo argues, the specification of the '729 patent extolls direct pointing and disparages indirect pointing. Because the inventor described his invention as encompassing direct pointing and repeatedly criticized indirect pointing, Nintendo continues, UltimatePointer may not now claim that indirect pointing is within the claim scope. We agree with Nintendo that the district court did" }, { "docid": "4467568", "title": "", "text": "against plaintiffs infringement claims. The Court has already determined that the accused product does not infringe any of the asserted claims. See Order Granting Defendants’ Motion for Summary Judgment of Non-Infringement. Thus, there is no need to determine whether equity bars plaintiffs claims. For all of the foregoing reasons; plaintiffs motion for summary judgment is, for the most part, DENIED. The only argument on which UltimatePointer is entitled to summary judgment relates to Nintendo’s contention that claims 5, 6, and 12 of the '729 patent are invalid because the claimed “image sensor generating data including data of the calibration points” and “generating data including data of the calibration points” are not enabled. That particular invalidity argument is now foreclosed. With regards to the other invalidity defenses, Nintendo has either raised a genuine issue of material fact or has shown that, in fact, Nintendo is entitled to judgment as a matter of law. Having found that claims 1, 3, 5, and 6 of the '729 patent are indefinite, the Court hereby enters summary judgment of invalidity as to those claims. UltimatePointer’s motion for judgment on the equitable defenses is DENIED as moot. At this point in the litigation, only Nintendo’s counterclaim challenging the validity of claim 12 of the '321 patent and claim 12 of the '729 patent remains. The Court assumes that Nintendo will not pursue its counterclaim, having established that the Wii does not infringe either claim. If that assumption is incorrect, Nintendo shall notify the Court by 4:00 pm tomorrow (Tuesday, December 23, 2014) and shall provide a brief statement of how many trial days will be needed to litigate the remaining counterclaim. If no notice is filed, judgment will be entered in this matter against plaintiff and in favor of defendant. In either case, the trial currently schedule for January 5, 2014, is hereby continued. . In its opposition memorandum, Nintendo specifically requested entry of judgment on this issue in its favor. Plaintiff, having had a full and fair opportunity to respond both in writing and at oral argument, has failed to identify any factual issue precluding" }, { "docid": "11830440", "title": "", "text": "that places the cursor on the screen at the physical point of aim,” id. at *2. The Washington.court concluded that UltimatePointer had not put forth sufficient evidence to survive summary judgment because the Wii remote was an indirect pointing device, not a direct one. Id. at *1-2. Specifically, the Washington court determined that although' the Wii system can give the impression' that the cursor is placed as a result of the user’s aim,'“in reality it is the remote’s interaction with the Wii sensor bar, not the screen, that is relevant to the placement of-the cursor.” Id. at *2. Accordingly, “[i]f the -sensor bar is placed elsewhere, such as perpendicular to the screen -or behind the user, the user must aim the remote towards the sensor bar ... in order to have the cursor appear on the screen.” Id. . In a separate opinion issued on the same day, the Washington district court concluded that the claim limitation “a handheld device including: an image sensor, said image sensor generating data ...” in claims 1, 3, 5, and 6 of the '729 patent rendered those claims invalid as indefinite. Indefiniteness Opinion, 73 F.Supp.3d at 1308 (quoting '729 patent, col. 33 ll. 64-65). The court reasoned that although the claims were directed to an apparatus (the handheld device including an image sensor), the claims also contained a method step (that the image sensor generates data). The court therefore determined that it was unclear whether the system claims were infringed when the apparatus was created, or when the apparatus was put to the specified use. Id. (citing Rembrandt Data Techs., LP v. AOL, LLC, 641 F.3d 1331, 1339-40 (Fed.Cir.2011)). The district court entered judgment against UltimatePointer and for Nintendo on December 24, 2014. J.A. 34. Ultima-tePointer timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). . Discussion I. Claim Construction We first address UltimatePointer’s argument that the Texas district court erred in its construction of the term -“handheld device.” The ultimate construction of a claim term is a legal conclusion that is reviewed de novo; similarly, interpretations of “evidence intrinsic to the" }, { "docid": "11830448", "title": "", "text": "(Fed.Cir.2015). In other words, UltimatePointer’s argument that a court may only deviate from the ordinary meaning when there is an explicit definition or disclaimer does not apply because the ordinary meaning of “handheld device,” when read in the specific context of the specification of the '729 patent, is limited to a direct-pointing device. See Trustees of Columbia Univ., 811 F.3d 1363-64 (“The only meaning that matters in claim construction is the meaning in the context of the patent.”). UltimatePointer’s argument that the Washington district court impermissibly narrowed the Texas district court’s claim construction is similarly unpersuasive. The language used by the Washington court—“a product that places the cursor on the screen at the physical point of aim”—is taken directly from the patent, where the patentee defined “direct-pointing-devices” as-“devices for which the physical point-of-aim -coincides with- the item being pointed at.” '729 patent, col. 1 ll. 60-62. Accordingly, the Washington district court did not err in-its construction of “handheld device.” . II. Noninfringement UltimatePointer next argues that even if the Texas district court’s construction of “handheld device” was correct, the Washington district court nonetheless erred in granting summary judgment of nonin-fringement. We review a district court’s decision to grant summary judgment under the law of the regional circuit in which the district court sits, here, the Ninth Circuit. Classen Immunotherapies, Inc. v. Elan Pharm., Inc,, 786 F.3d 892, 896 (Fed.Cir. 2015). In the Ninth Circuit, summary judgment is reviewed de novo. Burke v. Cty. of Alameda, 586 F.3d 725, 730 (9th Cir.2009). Summary judgment .is appropriate when, drawing all reasonable inferences in favor of the nonmovant, 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); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). UltimatePointer argues that it introduced evidence sufficient to generate .a genuine dispute of material fact that the Wii remote is a.“handheld direct pointing device,” as required by the claims, because it presented evidence in the form of Nintendo’s manuals,for the Wii system, Nintendo’s technical." }, { "docid": "4467565", "title": "", "text": "image sensor, not merely a capability to generate data, before infringement occurs. UltimatePointer has therefore claimed an apparatus and its use in a single claim, giving rise to exactly the type of ambiguity that led to the invalidation of the claims in IPXL Holdings and its progeny. Because a competitor would be hard-pressed to discern whether creating the system described in the apparatus claims would constitute infringement or whether the infringement would arise when the apparatus is used to perform the specified function, claims 1, 3, 5, and 6 of the '729 patent are indefinite and invalid as a matter of law. 4. Enablement “Enablement serves the dual function in the patent system of ensuring adequate disclosure of the claimed invention and of preventing claims broader than the disclosed invention.... [A] patentee chooses broad claim language at the peril of losing any claim that cannot be enabled across its full scope of coverage.” MagSil Corp. v. Hitachi Global Storage Techs., Inc., 687 F.3d 1377, 1380-81 (Fed.Cir.2012). The enablement requirement is satisfied when, at the time the application is filed, one skilled in the art could read the specification and practice the invention without “undue experimentation.” In re Wands, 858 F.2d 731, 736-37 (Fed.Cir.1988). Nintendo, as the party seeking to invalidate plaintiffs patents, has the burden of showing by clear and convincing evidence that the claimed invention could not have been practiced at the time of filing without an amount of experimentation that went beyond routine trial and error and was instead “undue.” Cephalon, Inc. v. Watson Pharms., Inc., 707 F.3d 1330, 1336 (Fed.Cir.2013). UltimatePointer seeks summary judgment on the grounds that (a) Nintendo has failed to present any evidence tending to establish that certain limitations of claims 5, 6, and 12 of the '729 patent are not enabled, and (b) its evidence regarding other limitations is inadmissible and/or unpersuasive. Nintendo has not addressed the first argument. The Court therefore finds that there is no evidence to support Nintendo’s contention that claims 5, 6, and 12 of the '729 patent are invalid because the claimed “image sensor generating data including data" }, { "docid": "11830451", "title": "", "text": "is no genuine dispute of material fact on that point. All of the' evidence establishes that it is the relationship between the Wii remote and the sensor bar, not the Wii remote and the television screen, that allows the Wii system to function. The object of pointing, viz., the cursor, is displayed, not based on the relationship between the Wii remote and where the Wii remote is pointing on the television screen, but instead based on the relationship between the Wii remote and the sensor bar. Although the Wii system may create the illusion of direct pointing, in fact, the cursor is displayed based on an indirect, not a direct, relationship. UltimatePointer’s proffered evidence does not otherwise generate a genuine dispute of material fact. Nintendo’s manuals instruct users how to operate the Wii system, and do not describe the interaction between the Wii remote and the sensor bar; similarly, the video of the Wii’s operation simply illustrates how the Wii remote is used, not how it works. Moreover, the manner in which Nintendo referred to the Wii remote in its technical documents does not mean that the Wii remote performs direct pointing as that term is defined within the '729 patent. Finally, although UltimatePointer’s technical experts opined that the Wii remote performed direct pointing, they did not. contest the manner in which the Wii system functions. As.'it is that functionality—the interaction between the Wii remote and sensor bar—on which we rest our holding, .those expert opinions cannot give rise to a genuine dispute of material fact. To counter Nintendo’s statement that moving the sensor bar removes any approximation of direct pointing, Ultimar tePointer responds that the fact that a system can be arranged in a noninfringing manner does not avoid infringement; ie., that “imperfect practice of an invention does not avoid infringement,” Appellant’s Br. 52-53 (quoting Paper Converting Mach. Co. v. Magna-Graphics Corp., 745 F.2d 11, 20 (Fed.Cir.1984)), and that “an accused device that ‘sometimes, but not always, embodies a claim[ ] nonetheless infringes,’” id. at 53 (quoting Broadcom Corp. v. Emulex Corp., 732 F.3d 1325, 1333 (Fed.Cir.2013)). Although UltimatePointer" }, { "docid": "4467561", "title": "", "text": "explain how an invention used to “change the perspective of a background virtual reality space” of a video game, as disclosed in Ishino (Dkt. # 509-1 at ¶ 152), satisfies the claim requirement for controlling a cursor on a computer screen image. It is not clear why UltimatePointer insists that the perspective altering aspects of the Ishino reference must align with and satisfy the “controlling a cursor” function. Dr. Welch describes the Ishino system at ¶¶ 151-52 of his report, including target points on the screen and predetermined movements of the image in response to a hit. When asked at deposition to identify what portion of the Ishino reference discloses a controlling parameter related to the position of a cursor, Dr. Welch stated that “the image of the target point” described in Ishino or the possibility that there is “some sort of mark on the screen where the gun is pointed” could stand in for the cursor described in claim 12. There is, therefore, evidence in the record to support his anticipation opinion as to the Ishi-no reference. 2. Obviousness For the reasons stated in the “Order Granting in Part Plaintiffs Motions in Limine,” Dr. Welch may testify regarding obviousness to the extent those opinions are based on his anticipation analysis. Although he may not testify regarding his vague and conclusory opinion that claim 12 of the '321 patent is obvious in light of the Leichner reference, the exclusion of that evidence does not warrant summary judgment in plaintiffs favor. Dr. Welch opines that a number of references invalidate claim 12 of the '321 patent: that evidence remains and precludes summary judgment. 3. Indefiniteness A claim will be invalid for indefiniteness if it is “not amendable to construction” or is “insolubly ambiguous.” Star Scientific, Inc. v. R.J. Reynolds Tobacco Co., 655 F.3d 1364, 1373 (Fed.Cir.2011). Claims 1, 3, 5, and 6 of the '729 patent are apparatus claims disclosing “a handheld device including: an image sensor, said image sensor generating data....” The claims set forth both an apparatus — a handheld device including an image sensor — and a use" }, { "docid": "11830441", "title": "", "text": "and 6 of the '729 patent rendered those claims invalid as indefinite. Indefiniteness Opinion, 73 F.Supp.3d at 1308 (quoting '729 patent, col. 33 ll. 64-65). The court reasoned that although the claims were directed to an apparatus (the handheld device including an image sensor), the claims also contained a method step (that the image sensor generates data). The court therefore determined that it was unclear whether the system claims were infringed when the apparatus was created, or when the apparatus was put to the specified use. Id. (citing Rembrandt Data Techs., LP v. AOL, LLC, 641 F.3d 1331, 1339-40 (Fed.Cir.2011)). The district court entered judgment against UltimatePointer and for Nintendo on December 24, 2014. J.A. 34. Ultima-tePointer timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). . Discussion I. Claim Construction We first address UltimatePointer’s argument that the Texas district court erred in its construction of the term -“handheld device.” The ultimate construction of a claim term is a legal conclusion that is reviewed de novo; similarly, interpretations of “evidence intrinsic to the patent (the patent claims and specifications, along with the patent’s prosecution history),” are legal conclusions, which:are also reviewed de novo. Teva Pharm. USA, Inc. v. Sandoz, Inc., — U.S. —, 135 S.Ct. 831, 841, — L.Ed.2d (2015). Any “subsidiary factfinding” made by the., district court based on extrinsic evidence is reviewed for clear error. Id. Words in a claim “are generally given their ordinary and customary meaning”; that is, “the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention.” Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed.Cir.2005) (en banc). “Importantly, the person of ordinary, skill in the art is deemed to read the claim term not only in the context of the particular claim in which the disputed term appears, but in the context of the entire patent, including the specification.” Id. “[T]he specification ‘is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.’" }, { "docid": "11830437", "title": "", "text": "information, the console displays the cursor on the television screen. J.A. 6271 ¶¶ 5, 8. ■ In 2011,- UltimatePointer sued Nintendo and retailers of the Wii system in the United States District Court for the Eastern District of Texas (the “Texas district court”), alleging that the Wii system infringed several claims of the '729 patent, UltimatePointer originally alleged that the Wii system infringed another patent as well, but has since withdrawn those allegations and, accordingly, that patent is no longer at issue. Because Nintendo Co. is a Japanese Corporation with its headquarters in Kyoto, Japan, Nintendo of America is a Washington corporation with its headquarters in Redmond, Washington, and UltimatePointer is a Delaware corporation, Nintendo moved to sever and stay the claims against the retailers and to transfer the case against Nintendo to the United States District Court for the Western District of Washington (the “Washington district court”). In response, Ultima-tePointer accused new products, sold by the retailers but not manufactured by Nintendo, of infringement; accordingly, the motions to sever and transfer were denied. Nintendo then petitioned this court for a writ of mandamus. ,. While' the petition for mandamus was pending, proceedings continued in the Texas district court. On May 28, 2013, the district court issued an opinion construing numerous claim terms, many of which Ulti-matePointer contests on appeal. As will be explained infra, review of only one of those constructions is necessary to resolve this appeal: “handheld device” in claims 1, 3, 5j 6, and 12. The parties disputed whether “handheld device” should be limited to a direct-pointing device, or whether the term also included indirect-pointing devices. The district court adopted Nintendo’s proposed construction, construing the term to mean “handheld direct pointing device.” UltimatePointer, LLC v. Nintendo Co., No. 6:11-cv-00496-LED, 2013 WL 2325118, at *2-4 (E.D.Tex. May 28, 2013) (“Claim Construction Opinion”). The court reasoned that “[t]he specification characterizes the invention as a whole as a direct-pointing system that improves upon both indirect-pointing devices and prior direct-pointing devices,” and that indirect pointing is used only when direct pointing is impossible or undesirable. Id. at *3. Even in those" }, { "docid": "11830436", "title": "", "text": "1 11. 50-57. Nintendo manufactures and sells the Wii video game system. The Wii system includes, among other things, a handheld Wii remote, a Wii console, and a sensor bar, as shown below: Joint App. (“J.A.”) 14970. ' The Wii console is a special-purpose computer that runs games and various other applications; it also provides audio and , video output to a connected television. Appellees’ Br. 14. The sensor bar sits above or below the television and, contrary to its name, simply emits infrared light. J.A. 13667 ¶25. The Wii remote is the primary controller for the Wii system, and allows a user to interact with and play Wii games. J.A. 13667 ¶ 25. The Wii remote can be used to control an on-screen cursor through the interaction of the remote and the sensor bar. J.A. 6272 ¶¶ 5, 7, 8. The front of the Wii remote detects the infrared light emitted by the sensor bar, and transmits information regarding that light to the Wii console. J.A. 6271 ¶¶ 5, 8. Based on the received information, the console displays the cursor on the television screen. J.A. 6271 ¶¶ 5, 8. ■ In 2011,- UltimatePointer sued Nintendo and retailers of the Wii system in the United States District Court for the Eastern District of Texas (the “Texas district court”), alleging that the Wii system infringed several claims of the '729 patent, UltimatePointer originally alleged that the Wii system infringed another patent as well, but has since withdrawn those allegations and, accordingly, that patent is no longer at issue. Because Nintendo Co. is a Japanese Corporation with its headquarters in Kyoto, Japan, Nintendo of America is a Washington corporation with its headquarters in Redmond, Washington, and UltimatePointer is a Delaware corporation, Nintendo moved to sever and stay the claims against the retailers and to transfer the case against Nintendo to the United States District Court for the Western District of Washington (the “Washington district court”). In response, Ultima-tePointer accused new products, sold by the retailers but not manufactured by Nintendo, of infringement; accordingly, the motions to sever and transfer were denied. Nintendo" }, { "docid": "11830439", "title": "", "text": "situations, the district court noted, the patent indicates that indirect pointing may be used “as described in the cited prior art.” Id. Thus, the district court concluded that “although the specification mentions indirect pointing, it is clear that the invention is aimed at direct pointing.” Id. After claim construction,.the petition for .a writ of mandamus was granted, In re Nintendo Co., 544 Fed.Appx. 934 (Fed.Cir. 2013), and the action was transferred to the Washington district court. On December 22, 2014, the Washington district court then granted summary judgment that Nintendo did not infringe claims 1, 3, 5, 6, and 12 of the '729 patent. Infringement Opinion, 2014 WL 7340604, at *1. 'Although there were several bases for thé district court’s decision, the primary basis was that'the'Wii remote was not a “handheld device,” as the term had been construed by the Texas court. The Washington court began by noting that, under the Texas court’s construction, the claims required a “ ‘direct,’ as opposed to an ‘indirect,’ pointing device,” id., which the court characterized as “a product that places the cursor on the screen at the physical point of aim,” id. at *2. The Washington.court concluded that UltimatePointer had not put forth sufficient evidence to survive summary judgment because the Wii remote was an indirect pointing device, not a direct one. Id. at *1-2. Specifically, the Washington court determined that although' the Wii system can give the impression' that the cursor is placed as a result of the user’s aim,'“in reality it is the remote’s interaction with the Wii sensor bar, not the screen, that is relevant to the placement of-the cursor.” Id. at *2. Accordingly, “[i]f the -sensor bar is placed elsewhere, such as perpendicular to the screen -or behind the user, the user must aim the remote towards the sensor bar ... in order to have the cursor appear on the screen.” Id. . In a separate opinion issued on the same day, the Washington district court concluded that the claim limitation “a handheld device including: an image sensor, said image sensor generating data ...” in claims 1, 3, 5," }, { "docid": "11830455", "title": "", "text": "about the scope of the invention with reasonable certainty.” Nautilus v. Biosig Instruments, Inc., — U.S. —, 134 S.Ct. 2120, 2129, 189 L.Ed.2d 37 (2014). We have held that “a single claim covering both an apparatus and a method of use of that apparatus” fails to meet the requirements of § 112 because “it is unclear whether- infringement- . occurs when one creates a[n- infringing] system, or whether infringement occurs when .the user actually.uses [the system in an infringing manner].” IPXL Holdings, LLC v. Amazon.com, Inc., 430 F.3d 1377, 1384 (Fed.Cir.2005). Nonetheless, “apparatus claims are not necessarily indefinite for using functional, language.” Microprocessor Enhancement Corp. v. Texas Instruments Inc., 520 F.3d 1367, 1375 (Fed.Cir. 2008) (“MEC ”). If an apparatus claim “is clearly limited to a[n apparatus] possessing the recited structure and capable of performing the recited functions,” then the claim is not invalid as indefinite. Id. (emphasis in original). The district court concluded that claims 1, 3, 5, .and 6 of the '729 patent are directed to both an apparatus and a method for using that apparatus because they claim “a handheld device including: an image sensor, said image sensor generating data” and other similar “generating data” .limitations. . Indefiniteness Opinion, 73 F,.Supp.3d at 1308 (quoting '729 patent, col. 33 ll. 64-65). The court concluded that the inclusion of the “image sensor generating data” limitation made it unclear whether infringement occurred when ah infringing system is assembled, or when “the apparatus is used to perform the specified function.” Id. Accordingly, the court concluded that the' claims were invalid as indefinite. .UltimatePointer argues that the claims are not invalid as indefinite because they simply claim a, handheld device with an image sensor capable of generating data, and recite sufficient structure for,that, ca pability. UltimatePointer contends that because claims 1, 3, 5, and 6 of the '729 patent claim a structure in connection with the claimed functionality, the claims are more similar to those in MEC. Id. 60-62. Nintendo responds that the claims do not clearly tie the functional language to the device’s capability. Nintendo argues that the district court’s decision" }, { "docid": "11830452", "title": "", "text": "the Wii remote in its technical documents does not mean that the Wii remote performs direct pointing as that term is defined within the '729 patent. Finally, although UltimatePointer’s technical experts opined that the Wii remote performed direct pointing, they did not. contest the manner in which the Wii system functions. As.'it is that functionality—the interaction between the Wii remote and sensor bar—on which we rest our holding, .those expert opinions cannot give rise to a genuine dispute of material fact. To counter Nintendo’s statement that moving the sensor bar removes any approximation of direct pointing, Ultimar tePointer responds that the fact that a system can be arranged in a noninfringing manner does not avoid infringement; ie., that “imperfect practice of an invention does not avoid infringement,” Appellant’s Br. 52-53 (quoting Paper Converting Mach. Co. v. Magna-Graphics Corp., 745 F.2d 11, 20 (Fed.Cir.1984)), and that “an accused device that ‘sometimes, but not always, embodies a claim[ ] nonetheless infringes,’” id. at 53 (quoting Broadcom Corp. v. Emulex Corp., 732 F.3d 1325, 1333 (Fed.Cir.2013)). Although UltimatePointer is correct in principle, that principle does not apply to the facts here. Paper Converting, Broadcom, and similar cases apply when an accused system infringes in one manner of operation, but does not infringe in another manner. See, e.g., Bell Commc’ns Research, Inc. v. Vitalink Commc’ns Corp., 55 F.3d 615, 622-23 (Fed.Cir.1995). In the present case, the Washington district court found, and we agree, that the Wii system does not infringe in any arrangement. Infringement Opinion, 2014 WL 7340604, at *2. That the Wii system does not approximate direct pointing when the sensor bar is moved simply shows that the Wii remote performs indirect, - not direct, -pointing. Accordingly, the district court did not err in granting summary judgment of noninfringement. For the reasons explained previously, the Texas district court did not err in construing the term “handheld device,” and the Washington district court did not err in granting summary judgment-of non-infringement based on that construction. Because those determinations entirely resolve UltimatePointer’s infringement appeal, we need not, and do not, address UltimatePointer’s challenges to other" }, { "docid": "11830444", "title": "", "text": "an explicit definition or disclaim subject matter, UltimateP-ointer continues, reading “direct pointing” into the claims was incorrect and the Texas district court’s construction should be reversed in favor of “a piece of equipment or system component-intended to be held in the user’s hand.” Id. at 24. UltimatePointer also argues that, even if the Washington district court was correct in construing the “handheld device” to be a direct-pointing device, the court incorrectly further limited the claim construction in resolving summary judgment by requiring that the Wii remote “placet ] the cursor on the screen at the physical point of aim.” Id. at 28-31. Nintendo responds that direct pointing “is intertwined'with every facet of the '729 patent.” Appellees’ Br. 33. At every turn, Nintendo argues, the specification of the '729 patent extolls direct pointing and disparages indirect pointing. Because the inventor described his invention as encompassing direct pointing and repeatedly criticized indirect pointing, Nintendo continues, UltimatePointer may not now claim that indirect pointing is within the claim scope. We agree with Nintendo that the district court did not err in construing “handheld device” as “handheld direct pointing device.” The specification repeatedly emphasizes that the invention is directed to a direct-pointing system. The title of the invention éxplicitly states that the invention is an “Easily-Deployable Interactive Direct Pointing System ...” (emphasis added). See Exxon Chem. Patents, Inc. v. Lubrizol Corp., 64 F.3d 1553, 1557 (Fed.Cir.1995) (using patent title- to inform claim construction). The specification also repeatedly emphasizes that the system is for interacting with a presentation in a “direct-pointing” manner, '729 patent, col. 14 ll. 25-28, 33-36, 46-49; col. 15 ll. 3-6; col. 20 ll. 32-35, and even describes the handheld device as a “direct-pointing device,” id. col. 2411. 45-46, 51-53; col. 31 ll.21-24. The written description also emphasizes how direct pointing is superior to indirect pointing., In the “Background of the Invention,” the patentee notes that “pointing devices may be classified” as either direct or indirect-pointing- devices, id. col. 1 ll. 58-60, and that “[i]t. needs no argument that direct-pointing systems are more natural to humans, allowing faster and more accurate pointing" }, { "docid": "11830434", "title": "", "text": "presentation to an audience. See '729 patent, col. 1 11. 24-42, Figure' 2 illustrates one configuration ‘ of the invention: \" ’’ Id. fig. 2. The pointing device (20) can measure its location and orientation relative to the projected image (70), and use that measurement to determine where on the image to display the cursor. Id. col. 7 11. 11-17.. Claim 1 is exemplary and reads as follows: 1. An apparatus for controlling a feature on a computer generated image, the apparatus comprising: a handheld device including: an image sensor, said image sensor generating data related to the distance between a first point and a second point, the first point having a predetermined relation to the computer generated image and the second point having a predetermined relation to a handheld enclosure; and a processor coupled to said han-dheld device to receive said generated data related to the distance between a first point and a second point and programmed to use the distance between the first point and the second point to control the fea-' ture on the image. Id. col. 33 1. 62-col 34 1. 8. . , The specification describes two types of pointing devices: direct-pointing devices and indirect-pointing devices. Id. col. 11. 58-col. 2 1. 3. Indirect-pointing, devices, for example, computer mice, are those “where the object of pointing (e.g., a cursor) bears an indirect relationship to the physical point-of-aim of the pointing device.” Id. col. 1 11. 64-67. Direct-pointing devices,- in contrast,\"are devices “for which the physical' point-of-aim coincides with the item being pointed at, i.e., it lies dn the line-of-sight.” Id. col. 1 11. 61-63. Examples of direct-pointing devices “include the so-called laser pointer’ and 'the' human pointing finger.” Id. col. 111. 63-64. According to the patentee, direct-pointing systems are “more natural to humans, allowing faster and more accurate pointing actions.” Id. col. 2 11. 2-3. “[Ijndirect-pointing methods ... do not provide the speed and intuitiveness afforded by direct-pointing systems.” Id. col. 2 11. 42-43. In previous presentation systems, the cursor was often controlled by a computer mouse; that is, an indirect-pointing device. See id. col." }, { "docid": "4467558", "title": "", "text": "issued patent are presumed to be valid. See PharmaStem Therapeutics, Inc. v. ViaCell, Inc., 491 F.3d 1342, 1366 (Fed.Cir.2007) (acknowledging “the deference that is due to a qualified government agency presumed to have done its job”). The Federal Circuit therefore requires that an accused infringer prove invalidity by clear and convincing evidence. Creative Compounds, LLC v. Starmark Labs., 651 F.3d 1303, 1310 (Fed.Cir.2011). 1. Anticipation “A patent claim is anticipated if each and every limitation is found in a single prior art reference.” OSRAM Sylvania, Inc. v. Am. Induction Techs., Inc., 701 F.3d 698, 704 (Fed.Cir.2012). Plaintiff argues that summary judgment regarding five of the eight prior art references relied upon by Nintendo is appropriate because Nintendo’s expert, Dr. Gregory F. Welch, acknowledges that the references lack at least one of the limitations claimed in the '321 and/or '729 patents. Using the Leichner reference as an example, Dr. Welch opines, based on the governing claim construction and his understanding of the prior art, that Leichner does not disclose a direct pointing device as required by claim 12 of the '321 patent or claims 1, 3, 5, 6, or 12 of the '729 patent. Dkt. # 509-1 at ¶¶ 162 and 178. Thus, left to his own devices, Dr. Welch would not say that Leichner anticipates those claims. In the context of this litigation, however, Dr. Welch’s opinions are offered in response to plaintiffs infringement contentions and must take those contentions into consideration in order to be useful. With regards to Leichner, UltimatePointer’s infringement contentions against the accused product suggest that it would understand Leichner as disclosing a direct pointing device. Dr. Welch posits that if that were the case, then Leichner contains the “missing” limitation and the claims asserted in this case would be anticipated. To be clear, Dr. Welch does not believe that the Leichner reference or the accused product contain the necessary direct pointing device. But if UltimatePointer were able to convince the factfinder that the Wii does, indeed, practice a direct pointing de vice as that term was construed in this litigation, then it is his opinion" } ]

[ { "docid": "22660140", "title": "", "text": "skilled in the art would interpret the claims, may also be used.” Fonar Corp. v. Johnson & Johnson, 821 F.2d 627, 631 (Fed.Cir.1987). In construing the claims in this case, all these sources, as well as extrinsic evidence in the form of West-view’s sales literature, were included in the record of the trial court proceedings. Claims must be read in view of the specification, of which they are a part. Autogiro, 384 F.2d at 397, 155 USPQ at 702; see Winans v. Denmead, 56 U.S. (15 How.) at 338; Bates v. Coe, 98 U.S. at 38-39. The specification contains a -written description of the invention that must enable one of ordinary skill in the art to make and use the invention. For claim construction purposes, the description may act as a sort of dictionary, which explains the invention and may define terms used in the claims. See In re Vogel, 422 F.2d 438, 441, 164 USPQ 619, 621 (CCPA 1970) (“Occasionally the disclosure will serve as a dictionary for terms appearing in the claims, and in such instances the disclosure may be used in interpreting the coverage of the claim”)- As we have often stated, a patentee is free to be his own lexicographer. Autogiro, 384 F.2d at 397, 155 USPQ at 702. The caveat is that any special definition given to a word must be clearly defined in the specification. Intellicall, Inc. v. Phonometrics, Inc., 952 F.2d 1384, 1388, 21 USPQ2d 1383, 1386 (Fed.Cir.1992). The written description part of the specification itself does not delimit the right to exclude. That is the function and purpose of claims. To construe claim language, the court should also consider the patent’s prosecution history, if it is in evidence. Graham v. John Deere Co., 383 U.S. 1, 33, 86 S.Ct. 684, 701, 15 L.Ed.2d 545, 148 USPQ 459, 473 (1966). This “undisputed public record” of proceedings in the Patent and Trademark Office is of primary significance in understanding the claims. See Autogiro, 384 F.2d at 397, 155 USPQ at 702 (the “file wrapper” is “part[] of the patent”). The court has broad power" } ]

[ { "docid": "9897467", "title": "", "text": "of ordinary skill in the art. See, e.g., Teleflex, 299 F.3d at 1325, 63 USPQ2d at 1380. The ordinary and customary meaning of a claim term may be determined by reviewing a variety of sources. Some of these sources include the claims themselves, see Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357, 52 USPQ2d 1029, 1033 (Fed.Cir.1999); dictionaries and treatises, Texas Digital Systems, Inc. v. Telegenix, Inc., 308 F.3d 1193, 1202, 64 USPQ2d 1812, 1818 (Fed.Cir.2002); and the written description, the drawings, and the prosecution history, see, e.g., DeMarini Sports, Inc. v. Worth, Inc., 239 F.3d 1314, 1324, 57 USPQ2d 1889, 1894 (Fed.Cir.2001). The written description must be examined in every case, because it is relevant not only to aid in the claim construction analysis, but also to determine if the presumption of ordinary and customary meaning is rebutted. See Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1250, 48 USPQ2d 1117, 1122 (Fed.Cir.1998). The presumption will be over come where the patentee, acting as his or her own lexicographer, has clearly set forth a definition of the term different from its ordinary and customary meaning. See In re Paulsen, 30 F.3d 1475, 1480, 31 USPQ2d 1671, 1674 (Fed.Cir.1994); Intellicall, Inc. v. Phonometrics, Inc., 952 F.2d 1384, 1387-88, 21 USPQ2d 1383, 1386 (Fed.Cir.1992). The presumption also will be rebutted if the inventor has disavowed or disclaimed scope of coverage, by using words or expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope. See Teleflex, 299 F.3d at 1324, 63 USPQ2d at 1380. II At the outset, we note that although the disputed claim language is characterized by both the parties and the district court as “remote location,” these words find context in the surrounding phrase “remote location beyond a range of direct manual contact.” While certain terms may be at the center of the claim construction debate, the context of the surrounding words of the claim also must be considered in determining the ordinary and customary meaning of those terms. See Hockerson-Halberstadt, Inc. v. Converse Inc., 183 F.3d 1369, 1374, 51 USPQ2d" }, { "docid": "9897466", "title": "", "text": "outside of the operating room. We agree with Brookhill. I We begin our claim construction analysis with the words of the claim. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582, 39 USPQ2d 1573, 1576 (Fed.Cir.1996). “In construing claims, the analytical focus must begin and remain centered on the language of the claims themselves, for it is that language that the patentee chose to use to ‘particularly point[ ] out and distinctly claim[ ] the subject matter which the patentee regards as his invention.’ 35 U.S.C. § 112, ¶ 2.” Interactive Gift Express, Inc. v. Compuserve, Inc., 256 F.3d 1323, 1331, 59 USPQ2d 1401, 1406 (Fed.Cir.2001). The words used in the claims are examined through the viewing glass of a person skilled in the art. Tegal Corp. v. Tokyo Electron Am., Inc., 257 F.3d 1331, 1342, 59 USPQ2d 1385, 1393 (Fed.Cir.2001). In the absence of an express intent to impart a novel meaning to the claim terms, the words are presumed to take on the ordinary and customary meanings attributed to them by those of ordinary skill in the art. See, e.g., Teleflex, 299 F.3d at 1325, 63 USPQ2d at 1380. The ordinary and customary meaning of a claim term may be determined by reviewing a variety of sources. Some of these sources include the claims themselves, see Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357, 52 USPQ2d 1029, 1033 (Fed.Cir.1999); dictionaries and treatises, Texas Digital Systems, Inc. v. Telegenix, Inc., 308 F.3d 1193, 1202, 64 USPQ2d 1812, 1818 (Fed.Cir.2002); and the written description, the drawings, and the prosecution history, see, e.g., DeMarini Sports, Inc. v. Worth, Inc., 239 F.3d 1314, 1324, 57 USPQ2d 1889, 1894 (Fed.Cir.2001). The written description must be examined in every case, because it is relevant not only to aid in the claim construction analysis, but also to determine if the presumption of ordinary and customary meaning is rebutted. See Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1250, 48 USPQ2d 1117, 1122 (Fed.Cir.1998). The presumption will be over come where the patentee, acting as his or her own lexicographer, has" }, { "docid": "479050", "title": "", "text": "the district court’s use of the phrase “illumination source” to be harmless. We also reject Scanner’s argument that the district court failed to take into account the fact that claim 1 of the '756 patent is an apparatus claim, while claim 1 of the '757 patent is a method claim. Indeed, the district court demonstrated that it appreciated the difference between the apparatus and method claims during oral argument, when it noted, “there certainly is a difference between the phrase ‘illumination apparatus’ and the word ‘illuminating’.'” The fact that the district court construed both terms together in no way establishes that the district court failed to appreciate the distinction between the apparatus and method claims. Indeed, we find that the limitations “an illumination source” and “illuminating” may properly be construed together because they refer to corresponding portions of the apparatus and steps of the method. The concurrent treatment of these terms is particularly appropriate where the parties themselves referred to the terms “an illumination apparatus” and “illuminating” concomitantly. III. The language of the claim defines the boundary of its scope. Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1324 (Fed.Cir.2002). Accordingly, “the claim construction inquiry ... begins and ends in all cases with the actual words of the claim.” Id. (quoting Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1248 (Fed.Cir.1998)). Claim terms must be construed as they would be understood by a person of ordinary skill in the art to which the invention pertains. Specialty Composites v. Cabot Corp., 845 F.2d 981, 986 (Fed.Cir.1988). “The words used in the claim[ ] are interpreted in light of the intrinsic evidence of record, including the written description, the drawings, and the prosecution history, if in evidence.” Teleflex, 299 F.3d at 1324. “This court has repeatedly emphasized that an indefinite article ‘a’ or ‘an’ in patent parlance carries the meaning of ‘one or more’ in open-ended claims containing the transitional phrase ‘comprising’.' Unless the claim is specific as to the number of elements, the article ‘a’ receives a singular interpretation only in rare circumstances when the patentee evinces" }, { "docid": "20493598", "title": "", "text": "both high tensile strength and high impact strength. (Id. at 1:38-2:5.) DISCUSSION I. The Legal Principles of Claim Construction Claim construction is a question of law. Markman v. Westview Instruments, Inc., 52 F.3d 967, 977-78 (Fed.Cir.1995), aff'd, 517 U.S. 370, 388-90, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). When construing the claims of a patent, a court considers the literal language of the claim, the patent specification and the prosecution history. Markman, 52 F.3d at 979. Of these sources, the specification is “always highly relevant to the claim construction analysis. Usually it is dispositive; it is the single best guide to the meaning of a disputed term.” Phillips v. AWH Corporation, 415 F.3d 1303, 1312-17 (Fed.Cir.2005)(quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996)). However, “[e]ven when the specification describes only a single embodiment, the claims of the patent will not be read restrictively unless the patentee has demonstrated a clear intention to limit the claim scope using ‘words or expressions of manifest exclusion or restriction.’ ” Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed.Cir.2004)(quoting Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1327 (Fed.Cir.2002)). A court may consider extrinsic evidence, including expert and inventor testimony, dictionaries, and learned treatises, in order to assist it in understanding the underlying technology, the meaning of terms to one skilled in the art and how the invention works. Phillips, 415 F.3d at 1318-19; Markman, 52 F.3d at 979-80. However, extrinsic evidence is considered less reliable and less useful in claim construction than the patent and its prosecution history. Phillips, 415 F.3d at 1318-19 (discussing “flaws” inherent in extrinsic evidence and noting that extrinsic evidence “is unlikely to result in a reliable interpretation of a patent claim scope unless considered in the context of intrinsic evidence”). In addition to these fundamental claim construction principles, a court should also interpret the language in a claim by applying the ordinary and accustomed meaning of the words in the claim. Envirotech Corp. v. Al George, Inc., 730 F.2d 753, 759 (Fed.Cir.1984). If the patent inventor clearly supplies a different meaning, however," }, { "docid": "22069214", "title": "", "text": "the written description, but (b) one may look to the written description to define a term already in a claim limitation, for a claim must be read in view of the specification of which it is a part. These two rules lay out the general relationship between the claims and the written description. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582, 39 USPQ2d 1573, 1576 (Fed.Cir.1996); Markman v. Westview Instruments, Inc., 52 F.3d 967, 979-80, 34 USPQ2d 1321, 1329-30 (Fed.Cir.1995) (in banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577, 38 USPQ2d 1461 (1996). As rales at the core of claim construction methodology, they provide guideposts for a spectrum of claim construction problems. Although no canon of construction is absolute in its application, these two rales share two underlying propositions. First, it is manifest that a claim must explicitly recite a term in need of definition before a definition may enter the claim from the written description. This is so because the claims define the scope of the right to exclude; the claim construction inquiry, therefore, begins and ends in all cases with the actual words of the claim, see Abtox, Inc. v. Exitron Corp., 122 F.3d 1019, 1023, 43 USPQ2d 1545, 1548 (Fed.Cir.1997) (“[T]he language of the claim frames and ultimately resolves all issues of claim interpretation.”); Bell Communications Research, Inc. v. Vitalink Communications Corp., 55 F.3d 615, 619-20, 34 USPQ2d 1816, 1819 (Fed.Cir.1995). The intrinsic evidence, and, in some cases, the extrinsic evidence, can shed light on the meaning of the terms recited in a claim, either by confirming the ordinary meaning of the claim terms or by providing special meaning for claim terms. See Vitronics, 90 F.3d at 1583, 39 USPQ2d at 1577. However, the resulting claim interpretation must, in the end, accord with the words chosen by the patentee to stake out the boundary of the claimed property. See Thermalloy, Inc. v. Aavid Eng’g, Inc., 121 F.3d 691, 693, 43 USPQ2d 1846, 1848 (Fed.Cir.1997) (“[Tjhroughout the interpretation process, the focus remains on the meaning of claim language.”). Thus, a party wishing to" }, { "docid": "14585707", "title": "", "text": "light of the intrinsic record evidence, including the written description, drawings, and the prosecution history. Teleflex, Inc. v. Ficosa North America Corp., 299 F.3d 1313, 1324 (Fed. Cir.2002). Unless otherwise compelled, the court must give full effect to the ordinary and accustomed meaning of claim terms. Johnson Worldwide Assocs., Inc., v. Zebco Corp., 175 F.3d 985, 989 (Fed.Cir. 1999). A patentee may be his or her own lexicographer and use terms in a manner different from their ordinary meaning, and in those cases where the special definition differs from the meaning it would otherwise possess, the patentee’s lexicography governs. Phillips, 415 F.3d at 1316; see also Abbott Labs. v. Novopharm Ltd., 323 F.3d 1324, 1330 (Fed.Cir.2003)(allowing the entry of a definition of a claim term other than its ordinary and customary meaning where the patentee “has chosen to be his or her own lexicographer by clearly setting forth an explicit definition for a claim term”). The court cannot read into a claim a limitation that appears in the specification but not in the claim itself. Phillips, 415 F.3d at 1323. “[T]he general principle is that limitations from the specification are not to be read into the claims.” Sjolund v. Musland, 847 F.2d 1573, 1582 (Fed.Cir.1988). Particularly, the court should not limit the invention to the specific examples or preferred embodiment found in the specification. Phillips, 415 F.3d at 1323. The “repetition in the ymt-ten description of a preferred aspect of a claim invention does not limit the scope of an invention that is described in the claims in different and broader terms.” Laitram Corp. v. NEC Corp., 163 F.3d 1342, 1348 (Fed.Cir.1998). See also Phillips, 415 F.3d at 1323 (describing how to distinguish between a best mode disclosure and a limitation disclosure in a specification). Where the specification makes clear that the invention does not include a particular feature, that feature is deemed to be outside the reach of the claims of the patent, even' though the language of the claims, read without reference to the specification, might be considered broad enough to encompass the feature in question. See SciMed" }, { "docid": "11168168", "title": "", "text": "extrinsic evidence to contradict the meaning of the claims.”) (citing Pitney Bowes, Inc., v. Hewlett-Packard Co., 182 F.3d 1298, 1308-9 (Fed.Cir.1999)). Claim construction is a question of law for the court, see Markman, 517 U.S. at 372, 116 S.Ct. 1384, and the Federal Circuit has outlined procedural steps and rules to guide district courts in the task. A) “Standard” claim construction “Claim interpretation is the process of giving proper meaning to the claim language,” Abtox, Inc. v. Exitron Corp., 122 F.3d 1019, 1023 (Fed.Cir.1997), and claim construction always starts with the language of the claim itself. See Vitronics Corp., 90 F.3d at 1583; see also Digital Biometrics, Inc. v. Identix, Inc., 149 F.3d 1335, 1344 (Fed.Cir.1998) (“The actual words of the claim are the controlling focus.”) (citing Thermalloy, Inc. v. Aavid Eng’g, Inc., 121 F.3d 691, 693 (Fed.Cir.1997)); Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1248 (Fed.Cir.1998) (stating that claim construction “begins and ends in all cases with the actual words of the claim”). Absent the patentee’s express intent to impart a novel meaning, terms in a claim are to be given their ordinary meaning as understood by one of ordinary skill in the art. See Opti cal Disc Corp. v. Del Mar Avionics, 208 F.3d 1324, 1334 (Fed.Cir.2000) (citing Kegel Co. v. AMF Bowling, Inc., 127 F.3d 1420, 1427 (Fed.Cir.1997) and Hoechst Celanese Corp. v. BP Chems. Ltd., 78 F.3d 1575, 1578 (Fed.Cir.1996) (“A technical term used in a patent document is interpreted as having the meaning that it would be given by persons experienced in the field of the invention, unless it is apparent from the patent and the prosecution history that the inventor used the term with a different meaning.”)); accord, Doyle, 2000 WL 1608826 at *5; Markman, 52 F.3d at 986 (“The focus is on the objective test of what one of ordinary skill in the art at the time of the invention would have understood the term to mean.”). “There is a ‘heavy presumption in favor of the ordinary meaning of claim language.’” Kraft Foods, Inc. v. Int’l Trading Co., 203 F.3d" }, { "docid": "11368083", "title": "", "text": "to the non-movant, there is no genuine issue whether the accused device is encompassed by the claims.” Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1304 (Fed.Cir.1999). On appeal, Searfoss challenges both the claim construction ordered by the district court and the resultant grant of summary judgment of non-infringement. We address these challenges below. I. The language of the claim defines the boundary of its scope. Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1324 (Fed.Cir.2002). Accordingly, “the claim construction inquiry ... begins and ends in all cases with the actual words of the claim.” Id. (quoting Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1248 (Fed.Cir.1998)). Claim terms must be construed as they would be understood by a person of ordinary skill in the art to which the invention pertains. Specialty Composites v. Cabot Corp., 845 F.2d 981, 986 (Fed.Cir.1988). What the claim terms would mean to laymen is irrelevant. “The words used in the claim[ ] are interpreted in light of the intrinsic evidence of record, including the written description, the drawings, and the prosecution history, if in evidence.” Teleflex, 299 F.3d at 1324. As a threshold matter, we agree with both parties that the “actuation means” limitation of claim 3 is not a means-plus-function limitation, as the district court found. The claim specifically recites the structure that performs the claimed function (“said actuation means including first and second pivot connections respectively between said first and second tension bail legs and a midpoint on said respective first and second extension bail legs”), thus overcoming the presumption resulting from use of the word “means.” Though we find that the district court erred in construing the “actuation means” limitation to be a means-plus-function limitation, the error was harmless. Indeed both parties agree that it was harmless because they agree the scope of the claim would be identical, whether under the doctrine of equivalents or under the literal scope of the means-plus-function claim. With regard to the substance of the district court’s claim construction, Searfoss argues that the district court erred in not giving the term" }, { "docid": "2496902", "title": "", "text": "of usage create a “heavy presumption” that claim terms carry their accustomed meaning in the relevant community at the relevant time. CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed.Cir.2002) (citing Johnson Worldwide Assocs., Inc. v. Zebco Corp., 175 F.3d 985, 989 (Fed.Cir.1999)). The patent applicant may also define a claim term in the specification “in a manner inconsistent with its ordinary meaning.” Boehringer Ingelheim Vetmedica, Inc. v. Schering-Plough Corp., 320 F.3d 1339, 1347 (Fed.Cir.2003) (citing Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313 at 1325-26 (Fed.Cir.2002)). In other words, a patent applicant may define a term differently from its general usage in the relevant community, and thus expand or limit the scope of the term in the context of the patent claims. Id. Another tool to supply proper context for claim construction is the prosecution history. As in the case of the specification, a patent applicant may define a term in prosecuting a patent. CCS Fitness, 288 F.3d at 1366 (a “claim term will not receive its ordinary meaning if the patentee acted as his own lexicographer and clearly set forth a definition of the disputed claim term” in the specification or prosecution history). This court also acknowledges the relevance of extrinsic evidence, often presented in the form of expert testimony. Vitronics, 90 F.3d at 1585; Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1309 (Fed.Cir.1999) (“[CJonsultation of extrinsic evidence is particularly appropriate to ensure that [the court’s] understanding of the technical aspects of the patent is not entirely at variance with the understanding of one skilled in the art.”). Other useful references for construing disputed terms include dictionary definitions and treatises. See, e.g., Tex. Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1202 (Fed.Cir.2002) (“[Dictionaries, encyclopedias and treatises are particularly useful resources to assist the court in determining the ordinary and customary meanings of claim terms.”). As noted before, these claim construction aids inform the court’s task of ascertaining the meaning of the claim terms to one of ordinary skill in the art at the time of invention. Moba v. Diamond Automation," }, { "docid": "22780957", "title": "", "text": "the district court’s construction of “clip (28)” or Teleflex’s preferred construction, substantial evidence appears in the record supporting the jury’s verdict of infringement of the '182 patent. We address each of the first and second steps of the infringement analysis below. Regarding the first step, we conclude that claim terms take on their ordinary and accustomed meanings unless the patentee demonstrated an intent to deviate from the ordinary and accustomed meaning of a claim term by redefining the term or by characterizing the invention in the intrinsic record using words or expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope. Regarding the second step, substantial evidence appears in the record to support the jury’s verdict of infringement, and therefore we affirm the district court’s denial of Ficosa’s motion for JMOL. A. Claim Construction We begin our claim construction analysis, as always, with the words of the claim. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582, 39 USPQ2d 1573, 1576 (Fed.Cir.1996). The claim language defines the bounds of claim scope. Bell Communications Research, Inc. v. Vitalink Communications Corp., 55 F.3d 615, 619-20, 34 USPQ2d 1816, 1819 (Fed.Cir.1995). “[T]he claims define the scope of the right to exclude; the claim construction inquiry, therefore, begins and ends in all cases with the actual words of the claim.” Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1248, 48 USPQ2d 1117, 1120 (Fed.Cir.1998). “[T]he language of the claim frames and ultimately resolves all issues of claim interpretation.” Abtox, Inc. v. Exitron Corp., 122 F.3d 1019, 1023, 43 USPQ2d 1545, 1548 (Fed.Cir.1997). The words used in the claims are interpreted in light of the intrinsic evidence of record, including the written description, the drawings, and the prosecution history, if in evidence. Interactive Gift Express, Inc. v. CompuServe, Inc., 256 F.3d 1323, 1331, 59 USPQ2d 1401, 1407 (Fed.Cir.2001). The intrinsic evidence may provide context and clarification about the meaning of claim terms. York Prods., Inc. v. Cent. Tractor Farm, & Family Ctr., 99 F.3d 1568, 1572, 40 USPQ2d 1619, 1622 (Fed.Cir.1996). “Such intrinsic evidence is the most significant source" }, { "docid": "14585706", "title": "", "text": "24 L.Ed. 235 (1876)). In most instances, “the ordinary meaning of claim language as understood by a person of skill in the art” is “readily apparent even to lay judges, and claim construction in such cases involves little more than the application of the widely accepted meaning of commonly understood words.” Phillips, 415 F.3d at 1314. When a claim term cannot be easily discerned, the court should turn to “the claims themselves, the remainder of the specification, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art.” Id. (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., 381 F.3d 1111, 1116 (Fed.Cir.2004)). The court must presume that the terms in the claim mean what they say. Comark Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1186 (Fed.Cir.1998); See Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1248 (Fed.Cir. 1998). The entire claim must be interpreted in context, not as single elements in isolation. The words used in the claims are interpreted in light of the intrinsic record evidence, including the written description, drawings, and the prosecution history. Teleflex, Inc. v. Ficosa North America Corp., 299 F.3d 1313, 1324 (Fed. Cir.2002). Unless otherwise compelled, the court must give full effect to the ordinary and accustomed meaning of claim terms. Johnson Worldwide Assocs., Inc., v. Zebco Corp., 175 F.3d 985, 989 (Fed.Cir. 1999). A patentee may be his or her own lexicographer and use terms in a manner different from their ordinary meaning, and in those cases where the special definition differs from the meaning it would otherwise possess, the patentee’s lexicography governs. Phillips, 415 F.3d at 1316; see also Abbott Labs. v. Novopharm Ltd., 323 F.3d 1324, 1330 (Fed.Cir.2003)(allowing the entry of a definition of a claim term other than its ordinary and customary meaning where the patentee “has chosen to be his or her own lexicographer by clearly setting forth an explicit definition for a claim term”). The court cannot read into a claim a limitation that appears in the specification but not in the claim itself." }, { "docid": "22780958", "title": "", "text": "Bell Communications Research, Inc. v. Vitalink Communications Corp., 55 F.3d 615, 619-20, 34 USPQ2d 1816, 1819 (Fed.Cir.1995). “[T]he claims define the scope of the right to exclude; the claim construction inquiry, therefore, begins and ends in all cases with the actual words of the claim.” Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1248, 48 USPQ2d 1117, 1120 (Fed.Cir.1998). “[T]he language of the claim frames and ultimately resolves all issues of claim interpretation.” Abtox, Inc. v. Exitron Corp., 122 F.3d 1019, 1023, 43 USPQ2d 1545, 1548 (Fed.Cir.1997). The words used in the claims are interpreted in light of the intrinsic evidence of record, including the written description, the drawings, and the prosecution history, if in evidence. Interactive Gift Express, Inc. v. CompuServe, Inc., 256 F.3d 1323, 1331, 59 USPQ2d 1401, 1407 (Fed.Cir.2001). The intrinsic evidence may provide context and clarification about the meaning of claim terms. York Prods., Inc. v. Cent. Tractor Farm, & Family Ctr., 99 F.3d 1568, 1572, 40 USPQ2d 1619, 1622 (Fed.Cir.1996). “Such intrinsic evidence is the most significant source of the legally operative meaning of disputed claim language.” Vitronics, 90 F.3d at 1582, 39 USPQ2d at 1576. In the absence of an express intent to impart a novel meaning to claim terms, an inventor’s claim terms take on their ordinary meaning. York Prods., 99 F.3d at 1572, 40 USPQ2d at 1622. We indulge a “heavy presumption” that a claim term carries its ordinary and customary meaning. CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366, 62 USPQ2d 1658, 1662 (Fed.Cir.2002). The ordinary meaning of a claim term may be determined by reviewing a variety of sources, including the claims themselves, see Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357, 52 USPQ2d 1029, 1033 (Fed.Cir.1999), other intrinsic evidence including the written description and the prosecution history, see, e.g., DeMarini Sports, Inc. v. Worth, Inc., 239 F.3d 1314, 1324, 57 USPQ2d 1889, 1894 (Fed.Cir.2001), and dictionaries and treatises, see, e.g., Schaefer Fan Co. v. J & D Mfg., 265 F.3d 1282, 1288-89, 60 USPQ2d 1194, 1199 (Fed.Cir.2001) (approving district court use of dictionaries" }, { "docid": "1412261", "title": "", "text": "that this was “a simple issue that resolves the case.” Order at 2. We begin our analysis with the construction of this critical term. A First and foremost, the analytical focus of claim construction must begin, and remain centered, on the language of the claims themselves. Tex. Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1201-02 (Fed.Cir.2002) (quoting Interactive Gift Express, Inc. v. Compuserve, Inc., 256 F.3d 1323, 1331 (Fed.Cir.2001)). Because the claim language is chosen by the patentee to “particularly point[ ] out and distinctly claim[ ] the subject matter” of the invention, 35 U.S.C. § 112, ¶2, the claim terms chosen by the patentee carry a presumption that “they mean what they say and have the ordinary meaning that would be attributed to those words by persons skilled in the relevant art.” Tex. Digital, 308 F.3d at 1202. In the absence of an express intent to impart a novel meaning to the claim terms, the words are presumed to take on the ordinary and customary meanings attributed to them by those of ordinary skill in the art. See, e.g., Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed.Cir.2002). The ordinary and customary meaning of a claim term may be determined by reviewing a variety of sources, including the claims themselves, see Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357 (Fed.Cir.1999); dictionaries and treatises, Tex. Digital, 308 F.3d at 1202; and the written description, the drawings, and the prosecution history, see, e.g., DeMarini Sports, Inc. v. Worth, Inc., 239 F.3d 1314, 1324 (Fed.Cir.2001). While certain terms may be at the center of the claim construction debate, the context of the surrounding words of the claim also must be considered in determining the ordinary and customary meaning of those terms. See Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1299 (Fed.Cir.2003); Hockerson-Halberstadt, Inc. v. Converse Inc., 183 F.3d 1369, 1374 (Fed.Cir.1999). ACTV, in arguing that the ordinary and customary meaning of the term URL encompasses both relative and absolute URLs, provides a document entitled Request for Comments 1808 (“RFC 1808”), from the" }, { "docid": "479051", "title": "", "text": "the boundary of its scope. Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1324 (Fed.Cir.2002). Accordingly, “the claim construction inquiry ... begins and ends in all cases with the actual words of the claim.” Id. (quoting Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1248 (Fed.Cir.1998)). Claim terms must be construed as they would be understood by a person of ordinary skill in the art to which the invention pertains. Specialty Composites v. Cabot Corp., 845 F.2d 981, 986 (Fed.Cir.1988). “The words used in the claim[ ] are interpreted in light of the intrinsic evidence of record, including the written description, the drawings, and the prosecution history, if in evidence.” Teleflex, 299 F.3d at 1324. “This court has repeatedly emphasized that an indefinite article ‘a’ or ‘an’ in patent parlance carries the meaning of ‘one or more’ in open-ended claims containing the transitional phrase ‘comprising’.' Unless the claim is specific as to the number of elements, the article ‘a’ receives a singular interpretation only in rare circumstances when the patentee evinces a clear intent to so limit the article.” KCJ Cory. v. Kinetic Concepts, Inc., 223 F.3d 1351, 1356 (Fed.Cir.2000) (citations omitted). Here, we agree with Scanner that the district court erred in limiting “an illumination apparatus,” and thus “illuminating,” to an apparatus containing only a single illumination source. We hold that “an illumination apparatus” is properly construed to encompass one or more illumination sources because the patentee has not evinced a clear intent to limit the article “an” to a single illumination source in either the claims or specification of the '756 patent. To the extent ICOS argues, and the district court found, that Insituform Technologies, Inc. v. Cat Contracting, Inc., 99 F.3d 1098 (Fed.Cir.1996), and North American Vaccine, Inc. v. American Cyanamid Co., 7 F.3d 1571 (Fed.Cir.1993), require a construction of the disputed claim term as limited to a single illumination source, we disagree. Unlike the present case, Insituform dealt with claim language and a specification that strongly suggested that the claim language “a cup” was meant to encompass only one cup. There, the" }, { "docid": "1410154", "title": "", "text": "of a term in a narrower meaning cannot trump a broader ordinary and customary meaning of the term as used in a claim. Were it otherwise, the scope of claim terms would regularly be limited to the embodiments disclosed in the specification. But it is the claim language, not the embodiments, which control. See Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1248 (Fed.Cir.1998) ([T]he claims define the scope of the right to exclude; the claim construction inquiry, therefore, begins and ends in all cases with the actual words of the claim.). The majority also cites the “Summary of the Invention” section, where “the present invention” is said to involve “host cell expression systems,” and the abstract, which refers to “engineered host cells.” '804 patent, col. 6, 11 22-25; Abstract. The majority contends that the term “host cell” necessarily implies the introduction of exogenous genetic material, and this amounts to a “definition of the invention.” Gen-zyme, • slip op. at 1099-1100. In other words, the majority sees a redefinition of the claim term “chromosomally integrated” in the use in the specification of a term, “host cell,” that appears nowhere in the claims. In my view, the majority roams too far afield in search of a redefinition of the claim term. ' It is clear from our precedent that any redefinition must focus on the term actually employed in the claims. See Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1324 (Fed.Cir.2002) (“The claim language defines the bounds of claim scope.”); Interactive Gift Express, Inc. v. Compuserve Inc., 256 F.3d 1823, 1331 (Fed.Cir.2001) (“In construing claims, the analytical focus must begin and remain centered on the language of the claims themselves, for it is that language that the patentee chose to use to ‘particularly point[ ] out and distinctly claim[ ] the subject matter which the patentee regards as his invention.’ ”); Thermalloy, Inc. v. Aavid Eng’g, Inc., 121 F.3d 691, 693 (Fed.Cir.1997) (“[throughout the interpretation process, the focus remains on the meaning of claim language.”). Like the written description, nothing in the prosecution history limits or" }, { "docid": "23511249", "title": "", "text": "the specification, of which they are a part.” Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). A patent’s specification provides necessary context for understanding the claims, and “is always highly relevant to the claim construction analysis.” Phillips, 415 F.3d at 1315 (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996)). While equally true in a general sense, sometimes the specification offers practically incontrovertible directions about claim meaning. For example, inventors may act as their own lexicographers and give a specialized definition of claim terms. See id. at 1316. Likewise, inventors and applicants may intentionally disclaim, or disavow, subject matter that would otherwise fall within the scope of the claim. See id. When consulting the specification to clarify the meaning of claim terms, courts must take care not to import limitations into the claims from the specification. This court has recognized the “fine line between” the encouraged and the prohibited use of the specification. Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1186 (Fed.Cir.1998). When the specification describes a single embodiment to enable the invention, this court will not limit broader claim language to that single application “unless the patentee has demonstrated a clear intention to limit the claim scope using ‘words or expressions of manifest exclusion or restriction.’ ” Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed.Cir.2004) (quoting Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1327 (Fed.Cir.2002)). By the same token, the claims cannot “enlarge what is patented beyond what the inventor has described as the invention.” Biogen, Inc. v. Berlex Labs., Inc., 318 F.3d 1132, 1140 (Fed.Cir.2003) (quoting Netword, LLC v. Centraal Corp., 242 F.3d 1347, 1352 (Fed.Cir.2001)). Thus this court may reach a narrower construction, limited to the embodiment(s) disclosed in the specification, when the claims themselves, the specification, or the prosecution history clearly indicate that the invention encompasses no more than that confined structure or method. See Liebel-Flarsheim, 358 F.3d at 908. Along with the specification, the prosecution history is “intrinsic evidence” of the" }, { "docid": "4833737", "title": "", "text": "Inc. v. Lear Corp., 516 F.3d 1331, 1335 (Fed.Cir.2008). The claim terms “are generally given their ordinary and customary meaning.” Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed.Cir.2005) (en banc) (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996)). “[T]he claims themselves provide substantial guidance as to the meaning of particular claim terms.” Id. at 1314. But the claims “must be read in view of the specification, of which they are a part.” Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed.Cir. 1995) (en banc), ajfd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). A patent’s specification “is always highly relevant to the claim construction analysis.” Phillips, 415 F.3d at 1315 (quoting Vitronics, 90 F.3d at 1582 (Fed.Cir.1996)). When consulting the specification to clarify the meaning of claim terms, courts must not import limitations into the claims from the specification. Abbott Labs., 566 F.3d at 1288. Therefore, when the specification uses a single embodiment to enable the claims, courts should not limit the broader claim language to that embodiment “unless the patentee has demonstrated a clear intention to limit the claim scope using ‘words or expressions of manifest execution or restriction.’ ” Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 905 (Fed. Cir.2004) (quoting Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1327 (Fed. Cir.2002)). In addition, “other claims of the patent ... can also be valuable sources of enlightenment as to the meaning of a claim term.” Id. (citing Vitronics, 90 F.3d at 1582). In claim construction “a court ‘should also consider the patent’s prosecution history....’” Phillips, 415 F.3d at 1318 (quoting Markman, 52 F.3d at 980). “[T]he prosecution history can often inform the meaning of the claim language by demonstrating how the inventor understood the invention and whether the inventor limited the invention in the course of prosecution, making the claim scope narrower than it would otherwise be.” Id. (citing Vitronics, 90 F.3d at 1582-83). For example, “a patentee may, through a clear and unmistakable disavowal in prosecution history, surrender certain claim scope to which he would otherwise have an" }, { "docid": "11368082", "title": "", "text": "appropriate if, drawing all factual inferences in favor of the non-movant, he cannot show there is a genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Analysis of infringement involves two steps. Johnson Worldwide Assocs., Inc. v. Zebco Corp., 175 F.3d 985, 988 (Fed.Cir.1999). First, the trial court determines the scope and meaning of the asserted claims. Markman v. Westview Instruments, Inc., 517 U.S. 370, 372-74, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). The trial court’s claim construction is an issue of law reviewed without deference. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed.Cir.1998) (en banc). Second, the claims as construed by the court are compared limitation by limitation to the features of the allegedly infringing device. Johnson Worldwide, 175 F.3d at 988. We affirm a district court’s grant of summary judgment of non-infringement only if, “after viewing the alleged facts in the light most favorable to the non-movant, there is no genuine issue whether the accused device is encompassed by the claims.” Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1304 (Fed.Cir.1999). On appeal, Searfoss challenges both the claim construction ordered by the district court and the resultant grant of summary judgment of non-infringement. We address these challenges below. I. The language of the claim defines the boundary of its scope. Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1324 (Fed.Cir.2002). Accordingly, “the claim construction inquiry ... begins and ends in all cases with the actual words of the claim.” Id. (quoting Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1248 (Fed.Cir.1998)). Claim terms must be construed as they would be understood by a person of ordinary skill in the art to which the invention pertains. Specialty Composites v. Cabot Corp., 845 F.2d 981, 986 (Fed.Cir.1988). What the claim terms would mean to laymen is irrelevant. “The words used in the claim[ ] are interpreted in light of the intrinsic evidence of record, including the" }, { "docid": "4114450", "title": "", "text": "agreed constructions of those two terns. With respect to the nine disputed terms, the constructions adopted by the court are specified below. DISCUSSION A. Standards for Construction “Claim construction is a legal statement of the scope of the patent right.” CardSoft v. Verifone, Inc., 769 F.3d 1114, 1117, 2014 WL 5303000, at *2 (Fed.Cir. Oct. 17, 2014) (citing Lighting Ballast Control LLC v. Philips Elecs. N. Am. Corp., 744 F.3d 1272, 1276-77 (Fed.Cir.2014)). The construction and meaning of claims in a patent are questions of law for the court to address. Markman v. Westview Instruments, Inc., 517 U.S. 370, 388-90, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). While the trial court is not required to construe every term in a patent, it must construe any term for which claim scope is disputed. O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1360, 1362 (Fed.Cir.2008). The court should first examine the intrinsic evidence of record, as “intrinsic evidence is the most significant source of the legally operative meaning of disputed claim language.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996). Intrinsic evidence encompasses the “patent itself, including the claims, the specification^] and ... the prosecution history.” Id. (citing Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed.Cir.1995), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996)). In construing claim terms, a court should look to the ordinary and customary meanings attributed to them by those of ordinary skill in the art at the date of the invention, which is the effective filing date of the patent application. Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed.Cir.2005) (en banc). “That starting point is based on the well-settled understanding that inventors are typically persons skilled in the field of the invention and that patents are addressed to and intended to be read by others of skill in the pertinent art.” Id. “There are only two exceptions to this general rule: 1) when a patentee sets out a definition and acts as his own lexicographer, or 2) when the patentee disavows the full scope of the" }, { "docid": "14445164", "title": "", "text": "that the “thin membrane” does not consist of the entire contoured valve structure. a. “thin” As a threshold matter, the court rejects Playtex’s argument that the term “thin” requires any further construction by being construed as “a thickness that ranges from 0.001 to 0.100 inches” as stated in the written description. The written description is relevant to aid in the claim construction analysis to determine if the presumption that claim terms carry their ordinary and customary meaning is rebutted. ACTV, Inc. v. Walt Disney Co., 346 F.3d 1082, 1090-91 (Fed.Cir.2003). This presumption is overcome “where the pat-entee, acting as his or her own lexicographer, has clearly set forth a definition of the term different from its ordinary and customary meaning.” Id. at 1091. This occurs “if the inventor has disavowed or disclaimed scope of coverage, by using words or expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope.” Id.; accord Teleflex, Inc. v. Ficosa N. Am. Corp., 299. F.3d 1313, 1327 (Fed.Cir.2002). Absent such a clear disavowal of claim scope, it is a cardinal sin of claim construction to import limitations from the written description into the claims, Teleflex, Inc., 299 F.3d at 1324, and the court must “give the claim term its full breadth of ordinary meaning as understood by persons skilled in the art,” ACTV, Inc., 346 F.3d at 1091. ■ In this case, the written description lacks an indication that the patentees clearly intended to limit the term “thin” to a thickness ranging from 0.001 to 0.100 inches. It simply states that “[t]he thickness of the thin membrane 13 may range from 0.001 inches to 0.100 inches.” See ’347 patent, col. 2, 11. 11 — 13 (emphasis added). This is consistent with the claim term, which states that the membrane must be, “thin.” When a claim term is expressed with such a general descriptive word, the court “ordinarily will not limit the term to a numerical range that may appear in the written description or in other claims.” Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1249 (Fed.Cir.1998); see also RF" } ]

[ { "docid": "10562324", "title": "", "text": "prior orders of dismissal; (d) the alleged loan by the Debtor to a third party was not supported by any documentation, much less conditions relating to rate of interest, payment schedule, or collateral. III. LEGAL ANALYSIS A traditional Chapter 13 homily is a debtor has the absolute right to dismiss his ease at anytime. 11 U.S.C. § 1307(b). Nevertheless, the law is abundantly clear a bankruptcy court may impose conditions upon such dismissal, especially where substantial evidence exists that the debtor did not file the petition in good faith. See, e.g., In re Spear, 203 B.R. 349, 354 (Bankr.D.Mass.1996); In re Greenberg, 200 B.R. 763 (Bankr.S.D.N.Y.1996). Section 1307(c) sets forth a litany of situations which form the basis for dismissing or converting a Chapter 13 case. While good faith is not specifically denominated therein, it is implicit to the concept. E.g., In re Lilley, 91 F.3d 491 (3d Cir.1996); In re Eisen, 14 F.3d 469 (9th Cir.1994); Spear, supra. The determination of good faith on the part of a debtor in filing the Chapter 13 bankruptcy is made on a case-by-case basis. Such an inquiry includes consideration of the following factors: the nature of debt, including the question of whether the debt would be nondisehargeable in Chapter 7; the timing of the petition; how the debt arose and the debtor’s motive in filing the bankruptcy petition; how the debtor’s actions affected creditors; the debtor’s treatment of creditors both before and after the petition was filed; and whether the Debtor had been forthcoming with the bankruptcy court and creditors. In re Love, 957 F.2d 1350, 1357 (7th Cir.1992). The evidence in this case supports a finding the Debtor did not file any of his Chapter 13 cases in good faith. In each case, both pre- and post-petition, his Statements of Financial Affairs and Schedules were intentionally falsified for the purpose of thwarting the repeated claims of the IRS. Further, during his previous bankruptcies, the Debtor sought to mislead the Chapter 13 Trustee and this Court by knowingly falsifying those Schedules and Statements in order to conceal property of the estate, enter" } ]

[ { "docid": "5080209", "title": "", "text": "See, e.g., In re Barbieri, 199 F.3d at 621-22. Thus, even after a dismissal a debtor may be held to account for his or her wrongdoing. Of particular concern to some courts has been use by a debtor of chapter 13 to obtain the benefits of the automatic stay of Code § 362(a). See, e.g., In re Cobb, 2000 WL 17840, at *3 (citing In re Molitor, 76 F.3d at 220, and In re Powers, 48 B.R. 120, 121 (Bankr.M.D.La.1985)). These cases adopt the view that, having obtained the temporary relief afforded by the stay, a debtor should not be allowed to escape from bankruptcy against the will— and contrary to the best interests of — his or her creditors. The stay, however, provides no more than delay for a debtor unless it matures into a discharge. Further, section 362 provides mechanisms for quick relief from the stay. See 11 U.S.C. § 362(d), (e) and (f). To the extent the temporary effect of the stay together with dismissal under section 1307(b) could be used tactically to the prejudice and detriment of other parties, section 349 of the Code affords the court ample latitude to protect those parties or return them to where they were when the bankruptcy case was filed. In short, the case of the undeserving debtor does not require that section 1307(c) be held to trump the plain meaning of section 1307(b). 3. Marrama RealPage relies heavily on the Supreme Court’s decision in Marrama v. Citizens Bank of Massachusetts for the proposition that this court may overlook the apparently plain command of section 1307(b). But Marrama does not support Real-Page’s argument, and, indeed, a review of the Court’s reasoning suggests this court’s construction of the statute is correct. First, section 706(a), the provision of the Code at issue in Marrama, provides that a “debtor may convert a case under [chapter 7] to a case under chapter 13 ... at any time .... ” (emphasis added). 11 U.S.C. § 706(a); see also Marrama, 127 S.Ct. at 1109. Section 1307(b), on the other hand, as noted above, provides that “the" }, { "docid": "5080206", "title": "", "text": "clear command in section 1307(b) is not necessary to the court’s protection of itself or its process. c. Debtor Misconduct Almost all the courts that would limit the debtor’s ability to dismiss under Code § 1307(b) cite the need for protecting the court, the process and the creditors against the dishonest debtor. See, e.g., In re Molitor, 76 F.3d at 221; In re Fonke, 310 B.R. at 813. It is the view of these courts that, if a dishonest debtor can head off an effort at conversion under section 1307(c) through use of section 1307(b), the result will be abuse of the system. See, e.g., Molitor, 76 F.3d at 221 (“[Debtor’s] actions constitute a clear abuse of the legal process set forth in the [Code] to aid and assist honest debtors.”); In re Foster, 121 B.R. at 961 (construing section 1208(b)) (“When the facts show that the debtors have abused the legal process and the bankruptcy process through fraud, the bankruptcy court has the authority to convert a ... proceeding ..., even though the debtors have filed a motion to dismiss .... ”); In re Fonke, 310 B.R. at 813 (“The concern ... is that an absolute right to dismiss in face of allegations of fraud and bad faith will encourage abuse of the bankruptcy systems by dishonest individuals who are misusing the system.”); In re Johnson, 228 B.R. 663, 668 (Bankr.N.D.Ill.1999) (“Debtor has been shown to have filed in bad faith and abused the Bankruptcy Code, thus warranting conversion to Chapter 7 instead of dismissal.”). Section 1307(c), however, is not the only possible protection against the ill-motivated debtor. Section 349 of the Code provides considerable latitude to the court in conditioning dismissal of a case under section 1307(b). Thus, the court may dismiss with prejudice to refiling (as was done in the case at bar) to prevent a revolving door approach to bankruptcy. See, e.g., In re Barbieri, 199 F.3d at 621; In re Graffy, 216 B.R. 888, 891-92 (Bankr.M.D.Fla.1998); In re Greenberg, 200 B.R. 763, 770 (Bankr.S.D.N.Y.1996). Section 349(b)(3) allows the court to exercise continuing control over property" }, { "docid": "3826089", "title": "", "text": "system, and that it violates the spirit of chapter 13, and thus constitutes bad faith. Debtors’ plan can not be confirmed because they can not show this case was filed in good faith as required by § 1327(a)(7). C. Conversion or Dismissal Under § 1807(c). Under § 1307(c), the Court must engage in a two-step analysis regarding questions of conversion or dismissal. First, the Court must determine whether “cause” has been demonstrated under § 1307(c), and second, once “cause” has been established, the Court must choose between conversion or dismissal based upon the “best interests of creditors and the estate”. 11 U.S.C. § 1307(c); Nelson v. Meyer (In re Nelson), 343 B.R. 671, 675 (9th Cir. BAP 2006). Having found requisite “cause” to act, the Court concludes that dismissal is appropriate here. A debtor’s bad faith in filing a chapter 13 petition is cause for dismissal under § 1307(c). In re Leavitt, 171 F.3d at 1224; In re Ho, 274 B.R. at 876; In re Weiss, 05.4 I.B.C.R. 99, 99 (Bankr.D.Idaho 2005). There is no showing that creditors would benefit from conversion of this case to chapter 7,. Debtors may not be able to pass the “means test” for chapter 7 relief under § 707(b), and in any event, under § 727(a)(8), would not be eligible for a discharge under chapter 7. D. Bar to Refiling. In addition to dismissing this case, Trustee’s motion also asks the Court to bar Debtors from filing another chapter 13 case “for such amount of time as [the Court] deems reasonable and just.” Motion to Dismiss at 2, Docket No. 12. The Court has authority to order such a bar under § 349(a): Section 349(a) is not ambiguous, and plainly provides that the bankruptcy court may, at its discretion and for cause, bar the discharge of existing debt. Inherent in this authority is the power to bar subsequent bankruptcy petitions that seek to discharge such debt. Furthermore, cases which have looked to the legislative history of § 349 note that it was intended to provide courts with authority to control abusive filings “beyond the" }, { "docid": "12701560", "title": "", "text": "and “render[s] § 1307(c) a nullity.” Gaudet v. Kirshenbaum Investment Co., Inc. (In re Gaudeb), 132 B.R. 670, 676 (D.R.I.1991). On the other hand, granting a creditor’s motion to convert requires denying a chapter 13 debtor’s right to dismiss, thereby rendering the “absence in subsection (b) of any condition to dismissal a nullity.” In re Harper-Elder, 184 B.R. 403, 406 (Bankr.D.D.C.1995). Courts are divided as to which subsection controls. Some courts hold that subsection (b) trumps subsection (c) making the debtor’s right to dismiss a chapter 13 case absolute. See e.g., Barbieri v. RAJ Acquisition Corp. (In re Barbieri), 199 F.3d 616, 619 (2nd Cir.1999); In re Patton, 209 B.R. 98 (Bankr.E.D.Tenn.1997); In re Harper-Elder, 184 B.R. 403 (Bankr.D.D.C.1995). Other courts prefer to read the subsections together and then rule on the merits of the competing motions. These courts reason that Congress did not intend to give the debtor unfettered power to prevent conversion by simply filing a motion to dismiss whenever conversion was requested. See e.g., Gaudet, 132 B.R. 670 (D.R.I.1991); Molitor v. Eidson (In re Molitor), 76 F.3d 218, 220 (8th Cir.1996); In re Johnson, 228 B.R. 663 (Bankr.N.D.Ill.1999); In re Vieweg, 80 B.R. 838 (Bankr.E.D.Mich.1987); In re Powers, 48 B.R. 120 (Bankr.M.D.La.1985). The split of authority is highlighted by comparing the Second Circuit’s decision, Barbieiri, 199 F.3d 616, 619 (2nd Cir.1999) holding that a debtor’s right to dismiss a chapter 13 case is absolute, in effect ruling that § 1307(b) trumps § 1307(c), with the Eight Circuit’s decision, Molitor, 76 F.3d 218, 220 (8th Cir.1996) restricting a chapter 13 debtor’s right to voluntary dismissal and converting a case for cause in order to prevent abuse of the bankruptcy system, in effect weighing the merits of both motions. The Second Circuit’s Barbieri analysis concludes that § 1307 subsection (b) necessarily take precedence over subsection(c) based on the plain language of the statute, the legislative history, and the purpose behind the statute. Barbieri, 199 F.3d 616. The Barbieii court found: Section 1307(b) unambiguously requires that if a debtor “at any time” moves to dismiss a case that has not" }, { "docid": "5080208", "title": "", "text": "of the estate if that is necessary to protect parties against the debtor’s post-dismissal conduct. Some courts have even delayed dismissal of a case under section 1307(b) (or section 1208(b)) to ensure against debtor abuse. See In re Goza, 142 B.R. 766, 771 (Bankr.S.D.Miss.1992) (chapter 12 case); In re Tyndall, 97 B.R. 266, 268 (Bankr.E.D.N.C.1989). While this court is not willing at this point and in the present context to opine that jurisdiction can be long retained over an unwilling chapter 12 or 13 debtor, use of the device illustrates the power of the court to protect itself. Nor does dismissal necessarily relieve a debtor of the consequences of his or her misconduct. Federal Rule of Bankruptcy Procedure 9011 gives the court power to sanction certain abusive practices, and use of that rule may be reserved by the court following dismissal. See, e.g., In re Smith, 257 B.R. 344, 352 (Bankr.N.D.Ala.2001). Finally, that a case is dismissed does not excuse commission of an offense under chapter 9 of Title 18 of the United States Code. See, e.g., In re Barbieri, 199 F.3d at 621-22. Thus, even after a dismissal a debtor may be held to account for his or her wrongdoing. Of particular concern to some courts has been use by a debtor of chapter 13 to obtain the benefits of the automatic stay of Code § 362(a). See, e.g., In re Cobb, 2000 WL 17840, at *3 (citing In re Molitor, 76 F.3d at 220, and In re Powers, 48 B.R. 120, 121 (Bankr.M.D.La.1985)). These cases adopt the view that, having obtained the temporary relief afforded by the stay, a debtor should not be allowed to escape from bankruptcy against the will— and contrary to the best interests of — his or her creditors. The stay, however, provides no more than delay for a debtor unless it matures into a discharge. Further, section 362 provides mechanisms for quick relief from the stay. See 11 U.S.C. § 362(d), (e) and (f). To the extent the temporary effect of the stay together with dismissal under section 1307(b) could be used tactically" }, { "docid": "4202989", "title": "", "text": "Court in In re Gaudet reasoned: Reading subsections (b) and (c) in pari materia leads one to the conclusion that Congress could not have intended to give a debtor an absolute right to obtain dismissal of a Chapter 13 case. Such a right would give the debtor unfettered power to prevent conversion under § 1307(c) by simply filing a motion to dismiss whenever conversion was requested. For all practical purposes, that would render subsection (c) a nullity, an intent that ought not to be attributed to Congress. Consequently, this Court holds that the conversion provision contained in § 1307(c) operates as a limitation on the debtor’s right to obtain voluntary dismissal under § 1307(b). In re Gaudet, 132 B.R. 670, 676 (D.R.I.1991). The concern of these courts is that an absolute right to dismiss in face of allegations of fraud and bad faith will encourage abuse of the bankruptcy systems by dishonest individuals who are misusing the system. See, e.g., In re Molitor, 76 F.3d at 220; In re Powers, 48 B.R. at 121. As acknowledged by the parties, however, the Fifth Circuit has yet to address this specific issue. Cobb, 2000 WL 17840 at *2, 2000 U.S. Dist. Lexis 198 at *4. The Northern District of Texas addressed a similar issue in the context of chapter 12. In re Foster, 121 B.R. 961 (N.D.Tex.1990), aff'd without opinion, 945 F.2d 400 (5th Cir.1991). The Foster court in interpreting § 1208(b), the language of which is identical to § 1307(b), found that because “the debtors abused the legal process and the bankruptcy process through fraud, the bankruptcy court had the authority to convert a chapter 12 proceeding to a chapter 7 liquidation, even though the debtors [had] filed a motion to dismiss the chapter 12 proceeding.” The Foster court’s decision was affirmed without opinion by the Fifth Circuit. While not controlling, the Fifth Circuit’s affirmation of the Foster court’s interpretation of § 1208(b), the language of which is identical to § 1307(b), is persuasive. The Court also believes that a reading of § 1307(b) in conjunction with § 1307(a) supports the" }, { "docid": "12701567", "title": "", "text": "by voluntary dismissal. 11 U.S.C. § 349(b). Furthermore, there is no danger that a creditor would be barred from bringing a cause of action, because under 11 U.S.C. § 108(c), the statute of limitations is tolled during the bankruptcy proceeding. Barbieri, 199 F.3d at 621. Creditors may also file an involuntary petition under § 303 which is the method Congress provided for placing reluctant debtors into liquidation. Harper-Elder, 184 B.R. at 408. Dismissal coupled with the right of the Creditors to file an involuntary petition may be redundant to denying the motion to dismiss and converting the case, but the plain meaning of § 1307(b) gives the Debtor an absolute pre-conversion right to dismiss his chapter 13 case. “While the Bankruptcy Court unquestionably has authority to prevent and punish abuses of its process, it does not necessarily follow that such authority includes the prerogative to prevent voluntary dismissal pursuant to § 1307(b),” Gaudet, 132 B.R. at 673, even where, as here, allegations of gross misconduct are present. It is however incumbent upon the Court to preserve the integrity of its process. To that end the Court exercises its discretion pursuant to 11 U.S.C. § 105 to grant the Debtor’s Motion to Dismiss with Prejudice to the Debtor filing another bankruptcy petition in any jurisdiction for two years. See In re Graffy, 216 B.R. 888 (Bankr.M.D.Fla.1998) (conditioning dismissal with prejudice to debtor filing another bankruptcy petition in any jurisdiction for 2 years). Finally, the Court has the power to impose sanctions in a proper case. Fed. R. Bankr.P. 9011(c). In addition to moving the Court to convert the case to a chapter 7 for fraud, Creditors’ Motion requested its attorneys’ fees and costs as a sanction against the Debtor based on allegations including Debtor’s bad faith filing, delay and deception in filing schedules, intentional omission of assets and transfers, and advancement of frivolous legal theories to shield assets. Therefore, the Court retains jurisdiction to impose sanctions, notwithstanding the Debtor’s voluntary dismissal of his chapter 13 case. See Patton, 209 B.R. at 105 (citing In re Slaughter, 191 B.R. 135, 139 (Bankr.W.D.Wis.1995)" }, { "docid": "4202987", "title": "", "text": "as provided in subsection (e) of this section, on request of a party in interest or the United States trustee and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 7 of this title, or may dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause.... While several courts have adopted the Debtor’s view that a Chapter 13 debtor’s right to dismiss under § 1307(b) is absolute, other courts have held that § 1307(c) restricts a debtor’s right to voluntary dismissal. See, e.g., In re Cobb, 2000 WL 17840, 2000 U.S. Dist. LEXIS 198 (E.D.La.2000) (discussing the split in authority and those courts which have ruled on the issue). Those courts that have found § 1307(c) imposes a restriction on a debtor’s ability to dismiss have interpreted §§ 1307(b) and (c), as well as the corresponding provisions of chapter 12, as restricting “the right to dismissal when there is a pending motion to convert or there are allegations of fraud or bad faith.” Id., 2000 WL 17840 at *2, 2000 U.S. Dist. Lexis 198 at *5; see also In re Molitor, 76 F.3d 218 (8th Cir.1996) (finding that “[t]o allow [the debtor] to convert by voluntarily dismissing his case with impunity would render section 1307(c) a dead letter and open up the bankruptcy courts to a myriad of potential abuses.”); In re Goza, 142 B.R. 766 (Bankr.S.D.Miss.1992) (finding that [w]hen the facts show that the debtors have abused the legal process and the bankruptcy process through fraud, the bankruptcy court has the authority to convert a chapter 12 proceeding to a chapter 7 liquidation, even though the debtors have filed a motion to dismiss the chapter 12 proceeding.”); In re Gaudet, 61 B.R. 349, 350 (Bankr.D.R.I.1986) (finding “the debt- or’s general conduct and demonstrated lack of credibility, which we view as a blatant bad faith attempt to misuse the bankruptcy process, require denial of the motion to withdraw his Chapter 13 petition.”); In re Powers, 48 B.R. 120 (Bankr.M.D.La.1985). As the" }, { "docid": "4602053", "title": "", "text": "109(f) [sic should be (g)] of this title. There is nothing to suggest that the Court should not “order otherwise” in the case of a voluntary dismissal under section 1307(b) of the Code; the Court has found no authority which questions its power to do so. In In re Dyke, 58 B.R. 714 (Bankr.N.D.Ill.1986), the debtor sought to dismiss his chapter 13 case under section 1307(b) because a creditor had threatened to file a motion to lift the stay which would have invoked the refiling prohibition in section 109(g)(2) of the Code. Under that section a debtor who voluntarily dismisses his case after a creditor has filed a motion for relief from the automatic stay is barred from refiling a bankruptcy case for 180 days. The debtor sought to avoid this prohibition by dismissing his case under section 1307(b) of the Code before the creditor filed its motion for relief from stay. The Court held, however, that the debtor’s use of section 1307(b) to avoid the 180-day prohibition of section 109(g)(2) violated the spirit and intent of the Code and Congress’s attempt to curb abusive bankruptcy filings. Therefore the Court ordered dismissal of the case with prejudice by prohibiting the debtor from filing another case for 180 days. The Court justified this sua sponte action under section 349(a) and section 105 of the Code. In Lerch v. Federal Land Bank of St. Louis (In re Lerch), 94 B.R. 998 (D.N.D.Ill.1989), the district court affirmed the bankruptcy court’s dismissal of a chapter 12 case with prejudice under section 349(a). In that ease the debtor sought dismissal of her case under section 1208(b) of the Code, which is the counterpart to section 1307(b) in the family farmer chapter of the Code. The bankruptcy court had dismissed the case but retained jurisdiction to permit creditors to file motions seeking dismissal with prejudice under section 349(a). One such motion was filed and the bankruptcy court found that cause existed for dismissal with prejudice and prohibited the debtor from refiling another bankruptcy case for two years. In In re Merritt, 39 B.R. 462 (Bankr.E.D.Pa.1984), the" }, { "docid": "12701561", "title": "", "text": "(In re Molitor), 76 F.3d 218, 220 (8th Cir.1996); In re Johnson, 228 B.R. 663 (Bankr.N.D.Ill.1999); In re Vieweg, 80 B.R. 838 (Bankr.E.D.Mich.1987); In re Powers, 48 B.R. 120 (Bankr.M.D.La.1985). The split of authority is highlighted by comparing the Second Circuit’s decision, Barbieiri, 199 F.3d 616, 619 (2nd Cir.1999) holding that a debtor’s right to dismiss a chapter 13 case is absolute, in effect ruling that § 1307(b) trumps § 1307(c), with the Eight Circuit’s decision, Molitor, 76 F.3d 218, 220 (8th Cir.1996) restricting a chapter 13 debtor’s right to voluntary dismissal and converting a case for cause in order to prevent abuse of the bankruptcy system, in effect weighing the merits of both motions. The Second Circuit’s Barbieri analysis concludes that § 1307 subsection (b) necessarily take precedence over subsection(c) based on the plain language of the statute, the legislative history, and the purpose behind the statute. Barbieri, 199 F.3d 616. The Barbieii court found: Section 1307(b) unambiguously requires that if a debtor “at any time” moves to dismiss a case that has not been previously converted the court “shall” dismiss the action. The term “shall,” as the Supreme Court has reminded us, generally is mandatory and leaves no room for the exercise of discretion by the trial court... The only limitation on the right to dismiss is stated in § 1307(b) itself, which provides for dismissal “if the case has not been converted under section 706, 1112, or 1208 of this title.” Id. at 619 (citations omitted). In contrast, the language of § 1307(c) provides that “the court may convert a case under this chapter (emphasis added).” The Second Circuit noted that when the words “may” and “shall” are used within the same provision, the normal inference is that “may” is permissive, and “shall” is mandatory. The mandatory nature of § 1307(b) becomes even clearer when compared with the permissive language of § 1307(c). Id. at 619. Harper-Elder found additional support for the conclusion that § 1307(b) is mandatory in that a party in interest’s motion to convert or dismiss under subsection (c) is treated as a contested" }, { "docid": "18568225", "title": "", "text": "be in the best interest of creditors. In support of their position the debtors point to the apparent mandatory language of § 1307(b) and its legislative history which requires the Court, on request of the debtor, to dismiss the case provided it has not been previously converted into Chapter 13 from Chapter 7 or Chapter 11. CONCLUSIONS OF LAW After reviewing the legislative history and case law to date, this Court is satisfied that § 1307(b) grants to Chapter 13 debtors an absolute right to have their cases dismissed at any time prior to entry of an order of conversion, provided that the cases had not been filed for an improper purpose, in bad faith, or to abuse or misuse the bankruptcy process. The Chapter 13 trustee herein does not allege improper purpose, bad faith filing or such abuse or misuse. Rather, the trustee asserts that conversion, as opposed to dismissal, would be in the best interest of all creditors. The developed case law on this issue is persuasive and supports the debtors’ absolute right to dismiss a Chapter 13 case. See, In re Benediktsson, 34 B.R. 349, 11 B.C.D. 209 (Bkrtcy.W.D.Wash.1983) and cases cited therein; In re Gillion, 36 B.R. 901 (D.C.E.D.Ark.1983), rev’g, 31 B.R. 550, 10 B.C.D. 1354 (Bkrtcy.E.D.Ark., 1983). This Court is mindful of the potential for abuse were Chapter 13 debtors able to use with impunity the bankruptcy court as a legal playground or revolving door, filing and dismissing bankruptcy cases at will so as to delay, frustrate and harass legitimate creditor interests. See, e.g., In re Bystrek, 17 B.R. 894 (Bkrtcy.E.D.Pa. 1982); In re Whitten, 11 B.R. 333 (Bkrtcy. D.C.1981). Those debtors who attempt to misuse the automatic stay or other protections or benefits attendant to Chapter 13, on the return date of a motion to convert, might then move to dismiss as of right under § 1307(b). If it can be demonstrated that the Chapter 13 case was filed for an improper purpose, in bad faith or was otherwise filed to abuse or misuse the bankruptcy process, the bankruptcy court should deny such debtor-requested" }, { "docid": "13706262", "title": "", "text": "to cause unnecessary delay or needless increase in the cost of litigation or administration of the case.... If a document is signed in violation of this rule, the court on motion or on its own initiative, shall impose on the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including a reasonable attorney’s fee. Fed.Bankr.R. 9011(a) (emphasis added). In extreme cases, resort may even be had to Bankruptcy Rule 9020 which permits the Bankruptcy Court to utilize its contempt powers to deal with abuses of its process. Bystrek, 17 B.R. at 895. Nor can the debtor escape such sanctions simply by seeking dismissal of her case. The mere filing of a motion to dismiss does not divest the Bankruptcy Court of its jurisdiction. Dismissal is not effective until an order giving notice of the dismissal is entered on the Court’s docket. Fed.Bankr.R. 9021(a); Rebeor, 89 B.R. at 320 (applying R. 9021(a) to conversion order); Merritt, 39 B.R. at 464. Moreover, even after dismissal, the Bankruptcy Court may retain jurisdiction for the purpose of enforcing any order necessary to protect against or remedy an abuse of its process. 11 U.S.C. § 105(a). See In re Fairway Missionary Baptist Church, 131 B.R. 407 (Bankr.W.D.Tenn.1991). Finally, the possibility that debtors may use the Court as a “merry-go-round” or “revolving door” for repetitious filings designed to hinder or harass creditors can be dispelled by involuntarily dismissing a case found to be brought in bad faith. Such a dismissal prevents a debtor from invoking the protection of Chapter 13 for a period of at least three months. 11 U.S.C. § 109(g)(1) (1988). IV. Conversion Under § 1307(c) Although bad faith may not be a ground for denying dismissal under § 1307(b), a debtor’s right to dismissal under that subsection is not absolute. Section 1307(b) itself limits dismissal to cases that have not previously been converted from Chapter 7, 11 or 12. Furthermore, § 1307(c) provides" }, { "docid": "14806475", "title": "", "text": "intent to bestow favorable treatment on insolvent farm families. Congress also intended, however, to balance farmers’ needs with creditors’ rights. The House Conference Report states that Chapter 12 “offers family farmers the important protection from creditors that bankruptcy provides while, at the same time, preventing abuse of the system and ensuring that farm lenders receive a fair repayment.” H.R. Conf.Rep. No. 99-958, 99th Cong., 2d Sess. 48, reprinted in 1986 U.S.Code Cong. & Admin.News 5246, 5249 (emphasis added). The legislative history on section 1208 is scant. One statement by Senator Grassley appears in the Congressional Record: “If fraud is found, the case will be dismissed or converted to Chapter 7. This encourages good faith, [sic] and honest dealing by the debtor throughout the case.” 132 Cong.Rec. 28,593 (1986). We conclude that the broad purpose of the bankruptcy code, including Chapter 12, is best served by interpreting section 1208(d) to allow a court to convert a case to Chapter 7 upon a showing of fraud even though the debtor has moved for dismissal under subsection (b). Our holding on the interaction of subsections (b) and (d) does not conflict with the express language of subsection (b). Nothing in subsection (b) requires that a court act immediately upon a debtor’s request for a voluntary dismissal. See In re Tyndall, 97 B.R. 266, 268 (Bankr.E.D.N.C.1989) (a court may delay action on a section 1208(b) motion while it considers motions by other parties). Once fraud is found, the provisions of section 1208(d) are triggered and the court has the authority, under subsection (d), to dismiss the case or convert it to Chapter 7. Other than the lower courts’ decisions in this case, only one reported decision addresses the potential conflict between sections 1208(b) and 1208(d). In Foster v. North Texas Production Credit Association, 121 B.R. 961 (N.D.Tex.1990), the district court issued a brief opinion stating: When the facts show that the debtors have abused the legal process and the bankruptcy process through fraud, the bankruptcy court has the authority to convert a chapter 12 proceeding to a chapter 7 liquidation, even though the debtors" }, { "docid": "1069969", "title": "", "text": "have held that they do have the discretionary authority to grant a pending motion to convert a chapter 13 ease in the face of a debtor’s competing request for dismissal, particularly where there is evidence of improper conduct by the debtor. See In re Gaudet, 132 B.R. 670, 673-76 (D.R.I.1991); In re Vieweg, 80 B.R. 838, 840-41 (Bankr.E.D.Mich.1987) (bad faith); In re Powers, 48 B.R. 120 (Bankr.M.D.La. 1985); In re Jacobs, 43 B.R. 971 (Bankr.E.D.N.Y.1984) (bad faith); In re Whitten, 11 B.R. 333, 340 (Bankr.D.D.C.1981) (dicta; bad faith); see also In re Tatsis, 72 B.R. 908, 910 (Bankr.W.D.N.C.1987) (dicta, motion to dismiss withdrawn); In re Zarowitz, 36 B.R. 906 (Bankr.S.D.N.Y.1984) (holding absolute right to dismiss but noting in dicta possible exception if bad faith found). The courts reason that harmonizing § 1307(b) and (c) leads to the conclusion that Congress could not have intended to “give the debtor unfettered power to prevent conversion under § 1307(c) by simply filing a motion to dismiss whenever conversion was requested.” See In re Gaudet, 132 B.R. at 676; In re Vieweg, 80 B.R. at 841. Thus, these courts hold that a hearing should be held to consider the merits of both motions, and the court should act in accordance with the best interest of creditors and the estate. See In re Vieweg, 80 B.R. at 841. This more liberal interpretation has also been followed by the Courts of Appeals for the Fifth and the Eighth Circuits considering the identical language in § 1208(b) under chapter 12, the family farmer provisions of the Code. See In re Graven, 936 F.2d 378, 384-87 (8th Cir.1991); In re Foster, 121 B.R. 961 (N.D.Tex.1990), aff'd without op., 945 F.2d 400 (5th Cir.1991), cert. denied, 502 U.S. 1074, 112 S.Ct. 972, 117 L.Ed.2d 136 (1992); see also In re Tyndall, 97 B.R. 266 (Bankr.E.D.N.C.1989). Faced with the creditor’s motion to convert for fraud under § 1208(d), these courts of appeals concluded that the bankruptcy court has the authority to convert a case to chapter 7 upon a showing of fraud even though the debtor has moved for dismissal" }, { "docid": "4202988", "title": "", "text": "are allegations of fraud or bad faith.” Id., 2000 WL 17840 at *2, 2000 U.S. Dist. Lexis 198 at *5; see also In re Molitor, 76 F.3d 218 (8th Cir.1996) (finding that “[t]o allow [the debtor] to convert by voluntarily dismissing his case with impunity would render section 1307(c) a dead letter and open up the bankruptcy courts to a myriad of potential abuses.”); In re Goza, 142 B.R. 766 (Bankr.S.D.Miss.1992) (finding that [w]hen the facts show that the debtors have abused the legal process and the bankruptcy process through fraud, the bankruptcy court has the authority to convert a chapter 12 proceeding to a chapter 7 liquidation, even though the debtors have filed a motion to dismiss the chapter 12 proceeding.”); In re Gaudet, 61 B.R. 349, 350 (Bankr.D.R.I.1986) (finding “the debt- or’s general conduct and demonstrated lack of credibility, which we view as a blatant bad faith attempt to misuse the bankruptcy process, require denial of the motion to withdraw his Chapter 13 petition.”); In re Powers, 48 B.R. 120 (Bankr.M.D.La.1985). As the Court in In re Gaudet reasoned: Reading subsections (b) and (c) in pari materia leads one to the conclusion that Congress could not have intended to give a debtor an absolute right to obtain dismissal of a Chapter 13 case. Such a right would give the debtor unfettered power to prevent conversion under § 1307(c) by simply filing a motion to dismiss whenever conversion was requested. For all practical purposes, that would render subsection (c) a nullity, an intent that ought not to be attributed to Congress. Consequently, this Court holds that the conversion provision contained in § 1307(c) operates as a limitation on the debtor’s right to obtain voluntary dismissal under § 1307(b). In re Gaudet, 132 B.R. 670, 676 (D.R.I.1991). The concern of these courts is that an absolute right to dismiss in face of allegations of fraud and bad faith will encourage abuse of the bankruptcy systems by dishonest individuals who are misusing the system. See, e.g., In re Molitor, 76 F.3d at 220; In re Powers, 48 B.R. at 121. As" }, { "docid": "5080207", "title": "", "text": "have filed a motion to dismiss .... ”); In re Fonke, 310 B.R. at 813 (“The concern ... is that an absolute right to dismiss in face of allegations of fraud and bad faith will encourage abuse of the bankruptcy systems by dishonest individuals who are misusing the system.”); In re Johnson, 228 B.R. 663, 668 (Bankr.N.D.Ill.1999) (“Debtor has been shown to have filed in bad faith and abused the Bankruptcy Code, thus warranting conversion to Chapter 7 instead of dismissal.”). Section 1307(c), however, is not the only possible protection against the ill-motivated debtor. Section 349 of the Code provides considerable latitude to the court in conditioning dismissal of a case under section 1307(b). Thus, the court may dismiss with prejudice to refiling (as was done in the case at bar) to prevent a revolving door approach to bankruptcy. See, e.g., In re Barbieri, 199 F.3d at 621; In re Graffy, 216 B.R. 888, 891-92 (Bankr.M.D.Fla.1998); In re Greenberg, 200 B.R. 763, 770 (Bankr.S.D.N.Y.1996). Section 349(b)(3) allows the court to exercise continuing control over property of the estate if that is necessary to protect parties against the debtor’s post-dismissal conduct. Some courts have even delayed dismissal of a case under section 1307(b) (or section 1208(b)) to ensure against debtor abuse. See In re Goza, 142 B.R. 766, 771 (Bankr.S.D.Miss.1992) (chapter 12 case); In re Tyndall, 97 B.R. 266, 268 (Bankr.E.D.N.C.1989). While this court is not willing at this point and in the present context to opine that jurisdiction can be long retained over an unwilling chapter 12 or 13 debtor, use of the device illustrates the power of the court to protect itself. Nor does dismissal necessarily relieve a debtor of the consequences of his or her misconduct. Federal Rule of Bankruptcy Procedure 9011 gives the court power to sanction certain abusive practices, and use of that rule may be reserved by the court following dismissal. See, e.g., In re Smith, 257 B.R. 344, 352 (Bankr.N.D.Ala.2001). Finally, that a case is dismissed does not excuse commission of an offense under chapter 9 of Title 18 of the United States Code." }, { "docid": "19676734", "title": "", "text": "title, or may dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause.... 11 U.S.C. § 1307(b)-(c). These two provisions — i.e., that the court “shall” dismiss a case on request of the Chapter 13 debtor, but that the court also “may” convert a Chapter 13 case to Chapter 7 “for cause” — can conflict where, on the one hand, a debtor requests voluntary dismissal, while, on the other hand, a party in interest or the trustee moves to convert — ■ or the court, acting on its own, converts— the case to Chapter 7. The conflict between § 1307(b) and (c) has divided courts, including two of our sister circuits, with some courts holding that a debtor has an absolute right to dismiss under § 1307(b), notwithstanding pending motions to convert under § 1307(c), while other courts hold that a bankruptcy court retains the power to convert a case under § 1307(c), even in the face of a debtor’s request for dismissal under § 1307(b). Compare, e.g., Barbieri v. RAJ Acquisition Corp. (In re Barbieri), 199 F.3d 616, 619 (2d Cir.1999) (holding that, at any time prior to an actual order of conversion, “a debtor has an absolute right to dismiss a Chapter 13 petition under § 1307(b), subject only to the limitation explicitly stated in that provision”), with, e.g., Molitor v. Eidson (In re Molitor), 76 F.3d 218, 220 (8th Cir.1996) (rejecting “absolute” right of dismissal under § 1307(b) in cases involving bad faith or abuse of process, because “the purpose of the bankruptcy code is to afford the honest but unfortunate debtor a fresh start, not to shield those who abuse the bankruptcy process in order to avoid paying their debts”). See generally In re Jacobsen, 378 B.R. 805, 809 (Bankr.E.D.Tex.2007) (collecting cases on both sides of the split). Although we have not weighed in on this question, our circuit’s Bankruptcy Appellate Panel (BAP) adopted the “absolute right” approach in Beatty. See Beatty, 162 B.R. at 857 (“The better reasoned view is that a court must dismiss the" }, { "docid": "4602054", "title": "", "text": "intent of the Code and Congress’s attempt to curb abusive bankruptcy filings. Therefore the Court ordered dismissal of the case with prejudice by prohibiting the debtor from filing another case for 180 days. The Court justified this sua sponte action under section 349(a) and section 105 of the Code. In Lerch v. Federal Land Bank of St. Louis (In re Lerch), 94 B.R. 998 (D.N.D.Ill.1989), the district court affirmed the bankruptcy court’s dismissal of a chapter 12 case with prejudice under section 349(a). In that ease the debtor sought dismissal of her case under section 1208(b) of the Code, which is the counterpart to section 1307(b) in the family farmer chapter of the Code. The bankruptcy court had dismissed the case but retained jurisdiction to permit creditors to file motions seeking dismissal with prejudice under section 349(a). One such motion was filed and the bankruptcy court found that cause existed for dismissal with prejudice and prohibited the debtor from refiling another bankruptcy case for two years. In In re Merritt, 39 B.R. 462 (Bankr.E.D.Pa.1984), the court expressly addressed the question of whether the mandate of section 1307(b) that the court shall dismiss the case required immediate dismissal or permitted the court to delay dismissal pending its determination of whether the dismissal should be qualified under section 349. In a thoughtful analysis the court concluded that a voluntary dismissal could appropriately be delayed in order to permit the court to consider how other interests should be protected under section 349(b). See also, In re Conley, 105 B.R. 116 (D.S.D.Fla.1989), where the district court reversed the bankruptcy court’s one-year refiling prohibition because there was no finding of cause. The Court did not, however, question the appropriateness of dismissal with prejudice where cause existed. So far as appears no court has held that a voluntary dismissal must be without prejudice. The courts are split, however, as to whether the court must dismiss a chapter 13 case on a section 1307(b) motion in the face of a competing motion to keep the case in the bankruptcy process by converting it to chapter 7 pursuant" }, { "docid": "18568226", "title": "", "text": "to dismiss a Chapter 13 case. See, In re Benediktsson, 34 B.R. 349, 11 B.C.D. 209 (Bkrtcy.W.D.Wash.1983) and cases cited therein; In re Gillion, 36 B.R. 901 (D.C.E.D.Ark.1983), rev’g, 31 B.R. 550, 10 B.C.D. 1354 (Bkrtcy.E.D.Ark., 1983). This Court is mindful of the potential for abuse were Chapter 13 debtors able to use with impunity the bankruptcy court as a legal playground or revolving door, filing and dismissing bankruptcy cases at will so as to delay, frustrate and harass legitimate creditor interests. See, e.g., In re Bystrek, 17 B.R. 894 (Bkrtcy.E.D.Pa. 1982); In re Whitten, 11 B.R. 333 (Bkrtcy. D.C.1981). Those debtors who attempt to misuse the automatic stay or other protections or benefits attendant to Chapter 13, on the return date of a motion to convert, might then move to dismiss as of right under § 1307(b). If it can be demonstrated that the Chapter 13 case was filed for an improper purpose, in bad faith or was otherwise filed to abuse or misuse the bankruptcy process, the bankruptcy court should deny such debtor-requested dismissal in favor of a pending motion to convert. See generally Ordin, The Good Faith Principle in the Bankruptcy Code: A Case Study, 38 The Business Lawyer 1795 (1983). No improper purpose, bad faith, misuse or abuse of the bankruptcy process having been alleged by the trustee or any other party in interest herein, this Court is satisfied that the legislative history and case law interpreting § 1307(b) and (c) permit dismissal of these cases on the debtors’ motions, notwithstanding that conversion to Chapter 7 might, as the trustee alleges, be in the best interest of creditors. It is therefore, ORDERED that the debtors’ motions pursuant to 11 U.S.C. § 1307(b) to dismiss their Chapter 13 cases are granted; the Chapter 13 trustee’s motions pursuant to § 1307(c) for conversion of the cases to Chapter 7 are denied; and the within Chapter 13 cases are hereby dismissed; and it is further ORDERED that the Chapter 13 trustee be awarded the sum of $50.00 in each case as reimbursement of administrative costs and expenses." }, { "docid": "13706263", "title": "", "text": "B.R. at 320 (applying R. 9021(a) to conversion order); Merritt, 39 B.R. at 464. Moreover, even after dismissal, the Bankruptcy Court may retain jurisdiction for the purpose of enforcing any order necessary to protect against or remedy an abuse of its process. 11 U.S.C. § 105(a). See In re Fairway Missionary Baptist Church, 131 B.R. 407 (Bankr.W.D.Tenn.1991). Finally, the possibility that debtors may use the Court as a “merry-go-round” or “revolving door” for repetitious filings designed to hinder or harass creditors can be dispelled by involuntarily dismissing a case found to be brought in bad faith. Such a dismissal prevents a debtor from invoking the protection of Chapter 13 for a period of at least three months. 11 U.S.C. § 109(g)(1) (1988). IV. Conversion Under § 1307(c) Although bad faith may not be a ground for denying dismissal under § 1307(b), a debtor’s right to dismissal under that subsection is not absolute. Section 1307(b) itself limits dismissal to cases that have not previously been converted from Chapter 7, 11 or 12. Furthermore, § 1307(c) provides for conversion from Chapter 13 to Chapter 7 (or for involuntary dismissal) at the request of a creditor. That subsection states: (c) Except as provided in subsection (e) of this section [exempting farmers], on request of a party in interest or the United States trustee and after notice and a hearing, the court may convert a case under this chapter [Chapter 13] to a case under chapter 7 of this title [Title 11], or may dismiss a case under this chapter [Chapter 13], whichever is in the best interests of creditors and the estate, for cause.... 11 U.S.C. § 1307(c) (1988) (emphasis added). It is evident from a reading § 1307(c) that consent of the debtor is not required for conversion. In fact, that subsection makes it clear that certain types of misconduct by the debtor (e.g., delay that unreasonably prejudices creditors or failure to comply with the requirements of Chapter 13) may constitute “cause” for conversion. Furthermore, § 1307(e) which prohibits conversion “if the debtor is a farmer, unless the debtor requests such conversion”" } ]

[ { "docid": "16753328", "title": "", "text": "in Indianapolis. Spears moved to dismiss the indictment because of pre-indictment delay and vindictive prosecution. On July 7, 1995, the district court denied this motion. Spears filed a motion to reconsider, and the court again denied his motion. On September 19,1995, a jury found Spears guilty of the firearms charge in violation of 18 U.S.C. § 922(g)(1) and he was ultimately sentenced to 105 months imprisonment followed by three years of supervised release. On January 5, 1998, Spears filed a timely notice of appeal. ANALYSIS I. Pre-Indictment Delay as a Due Process Violation Spears argues that his conviction should be vacated because the government’s unjustified delay in bringing the indictment almost forty-four months after he committed the offense violated his due process rights. We review this claim for an abuse of discretion. United States v. Fuzer, 18 F.3d 517, 519 (7th Cir.1994). While a defendant’s primary safeguard against unreasonable prose-cutorial delay lies in the applicable statute of limitations, we have also noted that the Fifth Amendment’s due process clause plays a limited role in assuring that the government does not subject a defendant to oppressive delay. United States v. Canoy, 38 F.3d 893, 901 (7th Cir.1994). For a defendant to successfully assert a due process violation based on an unjustified pre-indictment delay, he must first show that the delay caused actual and substantial prejudice to his right to a fair trial. United States v. Sowa, 34 F.3d 447, 450 (7th Cir.1994), cert. denied, 513 U.S. 1117, 115 S.Ct. 915, 130 L.Ed.2d 796 (1995). In order to prove actual and substantial prejudice, the defendant must show more than mere speculative harm. Canoy, 38 F.3d at 902. The allegations of prejudice must be specific, concrete, and supported by the evidence. Id. (quoting United States v. Koller, 956 F.2d 1408, 1415 (7th Cir.1992)). If the defendant can establish actual and substantial prejudice, the government must then show that the purpose for the delay was not to gain a tactical advantage over the defen dant or for some other impermissible reason. Sowa, 34 F.3d at 450-51. Spears claims that the pre-indictment delay actually and" } ]

[ { "docid": "3286205", "title": "", "text": "and unproductive leads, the federal investigators finally located a worthwhile witness. The investigators interviewed this witness on December 17, 1991. The government was then able to piece together the events of September 8, 1988, despite reluctant (even hostile) witnesses, and the grand jury returned an indictment on November 4, 1992. II. Analysis Sowa’s first issue on appeal is that the district court abused its discretion when it denied his motion to dismiss due to pre-indictment delay. Sowa argues that the government’s delay in indicting him violated his Fifth Amendment right to due process. It seems that Sowa can no longer remember the events of September 8, 1988, because he has extensively and excessively abused drugs and alcohol since then. As a result of his memory loss, Sowa claims that he cannot help his attorney present a defense to the federal charges. Since he claims to have aided in the presentation of his defense to the state charges, he blames the government’s delay in bringing the indictment against him for his inability to present a defense in the district court. We have noted on many occasions that statutes of limitations are the primary safeguard of a right to a timely indictment. See, e.g., United States v. Ashford, 924 F.2d 1416, 1419 (7th Cir.1991) (citation omitted). The Due Process clause, however, plays “a limited role in protecting against oppressive delay.” United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). The role of the Due Process clause is limited, indeed; we have never characterized a pre-indictment delay as a constitutional violation. To establish that a pre-indictment delay violated due process, Sowa must prove that the delay caused actual and substantial prejudice to his fair trial rights, and there must be a showing that the government delayed indictment to gain a tactical advantage or some other impermissible reason. United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971). With respect to the first prong, we require that allegations of actual and substantial prejudice be “specific, concrete, and supported by evidence.” Pharm" }, { "docid": "5790981", "title": "", "text": "337. A significant majority of our sister circuits appear to now follow the same rule, namely that where limitations has not run dismissal for preindictment delay requires a showing not only of substantial, actual prejudice, but also that the prosecutor intentionally delayed to gain tactical advantage or to advance some other improper purpose. See, e.g., United States v. Mills, 925 F.2d 455, 464 (D.C.Cir.1991), cert. denied, 506 U.S. 977, 113 S.Ct. 471, 121 L.Ed.2d 378 (1992) (“... pre-indictment delay ... offends due process if the defendant can carry the burden of showing (1) that the government delayed bringing the indictment in order to gain a tactical advantage; and (2) that the delay caused him actual and substantial prejudice”); United States v. Crooks, 766 F.2d 7, 11 (1st Cir.), cert. denied, 474 U.S. 996, 106 S.Ct. 421, 88 L.Ed.2d 362 (1985) (“An indictment brought within an applicable statute of limitations period is, constitutionally speaking, late only if the delay significantly prejudices the defendant and the government ‘intentionally delayed’ the indictment ‘to gain an unfair tactical advantage or for other bad faith motives’ ”; emphasis added); United States v. Hoo, 825 F.2d 667, 671 (2d Cir.1987), cert. denied, 484 U.S. 1035, 108 S.Ct. 742, 98 L.Ed.2d 777 (1988); United States v. Ismaili, 828 F.2d 153, 167 (3d Cir.1987) (“to sustain a dismissal of charges on the grounds of pre-indictment delay pursuant to the Due Process Clause, a defendant must bear the burden of proving two essential facts: (1) that the government intentionally delayed in order to gain some tactical advantage over him, and that (2) this intentional delay caused the defendant actual prejudice”; foot note omitted); United States v. Brown, 959 F.2d 63, 66 (6th Cir.1992) (“This court has consistently read Lovasco to hold that ‘dismissal for pre-indictment delay is warranted only when the defendant shows [1] substantial prejudice to his right to a fair trial and [2] that the delay was an intentional device by the government to gain a tactical advantage’ ”); United States v. Sowa, 34 F.3d 447, 450 (7th Cir.1994); United States v. Engstrom, 965 F.2d 836, 839" }, { "docid": "11394195", "title": "", "text": "Attorney’s office brought the federal charges against him nine months after the last dismissal of the state charges. The statute of limitations is the primary safeguard against prosecutorial delay; however, the Due Process Clause also plays a limited role in protecting defendants from oppressive delay. United States v. Nichols, 937 F.2d 1257, 1260 (7th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 989, 117 L.Ed.2d 151 (1992) (citing United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977)). This circuit has recognized two different standards for establishing a violation of due process by delay. United States v. Koller, 956 F.2d 1408, 1415 (7th Cir.1992); United States v. Williams, 738 F.2d 172, 175 (7th Cir.1984). Under one standard, the defendant must first demonstrate actual and substantial prejudice from the delay. After this showing, “the burden shifts to the government to show that the delay was necessary.” Roller, 956 F.2d at 1415. Then, “the court must balance the prejudice from the delay against the asserted reasons for delay.” Id. See also United States v. Solomon, 688 F.2d 1171, 1179 (7th Cir.1982). Another fine of cases applies a different standard in determining whether a due process violation has occurred. This standard derives from United States v. DeTienne, 468 F.2d 151 (7th Cir.1972), cert. denied, 410 U.S. 911, 93 S.Ct. 977, 35 L.Ed.2d 274 (1973), in which the court held that the defendants did not make out a due process violation under the Fifth Amendment because they did not show that the delay “caused substantial prejudice to their rights to a fair trial and that the delay was an intentional device to gain technical advantage over the accused.” Id. at 156. This eventually evolved into the standard enunciated in United States v. Watkins, 709 F.2d 475 (7th Cir.1983), in which this court stated that the defendant bears the burden of proving both that “the delay caused actual and substantial prejudice to his or her fair trial rights and that the government delayed indictment for tactical advantage or some other impermissible reason.” Id. at 479. This standard has since" }, { "docid": "6857140", "title": "", "text": "the indictment, this time asserting that, in addition to Kolp, several other potential witnesses who could have assisted his defense were also dead: Michael Crocker testified at the trial that it was Ray Grisham not the Defendant, Jerry Pardue, who approached him and solicited him to execute the loan documents referred in Count 5 of the Superseding indictment. Also, Michael Crocker testified that he knew the purpose of the loan and, although he had been advised that Choice 2000 would repay the loan, and that he knew he, as signator, he [sic] was personally responsible for the loan. The Defendant, Jerry Pardue, testified that he acted in “good faith” upon the advice of John Kolp and at the director [sic] of the Choice 2000 Board of Directors, including Director and former President Ray Grisham and former Vice-President of Finance and Director Carlyle Buss. The district court denied this motion as well. On appeal, Pardue claims that the prein-dictment delay caused actual prejudice to him, in violation of his due process rights, because five material witnesses had died pri- or to his trial. A district court’s decision to deny a motion to dismiss for prosecutorial delay is reviewed for an abuse of discretion. United States v. Fuzer, 18 F.3d 517 (7th Cir.1994). An abuse of discretion occurs when no reasonable person could take the view adopted by the district court. United States v. Van Wyhe, 965 F.2d 528 (7th Cir.1992). A defendant’s primary protection against overly stale criminal charges is the applicable statute of limitations, which is the legislative limit on prosecutorial delay. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). However, the Due Process Clause of the Fifth Amendment on occasion plays a limited role in protecting defendants against egregious delay. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Canoy, 38 F.3d 893 (7th Cir.1994). To establish that preindictment delay violated the Due Process Clause, a defendant must show that the delay caused actual and substantial prejudice to his right to a fair trial, and" }, { "docid": "11707282", "title": "", "text": "closing arguments, Gladney made an oral motion to dismiss the indictment based upon pre-indictment delay. The district court declined to address the motion, and directed Gladney to submit his motion in writing after trial. The jury convicted Gladney on the conspiracy and distribution charges, and the district court denied Gladney’s motion to dismiss the indictment. Gladney appeals the district court’s denial of his motion to dismiss and the court’s rejection of his proposed jury instruction regarding the credibility of an addict-informer. II. DISCUSSION A. Motion to Dismiss the Indictment Gladney argues the district court erred in denying his motion to dismiss the indictment based upon pre-indictment delay. We review the district court’s denial of Gladney’s motion to dismiss for clear error. United States v. Haskell, 468 F.3d 1064, 1070 (8th Cir.2006). The Fifth Amendment’s Due Process Clause protects a criminal defendant against unreasonable pre-indictment delay. Id. To prove a violation of his due process rights, Gladney must establish the delay resulted in actual and substantial prejudice to the presentation of the defense and the government intentionally delayed Gladney’s indictment either to gain a tactical advantage or to harass him. Id. The court will inquire into the reasons for delay only where actual prejudice has been established. United States v. Sturdy, 207 F.3d 448, 452 (8th Cir.2000). To establish actual prejudice, a defendant must identify witnesses or documents lost during the delay period. Id. However, actual prejudice cannot be established by defendant’s speculative or conclusory claims of possible prejudice as a result of the passage of time. Id. The defendant carries the burden to show the lost testimony or information is not available through other means. Id. The government contends the district court did not err in denying Gladney’s motion to dismiss because his motion was untimely. We agree. Gladney had sufficient time to raise the pre-indictment delay issue earlier than he did. See United States v. Farmer, 312 F.3d 933, 936 (8th Cir.2002). In Farmer, we found the defendant’s claim of pre-indictment delay made after trial had commenced was untimely; thus, we did not consider the merits of the claim." }, { "docid": "6857142", "title": "", "text": "beyond that there must be a showing that the government delayed to gain a tactical advantage or slowed the process down for some other impermissible reason. Marion; Lovasco. A defendant’s showing of prejudice must be in the form of concrete evidence of material harm, which can include, as is relevant here, a loss of a vital defense witness. United States v. Van Engel, 15 F.3d 623 (7th Cir.1993), cert. denied, 511 U.S. 1142, 114 S.Ct. 2163, 128 L.Ed.2d 886 (1994). We have determined that a claim of prosecutorial delay involves burden shifting. Once a defendant has proven actual and substantial prejudice it is up to the government to come forward with its reasons for the delay. Those reasons are then balanced against the prejudice to the defendant to determine whether due process has been violated. United States v. Sowa, 34 F.3d 447 (7th Cir.1994), cert. denied, 513 U.S. 1117, 115 S.Ct. 915, 130 L.Ed.2d 796 (1995); Canoy. Our clarification of who bears the burden on these issues was not finally determined until 1994 in Sowa; as we explained in that case, we had not squarely confronted the issue because we had never before found actual and substantial prejudice. And that is the case once again. Purdue cannot establish that he was prejudiced. His defense at trial was that he acted in good faith. That was the defense which the missing witnesses were supposedly going to help him establish. He never, however, explained in what regard their testimony would be helpful nor how he was prejudiced by its absence. As the district court observed, it is likely that, had they been alive, two of the witnesses-John Kolp and Ray Grisham-would have been indicted along with Pardue. Pardue's failure to provide any concrete basis for his claim of prejudice is a sufficient basis for the denial of his motion. We will nevertheless flesh out briefly why it is extremely unlikely that any of the missing witnesses would have been helpful to Purdue. First we note that Pardue had a lot of baggage to overcome. He had been placed on notice by an" }, { "docid": "6857141", "title": "", "text": "had died pri- or to his trial. A district court’s decision to deny a motion to dismiss for prosecutorial delay is reviewed for an abuse of discretion. United States v. Fuzer, 18 F.3d 517 (7th Cir.1994). An abuse of discretion occurs when no reasonable person could take the view adopted by the district court. United States v. Van Wyhe, 965 F.2d 528 (7th Cir.1992). A defendant’s primary protection against overly stale criminal charges is the applicable statute of limitations, which is the legislative limit on prosecutorial delay. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). However, the Due Process Clause of the Fifth Amendment on occasion plays a limited role in protecting defendants against egregious delay. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Canoy, 38 F.3d 893 (7th Cir.1994). To establish that preindictment delay violated the Due Process Clause, a defendant must show that the delay caused actual and substantial prejudice to his right to a fair trial, and beyond that there must be a showing that the government delayed to gain a tactical advantage or slowed the process down for some other impermissible reason. Marion; Lovasco. A defendant’s showing of prejudice must be in the form of concrete evidence of material harm, which can include, as is relevant here, a loss of a vital defense witness. United States v. Van Engel, 15 F.3d 623 (7th Cir.1993), cert. denied, 511 U.S. 1142, 114 S.Ct. 2163, 128 L.Ed.2d 886 (1994). We have determined that a claim of prosecutorial delay involves burden shifting. Once a defendant has proven actual and substantial prejudice it is up to the government to come forward with its reasons for the delay. Those reasons are then balanced against the prejudice to the defendant to determine whether due process has been violated. United States v. Sowa, 34 F.3d 447 (7th Cir.1994), cert. denied, 513 U.S. 1117, 115 S.Ct. 915, 130 L.Ed.2d 796 (1995); Canoy. Our clarification of who bears the burden on these issues was not finally determined until 1994 in Sowa;" }, { "docid": "14523742", "title": "", "text": "Wright argues that he had a child because he believed that he would not be prosecuted. There is absolutely no case law to support the argument that the birth of a child can be used to support a claim of prejudice from a preindictment delay. Furthermore, his wife became pregnant before the First Superseding Indictment was dismissed in 1997 and therefore, the delay had no bearing whatsoever on Wright’s family planning decisions. Next, Wright claims that the delay caused emotional strain on his wife, who testified that she was taking antidepressants and other medications at the time of trial. Again, Wright can cite to no case law that supports his argument that emotional trauma to a witness establishes prejudice. Furthermore, Wright cannot support his assertion that his wife’s emotional trauma was a result of the delay, and not simply the result of the stress of the trial and a 1999 automobile accident. Wright is unable to satisfy his “heavy burden to prove that pre-indictment delay caused actual prejudice.” United States v. Butz, 982 F.2d 1378, 1380 (9th Cir.1993). Because Wright is unable to establish prejudice, we need not consider the second part of the Due Process inquiry, in which a defendant must establish that delay was intentionally caused in order to gain a tactical advantage. Furthermore, Wright’s statute of limitations claim also must fail because he is unable to show actual prejudice. Accordingly, the district court did not abuse its discretion in denying Wright’s motion to dismiss the indict ment based on violations of the statute of limitations and the Due Process Clause. B. Prosecutorial Misconduct Wright argues that the improper reference to a Government exhibit and statements made by the prosecutor during closing arguments rose to the level of prosecutorial misconduct. Where a defendant makes no objection to a prosecutor’s statements at trial, the standard of review is plain error. United States v. Collins, 78 F.3d 1021, 1039 (6th Cir.1996). “To establish plain error, a defendant must show (1) that an error occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that" }, { "docid": "23646880", "title": "", "text": "by the government and that he was prejudiced by having to mount a separate defense at the later DeCologero trial. We review the district court’s refusal to dismiss the charges due to pre-indictment delay for abuse of discretion. Muñoz-Franco, 487 F.3d at 58. The court correctly determined there was no constitutional violation here. Pre-indictment delay does not implicate the Sixth Amendment’s Speedy Trial provision, but the Supreme Court has acknowledged that the Due Process Clause of the Fifth Amendment “has a limited role to play in protecting against oppressive [pre-indictment] delay.” United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977) (summarizing United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)). The Due Process Clause has only a limited role in this context because the statutes of limitations provide the primary protection against undue pre-indictment delays. Id.; Soto-Beníquez, 356 F.3d at 25. To rise to the level of a due process violation despite the applicable statute of limitations not having run, the delay (1) must have “caused substantial prejudice to [defendant’s] rights to a fair trial” and (2) “was an intentional device” used by the prosecution “to gain tactical advantage over the accused.” Marion, 404 U.S. at 324, 92 S.Ct. 455; see also Soto-Beníquez, 356 F.3d at 25. “Substantial prejudice” means more than inconvenience; it requires a showing of actual prejudice, and even the unavailability of witnesses or evidence might not be sufficient to meet this burden. See Muñoz-Franco, 487 F.3d at 59. Paul A. argues that the separate trials prevented him from developing his defense — that Regan worked for Salemme and was framing Paul A. in the context of the war between the Carrozza and Salemme factions — in the second case. The exclusion of some evidence in the present trial did not cause Paul A. substantial prejudice, as he was still allowed to present his defense theory to the jury, even if not to the full extent he desired. There is also no evidence suggesting a prosecutorial purpose of obtaining tactical advantage as there is no" }, { "docid": "16172955", "title": "", "text": "Grier and that he was at home during the entire day of the robbery. The testimony of Margaret Blackman would have simply corroborated the alibi defense ultimately offered by Cassandra Blackman. As we have stated, “the absence of cumulative testimony cannot, as a matter of law, result in actual prejudice.” Spears, 159 F.3d at 1085-86 (quoting United States v. Comosona, 848 F.2d 1110, 1114 (10th Cir.\\1988)). To the extent that the jury may have viewed Cassandra Blackman’s testimony as biased or unworthy of credence because she was a member of Grier’s family, Margaret Blackman’s testimony would have done little to cure these perceptions. Accordingly, Grier failed to demonstrate that he suffered actual and substantial prejudice as a result of the pre-indictment delay. We recognize in passing that even if we were to conclude that Grier suffered actual and substantial prejudice, the government offered a credible explanation for the delayed filing of the indictment that would not be outweighed by the prejudice claimed by Grier. The government informed the district court that the timing of the indictment was designed to permit the pursuit of evidence that would corroborate the information provided to the government by Brown after he implicated his co-defendants. The government explained that it was necessary to obtain and analyze bank records, hotel records, credit histories and employment histories, among other evidence. The timing of the indictment was further necessitated to provide the government with an opportunity to pursue evidence of the defendants’ use of the proceeds of the robbery. Finally, it is also worth noting that there has been no showing that the explanation offered by the government was pretextual. Grier has pointed to no evidence suggesting that the government even knew of Margaret Black-man’s existence or her health condition. The cause of the delay can only be characterized as investigatory in nature, and in such cases, we will not find a due process violation. See Sowa, 34 F.3d at 451. B. Sentencing Disparities McMutuary and Grier claim that the district court erred in refusing to consider the disparity between Brown’s sentence and their own sentences as a" }, { "docid": "12096371", "title": "", "text": "constitutional basis for the defendant’s argument is not the sixth amendment, but the due process clause of the fifth amendment. United States v. Fuesting, 845 F.2d 664, 669 (7th Cir.1988). “Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause.” United States v. MacDonald, 456 U.S. 1, 7, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696 (1982) (footnote omitted). Statutes of limitations are a defendant’s primary safeguard against governmental delay that results in prosecution of stale criminal charges. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 464, 30 L.Ed.2d 468 (1971); United States v. Antonino, 830 F.2d 798, 804 (7th Cir. 1987). A defendant may demonstrate that the government violated his due process rights through preindictment delay, even if the indictment is brought within the statute of limitations, if it can be shown “(1) that the government delayed bringing the indictment in order to gain a tactical advantage; and (2) that the delay caused him actual and substantial prejudice.” Fuesting, at 669; United States v. Gouveia, 467 U.S. 180, 192, 104 S.Ct. 2292, 2299, 81 L.Ed. 2d 146 (1984); Lovasco, 431 U.S. at 789-90, 97 S.Ct. at 2048. The defendant has failed to carry his burden of showing actual and substantial prejudice. He suggests in his brief that between the time the first indictment was dismissed and the time he was reindicted (September 11,1986 to April 21,1987) he suffered anxiety and concern. At a motion hearing before trial, defense counsel stated that the defendant had suffered difficulties in finding employment, marital problems, the deprivation of his motor vehicle, and a possible lapse of memory. Under the line of Seventh Circuit cases dealing with preindictment delay, these vague allegations are clearly insufficient to establish prejudice. See Fuesting, at 669; Antonino, 830 F.2d at 804-05; United States v. Perry, 815 F.2d 1100, 1103-04 (7th Cir.1987); United States v. Jones, 808 F.2d 561, 567 (7th Cir.1986), cert. denied," }, { "docid": "12831870", "title": "", "text": "offenses charged in the superseding indictment and returned a special verdict against defendant on the forfeiture count. Following his sentencing, defendant appealed. Discussion Defendant’s sole argument on appeal is that the district court erred in failing to dismiss the superseding indictment on the basis of preindictment delay in violation of his rights under the Due Process Clause. Defendant maintains that he did not waive the right to raise this issue on appeal by failing to reassert it in a post-trial motion because, following a trial, “[t]he district court is free to reevaluate whether the delay has caused [the defendant] such prejudice as to impair the fairness of the trial.” United States v. Bartlett, 794 F.2d 1285, 1294 (8th Cir.), cert. denied, 479 U.S. 934, 107 S.Ct. 409, 93 L.Ed.2d 361 (1986). “To show preindictment delay violated the Due Process Clause, a defendant must first show the delay actually and substantially prejudiced the defendant. If the defendant establishes actual, substantial prejudice, then the court balances the reasons for the delay against the prejudice shown.” United States v. McDougal, 133 F.3d 1110, 1113 (8th Cir.1998) (citing Bennett v. Lockhart, 39 F.3d 848, 851(8th Cir.1994), cert. denied, 514 U.S. 1018, 115 S.Ct. 1363, 131 L.Ed.2d 219 (1995), and United States v. Bartlett, 794 F.2d at 1289). If actual and substantial prejudice has been demonstrated, the government may be required to show that the delay was for investigative purposes or some other legitimate reason. See, e.g., United States v. Lovasco, 431 U.S. 783, 795-96, 97 S.Ct. 2044, 2051-52, 52 L.Ed.2d 752 (1977) (“In our view, investigative delay is fundamentally unlike delay undertaken by the Government solely ‘to gain tactical advantage over the accused’---- [T]o prosecute a defendant following investigative delay does not deprive him [or her] of due process, even if his [or her] defense might have been somewhat prejudiced by the lapse of time.”); United States v. Bartlett, 794 F.2d at 1293-94 & nn. 12-14 (commenting, in dictum, on the government’s justification for the delay and concluding “[w]e ... have difficulty finding in the government’s decision to delay indicting [the defendant] an appropriate" }, { "docid": "3286206", "title": "", "text": "in the district court. We have noted on many occasions that statutes of limitations are the primary safeguard of a right to a timely indictment. See, e.g., United States v. Ashford, 924 F.2d 1416, 1419 (7th Cir.1991) (citation omitted). The Due Process clause, however, plays “a limited role in protecting against oppressive delay.” United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). The role of the Due Process clause is limited, indeed; we have never characterized a pre-indictment delay as a constitutional violation. To establish that a pre-indictment delay violated due process, Sowa must prove that the delay caused actual and substantial prejudice to his fair trial rights, and there must be a showing that the government delayed indictment to gain a tactical advantage or some other impermissible reason. United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971). With respect to the first prong, we require that allegations of actual and substantial prejudice be “specific, concrete, and supported by evidence.” Pharm v. Hatcher, 984 F.2d 783, 787 (7th Cir.1993). Sowa put forth evidence that he remembered the events in question at the time of his state prosecution, that he extensively abused alcohol and drugs for much of his life, and that he can no longer remember what happened on September 8, 1988. The district court believed Sowa and his witnesses and found that Sowa had proved actual and substantial prejudice resulting from the delay. This case is highly unusual; we have never encountered a case of actual and substantial prejudice resulting from a pre-indictment delay. While we are unsure that, upon de novo review, we would find such prejudice in the case of a defendant who deliberately destroys his own memory to his detriment, we cannot say that the district court abused its discretion in reaching its conclusion in this case. Sowa’s claim, however, fails to meet the requirements of the second prong. With respect to the government’s delay, due process is only implicated if the government purposely delayed the indictment to take advantage, tactically, of" }, { "docid": "16172952", "title": "", "text": "present the testimony of a material witness who died during the period of the government’s delay. Furthermore, Grier submits that the prejudice he suffered was not outweighed by the government’s proffered justification for its delay. Accordingly, Grier contends that the district court erred in denying his motion to dismiss the indictment based on pre-indictment delay. We review a district court’s decision to deny a motion to dismiss an indictment for prosecutorial delay for an abuse of discretion. See United States v. Spears, 159 F.3d 1081, 1084 (7th Cir.1998); United States v. Pardue, 134 F.3d 1316, 1319 (7th Cir.1998). A defendant’s primary safeguard against unreasonable prosecutorial delay is derived from the applicable statute of limitations. See Pardue, 134 F.3d at 1319. However, “we have also noted that the Fifth Amendment’s due process clause plays a limited role in assuring that the government does not subject a defendant to oppressive delay.” Spears, 159 F.3d at 1084. To establish that a pre-indictment delay violated the Due Process Clause, a defendant first must demonstrate that the delay caused actual and substantial prejudice to his right to a fair trial. See United States v. Sowa, 34 F.3d 447, 450 (7th Cir.1994). A defendant’s burden to show actual and substantial prejudice is an exacting one; the showing must rest upon more than mere speculative harm. See United States v. Canoy, 38 F.3d 893, 902 (7th Cir.1994). The defendant’s allegations of actual and substantial prejudice must be “specific, concrete, and supported by evidence.” Sowa, 34 F.3d at 450 (quoting Pharm v. Hatcher, 984 F.2d 783, 787 (7th Cir.1993)); see also United States v. Holler, 956 F.2d 1408, 1415 (7th Cir.1992). If the defendant succeeds in showing prejudice, the burden shifts to the government “[to] show that the purpose of the delay was not to gain a tactical advantage over the defendant or for some other impermissible reason.” Spears, 159 F.3d at 1084-85; see also Sowa, 34 F.3d at 451. As stated, Grier’s claim of actual and substantial prejudice is related entirely to his inability to call a single witness at trial. Grier contends that the testimony of" }, { "docid": "5790982", "title": "", "text": "or for other bad faith motives’ ”; emphasis added); United States v. Hoo, 825 F.2d 667, 671 (2d Cir.1987), cert. denied, 484 U.S. 1035, 108 S.Ct. 742, 98 L.Ed.2d 777 (1988); United States v. Ismaili, 828 F.2d 153, 167 (3d Cir.1987) (“to sustain a dismissal of charges on the grounds of pre-indictment delay pursuant to the Due Process Clause, a defendant must bear the burden of proving two essential facts: (1) that the government intentionally delayed in order to gain some tactical advantage over him, and that (2) this intentional delay caused the defendant actual prejudice”; foot note omitted); United States v. Brown, 959 F.2d 63, 66 (6th Cir.1992) (“This court has consistently read Lovasco to hold that ‘dismissal for pre-indictment delay is warranted only when the defendant shows [1] substantial prejudice to his right to a fair trial and [2] that the delay was an intentional device by the government to gain a tactical advantage’ ”); United States v. Sowa, 34 F.3d 447, 450 (7th Cir.1994); United States v. Engstrom, 965 F.2d 836, 839 (10th Cir.1992) (“there must be both a showing of actual prejudice and evidence that the delay was purposeful in order to gain a tactical advantage ... a defendant must meet this two-pronged test”); United States v. Hayes, 40 F.3d 362, 365 (11th Cir.1994) (“In this circuit, the defendant must show that he suffered substantial prejudice and that the delay was the product of deliberate action by the Government to gain a tactical advantage”). We conclude that several other considerations also strongly militate against utilizing a Townley-type balancing test to determine whether prejudicial preindictment delay violates due process and in favor of requiring that the delay have been intentionally caused by the prosecution to gain a tactical advantage over the defendant or for some other bad faith purpose. The Townley test purports to weigh or balance the extent or degree of the actual prejudice against the extent to which the government’s “good faith reasons” for the delay deviate from what the court believes to be appropriate. However, what this test seeks to do is to compare" }, { "docid": "9182032", "title": "", "text": "only to whether the hearing itself was constitutionally adequate. The delay alone does not constitute a due process violation. Supreme Court precedent provides that statutes of limitation are the primary line of defense against prosecutorial delay, Betterman v. Montana , --- U.S. ----, 136 S.Ct. 1609, 1613, 194 L.Ed.2d 723 (2016), but Chicago's yard weed ordinance does not have one. Discount Inn, Inc. v. City of Chicago , 803 F.3d 317, 327 (7th Cir. 2015) (rejecting constitutional challenge to Chicago weed and fencing ordinances based on lack of limitations period). Yet the Supreme Court has also held that due process has \"a limited role to play in protecting against oppressive delay.\" United States v. Lovasco , 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). Such violations occur only where the delay \"violates those fundamental conceptions of justice which lie at the base of our civil and political institutions ... and which define the community's sense of fair play and decency.\" Id. at 790, 97 S.Ct. 2044 (quotations omitted). An accused must demonstrate \"actual and substantial prejudice,\" at which point the burden shifts to the government to show the reason for its delay was not improper. United States v. Henderson , 337 F.3d 914, 920 (7th Cir. 2003) ; see also United States v. Sowa , 34 F.3d 447, 450-51 (7th Cir. 1994) (discussing burden shifting). To demonstrate actual and substantial prejudice, \"[I]t is not enough to show the mere passage of time nor to offer some suggestion of speculative harm; rather, the defendant must present concrete evidence showing material harm.\" Wilson v. McCaughtry , 994 F.2d 1228, 1234 (7th Cir. 1993) (quotation omitted). Tucker asserts the city's delay caused her prejudice in that she was unable \"to make any measurements of the average height of the vegetation on her lot at or near the time of inspection\" or to use \"photographs taken contemporaneously with the date of the alleged violation.\" (Amended Complaint ¶¶ 29, 64.) Such allegations do not plausibly demonstrate actual and substantial prejudice. Every prosecution necessarily occurs after the alleged violation. Many defendants wish they" }, { "docid": "16172951", "title": "", "text": "the district court sentenced them to the lowest sentences available under the Guidelines for the conspiracy and armed robbery offenses combined with the required consecutive sixty-month sentence for the violation of § 924(c). The district court sentenced Grier to a term of 138 months in prison. Because of an enhancement for his perjury conviction, McMutuary received a term of imprisonment of 195 months. Grier now appeals the denial of the motion to dismiss the indictment based on prejudicial pre-indictment delay, and McMutuary and Grier both appeal the sentences imposed on them by the district court. II. Analysis A Pre-indictment Delay Grier was first named as a defendant in the superseding indictment returned by the grand jury on February 11, 1997 — nearly five years after the robbery. Grier claims that the government’s delay in prosecuting him caused him actual and substantial prejudice by severely hampering his ability to defend himself against the charges contained in the superseding indictment. Grier’s claim of actual and substantial prejudice is predicated upon his assertion that he was unable to present the testimony of a material witness who died during the period of the government’s delay. Furthermore, Grier submits that the prejudice he suffered was not outweighed by the government’s proffered justification for its delay. Accordingly, Grier contends that the district court erred in denying his motion to dismiss the indictment based on pre-indictment delay. We review a district court’s decision to deny a motion to dismiss an indictment for prosecutorial delay for an abuse of discretion. See United States v. Spears, 159 F.3d 1081, 1084 (7th Cir.1998); United States v. Pardue, 134 F.3d 1316, 1319 (7th Cir.1998). A defendant’s primary safeguard against unreasonable prosecutorial delay is derived from the applicable statute of limitations. See Pardue, 134 F.3d at 1319. However, “we have also noted that the Fifth Amendment’s due process clause plays a limited role in assuring that the government does not subject a defendant to oppressive delay.” Spears, 159 F.3d at 1084. To establish that a pre-indictment delay violated the Due Process Clause, a defendant first must demonstrate that the delay caused actual" }, { "docid": "2309751", "title": "", "text": "a potential witness died, and employment records were destroyed, any of which might have supported his defense. The prosecution counters that Henderson was not prejudiced in the presentation of his defense and that the delay occurred because McPhaul’s cooperation was not complete following his drug deal with Henderson and the government did not want to expose his informant status. Again, we review the district court’s decision not to dismiss for preindictment delay for an abuse of discretion. United States v. McMutuary, 217 F.3d 477, 481 (7th Cir.2000). We first note that the statute of limitations for a particular crime generally serves as a safeguard for defendants against unreasonable prosecutorial delay. Id. So long as the indictment is sought within the applicable time frame, and notwithstanding the possible loss of evidence or faded memories, the defendant will normally be able to defend himself adequately. United States v. Baker, 40 F.3d 154, 157 (7th Cir.1994). The applicable statute of limitations was five years. 18 U.S.C. § 3282 (2003). The drug deal between McPhaul and Henderson occurred on August 27-28, 1998, and the indictment was returned on December 19, 2001, well within the statute of limitations. Yet, the statute of limitations is not the only safeguard afforded a defendant. The defendant may establish a due process violation if the prosecutorial delay caused actual and substantial prejudice to the defendant’s right to a fair trial. McMutuary, 217 F.3d at 481-82. A defendant must first show more than mere speculative harm but instead must establish prejudice with facts that are specific, concrete, and supported by evidence. Id. at 482. If a defendant makes the proper showing, the burden shifts to the government to demonstrate that the “ ‘purpose of the delay was not to gain a tactical advantage over the defendant or for some other impermissible reason.’” Id. The government’s reasons are then balanced against the prejudice to a defendant to determine whether a due process violation occurred. United States v. Canoy, 38 F.3d 893, 902 (7th Cir.1994). We have previously held that the death of a potential witness alone is insufficient to establish actual" }, { "docid": "16172953", "title": "", "text": "and substantial prejudice to his right to a fair trial. See United States v. Sowa, 34 F.3d 447, 450 (7th Cir.1994). A defendant’s burden to show actual and substantial prejudice is an exacting one; the showing must rest upon more than mere speculative harm. See United States v. Canoy, 38 F.3d 893, 902 (7th Cir.1994). The defendant’s allegations of actual and substantial prejudice must be “specific, concrete, and supported by evidence.” Sowa, 34 F.3d at 450 (quoting Pharm v. Hatcher, 984 F.2d 783, 787 (7th Cir.1993)); see also United States v. Holler, 956 F.2d 1408, 1415 (7th Cir.1992). If the defendant succeeds in showing prejudice, the burden shifts to the government “[to] show that the purpose of the delay was not to gain a tactical advantage over the defendant or for some other impermissible reason.” Spears, 159 F.3d at 1084-85; see also Sowa, 34 F.3d at 451. As stated, Grier’s claim of actual and substantial prejudice is related entirely to his inability to call a single witness at trial. Grier contends that the testimony of his aunt, Margaret Blackman, was critical to his defense, but that he was unable to present this testimony because she died prior to the return of Grier’s indictment by the grand jury. According to the affidavit of Blackman’s daughter, Cassandra Black-man, had Margaret Blackman been called to testify at trial, she would have testified that she lived with Grier and that he did not leave their residence on the day of the robbery. Therefore, this testimony would have provided Grier with an alibi defense. Although the loss of a vital defense witness may satisfy a defendant’s burden to demonstrate prejudice, we do not conclude that Grier suffered actual and substantial prejudice as a result of his inability to call Margaret Blackman as a witness in the present case. In light of other testimony offered at trial on Grier’s behalf, it would be difficult to characterize Margaret Blackman as a “vital defense witness.” Her testimony would have been largely cumulative of the testimony offered by Cassandra Blackman, who testified that she, like Margaret Blackman, lived with" }, { "docid": "5791023", "title": "", "text": "L.Ed.2d 468 (1971), the Supreme Court held that the due process clause requires the dismissal of an indictment because of preindictment delay only when the delay causes 'substantial prejudice’ to the defense and the delay is an 'intentional device to gain tactical advantage oyer the accused.’ Id. at 324, 92 S.Ct. at 465... In any event, appellant has failed to show that the government had improperly delayed his prosecution in order to gain a tactical advantage.” Id. at 671. In his dissent from the denial of certiorari in Hoo, Justice White noted that the First, Third, Tenth, and Eleventh Circuits, as well as the Second, \"required a showing of prosecutorial misconduct designed to obtain a tactical advantage over the defendant or to advance some other impermissible purpose in order to establish a due process violation,” that the Fourth and Ninth Circuits applied a balancing test, and that there were intra-circuit conflicts in the Fifth and Seventh Circuits. Hoo v. United States, 484 U.S. 1035, 108 S.Ct. 742, 98 L.Ed.2d 777 (1988). . In Sowa, the Seventh Circuit stated: \"To establish that a pre-indictment delay violated due process, Sowa must prove that the delay caused actual and substantial prejudice to his fair trial rights, and there must be a showing that the government delayed indictment to gain a tactical advantage or some other impermissible reason. United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971)..... The district court ... found that Sowa had proved actual and substantial prejudice resulting from the delay. ... Sowa’s claim, however, fails to meet the requirements of the second prong. With respect to the government’s delay, due process is only implicated if the government purposely delayed the indictment to take advantage, tactically, of the prejudice or otherwise acted in bad faith.\" Id. at 450. . In United States v. Stierwalt, 16 F.3d 282, 285 (8th Cir.1994), the Court rejected the defendant's claim of preindictment delay, stating \"[ujnless there is a showing that the government intentionally delayed indictment to harass or to gain a tactical advantage, there can be no due" } ]

[ { "docid": "22173211", "title": "", "text": "(1972). This general rule is subject to one major exception. We have not confined our review to the abuse of discretion standard on issues of whether an ABA disciplinary rule prohibits certain professional conduct. Such issues “leave little leeway for the exercise of discretion.” American Roller Co. v. Budinger, 513 F.2d 982, 985 n. 3 (3d Cir. 1975). We have approached these issues as questions of law subject to plenary review. IBM v. Levin, 579 F.2d 271, 279 (3d Cir. 1978). In this case, the district court interpreted DR 9-101(B) to prohibit certain professional conduct. Its interpretation was not an exercise of discretion. However, in this case plenary review on appeal assumes a particular form. Because the district court relied on New Jersey law for its interpretation, it was bound by a controlling case of the Supreme Court of New Jersey. See In re Abrams, 521 F.2d 1094, 1102-03 (3d Cir.) (in banc), cert. denied, 423 U.S. 1038, 96 S.Ct. 574, 46 L.Ed.2d 413 (1975). On appeal, our review of this issue is directed to a determination of whether the district court correctly read state law. However, the foregoing discussion concerns only the district court’s interpretation of a disciplinary rule, not the court’s use of disqualification as a sanction. Although disqualification ordinarily is the result of a finding that a disciplinary rule prohibits an attorney’s appearance in a case, disqualification never is automatic. See Church of Scientology v. McLean, 615 F.2d 691, 693 (5th Cir. 1980); Central Milk Producer’s Coop. v. Sentry Food Stores, Inc., 573 F.2d 988, 991 (8th Cir. 1978); International Electronics Corp. v. Flanzer, 527 F.2d 1288, 1293 (2d Cir. 1975). We have noted that the district court “has a wide discretion in framing its sanctions to be just and fair to all parties involved.” IBM v. Levin, 579 F.2d 271, 279 (3d Cir. 1978). On an issue of the district court’s use of the disqualification sanction, the general rule of appellate review only for abuse of discretion applies. See Kroungold v. Triester, 521 F.2d 763 (3d Cir. 1975). Commitment of this matter to the district court’s" } ]

[ { "docid": "5789962", "title": "", "text": "e.g., Zinser v. Accufix Research Inst., 253 F.3d 1180, 1186-88 (9th Cir.2001) (reviewing a district court’s choice of law determination de novo, and its factual findings for clear error); Knight v. Kenai Peninsula Borough Sch. Dist., 131 F.3d 807, 811-812 (9th Cir.1997) (finding an issue of law, regarding a mootness determination, is reviewed without deference to the district court and that an error of law is a per se abuse of discretion). As Zinser and Knight illustrate, once we have determined the threshold question of whether an error of law has occurred, we review the class certification determination for abuse of discretion. If the district court’s determination was premised on a legal error, we will find a per se abuse of discretion. See Knight, 131 F.3d at 817. If no legal error occurred, we will proceed to review the district court’s class certification decision for abuse of discretion as we always have done. The Supreme Court has addressed this same dichotomy in the sanctions context of Rule 11 of the Federal Rules of Civil Procedure. The Court resolved it by holding that when a district court errs as a matter of law in imposing sanctions, the legal error automatically becomes an abuse of discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (“A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law....”). Our court’s method in Zinser and Knight is also consistent with the practices of other circuits. For example, in Miles v. Merrill Lynch & Co., the Second Circuit held that the standard for appellate review of the Rule 23 requirements “is whether discretion has been exceeded (or abused).... Of course, this leeway, with all matters of discretion, is not boundless. To the extent that the ruling on a Rule 23 requirement ... involves an issue of law, review is de novo.” 471 F.3d 24, 40-41 (2d Cir.2006). See also Andrews v. Chevy Chase Bank, 545 F.3d 570, 573 (7th Cir.2008) (“We generally review a grant of class certification for" }, { "docid": "6827637", "title": "", "text": "subject only to \"limited review.” The grant or denial of a preliminary injunction will be reversed “only where the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact.\" Does 1-5 v. Chandler, 83 F.3d 1150, 1152 (9th Cir.1996) (citing Miller v. California Pac. Med. Ctr., 19 F.3d 449, 455 (9th Cir.1994) (en banc)). Although we have previously suggested that issues of law underlying the district court’s decision on the preliminary injunction are reviewed de novo, Metro Publishing, Ltd. v. San Jose Mercury News, 987 F.2d 637, 640 (9th Cir.1993), the Supreme Court has expressly rejected any multi-tiered standard of review for abuse of discretion. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2460-61, 110 L.Ed.2d 359 (1990) (Rule 11). “Rather, an appellate court should apply an abuse-of-discretion standard in reviewing all aspects of a district court’s Rule 11 determination. A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Id. This single-tier formulation of the abuse of discretion standard of review has been subsequently adopted in numerous other contexts. See, e.g., Koon v. United States, 518 U.S. 81, -, 116 S.Ct. 2035, 2047-48, 135 L.Ed.2d 392 (1996) (sentencing guidelines); Schlup v. Delo, 513 U.S. 298, 333, 115 S.Ct. 851, 870, 130 L.Ed.2d 808 (1995) (fundamental miscarriage of justice exception in capital habeas) (O'Connor, J., concurring); United States v. Morales, 108 F.3d 1031, 1035 (9th Cir.1997) (expert testimony); Osorio v. INS, 99 F.3d 928, 932 (9th Cir.1996) (grant of asylum); Flores v. Shalala, 49 F.3d 562, 567 (9th Cir.1995) (attorney's fees); Stock West Corp. v. Taylor, 964 F.2d 912, 918 (9th Cir.1992) (comity and abstention in determining tribal court jurisdiction). . Section 11450.03 states in full: (a) Notwithstanding the maximum aid payments specified in paragraph (1) of subdivision (a) of Section 11450, families that have resided in this state for less than 12 months shall be paid an amount calculated in accordance with paragraph" }, { "docid": "9985598", "title": "", "text": "relief agency” as defined by 11 U.S.C. § 101(12A). The court also referred the matter to the office of the United States Attorney for possible criminal prosecution and to the Florida Bar for further disciplinary proceedings. The district court affirmed the bankruptcy court’s decision, concluding that the surrounding circumstances revealed at the evidentiary hearing supported the bankruptcy court’s findings. Appellants only appeal the holding that they perpetrated fraud on the court by ghostwriting Hood’s Chapter 13 petition in violation of Florida Rules of Professional Conduct 4 — 3.3(a)(1) and 4 — 8.4(c), and 18 U.S.C. § 157(3). II. “In the bankruptcy context, this court sits as a second court of review and thus examines independently the factual and legal determinations of the bankruptcy court and employs the same standards of review as the district court.” In re Optical Techs., Inc., 425 F.3d 1294, 1299-1300 (11th Cir.2005) (internal quotation marks omitted). We review the bankruptcy court’s findings of fact for clear error and its conclusions of law de novo. In re Englander, 95 F.3d 1028, 1030 (11th Cir.1996) (per curiam). “Neither the district court nor this court may make independent factual findings.” Id. A bankruptcy court’s imposition of sanctions is reviewed for an abuse of discretion. In re Mroz, 65 F.3d 1567, 1571 (11th Cir.1996). ; Bankruptcy fraud is a criminal matter in which federal district courts have original jurisdiction. 18 U.S.C. § -3231; see In re Hipp, 895 F.2d 1503, 1518 (5th Cir.1990). In the event that a bankruptcy judge has “reasonable grounds” for believing that a party committed bankruptcy fraud in violation of 18 U.S.C. § 157(3), the judge “shall report [the case] to the appropriate United States attorney.” 18 U.S.C. § 3057(a). Attorneys who practice before Florida courts are governed by the Florida Rules of Professional Conduct. R. Regulating Fla. Bar 1-10.1, 3-4.1. The Florida Rules provide that “[a] lawyer shall not ... make a false statement of fact or law to a tribunal,” id. at 4-3.3(a)(l), and “shall not ... engage in conduct involving dishonesty, fraud, deceit, or misrepresentation,” id. at 4-8.4(c). The Rules explain, however, that" }, { "docid": "22421108", "title": "", "text": "whether Bowers was a “qualified individual with a disability” at the relevant time period for , establishing liability. The Defendants are therefore not entitled to judgment as a matter of law and, accordingly, we will reverse the District Court’s grant of summary judgment. B. The District Court’s Imposition of Preclusion Sanctions Because we have concluded that the District Court’s summary judgment analysis was erroneous for reasons independent of the order of sanctions in this case, we need not review the sanctions order under the standard set forth in Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir.1984) (setting forth a test to determine when a trial court’s dismissal of a case pursuant to preclusion sanctions constitutes an abuse of discretion). In this case, unlike in Poulis, the District Court did not specifically impose dismissal of the case as a sanction. Thus, based on our summary judgment ruling, even if the sanctions orders were entirely upheld, this would not result in a de facto dismissal of the case. However, we find that certain aspects of the District Court’s preclusion sanctions analysis rest on the same erroneous assumption as its summary judgment analysis — namely, that Bowers’ alleged drug abuse was relevant for purposes of deter mining liability in 1995-96. For this reason, as well as others discussed more fully below, we reverse, in part, the sanctions imposed. The decision to impose sanctions for discovery violations and any determination as to what sanctions are appropriate are matters generally entrusted to the discretion of the district court. National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976) (per curiam). We therefore review a district court’s decision to impose preclusion sanctions for abuse of discretion. Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 156 (3d Cir.1995). While this standard of review is deferential, a district court abuses its discretion in imposing sanctions when it “base[s] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405," }, { "docid": "5789963", "title": "", "text": "The Court resolved it by holding that when a district court errs as a matter of law in imposing sanctions, the legal error automatically becomes an abuse of discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (“A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law....”). Our court’s method in Zinser and Knight is also consistent with the practices of other circuits. For example, in Miles v. Merrill Lynch & Co., the Second Circuit held that the standard for appellate review of the Rule 23 requirements “is whether discretion has been exceeded (or abused).... Of course, this leeway, with all matters of discretion, is not boundless. To the extent that the ruling on a Rule 23 requirement ... involves an issue of law, review is de novo.” 471 F.3d 24, 40-41 (2d Cir.2006). See also Andrews v. Chevy Chase Bank, 545 F.3d 570, 573 (7th Cir.2008) (“We generally review a grant of class certification for abuse of discretion, but ‘purely legal’ determinations made in support of that decision are reviewed de novo.”); In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 312 (3d Cir.2008) (“We review a class certification order for abuse of discretion.....Whether an incorrect legal standard has been used in an issue of law to be reviewed de novo.”) (internal quotations omitted). In light of the above, in reviewing this case, we must first determine whether the law of Hawaii requires a finding of individual reliance in the application of its consumer protection statutes. As a federal court sitting in diversity, we answer this question of state law de novo. Salve Regina, 499 U.S. at 231, 111 S.Ct. 1217. Our conclusion of whether or not the district court erred in interpreting Hawaii law will then inform our abuse of discretion review of the district court’s denial of class certification. II. The District Court Erred as a Matter of Law When It Found that Hawaii’s Consumer Protection Law Required Individualized Showings of Reliance The Hawaii Supreme Court has described" }, { "docid": "168065", "title": "", "text": "appeal only after the case is resolved, the non-party’s injury may not be possible to repair. Id. (internal quotation and citation omitted). District court review of a Bankruptcy Court determination is governed by Rule 8013 of the Federal Rules of Bankruptcy Procedure (“Fed. R. Bankr.”). Under this rule questions of law are reviewed de novo. In re AroChem Corp., 176 F.3d 610, 620 (2d Cir.1999); see also In re Bennett Funding Group, Inc., 146 F.3d 136, 138 (2d Cir.1998). In addition, “[fjindings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses.” Fed. R. Bkrptcy. P. 8013 (1991). Because a decision to vacate a judgment is within the sound discretion of the bankruptcy court, such a ruling is reviewed under the abuse of discretion standard. See In re Blaise, 219 B.R. 946, 949-50 (2d Cir. BAP 1998) (citation omitted); Altman v. Connally, 456 F.2d 1114 (2d Cir.1972) (applying abuse of discretion standard to appeal from decision on motion to vacate or amend judgment). With respect to discovery sanctions, “a sanctioning court necessarily abuses its discretion when it ‘base[s] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.’ ” Williams v. United States, 215 B.R. 289, 299 (D.R.I.1997) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990)); see also In re Blaise, 219 B.R. at 949-50. “The ‘clearly erroneous’ test is not met unless the reviewing court, without reweighing the evidence, is left with the definite and firm conviction that a mistake has been committed.” Campbell ex rel. Campbell v. Metropolitan Property and Cas. Ins. Co., 239 F.3d 179, 186 (2d Cir.2001) (internal quotation marks and citations omitted). B. Issues on Appeal 1. Whether the Bankruptcy Court erred when it denied Beneficial’s motion to vacate the September 4, 2003 Judgment as a sanction for the Trustee’s issuance of the subpoena that allegedly imposed on Beneficial" }, { "docid": "23337101", "title": "", "text": "Section 21D(c) to the Securities Exchange Act of 1934 (“Exchange Act”), requiring courts, at the conclusion of all private actions arising under the Exchange Act, to make specific findings as to the compliance by all parties and attorneys with Fed.R.Civ.P. 11(b). See 15 U.S.C. § 78u-4(c)(l). Section 21D(c) requires also that the court impose sanctions if it determines the rule has been violated, and adopts a rebuttable presumption that the appropriate sanction for a complaint that substantially fails to comply with Rule 11(b) “is an award to the opposing party of the reasonable attorneys’ fees and other expenses incurred in the action.” 15 U.S.C. § 78u-4(c)(3)(A)(ii). The PSLRA thus does not in any way purport to alter the substantive standards for finding a violation of Rule 11, but functions merely to reduce courts’ discretion in choosing whether to conduct the Rule 11 inquiry at all and whether and how to sanction a party once a violation is found. C. Standard of Review for a Rule 11 Determination In Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990), the Supreme Court held that “an appellate court should apply an abuse-of-discretion standard in reviewing all aspects of a district court’s Rule 11 determination.” Id. at 405, 110 S.Ct. 2447. In so holding, the Court purported to reject the practice of some circuits, including ours, see, e.g., McMahon v. Shearson/American Express, Inc., 896 F.2d 17, 21 (2d Cir.1990), of conducting a de novo review of the district court’s legal conclusions, including whether a claim is warranted by existing law or constitutes a good faith argument for changing the law. See Cooter & Gell, 496 U.S. at 399-405,110 S.Ct. 2447. At the same time, however, the Court was careful to qualify the abuse-of-discretion standard as it relates to legal conclusions by stating that this standard would not preclude the appellate court’s correction of a district court’s legal errors, e.g., ... relying on a materially incorrect view of the relevant law in determining that a pleading was not “warranted by existing law or a good faith argument” for" }, { "docid": "19001409", "title": "", "text": "either. On September 19, 2006, Judge Starrett agreed with Ratliffs attorneys as to rule 11 but found that sanctions were appropriate against Ratliffs attorneys under 28 U.S.C. § 1927. II. Determinations of subject matter jurisdiction are reviewed de novo. Urban Developers LLC v. City of Jackson, 468 F.3d 281, 297 (5th Cir.2006) (citing USX Corp. v. Tanenbaum, 868 F.2d 1455, 1457 (5th Cir.1989)). The imposition of sanctions pursuant to § 1927 is reviewed for abuse of discretion. “ ‘Generally, an abuse of discretion only occurs where no reasonable person could take the view adopted by the trial court.’ ” Dawson v. United States, 68 F.3d 886, 896 (5th Cir.1995) (quoting Lorentzen v. Anderson Pest Control, 64 F.3d 327, 330 (7th Cir.1995)). A district court necessarily abuses its discretion if its ruling is based on an “erroneous view” of the relevant legal standards “or on a clearly erroneous assessment of the evidence.” Whitehead v. Food Max, Inc., 332 F.3d 796, 802-03 (5th Cir.2003) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)). m. The first question is whether the district court had jurisdiction to impose sanctions under § 1927 more than a year after Stewart had been formally dismissed from the case. Ratliffs attorneys argue that because the court entered a final judgment long before awarding attorneys’ fees, and because the court’s order did not reserve jurisdiction, the court was powerless to sanction them. Although the district court no longer had jurisdiction over the subject matter of the dispute, the collateral jurisdiction doctrine permits courts to sanction lawyers, even after a final judgment on the underlying merits. “It is well established that a federal court may consider collateral issues after an action is no longer pending.... Thus, even ‘years after the entry of a judgment on the merits’ a federal court c[an] consider an award of counsel fees.” Cooter & Gell, 496 U.S. at 395-96, 110 S.Ct. 2447 (quoting White v. New Hampshire Dep’t of Employment Sec., 455 U.S. 445, 451 n. 13, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982)). In Sprague" }, { "docid": "10167583", "title": "", "text": "MEMORANDUM OPINION DOWD, District Judge. I. INTRODUCTION This action is an appeal from the decision of the United States Bankruptcy Court holding that a municipal court case filed by Creditor-Appellant Champion Credit Union (“Creditor-Appellant”) against Debtor Dan Kenneth Braun (“Appellee”) constituted an attempt to recover a discharged debt, and requiring an award of $15,000 to be paid jointly and severally by Creditor-Appellant and its attorney, Richard Shinaberry (“Attorney-Appellant”), for civil contempt and violations of Bankruptcy Rule 9011. This Court has jurisdiction to hear appeals from a judgment, order or decree of a bankruptcy judge pursuant to 28 U.S.C. § 158(a). While Bankruptcy Rule 8013 states that findings of fact shall not be set aside unless clearly erroneous, it is well established that a bankruptcy court’s conclusions of law are subject to de novo review by the district court. In re Caldwell, 851 F.2d 852 (6th Cir.1988). The standard by which an award of sanctions is reviewed, however, is somewhat different. The question of whether an individual’s conduct was reasonable under the circumstances is a mixed question of law and fact for which de novo appellate review is not appropriate. Century Products, Inc. v. Sutter, 837 F.2d 247, 253 (6th Cir.1988). Instead, because of the lower court’s more intimate knowledge of the facts of such cases, an abuse of discretion standard is proper when a district court reviews a bankruptcy court’s award of sanctions. Id.; see also In re Studio Camera Supply, Inc., 116 B.R. 70, 73 (E.D.Mich.1990), citing Cooter & Gell v. Hartmarx, Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). Under an abuse of discretion standard, the bankruptcy court’s decision will be reversed only if the district court has a definite and firm conviction that the bankruptcy court committed clear error of judgment in a conclusion it reached; clear error of judgment has been made if a conclusion is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence. In re Hammond, 140 B.R. 197, 201 (S.D.Ohio 1992) (citations omitted). II. FACTUAL BACKGROUND In 1981, Appellee purchased a kit" }, { "docid": "18492526", "title": "", "text": "“[t]his is, to be candid, outrageous.” The court was outraged because the Trustee proceeded with trial on a simple affidavit which did not even identify the specific date of the alleged transfer, the debt the transfer was to repay, or the manner in which the transfer was made. The sanctions awarded amounted to $2,590, or the sums expended by Mroz to transport herself and counsel to the Miami hearing, and her attorney’s fees. The bankruptcy court levied the sanctions under Bankruptcy Rule 9011 against Glatter, as the individual who signed the complaint, and H & S, as the law firm representing the Trustee. The district court affirmed these sanctions without discussion. DISCUSSION As the second court in review of the bankruptcy court’s judgment, we review the bankruptcy court’s factual findings for clear error, and its legal conclusions de novo. Georgian Villa, Inc. v. United States (In re Georgian Villa, Inc.), 55 F.3d 1561, 1562 (11th Cir.1995). When reviewing the imposition of sanctions, the primary question before us is whether the sanctioning court abused its discretion. See, e.g., Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359, 369 (1990) (“[A]n appellate court should apply an abuse-of-discretion standard in reviewing all aspects of a district court’s Rule 11 determination.”); Chambers v. NASCO, Inc., 501 U.S. 32, 55, 111 S.Ct. 2123, 2138, 115 L.Ed.2d 27, 58 (1991) (“We review a court’s imposition of sanctions under its inherent power for abuse of discretion.”). I. On appeal Glatter and H & S claim that the bankruptcy court erred in assessing sanctions against them because the complaint was filed only after a reasonable investigation into the factual allegations had been conducted. Appellants state that at the time of its filing counsel acted prudently pursuant to information obtained in discussions with the Debtor and from facts alleged in his affidavit. Additionally, H & S argues that even if the individual associate was sanctionable under Bankruptcy Rule 9011, the bankruptcy court erred in imposing sanctions on the law firm in light of the Supreme Court’s decision in Pavelic & LeFlore" }, { "docid": "16753264", "title": "", "text": "WALLACE, Circuit Judge. In this case, we are asked to review a finding of unethical conduct and accompanying sanctions, as well as determinations on damages and interest pursuant to the Federal Tort Claims Act (Act). The district court had jurisdiction pursuant to 28 U.S.C. § 1346(b). The government timely appealed and Barbara Palmer individually and as the representative of the estates of her deceased husband and their two children (hereinafter referred to collectively as Palmer) timely cross-appealed, and we have jurisdiction. 28 U.S.C. § 1291. I In the underlying tort action, Palmer sued the government, alleging that it negligently released John Bundy, Ms. Palmer’s ex-husband, from a Veterans’ Administration hospital. Bundy was hospitalized from 1984 to 1989 following an attempted suicide. In 1989, Bundy was released to a home-based residential care center, operated privately by Harold and llene Yeager in their personal residence. In February 1990, Bundy moved out of the Yeager house to live independently. On September 3, 1990, he went to the Palmers’ home and shot and killed Robert Palmer (Barbara Palmer’s husband) and the two Palmer children. Palmer prevailed on her claim that the deaths were proximately caused by the government’s negligence. The government does not raise this liability issue on appeal. II The government appeals from the district court’s decision that a Department of Justice (DOJ) attorney, Patricia Reedy, committed misconduct, as well as from the accompanying sanctions. We review determinations of attorney misconduct for abuse of discretion. Cooler & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (Cooter & Gell). “A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Id. The district court determined that Reedy breached her ethical duties when she '“know ingly ... fail[ed] to disclose a material fact ... necessary to avoid a fraud being perpetrated upon the tribunal.” See Kent. R. Prof. Conduct 3.8(a). This assessment was based on three alleged ethical breaches. A. The first alleged failure to disclose concerned a report Reedy" }, { "docid": "12215094", "title": "", "text": "court on motion or on its own initiative shall impose on the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including a reasonable attorney’s fee. The Supreme Court prescribed the standard to be applied by an appellate court in reviewing a lower court’s imposition of Rule 11 sanctions in Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). The appellate court must apply an abuse-of-discretion standard in reviewing “all aspects” of a Rule 11 determination. Id. at 405, 110 S.Ct. at 2460-61. The Court specifically rejected the view that a reviewing court follows a three-tiered approach, one standard (clearly erroneous) for factüal questions, another standard (de novo) for the question of whether the facts constituted a Rule 11 violation, and a third standard (abuse of discretion) for the choice of sanction to be imposed. Id. This court anticipated the Supreme Court’s ruling on the question. In Adamson v. Bowen, 855 F.2d 668, 673 (10th Cir.1988), we adopted an abuse-of-discretion standard “across the board to all Rule 11 issues.” B. Turning to the facts disclosed by the record, the surety creditors did have claims against Rex Montis. It is clear, however, that these claims did not entitle them to vote in the selection of a trustee. The surety creditors’ claims did not satisfy the criteria of 11 U.S.C. § 702(a), which states: A creditor may vote for a candidate for trustee only if such creditor— (1) holds an allowable, undisputed, fixed, liquidated, unsecured claim of a kind entitled to distribution under section 726(a)(2), 726(a)(3), 726(a)(4), 752(a), 766(h), or 766(i) of this title; (2) does not have an interest materially adverse, other than an equity interest that is not substantial in relation to such creditor’s interest as a creditor, to the interest of creditors entitled to such distribution; and (3) is not an insider. As the district court found, “the ‘Surety Creditors’ at that" }, { "docid": "14960261", "title": "", "text": "at trial because the government violated the CIA by failing to provide him with an interpreter before the grand jury. We conclude that the district court failed to apply the proper legal standard when it rejected Mr. Hasan’s CIA claim. Thus, we must remand for the district court to apply the correct law to the facts in the first instance. A. Standard of Review “ ‘We review the trial court’s determination with respect to the appointment ... of an interpreter only for an abuse of discretion.’ ” United States v. Black, 369 F.3d 1171, 1174 (10th Cir.2004) (ellipsis in original) (quoting United States v. Urena, 27 F.3d 1487, 1492 (10th Cir. 1994)). This rule is appropriate “[b]ecause the trial judge is in the best position to assess a defendant’s or witness’ language usage, comfort level and intelligibility.” United States v. Osuna (Osuna I), 189 F.3d 1289, 1296 (10th Cir.1999) (Brorby, J., dissenting). Under the abuse-of-discretion standard, we review the district court’s factual determinations for clear error, see, e.g., Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 401, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (“A court of appeals would be justified in concluding that a district court had abused its discretion in making a factual finding only if the finding were clearly erroneous.”), and its underlying legal determinations de novo, see, e.g., Hamilton v. Boise Cascade Express, 519 F.3d 1197, 1202 (10th Cir.2008) (“Where the exercise of that discretion [to award sanctions] de pended on the resolution of a purely legal issue, however, we approach such a question de novo.). ‘An abuse of discretion occurs when the district court bases its ruling on an erroneous conclusion of law,’ ” Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir.2007) (quoting Kiowa Indian Tribe of Okla. v. Hoover, 150 F.3d 1163, 1165 (10th Cir.1998)), or “where the trial court fails to consider the applicable legal standard,” Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir.1997); see also In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1186 (10th Cir.2009) (“ ‘When the district court errs in deciding a legal issue," }, { "docid": "23622386", "title": "", "text": "a district court’s Rule 11 determination for abuse of discretion. Souran v. Travelers Ins. Co., 982 F.2d 1497, 1507 n. 10 (11th Cir.1993). “ ‘A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.’ ” McGregor v. Bd. of Comm’rs of Palm Beach County, 956 F.2d 1017, 1022 (11th Cir.1992) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990)). The court seems to doubt whether it can review the district court’s exercise of discretion in this case because the record contains only a conclusory, unreviewable order. Accordingly, the court remands the case to the district court so that it can make findings of fact and conclusions of law regarding the parties’ and counsel’s compliance with Rule 11. There is no doubt, however, that even without extensive findings, it is possible for this court to review PSLRA Rule 11 determinations under the abuse of discretion standard. Sometimes, the record on appeal will disclose Rule 11 violations that are so egregious that any refusal by the district court to impose sanctions would necessarily constitute an abuse of discretion. To see why, it is necessary to unpack the abuse of discretion standard and the elements of a Rule 11 violation. The critical difference between abuse of discretion review and de novo review is that abuse of discretion “recognizes [a] range of possible conclusions the trial judge may reach.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir.2004) (en banc). More specifically, [b]y definition ... under the abuse of discretion standard of review there will be occasions in which we affirm the district court even though we would have gone the other way had it been our call. That is how an abuse of discretion standard differs from a de novo standard of review. As we have stated previously, the abuse of discretion standard allows “a range of choice for the district court, so long as that choice does not constitute a clear error" }, { "docid": "6827636", "title": "", "text": "a bounty from oil revenues). The district court did not err in finding that plaintiffs faced the possibility of irreparable harm. California does not argue on appeal that it would be unduly harmed by the preliminary injunction. II. Balancing the probability of success on the merits with the possibility of irreparable harm, we hold that the district court did not abuse its discretion in granting the preliminary injunction. Our prior affirmance in Green remains persuasive as to the probabifity of success on the merits, and as to the possibility that irreparable harm falls on the class Roe and Doe represent, but not on California. An appeal from the grant or denial of a permanent, rather than preliminary, injunction would entitle the parties to a full review on the merits. We reject California's invitation to engage in such a review of this case in its current posture, before the district court has had a chance to address the underlying merits upon a fully developed record. AFFIRMED. . A district court's order regarding preliminary injunctive relief is subject only to \"limited review.” The grant or denial of a preliminary injunction will be reversed “only where the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact.\" Does 1-5 v. Chandler, 83 F.3d 1150, 1152 (9th Cir.1996) (citing Miller v. California Pac. Med. Ctr., 19 F.3d 449, 455 (9th Cir.1994) (en banc)). Although we have previously suggested that issues of law underlying the district court’s decision on the preliminary injunction are reviewed de novo, Metro Publishing, Ltd. v. San Jose Mercury News, 987 F.2d 637, 640 (9th Cir.1993), the Supreme Court has expressly rejected any multi-tiered standard of review for abuse of discretion. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2460-61, 110 L.Ed.2d 359 (1990) (Rule 11). “Rather, an appellate court should apply an abuse-of-discretion standard in reviewing all aspects of a district court’s Rule 11 determination. A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of" }, { "docid": "19378858", "title": "", "text": "is entered. We review a district court’s order establishing the termination date of damages for an abuse of discretion. See Thornton v. East Texas Motor Freight, 497 F.2d 416, 422 (6th Cir.1974). In this case, the district court declined to adopt the magistrate judge’s recommendation that the termination date for damages coincide with the final judgment date. The district court reasoned that: The [order regarding liability] found [Local 496’s] referral policy adopted in October 1987 to be ‘facially objective and non-diseriminatory.’ With that finding, injunctive relief and job opportunities were available to the class following the liability decision. On January 15, 1992, attorneys for the class were in a position to request injunctive relief regarding future referrals. There is no good reason to allow damages beyond January 15, 1992.... The ending date for all damages is January 15,1992. The district court’s conclusion was not based on an erroneous finding of fact or an incorrect application of the law. Thus, it was not an abuse of discretion. See Warren, 138 F.3d at 1095; see also Thornton, 497 F.2d at 416 (concluding that district court’s order establishing termination date of back pay relief in job discrimination ease on date the employer changed its discriminatory policy rather than the date when the court made the final award of damages was not an abuse of discretion). We accordingly affirm the judgment of the district court \"with regard to this issue. 2. Sanction of Plaintiffs’ Counsel Plaintiffs contend that the district court erred by sanctioning their attorney for alleged misconduct pertaining to LIUNA’s discovery requests. We review a district court’s imposition of sanctions on attorneys for an abuse of discretion. See Palmer v. United States, 146 F.3d 361, 363 (6th Cir.1998) (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)). “A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Id. As Magistrate Judge Hemann stated, the history of the discovery disputes that took place during the" }, { "docid": "22133650", "title": "", "text": "never has explained or supported his allegations that Lear has made false claims to the government. III. The Denial of Rule 11 Sanctions Rule 11 provides for the imposition of sanctions when a filing is frivolous, legally unreasonable, or without factual foundation, or is brought for an improper purpose. Warren v. Guelker, 29 F.3d 1386, 1388 (9th Cir.1994). Reasonable attorneys’ fees and expenses may be awarded under the False Claims Act when a claim is clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment. 31 U.S.C. § 3730(d)(4). In Rule 11 cases, appellate courts review findings of historical fact under the clearly erroneous standard, the determination that counsel violated the rule under a de novo standard, and the choice of sanction under an abuse of discretion standard. Id. (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 399, 110 S.Ct. 2447, 2457-58, 110 L.Ed.2d 359 (1990)). The same standards appear to be appropriate in the review of decisions on whether to impose sanctions under section 3730(d)(4). The district court in this case chose not to impose sanctions, stating in its March 21, 1994 summary judgment order that, “This Court finds that sanctions are not warranted against plaintiff, Raymond Simpson, acting in propria persona pursuant to Fed.R.Civ.P. 11 and 31 U.S.C. § 3730(d)(4).” This decision appears to have led the district court to choose not to award Lear attorneys’ fees in the final order and judgment in this case. At the hearing on the summary judgment motion, the district judge stated that he was disinclined to impose sanctions against Simpson because of his in propria persona status. In particular, the district judge noted that this Court was not sympathetic to sanctions against pro se litigants. Since the time when the district judge made these observations, however, we ruled in Watren that in considering a Rule 11 motion, a district court must find whether a violation in fact has taken place. 29 F.3d at 1389. The Warren court also held that while a district court can properly consider a plaintiffs pro se status in assessing sanctions, it cannot decline" }, { "docid": "5591397", "title": "", "text": "decision in Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d 875 (4th Cir.1996), which the court characterized as a “frivolous legal contention.” Sanctions Order at 7; (b) counsel’s lack of judgment and skill; and (c) Ms. Hunter’s sanction by the same court eleven years earlier. Ms. Hunter has timely appealed the suspension imposed upon her, maintaining that Rule 11 sanctions are unwarranted and that her suspension from practice was an overly severe penalty. We possess jurisdiction under 28 U.S.C. § 1291. II. A. We review for abuse of discretion a district court’s imposition of Rule 11 sanctions on a practicing lawyer. Advisory Committee Notes to the 1993 Amendments, Fed.R.Civ.P. 11 (“Note, FRCP 11”); Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). Of course, an error of law by a district court is by definition an abuse of discretion. Hartmarx, 496 U.S. at 405, 110 S.Ct. 2447; United States v. Pearce, 191 F.3d 488, 492 (4th Cir.1999). As the Supreme Court has observed in the Rule 11 context, if a district court “reified] on a materially incorrect view of the relevant law in determining that a pleading was not ‘warranted by existing law or a good faith argument’ for changing the law,” we are justified in concluding that the district court abused its discretion. Hartmarx, 496 U.S. at 402, 110 S.Ct. 2447. B. Although Rule 11 does not specify the sanction to be imposed for any particu lar violation of its provisions, the Advisory Committee Note to the Rule’s 1993 amendments provides guidance with an illustrative list. A court may, for example, strike a document, admonish a lawyer, require the lawyer to undergo education, or refer an allegation to appropriate disciplinary authorities. Note, FRCP 11; see also Thornton v. Gen. Motors Corp., 136 F.3d 450, 455 (5th Cir.1998) (“[W]hen a district court finds that a disciplinary sanction more severe than admonition, reprimand, or censure under Rule 11 is warranted, it should refer the matter to the appropriate disciplinary authorities.”). While a reviewing court owes “substantial deference” to a district court’s decision to suspend" }, { "docid": "23596317", "title": "", "text": "review all aspects of a district court’s award of sanctions under either provision for abuse of discretion. See, e.g., Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2460, 110 L.Ed.2d 359 (1990) (Ride 11); Sussman v. Bank of Israel, 56 F.3d 450, 456 (2d Cir.) (Rule 11), cert. denied sub nom. Bank of Israel v. Lewin, —. U.S. -, 116 S.Ct. 305, 133 L.Ed.2d 210 (1995); Knipe v. Skinner, 19 F.3d 72, 75 (2d Cir.1994) (Rule 11); McMahon v. Shearson/American Express, Inc., 896 F.2d 17, 23 (2d Cir.1990) (§ 1927); Apex Oil Co. v. Belcher Co., 855 F.2d 1009, 1020 (2d Cir.1988) (§ 1927). “A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Cooter & Gell, 496 U.S. at 405, 110 S.Ct. at 2460. Under this standard of review, we find that the imposition of sanctions on the grounds proffered by the district court constituted an abuse of discretion. We consider the sanction provisions in turn. A. Rule 11 Rule 11 was substantially revised during the pendency of this litigation. By order of the Supreme Court, the 1993 amendments to the Federal Rules of Civil Procedure, including the revisions to Rule 11, took effect on December 1, 1993, governing civil proceedings commenced after that date and, “insofar as just and practicable, all proceedings in civil cases then pending.” 146 F.R.D. 404 (1993). Because the allegedly sanctionable conduct in this case occurred prior to the effective date of the 1993 amendments, the district court was required to apply the standard of conduct set forth in the pre-1993 Rule. See Knipe, 19 F.3d at 78 (“Any further retroactive application of the amended Rule 11 would charge- [counsel] with knowledge of a rule not in effect at the time of filing and therefore would not advance Rule ll’s central goal of deterring baseless filings.”). Prior to December 1, 1993, Rule 11 provided that a signature on a “pleading, motion, or other paper” constitutes certification] ... that to the" }, { "docid": "7043743", "title": "", "text": "giving the sanction far more force then it would have had if it had come from the trial judge unendorsed by a reviewing court.” Williams v. United States, 158 F.3d 50, 51 (1st Cir.1998) (Lynch, J., dissenting from a denial of reh’g en banc). In conclusion, we hold that an order finding that an attorney has committed an ethical violation but not imposing any other sanction, monetary or otherwise, can be appealed as a final order under § 1291. Here, the order Butler appeals found attorney misconduct on his part and was mailed to every court where he had been admitted to practice. We, therefore, have jurisdiction to hear Butler’s appeal and now turn to the merits. B Standard of Review We review for abuse of discretion all aspects of a trial court’s imposition of sanctions for rules violations. Masunaga v. Stoltenberg (In re Rex Montis Silver Co.), 87 F.3d 435, 439 (10th Cir.1996) (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)). “The trial court’s factual findings regarding the conduct of attorneys will not be disturbed unless there is no reasonable basis to support those conclusions. We review de novo the trial court’s interpretation of the applicable rules of professional responsibility and the trial court’s interpretation of a statute.” Weeks, 230 F.3d at 1207 (citations omitted). Ill A Canon 9 Butler, in preparing for litigation, contacted a number of Biocore’s former employees including Marilyn Johnson (“Johnson”). Johnson, the district court found, “possessed substantial confidential information about [Biocore] that she agreed to keep confidential.” Biocore, 181 F.R.D. at 673. Specifically, the district court noted Johnson’s duties as a Biocore employee and her access to confidential materials: Johnson had worked as the executive administrative assistant for various high-ranking officers of [Biocore]: the president, the chief executive officer, the chairman of the board, and the chief financial officer. Khosrowshahi was her immediate supervisor. While employed for [Biocore], Johnson maintained corporate files, customer lists, expense reports, grant submissions, and information about sales, accounts receivable, and pricing structures. While general faxes went to a fax" } ]

[ { "docid": "2446882", "title": "", "text": "OPINION OF THE COURT PER CURIAM: In addition to the uncontested evidence of record, an unopposed and unrebutted post-trial affidavit from appellant’s mother indicates that the appellant elected to enter the Army in 1967 rather than serve a 4-year term in a Utah reformatory following his juvenile conviction for rape, breaking and entering, and assault. As in United States v. Catlow, 23 U.S.C.M.A. 142, 145, 48 C.M.R. 758, 761 (1974), appellant did not of his own volition seek out a recruiting officer to enlist. Rather, an Army recruiter contacted appellant while he was confined and advised him “to enlist in the Army or be removed from the detention center and sent to the reform school at Ogden, Utah.” For the reasons enunciated in Catlow, appellant’s enlistment was void at its inception. Because an agent of the Government acted improperly in securing appellant’s enlistment, fairness prevents the Government from now relying upon a constructive enlistment as a jurisdictional base. United States v. Brown, 23 U.S.C.M.A. 162, 165, 48 C.M.R. 778, 781 (1974). Additionally, the absence of evidence that the juvenile charges against appellant were dismissed following his enlistment would preclude reliance upon a constructive enlistment. United States v. Catlow, supra at 146, 48 C.M.R. at 762. Government counsel maintain that a limited rehearing on the jurisdictional issue should be authorized. United States v. Burke, 48 C.M.R. 246 (ACMR 1974); cf. United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967). Unlike Burke, the void enlistment issue clearly was raised in the accused’s sworn testimony at trial. Thus, the Government had an affirmative obligation to establish jurisdiction over the accused. Runkle v. United States, 122 U.S. 543, 556, 7 S.Ct. 1141, 30 L.Ed. 1167 (1887); see United States v. Singleton, 21 U.S.C.M.A. 432, 45 C.M.R. 206 (1972). Neither at trial nor during the course of this appeal has the Government met that burden. The absence of controverting evidence on the jurisdictional question obviates the need for a limited rehearing. The decision of the United States Army Court of Military Review is reversed. The findings of guilty and sentence are set aside," } ]

[ { "docid": "12050150", "title": "", "text": "[Court of Military Appeals cases including United States v. Russo, supra] which held that improper Government participation in the enlistment process estops the Government from asserting constructive enlistment. It also overrules that portion of United States v. Valadez, 5 M.J. 470, 473 (C.M.A.1978) which stated that an uncured regulatory enlistment disqualification, not amounting to a lack of capacity or voluntariness, prevented application of the doctrine of constructive enlistment. (S.Rep. No.96-197, 96th Cong., 1st Sess. 121, 122 reprinted in [1979] U.S.Code Cong. & Ad. News 1827, 1828.) The appellant argues that we should apply the Russo doctrine rather than the recent amendment to Article 2 of the Code because that amendment did not become effective until after the conclusion of his trial. His position is anomalous. He asks that we apply a doctrine ostensibly designed to further a policy expressed by Congress, even though Congress has explicitly rejected that doctrine. Moreover, that doctrine, insofar as it prevents the Government from establishing jurisdiction by showing a constructive enlistment, is a prophylactic policy rule, devised by the Court of Military Appeals, for the purpose of guarding against recruiter misconduct, rather than a legal principle found by that Court in the Constitution, any statute, or legal precedent. The general rule, which we deem applicable to this case, “is that an appellate court must apply the law in effect at the time it renders its decision.” Thorpe v. Housing Authority of Durham, 393 U.S. 268, 281, 89 S.Ct. 518, 525, 21 L.Ed.2d 474 (1969). Applying the law now in effect, we have carefully considered the evidence and concluded that, pursuant to the provisions of Article 2(c), Uniform Code of Military Justice, 10 U.S.C. § 802(c), the appellant is, and was at the time of his trial, subject to the Uniform Code of Military Justice, and that the court-martial that tried and convicted him had jurisdiction over him regardless of the claimed misconduct of his recruiter. The findings of guilty and the sentence are affirmed. Judge LEWIS concurs. . Army regulations in effect at the time of the appellant’s enlistment required that a prospective enlistee with" }, { "docid": "1204433", "title": "", "text": "an impediment to a valid enlistment existed. The Government states such an impediment will render the enlistment void, citing United States v. Walley, 76 1001 (NCMR 15 Sept. 1976). The Government also contends that simple negligence on the part of recruiting officials will not preclude subsequent jurisdictional reliance upon a constructive enlistment, citing United States v. Russo, 23 U.S.C.M.A. 511, 50 C.M.R. 650,1 M.J. 134 (1975). We concur. Appellant evidently knew nothing of his impediment to valid enlistment, inasmuch as he thought he had passed the test. (R. 15). There certainly was no attempt by the Government to conceal appellant’s disqualification in view of the fact that the test score was plainly entered in the appropriate block of the enlistment contract. The evidence clearly supports a finding that appellant’s entry into the armed service was the result of an act of simple negligence on the part of recruiting officials in failing to recognize that the combination of factors present (i. e., no high school diploma, age, and test score) rendered appellant ineligible for enlistment. We therefore conclude that in this case simple negligence on the part of recruiting officials did not preclude the subsequent development of a constructive enlistment. This Court granted review on the following issue: WHETHER GROSS AND CULPABLE NEGLIGENCE BY RECRUITMENT PERSONNEL IS SUFFICIENT UNDER UNITED STATES V. RUSSO, 23 U.S.C.M.A. 511, 50 C.M.R. 650,1 M.J. 134 (1975) TO QUALIFY AS RECRUITER MISCONDUCT AND TO VOID AN ENLISTMENT. We have reviewed the record of trial and conclude, as did the Court of Military Review, that simple, rather than gross and culpable, negligence occurred in this case. Accordingly, this issue for review is so modified. WHETHER SIMPLE NEGLIGENCE BY GOVERNMENT AGENTS IN ENLISTING AN INELIGIBLE RECRUIT FOR MILITARY SERVICE IS SUFFICIENT UNDER UNITED STATES V. RUSSO, 1 M.J. 134 (C.M.A.1975), TO VOID HIS ORIGINAL ENLISTMENT CONTRACT AND PRECLUDE THE EXERCISE OF COURT-MARTIAL JURISDICTION OVER HIS PERSON. I At the outset it must be noted that this Court has never held a violation of service regulations which embraces an undisclosed regulatory disqualification in and of itself voids from its" }, { "docid": "14140177", "title": "", "text": "process. It does so by reaffirming the law as set forth by the Supreme Court in In re Grimley, 137 U.S. 147, [11 S.Ct. 54, 34 L.Ed. 636] (1890), and requiring compliance with only two factors before an enlistment will be considered valid: capacity to understand the significance of enlistment in the armed forces and the voluntary taking of the oath of enlistment. . The second portion of the amendment (new Subsection (c) of Article 2) provides for jurisdiction based upon a constructive enlistment. A constructive enlistment arises at the time an individual submits voluntarily to military authority, meets the mental competency and minimum age qualifications contained in Sections 504 and 505 of Title 10, United States Code, receives military pay or allowances and performs military duties. This doctrine is applicable when there is not an otherwise valid enlistment. An individual who meets the four-part test for constructive enlistment will be amenable to UCMJ Jurisdiction even if the initial entry of the individual into the armed forces was invalid for any reason, including recruiter misconduct or other improper Government participation in the enlistment process. This amendment thus overrules those portions of United States v. Brown, 23 U.S.C.M.A. 162, 165, 48 C.M.R. 778, 781 (1974), United States v. Barrett, 1 M.J. 74 (C.M.A.1975), United States v. Harrison, 5 M.J. 476, 481 (C.M.A.1978), and United States v. Russo, which held that improper Government participation in the enlistment process estops the Government from asserting constructive enlistment. It also overrules that portion of United States v. Valadez, 5 M.J. 470, 473 (C.M.A.1978) which stated that an uncured regulatory enlistment disqualification, not amounting to a lack of capacity or voluntariness, prevented application of the doctrine of constructive enlistment. The new subsection is not intended to affect reservists not performing active service or civilians. It is intended only to reach those persons . whose intent it is to perform as members of the active armed forces and who met the four statutory requirements. It thus overrules ' such cases as United States v. King, 11 U.S.C.M.A. 19, [28] C.M.R. 243 (1959). An individual comes within new" }, { "docid": "12050147", "title": "", "text": "that the appellant had successfully completed GED) which, in accordance with the doctrine established in United States v. Russo, 1 M.J. 134 (C.M.A.1975), vitiates the validity of his enlistment, which is the prerequisite for military jurisdiction over him. In Russo, the Court of Military Appeals held that, when a recruiter violates Article 84, UCMJ, 10 U.S.C. § 884, in effecting an enlistment, the enlistment is void. The Court also held, in Russo, that in such a situation the Government is estopped, on the basis of “fairness”, from establishing jurisdiction by proving a constructive enlistment. We have concluded that, regardless of the validity of the appellant’s enlistment at the time he enlisted, there is sufficient, evidence of a constructive enlistment and that the Russo doctrine no longer precludes our ultimately finding the proper exercise of court-martial jurisdiction over the appellant on that basis. The holding in United States v. Russo, known as the Russo doctrine, obviously affects the issue of court-martial jurisdiction over persons. Russo doctrine does not, however, stand for the proposition that the military never has court-martial jurisdiction over persons whose enlistments are effected by recruiter misconduct; rather, the doctrine precludes the Government from proving jurisdiction by estopping the Government from showing even a constructive enlistment. As Judge Cook succinctly pointed out, the Russo doctrine “is a doctrine imposed by this Court to enforce public policy against fraudulent enlistments where the recruiter participates in the deception.” United States v. Torres, 7 M.J. 102, 107 (C.M.A.1979) (Cook, J., concurring). Then Chief Judge Fletcher, the author of Russo, indicated that the basis for the Russo doctrine was the Court of Military Appeal’s perception of “an expression of the public policy by Congress ...” United States v. Valadez, supra, at 474. It is clear now that Congress does not agree with the Court of Military Appeal’s perception of Congressional policy. Congress recently amended Article 2, Uniform Code of Military Justice, 10 U.S.C. § 802, by adding two new subsections, (b) and (c), to that Article. Subsection (c) provides: (c) Notwithstanding any other provision of law, a person serving with an armed force" }, { "docid": "12812255", "title": "", "text": "recruiter amounts to a violation of the unlawful enlistment statute sufficient to render this enlistment contract void as a basis for court-martial jurisdiction. A similar examination of recruiter misconduct was conducted by this Court in United States v. Valadez, 5 M.J. 470, 475 (C.M.A.1978). There, simple negligence by a recruiter in failure to discover a nonwaivable regulatory disqualification was found not to be within the ambit of the Russo doctrine. In the appellant’s case, we are confronted with the deliberate failure of a recruiter to seek and secure a waiver required by regulation for the appellant’s preservice marihuana use. See also United States v. Murawsky, 7 M.J. 353 (C.M.A.1979). The appellant’s enlistment, however, was not absolutely prohibited by law, regulation, or order. Cf. United States v. Torres, 7 M.J. 102 (C.M.A.1979). While such misconduct by a recruiter certainly will not be condoned by this Court, a question exists as to the import of its illegality on jurisdiction within our understanding of the Russo doctrine. In any event, this Court has not expanded the Russo doctrine to these incidental situations involving waivable regulatory disqualifications which might not properly be deemed “essential prerequisites for enlistment.” United States v. Little, 1 M.J. 476 (C.M.A.1976). Accordingly, in light of the public policy considerations inherent to this area of military law, we will not extend the coverage of the Russo doctrine to those situations involving waivable regulatory defects in an accused’s enlistment. See United States v. Valadez, supra. The decision of the United States Navy Court of Military Review is affirmed. . Except in cases involving jurisdictional questions, this Court has not had many opportunities to definitively rule or comment on the type of recruiter misconduct which technically violates Article 84, Uniform Code of Military Justice, 10 U.S.C. § 884. United States v. Jenkins, 7 U.S.C.M.A. 261, 264, 22 C.M.R. 51, 54 (1956); but see para. 163, Manual for Courts-Martial, United States, 1969 (Revised edition). The absence of such cases suggests, among other things, that enlistment criminality has not existed for the last 30 years or that recruiting has not been adequately supervised, and abuses" }, { "docid": "18675250", "title": "", "text": "recruiter told the Petitioner to lie about past drug use, which Adkins claims, the pertinent omissions on the enlistment application are clearly apparent. The government should thus have had clear warning of the Petitioner’s potential disqualification, if any, from military service. Yet, no waiver was ever obtained. This Court, like the Naval court in McGowan, concludes that the Petitioner’s contract was voidable , at the option of the government. As such, a Russo defense would be unavailable and the military could clearly court-martial and punish the Petitioner. Moreover, the fact is that Congress overruled the Russo doctrine effective November, 1979. Article 2(b) & (c), 10 U.S.C. § 802(b) & (c) (1976 & Supp. I 1979). The legislative history clearly indicates that Congress did not believe the Russo doctrine served any useful purpose but instead severely undermined discipline and command authority. The committee concluded that: No military member who voluntarily enters the service and serves routinely for a time should be allowed to raise for the first time after committing an offense defects in his or her enlistment, totally escaping punishment for offenses as a result. That policy makes a mockery of the military justice system in the eyes of those who serve in the military services. [1979] U.S.Code Cong. & Ad.News 1818, 1827. The new statute provides that “[t]he voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid for purposes of [military] jurisdiction ... and a change of status from civilian to member of the armed forces shall be effective upon the taking of the oath of enlistment.” 10 U.S.C. § 802(b) (1976 & Supp. I 1979). Furthermore, even if the party who enlisted lacks the capacity to understand the significance of enlisting, that person will still be subject to military discipline if he or she has: (1) submitted voluntarily to military authority; (2) met the mental competency and minimum age qualifications at the time of voluntary submission to military authority; (3) received military pay or allowances; and (4) performed military duties. Id. § 802(c). These criteria" }, { "docid": "12050148", "title": "", "text": "never has court-martial jurisdiction over persons whose enlistments are effected by recruiter misconduct; rather, the doctrine precludes the Government from proving jurisdiction by estopping the Government from showing even a constructive enlistment. As Judge Cook succinctly pointed out, the Russo doctrine “is a doctrine imposed by this Court to enforce public policy against fraudulent enlistments where the recruiter participates in the deception.” United States v. Torres, 7 M.J. 102, 107 (C.M.A.1979) (Cook, J., concurring). Then Chief Judge Fletcher, the author of Russo, indicated that the basis for the Russo doctrine was the Court of Military Appeal’s perception of “an expression of the public policy by Congress ...” United States v. Valadez, supra, at 474. It is clear now that Congress does not agree with the Court of Military Appeal’s perception of Congressional policy. Congress recently amended Article 2, Uniform Code of Military Justice, 10 U.S.C. § 802, by adding two new subsections, (b) and (c), to that Article. Subsection (c) provides: (c) Notwithstanding any other provision of law, a person serving with an armed force who- (1) submitted voluntarily to military authority; (2) met the mental competency and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority: (3) received military pay or allowances; and (4) performed military duties; is subject to this chapter until such person’s active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned. (Pub.L.No.96-107, § 801(a)(2), 93 Stat. 810 [emphasis added].) The Senate Report concerning the amendment contains the following: The committee strongly believes that [the Russo doctrine serves] no useful purpose, and severely undermine[s] discipline and command authority. No military member who voluntarily enters the service and serves routinely for a time should be allowed to raise for the first time after committing an offense defects in his or her enlistment, totally escaping punishment for offenses as a result. That policy makes a mockery of the military justice system in the eyes of those who serve in the military services. This amendment [subsection (c)] thus overrules those portions of" }, { "docid": "12050152", "title": "", "text": "prior service have completed high school or have demonstrated what is known as a General Education Development (GED) equivalent to completion of high school in order to be eligible for enlistment. No waivers would be considered. Army Regulation No. 601-210, Regular Army Enlistment Program, paragraph 2-2 and table 2-1 (C6,28 July 1976). It appeals that had the appellant not had prior service he would have been eligible to enlist. In view of the basis for our decision, we need not determine whether the appellant’s regulatory disqualification was the type of disqualification that would bar his being tried by court-martial because of the Court of Military Appeal’s holding in United States v. Russo, 1 M.J. 134 (C.M.A.1975). See United States v. Stone, 8 M.J. 140 (C.M.A.1979). . If the appellant’s recruiter engaged in the misconduct claimed by the appellant, he participated in effecting the appellant’s enlistment without knowing whether or not the appellant was eligible. Article 84, UCMJ, 10 U.S.C. § 884, prohibits á recruiter from effecting an enlistment “of any person who is.known to him to be ineligible for that enlistment ...” Whether the recruiter’s claimed misconduct amounted to a violation of Article 84 so as to warrant application of the doctrine announced in United States v. Russo, 1 M.J. 134 (C.M.A. 1975), is another issue we need not address in view of the basis for our decision. Compare United States v. Stone, 8 M.J. 140 (C.M.A. 1979), with United States v. Valadez, 5 M.J. 470 (C.M.A.1978). JONES, Senior Judge, concurring: I concur with Judge Garn. However, as to his Footnotes 1 and 2, I believe the holding in United States v. Stone, 8 M.J. 140 (C.M.A.1979), has modified United States v. Russo, 1 M.J. 134 (C.M.A.1957), to the extent that neither the regulatory disqualification nor the recruiter misconduct would preclude the showing of a constructive enlistment here." }, { "docid": "1204434", "title": "", "text": "therefore conclude that in this case simple negligence on the part of recruiting officials did not preclude the subsequent development of a constructive enlistment. This Court granted review on the following issue: WHETHER GROSS AND CULPABLE NEGLIGENCE BY RECRUITMENT PERSONNEL IS SUFFICIENT UNDER UNITED STATES V. RUSSO, 23 U.S.C.M.A. 511, 50 C.M.R. 650,1 M.J. 134 (1975) TO QUALIFY AS RECRUITER MISCONDUCT AND TO VOID AN ENLISTMENT. We have reviewed the record of trial and conclude, as did the Court of Military Review, that simple, rather than gross and culpable, negligence occurred in this case. Accordingly, this issue for review is so modified. WHETHER SIMPLE NEGLIGENCE BY GOVERNMENT AGENTS IN ENLISTING AN INELIGIBLE RECRUIT FOR MILITARY SERVICE IS SUFFICIENT UNDER UNITED STATES V. RUSSO, 1 M.J. 134 (C.M.A.1975), TO VOID HIS ORIGINAL ENLISTMENT CONTRACT AND PRECLUDE THE EXERCISE OF COURT-MARTIAL JURISDICTION OVER HIS PERSON. I At the outset it must be noted that this Court has never held a violation of service regulations which embraces an undisclosed regulatory disqualification in and of itself voids from its inception an enlistment contract for purposes of court-martial jurisdiction. See United States v. Wagner, 5 M.J. 461 (C.M.A.1978); United States v. Lightfoot, 4 M.J. 262 (C.M.A.1978). We believe such a regulatory violation may provide standing for an enlistee to attempt to void his enlistment contract in the proper forum. See Mellinger v. Laird, 439 F.Supp. 434, 439 (E.D.Pa.1972). See also United States v. Russo, supra. Nevertheless, the enlistment contract remains merely voidable, and a valid basis for court-martial jurisdiction, until the recruit takes action to void the contract, prior to his commission of an offense and action taken by the Government with a view towards trial. See In Re Morrissey, 137 U.S. 157, 11 S.Ct. 57, 34 L.Ed. 644 (1890). See also United States v. Bean, 13 U.S.C.M.A. 203, 207, 32 C.M.R. 203, 207 (1962). It is only when the recruiting regulation also amounts in fact and law to either a lack of voluntariness, a statutory incapacity to contract, or a disability embraced within the enlistment contract principles intimated by the Supreme Court in the" }, { "docid": "14140178", "title": "", "text": "or other improper Government participation in the enlistment process. This amendment thus overrules those portions of United States v. Brown, 23 U.S.C.M.A. 162, 165, 48 C.M.R. 778, 781 (1974), United States v. Barrett, 1 M.J. 74 (C.M.A.1975), United States v. Harrison, 5 M.J. 476, 481 (C.M.A.1978), and United States v. Russo, which held that improper Government participation in the enlistment process estops the Government from asserting constructive enlistment. It also overrules that portion of United States v. Valadez, 5 M.J. 470, 473 (C.M.A.1978) which stated that an uncured regulatory enlistment disqualification, not amounting to a lack of capacity or voluntariness, prevented application of the doctrine of constructive enlistment. The new subsection is not intended to affect reservists not performing active service or civilians. It is intended only to reach those persons . whose intent it is to perform as members of the active armed forces and who met the four statutory requirements. It thus overrules ' such cases as United States v. King, 11 U.S.C.M.A. 19, [28] C.M.R. 243 (1959). An individual comes within new Subsection (c) whenever he meets the requisite four-part test regardless of other regulatory or statutory disqualification. A person who initially does not voluntarily submit to military authority or who lacks the capacity to do so may do so successfully at a later time and jurisdiction shall attach at that moment. As a result, an individual who fails to meet the minimum age requirements set forth by statute, 17 years of age at present, may form a constructive enlistment upon reaching that age. Similarly, an individual who initially submits to military authority because he or she is given a choice between jail or military service and who subsequently does not protest the enlistment, make any effort to secure his or her release, and accepts pay or allowances may effect a constructive enlistment for jurisdictional purposes. In other words, what the above report really attempts to say is that there is no effective relationship between the doctrines and policies of the High Court enunciated in the above cases and the military environment in which they purport to" }, { "docid": "14140175", "title": "", "text": "military arm. Thus the questions arise: Can a public law enacted by Congress retroactively repudiate and invalidate legal doctrines set forth in Court óf Military Appeals decisions as they relate to day-to-day military operations and personnel transactions? Is such legislation ex post facto in nature; that is, does it deprive an accused of previously available defenses in violation of Article I, section 9 of the Constitution? Nonetheless, it should be recognized that the issue of retroactivity and the issue of whether the new legislation is ex post facto in nature have not been answered and will ultimately have to be addressed by the Courts in specific cases as they arise. In view of the foregoing, the findings, and sentence, as approved below, are affirmed. Judge GREGORY and Judge GLADIS concur, . Department of Defense Authorization Act, Fiscal Year 1980, Pub.L.No.96-107, § 801(a), 93 Stat. 803. Senate Report No. 96-197, accompanying Senate Bill 428, U.S.Code Cong. & Admin.News 1979, p. 3696 (authorizing appropriations for fiscal year 1980), describes the purpose of amending Article 2, Uniform Code of Military Justice, 10 U.S.C. § 802, as follows: Subsection (a) of Section 801, therefore, amends Article 2 of the UCMJ to affirm the law and public policy of the United States dealing with the commencement of in person- am jurisdiction for purposes of the Code. The amendment is expressly intended to overrule United States v. Russo, 1 M.J. 134 (C.M.A.1975), in which the Court of Military Appeals held that an otherwise valid enlistment was void for purposes of UCMJ jurisdiction due to recruiter misconduct in the enlistment process and that this recruiter misconduct estopped the armed forces from relying upon the doctrine of constructive enlistment. This amendment adds two new subsections to Article 2 of the Code to resolve these related yet distinct jurisdictional problems. It is not intended to affect any administrative matter relating to fraudulent enlistment. The first portion of the amendment (new Subsection (b) of Article 2) overrules that portion of United States v. Russo which invalidated for jurisdictional purposes an otherwise valid enlistment because of recruiter misconduct in the enlistment" }, { "docid": "12050146", "title": "", "text": "that she could not remember receiving a call from the recruiter but if she had she would have told him that appellant had not passed his GED. The military judge denied the motion to dismiss without expressly stating the reasons for his ruling. It appears, however, that the military judge determined that the recruiter’s testimony concerning the telephone call was credible and therefore he had not engaged in misconduct warranting dismissal of the charges. See United States v. Wagner, 5 M.J. 461 (C.M.A.1978); United States v. Valadez, 5 M.J. 470 (C.M.A.1978); United States v. Harrison, 5 M.J. 476 (C.M.A.1978). Before us the appellant argues that, considering all the evidence, the recruiter’s testimony that he contacted a person purporting to be a school official by telephone, and was told that the appellant had passed his GED tests, is incredible. The appellant further posits that, if we reject that testimony, he was not amenable to the jurisdiction of the court-martial that convicted him because the remaining evidence establishes recruiter misconduct (/. e.., falsely certifying the telephone verification that the appellant had successfully completed GED) which, in accordance with the doctrine established in United States v. Russo, 1 M.J. 134 (C.M.A.1975), vitiates the validity of his enlistment, which is the prerequisite for military jurisdiction over him. In Russo, the Court of Military Appeals held that, when a recruiter violates Article 84, UCMJ, 10 U.S.C. § 884, in effecting an enlistment, the enlistment is void. The Court also held, in Russo, that in such a situation the Government is estopped, on the basis of “fairness”, from establishing jurisdiction by proving a constructive enlistment. We have concluded that, regardless of the validity of the appellant’s enlistment at the time he enlisted, there is sufficient, evidence of a constructive enlistment and that the Russo doctrine no longer precludes our ultimately finding the proper exercise of court-martial jurisdiction over the appellant on that basis. The holding in United States v. Russo, known as the Russo doctrine, obviously affects the issue of court-martial jurisdiction over persons. Russo doctrine does not, however, stand for the proposition that the military" }, { "docid": "1124626", "title": "", "text": "by court-martial. Pursuing the Russo “fraudulent enlistment” analysis, we have found no recruiter misconduct capable of preventing the establishment of a valid enlistment contract or of a legitimate constructive enlistment upon which to base court-martial jurisdiction. In terms of the “estoppel” analysis pursued by appellant, we find no recruiter misconduct capable of preventing the Government from basing court-martial jurisdiction upon a clearly established constructive enlistment. The issue granted for review by this Court is: DOES RECRUITER NEGLIGENCE THAT PAVES THE WAY POR A FRAUDULENT ENLISTMENT ESTOP THE GOVERNMENT FROM PREDICATING PERSONAL JURISDICTION ON A CONSTRUCTIVE ENLISTMENT OR MUST THE RECRUITER’S ACTION VIOLATE ARTICLE 84, UNIFORM CODE OF MILITARY JUSTICE? It is clear, in the present case, that the appellant’s original enlistment contract was void as a jurisdictional base due to his statutory incapacity to contract for military service. See United States v. Blanton, 7 U.S.C.M.A. 664, 23 C.M.R. 128 (1957); see also 10 U.S.C. 505(a) (1970). As indicated in our recent decision in United States v. Valadez, 5 M.J. 470 (C.M.A.1978), the touchstone for determining the lawfulness of the use of the constructive enlistment doctrine as a jurisdictional base in cases involving improper recruiting practices is United States v. Brown, supra. Our later decision in United States v. Russo, 1 M.J. 134 (C.M.A.1975), was primarily concerned with the effect of recruiter misconduct, in violation of Article 84, UCMJ, on the original enlistment contract as a jurisdictional base for a court-martial. See United States v. Valadez, supra. Though indirectly speaking to the issue of the effect of such conduct on a constructive enlistment, United States v. Russo, supra, should not be considered as formulating a new and exclusive conceptualization of recruiter misconduct for this distinguishable jurisdictional issue. Accordingly, the conclusion of the Court of Military Review that only recruiter misconduct in violation of Article 84, UCMJ, is sufficient to prevent the present realization of constructive enlistment is incorrect. Nevertheless, the Court of Military Review, as indicated in footnote 8 of its opinion, also sustained jurisdiction over the appellant in light of the estoppel analysis contained in United States v. Brown, supra." }, { "docid": "12058312", "title": "", "text": "Appeals for the purpose of guarding against recruiter misconduct, rather than a legal principle found by that Court in the Constitution, any statute, or legal precedent. United States v. Quintal, supra, 10 M.J. at 535. I do not fully agree with Quintal’s description of either the origin or nature of the constructive enlistment estoppel rule. The rule did not originate in Russo, but instead found its first expression in Chief Judge Duncan’s opinion in United States v. Brown, 23 U.S.C.M.A. 162, 48 C.M.R. 778 (1974). There, it rested in part on the already established doctrine that, in asserting jurisdiction on account of military status, the government will be held to strict compliance with its own regulations. Earlier, in Catlow, the Court of Military Appeals had recognized that recruiter misconduct did not necessarily preclude a constructive enlistment from arising. The estoppel in Brown was based not upon recruiter misconduct, which was not involved, but upon the view that, when the 16-year-old enlistee turned 17, so that a constructive enlistment might arise, the government had been unreasonably failing to comply with its own regulations for disposition of enlistees under 17. When one considers Brown together with Russo and the cases of United States v. Barrett, 1 M.J. 74 (C.M.A.1975), and United States v. Harrison, 5 M.J. 476, 481 (C.M.A. 1978), it appears that the estoppel doctrine turns on the reasonableness of the government’s efforts to comply with its regulations requiring termination of certain enlistments, rather than on a purpose of preventing original recruiter misconduct. In any event, to say, as in Quintal, that the estoppel doctrine rests on no legal principle found in the Constitution, statutes, or precedents, does not relieve the doctrine of its jurisdictional significance. I would hold that applying Article 2(b), so as to authorize trials by court-martial for offenses committed before its enactment is prohibited by the ex post facto clause even though the Article is otherwise applicable to purported enlistments made earlier. Assuming that, despite Admiral McDowell’s possibly narrower interpretation quoted earlier, Article 2(c) might recognize a constructive enlistment based on conditions arising before its enactment, I" }, { "docid": "12049755", "title": "", "text": "falsely “no” to questions whether he had ever taken drugs except as medically prescribed and whether he had ever intentionally sniffed glue or other inhalants. Article 2(b), Uniform Code of Military Justice, supra note 1, provides as follows: The voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid for purposes of jurisdiction under ... [the UCMJ] and a change of status from civilian to member of the armed forces shall be effective upon the taking of the oath of enlistment. Article 2(c), Uniform Code of Military Justice, supra note 2, provides as follows: Notwithstanding any other provision of law, a person serving with an armed force who— (1) submitted voluntarily to military authority; (2) met the mental competency and minimum age qualifications ... [prescribed by 10 U.S.C. §§ 504-505 (1976)] at the time of voluntary submission to military authority; (3) received military pay and allowances; and (4) performed military duties; is subject to ... [the UCMJ] until such person’s active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned. The appellant contends that his motion to dismiss the charges should have been granted because his was a forced enlistment and therefore was not subject to court-martial jurisdiction. United States v. Catlow, 23 U.S.C.M.A. 142, 48 C.M.R. 758 (1974). He further contends that, even if his enlistment had been voluntary, it was nonetheless void as a basis for court-martial jurisdiction because the recruiter enlisted him despite knowing that he possessed a disqualification that was not waivable. See United States v. Stone, 8 M.J. 140 (CMA 1979). He also asserts that no constructive enlistment could arise because, under the applicable state law, the charges against him remained subject to prosecution until the statute of limitations had run, so that his continued military service was no more voluntary than his enlistment. Voluntariness of Appellant’s Enlistment When a civilian court uses its sentencing power — “earrot-and-stick” fashion — to compel a defendant to choose between the certainty of going to jail and enlisting in the" }, { "docid": "12050149", "title": "", "text": "who- (1) submitted voluntarily to military authority; (2) met the mental competency and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority: (3) received military pay or allowances; and (4) performed military duties; is subject to this chapter until such person’s active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned. (Pub.L.No.96-107, § 801(a)(2), 93 Stat. 810 [emphasis added].) The Senate Report concerning the amendment contains the following: The committee strongly believes that [the Russo doctrine serves] no useful purpose, and severely undermine[s] discipline and command authority. No military member who voluntarily enters the service and serves routinely for a time should be allowed to raise for the first time after committing an offense defects in his or her enlistment, totally escaping punishment for offenses as a result. That policy makes a mockery of the military justice system in the eyes of those who serve in the military services. This amendment [subsection (c)] thus overrules those portions of [Court of Military Appeals cases including United States v. Russo, supra] which held that improper Government participation in the enlistment process estops the Government from asserting constructive enlistment. It also overrules that portion of United States v. Valadez, 5 M.J. 470, 473 (C.M.A.1978) which stated that an uncured regulatory enlistment disqualification, not amounting to a lack of capacity or voluntariness, prevented application of the doctrine of constructive enlistment. (S.Rep. No.96-197, 96th Cong., 1st Sess. 121, 122 reprinted in [1979] U.S.Code Cong. & Ad. News 1827, 1828.) The appellant argues that we should apply the Russo doctrine rather than the recent amendment to Article 2 of the Code because that amendment did not become effective until after the conclusion of his trial. His position is anomalous. He asks that we apply a doctrine ostensibly designed to further a policy expressed by Congress, even though Congress has explicitly rejected that doctrine. Moreover, that doctrine, insofar as it prevents the Government from establishing jurisdiction by showing a constructive enlistment, is a prophylactic policy rule, devised by the Court" }, { "docid": "1124625", "title": "", "text": "that, while processing that application, the recruiter was aware of nothing which might have put him on notice that appellant was less than the eighteen years he, the Bible, and the woman who identified herself as appellant’s grandmother claimed he was. Whether the recruiter should have known or otherwise should be held responsible for his failure to discover appellant’s true age does not concern us here. The fact remains sufficiently established that, throughout the enlistment process, the recruiter mistook appellant for eighteen; we therefore find that the recruiter did not violate Article 84, U.C.M.J. [10 U.S.C. § 884], during that process since appellant was not “known to him\" to be ineligible for enlistment by reason of age. Since appellant’s voluntary performance of military duties and acceptance of benefits after reaching age seventeen were untainted by prior recruiter misconduct amounting to a violation of the fraudulent enlistment statute, we conclude that a legitimate constructive enlistment arose which resulted in a voluntary change in appellant’s status from civilian to sailor and therefore made him amenable to trial by court-martial. Pursuing the Russo “fraudulent enlistment” analysis, we have found no recruiter misconduct capable of preventing the establishment of a valid enlistment contract or of a legitimate constructive enlistment upon which to base court-martial jurisdiction. In terms of the “estoppel” analysis pursued by appellant, we find no recruiter misconduct capable of preventing the Government from basing court-martial jurisdiction upon a clearly established constructive enlistment. The issue granted for review by this Court is: DOES RECRUITER NEGLIGENCE THAT PAVES THE WAY POR A FRAUDULENT ENLISTMENT ESTOP THE GOVERNMENT FROM PREDICATING PERSONAL JURISDICTION ON A CONSTRUCTIVE ENLISTMENT OR MUST THE RECRUITER’S ACTION VIOLATE ARTICLE 84, UNIFORM CODE OF MILITARY JUSTICE? It is clear, in the present case, that the appellant’s original enlistment contract was void as a jurisdictional base due to his statutory incapacity to contract for military service. See United States v. Blanton, 7 U.S.C.M.A. 664, 23 C.M.R. 128 (1957); see also 10 U.S.C. 505(a) (1970). As indicated in our recent decision in United States v. Valadez, 5 M.J. 470 (C.M.A.1978), the touchstone for determining" }, { "docid": "12812256", "title": "", "text": "to these incidental situations involving waivable regulatory disqualifications which might not properly be deemed “essential prerequisites for enlistment.” United States v. Little, 1 M.J. 476 (C.M.A.1976). Accordingly, in light of the public policy considerations inherent to this area of military law, we will not extend the coverage of the Russo doctrine to those situations involving waivable regulatory defects in an accused’s enlistment. See United States v. Valadez, supra. The decision of the United States Navy Court of Military Review is affirmed. . Except in cases involving jurisdictional questions, this Court has not had many opportunities to definitively rule or comment on the type of recruiter misconduct which technically violates Article 84, Uniform Code of Military Justice, 10 U.S.C. § 884. United States v. Jenkins, 7 U.S.C.M.A. 261, 264, 22 C.M.R. 51, 54 (1956); but see para. 163, Manual for Courts-Martial, United States, 1969 (Revised edition). The absence of such cases suggests, among other things, that enlistment criminality has not existed for the last 30 years or that recruiting has not been adequately supervised, and abuses investigated and prosecuted. But see United States v. Valadez, 5 M.J. 470, 473 n. 7 (C.M.A.1978). In any event, as correctly noted by appellate government counsel, the Russo doctrine is concerned with a clearly defined class of recruiter criminality, in violation of Article 84. See In re Grimley, 137 U.S. 147, 11 S.Ct. 54, 34 L.Ed. 636 (1890); United States v. Russo, 1 M.J. 134 (C.M.A.1975); see also United States v. Valadez, supra at 475. In this light and for the purposes of this jurisdictional doctrine alone, we simply cannot equate even the fraudulent failure to secure a waiver for an otherwise qualified enlistee with the deliberate enlistment of a person who may not be allowed in the service under any circumstances. See United States v. Valadez, supra. . As pointed out by appellate defense counsel, a waivable regulatory enlistment disqualification was the subject of our review in the recent case of United States v. Murawsky, 7 M.J. 353 (C.M.A.1979). There, however, this Court determined that no regulatory disqualification, waivable or nonwaivable, existed as a" }, { "docid": "14140176", "title": "", "text": "of Military Justice, 10 U.S.C. § 802, as follows: Subsection (a) of Section 801, therefore, amends Article 2 of the UCMJ to affirm the law and public policy of the United States dealing with the commencement of in person- am jurisdiction for purposes of the Code. The amendment is expressly intended to overrule United States v. Russo, 1 M.J. 134 (C.M.A.1975), in which the Court of Military Appeals held that an otherwise valid enlistment was void for purposes of UCMJ jurisdiction due to recruiter misconduct in the enlistment process and that this recruiter misconduct estopped the armed forces from relying upon the doctrine of constructive enlistment. This amendment adds two new subsections to Article 2 of the Code to resolve these related yet distinct jurisdictional problems. It is not intended to affect any administrative matter relating to fraudulent enlistment. The first portion of the amendment (new Subsection (b) of Article 2) overrules that portion of United States v. Russo which invalidated for jurisdictional purposes an otherwise valid enlistment because of recruiter misconduct in the enlistment process. It does so by reaffirming the law as set forth by the Supreme Court in In re Grimley, 137 U.S. 147, [11 S.Ct. 54, 34 L.Ed. 636] (1890), and requiring compliance with only two factors before an enlistment will be considered valid: capacity to understand the significance of enlistment in the armed forces and the voluntary taking of the oath of enlistment. . The second portion of the amendment (new Subsection (c) of Article 2) provides for jurisdiction based upon a constructive enlistment. A constructive enlistment arises at the time an individual submits voluntarily to military authority, meets the mental competency and minimum age qualifications contained in Sections 504 and 505 of Title 10, United States Code, receives military pay or allowances and performs military duties. This doctrine is applicable when there is not an otherwise valid enlistment. An individual who meets the four-part test for constructive enlistment will be amenable to UCMJ Jurisdiction even if the initial entry of the individual into the armed forces was invalid for any reason, including recruiter misconduct" }, { "docid": "12058301", "title": "", "text": "McDowell further commented specifically on subsection 2(c) (j. e., Article 2(c)) as follows: If, however, for some reason, it is determined that the proposed new subsection (b) has only prospective application, it will nevertheless accomplish its major goal of statutorily defining what constitutes a valid initial enlistment for UCMJ jurisdiction purposes. Furthermore, if the proposed new subsection (b) is held to be prospective only, then the proposed new subsection (c) will resolve the immediate problem, as it will be applicable to all members of the armed forces currently on active duty, who meet its four-part test, which should occur on the first pay day after enactment of this legislation. House Hearings, supra note 12, at 27 (emphasis added). Meanwhile, the Senate Armed Services Committee, in whose bill the amendments ultimately were enacted, had focused on the existing situation under which members of the armed forces could raise the issue of recruiter malpractice for the first time after committing an offense, thereby shift to the Government the burden of proving lack of recruiter misconduct, possibly escape military jurisdiction, and remain immune from military discipline while awaiting administrative disposition. Referring to this as a “serious problem” and “intolerable,” the committee said that it strongly believed that the Russo doctrine served no useful purpose and severely undermined discipline and command authority, and reported that the purpose of the amendments was “to overrule United States v. Russo ... by reaffirming the law as set forth by the Supreme Court in In re Grimley, 137 U.S. 147 [11 S.Ct. 54, 34 L.Ed. 636] (1890).” S.Rep.No.96-197, 96th Cong., 1st Sess. 121-22 (1979) reprinted in [1979] U.S.Code Cong. & Ad.News 1818, 1826-27. With approximately 1.7 million enlisted men and women already serving in the armed forces, and with perhaps as many as one half of them serving a first enlistment, it is apparent that the legislative purpose scarcely could be realized if the amendments would not apply to enlistments already made. Reading the language of the amendments in the light of the conditions that necessitated their passage leads irresistably to the conclusion that Congress intended them to" } ]

[ { "docid": "22792381", "title": "", "text": "in judicial or administrative proceedings if the party against whom the prior decision is asserted had a “full and fair opportunity” to litigate that issue in an earlier case. Allen v. McCurry, 449 U.S. 90, 95, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980), Collateral estoppel principles apply to dischargeability proceedings. Grogan v. Garner, 498 U.S. 279, 285 n. 11, 111 S.Ct. 654, 658 n. 11, 112 L.Ed.2d 755 (1991). If the prior judgment was rendered by a state court, then the collateral estoppel law of that state must be applied to determine the judgment’s preclusive effect. In re Touchstone, 149 B.R. 721, 725 (Bankr.S.D.Fla. 1993). Under Florida law, the following elements must be established before collateral estoppel may be invoked: (1) the issue at stake must be identical to the one decided in the prior litigation; (2) the issue must have been actually litigated in the prior proceeding; (3) the prior determination of the issue must have been a critical and necessary part of the judgment in that earlier decision; and (4) the standard of proof in the prior action must have been at least as stringent as the standard of proof in the later ease. In re Yanks, 931 F.2d 42, 43 n. 1 (11th Cir.1991); In re Halpern, 810 F.2d 1061, 1064 (11th Cir.1987); In re Scarfone, 132 B.R. 470, 472 (Bankr.M.D.Fla.1991); see also Mobil Oil Corp. v. Shevin, 354 So.2d 372, 374 (Fla.1977). While collateral estoppel may bar a bankruptcy court from relitigating factual issues previously decided in state court, however, the ultimate issue of dischargeability is a legal question to be addressed by the bankruptcy court in the exercise of its exclusive jurisdiction to determine discharge-ability. Halpern, 810 F.2d at 1064. The bankruptcy court properly applied collateral estoppel to those facts underlying the state court’s finding of fraud in determining dischargeability under § 523(a)(2)(A). The fraud issue at stake in the bankruptcy proceeding was identical to that decided in the state court proceeding. For purposes of § 523(a)(2)(A), a creditor must prove that (1) the debtor made a false representation with intent to deceive the" } ]

[ { "docid": "14049307", "title": "", "text": "pursuant to § 523(a)(2). Section 523(a)(2)(A) provides that a debt is non-dischargeable where it is: (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by&emdash; (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition; 11 U.S.C. § 523(a)(2)(A). Generally, proving a § 523(a)(2)(A) exception to discharge requires a showing that: (1) the debtor made representations knowing they were false; (2) the debtor made the representations with the intent and purpose of deceiving the plaintiff; (3) the creditor justifiably relied on the debtor’s false representations; and, (4) the creditor suffered a loss or damage as a proximate consequence of the representations having been made. See In re Antonious at 182; In re Burns, 2008 WL 2782661 *3 (Bankr.M.D.Pa.2008). These elements of fraud must be proven by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 290, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). The false pretense or misrepresentation must be both material and made with the intent to deceive the party to whom it was directed. See Field v. Mans, 516 U.S. 59, 68, 116 S.Ct. 437, 442-43, 133 L.Ed.2d 351 (1995). “A ‘false pretense’ is an implied misrepresentation or conduct which creates and fosters a false impression, as distinguished from a ‘false representation’ which is an express misrepresentation.” Antonious at 182 (quoting In re Haining, 119 B.R. 460, 463-464 (Bankr. D.Del.1990)). Collectively, it is any series of events that create a contrived and misleading understanding of a transaction, in which a creditor is wrongly induced to extend money or property to the debtor. Antonious at 182, referencing In re Barr, 194 B.R. 1009, 1019 (Bankr.N.D.Ill.1996). A false pretense is fostered willfully, knowingly, and by design; it is not the result of inadvertence. Antonious at 182. Ultimately, a bankruptcy court may look to the totality of the circumstances, including the recklessness of a debtor’s behavior, to infer a debtor’s intent to deceive. In re Hildreth, 2011 WL 1332036, *6 (Bankr. M.D.Pa.2011), quoting In re Miller, 39 F.3d 301, 305" }, { "docid": "18539114", "title": "", "text": "by the District Court. In re Luthra, 182 B.R. 88, 91 (E.D.N.Y.1995) (citing In re Tesmetges, 86 B.R. 21, 23 (E.D.N.Y.1988); 9 L. King, Collier on Bankruptcy ¶ 8013.03). LAW Section 523(a)(2)(A) of the Bankruptcy Code provides, in relevant part: A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt ... for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by ... false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition. 11 U.S.C. § 523(a)(2)(A) (emphasis supplied). This provision permits creditors to prove that particular debts arose through “impermissible means, and advances the cornerstone bankruptcy princip[le] that relief befall only the debtor with clean hands.” In re Luthra, 182 B.R. at 91 (citing Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934)). To bar discharge from a debt under Section 523(a)(2)(A), a creditor must prove, by a preponderance of the evidence, see Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991), the following factors: (1) the debtor made a representation; (2) he knew the representation was false; (3) he intended to deceive the creditor; (4) the creditor relied on the representation; and (5) his reliance was the proximate cause of his damage. In re Luthra, 182 B.R. at 91-92. Reliance must be “justifiable, but not reasonable, reliance.” Field v. Mans, — U.S.-,-, 116 S.Ct. 437, 446, 133 L.Ed.2d 351 (1995). The difference between justifiable and reasonable reliance is that the former is a subjective standard, whereas the latter is an objective standard of conduct. According to the Supreme Court: “Justification is a matter of the qualities and characteristics of the particular plaintiff, and the circumstances of the particular case, rather than the application of a community standard of conduct to all cases.” Id. at -, 116 S.Ct. at 444 (quoting Restatement (Second) of Torts § 545A, emt. b (1976)). It is only where, “under the circumstances," }, { "docid": "12861462", "title": "", "text": "was revealed). The court finds from a totality of the circumstances that Boyd did violate the false oath provisions of section 727(a) of the Bankruptcy Code. DISCHARGEABILITY OF A DEBT: 11 U.S.C. § 523(a)(2)(A) The United States Bankruptcy Code excepts from a Chapter 7 discharge any debt for “money, property, services, ...” obtained as a result of false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider’s financial condition. 11 U.S.C. § 523(a)(2)(A)(2000); Cohen v. de la Cruz, 523 U.S. 213, 218, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998) (citing Field v. Mans, 516 U.S. 59, 64, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995)). The party seeking a finding of dischargeability of a debt must establish the elements of this subsection by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Exceptions to the discharge are narrowly construed against the objecting creditor and in favor of the debtor. Equitable Bank v. Miller (In re Miller), 39 F.3d 301, 304 (11th Cir.1994); Land O’Lakes Farmland Feed LLC v. Gehl (In re Gehl), 325 B.R. 269, 274 (Bankr.N.D.Iowa 2005)(citing In re Long, 774 F.2d 875, 879 (8th Cir. 1985)); 4 Collier on Bankruptcy ¶ 523.05 (Alan N. Resnick & Henry P. Sommer, et al eds., 15th ed. rev.1993). In order to succeed in a 523(a)(2)(A) claim, a creditor must prove the following five common law elements of fraud. These include: (1) the debtor made a false representation or pretense; (2) the debtor knew the representation was false when it was made; (3) the debtor intended to deceive the creditor or to induce him to act upon the representation; (4) the creditor justifiably relied upon the representation; and (5) the creditor sustained the alleged loss and damage as a proximate result of the representation. Thul v. Ophaug (In re Ophaug), 827 F.2d 340, 342 n. 1 (8th Cir.1987) (citations omitted). See also Field, 516 U.S. at 77, 116 S.Ct. 437 (holding that the other party’s reliance on the false representation must be “justifiable” under the" }, { "docid": "12259207", "title": "", "text": "A. Standard of Review Decisions of the Bankruptcy Appellate Panel are reviewed de novo. Steelcase Inc. v. Johnston (In re Johnston), 21 F.3d 323, 326 (9th Cir.1994). This court independently reviews the bankruptcy court’s rulings on appeal from the Bankruptcy Appellate Panel. The bankruptcy court’s conclusions of law are reviewed de novo, while its factual findings are reviewed for clear error. Id. B. The Basics Under 11 U.S.C. § 523(a)(2)(A) In bankruptcy some debts are nondis-chargeable. Section 523 of the Bankruptcy Code provides in relevant part: (a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt— (2)for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained, by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition. 11 U.S.C. § 523(a)(2)(A) (emphasis added). This exception to discharge furthers the policy that an honest but unfortunate debtor obtains a fresh start while a dishonest debtor does not benefit from his wrongdoing. Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 659-60, 112 L.Ed.2d 755 (1991). In the Ninth Circuit, to prove actual fraud, a creditor must establish each of the following elements: (1) [that] the debtor made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the creditor; (4) that the creditor relied on such representations; [and] (5) that the creditor sustained the alleged loss and damage as the proximate result of the representations having been made. Britton v. Price (In re Britton), 950 F.2d 602, 604 (9th Cir.1991); Eugene Parks Law Corp. Defined Benefit Pension Plan v. Kirsh (In re Kirsh), 973 F.2d 1454, 1457 (9th Cir.1992). The creditor must prove each ele ment of fraud by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 290, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991). Recently, in Field v. Mans, — U.S. -, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995), the Supreme Court determined" }, { "docid": "1611800", "title": "", "text": "are whether the defendant’s conduct brought him within the purview of 11 U.S.C. § 523(a)(2)(A) and (6). Subsection 523(a)(2)(A) provides that an individual debtor’s debt incurred for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by — false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition; will not be discharged in bankruptcy. As stated in In re McLaren, 3 F.3d 958 (6th Cir.1993): It is well established that in order to except a debt from discharge under section 523(A)(2) ‘the creditor must prove that the debtor obtained money through a material misrepresentation that at the time the debt- or knew was false or made with gross recklessness as to its truth. The creditor must also prove the debtor’s intent to deceive. Moreover, the creditor must prove that it reasonably relied on the false representation and that its reliance was the proximate cause of the loss.’ Atassi v. McLaren (In re McLaren), 990 F.2d 850, 852 (6th Cir.1993) (quoting Coman v. Phillips (In re Phillips), 804 F.2d 930, .932 (6th Cir.1986)). Additionally, the proper burden upon [the creditor] ‘ “... was to show proof of ... fraud by a preponderance of the evidence only.” ’ Id. at 853 (citing Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) ...). At page 961. As concerns the reliance requirement, the Supreme Court has recently ruled in Field v. Mans, — U.S. -, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995), that the standard for excepting a debt from discharge as a fraudulent misrepresentation within the meaning of § 523(a)(2)(A) is not reasonable reliance but the less demanding one of justifiable reliance on the representation. In order for the first requirement for the application of collateral estoppel to be met, it must be clear that the issue of whether the defendant herein incurred the debt to the plaintiffs herein by means of a false representation was raised in the state court proceeding. The record of the state court proceeding, a copy of which" }, { "docid": "7502085", "title": "", "text": "bankruptcy petition should be dismissed for bad faith filing under 11 U.S.C. § 707(a). (D.I.2.) A. Section 523(a) Section 523(a) of the Bankruptcy Code “provides limited exceptions to the general dischargeability of debts of eligible claimants[.]” In re Cohen, 106 F.3d 52, 55 (3d Cir.1997), aff'd, 523 U.S. 213, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998). In total, there are sixteen types of debts that are not dischargeable under section 523(a). Id. A party objecting to discharge under any of these exceptions must establish the exception by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 281, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Here, Creditor argues that Debtor’s debt to him is not dischargeable under sections 523(a)(2)(A), 523(a)(4), and 523(a)(6). (D.I.2.) Section 523(a)(2)(A) requires that a “debt shall not be dischargeable in bankruptcy ‘to the extent’ it is ‘for money ... obtained by ... false pretenses, a false representation, or actual fraud.’ ” Archer v. Warner, 538 U.S. 314, 316, 123 S.Ct. 1462, 155 L.Ed.2d 454 (2003); see 11 U.S.C. § 523(a)(2)(A). To prevail in seeking exception to a debtor’s discharge of debt under section 523(a)(2)(A), a party must prove: (1) the debtor obtained money through representations which the debtor knew to be false; (2) the debtor possessed an intent to deceive; (3) the creditor justifiably relied on the false misrepresentation; and (4) the creditor sustained damages as a result of the false misrepresentations. See, e.g., In re Casing 307 B.R. 800, 815 (Bankr.D.N.J.2004); In re Redden, 234 B.R. 49, 50 (Bankr. D.Del.1999) (citing In re Haining, 119 B.R. 460, 463 (Bankr.D.Del.1990)); In re DeBaggis, 247 B.R. 383, 389 (Bankr.D.N.J. 1999); In re Cohen, 191 B.R. 599, 604 (D.N.J.1996), aff'd, 106 F.3d 52 (3d Cir. 1997), aff'd, 523 U.S. 213, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998); see also Field v. Mans, 516 U.S. 59, 68, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995) (“[Cjourts that have previously construed this statute routinely require intent, reliance, and materiality before applying § 523(a)(2)(A).”). Section 523(a)(4) provides that an individual debtor will not be discharged from any debt “for fraud or" }, { "docid": "3713329", "title": "", "text": "performed. In re Faulk, 69 B.R. at 751-52. Evidence of repeated payments by Debtor to the Plaintiff over the nine months prior to the filing of her bankruptcy petition rebuts the contention that Debtor had no intention of paying the complaining creditor at the time it was providing services. The burden of proof is not shifted by the presumption, and ultimate risk of non-persuasion remains throughout the proceedings upon the Plaintiff. In re Faulk, 69 B.R. at 751-52. Elements Under § 523(a)(2) 10. Section 523(a)(2)(A) bars discharge of any debt to the extent obtained by false pretenses, a false representation, or actual fraud. The Plaintiff rests its case on assertion of a false representation by Defendant. In order to sustain its case under § 523(a)(2), Plaintiff must establish each of five elements: (i) that Debtor-Defendant made a representation; (ii) that at the time the representation was made, she knew it was false; (iii) that she made the false representation with the intention and purpose of deceiving Plaintiff; (iv) that Plaintiff justifiably relied on the representation and such reliance was justifiably founded; and (v) that Plaintiff sustained a loss or damage as the proximate consequence of the false representation having been made. See Field v. Mans, - U.S. -, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995) (as to the most recent analysis regarding only the element of reliance” in a § 523(a) action); Mayer v. Spanel International, 51 F.3d 670 (7th Cir.1995); In re Scarlata, 979 F.2d 521 (7th Cir.1992). 11. The burden of proving each of the elements is on the party claiming the exception to discharge. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); Scarlata, 979 F.2d at 529. Each element must be established by a preponderance of the evidence. Grogan, 498 U.S. at 285, 111 S.Ct. at 658. 12. Exceptions to dischargeability of debtor are to be construed strictly against a creditor and liberally in favor of a debtor. Scarlata, 979 F.2d at 524; In re Zarzynski, 771 F.2d 304, 306 (7th Cir.1985). The exceptions to dischargeability must be narrowly construed against the" }, { "docid": "2165624", "title": "", "text": "the evidence at trial established that, at all times prior to the fifing of the bankruptcy, she made no misrepresentations to Chase. The Debtor asserts that she paid her credit card bills every month and had every intention of repaying her debt to Chase, as evidenced by, inter alia, the two large lump-sum payments she made to Chase in June and July 2006. The Debtor asserts further that, based on the facts and circumstances surrounding the transactions involved, Chase was not substantially justified in bringing these adversary proceedings. Debtor’s Memorandum of Law at 2-3. V. NONDISCHARGEABILTY — 11 U.S.C. §§ 523(a)(2)(A) and (C) A. Elements of a Claim Under 11 U.S.C. § 523(a)(2)(A) In these adversary proceedings, 11 U.S.C. § 523(a)(2)(A) is one of the relevant provisions underlying Chase’s nondis-chargeability claim. Section 523(a)(2)(A) provides in pertinent part: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained, by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition.... Section 523(a)(2)(A) is interpreted according to the general common law of torts. Field v. Mans, 516 U.S. 59, 70 n. 9, 116 S.Ct. 437, 444 n. 9, 133 L.Ed.2d 351 (1995). In order for a debt to be declared non-dischargeable under § 523(a)(2)(A), a plaintiff must prove that: 1. the debtor made a false representation; 2. at the time of the representation, the debtor knew it was false; 3. the false representation was made with the intent and purpose of deceiving the creditor; 4. the creditor justifiably relied upon the representation; and 5. the creditor sustained damage as a proximate result of the misrepresentation. E.g., In re Feld, 203 B.R. 360, 365 (Bankr.E.D.Pa.1996); In re Blanchard, 201 B.R. 108, 115 (Bankr.E.D.Pa.1996); accord In re Acosta, 406 F.3d 367, 372 (5th Cir.2005). The creditor contesting dischargeability must prove each element by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279," }, { "docid": "5721738", "title": "", "text": "for money, property, services, or any extension, renewal, or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition. In order to except a debt from discharge under § 523(a)(2)(A), a creditor must prove the following elements: (1) the debtor obtained money through a material misrepresentation that, at the time, the debtor knew was false or made with gross recklessness as to its truth; (2) the debtor intended to deceive the creditor; (3) the creditor justifiably relied on the false rep resentation; and (4) its reliance was the proximate cause of loss. See Longo v. McLaren (In re McLaren), 3 F.3d 958, 961 (6th Cir.1993). In order to except a debt from discharge, a creditor must prove each of these elements by a preponderance of the evidence. See Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991). Further, exceptions to discharge are to be strictly construed against the creditor. See Manufacturer’s Hanover Trust v. Ward (In re Ward), 857 F.2d 1082, 1083 (6th Cir.1988). The focus in the present case is on the first two elements -of the McLaren test: material misrepresentation and intent to defraud. Whether a debtor possessed an intent to defraud a creditor within the scope of § 523(a)(2)(A) is measured by a subjective standard, see Field v. Mans, 516 U.S. 59, 70-72, 116 S.Ct. 437, 444, 133 L.Ed.2d 351 (1995); thus, we must determine whether Rembert had a subjective fraudulent intent, based on her representations to Citibank and AT & T. In so determining, we first must consider the nature of those representations. The use of a credit card represents either an actual or implied intent to repay the debt incurred. See, e.g., Chevy Chase Bank, FSB v. Briese (In re Briese), 196 B.R. 440, 449-50 (Bankr.W.D.Wis.1996); Chase Manhattan Bank v. Murphy (In re Murphy ), 190 B.R. 327, 332 (Bankr.N.D.Ill.1995); The GM Card v. Cox (In re Cox), 182 B.R. 626, 628 (Bankr.D.Mass.1995). Subject to more debate, however, is the" }, { "docid": "21972780", "title": "", "text": "in an affir-mance, but with a reduction of the Judgment by $24,444. (P.Ex. 6). In its order, the appellate court found that “[Howard] does not dispute that he orally agreed to prosecute [Pearson’s] appeal in exchange for a fee, and that he failed to do so.” (P.Ex. 6). Conclusions of Law Section 523 of the Bankruptcy Code provides for various exceptions to the dischargeability of debts. The party seeking to establish an exception to the discharge of a debt bears the burden of proof by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); In re Sheridan, 57 F.3d 627, 633 (7th Cir.1995); Kress v. Kusmierek (In re Kusmierek), 224 B.R. 651, 655 (Bankr.N.D.Ill.1998). To advance the policy of giving the debtor a fresh start in bankruptcy, exceptions to discharge are construed strictly against the creditor and'liberally in favor of the debtor. Meyer v. Rigdon, 36 F.3d 1375, 1385 (7th Cir.1994). False Pretenses, A False Representation or Fraud Section 523(a)(2)(A) of the Bankruptcy Code provides that a debt is not dischargeable if money, property, services or an extension of credit were obtained by false pretenses, a false representation or fraud. A cause of action under this subsection with an allegation that the debtor made a false representation, requires the following elements to be proven: (1) the debtor made a false representation; (2) the debtor made the representation with the intent to deceive the creditor; and (3) the creditor relied on the representation. Califf v. Park (In re Park), 2002 WL 130948 (Bankr.N.D.Ill.); Bletnitsky v. Jairath (In re Jairath), 259 B.R. 308 (Bankr.N.D.Ill.2001). The creditor’s reliance must have been justifiable, Field v. Mans, 516 U.S. 59, 74-75, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995) and “false pretenses” or “representations” are representations knowingly and fraudulently made that give rise to the debt. Driggs v. Black (In re Black), 787 F.2d 503, 506 (10th Cir.1986), abrogated in part on other grounds, Grogan v. Garner, 498 U.S. 279, 283, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). To the extent Pearson alleges an actual fraud," }, { "docid": "11410373", "title": "", "text": "28 U.S.C. §§ 1334 and 157(b)(2)(A) and the standing referral order under District Court Internal Operating Procedure 15(a). Venue is appropriate under 28 U.S.C. § 1409(a). Standards for Dischargeability The discharge provided to debtors in bankruptcy recognizes the Congressional intent of providing the individual bankrupt with a fresh start. Consequently, exceptions to discharge are construed strictly against the creditor and liberally in favor of the debtor. In re Morris, 223 F.3d 548, 552 (7th Cir.2000). The plaintiff bears the burden of proving its objection to debtor’s discharge. Fed.R.Bankr.P. 4005. The burden of proof required to establish such an exception is a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); In re McFarland, 84 F.3d 943, 946 (7th Cir.1996), cert. denied, 519 U.S. 931, 117 S.Ct. 302, 136 L.Ed.2d 220 (1996). False Representation and False Pretenses Alleged in Count I Under 11 U.S.C. § 523(a)(2)(A), A discharge does not discharge an individual from any debt — • for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition; Plaintiff must therefore prove by a preponderance of the evidence that (i) the debtor made false statements which he knew to be false, or which were made with such reckless disregard for the truth as to constitute willful misrepresentations; (ii) debtor possessed the requisite scienter, i.e. actually intended to deceive the plaintiff, and (iii) to its detriment, the plaintiff justifiably relied on the representations. Field v. Mans, 516 U.S. 59, 116 S.Ct. 437, 446, 133 L.Ed.2d 351 (1995); In re Mayer v. Spanel Inter. Ltd., 51 F.3d 670, 673 (7th Cir.1995), cert. denied, 516 U.S. 1008, 116 S.Ct. 563, 133 L.Ed.2d 488 (1995). False Statements CFC claims that Monroe made the following express false representations: That the deposit funds would be used to pay the first and last three months of lease payments under a future equipment lease and that the deposit funds would be refunded" }, { "docid": "12619161", "title": "", "text": "hoped to secure steady additional part-time employment in order to resolve her financial difficulties. She did not realize the magnitude of her financial problems until she talked to the attorneys at the end of January. Her petition for relief under Chapter 7 of the Bankruptcy Code was filed on March 19, 1996. DISCUSSION The Bank’s complaint is brought under § 523(a)(2)(A) which reads as follows: 11 U.S.C. § 523. Exceptions to discharge. (a) A discharge under section 727, 1141, 1228(a) 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained, by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition;.... Did the Bank Rely? This court adopts the conclusions of Bankruptcy Judge Robert E. Ginsberg in AT & T Universal Card v. Alvi, (In re Alvi), 191 B.R. 724 (Bankr.N.D.Illinois 1996) in which he states: After considering the legal standards now applicable to the determination of the dis-chargeability of credit card debt, the Court now finds: 1) Creditors who bring section 523(a)(2)(A) actions in consumer bankruptcy cases must prove that they “justifiably relied” on representations of a debtor when they extended credit; 2) the use of a credit card, in itself, does not constitute a representation or statement which is capable of being true or false; 3) Creditors must prove that a debtor had the requisite scienter. Id. at 726. In order to prevail the Bank must establish by, a preponderance of the evidence, all of the requirements of § 523(a)(2)(A). Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). First, the Bank must show that it justifiably relied on the Debtor’s false pretenses, false representation or actual fraud. Field v. Mans, — U.S. -, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995). In this case the Bank offered no evidence of reliance. The testimony showed that the Debtor paid off the credit card and did not use it for a number of" }, { "docid": "2165625", "title": "", "text": "extent obtained, by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition.... Section 523(a)(2)(A) is interpreted according to the general common law of torts. Field v. Mans, 516 U.S. 59, 70 n. 9, 116 S.Ct. 437, 444 n. 9, 133 L.Ed.2d 351 (1995). In order for a debt to be declared non-dischargeable under § 523(a)(2)(A), a plaintiff must prove that: 1. the debtor made a false representation; 2. at the time of the representation, the debtor knew it was false; 3. the false representation was made with the intent and purpose of deceiving the creditor; 4. the creditor justifiably relied upon the representation; and 5. the creditor sustained damage as a proximate result of the misrepresentation. E.g., In re Feld, 203 B.R. 360, 365 (Bankr.E.D.Pa.1996); In re Blanchard, 201 B.R. 108, 115 (Bankr.E.D.Pa.1996); accord In re Acosta, 406 F.3d 367, 372 (5th Cir.2005). The creditor contesting dischargeability must prove each element by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 283-91, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). B. The Statutory Presumption Under 11 U.S.C. § 523(a)(2)(C) The total amount of debt at issue in these dischargeability proceedings is $9,746.39. Of that amount, Chase asserts that $6,700.00 is subject to a statutory presumption that may ease its burden of proof considerably. Under 11 U.S.C. § 523(a)(2)(C)(i)(II), there is a presumption that certain cash advances in excess of $825.00, obtained by the debtor within seventy (70) days of the bankruptcy filing, are nondischargeable. It is the creditor’s initial burden to establish that the § 523(a)(2)(C) presumption applies. E.g., In re Manning, 280 B.R. 171, 179 (Bankr.S.D.Ohio 2002); In re Koch, 83 B.R. 898, 902 (Bankr.E.D.Pa.1988). The effect of the presumption, when applicable, is not well settled. Two (2) separate issues exist: (1) whether the presumption shifts the burden of persuasion from the creditor to the debtor; and (2) whether the presumption applies to the ultimate question of dischargeability or whether it is limited to only one element under § 523(a)(2)(A), namely, the debtor’s deceptive intent. Courts" }, { "docid": "6681382", "title": "", "text": "Fed. R. Bankr.P. 8013. DISCUSSION Bankruptcy Code Section 523(a)(2)(A) excepts certain debts from discharge. It provides, in pertinent part, that a discharge: does not discharge an individual debtor from any debt ... for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by ... false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition. 11 U.S.C. § 523(a)(2)(A). A creditor’s success in a non-discharge-ability action under Section 523(a)(2)(A) requires that creditor to prove, by a preponderance of the evidence, that: (1) the debtor made a false representation; (2) at the time the representation was made, the debtor knew it was false; (3) the debtor made the representation deliberately and intentionally with the intention and purpose of deceiving the creditor; (4) the creditor justifiably relied on the representation; and (5) the creditor sustained loss and damage as a proximate result of the misrepresentation. Field v. Mans, 516 U.S. 59, 74, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995)(justifiable reliance); Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)(burden of proof); Moen, 238 B.R. at 790(elements of proof under section 523(a)(2)(A)). Our decision in this case rests, in large part, on the fact that the fraud found by the trial court did not involve misrepresentations that were contemporaneous in timing with the Glens’ obtaining of money, property, services or credit. It is also crucial that the Glens did not intend to deceive the Marcusens when the alleged misrepresentations were made. False Representation The record on appeal and arguments of the parties require us to consider three possible misrepresentations, made at two points in time. The first point in time was when the Marcusens made their investments in Lots 23 and 6. Neither party has contested the bankruptcy court’s finding that “the record cannot sustain ... a finding” that the Glens induced the Marcusens to make investments by fraud. The bankruptcy court’s decision was correct in this respect. The next two false representations allegedly occurred when the Glens obtained additional financing from the" }, { "docid": "1542417", "title": "", "text": "§ 523(a)(2)(A) (Count II) and § 523(a)(6) (Count I). Trial was completed on January 26, 1996. At the close of Richard’s case in chief, Mary moved for judgment in her favor pursuant to Federal Rule of Bankruptcy Procedure 7052, incorporating by reference Federal Rule of Civil Procedure 52(c). The Court reserved ruling. The matter was thereafter taken under advisement. III. APPLICABLE STANDARDS The party seeking to establish an exception to the discharge of a debt bears the burden of proof. In re Martin, 698 F.2d 883, 887 (7th Cir.1983). The burden of proof required for establishing an exception to discharge is a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 659-60, 112 L.Ed.2d 755 (1991). To further the policy of providing the debtor a fresh start in bankruptcy, exceptions to discharge are construed strictly against the creditor and liberally in favor of the debtor. Meyer v. Rigdon, 36 F.3d 1375, 1385 (7th Cir.1994); In re Zarzynski, 771 F.2d 304, 306 (7th Cir.1985). A. The Fraud Claim Under Count II Section 523(a)(2)(A) provides in relevant part: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt— (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition. 11 U.S.C. § 523(a)(2)(A). Section 523(a)(2)(A) lists three separate grounds for dischargeability: actual fraud, false pretenses, and false representation. The Seventh Circuit requires the Court to apply a single test to prove the three types of misconduct even though intent is an integral part of “fraud” and not of “false pretenses” and “a false representation.” See Mayer v. Spanel Int’l Ltd. (In re Mayer), 51 F.3d 670, 674-76 (7th Cir.1995); see also Banner Oil Co. v. Bryson (In re Bryson), 187 B.R. 939, 957-58 (Bankr.N.D.Ill.1995). In order to except “false pretenses,” “fraud,” or a “false representation” from dis-chargeability under § 523(a)(2)(A), Richard must establish the following elements: (1) Mary obtained the" }, { "docid": "21171632", "title": "", "text": "whether a requisite element of a claim under Section 523(a)(2)(A) is present is a factual determination which is reviewed for clear error. Pontow, 111 F.3d at 609; Moen, 238 B.R. at 790. A finding is clearly erroneous when although there is evidence to support the finding, on review of the entire evidence the appellate court is left with the definite and firm conviction that a mistake has been made. Moen, 238 B.R. at 790; Leuang, 211 B.R. at 909. Due regard is given to the trial judge’s opportunity to evaluate the credibility of the witnesses. Fed. R. Bankr.P. 8013; Moen, 238 B.R. at 790. DISCUSSION Pursuant to Section 523(a)(2)(A) of the Bankruptcy Code, a discharge does not discharge an individual debtor from any debt for money, property, services, or an extension, renewal, or refinancing of credit to the extent obtained by false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition. To prevail in a non-dischargeability action under Section 523(a)(2)(A), a creditor must prove by a preponderance of evidence that: (1) the debtor made a false representation; (2) at the time the debtor knew the representation was false; (3) the debtor made the representation deliberately and intentionally with the intention and purpose of deceiving the creditor; (4) the creditor justifiably relied on the representation; and (5) the creditor sustained loss and damage as a proximate result of the representation having been made. Field v. Mans, 516 U.S. 59, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995)(justifiable reliance); Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)(burden of proof); Moen, 238 B.R. at 790(elements of proof under § 523(a)(2)(A)). The court did not make express findings of fact detailing each element of fraud. We therefore review the record as a whole to determine if each element was established by the Creditor at trial. We defer to the trial court’s assessment of credibility. The trial court found the Debtor to be lacking credibility. Accordingly, we accept the Creditor’s version of the events surrounding the failed sale and, where the" }, { "docid": "12698096", "title": "", "text": "date chapter 7 case, the claim of an unscheduled creditor without notice will be discharged unless it is of a kind specified in § 523(a)(2), (4) or (6). Judd v. Wolfe, 78 F.3d 110 (3d Cir.1996), In re Strano, 248 B.R. 493 (Bankr.D.N.J.2000). Casini’s was a no asset, no bar date chapter 7 case. Therefore, unless Graustein can prove that his claim is of a kind specified in § 523(a)(2), (4) or (6), his claim has been discharged. A. Fraud § 523(a)(2) A debt obtained by fraud is excepted from discharge. Section § 523(a)(2)(A) provides: A discharge under section 727 ... of this title does not discharge an individual debtor from any debt ... for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by false pretenses, a false representation, or actual fraud. As noted by the Supreme Court, “courts that have previously construed this statute routinely require intent, reliance, and materiality before applying § 523(a)(2)(A).” Field v. Mans, 516 U.S. 59, 68, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995). Courts in the Third Circuit have held that the creditor must prove that: 1) the debtor represented a fact, opinion, intention, or law; 2) the representation was false; 3) the representation was material; 4) the debtor obtained money, property, or services through the misrepresentation; 5) the debtor knew at the time that the statement was false; 6) the debtor intended the creditor to rely on the statement; 7) the creditor actually relied on the statement; 8) the reliance was justified; 9) the creditor sustained damage; and 10) the damages were the proximate result of the false representation. In re DeBaggis, 247 B.R. 383 (Bankr.D.N.J.1999), In re Cohen, 191 B.R. 599, 604 (D.N.J.1996), aff'd sub nom., 106 F.3d 52 (3rd Cir.1997), aff'd, 523 U.S. 213, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998). Each element of the objection must be proved by a preponderance of the evidence. Grogan v. Garner, 498 U.S. at 287-88, 111 S.Ct. 654; In re Reynolds, 197 B.R. 204, 205 (Bankr.D.N.J.1996). A plaintiff does not have a cause of action for fraud" }, { "docid": "6686741", "title": "", "text": "a relationship with another man during the marriage. Id. As observed by the Tenth Circuit, under the Utah state law of fraudulent misrepresentation, there is no intent to harm requirement. Lang, 1997 WL 26585, at *2 (citing Masters, 777 P.2d at 501-02). Pursuant to the Bankruptcy Code, a debtor will not be discharged from any debt “for money, property, services ... to the extent obtained by — (A) false pretenses, a false representation, or actual fraud....” 11 U.S.C. § 523(a)(2)(A). Under this subsection a claim will be nondischargeable if the following elements are proven: “[1] the debtor made a false representation; [2] the debtor made the representation with the intent to deceive the creditor; [3] the creditor relied on the representation.... ” Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1373 (10th Cir.1996). The creditor’s reliance must have been justifiable, Field v. Mans, 516 U.S. 59, 74-75, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995), and the creditor must have sustained a loss as a result. Young, 91 F.3d at 1373. “False pretenses” or “representations” are representations knowingly and fraudulently made that give rise to the debt. Driggs v. Black (In re Black), 787 F.2d 503, 506 (10th Cir.1986), abrogated in part on other grounds, Grogan v. Garner, 498 U.S. 279, 283, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); see also Missouri v. Audley (In re Audley), 275 B.R. 383, 388 (10th Cir. BAP 2002) (finding debtor must knowingly make a false representation). The creditor bears the burden of proving by a preponderance of the evidence that all elements are present. Grogan, 498 U.S. at 287, 111 S.Ct. 654. The successor judge found that the Debtor had violated state law, resulting in damages to the Plaintiff that were nondis-chargeable under § 523(a)(2)(A). The trial judge reasoned as follows: 1) the Debtor had a duty to her ex-husband to reveal her suspicions about paternity; 2) the Debtor lied during the divorce proceedings when she denied having extramarital affairs; 3) the Plaintiff had justifiably relied on all of these representations and so had not questioned paternity. With respect to damages, the" }, { "docid": "15524298", "title": "", "text": "part that a debtor is not entitled to be discharged from any debt to the extent that the debt was obtained by: (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition; (B) use of a statement in writing— (i) that is materially false; (ii) respecting the debtor’s or an insider’s financial condition; (iii) on which the creditor to whom the debtor is hable for such money, property, services or credit reasonably relied; and (iv) that the debtor caused to be made or published with intent to deceive. II U.S.C. § 523(a)(2). A creditor alleging actual fraud under § 523(a)(2)(B) must show the following seven elements in order to preclude a debt- or’s discharge: (1) a representation of fact by the debtor; (2) that was material; (3) that the-debtor knew at the time to be false; (4) that the debtor made with the intention of deceiving the creditor; (5) upon which the creditor relied; (6) that the creditor’s reliance was reasonable; and (7) that damage proximately resulted from the misrepresentation. In re Berr, 172 B.R. 299 (9th Cir. BAP 1994); In re Siriani, 967 F.2d 302, 304 (9th Cir.1992). The creditor has the burden of proving these elements by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). On appeal, debtors unpersuasively contend that the bankruptcy court erred in finding that the debt owed to Law was non-dischargeable because Law failed to show the requisite reliance under §§ 523(a)(2)(A) and (B). A creditor must show justifiable reliance upon the representations of the debtor to succeed under § 523(a)(2)(A) and reasonable reliance to succeed under § 523(a)(2)(B). Field v. Mans, — U.S. —, —, 116 S.Ct. 437, 445-46, 133 L.Ed.2d 351 (1995), citing In re Kirsh, 973 F.2d 1454, 1460 (9th Cir.1992); In re Candland, 90 F.3d 1466, 1471 (9th Cir.1996). The bankruptcy court found that Law behaved reasonably in relying on the debtors’ representations and that the loan transaction was excepted from discharge pursuant to § 523(a)(2)(B). The court noted" }, { "docid": "8405459", "title": "", "text": "discharge under section 727, 1141, 1228(a), 1228(b) or 1328(b) of this title does not discharge an individual debtor from any debt— (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debt- or’s or insider’s financial condition; The elements of a nondischargeability claim under § 523(a)(2)(A) are set forth in Longo v. McLaren, 3 F.3d 958, 961 (6th Cir.1993): [i]t is well established that in order to except a debt from discharge under § 523(a)(2)(A) the creditor must prove that the debtor obtained money through a material representation that at the time the debtor knew was false or made with gross recklessness as to its truth! The creditor must also prove the debtor’s intent to deceive. Moreover, the creditor must prove that it reasonably relied on the false representation and that its reliance was the proximate cause of loss. The Supreme Court modified these requirements in Field v. Mans, 516 U.S. 59, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995), holding that the proper standard for reliance was not the “reasonable” standard but the “justifiable” reliance standard. The type of fraud which comes within the ambit of § 523(a)(2)(A) is actual fraud, which involves moral turpitude or intentional wrong. Matter of Foreman, 906 F.2d 123 (5th Cir.1990), rev’d on other grounds by, Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). In order to prove actual fraud it is necessary to show that the debtor intended to deceive the creditor in an attempt to obtain money McLaren, supra, at 961. If room exists for the court to infer honest intent, the issue of dischargeability must be decided in favor of the debtor. Van Wert National Bank v. Druckemiller, 177 B.R. 859, 861 (Bankr.N.D.Ohio 1994). The Supreme Court has instructed that only “honest but unfortunate” debtors should be afforded a “fresh start” in bankruptcy. Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991). Therefore, it was the burden of" } ]

[ { "docid": "1056637", "title": "", "text": "PER CURIAM. Appellant Orville Taylor appeals from an order of the district court denying his request for fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412 (1982) (EAJA). The district court held that Taylor’s petition was untimely under § 2412(d)(1)(B) of the EAJA, because it was filed more than thirty days after the district court’s final judgment. Because we hold, with the benefit of recent expressions of congressional intent, that “final judgment” as used in the EAJA means “final and not appealable,” we will vacate the judgment and remand the matter to the district court for consideration of the merits of the fee petition. I Taylor filed suit in district court seeking his release from military custody and an order restraining the government from surrendering him to Spanish authorities for service of a sentence in Spain. Following an involuntary extension of his enlistment, Taylor was listed as a Navy deserter. He was subsequently arrested and confined to a Navy brig in Philadelphia to await transfer to Spain. On June 9, 1982, Taylor sought an injunction to prevent his transfer. The district court, on July 15, 1982, issued the injunction and ordered Taylor released. It held that the Navy had exceeded its authority in extending Taylor’s enlistment involuntarily. We affirmed the district court’s order on June 21, 1983, 711 F.2d 1199 (3d Cir.1983), and a petition for rehearing and a suggestion for rehearing en banc was denied on July 21, 1983. This Court’s mandate affirming the district court judgment was lodged with the district court on August 2, 1983. On August 25, 1983, Taylor filed his application for fees and expenses under the EAJA in the district court. On September 2, 1983, the United States informed both Taylor and the district court that no further appeal would be pursued. App. at 20. The district court denied Taylor’s request for fees and expenses, finding Taylor’s application under the EAJA untimely because it was not filed within thirty days of the entry of the district court judgment. Taylor v. United States, 580 F.Supp. 687 (E.D.Pa.1984). Taylor appealed. II" } ]

[ { "docid": "18757680", "title": "", "text": "they maintained at oral argument that even under Commonwealth Oil, which remains the law in this Circuit, they should have been found to be prevailing parties. Finding no basis for reversing the district court’s finding that plaintiffs did not prevail under the standard of Commonwealth Oil, we affirm. B. Substantial Justification Because we agree with the district court that plaintiffs were not the prevailing parties, we need not determine whether the position of the INS was substantially justified. However, we note that on August 5, 1985, the EAJA was amended, Equal Access to Justice Act, Extension and Amendment, Pub.L. No. 99-80, 99 Stat. 183 (1985) (to be codified at 28 U.S.C. § 2412), and Congress clarified the definition of “position”: (D) ‘position of the United States’ means, in addition to the position taken in the civil action, the action or failure to act by the agency upon which the civil action is based; except that fees and other expenses may not be awarded in which the party has unreasonably protracted the proceedings. Pub.L. No. 99-80, § 2(c)(2)(B), 99 Stat. 185 (to be codified at 28 U.S.C. § 2412(d)(2)(D)). See also H.Rep. No. 120, 99th Cong., 1st Sess. 12 (1985), reprinted in 1985 U.S.C. Code Cong. & Ad.News 132, 140 (“the Committee expressly rejects the holding ... that the only government ‘position’ to be scrutinized in the context of an EAJA case is that taken in the litigation itself”). Congress provided that “the amendments made by this Act shall apply to cases pending on or commenced on or after the date of the enactment of this Act.” Pub.L. No. 99-80, § 7(a), 99 Stat. 186. For the reason that the district court did not “abuse its discretion” in finding plaintiffs not to be prevailing parties under the EAJA, we affirm the denial of attorney’s fees and costs. AFFIRMED. . Cervantez alleged the following violations of law regarding his arrest and incarceration: that he \"was detained and interrogated without a reasonable suspicion that he was involved in criminal conduct, and was arrested without probable cause of a violation of any law;” that" }, { "docid": "22895668", "title": "", "text": "Act and since I would hold that the Back Pay Act is the sole statutory basis applicable in this case, I would not award expenses. III Having determined that it is in the “interest of justice” because of the agency’s action, attorney fees for the judicial appeal and the proceedings before the Board should be awarded under the Back Pay Act to petitioner Gavette. I, too, would refer his application to the original panel of three judges who decided the appeal on the merits for determination of the amount of reasonable fees (but not expenses) to be awarded in connection with the appeal. As to the amount of reasonable attorney’s fees (but not expenses) for the Board proceedings, I would remand Gavette’s application to the Board for a determination thereof. The 1985 amendments to the Equal Access to Justice Act do not in any way affect the provisions dealt with here except to confirm that \"a civil action\" includes an appeal to a court from an administrative proceeding. Equal Access to Justice Act, Extension and Amendment, Pub.L. No. 99-80, § 2(a)(2), 1985 U.S.Code Cong. & Ad.News (99 Stat.) 183, 184 (1985). NIES, Circuit Judge, dissenting-in-part. I join in Judge Bissell’s opinion except for Part II. I would award expenses to Gavette as well as attorney fees. The EAJA provides in 28 U.S.C. § 2412(b) that “a court may award reasonable ... expenses of attorneys unless expressly prohibited by statute.” The Back Pay Act does not expressly prohibit the award of such expenses. Thus, I would hold that expenses of Gavette’s attorneys are also available in this case." }, { "docid": "22895649", "title": "", "text": "substantially justified. Thus, upon final judgment, payment is to be made by the United States and not by the agency. Federal Circuit Rule 20 contemplates that when attorney fees and expenses are authorized in connection with an appeal, the amount of the award for such fees and expenses shall be determined by this court. Gavette’s application satisfies the Rule 20 requirements because it indicates that the EAJA prerequisites have been fulfilled and it contains a statement under oath specifying the nature of each service rendered, the amount of time expended for each service, and the customary charge for each service. The Federal Circuit is in a better position than the board to determine the amount of fees and expenses to be awarded in connection with the appeal to this court, although the board should determine the amount of fees to be awarded in connection with the board proceedings. Conclusion With respect to the board proceedings, neither fees nor expenses can be awarded under the EAJA. Gavette’s application for attorney fees for the board proceedings is granted under the Back Pay Act but expenses cannot be awarded under that act. The application is remanded to the board for determination of the amount of reasonable fees (but not expenses) to be awarded in connection with the board proceedings. With respect to attorney services rendered in connection with the appeal to this court, Gavette’s application is granted under the EAJA. The application is referred to the original panel of three judges who decided the appeal on the merits for determination of the amount to be awarded in connection with appeal. REMANDED. . Equal Access to Justice Act, Extension and Amendment, Pub.L. No. 99-80, 1985 U.S.CODE CONG. & AD.NEWS (99 Stat.) 183 (to be codified at 5 U.S.C. § 504 and 28 U.S.C. § 2412). See also Equal Access to Justice Act, Pub.L. No. 96-481, 1980 U.S.CODE CONG. & AD.NEWS (94 Stat.) 2325. . 20 M.S.P.R. 180 (1984). . Gavette v. OPM, 765 F.2d 158 (Fed.Cir.1985) (unpublished opinion on the merits by Cowen, Senior Judge; argued before Markey, Chief Judge, Cowen, Senior Circuit Judge," }, { "docid": "22895650", "title": "", "text": "granted under the Back Pay Act but expenses cannot be awarded under that act. The application is remanded to the board for determination of the amount of reasonable fees (but not expenses) to be awarded in connection with the board proceedings. With respect to attorney services rendered in connection with the appeal to this court, Gavette’s application is granted under the EAJA. The application is referred to the original panel of three judges who decided the appeal on the merits for determination of the amount to be awarded in connection with appeal. REMANDED. . Equal Access to Justice Act, Extension and Amendment, Pub.L. No. 99-80, 1985 U.S.CODE CONG. & AD.NEWS (99 Stat.) 183 (to be codified at 5 U.S.C. § 504 and 28 U.S.C. § 2412). See also Equal Access to Justice Act, Pub.L. No. 96-481, 1980 U.S.CODE CONG. & AD.NEWS (94 Stat.) 2325. . 20 M.S.P.R. 180 (1984). . Gavette v. OPM, 765 F.2d 158 (Fed.Cir.1985) (unpublished opinion on the merits by Cowen, Senior Judge; argued before Markey, Chief Judge, Cowen, Senior Circuit Judge, and Rich, Circuit Judge). The present application for attorney fees and expenses was filed Mar. 4, 1985, and considered by the court, in banc, at OPM’s suggestion, because of the important issues involved. Briefs on the issue of attorney fees were filed by the parties, as well as by the National Treasury Employees Union as amicus curiae. . See supra note 3. . 28 U.S.C. § 2412(d)(1)(B), amended by Pub.L. No. 99-80 (1985), supra note 1. . Pub.L. No. 99-80, § 2(c)(2)(G), 1985 U.S. CODE CONG. & AD.NEWS (99 Stat.) at 185. . FED.R.APP.P. 26(a). . H.R.REP. NO. 1418, 96th Cong., 2d Sess. 5, reprinted in 1980 U.S.CODE CONG. & AD.NEWS 4984, 4984. . Id. at 6, 1980 U.S.CODE CONG. & AD.NEWS at 4984. . Id. at 8, 1980 U.S.CODE CONG. & AD.NEWS at 4986. . Id. . 28 U.S.C. § 2412 (1982) (Historical and Revision Notes). . Id. . Id. . Pub.L. No. 96-481, 1980 U.S.CODE CONG. & AD.NEWS (94 Stat.) 2325; H.R.REP. NO. 1418 at 9, 1980 U.S.CODE CONG. & AD.NEWS at 4987." }, { "docid": "9840804", "title": "", "text": "ORDER BALDWIN, Circuit Judge. This is an application considered under the recent amendments to the Equal Access to Justice Act (“EAJA”), Pub.L. No. 99-80, 1985 U.S.Code Cong. & Ad.News (99 Stat.) 183 (to be codified at 5 U.S.C. § 504 and 28 U.S.C. § 2412), for attorney fees and expenses for services rendered by petitioner’s attorney before this court. (Peti-toner’s Bill of Costs as prevailing party has been mutually agreed upon and allowed.) We grant petitioner’s application, but with some reduction in amounts claimed. Petitioner had been an employee in California of the United States Department of Agriculture (“agency”) for twenty-four years when he was removed, in 1984, for failure to accept a position of like grade and pay in Chicago. After he unsuccessfully appealed to the Merit Systems Protection Board (“board”), this court reversed. We held that because the agency had improperly defined the local commuting area for the purposes of reassignments of personnel to vacant positions to avoid implementing a RIF, petitioner’s assignment was invalid. In accordance with 28 U.S.C. § 2412(d)(1)(B), petitioner submitted “an application for fees and other expenses” within thirty days of the date when this court’s judgment in the main case became “final and not appealable” — i.e., within thirty days from the date that the Department of Agriculture’s time for filing a petition for certiorari to the Supreme Court expired. See Gavette v. Office of Personnel Management, 785 F.2d 1568, 1570-71 (Fed. Cir.1986) (in banc). The pertinent authorizing provision of the EAJA, 28 U.S.C. § 2412(d)(1)(A), permits in certain circumstances an award of “fees and other expenses” incurred by a party in proceedings before this court which sought judicial review of a board decision. Gavette, At 1573. In Gavette, we said that the “Federal Circuit is in a better position than the board to determine the amount of fees and expenses to be awarded in connection with [an] appeal to this court” and that the EAJA ¡application should be referred to the original merits panel. Id., At 1580. In the present case, it is appropriate for two of the three judges who comprised" }, { "docid": "22895656", "title": "", "text": ". The cases are unanimous in holding that \"substantial justification\" is the appropriate standard for fee awards under § 2412(d)(1)(A). The only controversy has been concerning the meaning of \"substantial justification\" and the meaning of \"position of the United States.\" See Annot., 69 A.L.R.FED. 130 (1984). The 1985 amendments have clarified the meaning of these terms. . H.R.REP. NO. 1418 at 13, 1980 U.S.CODE CONG. & AD.NEWS at 4992. . Id. at 14, 1980 U.S.CODE CONG. & AD.NEWS at 4993. . Id. at 18, 1980 U.S.CODE CONG. & AD.NEWS at 4997. . Id. at 9, 1980 U.S.CODE CONG. & AD.NEWS at 4987. . Id. . The present situation is unlike Sims, 711 F.2d at 1579-81, where the Back Pay Act expressly adopted the Civil Service Reform Act standard of \"in the interest of justice.” . H.R.REP. NO. 1418 at 18, 1980 U.S.CODE CONG. & AD.NEWS at 4997. . 28 U.S.C. § 2412(d)(1)(A) (as amended). . Pub.L. No. 99-80, § 7(a), 1985 U.S.CODE CONG. & AD.NEWS (99 Stat.) at 186; Russell v. National Mediation Bd., 775 F.2d 1284, 1285-88 (5th Cir.1985). Also, the 1985 amendments were intended only to \"clarify\" the meaning of . the 1980 EAJA, “'consistent with the original Congressional intent and the underlying purposes of the statute.’ ” Id. at 1286, quoting from H.R.REP. NO. 120, 99th Cong., 1st Sess. 12, reprinted in 1985 U.S.CODE CONG. & AD.NEWS 132, 140. . Pub.L. No. 99-80, § 2(c)(2)(B), 1985 U.S. CODE CONG. & AD.NEWS (99 Stat.) at 185. . H.R.REP. NO. 120 at 9 & n. 16, 1985 U.S. CODE CONG. & AD.NEWS at 138 & n. 16; Gava v. United States, 699 F.2d 1367 (Fed.Cir.1983). The House report, however, confirmed the applicability of the EAJA to appeals from the Claims Court. H.R. REP. NO. 120 at 17-18, 1985 U.S.CODE CONG. & AD.NEWS at 146. In reviewing Federal Circuit cases up to 1985, the House Committee's only disapproval was that the Federal Circuit applied a standard which was too difficult for the party seeking attorney fees to meet. See H.R.REP. NO. 120 at 9 nn. 14 & 16, 12 n." }, { "docid": "22847715", "title": "", "text": "applied only at the district court level. The EAJA was found to authorize fees at the appellate level. Here, the Back Pay Act applies fully to the appellate proceedings before us. II Since attorneys’ expenses are not recoverable under the Back Pay Act and since I would hold that the Back Pay Act is the sole statutory basis applicable in this case, I would not award expenses. III Having determined that it is in the “interest of justice” because of the agency’s action, attorney fees for the judicial appeal and the proceedings before the Board should be awarded under the Back Pay Act to petitioner Gavette. I, too, would refer his application to the original panel of three judges who decided the appeal on the merits for determination of the amount of reasonable fees (but not expenses) to be awarded in connection with the appeal. As to the amount of reasonable attorney’s fees (but not expenses) for the Board proceedings, I would remand Gavette’s application to the Board for a determination thereof. The 1985 amendments to the Equal Access to Justice Act do not in any way affect the provisions dealt with here except to confirm that \"a civil action” includes an appeal to a court from an administrative proceeding. Equal Access to Justice Act, Extension and Amendment, Pub.L. No. 99-80, § 2(a)(2), 1985 U.S.Code Cong. & Ad.News (99 Stat.) 183, 184 (1985). NIES, Circuit Judge, dissenting-in-part. I join in Judge Bissell’s opinion except for Part II. I would award expenses to Gavette as well as attorney fees. The EAJA provides in 28 U.S.C. § 2412(b) that “a court may award reasonable ... expenses of attorneys unless expressly prohibited by statute.” The Back Pay Act does not expressly prohibit the award of such expenses. Thus, I would hold that expenses of Gavette’s attorneys are also available in this case." }, { "docid": "22847703", "title": "", "text": "justification” standard, there would be “ 'a no-man’s land contrary to clearly expressed Congressional purposes.’ ’’ Natural Resources, 703 F.2d at 706, quoting Ocasio v. Schweiker, 540 F.Supp. 1320, 1323 (S.D.N.Y.1982). . The cases are unanimous in holding that \"substantial justification” is the appropriate standard for fee awards under § 2412(d)(1)(A). The only controversy has been concerning the meaning of \"substantial justification” and the meaning of \"position of the United States.” See Annot., 69 A.L.R.FED. 130 (1984). The 1985 amendments have clarified the meaning of these terms. . H.R.REP. NO. 1418 at 13, 1980 U.S.CODE CONG. & AD.NEWS at 4992. . Id. at 14, 1980 U.S.CODE CONG. & AD.NEWS at 4993. . Id. at 18, 1980 U.S.CODE CONG. & AD.NEWS at 4997. . Id. at 9, 1980 U.S.CODE CONG. & AD.NEWS at 4987. . Id. . The present situation is unlike Sims, 711 F.2d at 1579-81, where the Back Pay Act expressly adopted the Civil Service Reform Act standard of “in the interest of justice.\" . H.R.REP. NO. 1418 at 18, 1980 U.S.CODE CONG. & AD.NEWS at 4997. . 28 U.S.C. § 2412(d)(1)(A) (as amended). . Pub.L. No. 99-80, § 7(a), 1985 U.S.CODE CONG. & AD.NEWS (99 Stat.) at 186; Russell v. National Mediation Bd., 775 F.2d 1284, 1285-88 (5th Cir.1985). Also, the 1985 amendments were intended only to “clarify” the meaning of the 1980 EAJA, “'consistent with the original Congressional intent and the underlying purposes of the statute.' ” Id. at 1286, quoting from H.R.REP. NO. 120, 99th Cong., 1st Sess. 12, reprinted in 1985 U.S.CODE CONG. & AD.NEWS 132, 140. . Pub.L. No. 99-80, § 2(c)(2)(B), 1985 U.S. CODE CONG. & AD.NEWS (99 Stat.) at 185. . H.R.REP. NO. 120 at 9 & n. 16, 1985 U.S. CODE CONG. & AD.NEWS at 138 & n. 16; Gava v. United States, 699 F.2d 1367 (Fed.Cir.1983). The House report, however, confirmed the applicability of the EAJA to appeals from the Claims Court. H.R. REP. NO. 120 at 17-18, 1985 U.S.CODE CONG. & AD.NEWS at 146. In reviewing Federal Circuit cases up to 1985, the House Committee’s only disapproval was that" }, { "docid": "14317547", "title": "", "text": "proceedings. . The Act has now been restored. See Act of Aug. 5, 1985, Pub.L. No. 99-80, 1985 U.S.Code Cong. & Ad.News (99 Stat.) 183. . When it recently extended the Act, Congress increased this amount to two million dollars. See Act of Aug. 5, 1985, Pub.L. No. 99-80, § 2(c)(1)(A), 1985 U.S.Code Cong. & Ad.News (99 Stat.) 183, 185 (amending 28 U.S.C. § 2412(d)(2) (1982)). . Compare Berman v. Schweiker, 713 F.2d 1290, 1300 (7th Cir.1983) (Equal Access to Justice Act applies retroactively); Taylor v. United States, 749 F.2d 171 (3d Cir.1984) (thirty-day period does not expire until time for appeal has expired). ADAMS, Circuit Judge, dissenting. I respectfully dissent. Although I share the majority’s concern over the hardship resulting from a strict application of the statute in this case, I believe we are constrained by firmly established principle to affirm the trial court’s ruling that it lacked jurisdiction to entertain the fee petition at issue here. The guiding precept in this field is clear. The Equal Access to Justice Act (EAJA) represents a waiver of the federal government’s immunity from lawsuits for attorney’s fees. Action on Smoking and Health v. Civil Aeronautics Board, 724 F.2d 211, 225 (D.C.Cir.1984). Waivers of sovereign immunity must be strictly construed. Id. Where the government agrees to permit lawsuits against it, “the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 770, 85 L.Ed. 1058 (1941). Also clear is the statutory language in this case. The Act states that a party seeking fees, “shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows ... the amount sought, including an itemized statement from an attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses are computed.” 28 U.S.C. § 2412(d)(1)(B) (1982) (emphasis added). In stating what is required of a petitioner, the statute uses mandatory" }, { "docid": "22847697", "title": "", "text": "services rendered in connection with the appeal to this court, Gavette’s application is granted under the EAJA. The application is referred to the original panel of three judges who decided the appeal on the merits for determination of the amount to be awarded in connection with appeal. REMANDED. . Equal Access to Justice Act, Extension and Amendment, Pub.L. No. 99-80, 1985 U.S.CODE CONG. & AD.NEWS (99 Stat.) 183 (to be codified at 5 U.S.C. § 504 and 28 U.S.C. § 2412). See also Equal Access to Justice Act, Pub.L. No. 96-481, 1980 U.S.CODE CONG. & AD.NEWS (94 Stat.) 2325. . 20 M.S.P.R. 180 (1984). . Gavette v. OPM, 765 F.2d 158 (Fed.Cir.1985) (unpublished opinion on the merits by Cowen, Senior Judge; argued before Markey, Chief Judge, Cowen, Senior Circuit Judge, and Rich, Circuit Judge). The present application for attorney fees and expenses was filed Mar. 4, 1985, and considered by the court, in banc, at OPM’s suggestion, because of the important issues involved. Briefs on the issue of attorney fees were filed by the parties, as well as by the National Treasury Employees Union as amicus curiae. . See supra note 3. . Pub.L. No. 99-80, § 2(c)(2)(G), 1985 U.S. CODE CONG. & AD.NEWS (99 Stat.) at 185. See also Federal Circuit Rule 20 (30-day requirement). \"If the Government does not appeal an adverse decision, the thirty-day period would begin to run upon expiration of the time for filing the notice of appeal or a petition for certiorari. Thus appealable orders include all discretionary appeals and include writs of certiorari.” H.R.REP. NO. 120, Part II, 99th Cong., lst Sess. 6 n. 26, reprinted in 1985 U.S.CODE CONG. & AD.NEWS 132, 156 n. 26. . 28 U.S.C. § 2101(c) (1982). . No petition for certiorari was filed after the February 1, 1985, decision. . H.R.REP. NO. 1418, 96th Cong., 2d Sess. 5, reprinted in 1980 U.S.CODE CONG. & AD.NEWS 4984, 4984. . Id. at 6, 1980 U.S.CODE CONG. & AD.NEWS at 4984. . Id. at 8, 1980 U.S.CODE CONG. & AD.NEWS at 4986. . Id. . 28 U.S.C. § 2412 (1982)" }, { "docid": "14317546", "title": "", "text": "may appeal such an order. Having negotiated and agreed to its terms those parties are not aggrieved by it, and thus neither may appeal. Petitioners point out, however, that in class actions members of the affected class may seek leave to intervene in order to object to a settlement, and may appeal because they are dissatisfied with the relief obtained. While there is some merit to that contention, we do not find it controlling here. In this instance no application for intervention was filed either prior to the entry of the consent decree or during the thirty-day period specified in section 2412(d)(1)(B). Mindful of the policy of repose behind that section, we hold that absent any motion for intervention prior to the expiration of the thirty-day period, a consent judgment, even in a class action, shall be deemed final as of the date of its entry. III. The district court did not lack subject matter jurisdiction to consider the fee petition. The judgment appealed from must, therefore, be reversed and the case remanded for further proceedings. . The Act has now been restored. See Act of Aug. 5, 1985, Pub.L. No. 99-80, 1985 U.S.Code Cong. & Ad.News (99 Stat.) 183. . When it recently extended the Act, Congress increased this amount to two million dollars. See Act of Aug. 5, 1985, Pub.L. No. 99-80, § 2(c)(1)(A), 1985 U.S.Code Cong. & Ad.News (99 Stat.) 183, 185 (amending 28 U.S.C. § 2412(d)(2) (1982)). . Compare Berman v. Schweiker, 713 F.2d 1290, 1300 (7th Cir.1983) (Equal Access to Justice Act applies retroactively); Taylor v. United States, 749 F.2d 171 (3d Cir.1984) (thirty-day period does not expire until time for appeal has expired). ADAMS, Circuit Judge, dissenting. I respectfully dissent. Although I share the majority’s concern over the hardship resulting from a strict application of the statute in this case, I believe we are constrained by firmly established principle to affirm the trial court’s ruling that it lacked jurisdiction to entertain the fee petition at issue here. The guiding precept in this field is clear. The Equal Access to Justice Act (EAJA) represents a" }, { "docid": "22847706", "title": "", "text": "at 330-33 (Government not substantially justified even though it won in the lower court). . ‘‘[T]he 'substantial justification determination’ will not involve additional evidentiary proceedings or additional discovery of agency files, solely for EAJA purposes.” H.R.REP. NO. 120 at 13, 1985 U.S.CODE CONG. & AD.NEWS at 142. . 28 U.S.C. § 2412(d)(1)(A) (1982), amended by Pub.L. No. 99-80 (1985), supra note 1. . Pub.L. No. 99-80, § 2(d), 1985 U.S.CODE CONG. & AD.NEWS (99 Stat.) at 185 (to be codified at 28 U.S.C. § 2412(d)(4)). . Rules of the United States Court of Appeals for the Federal Circuit (supplementing FED.R.APP.P.). BISSELL, Circuit Judge, with whom MARKEY, Chief Judge, and NIES and ARCHER, Circuit Judges, join, dissenting-in-part. I agree that Gavette’s request for attorney fees — but not expenses — should be granted. However, I would find that the sole statutory basis for a fee award incurred in a judicial appeal, when as a result of the appeal a petitioner is entitled to an award of back pay, is the Back Pay Act, 5 U.S.C. § 5596(b)(1)(A)(ii) (1982). Contrary to the majority analysis, the Equal Access to Justice Act, Pub.L. No. 96-481, Title II, § 204, 94 Stat. 2325, 2327 (1980) (EAJA), itself dictates that liability be determined in accordance with any statute which specifically provides for such an award. 28 U.S.C. § 2412(d) (1982). Since the Back Pay Act provides for an award of fees in this judicial appeal, liability must be determined in accordance with that Act and the standard of that Act, that is, the award must be “in the interest of justice.” I agree with the majority that that standard has been satisfied by petitioner in this case. With respect to attorney expenses, as the Back Pay Act makes no provision for an award, I would hold that this court may not award such expenses in connection with the appeal. Finally, I would remand for the Board to determine the amount of the award with respect to work before the Board. I. I depart from the majority’s position that Gavette has, in effect, an option to seek" }, { "docid": "19889703", "title": "", "text": "the Federal Government: Hearings Before the Subcommittee on Courts, Civil Liberties, and Administration of Justice of the House Committee on the Judiciary, 96th Cong., 2d Sess. 32 (1980) (testimony of Sen. DeConcini); id. (statement of Rep. Kastenmeier). . FERC misconstrues this factor as requiring a contingent, fee ^arrangement. .Rather, it is designed to compensate a party for assuming a real risk of pursuing litigation that has an unlikely outcome. See Copeland v. Marshall, 641 F.2d 880, 893 (D.C.Cir.1980) (en banc). . Murray v. Weinberger, 741 F.2d 1423, 1432 (D.C.Cir.1984). . Petitioner’s Supplement I to Motion for Award of Attorneys’ Fees and Expenses at 17. . Act of Aug. 5, 1985, Pub.L. No. 99-80, 99 Stat. 183 (1985). . The Commission characterizes the recent legislation as a reenactment of EAJA, but it is actually a series of amendments, including one that repeals the sunset provision that caused 28 U.S.C. § 2412(d) to expire October 1, 1984. See Act of Aug. 5, 1985, Pub.L. No. 99-80 § 6, 99 Stat. 183, 186 (1985). . Act of Aug. 5, 1985, Pub.L. No. 99-80 § 7, 99 Stat. 183, 186 (1985). . The Commission informs us, and the petitioner agrees, that the cost of living increased in the Washington, D.C. area by 19.6% between 1981 and May, 1985. . Affidavit of William I. Harkaway. Supplement to Motion for Fees, Attachment L. . Laffey v. Northwest Airlines, Inc., 746 F.2d at 24. . See Action on Smoking and Health, 724 F.2d at 219-20. . 28 U.S.C. § 2412(d)(2)(A) (1982). . Action on Smoking and Health, 724 F.2d at 224. . 760 F.2d at 307. SCALIA, Circuit Judge, concurring: Although I dissented in Hirschey II, believing that the EAJA did not apply to the present case, since the court held otherwise I have participated in this subsequent consideration of what the amount of the EAJA award should be. I join the court’s opinion with the exception of the dictum discussed below. I write separately principally to clarify several points in the current opinion related to my earlier dissent. I agree that the petitioner can be compensated" }, { "docid": "14317544", "title": "", "text": "demand the highest amount and include the largest number of hours and items of expense they could dream up. That would be so because the logic of the government’s position as to the meaning of section 2412(d)(1)(B) would preclude any upward amendment of the petition after the expiration of the thirty-day filing period. It seems unlikely that Congress would have intended anything so inconsistent with sound administration and fair adjudication of fee disputes. Thus we conclude that Congress did not intend that defects in the pleading requirements of section 2412(d)(1)(B) be treated as jurisdictional. So long as a fee petition is filed within the thirty-day period which puts the court, and eventually the government, on notice that the petitioner seeks fees under the Equal Access to Justice Act, the court may consider the petition, and may, absent prejudice to the government or noncompliance with court orders for timely completion of the fee determination, permit supplementation. Because in this instance the fee petition giving such notice was timely filed, we need not address the question whether section 2412(d)(1)(B) is merely a statute of limitations and thus subject to the doctrines of waiver, estoppel, or equitable tolling. B. Our holding that the court did not lack subject matter jurisdiction over the fee petition is dispositive and requires a reversal. Because, however, the government may seek further review, we deem it appropriate to address petitioners’ alternative contention that in any event the June 27 and July 9,1984 filings were timely because the judgment did not become final until the time for appeal expired. If in fact the consent judgment is an appealable order, petitioners are correct. A final judgment, for purposes of the Act, is a judgment that is “final and not appealable.” Act of Aug. 5, 1985, Pub.L. No. 99-80, § 2(c)(2)(B), 1985 U.S.Code Cong. & Ad.News (99 Stat.) 183, 185 (amending 28 U.S.C. § 2412(d)(2) (1982)). Tucker v. United States Postal Service, 676 F.2d 954 (3d Cir.1982). The question, however, is whether a consent order settling a class action is appealable. Certainly neither the government defendants nor the plaintiff class representatives" }, { "docid": "14317545", "title": "", "text": "section 2412(d)(1)(B) is merely a statute of limitations and thus subject to the doctrines of waiver, estoppel, or equitable tolling. B. Our holding that the court did not lack subject matter jurisdiction over the fee petition is dispositive and requires a reversal. Because, however, the government may seek further review, we deem it appropriate to address petitioners’ alternative contention that in any event the June 27 and July 9,1984 filings were timely because the judgment did not become final until the time for appeal expired. If in fact the consent judgment is an appealable order, petitioners are correct. A final judgment, for purposes of the Act, is a judgment that is “final and not appealable.” Act of Aug. 5, 1985, Pub.L. No. 99-80, § 2(c)(2)(B), 1985 U.S.Code Cong. & Ad.News (99 Stat.) 183, 185 (amending 28 U.S.C. § 2412(d)(2) (1982)). Tucker v. United States Postal Service, 676 F.2d 954 (3d Cir.1982). The question, however, is whether a consent order settling a class action is appealable. Certainly neither the government defendants nor the plaintiff class representatives may appeal such an order. Having negotiated and agreed to its terms those parties are not aggrieved by it, and thus neither may appeal. Petitioners point out, however, that in class actions members of the affected class may seek leave to intervene in order to object to a settlement, and may appeal because they are dissatisfied with the relief obtained. While there is some merit to that contention, we do not find it controlling here. In this instance no application for intervention was filed either prior to the entry of the consent decree or during the thirty-day period specified in section 2412(d)(1)(B). Mindful of the policy of repose behind that section, we hold that absent any motion for intervention prior to the expiration of the thirty-day period, a consent judgment, even in a class action, shall be deemed final as of the date of its entry. III. The district court did not lack subject matter jurisdiction to consider the fee petition. The judgment appealed from must, therefore, be reversed and the case remanded for further" }, { "docid": "22895658", "title": "", "text": "21, 18 n. 25, 1985 U.S.CODE CONG. & AD.NEWS at 137 n. 14, 138 n. 16, 140 n. 21, 146 n. 25. . H.R.REP. NO. 120 at 9, 1985 U.S.CODE CONG. & AD.NEWS at 138. . Id. . 131 CONG.REC. H4763 (daily ed. June 24, 1985) (statements of Rep. Kindness and Rep. Kastenmeier). . H.R.REP. NO. 120 at 10, 13, 1985 U.S.CODE CONG. & AD.NEWS at 138, 141-42. . See Schuenemeyer v. United States, 776 F.2d 329, 330-33 (Fed.Cir.1985) (discussing authority for EAJA standard more stringent than \"mere reasonableness”; awarding attorney fees where Government’s defenses had either no reasonable legal basis or no reasonable factual basis); H.R. REP. NO. 1418 at 14, 1985 U.S.CODE CONG. & AD.NEWS at 4993. . Gava, 699 F.2d at 1375 (Baldwin, J., dissenting). See also Schuenemeyer, 776 F.2d at 330-33. . Gava, 699 F.2d at 1375. See Schuenemeyer, 776 F.2d at 330-33 (Government not substantially justified even though it won in the lower court). . ”[T]he 'substantial justification determination’ will not involve additional evidentiary proceedings or additional discovery of agency files, solely for EAJA purposes.” H.R.REP. NO. 120 at 13, 1985 U.S.CODE CONG. & AD.NEWS at 142. . 28 U.S.C. § 2412(d)(1)(A) (1982), amended by Pub.L. No. 99-80 (1985), supra note 1. . 28 U.S.C. §§ 2414, 2517 (1982). . Rules of the United States Court of Appeals for the Federal Circuit (supplementing FED.R. APP.P.). BISSELL, Circuit Judge, with whom MARKEY, Chief Judge, and NIES and ARCHER, Circuit Judges, join, dissenting-in-part. I agree that Gavette’s request for attorney fees — but not expenses — should be granted. However, I would find that the sole statutory basis for a fee award incurred in a judicial appeal, when as a result of the appeal a petitioner is entitled to an award of back pay, is the Back Pay Act, 5 U.S.C. § 5596(b)(l)(A)(ii) (1982). Contrary to the majority analysis, the Equal Access to Justice Act, Pub.L. No. 96-481, Title II, § 204, 94 Stat. 2325, 2327 (1980) (EAJA), itself dictates that liability be determined in accordance with any statute which specifically provides for such an award. 28" }, { "docid": "22895659", "title": "", "text": "files, solely for EAJA purposes.” H.R.REP. NO. 120 at 13, 1985 U.S.CODE CONG. & AD.NEWS at 142. . 28 U.S.C. § 2412(d)(1)(A) (1982), amended by Pub.L. No. 99-80 (1985), supra note 1. . 28 U.S.C. §§ 2414, 2517 (1982). . Rules of the United States Court of Appeals for the Federal Circuit (supplementing FED.R. APP.P.). BISSELL, Circuit Judge, with whom MARKEY, Chief Judge, and NIES and ARCHER, Circuit Judges, join, dissenting-in-part. I agree that Gavette’s request for attorney fees — but not expenses — should be granted. However, I would find that the sole statutory basis for a fee award incurred in a judicial appeal, when as a result of the appeal a petitioner is entitled to an award of back pay, is the Back Pay Act, 5 U.S.C. § 5596(b)(l)(A)(ii) (1982). Contrary to the majority analysis, the Equal Access to Justice Act, Pub.L. No. 96-481, Title II, § 204, 94 Stat. 2325, 2327 (1980) (EAJA), itself dictates that liability be determined in accordance with any statute which specifically provides for such an award. 28 U.S.C. § 2412(d) (1982). Since the Back Pay Act provides for an award of fees in this judicial appeal, liability must be determined in accordance with that Act and the standard of that Act, that is, the award must be “in the interest of justice.” I agree with the majority that that standard has been satisfied by petitioner in this case. With respect to attorney expenses, as the Back Pay Act makes no provision for an award, I would hold that this court may not award such expenses in connection with the appeal. Finally, I would remand for the Board to determine the amount of the award with respect to work before the Board. I. I depart from the majority’s position that Gavette has, in effect, an option to seek attorney fees for the appeal either under the Back Pay Act or under the EAJA’s catch-all provision, 28 U.S.C. § 2412(d)(1)(A). In connection with government personnel cases when as a result of the judicial appeal the petitioner is entitled to an award of back pay," }, { "docid": "22847696", "title": "", "text": "fees and expenses shall be determined by this court. Gavette’s application satisfies the Rule 20 requirements because it indicates that the EAJA prerequisites have been fulfilled and it contains a statement under oath specifying the nature of each service rendered, the amount of time expended for each service, and the customary charge for each service. The Federal Circuit is in a better position than the board to determine the amount of fees and expenses to be awarded in connection with the appeal to this court, although the board should determine the amount of fees to be awarded in connection with the board proceedings. Conclusion With respect to the board proceedings, neither fees nor expenses can be awarded under the EAJA. Gavette’s application for attorney fees for the board proceedings is granted under the Back Pay Act but expenses cannot be awarded under that act. The application is remanded to the board for determination of the amount of reasonable fees (but not expenses) to be awarded in connection with the board proceedings. With respect to attorney services rendered in connection with the appeal to this court, Gavette’s application is granted under the EAJA. The application is referred to the original panel of three judges who decided the appeal on the merits for determination of the amount to be awarded in connection with appeal. REMANDED. . Equal Access to Justice Act, Extension and Amendment, Pub.L. No. 99-80, 1985 U.S.CODE CONG. & AD.NEWS (99 Stat.) 183 (to be codified at 5 U.S.C. § 504 and 28 U.S.C. § 2412). See also Equal Access to Justice Act, Pub.L. No. 96-481, 1980 U.S.CODE CONG. & AD.NEWS (94 Stat.) 2325. . 20 M.S.P.R. 180 (1984). . Gavette v. OPM, 765 F.2d 158 (Fed.Cir.1985) (unpublished opinion on the merits by Cowen, Senior Judge; argued before Markey, Chief Judge, Cowen, Senior Circuit Judge, and Rich, Circuit Judge). The present application for attorney fees and expenses was filed Mar. 4, 1985, and considered by the court, in banc, at OPM’s suggestion, because of the important issues involved. Briefs on the issue of attorney fees were filed by the parties," }, { "docid": "19889702", "title": "", "text": "(\"a court shall award to a prevailing party ... ’’). . See Sierra Club v. Environmental Protection Agency, 769 F.2d 796, 811-12 (D.C.Cir.1985) (Section 307(f) of the Clean Air Act, 42 U.S.C. § 7607(f) (1982)); Laffey v. Northwest Airlines, Inc., 746 F.2d 4, 29-30 (D.C.Cir.1984) (Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k) (1982) and the Fair Labor Standards Act of 1938, 29 U.S.C. § 216(b) (1982)). . In light of our opinion in Hirschey I, there can be no doubt that the Government's position in this case was not substantially justified. See Cinciarelli v. Reagan, 729 F.2d 801, 809-10 (D.C.Cir.1984). The Government carries the burden of demonstrating that its position was substantially justified, see Spencer v. NLRB, 712 F.2d 539, 557 (D.C.Cir.1983), cert. denied, 466 U.S. 936, 104 S.Ct. 1908, 80 L.Ed.2d 457 (1984), and it did not even raise the issue as a defense to Hirschey’s EAJA claim. . Action on Smoking and Health v. CAB, 724 F.2d 211, 218 (D.C.Cir.1984). . See Award of Attorneys’ Fees Against the Federal Government: Hearings Before the Subcommittee on Courts, Civil Liberties, and Administration of Justice of the House Committee on the Judiciary, 96th Cong., 2d Sess. 32 (1980) (testimony of Sen. DeConcini); id. (statement of Rep. Kastenmeier). . FERC misconstrues this factor as requiring a contingent, fee ^arrangement. .Rather, it is designed to compensate a party for assuming a real risk of pursuing litigation that has an unlikely outcome. See Copeland v. Marshall, 641 F.2d 880, 893 (D.C.Cir.1980) (en banc). . Murray v. Weinberger, 741 F.2d 1423, 1432 (D.C.Cir.1984). . Petitioner’s Supplement I to Motion for Award of Attorneys’ Fees and Expenses at 17. . Act of Aug. 5, 1985, Pub.L. No. 99-80, 99 Stat. 183 (1985). . The Commission characterizes the recent legislation as a reenactment of EAJA, but it is actually a series of amendments, including one that repeals the sunset provision that caused 28 U.S.C. § 2412(d) to expire October 1, 1984. See Act of Aug. 5, 1985, Pub.L. No. 99-80 § 6, 99 Stat. 183, 186 (1985). . Act of Aug." }, { "docid": "22847705", "title": "", "text": "the Federal Circuit applied a standard which was too difficult for the party seeking attorney fees to meet. See H.R.REP. NO. 120 at 9 nn. 14 & 16, 12 n. 21, 18 n. 25, 1985 U.S.CODE CONG. & AD.NEWS at 137 n. 14, 138 n. 16, 140 n. 21, 146 n. 25. . H.R.REP. NO. 120 at 9, 1985 U.S.CODE CONG. & AD.NEWS at 138. . Id. . 131 CONG.REC. H4763 (daily ed. June 24, 1985) (statements of Rep. Kindness and Rep. Kastenmeier). . H.R.REP. NO. 120 at 10, 13, 1985 U.S.CODE CONG. & AD.NEWS at 138, 141-42. . See Schuenemeyer v. United States, 776 F.2d 329, 330-33 (Fed.Cir.1985) (discussing authority for EAJA standard more stringent than \"mere reasonableness”; awarding attorney fees where Government’s defenses had either no reasonable legal basis or no reasonable factual basis); H.R. REP. NO. 1418 at 14, 1985 U.S.CODE CONG. & AD.NEWS at 4993. . Gava, 699 F.2d at 1375 (Baldwin, J., dissenting). See also Schuenemeyer, 776 F.2d at 330-33. . Gava, 699 F.2d at 1375. See Schuenemeyer, 776 F.2d at 330-33 (Government not substantially justified even though it won in the lower court). . ‘‘[T]he 'substantial justification determination’ will not involve additional evidentiary proceedings or additional discovery of agency files, solely for EAJA purposes.” H.R.REP. NO. 120 at 13, 1985 U.S.CODE CONG. & AD.NEWS at 142. . 28 U.S.C. § 2412(d)(1)(A) (1982), amended by Pub.L. No. 99-80 (1985), supra note 1. . Pub.L. No. 99-80, § 2(d), 1985 U.S.CODE CONG. & AD.NEWS (99 Stat.) at 185 (to be codified at 28 U.S.C. § 2412(d)(4)). . Rules of the United States Court of Appeals for the Federal Circuit (supplementing FED.R.APP.P.). BISSELL, Circuit Judge, with whom MARKEY, Chief Judge, and NIES and ARCHER, Circuit Judges, join, dissenting-in-part. I agree that Gavette’s request for attorney fees — but not expenses — should be granted. However, I would find that the sole statutory basis for a fee award incurred in a judicial appeal, when as a result of the appeal a petitioner is entitled to an award of back pay, is the Back Pay Act, 5 U.S.C. §" } ]

[ { "docid": "3837615", "title": "", "text": "analogy, suppose that an inventor created a particular fuel-efficient automobile engine and described the engine in such detail in the specification that a person of ordinary skill in the art would be able to build the engine. Although the specification would meet the requirements of section 112 with respect to a claim directed to that particular engine, it would not necessarily support a broad claim to every possible type of fuel-efficient engine, no matter how different in structure or operation from the inventor’s engine. The single embodiment would support such a generic claim only if the specification would “reasonably convey to a person skilled in the art that [the inventor] had possession of the claimed subject matter at the time of filing,” Bilstad v. Wakalopulos, 386 F.3d 1116, 1125 (Fed.Cir.2004), and would “enable one of ordinary skill to practice ‘the full scope of the claimed invention,’ ” Chiron Corp. v. Genentech, Inc., 363 F.3d 1247, 1253 (Fed.Cir.2004), quoting In re Wright, 999 F.2d 1557, 1561 (Fed.Cir.1993); PPG Indus., Inc. v. Guardian Indus. Corp., 75 F.3d 1558, 1564 (Fed.Cir.1996). To hold otherwise would violate the Supreme Court’s directive that “[i]t seems to us that nothing can be more just and fair, both to the patentee and the public, than that the former should understand, and correctly describe, just what he has invented, and for what he claims a patent.” Merrill v. Yeomans, 4 Otto 568, 94 U.S. 568, 573-74, 24 L.Ed. 235 (1876); see also Phillips, 415 F.3d at 1321 (“The patent system is based on the proposition that the claims cover only the invented subject matter.”); AK Steel Corp., 344 F.3d at 1244 (“as part of the quid pro quo of the patent bargain, the applicant’s specification must enable one of ordinary skill in the art to practice the full scope of the claimed invention”). Thus, a patentee cannot always satisfy the requirements of section 112, in supporting expansive claim language, merely by clearly describing one embodiment of the thing claimed. For that reason, we hold that the description of one method for creating a seamless DWT does not entitle" } ]

[ { "docid": "22859087", "title": "", "text": "patent office a written description of [his invention or discovery], and of the manner and process of making, constructing, compounding, and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which it appertains, or with which it is most nearly connected, to make, construct, compound, and use the same.” . Morse, decided under the 1836 Act, can also be interpreted as involving a separate written description inquiry. 56 U.S. (15 How.) 62, 14 L.Ed. 601. The patent at issue contained eight claims, only seven of which recited the specific instrumentalities of the telegraph developed by Morse. The eighth claim, in contrast, claimed every conceivable way of printing intelligible characters at a distance by the use of an electric or galvanic current. Id. at 112. The Court rejected the latter claim as too broad because Morse claimed \"an exclusive right to use a manner and process which he has not described and indeed had not invented, and therefore could not describe when he obtained his patent.” Id. at 113 (emphasis added). Such a rejection implies a distinct requirement for a description of the invention. Yet, in reaching its conclusion, the Court also detailed how the claim covered inventions not yet made, indicating the additional failure of the description to enable such a broad claim. See id. at 113-14. . The record does not reflect how often the PTO rejects claims as enabled but not described, but the government believes the number to be high. Oral Argument at 23:17-23:53. At least one example has made it to this court in recent years, In re Alonso, in which the PTO found claims to a method of treating a tumor by administering an effective amount of an antibody that recognizes the tumor enabled but, as we affirmed, not adequately described. 545 F.3d 1015, 1021-22, 1022 n. 6. (Fed.Cir.2008). . Moreover, the district court found, in the context of its inequitable conduct ruling, that figure 43 is both incorrect and incomplete. Ariad Pharms., 529 F.Supp.2d at 123-25 (finding those errors material). That" }, { "docid": "19674228", "title": "", "text": "carry out the claimed methods.” Id. at 928, 929. Alonso attempts to distinguish his claimed invention from Rochester by emphasizing that he reduced his method to practice and identified the resulting compound. We are not persuaded by the distinction. “[P]roof of a reduction to practice, absent an adequate description in the specification of what is reduced to practice, does not serve to describe or identify the invention for purposes of [the written description requirement].” Enzo, 323 F.3d at 969. Moreover, while it is true that Rochester disclosed no compounds that worked with the claimed method, the one compound disclosed by Alonso cannot be said to be representative of a densely populated genus. In Rochester, we reasoned that while the specification describes what can be done with any compounds that may potentially be identified through those assays, including formulation into pharmaceuticals, routes of administration, estimation of effective dosage, and suitable dosage forms ... the '850 patent does not disclose just which peptides, polynucleotides, and small organic molecules have the desired characteristics of selectively inhibiting [COX-2], Without such disclosure the claimed methods cannot be said to have been described. Rochester, 358 F.3d at 927 (internal citation and quotation marks omitted). We additionally found that Rochester had failed to present any evidence that one skilled in the art would have been able to isolate and identify any given compound based on Rochester’s “vague functional description-” Id. at 928. Even more recently, we held that the written disclosure requirement was not met where the claims at issue covered a broad “genus of recombinant plasmids that contain coding sequences for DNA polymerase ... from any bacterial source, [but] the narrow specifications of the [relevant patents] only disclose[d] the ... gene coding sequence from one bacterial source.... ” Carnegie Mellon Univ. v. Hoffmann-La Roche Inc., 541 F.3d 1115, 1125 (Fed.Cir.2008) (emphasis added). The same is true here. The specification of the '749 Application does not characterize the antigens to which the monoclonal antibodies must bind; it discloses only the molecular weight of the one antigen identified in Example 2. This is clearly insufficient. The specification teaches" }, { "docid": "19674233", "title": "", "text": "enough must be included to convince a person of skill in the art that the inventor possessed the invention.” Lizard-Tech, 424 F.3d at 1345. . M.E. Osband and S. Ross, Problems in the Investigational Study and Clinical Use of Can cer Immunotherapy, 11 Immunology Today 193-95 (1990). . Kenneth Alonso, Human-Human Monoclonal Antibody Directed Against Tumor Surface Antigen in the Treatment of Human Malignancy, 14 American Journal of Clinical Oncology 463-71 (1991). . The reduction-to-practice argument also implicates § 112's enablement requirement. The Board reversed the examiner's rejection of claim 92 for lack of enablement. See Decision, slip op. at 12. Alonso argues that the Board's findings as to sufficiency of description and enablement are at odds with one another. It is true that the written description and enablement requirements \"usually rise and fall together. That is, a recitation of how to make and use the invention across the full breadth of the claim is ordinarily sufficient to demonstrate that the inventor possesses the full scope of the invention, and vice versa.\" LizardTech, 424 F.3d at 1345. However, we have been clear that \"[although the legal criteria of enablement and written description are related and are often met by the same disclosure, they serve discrete legal requirements.” Capon v. Eshhar, 418 F.3d 1349, 1360 (Fed.Cir.2005). \"[A]n invention may be enabled even though it has not been described.” Rochester, 358 F.3d at 921. . It bears mentioning that the examiner encouraged Alonso to amend his claims to cover only the MAb produced by the identified hy-bridoma. . The claims at issue in Eli Lilly were directed to “a recombinant plasmid replicable in [a] procaryotic host containing within its nucleotide sequence a subsequence having the structure of the reverse transcript of an mRNA of a vertebrate, which mRNA encodes insulin.” Eli Lilly, 119 F.3d at 1563 (emphasis in original). . Alonso cites In re Herschler, 591 F.2d 693 (CCPA 1979), where our predecessor court held that the disclosure of a single corticosteroid was sufficient to describe the genus of physiologically active steroids that could be used in practicing the claimed invention. The" }, { "docid": "19674231", "title": "", "text": "species test applied by the Board, we have found adequate written descriptive support for a claimed invention where the disclosure specifies “relevant identifying characteristics,” such as “complete or partial structure, other physical and/or chemical properties, functional characteristics when coupled with a known or disclosed correlation between junction and structure, or some combination of such characteristics.” Enzo, 323 F.3d at 964 (emphasis in original). Alonso argues that there is a well-known correlation between the structure and function of the neurofibro-sarcoma-specific antibodies generated by his disclosed treatment method. He maintains that the members of the genus of antibodies directed to a particular patient’s tumor share the same function — they each bind to a patient’s neurofibrosarcoma, thereby bolstering the patient’s immune mechanism and stimulating an attack on the tumor cells. As for structure, Alonso argues that because monoclonal antibodies are secreted from a hybridoma made from a particular neurofibrosarcoma, the antibodies are necessarily specific. He further argues that there is a “well-known correlation between human antibody structure and antibody function.” Alonso did not raise this structure-function correlation argument in the proceedings before the Board. “Failure to advance legal theories before the [B]oard constitutes a failure to ‘make a complete presentation of the issues,’ and permitting a party to raise those theories for the first time [after the agency has rendered its final decision] would be both inefficient and ‘wasteful of administrative and judicial resources.’ ” Boston Scientific Scimed, Inc. v. Medtronic Vascular, Inc., 497 F.3d 1293, 1298 (Fed.Cir.2007). Accordingly, we will not consider this newly minted argument on appeal. III. CONCLUSION For the aforementioned reasons, the decision of the Board is affirmed. AFFIRMED. . Alonso claimed priority to an application he filed seven years earlier involving similar subject matter. . Alonso infused Brown with 100 mg of the antibody, and cancerous lesions in her lungs were cleared within twenty-four hours. In addition, Brown’s brain tumor became necrotic within seven days, and she experienced a one-month regression of her cancer. . The requirement is rigorous, but not exhaustive: \"[I]t is unnecessary to spell out every detail of the invention in the specification; only" }, { "docid": "8573145", "title": "", "text": "held that the La-vines had failed to file a proper claim under Supp.R.Civ.P. C(6), that the Lavines had no interest in the currency, and that the court lacked jurisdiction to consider the Lavines’ counterclaim. Alonso and Lavine took this appeal from the district court’s decision, and while this appeal was pending, another panel of this circuit affirmed the district court in Alonso I. The panel reexamined the in camera items, and agreed with the trial court that Alonso had not shown his client’s identity was privileged. DISCUSSION I. Alonso Appeal A. Dismissal Without an Order to Disclose The trial judge in Alonso II took judicial notice of Alonso’s earlier civil suit, and offered the following rationale for dismissing Alonso’s claim and answer in the forfeiture suit: In order to contest a forfeiture, a claimant must satisfy the threshold requirement that he have an interest in the seized property. The facts demonstrate that Andres Alonso, Jr. has failed to establish any interest in the property and has no standing in this action. Moreover, his refusal to submit to discovery on the question of whether he has an ownership interest reinforces the conclusion he has no interest in the property and affords an independent basis for striking his Answer and Claim as a sanction under Rule 37, Fed.R.Civ.P. It was not necessary for the plaintiff to bring a motion to compel discovery pursuant to that rule in light of Andres Alonso, Jr.’s refusal to answer in Alonso v. United States, et al. and his declared intention in this case. The court refused to hold an in camera hearing requested by Alonso to justify his assertion of attorney-client privilege, and did not issue an order to compel discovery. See Fed.R.Civ.P. 37(a). We must affirm the trial judge’s decision for any valid reason, even if not relied upon by him. Keniston v. Roberts, 717 F.2d 1295, 1300 and n. 3 (9th Cir.1983). The trial judge was correct in dismissing Alonso’s claim without an order to compel, because of the res judicata effects of Alonso I. The sanction dismissal in Alonso I is a judgment" }, { "docid": "19674218", "title": "", "text": "STEARNS, District Judge. Dr. Kenneth Alonso appeals a decision of the United States Patent and Trademark Office Board of Patent Appeals and Interferences (“Board”) sustaining in part the examiner’s final rejection of claim 92 of U.S. Patent Application No. 08/469,749 (“'749 Application”). In its decision, the Board reversed the examiner’s rejection of claim 92 for lack of enablement and sustained the rejection as invalid for lack of adequate written description. Ex parte Alonso, No.2006-2148 (B.P.A.I. July 25, 2007) (“Decision ”). We affirm. I. BACKGROUND An arsenal of antibodies generated by the immune system defends the human body against illnesses caused by bacteria and cancerous cells and other invasive agents. Antibodies are large, Y-shaped molecules secreted by white blood cells known as “B lymphocytes,” or “B-cells.” Antibodies are capable of binding to the surfaces of foreign cells or other substances known as “antigens.” The specific location on the surface of the antigen where the antibody attaches is termed the “epitope.” The arms of the Y-shaped molecule bind to the epitope with specificity. Antibodies that bind to the same epitope are said to have the same “idiotype.” Monoclonal antibodies (“MAbs”) are derived from a single precursor and have a single idiotype. They are produced using “hybri-doma” (fusion) technology. A human-to-human hybridoma is created by fusing a human tumor cell to an antibody-producing human B-cell, resulting in secretion by the B-cell of monoclonal antibodies with identical affinity and specificity to a given epi-tope on the surface of the tumor cell. On June 6, 1995, Dr. Alonso filed the '749 Application entitled, “Method of Producing Human-Human Hybridomas, The Production of Monoclonal and Polyclonal Antibodies Therefrom, and Therapeutic Use Thereof.” The claimed invention re cites a method for treating neurofibrosar-coma, a rare cancer of the sheath of a peripheral nerve, that uses human monoclonal antibodies targeted at a patient’s tumor. Claim 92 of the '749 Application discloses [a] method of treating neurofibrosarco-ma in a human by administering an effective amount of a monoclonal antibody idiotypic to the neurofibrosarcoma of said human, wherein said monoclonal antibody is secreted from a human-human hybridoma derived from the neurofibro-sarcoma" }, { "docid": "19674226", "title": "", "text": "neurofibrosarcoma, will function in the claimed method. We find that the single antibody described in the Specification is insufficiently representative to provide adequate written descriptive support for the genus of antibodies required to practice the claimed invention. Decision, slip op. at 6-7 (internal quotation marks and citations omitted, footnotes supplemented). The Board’s conclusion is supported by substantial evidence. The articles relied upon by the Board confirm the hypothesis that the antibodies required to perform Alonso’s claimed method vary substantially in their composition. We have previously held in a similar context that “a patentee of a biotechnological invention cannot necessarily claim a genus after only describing a limited number of species because there may be unpredictability in the results obtained from species other than those specifically enumerated.” Noelle v. Lederman, 355 F.3d 1343, 1350 (Fed.Cir.2004). In another similar case, we evaluated claims directed to a method of determining whether a drug could selectively inhibit the activity of COX-2, a cyclooxygenase thought to be responsible for inflammation associated with arthritis. See Rochester, 358 F.3d at 917-18. One of the claims at issue was directed to “a method for selectively inhibiting [COX-2] activity in a human host, comprising administering a non-steroidal compound that selectively inhibits activity of the [COX-2] gene product to a human host in need of such treatment.” Id. at 918. We found that the specification lacked written descriptive support, agreeing with the district court that it is clear from reading the patent that one critical aspect of the method — a compound that selectively inhibits [COX-2] activity — was hypothetical, for it is clear that the inventors had neither possession nor knowledge of such a compound .... [T]he claimed method depends upon finding a compound that selectively inhibits [COX-2] activity. Without such a compound, it is impossible to practice the claimed method of treatment. Id. at 926. We further noted that the specification contained “no disclosure of any method for making even a single ‘non-steroidal compound that selectively inhibits activity of the [COX-2] gene product,’ ” and failed to “steer the skilled practitioner toward compounds that can be used to" }, { "docid": "19674232", "title": "", "text": "argument in the proceedings before the Board. “Failure to advance legal theories before the [B]oard constitutes a failure to ‘make a complete presentation of the issues,’ and permitting a party to raise those theories for the first time [after the agency has rendered its final decision] would be both inefficient and ‘wasteful of administrative and judicial resources.’ ” Boston Scientific Scimed, Inc. v. Medtronic Vascular, Inc., 497 F.3d 1293, 1298 (Fed.Cir.2007). Accordingly, we will not consider this newly minted argument on appeal. III. CONCLUSION For the aforementioned reasons, the decision of the Board is affirmed. AFFIRMED. . Alonso claimed priority to an application he filed seven years earlier involving similar subject matter. . Alonso infused Brown with 100 mg of the antibody, and cancerous lesions in her lungs were cleared within twenty-four hours. In addition, Brown’s brain tumor became necrotic within seven days, and she experienced a one-month regression of her cancer. . The requirement is rigorous, but not exhaustive: \"[I]t is unnecessary to spell out every detail of the invention in the specification; only enough must be included to convince a person of skill in the art that the inventor possessed the invention.” Lizard-Tech, 424 F.3d at 1345. . M.E. Osband and S. Ross, Problems in the Investigational Study and Clinical Use of Can cer Immunotherapy, 11 Immunology Today 193-95 (1990). . Kenneth Alonso, Human-Human Monoclonal Antibody Directed Against Tumor Surface Antigen in the Treatment of Human Malignancy, 14 American Journal of Clinical Oncology 463-71 (1991). . The reduction-to-practice argument also implicates § 112's enablement requirement. The Board reversed the examiner's rejection of claim 92 for lack of enablement. See Decision, slip op. at 12. Alonso argues that the Board's findings as to sufficiency of description and enablement are at odds with one another. It is true that the written description and enablement requirements \"usually rise and fall together. That is, a recitation of how to make and use the invention across the full breadth of the claim is ordinarily sufficient to demonstrate that the inventor possesses the full scope of the invention, and vice versa.\" LizardTech, 424 F.3d" }, { "docid": "19674229", "title": "", "text": "such disclosure the claimed methods cannot be said to have been described. Rochester, 358 F.3d at 927 (internal citation and quotation marks omitted). We additionally found that Rochester had failed to present any evidence that one skilled in the art would have been able to isolate and identify any given compound based on Rochester’s “vague functional description-” Id. at 928. Even more recently, we held that the written disclosure requirement was not met where the claims at issue covered a broad “genus of recombinant plasmids that contain coding sequences for DNA polymerase ... from any bacterial source, [but] the narrow specifications of the [relevant patents] only disclose[d] the ... gene coding sequence from one bacterial source.... ” Carnegie Mellon Univ. v. Hoffmann-La Roche Inc., 541 F.3d 1115, 1125 (Fed.Cir.2008) (emphasis added). The same is true here. The specification of the '749 Application does not characterize the antigens to which the monoclonal antibodies must bind; it discloses only the molecular weight of the one antigen identified in Example 2. This is clearly insufficient. The specification teaches nothing about the structure, epitope characterization, binding affinity, specificity, or pharmacological properties common to the large family of antibodies implicated by the method. While Alonso’s claim is written as a method, the antibodies themselves are described in purely structural language — “a monoclonal antibody idiotypic to the neurofibrosarcoma of said human.” This sparse description of antibody structure in the claim stands in stark contrast to the detailed method of making the antibodies found in the specification. The Eli Lilly decision is also instructive. In Eli Lilly, the University of California laid claim to all vertebrate insulin cDNAs, including the human insulin cDNA, although it had identified only the cDNA for rat insulin. See Eli Lilly, 119 F.3d at 1567. We ruled that the written description requirement was not met because “a description of rat insulin cDNA is not a description of the broad classes of vertebrate or mammalian insulin cDNA.” Id. at 1568. As in Eli Lilly, the specification of the '749 Application contains information about only one compound. Apart from the representative number of" }, { "docid": "22859069", "title": "", "text": "patentee’s quid pro quo as described in Rochester. Ariad responds that Lilly’s arguments fail as a matter of law because Ariad did not actually claim the molecules. According to Ariad, because there is no term in the asserted claims that corresponds to the molecules, it is entitled to claim the methods without describing the molecules. Ariad’s legal assertion, however, is flawed. In Rochester, as discussed above, we held very similar method claims invalid for lack of written description. 358 F.3d at 918-19 (holding the patent invalid because “Rochester did not present any evidence that the ordinarily skilled artisan would be able to identify any compound based on [the specification’s] vague functional description”); see also Fiers, 984 F.2d at 1170-71 (holding a claim to a genus of DNA molecules not supported by written description of a method for obtaining the molecules); cf. Eli Lilly, 119 F.3d at 1567-68 (holding claims to a broad genus of genetic material invalid because the specification disclosed only one particular species). Ariad attempts to categorically distinguish Rochester, Fiers, and Eli Lilly, because in those cases, the claims explicitly included the non-described compositions. For example, in Rochester, the method claims recited a broad type of compound that we held was inadequately described in the specification of the patent: 1. A method for selectively inhibiting PGHS-2 activity in a human host, comprising administering a non-steroidal compound that selectively inhibits activity of the PGHS-2 gene product to a human host in need of such treatment. Id. at 918 (emphasis added). Ariad’s attempt to distinguish these cases is unavailing. Regardless whether the asserted claims recite a compound, Ariad still must describe some way of performing the claimed methods, and Ariad admits that the specification suggests only the use of the three classes of molecules to achieve NF-eB reduction. Thus, to satisfy the written description requirement for the asserted claims, the specification must demonstrate that Ariad possessed the claimed methods by sufficiently disclosing molecules capable of reducing NF-eB activity so as to “satisfy the inventor’s obligation to disclose the technologic knowledge upon which the patent is based, and to demonstrate that" }, { "docid": "19674224", "title": "", "text": "Application as follows. [WJhether the single monoclonal antibody described in the Specification is representative of the genus of monoclonal antibodies required to practice the claimed treatment method. That, in turn, depends on whether or not the antibodies (and the antigens they bind) would have been expected to vary substantially within the genus. The greater the variation in the genus, the less representative any particular antibody would be. Decision, slip op. at 6. The Board properly characterized the relevant genus as the “genus of antibodies specific to neurofibrosarcoma cells.” Id. A genus can be described by disclosing: (1) a representative number of species in that genus; or (2) its “relevant identifying characteristics,” such as “complete or partial structure, other physical and/or chemical properties, functional characteristics when coupled with a known or disclosed correlation between function and structure, or some combination of such characteristics.” Enzo, 323 F.3d at 964. Relying principally on two scientific articles, including one authored by Alonso himself, the Board determined that [t]here is ample evidence of record that the specificities of antibodies falling within the scope of the genus (and the structures of the antigens they bind) would be expected to vary substantially. For example, Osband provides evi dence of a recognition in the art that considerable antigenic “heterogeneity of tumors both between patients and metastatic sites within a single patient” is to be expected. In addition, an article authored by [Alonso] acknowledges that “[t]he efficacy of antibody therapy is thought to be related to tumor burden as well as to idiotypic change in the original tumor.” This acknowledged heterogeneity is reflected in the goal of the claimed method — to raise customized antibodies to possibly unique antigens on a particular patient’s tumor. Finally, as discussed above, for purposes of satisfying the written description requirement, it is not enough merely to disclose a method of making and identifying compounds capable of being used to practice the claimed invention. That is, it is not enough to describe!] the procedure for making a human-human hybridoma from neurofibrosarcoma, and teach how to determine whether a given antibody, specific to a patient’s" }, { "docid": "19674223", "title": "", "text": "finder could have arrived at the [same] decision.” Id. The written description requirement of 35 U.S.C. § 112, ¶ 1, is straightforward: “The specification shall contain a written description of the invention.... ” To satisfy this requirement, the specification must describe the invention in sufficient detail so “that one skilled in the art can clearly conclude that the inventor invented the claimed invention as of the filing date sought.” Lockwood v. Am. Airlines, Inc., 107 F.3d 1565, 1572 (Fed.Cir. 1997); see also LizardTech, Inc. v. Earth Res. Mapping, Inc., 424 F.3d 1336, 1345 (Fed.Cir.2005); Eiselstein v. Frank, 52 F.3d 1035, 1039 (Fed.Cir.1995). The requirement “serves a teaching function, as a ‘quid pro quo ’ in which the public is given ‘meaningful disclosure in exchange for being excluded from practicing the invention for a limited period of time.’ ” Univ. of Rochester v. G.D. Searle & Co., Inc., 358 F.3d 916, 922 (Fed.Cir. 2004) (quoting Enzo Biochem, Inc. v. Gen-Probe Inc., 323 F.3d 956, 970 (Fed.Cir. 2002)). The Board framed the issue raised by the '749 Application as follows. [WJhether the single monoclonal antibody described in the Specification is representative of the genus of monoclonal antibodies required to practice the claimed treatment method. That, in turn, depends on whether or not the antibodies (and the antigens they bind) would have been expected to vary substantially within the genus. The greater the variation in the genus, the less representative any particular antibody would be. Decision, slip op. at 6. The Board properly characterized the relevant genus as the “genus of antibodies specific to neurofibrosarcoma cells.” Id. A genus can be described by disclosing: (1) a representative number of species in that genus; or (2) its “relevant identifying characteristics,” such as “complete or partial structure, other physical and/or chemical properties, functional characteristics when coupled with a known or disclosed correlation between function and structure, or some combination of such characteristics.” Enzo, 323 F.3d at 964. Relying principally on two scientific articles, including one authored by Alonso himself, the Board determined that [t]here is ample evidence of record that the specificities of antibodies falling" }, { "docid": "19674234", "title": "", "text": "at 1345. However, we have been clear that \"[although the legal criteria of enablement and written description are related and are often met by the same disclosure, they serve discrete legal requirements.” Capon v. Eshhar, 418 F.3d 1349, 1360 (Fed.Cir.2005). \"[A]n invention may be enabled even though it has not been described.” Rochester, 358 F.3d at 921. . It bears mentioning that the examiner encouraged Alonso to amend his claims to cover only the MAb produced by the identified hy-bridoma. . The claims at issue in Eli Lilly were directed to “a recombinant plasmid replicable in [a] procaryotic host containing within its nucleotide sequence a subsequence having the structure of the reverse transcript of an mRNA of a vertebrate, which mRNA encodes insulin.” Eli Lilly, 119 F.3d at 1563 (emphasis in original). . Alonso cites In re Herschler, 591 F.2d 693 (CCPA 1979), where our predecessor court held that the disclosure of a single corticosteroid was sufficient to describe the genus of physiologically active steroids that could be used in practicing the claimed invention. The court based its decision on the fact that the class of implicated compounds was \"chemically quite similar.” Id. at 701. Alonso argues that the same is true with respect to the antibodies generated by a patient’s specific neurofibrosarcoma. However, he points to no evidence in the record corroborating his \"similarity” thesis. .Even were we tempted to consider the argument, Alonso would not be entitled to relief. In Noelle, the applicant claimed a human monoclonal antibody (or fragment thereof) secreted from a particular hybridoma that binds to an antigen expressed on activated T-cells. The application did not, however, disclose any structural information about the human antigen. Noelle, 355 F.3d at 1345-46. It described only the mouse antigen. We concluded that the function-structure correlation test was not met. If [the applicant] had sufficiently described the human form of CD40CR antigen, he could have claimed its antibody by simply stating its binding affinity for the \"fully characterized” antigen. [The applicant] did not describe human CD40CR antigen. Therefore, [the applicant] attempted to define an unknown by its binding affinity" }, { "docid": "19674220", "title": "", "text": "cells. In Example 1 of the '749 Specification, Alonso described the preparation of a tumor cell suspension from the sample of a tumor and the subsequent sensitization of human spleen cells. The sensitized spleen cells are fused with an immortalized cell line (e.g., a fetal marrow line, a lymphoblastoid line, or a plasma cell line from myeloma). The resulting cells are screened for hybridomas that secrete antibodies specifically reactive with the sensitizing tumor cells (and non-reactive with a range of other tissues and cell types). Example 2 disclosed the results of an experiment conducted by Alonso in treating Melanie Brown, a patient with neurofibrosarcoma. Adult spleen cells were sensitized with cells from Brown’s tumor. The resulting hybridoma secreted monoclonal antibodies, which reacted with a 221 Kilo-Dalton tumor surface antigen. The spleen line (AS-151), the lymphoblast fusion line (BM-95), and the hybridoma (HB983) were deposited with the American Type Culture Collection in September of 1998. The antibody from the hybridoma line was deposited with the Food and Drug Administration. The examiner rejected claim 92 as lacking adequate written descriptive support for the broad genus of antibodies encompassed by the claim language. Applicant is reminded that the disclosure only describes the preparation of a single Mab produced by the hybridoma cell line HB983. However, the claims are directed toward a much larger genus of molecules (i.e., Mabs that bind to a neurofibrosarcoma), not a specific Mab identified by the deposited hybrido-ma.... The crux of the rejection is whether or not applicant has provided sufficient support for the broadly claimed genus of therapeutic antibodies. As set forth in the rejection, the skilled artisan would reasonably conclude that applicant was clearly not in possession of the claimed genus of compounds. Applicant should direct the claim language toward the only described embodiment (e.g., a Mab produced by hybridoma HB983). The Board affirmed the rejection, agreeing that Alonso had not adequately described the claimed invention because the “single antibody described in the Specification is insufficiently representative to provide adequate written descriptive support for the genus of antibodies required to practice the claimed invention.” Decision, slip op." }, { "docid": "19674227", "title": "", "text": "of the claims at issue was directed to “a method for selectively inhibiting [COX-2] activity in a human host, comprising administering a non-steroidal compound that selectively inhibits activity of the [COX-2] gene product to a human host in need of such treatment.” Id. at 918. We found that the specification lacked written descriptive support, agreeing with the district court that it is clear from reading the patent that one critical aspect of the method — a compound that selectively inhibits [COX-2] activity — was hypothetical, for it is clear that the inventors had neither possession nor knowledge of such a compound .... [T]he claimed method depends upon finding a compound that selectively inhibits [COX-2] activity. Without such a compound, it is impossible to practice the claimed method of treatment. Id. at 926. We further noted that the specification contained “no disclosure of any method for making even a single ‘non-steroidal compound that selectively inhibits activity of the [COX-2] gene product,’ ” and failed to “steer the skilled practitioner toward compounds that can be used to carry out the claimed methods.” Id. at 928, 929. Alonso attempts to distinguish his claimed invention from Rochester by emphasizing that he reduced his method to practice and identified the resulting compound. We are not persuaded by the distinction. “[P]roof of a reduction to practice, absent an adequate description in the specification of what is reduced to practice, does not serve to describe or identify the invention for purposes of [the written description requirement].” Enzo, 323 F.3d at 969. Moreover, while it is true that Rochester disclosed no compounds that worked with the claimed method, the one compound disclosed by Alonso cannot be said to be representative of a densely populated genus. In Rochester, we reasoned that while the specification describes what can be done with any compounds that may potentially be identified through those assays, including formulation into pharmaceuticals, routes of administration, estimation of effective dosage, and suitable dosage forms ... the '850 patent does not disclose just which peptides, polynucleotides, and small organic molecules have the desired characteristics of selectively inhibiting [COX-2], Without" }, { "docid": "19674221", "title": "", "text": "adequate written descriptive support for the broad genus of antibodies encompassed by the claim language. Applicant is reminded that the disclosure only describes the preparation of a single Mab produced by the hybridoma cell line HB983. However, the claims are directed toward a much larger genus of molecules (i.e., Mabs that bind to a neurofibrosarcoma), not a specific Mab identified by the deposited hybrido-ma.... The crux of the rejection is whether or not applicant has provided sufficient support for the broadly claimed genus of therapeutic antibodies. As set forth in the rejection, the skilled artisan would reasonably conclude that applicant was clearly not in possession of the claimed genus of compounds. Applicant should direct the claim language toward the only described embodiment (e.g., a Mab produced by hybridoma HB983). The Board affirmed the rejection, agreeing that Alonso had not adequately described the claimed invention because the “single antibody described in the Specification is insufficiently representative to provide adequate written descriptive support for the genus of antibodies required to practice the claimed invention.” Decision, slip op. at 7. II. DISCUSSION Whether an applicant has complied with the written description requirement is a finding of fact, to be analyzed from the perspective of one of ordinary skill in the art as of the date of the filing of the application. Regents of the Univ. of Cal. v. Eli Lilly & Co., 119 F.3d 1559, 1566 (Fed.Cir.1997); Vas-Cath, Inc. v. Mahur- kar, 935 F.2d 1555, 1563 (Fed.Cir.1991). This Court reviews the Board’s factual determinations under a substantial evidence standard. In re Gartside, 203 F.3d 1305, 1316 (Fed.Cir.2000). “Substantial evidence” is relevant evidence that “a reasonable mind might accept as adequate to support a conclusion.” Id. at 1312 (citation omitted). In making the assessment, we examine “the record as a whole, taking into account evidence that both justifies and detracts from an agency’s decision.” Id. That a fact finder could draw “two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Id. (citation omitted). Rather, the Board’s decision must be affirmed if any “reasonable fact" }, { "docid": "19674235", "title": "", "text": "court based its decision on the fact that the class of implicated compounds was \"chemically quite similar.” Id. at 701. Alonso argues that the same is true with respect to the antibodies generated by a patient’s specific neurofibrosarcoma. However, he points to no evidence in the record corroborating his \"similarity” thesis. .Even were we tempted to consider the argument, Alonso would not be entitled to relief. In Noelle, the applicant claimed a human monoclonal antibody (or fragment thereof) secreted from a particular hybridoma that binds to an antigen expressed on activated T-cells. The application did not, however, disclose any structural information about the human antigen. Noelle, 355 F.3d at 1345-46. It described only the mouse antigen. We concluded that the function-structure correlation test was not met. If [the applicant] had sufficiently described the human form of CD40CR antigen, he could have claimed its antibody by simply stating its binding affinity for the \"fully characterized” antigen. [The applicant] did not describe human CD40CR antigen. Therefore, [the applicant] attempted to define an unknown by its binding affinity to another unknown. Noelle, 355 F.3d at 1349. As Alonso has not pointed to any structure for his claimed antibodies, there is no structure to which he may correlate the function of his claimed antibodies." }, { "docid": "19674219", "title": "", "text": "the same epitope are said to have the same “idiotype.” Monoclonal antibodies (“MAbs”) are derived from a single precursor and have a single idiotype. They are produced using “hybri-doma” (fusion) technology. A human-to-human hybridoma is created by fusing a human tumor cell to an antibody-producing human B-cell, resulting in secretion by the B-cell of monoclonal antibodies with identical affinity and specificity to a given epi-tope on the surface of the tumor cell. On June 6, 1995, Dr. Alonso filed the '749 Application entitled, “Method of Producing Human-Human Hybridomas, The Production of Monoclonal and Polyclonal Antibodies Therefrom, and Therapeutic Use Thereof.” The claimed invention re cites a method for treating neurofibrosar-coma, a rare cancer of the sheath of a peripheral nerve, that uses human monoclonal antibodies targeted at a patient’s tumor. Claim 92 of the '749 Application discloses [a] method of treating neurofibrosarco-ma in a human by administering an effective amount of a monoclonal antibody idiotypic to the neurofibrosarcoma of said human, wherein said monoclonal antibody is secreted from a human-human hybridoma derived from the neurofibro-sarcoma cells. In Example 1 of the '749 Specification, Alonso described the preparation of a tumor cell suspension from the sample of a tumor and the subsequent sensitization of human spleen cells. The sensitized spleen cells are fused with an immortalized cell line (e.g., a fetal marrow line, a lymphoblastoid line, or a plasma cell line from myeloma). The resulting cells are screened for hybridomas that secrete antibodies specifically reactive with the sensitizing tumor cells (and non-reactive with a range of other tissues and cell types). Example 2 disclosed the results of an experiment conducted by Alonso in treating Melanie Brown, a patient with neurofibrosarcoma. Adult spleen cells were sensitized with cells from Brown’s tumor. The resulting hybridoma secreted monoclonal antibodies, which reacted with a 221 Kilo-Dalton tumor surface antigen. The spleen line (AS-151), the lymphoblast fusion line (BM-95), and the hybridoma (HB983) were deposited with the American Type Culture Collection in September of 1998. The antibody from the hybridoma line was deposited with the Food and Drug Administration. The examiner rejected claim 92 as lacking" }, { "docid": "19674225", "title": "", "text": "within the scope of the genus (and the structures of the antigens they bind) would be expected to vary substantially. For example, Osband provides evi dence of a recognition in the art that considerable antigenic “heterogeneity of tumors both between patients and metastatic sites within a single patient” is to be expected. In addition, an article authored by [Alonso] acknowledges that “[t]he efficacy of antibody therapy is thought to be related to tumor burden as well as to idiotypic change in the original tumor.” This acknowledged heterogeneity is reflected in the goal of the claimed method — to raise customized antibodies to possibly unique antigens on a particular patient’s tumor. Finally, as discussed above, for purposes of satisfying the written description requirement, it is not enough merely to disclose a method of making and identifying compounds capable of being used to practice the claimed invention. That is, it is not enough to describe!] the procedure for making a human-human hybridoma from neurofibrosarcoma, and teach how to determine whether a given antibody, specific to a patient’s neurofibrosarcoma, will function in the claimed method. We find that the single antibody described in the Specification is insufficiently representative to provide adequate written descriptive support for the genus of antibodies required to practice the claimed invention. Decision, slip op. at 6-7 (internal quotation marks and citations omitted, footnotes supplemented). The Board’s conclusion is supported by substantial evidence. The articles relied upon by the Board confirm the hypothesis that the antibodies required to perform Alonso’s claimed method vary substantially in their composition. We have previously held in a similar context that “a patentee of a biotechnological invention cannot necessarily claim a genus after only describing a limited number of species because there may be unpredictability in the results obtained from species other than those specifically enumerated.” Noelle v. Lederman, 355 F.3d 1343, 1350 (Fed.Cir.2004). In another similar case, we evaluated claims directed to a method of determining whether a drug could selectively inhibit the activity of COX-2, a cyclooxygenase thought to be responsible for inflammation associated with arthritis. See Rochester, 358 F.3d at 917-18. One" }, { "docid": "19674230", "title": "", "text": "nothing about the structure, epitope characterization, binding affinity, specificity, or pharmacological properties common to the large family of antibodies implicated by the method. While Alonso’s claim is written as a method, the antibodies themselves are described in purely structural language — “a monoclonal antibody idiotypic to the neurofibrosarcoma of said human.” This sparse description of antibody structure in the claim stands in stark contrast to the detailed method of making the antibodies found in the specification. The Eli Lilly decision is also instructive. In Eli Lilly, the University of California laid claim to all vertebrate insulin cDNAs, including the human insulin cDNA, although it had identified only the cDNA for rat insulin. See Eli Lilly, 119 F.3d at 1567. We ruled that the written description requirement was not met because “a description of rat insulin cDNA is not a description of the broad classes of vertebrate or mammalian insulin cDNA.” Id. at 1568. As in Eli Lilly, the specification of the '749 Application contains information about only one compound. Apart from the representative number of species test applied by the Board, we have found adequate written descriptive support for a claimed invention where the disclosure specifies “relevant identifying characteristics,” such as “complete or partial structure, other physical and/or chemical properties, functional characteristics when coupled with a known or disclosed correlation between junction and structure, or some combination of such characteristics.” Enzo, 323 F.3d at 964 (emphasis in original). Alonso argues that there is a well-known correlation between the structure and function of the neurofibro-sarcoma-specific antibodies generated by his disclosed treatment method. He maintains that the members of the genus of antibodies directed to a particular patient’s tumor share the same function — they each bind to a patient’s neurofibrosarcoma, thereby bolstering the patient’s immune mechanism and stimulating an attack on the tumor cells. As for structure, Alonso argues that because monoclonal antibodies are secreted from a hybridoma made from a particular neurofibrosarcoma, the antibodies are necessarily specific. He further argues that there is a “well-known correlation between human antibody structure and antibody function.” Alonso did not raise this structure-function correlation" } ]

[ { "docid": "4171076", "title": "", "text": "career offender Guidelines and that his sentence was substantively unreasonable. Coleman reasons that without the presumption, the district court abused its discretion in not varying downward based on his minor convictions and the lack of empirical evidence supporting an enhanced sentence for career offenders. We review the substantive reasonableness of a sentence under a “deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “Where, as here, the sentence imposed is within the advisory guideline range, we accord it a presumption of reasonableness.” United States v. Bauer, 626 F.3d 1004, 1010 (8th Cir.2010). Coleman complains that the applicable Sentencing Guideline, U.S.S.G. § 4B1.1, should not be accorded a presumption of reasonableness because it is the product of congressional direction in the Sentencing Reform Act, 28 U.S.C. § 994(h), not the Sentencing Commission’s application of empirical data and national experience. We apply a presumption of reasonableness to a within-Guidelines-range sentence because it “recognizes the real-world circumstance that when the judge’s discretionary decision accords with the Commission’s view of the appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is reasonable.” Rita v. United States, 551 U.S. 338, 350-51, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). We have extended this logic to Guideline sections that are “the product of congressional direction rather than the empirical approach described by Rita” because “where a sentencing judge agrees with Congress, then the resulting sentence is also probably within the range of reasonableness.” United States v. Kiderlen, 569 F.3d 358, 369 (8th Cir.2009) (discussing U.S.S.G. § 2G2.2). Although the presumption of reasonableness applies, even without it we easily conclude that the district court se lected a reasonable sentence. In selecting Coleman’s sentence, the district court explained that it had considered all of the factors in section 3553(a), cited Coleman’s complete lack of gainful employment, and took note of Coleman’s cooperation upon arrest. The district court disagreed with Coleman’s description of his criminal history as minor and instead characterized it as extensive and justifying the career offender enhancement. The district court" } ]

[ { "docid": "12686859", "title": "", "text": "within its discretion unless the sentence was “ ‘arbitrary, capricious, whimsical, or manifestly unreasonable.’ ” Id. (quoting United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir.2009)). Mr. Franklin acknowledges that the sentence fell within the guideline range, which called for life imprisonment. For sentences falling within the guideline range, like this one, we apply a rebuttable presumption of reasonableness. United States v. Castillo-Arellano, 777 F.3d 1100, 1104 (10th Cir.2015). Mr. Franklin argues that we should carve out an exception for the applicable guideline (2G2.2) because it lacks an empirical basis and is overly harsh. We disagree, with 'both arguments. We have already rejected an empirically based challenge to another guideline (2G2.1) in United States v. Grigsby, 749 F.3d 908, 910-11 (10th Cir.2014). There we relied on a Fifth Circuit case analyzing 2G2.2. Id. at 911 (citing United States v. Miller, 665 F.3d 114, 121 (5th Cir.2011)). Ultimately, both cases reasoned that a guideline range deserves consideration whether it is “ ‘[ejmpirically based or not.’ ” Id. (quoting United States v. Miller, 665 F.3d 114, 121 (5th Cir.2011)). Under Grigsby, we apply the presumption of reasonableness to sentences based on 2G2.2, regardless of its alleged lack of empirical support. In Mr. Franklin’s view, the harshness of the guideline calls for a presumption of unreasonableness. This view is unsupported. The Supreme Court has stated that we cannot apply a “presumption of unreasonableness” even to sentences outside the guideline range. E.g., Peugh v. United States, — U.S. -, 133 S.Ct. 2072, 2080, 186 L.Ed.2d 84 (2013). When the sentence is within the guideline range, there would be even less justification for a presumption of unreasonableness. Mr. Franklin argues that even if the presumption of reasonableness applies, the total prison term of 100 years remains too harsh because his actions constituted “run-of-the-mill” crimes that are characteristic of any distributor of child pornography. The district court viewed the crime differently, explaining that • Mr. Franklin had downloaded hundreds of thousands of images containing child pornography, • the images showed child molestation, intercourse with children, and inappropriate sexual activity with prepubescent minors, • Mr. Franklin’s" }, { "docid": "23546000", "title": "", "text": "unlawful or illegal sentence is one imposed without, or in excess of, statutory authority.” Id. at 705. And in Hawkins v. United States, the Seventh Circuit refused to entertain a prisoner’s argument on collateral review that he was erroneously sentenced as a career offender. The Seventh Circuit reasoned that, even if a district judge imposes a sentence in excess of the correct advisory guideline range, the error is not “corrigible in a postconviction proceeding” because “the sentence is below the statutory maximum.” 706 F.3d at 823. Spencer relies heavily on the now-vacated opinion of the Fourth Circuit in Whiteside v. United States, 748 F.3d 541 (4th Cir.2014), vacated pending reh’g en banc, 578 Fed.Appx. 218 (4th Cir.2014). That divided panel, over the persuasive dissent of Judge Wilkinson, held that erroneously classifying a prisoner as a career offender was a “fundamental defect” that a federal court could remedy on collateral review. Id. at 555. But as Judge Wilkinson’s dissent explained, no fundamental defect occurs when a court erroneously sentences a prisoner as a career offender under advisory guidelines. Id. at 560 (Wilkinson, J., dissenting). Even if a court vacated the sentence on collateral review, the district court would be free to impose the same sentence on remand. Id. Spencer asks us to distinguish a career-offender error from other guideline errors because the career-offender enhancement is the result of a congressional mandate. See 28 U.S.C. § 994(h). Congress directed the United States Sentencing Commission to “assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized” for defendants convicted of crimes of violence or certain drug crimes and who have two or more prior felonies that qualify as crimes of violence or certain drug crimes. Id. The career-offender enhancement, U.S.S.G. § 4B1.1, satisfies that congressional directive. Spencer’s argument fails to appreciate the advisory nature of every provision of the guidelines. Although Congress directed the Sentencing Commission to create a guideline for career offenders, a district judge cannot treat that guideline as mandatory. See Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456," }, { "docid": "22057392", "title": "", "text": "that it is substantively unreasonable. As . a threshold matter, Rodriguez argues that the presumption of reasonableness should not apply to his within-guidelines sentence on appellate review because the guideline upon which it is based, U.S.S.G. § 2L1.2, is penologieally flawed and not the result of empirical evidence or study. These arguments are foreclosed by this court’s decisions in United States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir.2009) and United States v. Duarte, 569 F.3d 528, 529-81 (5th Cir.2009). Rodríguez further asserts that, even if the presumption of reasonableness applies, it is rebutted by the facts and circumstances of this case. Specifically, he argues that (1) the 12-level increase in his offense level was excessive because he committed the felony drug offense in 1990 and (2) the district court failed to accord sufficient weight to his cultural assimilation. This court reviews sentences for reasonableness in light of the sentencing factors in § 3553(a), engaging in a bifurcated analysis of the sentence imposed by the district court. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir.2009); United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.2005). Rodriguez does not contend that the district court’s decision is procedurally unsound. When there are no procedural errors, this court will then “consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard” and will “take into account the totality of the circumstances.” Gall, 552 U.S. at 51, 128 S.Ct. 586. A sentence within the range suggested by the guidelines is entitled to a rebuttable presumption of reasonableness. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006); see also Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (holding that an appellate court may apply a presumption of reasonableness to a sentence within a properly-calculated guidelines range). Rodriguez cites United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055-58 (9th Cir.2009), for the contention that the rote application of a prior conviction to effect a guideline range enhancement may result in a" }, { "docid": "4873479", "title": "", "text": "of reasonableness. See Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Baker, 655 F.3d 677, 683 (7th Cir.2011). But Smith first contends that this presumption is rebutted because the career-offender guidelines were developed, not by using the Sentencing Commission’s traditional empirical approach (including the study of thousands of presentence reports), but by congressional mandate in 28 U.S.C. § 994(h). Smith points out that the court in Rita allowed a presumption of reasonableness because, when the Commission uses its empirical approach, “it is fair to assume that the Guidelines, insofar as practicable, reflect a rough approximation of a sentence that might achieve 18 U.S.C. § 3553(a)’s objectives.” 551 U.S. at 350, 127 S.Ct. 2456. Thus, Smith asserts, “the absence of such an empirical basis for a particular guideline results in the absence of the inference that it produces” a reasonable sentence. We have not yet addressed Smith’s argument that, because the career-offender guideline is not empirically based, Rita’s deference to the Commission’s judgment does not apply and, therefore, no presumption of reasonableness arises. But in the context of the child-pornography guidelines, we have rejected the similar argument that the presumption vanishes if the guideline is not based on empirical research. See, e.g., United States v. Schuster, 706 F.3d 800, 808-09 (7th Cir.2013); United States v. Reibel, 688 F.3d 868, 870-71 (7th Cir.2012). Other circuits have, however, considered Smith’s specific argument about the rationale of Rita. They have concluded that the presumption applies even to sentences based on guidelines developed through congressional mandates because a sentence that agrees with the judgment of Congress is likely reasonable as well. See United States v. Coleman, 635 F.3d 380, 382 (8th Cir.2011); United States v. Kiderlen, 569 F.3d 358, 369 (8th Cir.2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.2009); United States v. Kirchhof, 505 F.3d 409, 414 (6th Cir.2007). The Fourth and Tenth Circuits have reached the same conclusion, albeit only in nonprecedential dispositions. See, e.g., United States v. Carrera-Diaz, 510 Fed.Appx. 768, 770-71 (10th Cir.2013); United States v. Mendoza-Mendoza, 413 Fed.Appx." }, { "docid": "8187408", "title": "", "text": "Id. at 853. The district court’s analysis of the § 2G2.2 enhancements generally, as well as their application to Defendant’s crime, was sound. We recently held that a district court could not refuse to apply § 2G2.2 if the district court’s basis for its disagreement was the fact that Congress adopted the § 2G2.2 enhancements directly instead of in accordance with its usual practice of allowing the Sentencing Commission to formulate Guidelines. United States v. Bistline, 665 F.3d 758, 761 (6th Cir.2012). And in Bistline, we reaffirmed the authority of district courts to refuse to apply the § 2G2.2 enhancements on valid policy grounds so long as the basis for the rejection is adequately explained. Id.; see United States v. Herrera-Zuniga, 571 F.3d 568, 585 (6th Cir.2009). Defendant advances a slightly different proposition than the one rejected in Bistline, arguing that § 2G2.2’s purported lack of empirical grounding makes it unfit for deference. By now we have heard this argument on several occasions and have rejected it each time. See, e.g., United States v. Overmyer, 663 F.3d 862 (6th Cir.2011); United States v. Dattilio, 442 Fed.Appx. 187, 193-94 (6th Cir.2011); United States v. Campana, 429 Fed.Appx. 586, 592 (6th Cir.2011); United States v. Pizzino, 419 Fed.Appx. 579, 585 n. 7 (6th Cir.2011); United States v. Kirchhof 505 F.3d 409, 414 (6th Cir.2007). We do the same here, reaffirming the principle that a district court is entitled to rely on the § 2G2.2 enhancements unless it has a reasonable policy basis for not doing so. See Bistline, 665 F.3d at 761; United States v. Brooks, 628 F.3d 791, 799 (6th Cir.2011). Therefore, the district court’s reliance on § 2G2.2 in fashioning Defendant’s sentence was not unreasonable. II. Substantive Reasonableness Defendant also offers several reasons he believes that the district court’s sentence was substantively unreasonable. A sentence is substantively unreasonable if the sentencing court arbitrarily selected the sentence, based the sentence on impermissible factors, failed to consider pertinent § 3553(a) factors, or gave an unreasonable amount of weight to any pertinent factor. United States v. Collington, 461 F.3d 805, 808 (6th Cir.2006)." }, { "docid": "22202228", "title": "", "text": "Cir.2010) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)), cert. denied, - U.S. -, 131 S.Ct. 997, 178 L.Ed.2d 832 (2011). . United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.2008) (citing Gall, 552 U.S. at 51, 128 S.Ct. 586). . 18 U.S.C. § 3553(a). Those purposes are: (2) the need for the sentence imposed'— (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner .... Id. § 3553(a)(2). . Id. § 3553(a)(1). . See United States v. Duarte, 569 F.3d 528, 529 (5th Cir.2009) (noting that \"numerous panels of this court have faced and rejected arguments” that the presumption of reasonableness should be removed as to \"non-empirically-grounded provisions of the Guidelines”); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.2009) (holding that, even when a Guideline is not empirically based, “we will presume a sentence within the current version of the Guidelines to be reasonable, and the defendant must rebut that presumption to demonstrate substantive unreasonableness”). . United States v. Cooks, 589 F.3d 173, 186 (5th Cir.2009) (citing United States v. Nikonova, 480 F.3d 371, 376 (5th Cir.2007)). . 616 F.3d 174, 183 (2d Cir.2010) (\"Dorvee’s sentence was a within-Guidelines sentence. However, we do not presume that such sentences are reasonable when we review them substantively.”) (citing United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.2006)). . Id. at 176. . Id. at 183. . Id. at 187 (“The irrationality in § 2G2.2 is easily illustrated by two examples.”). . Id. at 184-86. . Id. . Id. at 186. . Id. at 187. . Id. . Id. . Id. at 188. . See United States v. Duarte, 569 F.3d 528, 529 (5th Cir.2009); United States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir.2009). ." }, { "docid": "11160087", "title": "", "text": "Commission Report stand for the proposition that any application of § 2G2.2 will yield an unreasonable sentence. See United States v. Moulding, 627 F.3d 285, 287 (7th Cir.2010). In its December 2012 report, the Sentencing Commission observed that “[sentencing in federal production cases has been less controversial than in non-production cases,” perhaps because of the relatively fewer number of reported cases addressing § 2G2.1. Nonetheless, Defendant may be correct when he says the child pornography production guideline, § 2G2.1, suffers from the same apparent defect as the distribution guideline, § 2G2.2. See Commission Report at 247. But this does not mean a within-guideline-range sentence based on a guideline lacking an empirical basis is necessarily unreasonable, and none of our sister circuits have ever so held. We agree with the Fifth Circuit that Congress and the Commission are responsible for altering the Guidelines: Empirically based or not, the Guidelines remain the Guidelines.... The Supreme Court made clear in Kimbrough v. United States that “a district judge must include the Guidelines range in the array of factors warranting consideration,” even if the Commission did not use an empirical approach in developing sentences for the particular offense. Accordingly, we will not reject a Guidelines provision as “unreasonable” or “irrational” simply because it is not based on empirical data.... United States v. Miller, 665 F.3d 114, 121 (5th Cir.2011) (internal footnotes omitted); accord United States v. Nghiem, 432 Fed.Appx. 753, 757 (10th Cir.2011) (unpublished) (“To be sure, district courts that disagree with § 2G2.2 may vary from the Guidelines. But if they do not, we will not second-guess their decisions under a more lenient standard simply because the guideline is not empirically-based.” (internal ellipses and quotations omitted)). Accordingly, we reject Defendant’s categorical challenge to U.S.S.G. § 2G2.1. AFFIRMED. . Section 3553(a) sets forth various factors a district court must consider in imposing sentence on a defendant. These include, among other factors, the nature of the offense and characteristics of the defendant, as well as the need for the sentence to reflect the seriousness of the crime, provide adequate deterrence, protect the public, and provide" }, { "docid": "22710277", "title": "", "text": "v. Gonzales-Camacho, 301 Fed.Appx. 314 (5th Cir.2008); United States v. Laines-Funes, 299 Fed.Appx. 471 (5th Cir.2008); United States v. Ponce-Lopez, 299 Fed.Appx. 410 (5th Cir.2008); United States v. Alcaraz-Salazar, 300 Fed.Appx. 275 (5th Cir.2008); United States v. Aguirre-Lopez, 299 Fed.Appx. 395 (5th Cir.2008); United States v. Ocampo-Zuniga, 298 Fed.Appx. 400 (5th Cir.2008); United States v. Infante-Ramirez, 298 Fed.Appx. 394 (5th Cir.2008); United States v. Vela-Martinez, 300 Fed.Appx. 304 (5th Cir.2008). . 564 F.3d 357, 365-67 (5th Cir.2009). . 531 F.3d 337 (5th Cir.2008). . This is never specified in the relevant sec tion of opinion, presumably because the panel did not consider it of any import, but it appears to have been the case. Either way, that decision’s reasoning is compelling, so we need not labor the point. . Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). See especially id. at 2464-65 (“The result [of the Sentencing Commission’s ongoing work] is a set of Guidelines that seek to embody the § 3553(a) considerations, both in principle and in practice. Given the difficulties of doing so, the abstract and potentially conflicting nature of § 3553(a)’s general sentencing objectives, and the differences of philosophical view among those who work within the criminal justice community as to how best to apply general sentencing objectives, it is fair to assume that the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives.’’). See also Kimbrough, 128 S.Ct. at 574-75. . United States v. Rosales-Robles, 294 Fed. Appx. 154, 155 (5th Cir.2008); see Kimbrough, 128 S.Ct. at 575. . “Kimbrough did not question the appellate presumption ... and its holding does not require discarding the presumption for sentences based on non-empirically-grounded Guidelines .... Even if the Guidelines are not empirically-grounded, the rationale of Rita undergirding the presumption still holds true ....” Mondragon-Santiago, 564 F.3d at 366. See also Rita, 127 S.Ct. at 2465, 2467 (contrasting the district court’s role in sentencing and the appellate presumption of reasonableness); Kimbrough, 128 S.Ct. at 574 (“Section 3553(a)(6) directs district courts to consider the need to avoid" }, { "docid": "4873478", "title": "", "text": "sentenced Smith to 151 months’ imprisonment. The court explained that, contrary to Smith’s arguments that he was not a dangerous criminal, at age 22 he already had been convicted of drug offenses and a domestic battery in which he choked a woman and kicked her in the head. These were serious offenses that, even though he did not use a weapon, still threatened family and community. His criminal history also demonstrated a pattern of twice attempting to escape and elude police, both by car, which put the public at “extraordinary risk” and, in this case, on foot, showing disrespect for the law. In addition, the court observed that, although Smith experienced mental health issues that may have diminished his capacity, he refuses to take prescribed medication and generally disdains authority. Therefore, the court concluded, a within-guidelines sentence was necessary to, among other things, protect the public and promote respect for the law. Analysis On appeal Smith challenges the substantive reasonableness of his sentence. Because Smith’s sentence is within the guidelines range, we apply a presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Baker, 655 F.3d 677, 683 (7th Cir.2011). But Smith first contends that this presumption is rebutted because the career-offender guidelines were developed, not by using the Sentencing Commission’s traditional empirical approach (including the study of thousands of presentence reports), but by congressional mandate in 28 U.S.C. § 994(h). Smith points out that the court in Rita allowed a presumption of reasonableness because, when the Commission uses its empirical approach, “it is fair to assume that the Guidelines, insofar as practicable, reflect a rough approximation of a sentence that might achieve 18 U.S.C. § 3553(a)’s objectives.” 551 U.S. at 350, 127 S.Ct. 2456. Thus, Smith asserts, “the absence of such an empirical basis for a particular guideline results in the absence of the inference that it produces” a reasonable sentence. We have not yet addressed Smith’s argument that, because the career-offender guideline is not empirically based, Rita’s deference to the Commission’s judgment does not apply" }, { "docid": "8187407", "title": "", "text": "unreliable. In response to Defendant’s contention that the child pornography Guidelines were not the product of empirical study, the court indicated that the Sentencing Commission moderated congressional influence on § 2G2.2 by implementing a base offense level of child pornography offenses near the statutory minimum sentence and undertaking a “proportionality review” of the provision. Cunningham, 680 F.Supp.2d at 850-51. The court also rejected Defendant’s argument that the frequency with which the enhancements applied in other cases rendered them invalid. The court expressed confusion as to why “[t]he fact that certain enhancements apply on a frequent basis ... servefs] as a basis for negating the Guidelines.” Id. at 852. Finally, the court disagreed with Defendant’s definition of “average,” casting doubt on his assertion that an offender who “own[ed] more than 600 images of prepubescent child pornography containing sadistic and masochistic images” was the “average” offender. Id. Ultimately, the court granted deference to Defendant’s Guidelines calculation but also explained “that even if [the court] were to disregard the Guidelines in their entirety, its sentence would not change.” Id. at 853. The district court’s analysis of the § 2G2.2 enhancements generally, as well as their application to Defendant’s crime, was sound. We recently held that a district court could not refuse to apply § 2G2.2 if the district court’s basis for its disagreement was the fact that Congress adopted the § 2G2.2 enhancements directly instead of in accordance with its usual practice of allowing the Sentencing Commission to formulate Guidelines. United States v. Bistline, 665 F.3d 758, 761 (6th Cir.2012). And in Bistline, we reaffirmed the authority of district courts to refuse to apply the § 2G2.2 enhancements on valid policy grounds so long as the basis for the rejection is adequately explained. Id.; see United States v. Herrera-Zuniga, 571 F.3d 568, 585 (6th Cir.2009). Defendant advances a slightly different proposition than the one rejected in Bistline, arguing that § 2G2.2’s purported lack of empirical grounding makes it unfit for deference. By now we have heard this argument on several occasions and have rejected it each time. See, e.g., United States v. Overmyer," }, { "docid": "15598926", "title": "", "text": "used only “part” of Hall’s state offense as relevant conduct to enhance the base offense level under the Guidelines, the district court was free to use its discretion in setting Hall’s federal sentence to run consecutively to his undischarged state sentences. Because the district court sufficiently explained its rationale for doing so and considered the § 3553(a) sentencing factors, it did not commit plain error in its application of § 5G1.3(c) when sentencing Hall. C. The District Court’s Enhancement of Hall’s Base Offense Level Hall also argues that his sentence is substantively unreasonable because it was enhanced using a Guideline offense level that was not based upon empirical data. United States Sentencing Commission, “Fifteen Years of Guidelines Sentencing,” 47 (2004). Hall cites United States v. Grant, No. 8:07CR242, 2008 WL 2485610, at *4 (D.Neb.2008), for the proposition that, as a result, the offense level for murder in § 2A1.1 is a less reliable appraisal of a fair sentence. A sentencing court is free to reject a Guidelines range based on policy considerations. United States v. Janosko, 355 Fed.Appx. 892, 895 (6th Cir.2009) (recognizing this principle in the child-pornography context). The Seventh Circuit has thus noted that “rejecting a guideline [because it] lack[s] a basis in data, experience, or expertise would [] be proper.” United States v. Aguilar-Huerta, 576 F.3d 365, 367 (7th Cir.2009). But a district court is not “required to consider ... an argument that a guideline is unworthy of application in any case because it was promulgated without adequate deliberation.” Id. at 367-68 (emphasis in original). Under the presumption of reasonableness that we give to a district court’s within-Guidelines sentence, “we will not second-guess [a district court’s] decision! ] ... simply because the particular Guideline is not empirically-based.” Janosko, 355 Fed. Appx. at 895 (quoting United States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir.2009)). The district court here explicitly considered the § 3553(a) factors when sentencing Hall and explained that Hall’s conduct in committing murder — his lack of emotion, connection to drug trafficking and willingness to kill for hire — justified such a severe punishment. Even" }, { "docid": "4873480", "title": "", "text": "and, therefore, no presumption of reasonableness arises. But in the context of the child-pornography guidelines, we have rejected the similar argument that the presumption vanishes if the guideline is not based on empirical research. See, e.g., United States v. Schuster, 706 F.3d 800, 808-09 (7th Cir.2013); United States v. Reibel, 688 F.3d 868, 870-71 (7th Cir.2012). Other circuits have, however, considered Smith’s specific argument about the rationale of Rita. They have concluded that the presumption applies even to sentences based on guidelines developed through congressional mandates because a sentence that agrees with the judgment of Congress is likely reasonable as well. See United States v. Coleman, 635 F.3d 380, 382 (8th Cir.2011); United States v. Kiderlen, 569 F.3d 358, 369 (8th Cir.2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.2009); United States v. Kirchhof, 505 F.3d 409, 414 (6th Cir.2007). The Fourth and Tenth Circuits have reached the same conclusion, albeit only in nonprecedential dispositions. See, e.g., United States v. Carrera-Diaz, 510 Fed.Appx. 768, 770-71 (10th Cir.2013); United States v. Mendoza-Mendoza, 413 Fed.Appx. 600, 602 (4th Cir.2011). We follow the course laid out by our sister circuits. Smith does not explain why this court should accord less deference to a guideline based on Congress’s judgment concerning the statutory máxi-mums and the definition of violent felonies — to which the career-offender guidelines and their definition of crimes of violence are tied — rather than the Commission’s own studies. Absent a strong reason to reject congressional judgments about sentencing, courts traditionally respect them as valid. See Schuster, 706 F.3d at 808 (noting when rejecting a reasonableness challenge to a child-pornography-guideline sentence that “Congress itself may have studied the problem of child pornography”); Kider-len, 569 F.3d at 369 (“in the real-world circumstance where a sentencing judge agrees with Congress, then the resulting sentence is also probably within the range of reasonableness”); Kirchhof, 505 F.3d at 414 (reasoning that, though a guideline may not “reflect the expertise of the Sentencing Commission,” an argument challenging the presumption on that basis “fails to recognize that it is the prerogative of Congress to fix the" }, { "docid": "22665370", "title": "", "text": "its holding does not require discarding the presumption for sentences based on non-empirically-grounded Guidelines. E.g., Campos-Maldonado, 531 F.3d at 338-39 (applying the appellate presumption even though the defendant made the same argument from Kimbrough regarding U.S.S.G. § 2L1.2’s lack of empirical moorings). Even if the Guidelines are not empirically-grounded, the rationale of Rita undergirding the presumption still holds true: by the time an appeals court reviews a Guidelines sentence, both the Sentencing Commission and the district court have fulfilled their congressional mandate to consider the § 3553(a) factors and have arrived at the same conclusion. See Rita, 127 S.Ct. at 2463. The district court is better situated to weigh the Guidelines’ policy considerations as applied to a particular defendant, and our deference to the exercise of that discretion, backed up by the Commission’s deliberations, is proper. In appropriate cases, district courts certainly may disagree with the Guidelines for policy reasons and may adjust a sentence accordingly. But if they do not, we will not second-guess their decisions under a more lenient standard simply because the particular Guideline is not empirically-based. As the Supreme Court noted in Rita, the work of the Sentencing Commission is ongoing, and the sentencing process will continue to evolve as sentencing courts and the Commission refine the factors that determine a sentence’s reasonableness. See id. at 2464. The Commission can then update the Guidelines to incorporate these refinements, see 28 U.S.C. § 994(p); Rita, 127 S.Ct. at 2464, as it has done so respecting the Guideline at issue in Kimbrough, see U.S.S.G. app. C, amend. 706, at 226-31 (Supp.2008) (regarding two-level reduction, effective Nov. 1, 2007); app. C, amend. 713, at 253 (regarding retroactivity, effective Mar. 3, 2008). Until the Commission so acts, however, we will presume a sentence within the current version of the Guidelines to be reasonable, and the defendant must rebut that presumption to demonstrate substantive unreasonableness. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006). In sum, Mondragon-Santiago has not shown substantive unreasonableness, and we will not disturb the district court’s sentence. C. Reformation of Judgment Finally, Mondragon-Santiago argues that" }, { "docid": "15031181", "title": "", "text": "court followed the Supreme Court’s instruction to calculate the advisory guideline range, and to use that range as a starting point, but to determine the ultimate sentence based on consideration of all of the factors set forth in 18 U.S.C. § 3553(a). See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007). The district court did select a sentence within the advisory range, but not because the court impermissibly presumed the guideline range to be reasonable. While the district court may have been free to vary from the guideline based on policy concerns, the Supreme Court’s recent decisions “do not hold that a district court must disagree with any sentencing guideline, whether it reflects a policy judg ment of Congress or the Commission’s ‘characteristic’ empirical approach.” United States v. Barron, 557 F.3d 866, 871 (8th Cir.2009). As for the appellate presumption of reasonableness, it is true that Rita permitted the presumption in the “real-world circumstance ... when the judge’s discretionary-decision accords with the Commission’s view of the appropriate application of § 3553(a) in the mine run of cases.” 551 U.S. at 350-51, 127 S.Ct. 2456 (emphasis added). But we have observed, in addressing an argument that the presumption should not apply to a sentence within a range determined by USSG § 2G2.2, that “in the real-world circumstance where a sentencing judge agrees with Congress, then the resulting sentence is also probably within the range of reasonableness.” United States v. Kiderlen, 569 F.3d 358, 369 (8th Cir.2009) (emphasis added). Particularly given the deference due a district court’s sentencing decision under § 3553(a), see United States v. Feemster, 572 F.3d 455, 464 (8th Cir.2009) (en banc), we see no basis to hold that the district court’s selection of a sentence at the bottom of the advisory range was substantively unreasonable. The judgment of the district court is affirmed. . The Honorable John A. Jarvey, United States District Judge for the Southern District of Iowa." }, { "docid": "4873481", "title": "", "text": "600, 602 (4th Cir.2011). We follow the course laid out by our sister circuits. Smith does not explain why this court should accord less deference to a guideline based on Congress’s judgment concerning the statutory máxi-mums and the definition of violent felonies — to which the career-offender guidelines and their definition of crimes of violence are tied — rather than the Commission’s own studies. Absent a strong reason to reject congressional judgments about sentencing, courts traditionally respect them as valid. See Schuster, 706 F.3d at 808 (noting when rejecting a reasonableness challenge to a child-pornography-guideline sentence that “Congress itself may have studied the problem of child pornography”); Kider-len, 569 F.3d at 369 (“in the real-world circumstance where a sentencing judge agrees with Congress, then the resulting sentence is also probably within the range of reasonableness”); Kirchhof, 505 F.3d at 414 (reasoning that, though a guideline may not “reflect the expertise of the Sentencing Commission,” an argument challenging the presumption on that basis “fails to recognize that it is the prerogative of Congress to fix the sentence for a federal crime” and “it is not the court’s role to second-guess the legislative determination of appropriate sentences”). Finally, the Sentencing Commission did, in fact, lend its expertise to developing the career-offender guidelines. Although the Commission tied the career-offender guidelines to the statutory máximums for drug and violent crimes as Congress directed in § 944(h), it also conducted research and amended those guidelines “to focus more precisely on the class of recidivist offenders for whom a lengthy term of imprisonment is appropriate.” U.S.S.G. § 4B1.1 background; see also James v. United States, 550 U.S. 192, 206, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (Commis sion’s decision to include attempt offenses as crimes of violence “was based on the Commission’s review of empirical sentencing data and presumably reflects an assessment that attempt crimes often pose a similar risk of injury as completed offenses”). Accordingly, the way in which the Commission developed the career-offender guidelines does not rebut a presumption on appeal that a within-guideline sentence is reasonable. Smith argues alternatively that the presumption that" }, { "docid": "15598927", "title": "", "text": "Janosko, 355 Fed.Appx. 892, 895 (6th Cir.2009) (recognizing this principle in the child-pornography context). The Seventh Circuit has thus noted that “rejecting a guideline [because it] lack[s] a basis in data, experience, or expertise would [] be proper.” United States v. Aguilar-Huerta, 576 F.3d 365, 367 (7th Cir.2009). But a district court is not “required to consider ... an argument that a guideline is unworthy of application in any case because it was promulgated without adequate deliberation.” Id. at 367-68 (emphasis in original). Under the presumption of reasonableness that we give to a district court’s within-Guidelines sentence, “we will not second-guess [a district court’s] decision! ] ... simply because the particular Guideline is not empirically-based.” Janosko, 355 Fed. Appx. at 895 (quoting United States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir.2009)). The district court here explicitly considered the § 3553(a) factors when sentencing Hall and explained that Hall’s conduct in committing murder — his lack of emotion, connection to drug trafficking and willingness to kill for hire — justified such a severe punishment. Even if the offense level in § 2A1.1(a) does not fit every murder, Hall has not shown that it fails to fit this murder. As a result, the district court did not abuse its discretion in relying upon the base offense level in § 2A1.1(a) to determine Hall’s appropriate sentence. AFFIRMED. . Both the probation office and the district court applied the 2007 edition of the United States Sentencing Guidelines Manual to determine Hall’s advisory sentencing range. . The other circuits addressing this question have done so with similar results. See United States v. Bauer, 626 F.3d 406, 409 (8th Cir. 2010) (holding that § 5G1.3(c) applied because the defendant's case involved multiple undischarged terms of imprisonment, only one of which was used to enhance his instant sentence); United States v. Rogers, 521 F.3d 5, 12 (1st Cir.2008) (treating multiple convictions as a single offense for purposes of § 5G1.3(b)); and United States v. Kimble, 107 F.3d 712, 714-15 (9th Cir.1997) (holding that § 5G1.3(c) applied where defendant's undischarged sentence resulted from multiple convictions, only one" }, { "docid": "7725305", "title": "", "text": "the same as that for murder, then robbers would have an incentive to murder any witnesses to their robberies). See United States v. Beier, 490 F.3d 572, 575 (7th Cir.2007). The child-pornography sentencing scheme gives no such encouragement; offenders worse than Reibel can be given consecutive sentences or prosecuted separately for child molestation (or another crime). See id.; United States v. Kiug, 670 F.3d 797, 801-02 (7th Cir.2012); Maulding, 627 F.3d at 288. Reibel correctly points out that the consecutive-sentence option is available only for defendants facing multiple charges, but we have difficulty imagining an offender worse than Reibel who could neither be charged with more than one child-pornography count nor prosecuted separately for a related crime. In any event, the potential inaptness of the Guidelines in some sex cases does not obligate district judges to give all sex offenders below-Guidelines sentences. See United States v. Garthus, 652 F.3d 715, 721 (7th Cir.2011); Maulding, 627 F.3d at 288; United States v. Huffstatler, 571 F.3d 620, 623-24 (7th Cir.2009). Anticipating the possibility that his marginal-deterrence argument would be unavailing, Reibel also argues that, irrespective of any flaws in the Guidelines, the mitigating evidence in his presentence report rebuts the appellate presumption that a within-Guidelines sentence is reasonable. He points to his stable employment, high school diploma, lack of prior convictions, and the abuse he suffered as a child. The judge, however, thoroughly considered this mitigating evidence when applying the § 3553(a) factors, and Reibel’s disagreement with how the judge weighted particular factors does not establish an abuse of discretion. See Beier, 490 F.3d at 574. Reibel next challenges the reasonableness of his sentence by arguing that the district judge based it on mere speculation about sex-offender recidivism rates and the severity of damage suffered by sex-abuse victims rather than on dependable evidence. He relies on United States v. Miller, 601 F.3d 734 (7th Cir.2010), in which we concluded that the defendant’s above-Guidelines sentence was unreasonable because it was based on the district judge’s belief, unsupported by evidence, that “sex-of-fenders have a higher than normal rate of recidivism, specific deterrence does not" }, { "docid": "7725304", "title": "", "text": "case is well thought out and it’s appropriate.” II. DISCUSSION On appeal Reibel first argues that the child-pornography Guidelines skew toward the statutory maximum and that this, in combination with mitigating evidence in his presentence report, rebuts the appellate presumption that a within-Guidelines sentence is reasonable. The child-pornography Guidelines, he notes, were developed without the help of empirical evidence, see United States v. Maulding, 627 F.3d 285, 287 (7th Cir.2010), and he contends that as a result they fail to approximate the sentencing goals of § 3553(a). This is demonstrated, he says, by his receiving the same sentence as child pornographers who are statistically more likely to reoffend and whose conduct was “far more reprehensible.” Reibel is making what amounts to a marginal-deterrence argument (i.e., an argument that the harshest sentences must be reserved for the worst offenders, see United States v. Newsom, 428 F.3d 685, 688 (7th Cir.2005)). But marginal-deterrence arguments stand a chance only if the sentencing scheme actually encourages criminals to commit more-serious crimes (for example, if the punishment for robbery were the same as that for murder, then robbers would have an incentive to murder any witnesses to their robberies). See United States v. Beier, 490 F.3d 572, 575 (7th Cir.2007). The child-pornography sentencing scheme gives no such encouragement; offenders worse than Reibel can be given consecutive sentences or prosecuted separately for child molestation (or another crime). See id.; United States v. Kiug, 670 F.3d 797, 801-02 (7th Cir.2012); Maulding, 627 F.3d at 288. Reibel correctly points out that the consecutive-sentence option is available only for defendants facing multiple charges, but we have difficulty imagining an offender worse than Reibel who could neither be charged with more than one child-pornography count nor prosecuted separately for a related crime. In any event, the potential inaptness of the Guidelines in some sex cases does not obligate district judges to give all sex offenders below-Guidelines sentences. See United States v. Garthus, 652 F.3d 715, 721 (7th Cir.2011); Maulding, 627 F.3d at 288; United States v. Huffstatler, 571 F.3d 620, 623-24 (7th Cir.2009). Anticipating the possibility that his marginal-deterrence argument" }, { "docid": "4873482", "title": "", "text": "sentence for a federal crime” and “it is not the court’s role to second-guess the legislative determination of appropriate sentences”). Finally, the Sentencing Commission did, in fact, lend its expertise to developing the career-offender guidelines. Although the Commission tied the career-offender guidelines to the statutory máximums for drug and violent crimes as Congress directed in § 944(h), it also conducted research and amended those guidelines “to focus more precisely on the class of recidivist offenders for whom a lengthy term of imprisonment is appropriate.” U.S.S.G. § 4B1.1 background; see also James v. United States, 550 U.S. 192, 206, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (Commis sion’s decision to include attempt offenses as crimes of violence “was based on the Commission’s review of empirical sentencing data and presumably reflects an assessment that attempt crimes often pose a similar risk of injury as completed offenses”). Accordingly, the way in which the Commission developed the career-offender guidelines does not rebut a presumption on appeal that a within-guideline sentence is reasonable. Smith argues alternatively that the presumption that his within-guidelines sentence is reasonable is rebutted by the specific nature of his offense and character. As he did in the district court, he cites his youth and immaturity, his history of mental illness (including his diagnoses of depression, bipolar disorder, and oppositional defiant disorder), and his prior convictions involving no “deliberate violence.” The district court weighed these arguments considering the 18 U.S.C. § 3553(a) factors and did so reasonably. Even if it assigned more weight than Smith prefers to the need to protect the public from Smith’s propensities for violence and impulsive behavior, and less weight to his mental health problems and youth, the district court enjoys discretion in assigning those weights. See United States v. Coopman, 602 F.3d 814, 818-19 (7th Cir.2010); United States v. Beier, 490 F.3d 572, 574 (7th Cir.2007). True, the weighting of the § 3553(a) factors must fall “within the bounds of reason,” but those bounds “are wide,” United States v. Busara, 551 F.3d 669, 674 (7th Cir.2008) (internal citation and quotation marks omitted). Smith’s criminal record in his" }, { "docid": "10825797", "title": "", "text": "influences of the Commission from those of Congress.”). Courts have also recognized the Guidelines for child pornography are the result of congressional mandates rather than empirical analysis and have accorded them less weight as a result. See, e.g., Phinney, 599 F.Supp.2d at 1041-43. Recently, the Sentencing Commission published notice of its intent to review the “incidence of, and reasons for, departures and variances from the guideline sentence” and compile “studies on, and analysis of, recidivism by child pornography offenders.” United States Sentencing Commission, Notice of Proposed Priorities and Request for Public Comment, 74 Fed.Reg. 29737, 29738 (June 23, 2009) (identifying “[r]eview of child pornography offenses, and possible promulgation of guideline amendments and/or a report to Congress as a result of such review” as a proposed priority policy for the amendment cycle ending in May 2010). As in the crack cocaine Guidelines addressed in Kimbrough and Spears, the Sentencing Commission did not use an empirical approach to develop the child pornography Guidelines, but instead responded to congressional directives. Kimbrough and Spears both only addressed the district judge’s discretion with regard to the disparity between sentences for crack cocaine and powder cocaine offenses. The extent to which the Supreme Court’s reasoning applies to similarly deficient Guidelines remains unclear. ' The Court of Appeals for the First Circuit extended Kimbrough’s reasoning to the disparities created by selective placement in fast-track programs for immigration cases. United States v. Rodriguez, 527 F.3d 221, 227 (1st Cir.2008). In a Seventh Circuit opinion, the court determined the child pornography Guidelines, like the crack cocaine Guidelines addressed in Kimbrough, were not based on a nationwide empirical study of criminal sentencing. United States v. Huffstatler, No. 08-2622, 2009 WL 1855161, *2 (7th Cir. June 30, 2009) (declining to decide whether Kimbrough allows district courts to disagree with child pornography Guidelines on policy grounds). The Sixth Circuit, however, has refused to determine whether Kimbrough’s rationale extends to child pornography offenses. United States v. Grossman, 513 F.3d 592, 597-98 (6th Cir.2008). Because the court found the sentence imposed was based on an individualized assessment of the 18 U.S.C. § 3553(a) factors" } ]

[ { "docid": "23464793", "title": "", "text": "they had not satisfied the last three prongs of the Schiavone test. As a result, the court denied the appellant’s motion for leave to amend their complaint since it reasoned that lack of notice to Gray, as principal stockholder of Creative Dining, Inc., was effectively lack of notice to the corporation. However, in light of our finding that the district erred in failing to apply equitable estoppel to bar Gray from pleading that he did not receive notice of this action prior to the running of the statute of limitations, Schiavone’s concern with not prejudicing added parties with the unfair surprise of stale claims is irrelevant in this case. Therefore, we hold that the district court erred in denying appellants’ motion for leave to amend their complaint on the basis that the amendment did not meet Rule 15(c)’s requirements for relation back. We now examine whether the appellants’ filing of an amended complaint should have been permitted under Fed.R.Civ.P. 15(a), which provides that “leave [to amend] shall be freely given when justice so requires.” We have noted that the courts “have shown a strong liberality ... in allowing amendments under Rule 15(a).” Heyl & Patterson Int’l, Inc. v. F.D. Rich Housing, 663 F.2d 419, 425 (3d Cir.1981) (quoting 3 J. Moore, Moore’s Federal Practice 1115.08(2) (2d ed. 1989)), cert. denied, 455 U.S. 1018, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982). In Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the Supreme Court identified a number of factors to be considered in deciding on a motion to amend under Rule 15(a): In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be “freely given.” Id. at 182, 83 S.Ct. at 230; accord, Heyl & Patterson Int’l, 663 F.d at 425; Cornell & Co. v. Occupational Safety" } ]

[ { "docid": "13257812", "title": "", "text": "change of position in reliance thereon. In any event, the issue is ancillary to the overall disposition of this appeal, which essentially involves debtor’s claim for an accounting. We believe that the issue, and remand for hearing thereon, should be presented on the merits, and therefore authorize withdrawal of the abandonment of appeal on the reimbursement issue. VII. THE QUANTUM MERUIT CAUSE OF ACTION Debtor contends that the bankruptcy court erred by denying him leave to amend his first amended complaint to add a twelfth cause of action for reimbursement of his expenses in quantum meruit. He argues that this cause of action is separate from the unreimbursed expenses claim, because the quantum meruit theory can be sustained even if the court finds that there is no partnership agreement. Debtor cites, as authority for his motion to amend, Fed.R.Civ.P. 15(a), which provides in relevant part that “leave [of court] shall be freely given when justice so requires.” In considering an amendment to the pleadings, bankruptcy courts generally follow the procedures set forth in Rule 15. Wright & Miller, Federal Practice and Procedure: Civil § 1472 at 360. As the United States Supreme Court has held, leave to amend under Rule 15(a) should be “freely given”: [i]n the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment ... Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). None of the foregoing reasons for denying leave to amend exists in the case before us. The grant or denial of an opportunity to amend is within the discretion of the trial court, but “outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.” Id. In this case, the bankruptcy court refused leave to grant" }, { "docid": "18974066", "title": "", "text": "the order remanding the case granted leave to amend the pleadings. Id. at 579. Here, the Trustee specifically requested that we direct the bankruptcy court to allow him to amend his pleadings and we denied the petition. With our intent so clear, the Trustee was not entitled to amend his pleadings. See Pioche Mines Consolidated, Inc. v. Foley, 237 F.2d 164, 165 (9th Cir.1956); accord Cohen v. Illinois Institute of Technology, 581 F.2d 658, 662 (7th Cir.1978), cert. denied, 439 U.S. 1135, 99 S.Ct. 1058, 59 L.Ed.2d 97 (1979); see generally 3 J. Moore, Moore’s Federal Practice 1115.11 (2d ed. 1984). On remand, a trial court cannot consider “issues decided explicitly or by necessary implication.” Liberty Mutual Insurance Co. v. EEOC, 691 F.2d 438, 441 (9th Cir.1982). The bankruptcy court held that our mandate did not foreclose consideration of reformation. Its interpretation of our mandate, however, particularly in light of our denial of the Trustee’s petition for rehearing or clarification, was erroneous. E.g., Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 833-34 (9th Cir.1982). The only issue remaining on remand was our direction to interpret “interest earned,” as used in section 5(c)(iii) of the Settlement Agreement. By necessary implication, this foreclosed a trial on an entirely new theory of recovery. Notwithstanding this specific direction to interpret “interest earned,” however, the bankruptcy court failed to make any findings on this issue. Even if our mandate and denial of the Trustee’s petition for rehearing or clarification were sufficiently ambiguous to permit the bankruptcy court to entertain a motion to amend the pleadings, the amendment sought in this case would be inappropriate. The general rule that leave to amend under rule 15 should be freely granted, see Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), will not be extended without limit when a rule 15 motion is brought after a claim has been fully litigated on the merits through appeal. At some point, there must be finality. Permitting amendment in this case would not enhance finality, but instead would encourage seriatim judgments in the same basic" }, { "docid": "5167111", "title": "", "text": "Eric Cianchette, submitted with Appellants’ objection to the motion for summary judgment, raises a genuine issue of material fact. See Maine Partners’ Response and Objection (Volume II, No. 8). The affidavit contains averments supporting two purported affirmative defenses which Appellants sought to add to their Answer by means of a Motion to Amend Pleadings. The Bankruptcy Court denied Appellants’ Motion to Amend, thereby making the allegations in the affidavit moot. The affidavit can be relevant to material facts in this litigation, therefore, only if the Bankruptcy Court erred when it denied Appellants’ motion to amend their pleadings. Appellants attempted to amend their pleadings on November 9, 1989 to include two purported affirmative defenses to their liability on the debt obligation: (1) “negligent entrustment” of loan proceeds; and (2) negligent supervision of the construction loan. Federal Rule of Civil Procedure 15(a) requires that leave to amend pleadings be “freely given when justice so requires.” Fed.R.Civ.P. 15(a). While liberal, this policy does not amount to an unlimited right of amendment. Granting leave is a matter of the trial court’s informed discretion. Diotima Shipping Corp. v. Chase, Leavitt & Co., 102 F.R.D. 532, 534 (D.Me.1984). The Supreme Court has set forth the criteria for exercising that discretion: In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. — the leave should, as the rules require, be freely granted. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) (quoted in Diotima Shipping, 102 F.R.D. at 534). Mere delay is not sufficient to justify denying a motion to amend; however, the mov-ant bears the burden of showing some valid reason for his neglect and delay where a considerable amount of time has elapsed between the filing of the complaint and the motion to amend. Hayes v. New England Millwork Distributors, Inc., 602 F.2d 15, 20 (1st Cir.1979)." }, { "docid": "9936222", "title": "", "text": "should not be taken lightly, and its application should be construed liberally in favor of the debtor. Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993). Under 727(a)(2) , the plaintiff must show that the act complained of was: (1) done by the debtor and; (2) involved transferring, removing, destroying, mutilating or concealing any of the debtor’s property; (3) within one year before the date of the petition or postpetition; (4) with the actual intent to hinder, delay, or defraud a creditor. In re Scimeca, Adv. No. 91-2615,1993 WL 744485 (Bankr.D.N.J. July 14, 1993), aff'd, 169 B.R. 536 (D.N.J.1993). See also In re Brown, 108 F.3d 1290, 1293 (10th Cir. 1997). A transfer is defined in section 101 as “every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property, including retention of title as a security interest and foreclosure of the debtor’s equity of redemption.” 11 U.S.C. § 101(54). The party objecting to the discharge under section 727(a)(2) must prove that “an act (i.e. a transfer or a concealment of property) and an improper intent .:. were present during the one year period before bankruptcy; anything occurring before that one year period is forgiven.” Rosen, 996 F.2d at 1530. However an act may occur outside that one year period and still be actionable under section 727(a)(2) if it involves a “continuing concealment.” Id. at 1531. The rationale under this doctrine is that “a concealment will be found to exist during the year before bankruptcy even if the initial act of concealment took place before this one year period as long as the debtor allowed the property to remain concealed into the critical year.” Id. This principle “recognizes that a failure to reveal property previously concealed can, in some circumstances, properly be considered culpable conduct during the year before bankruptcy warranting a denial of discharge.” Id. To satisfy the concealment doctrine, the debt- or must have had a property interest to conceal, and the concealment must have been motivated by an improper intent. Section 727(a)(2) does not" }, { "docid": "16760319", "title": "", "text": "to result from it.” In order to qualify for the § 523(a)(6) “willful and malicious” exception to discharge, therefore, the debtor must have acted with either the desire to injure or a belief that injury was substantially certain to occur. There is no evidence in the record that might lead a trier of fact to conclude that McCurdy had any such desire or belief. For this reason, we hold that McCurdy’s debt to Ditto is not non-dischargeable under § 523(a)(6). IV While Ditto’s original complaint made a brief reference to an objection to discharge pursuant to 11 U.S.C. § 727(a)(4) and (7), the focus was largely on the dischargeability of McCurdy’s debt to Ditto. In 1997, following the judgment of non-dischargeability with respect to McCurdy’s debts to her, Ditto voluntarily dismissed her § 727 objection. Now that judgment has been set aside, she seeks to amend her complaint to reinstate the objection to discharge. Rule 15(a) of the Federal Rules of Civil Procedure provides that, after the initial period for amendments as of right, pleadings may be amended only by leave of court, which “leave shall be freely given when justice so requires.” See Fed. R. Bankr.P. 7015 (applying Fed. R.Civ.P. 15 to adversary bankruptcy proceedings). “Four factors are commonly used to determine the propriety of a motion for leave to amend. These are: bad faith, undue delay, prejudice to the opposing party, and futility of amendment.” Roth v. Garcia Marquez, 942 F.2d 617, 628 (9th Cir.1991) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). This court reviews a denial of a leave to amend a complaint for abuse of discretion. Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1292 (9th Cir.1983). “The abuse of discretion standard requires that we ‘not reverse a district court’s exercise of its discretion unless we have a definite and firm conviction that the district court committed a clear error of judgment in the conclusion it reached.’ ” Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d 782, 798 (9th Cir.2005) (quoting SEC v." }, { "docid": "10071047", "title": "", "text": "therefore deny plaintiffs motion for a temporary restraining order and a preliminary injunction and grant defendant’s motion to dismiss for lack of subject matter jurisdiction. However, I will address whether it is appropriate to grant plaintiff leave to amend his complaint to bring the claims under § 1983. The decision to grant or deny leave to amend a complaint is committed to the sound discretion of the district court. Coventry v. U.S. Steel Corp., 856 F.2d 514, 519 (3d Cir.1988), citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). As the Supreme Court noted in Foman, however, the “outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.” Id., citing Foman, 371 U.S. at 182, 83 S.Ct. 227 (citations omitted). Absent an “apparent or declared” reason for the denial, the leave to amend “should, as the rules require, be ‘freely given.’” Id., citing Foman, 371 U.S. at 182, 83 S.Ct. 227, quoting Fed.R.Civ.P. 15(a). Among the reasons delineated by the Foman Court as sufficient to support a denial of a motion to amend are “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or the] futility of the amendments.” Id., citing Foman, 371 U.S. at 182, 83 S.Ct. 227. Here it would be futile for plaintiff to amend his complaint because even if his claims under the Commerce Clause and the Supremacy Clause were brought under § 1983, he would fail to state a claim. Plaintiff appears to assert in his complaint that the Pennsylvania Dog Law conflicts with the AWA and therefore violates the Commerce Clause and the Supremacy Clause. He argues that because the Pennsylvania Dog Law requires kennel owners to have a state kennel license if they own more than 25 dogs, 3 P.S. § 459-206, and the AWA" }, { "docid": "8568861", "title": "", "text": "claim upon which relief can be granted with respect to Count II of the Complaint. However, Plaintiff has alternatively moved for leave to amend its Complaint. Defendant opposes such relief on the basis that any such amendment would be futile. (Defendant’s Reply Brief in Support of Its Motion to Dismiss, at 4) Rule 15 of the Federal Rules of Civil Procedure, made applicable by Rule 7015 of the Federal Rules of Bankruptcy Procedure, provides that a party may amend a pleading only by leave of the court once a responsive pleading has been filed and that leave “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). See also, Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The For-man Court also articulated in what instances that leave should not be given: “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.” Id. As mentioned above, Defendant has alleged futility, however, Defendant has failed to offer a persuasive argument to support its contention. Therefore, leave to amend will be granted in order for Plaintiff to conform Count II to the requirements of the Federal Rules of Civil Procedure. An appropriate order follows. ORDER REGARDING DEFENDANT NUCOR CORPORATION’S MOTION TO DISMISS COUNT II OF PLAINTIFF’S COMPLAINT TO AVOID AND RECOVER TRANSFERS For the reasons set forth in the accompanying Memorandum of even date herewith, IT IS HEREBY ORDERED that Nucor Corporation’s Motion to Dismiss is GRANTED. However, Plaintiff is GRANTED leave to amend Count II of the Complaint within twenty (20) days of the date of this Order. . Federal Rule of Civil Procedure 12(b)(6) is made applicable to this adversary proceeding pursuant to Federal Rule of Bankruptcy Procedure 7012. . Federal Rule of Civil Procedure 9(b) is made applicable to this adversary proceeding pursuant to Federal Rule of Bankruptcy Procedure 7009. . Section 548(a) provides: (1)The trustee may avoid any transfer of an interest of" }, { "docid": "17919257", "title": "", "text": "Section 10(b) and Rule 10b-5 (count one), Section 20(a) of the 1934 Act (count two), and Sections 11, 12 and 15 of the 1933 Act (count three). Furthermore, counts four and five are dismissed in light of the court’s decision not to exercise pendent jurisdiction. Accordingly, the defendants’ motion to dismiss (filing no. 28) is granted in its entirety. SO ORDERED. RULING ON PLAINTIFFS’ MOTION FOR RECONSIDERATION AND REQUEST FOR LEAVE TO AMEND In this securities law action, the court dismissed the consolidated amended com plaint on December 2, 1991, pursuant to Rules 9(b), 12(b)(1) and 12(b)(6), Fed. R.Civ.P. Under Rules 59(e) and 60(b), Fed. R.Civ.P., the plaintiffs now move for reconsideration of the December 2, 1991 ruling. Specifically, the plaintiffs ask the court to consider their request for leave to amend their complaint, pursuant to Rule 15(a), Fed.R.Civ.P. For the reasons that follow, the motion for reconsideration is granted and the plaintiffs’ request for leave to file a second consolidated amended complaint is granted. Discussion Under Rule 15(a), “leave [to amend] shall be freely given when justice so requires,” and should be granted absent “some justification for refusal.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). The liberal amendment policy underlying Rule 15(a) affords the court broad discretion in granting leave to amend and, consequently, a motion for leave to amend should not be denied unless there is “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed [or] undue prejudice to the opposing party by virtue of the amendment, ...” Foman, 371 U.S. at 182, 83 S.Ct. at 230. As a preliminary matter, the plaintiffs contend that the court’s December 2, 1991 ruling constituted an abuse of discretion to the extent that the court “failed to consider” their request for leave to amend. In its ruling, the court in fact did not address what the plaintiffs term their “explicit” request for leave to amend. Yet this oversight comes as no surprise. The plaintiffs’ request for leave to amend was" }, { "docid": "19533993", "title": "", "text": "presented at trial pursuant to Fed. R. Civ. P. 15(b)(2), requesting to include a claim under § 727(a)(6) based on Fustolo's violation of the December 31 Order. Patriot identified several instances that it argued should constitute Fustolo's implied consent to litigate the additional claim, including Fustolo's failure to object to: Patriot's inclusion of \"Fustolo's discovery misconduct\" as an issue for trial in the JPM; Patriot's request for judicial notice of the December 31 Order; and Fustolo's above-quoted testimony at trial. Patriot subsequently filed a Motion to Conform the Pleadings to the Evidence on September 12, 2016, and Fustolo filed his opposition on September 28. On January 9, 2017, the bankruptcy court allowed Patriot's motion to conform and entered judgment in its favor and against Fustolo, denying Fustolo a discharge of his debt owed in bankruptcy under § 727(a)(6). The Patriot Group, LLC v. Fustolo (In re Fustolo ), 563 B.R. 85 (Bankr. D. Mass. 2017). In light of its ruling as to the newly asserted claim, the bankruptcy court found the remaining counts of Patriot's complaint moot. Id. at 113. On January 24, 2017, Fustolo filed his Notice of Appeal and Statement of Election to have his appeal of the bankruptcy court's January 9 order heard before the district court rather than the Bankruptcy Appellate Panel. The district court affirmed the bankruptcy court on September 6, 2017, and Fustolo timely appealed. II. THE UNPLEADED CLAIM On appeal, Fustolo advances two arguments before this Court: that the bankruptcy court abused its discretion in granting Patriot leave to amend its complaint, and that § 727(a)(6) does not apply to his assertion of his Fifth Amendment right against self-incrimination. The decision whether to grant or deny an amendment is within the discretion of the trial court, see Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), and we review its determinations of implied consent for an abuse of that discretion, Premier Capital, LLC v. Crawford (In re Crawford ), 841 F.3d 1, 6 (1st Cir. 2016). This standard is \"generally deferential,\" although a \"material error of law is" }, { "docid": "19088870", "title": "", "text": "amend the Complaint. See, e.g., Countryside Oil Co., Inc. v. Travelers Insurance Co., 928 F.Supp. 474, 480 n. 4 (D.N.J.1995) (where complaint did not raise defenses of equitable estoppel and reformation, but plaintiff raised defenses in brief opposing defendant’s motion for summary judgment, court treated brief as motion for leave to amend). Bankruptcy Rule 7015 makes Fed.R.Civ. P.Rule 15 applicable herein. In part Rule 15(a) states as follows: A party may amend the party’s pleadings once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party’s pleading only be leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. ... Fed.R.Civ.P. 15(a). The grant or denial of a motion for leave to amend a complaint is within the discretion of the bankruptcy court. Swanson v. First Wisconsin Financial Corp. (In re Universal Foundry Co.), 163 B.R. 528, 541 (E.D.Wis.1993), aff'd, 30 F.3d 137 (7th Cir.1994). Absent undue delay, bad faith or dilatory motive by the party seeking leave to amend, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party or futility of the amendment, the “mandate [of Rule 15(a) ] is to be heeded.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); accord Tokio Marine & Fire Ins. Co. v. Employers Ins. of Wausau, 786 F.2d 101, 103 (2d Cir.1986); Concord Asset Mgmt., Inc. v. Intercredit Corp., No. 92 Civ. 7756, 1994 WL 176975, *2 (S.D.N.Y. May 5, 1994); see also Kurtzman v. Charles (In re Walter T. Murphy, Inc.), No. 94 Civ. 8094, 1995 WL 35672, *2 (S.D.N.Y. Jan. 30, 1995) (if the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, it should be afforded an" }, { "docid": "7622716", "title": "", "text": "bankruptcy case. The debtor’s false oath must relate to a material matter before it will bar a discharge in bankruptcy. Lee Supply Corp. v. Agnew (In re Agnew), 818 F.2d 1284, 1290 (7th Cir.1987). The test for materiality of the subject matter of false oath is whether it “bears a relationship to the bankrupt’s business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of his property.” Bailey, 147 B.R. at 162 (citations omitted). A false oath may be material even though it does not result in any detriment or prejudice to the creditor. Scimeca v. Umanoff, 169 B.R. 536, 543 (D.N.J.1993), aff'd, 30 F.3d 1488 (3d Cir.1994); Congress Talcott Corp. v. Sicari (In re Sicari), 187 B.R. 861, 881 (Bankr.S.D.N.Y.1994). A matter is material if it is pertinent to the discovery of assets, past transactions, or the debtor’s entitlement to discharge. Richter v. Gordon (In re Gordon), 83 B.R. 78, 81 (Bankr.S.D.Fla.1988). The Court finds that the failure to list a source of income earned from part-time employment on the bankruptcy schedules constitutes a false statement by omission which relates to a material matter. In sum, the Court finds that the Bank has shown by a preponderance of the evidence each element under § 727(a)(4)(A) as to Donald. Therefore, the Court denies Donald a discharge. The Bank has failed to meet all of the requisite elements, however, as to Diane. Consequently, her discharge shall not be denied. C. Whether the Bank is Entitled to Attorneys’ Fees and Costs Each party seeks costs and attorneys’ fees from them opponent. The Bank’s cause of action is based on § 727(a)(4)(A). Section 727, however, does not specifically authorize the Court to award attorneys’ fees. Because the remedy created by the Bankruptcy Code for denial of discharge does not give the Bank a statutory right to attorneys’ fees, and there is no contract between the parties introduced into evidence which provides for same, the Court declines to tax the Debtors with attorneys’ fees. The Court will adhere to the “American Rule,” which provides that in cases" }, { "docid": "21168985", "title": "", "text": "departure from honest business practices where there is a reasonable likelihood of prejudice.” Kentile Floors, Inc. v. Winham, 440 F.2d 1128, 1131 (9th Cir.1971). In these consolidated adversary proceedings, Wachovia and Howard Glass-man, Esquire, the chapter 7 trustee, have raised four grounds for denying the debtors their bankruptcy discharge: sections 727(a)(2)(A), (a)(3), (a)(4)(A) and (a)(5). The plaintiffs have the burden to prove their objections to discharge by a preponderance of the evidence. See, e.g., In re Adams, 31 F.3d 389, 393-94 (6th Cir.1994); In re Sterman, 244 B.R. 499, 504 (D.Mass.1999); In re Dolata, 306 B.R. 97, 146 (Bankr.W.D.Pa.2004). In their post-trial submissions, the plaintiffs address their objections in numerical order, and so shall I. A. According to section 727(a)(2)(A), a debt- or will be denied a discharge where he or she with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A) property of the debtor, within one year before the date of the filing of the petition; See generally Rosen v. Bezner, 996 F.2d at 1531; Chusid v. First Union National Bank, 1998 WL 42292, at *8 (E.D.Pa.1998); Scimeca v. Umanoff, 169 B.R. 536, 539 (D.N.J.1993), aff'd, 30 F.3d 1488 (3d Cir.1994) (Table). Thus, to obtain relief under section 727(a)(2)(A), a plaintiff must establish three elements: (1) a disposition of property, such as a transfer or concealment; (2) a subjective intent on the debtor’s part to hinder, delay or defraud one or more creditors or the bankruptcy trustee through that disposition; and (3) that both the disposition and subjective intent occurred within the one-year period before the petition was filed. In re Lawson, 122 F.3d 1237, 1240 (9th Cir.1997); see Rosen v. Bezner, 996 F.2d at 1531. As noted above, the plaintiff bears the burden of proving these three requirements by a preponderance of the evidence. See, e.g., In re Kisberg, 150 B.R. 354, 357 (Bankr.M.D.Pa.1992). According to the plain language of the statute, there must be" }, { "docid": "9936221", "title": "", "text": "and may be denied where there are insufficient facts to support a cause of action.”). In reviewing the movant’s motion for the entry of a default judgment, we must consider: (1) the possibility of prejudice to the plaintiff; (2) the merits of plaintiffs substantive claim; (3) the sufficiency of the complaint; (4) the sum' of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether default was due to excusable neglect; and (7) the strong policy underlying the Federal Rule of Civil Procedure favoring decisions on the merits. Villegas, 132 B.R. at 746 (citing Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986)). Plaintiff seeks to deny the debtor his discharge under 11 U.S.C. §§ 727(a)(2), (a)(3) and (a)(5). Section 727 has been described as the “heart of the fresh start provisions of the bankruptcy law.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 384 (1977); S.Rep. No. 989, 95th Cong.2d Sess. 98 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5963, 578,7. It is an extreme remedy that should not be taken lightly, and its application should be construed liberally in favor of the debtor. Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993). Under 727(a)(2) , the plaintiff must show that the act complained of was: (1) done by the debtor and; (2) involved transferring, removing, destroying, mutilating or concealing any of the debtor’s property; (3) within one year before the date of the petition or postpetition; (4) with the actual intent to hinder, delay, or defraud a creditor. In re Scimeca, Adv. No. 91-2615,1993 WL 744485 (Bankr.D.N.J. July 14, 1993), aff'd, 169 B.R. 536 (D.N.J.1993). See also In re Brown, 108 F.3d 1290, 1293 (10th Cir. 1997). A transfer is defined in section 101 as “every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property, including retention of title as a security interest and foreclosure of the debtor’s equity of redemption.” 11 U.S.C. § 101(54). The party objecting to the discharge under section 727(a)(2) must prove that" }, { "docid": "13359991", "title": "", "text": "adverse party; and leave shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). It is within the Court’s discretionary powers to grant or deny a motion for leave to amend. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). “Among the grounds that could justify a denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice, and futility.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.1997) (citations omitted). See also Global Link Telecom, 327 B.R. at 718. 2. Second Amended Complaint The Trustee has filed a Motion seeking leave to file a Second Amended Complaint. The Defendants oppose the Motion on the following grounds: (1) undue delay; (2) prejudice; (3) the new claims do not relate back to the Original Complaint and, therefore, the amendment is futile; and (4) supplementing the old claims with a new theory is impermissible. a. Undue Delay The Defendants contend that the Trustee’s Second Amended Complaint results in undue delay and shows inexcusable neglect. They describe the Trustee’s Second Amended Complaint as an attempt to take a “second bite at the apple.” Specifically, they assert that the facts in the proposed amendment were known at the time of the Original Complaint and bankruptcy petition (over one and three years ago, respectively). See Sandcrest Outpatient Servs., P.A. v. Cumberland County Hosp. Sys., Inc., 853 F.2d 1139 (4th Cir.1988) (denying a second motion to amend to add an additional remedy of injunctive relief eight months after original complaint because the movant should have known of the remedy at the time of the original pleading). The Defendants further assert that they will face a large amount of undue expense as a result of extensive briefing related to the Second Amended Complaint. The Trustee counters that the Defendants’ argument is flawed. Moreover, he asserts that none of the cases cited in support of the Defendants’ argument involved a case in which the motion to amend took place within the statute of limitations. This Court must apply the Delaware choice of law rules to determine which" }, { "docid": "15392949", "title": "", "text": "particularly where the prior ruling was made by a different judge in the same court. Where there is a showing of demonstrable error or clear injustice, however, it is not improper for a court to depart from a prior ruling. Arizona v. California, 460 U.S. 605, 618 n. 8, 103 S.Ct. 1382, 1391 n. 8, 75 L.Ed.2d 318 (1983); Russell, 678 F.2d at 785. In this case, the error or injustice which would follow from adhering to the prior ruling is clear. The Federal Rules of Civil Procedure provide for liberal amendment of pleadings. Fed.R.Civ.P. 15(a). Although the request for leave to amend was made close to the date of trial, KHA had notice of the defense, because Pacific had pleaded it. More than ample discovery had been had upon the issue. Indeed, KHA’s opposition to the merits of the motion on liquidated damages indicates that the defense was no surprise to them. Without any evidence of surprise or injustice to KHA by allowing the amendment, denial of leave to amend was probable error and was clearly contrary to the interests of justice in this case. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). KHA is attempting to hold the USHP defendants to the full purchase price of a contract which they never signed. On the basis of the record before the Court in fact there is reason to doubt that the USHP defendants ever read the Purchase Agreement to which KHA would ask that they be bound. The injustice of refusing to accord them, on procedural grounds, a defense available by the express terms of the contract seems manifest. Accordingly, leave to amend the pleadings is granted nunc pro tunc to include liquidated damages as a defense. Once it has been decided that the USHP defendants may assert the defense of liquidated damages, it makes little difference whether Pacific may join in their motion or not, since the disposition of the issue as to the USHP defendants is necessarily dispositive of the issue between KHA and Pacific. The Court therefore rules as" }, { "docid": "10272308", "title": "", "text": "the Trustee now moves for leave to file an amended complaint pursuant to Fed.R.Civ.P. 15(a) to permit him to recover from the Bank on behalf of Delta-corp, rather than Deltrade Bermuda, as he had previously sought to do. He seeks to recover under both preference and fraudulent transfer theories. The Bank in turn responds with a two-pronged defense. First, it argues that because the estates of entities including Deltacorp and Deltrade Bermuda were substantively consolidated, the fraudulent transfer claim was wiped out. Additionally, harking back to its answer to the complaint, the Bank contends that the payment is not immune from recovery even if preferential because it was made in the ordinary course of business of the parties. III. Amendments to complaints are governed by Rule 15(a) of the Federal Rules of Civil Procedure, made applicable to this adversary proceeding by Rule 7015 of the Federal Rules of Bankruptcy Procedure. It is by now well established that leave to amend pleadings should be freely given. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). However, such leave should not be granted where the proposed amendment is legally insufficient. In re N. Merberg & Sons, Inc., 166 B.R. 567 (Bankr.S.D.N.Y.1994); see also 6 C. Wright, A. Miller & Mary Kay Kane, Federal Practice and Procedure, § 1487 at 643 (2d ed. 1990) (“[i]f a complaint as amended could not withstand a motion to dismiss, then the amendment should be denied as futile.”) It is in this provision of the black letter law that the Bank says its solace lies. And it is therefore to the sufficiency of the proposed amended claims that I turn. This endeavor requires examination of the effects of the order of substantive consolidation. Substantive consolidation derives from the bankruptcy court’s general equitable powers provided in section 105(a) of the Bankruptcy Code, 11 U.S.C. § 105(a). 5 L. King, Collier on Bankruptcy, ¶ 1100.06 at 1100-34 (15th ed. 1988); In re Parkway Calabasas Ltd., 89 B.R. 832, 837 (Bankr.C.D.Cal.1988), aff'd, 949 F.2d 1058 (9th Cir.1991). Unlike joint administration (also referred to as" }, { "docid": "21648590", "title": "", "text": "so with a requisite level of specificity, failing which a court may deny leave. See, e.g., Id. (citing a series of cases where the movant failed to provide adequate specificity to satisfactorily request leave to amend). In the event that a party provides sufficient specificity, a court must determine whether or not justice does indeed require permitting the amended pleading to be filed. Id.; see also Fed. R. Civ. P. 15(a)(2). Among the considerations to determine whether “justice so requires” is “a movant’s undue delay or dilatory motive.” Fed. R. Civ. P. 15(a)(2); Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 553, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010) (citing to Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)); see also 6 C. Wright, et al, Fed. Prac. & Proc. Civ. § 1487 (3d ed.) (stating that “[t]he liberal amendment policy prescribed by Rule 15(a) does not mean that leave will be granted in all cases”). Aside from undue delay or dilatory motive, a court can deny leave to amend a pleading when the moving party has been shown to have repeatedly failed to cure deficiencies by previous amendments, undue prejudice to the opposing party by permitting the amendment, or the amendment to the pleading would be futile. C3PO Int’l, Ltd. v. Dyn-Corp Int’l, L.L.C., 663 Fed.Appx. 311, 312-13, 314 (5th Cir. 2016) (citing to Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), and Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004)). IV. Conclusions of Law A. Jurisdiction and Venue This Court holds jurisdiction pursuant to 28 U.S.C. § 1334, which provisions that “the district courts shall have original and exclusive jurisdiction of all cases under title 11” and “all civil proceedings arising under title 11, or arising in or related to cases under title 11.” See also 28 U.S.C. § 157(a); see, e.g., In re: Order of Reference to Bankruptcy Judges, General Order 2012-6 (S.D. Tex. May 24, 2012). Section 157 provides that bankruptcy judges may issue final orders or judgments where the matter is" }, { "docid": "13615343", "title": "", "text": "support of their thirteenth and fourteenth claims, Plaintiffs plead the following: 51. Defendant’s conduct with respect to the aforementioned assets is violative of § 523(a)(4) and said debts are nondis-chargeable. 52. Said conduct with respect to the aforementioned assets is fraudulent and proscribed by 11 U.S.C. Section 727 and accordingly, Defendant should be denied a discharge in bankruptcy. Generally, Rule 9(b) proceedings may not be based solely on “information and belief.” Interconnect Telephone, 54 B.R. at 862. However, bankruptcy courts do not generally require the rigid standards demanded in a non-bankruptcy civil proceeding. In re Hollis and Company, 86 B.R. 152, 156 (Bankr.E.D.Ark.1988). The Bankruptcy Court’s standard is usually “relaxed as to matters peculiarly within the adverse parties’ knowledge, [but] the allegations must then be accompanied by a statement of the facts upon which the belief is founded.” Interconnect Telephone, 54 B.R. at 862 (quoting Segal v. Gordon, 467 F.2d 602, 608 (2d Cir.1972). See also Maybon, Nugent & Co. v. Borey, 127 B.R. 727 (S.D.N.Y.1991) (allegations of fraud may be based on information and belief when facts are peculiarly within opposing party’s knowledge). The statement of facts is necessary to apprise the Defendant fairly of the charges made against him so that he can prepare a sufficient answer to the allegations. O.P.M., 32 B.R. at 203. Thus, Plaintiffs have also not pleaded fraud with sufficient particularity in accordance with Fed.R.Civ.P. 9(b) as to the thirteenth and fourteenth claims for relief. By reason of all the foregoing, Debtor’s motion to dismiss the seventh, eighth, ninth, eleventh, thirteenth, and fourteenth claims for relief is granted. Plaintiffs’ Cross-Motion Complaints that are dismissed under Fed.R.Civ.P. Rules 8, 9(b) and 12(b)(6) are “almost always” dismissed with leave to amend. In re Kelton Motors, Inc., 121 B.R. 166 (Bankr.D.Vt.1990) (citing Luce v. Edelstein, 802 F.2d 49, 56 (2d Cir.1986). Pursuant to Rule 15, “[a] party may amend his pleading [after a responsive pleading has been filed] only by leave of the court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” Fed. R.Civ.P. 15(a). Moreover, “[w]henever" }, { "docid": "23026147", "title": "", "text": "recent interpretation of state law in diversity cases. Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941). The Town Board resolution of 1965 determined the meaning of “building plot”; the Rock Hill case supported the validity of the resolution. A service charge could be rendered only against connected and serviced plots. Summary judgment was proper. Plaintiff's contention that Judge Bonsai’s denial of the motion for summary judgment is the law of the case is without merit. The situation had changed since his original ruling; the facts, which Judge Bonsai had sought, had been supplied. Judge Tyler could not ignore these developments, namely, (1) the Town Board resolution and (2) the Rock Hill decision. III. It is within the trial judge’s discretion to grant leave to amend a complaint. However, he may not abuse his discretion, and if he refuses “to grant the leave without any justifying reason,” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962), or bases a denial to amend on erroneous beliefs, Rogers v. White Metal Rolling and Stamping Corp., 249 F.2d 262 (2 Cir. 1957), cert. denied, 356 U.S. 936, 78 S.Ct. 777, 2 L.Ed.2d 812 (1958), such a denial is reviewable. Amendments should be granted liberally. Fed.R.Civ.P. 15(a) provides that “leave [to amend] shall be freely given when justice so requires.” If the proposed amendment alleges facts or circumstances which may be a proper subject of relief, the suitor, in the absence of sufficient reasons for denying him this opportunity, should have a chance to test his claim on the merits. Foman v. Davis, supra, 371 U.S. at 182, 83 S.Ct. 227. Narrow pleading rules should not be applied to foil an honest plaintiff’s efforts to gain redress. In examining the circumstances which might justify not granting plaintiff this opportunity to be heard on the merits, the trial courts should normally focus on the resultant prejudice to defendant. United States v. Hougham, 364 U.S. 310, 316, 81 S.Ct. 13, 5 L.Ed.2d 8 (1960); Ricciuti v. Voltarc Tubes, Inc., 277 F.2d 809, 814 (2" }, { "docid": "16760320", "title": "", "text": "may be amended only by leave of court, which “leave shall be freely given when justice so requires.” See Fed. R. Bankr.P. 7015 (applying Fed. R.Civ.P. 15 to adversary bankruptcy proceedings). “Four factors are commonly used to determine the propriety of a motion for leave to amend. These are: bad faith, undue delay, prejudice to the opposing party, and futility of amendment.” Roth v. Garcia Marquez, 942 F.2d 617, 628 (9th Cir.1991) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). This court reviews a denial of a leave to amend a complaint for abuse of discretion. Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1292 (9th Cir.1983). “The abuse of discretion standard requires that we ‘not reverse a district court’s exercise of its discretion unless we have a definite and firm conviction that the district court committed a clear error of judgment in the conclusion it reached.’ ” Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d 782, 798 (9th Cir.2005) (quoting SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir.2001)). The bankruptcy court granted McCurdy a discharge in bankruptcy on February 15, 2000. Ditto did not move to amend her complaint to restore her § 727 objection until May 25, 2001 — more than fifteen months later. “[A] total bar to discharge is an extreme penalty.” Rosen v. Bezner, 996 F.2d 1527, 1534 (3d Cir.1993). If the ordinary action of § 727(a) is extreme, it must surely be still more extreme to order, retroactively, a revocation of the discharge. Given the value of finality in bankruptcy, as well as the difficulty of unscrambling an egg by effectively revoking discharge (even Ditto’s counsel, arguing before the bankruptcy court, characterized the consequences of granting the motion to amend as a “logistical nightmare”), we hold that the bankruptcy court did not err in denying Ditto leave to amend her complaint. AFFIRMED. . An extensive summary of the facts of Ditto’s underlying claim against McCurdy is set forth in Ditto v. McCurdy, 86 Hawai'i 93, 947 P.2d 961, 968-72 (Ct.App.), aff'd, 86" } ]

[ { "docid": "22362333", "title": "", "text": "Justice Souter delivered the opinion of the Court. This case turns on the conditions for certifying a mandatory settlement class on a limited fund theory under Federal Rule of Civil Procedure 23(b)(1)(B). We hold that applicants for contested certification on this rationale must show that the fund is limited by more than the agreement of the parties, and has been allocated to claimants belonging within the class by a process addressing any conflicting interests of class members. I Like Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), this case is a class action prompted by the elephantine mass of asbestos eases, and our discussion in Amchem will suffice to show how this litigation defies customary judicial administration and calls for national legislation. In 1967, one of the first actions for personal asbestos injury was filed in the United States District Court for the Eastern District of Texas against a group of asbestos manufacturers. App. to Pet. for Cert. 252a. In the 1970’s and 1980’s, plaintiffs’ lawyers throughout the country, particularly in East Texas, honed the litigation of asbestos claims to the point of almost mechanical regularity, improving the forensic identification of diseases caused by asbestos, refining theories of liability, and often settling large inventories of cases. See D. Hensler, W. Felstiner, M. Selvin, & P. Ebener, Asbestos in the Courts: The Challenge of Mass Toxic Torts vii (1985); McGovern, Resolving Mature Mass Tort Litigation, 69 B. U. L. Rev. 659, 660-661 (1989); see also App. to Pet. for Cert. 253a. Respondent Fibreboard Corporation was a defendant in the 1967 action. Although it was primarily a timber company, from the 1920’s through 1971 the company manufactured a variety of products containing asbestos, mainly for high-temperature industrial applications. As the tide of asbestos litigation rose, Fibreboard found itself litigating on two fronts. On one, plaintiffs were filing a stream of personal injury claims against it, swelling throughout the 1980’s and 1990’s to thousands of new claims for compensatory damages each year. Id., at 265a; App. 1040a. On the second front, Fibreboard was battling for funds to pay its tort claimants. From" } ]

[ { "docid": "4335886", "title": "", "text": "cancer research and risk and exposure assessment generally. It focuses largely on preventing hazards in the workplace, and therefore may not be the most appropriate agency to research these issues. For more information about the National Institute of Occupational Health and Safety of the Centers for Disease Control, see their website at http://www. cdc.gov/niosh/homepage.html. Congress or one of its committees or individual members might well initiate requests for necessary studies, with preliminary work from the Library of Congress. 2. Alternative Solutions There are a number of possible ways out of the asbestos crisis. Various alternatives have been discussed in more detail elsewhere. See, e.g., Bell, supra; Behrens, supra; Henderson & Twerski, supra; Hensler, supra; Issacharoff, supra; Behrens & Parham, supra; Rothstein, supra; Schuck, supra; Katherine L. Aschenbrenner et al., Notes for Remarks on Asbestos: New Problems and Proposed Solutions, 30 Product Safety and Liability Reporter 1053 (Nov. 25, 2002). They include no change in the status quo, new proposals for dealing with the asbestos problem through the tort system, and legislation. If matters remain as they are, an increasing number of bankruptcies will result and the American economy will be negatively impacted. See generally Stiglitz et al., supra. New proposals for dealing successfully with the asbestos problem through the court system, including a plaintiff class action, a defendant class action, or innovations in bankruptcy proceedings, are useful; more effective use of class actions would probably save industry billions of dollars and permit avoidance of bankruptcy in most cases. See Aschenbrenner et al., supra, at 1056. The most appropriate resolution to the asbestos problem may be through federal legislation. This was recognized by the Supreme Court in Amchem Products, Inc. v. Windsor, 521 U.S. 591, 597-98, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) and again in Ortiz v. Fibreboard Corp., 527 U.S. 815, 821, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999), when it emphasized the need for legislative intervention in the “elephantine mass of asbestos cases.” 527 U.S. at 821, 119 S.Ct. 2295. A number of possible outlines for such legislation have been published. See, e.g., Asbestos Compensation Act of 2000," }, { "docid": "10871253", "title": "", "text": "liability cases, and mass accident cases. Following a discussion of the Supreme Court’s landmark decision in this area, decisions of note in each of these three areas will be discussed. The leading Supreme Court case in the field of mass tort class certification is Am-chem Prods., Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). In Amchem, asbestos manufacturers and plaintiffs sought approval of a comprehensive settlement package that would provide a mandatory claims resolution procedure for all current and future asbestos-related personal injury claims. The Court held that the requirement under Rule 23(b)(3) that common questions predominate over individual issues was not met, because although class members shared the common experience of exposure to asbestos, they “were exposed to different asbestos-containing products, for different amounts of time, in different ways, and over different periods.” Id. at 624, 117 S.Ct. 2231 (citation omitted). Contrasting claims for consumer or securities fraud or antitrust violations, where the predominance test is “readily met,” the Court observed that ordinarily, certification in mass tort cases is “not appropriate.” Id. at 625, 117 S.Ct. 2231 (citing Advisory Committee Notes to Rule 23, Fed.R.Civ.P., 28 U.S.C.App., at 697). On the other hand, “mass tort cases arising from a common cause or disaster may, depending on the circumstances, satisfy the predominance requirement.” Id. While the rule “does not categorically exclude mass tort eases from class certification,” courts considering certification motions should exercise “caution when individual stakes are high and disparities among class members great.” Id. The passage in the Advisory Committee Notes to which the Court in Amchern referred reads as follows: A “mass accident” resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages but of liability and defenses of liability, would be present, affecting the individuals in different ways. In these circumstances an action conducted nominally as a class action would degenerate in practice into multiple lawsuits separately tried. Advisory Committee Notes to Rule 23, Fed.R.Civ.P., 28 U.S.C.App., at 697. Toxic Tort Cases Even before the Supreme" }, { "docid": "15263824", "title": "", "text": "the Recalled Pet Food Products.” . The four threshold requirements of Rule 23(a) are (1) numerosity (a \"class [so large] that joinder of all members is impracticable”); (2) commonality (\"questions of law or fact common to the class”); (3) typicality (named parties' claims or defenses \"are typical ... of the class”); and (4) adequacy of representation (representatives \"will fairly and adequately protect the interests of the class”). Fed.R.Civ.P. 23(a); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). In addition to the threshold requirements of Rule 23(a), parties seeking class certification must show that the action is maintainable under Rule 23(b)(1), (2), or (3). Rule 23(b)(3), the provision at issue in this case, provides for so-called \"opt-out” class actions suits. See Am-chem, 521 U.S. at 615, 117 S.Ct. 2231. Under Rule 23(b)(3), two additional requirements must be met in order for a class to be certified: (1) common questions must \"predominate over any questions affecting only individual members” (the \"predominance requirement”); and (2) class resolution must be \"superior to other available methods for the fair and efficient adjudication of the controversy” (the \"superiority requirement”). Fed. R.Civ.P. 23(b)(3). . The other component of the adequacy of representation inquiry — the qualifications of counsel to represent the class — is not at issue in this appeal. . The proposed class in Amchem encompassed, at minimum, hundreds of thousands of individuals who were, or may be in the future, injured by past exposure to asbestos products manufactured by one of more than 20 defendant companies. Amchem, 521 U.S. at 597, 117 S.Ct. 2231. The class representatives in Amchem, some of whom had diverse medical conditions as a result of asbestos exposure and some of whom had not yet manifested any asbestos-related condition, \"sought to act on behalf of a single giant class rather than on behalf of discrete subclasses.” Id. at 626, 117 S.Ct. 2231. The Supreme Court found that in \"significant respects, the interests of those within the single class [were] not aligned.” Id. \"Most saliently, for the currently injured, the critical goal [was] generous" }, { "docid": "4335887", "title": "", "text": "they are, an increasing number of bankruptcies will result and the American economy will be negatively impacted. See generally Stiglitz et al., supra. New proposals for dealing successfully with the asbestos problem through the court system, including a plaintiff class action, a defendant class action, or innovations in bankruptcy proceedings, are useful; more effective use of class actions would probably save industry billions of dollars and permit avoidance of bankruptcy in most cases. See Aschenbrenner et al., supra, at 1056. The most appropriate resolution to the asbestos problem may be through federal legislation. This was recognized by the Supreme Court in Amchem Products, Inc. v. Windsor, 521 U.S. 591, 597-98, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) and again in Ortiz v. Fibreboard Corp., 527 U.S. 815, 821, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999), when it emphasized the need for legislative intervention in the “elephantine mass of asbestos cases.” 527 U.S. at 821, 119 S.Ct. 2295. A number of possible outlines for such legislation have been published. See, e.g., Asbestos Compensation Act of 2000, H.R. 1283, 106th Cong. (1999) (introduced as the Fairness in Asbestos Compensation Act of 1999; companion bill to S. 758); Aschenbrenner et al., supra; The Asbestos Alliance, Proposed Legislative Solution, available at http://www.as- bestossolution.org/solution.html; see also GOP Leaders Plan to Take Up Asbestos Next Session, Congress Daily, Dec. 3, 2002, available at 2002 WL 102859633. Y. Conclusion It is vital for the Manville Trust to respond to recent trends, including the continuing rise in claims, the forced reduction in the pro rata amount paid on claims, and the “misallocation of available funds, inequitably favoring those who are less needy over those with more pressing asbestos-related injuries.” In re Joint E. & S. Dists. Asbestos Litig., 2001 WL 1464362 (E.D.N.Y.2001). Two major issues had to be addressed: inadequate required proof of illness and excessive allocation of resources to the unimpaired. With the courts’ encouragement, the Authorized Parties have acted appropriately to amend the trust distribution process pursuant to section K of the 1995 TDP. The 2002 TDP is a substantial improvement over the 1995 TDP. Despite" }, { "docid": "9890028", "title": "", "text": "OPINION OF THE COURT SCIRICA, Chief Judge. TABLE OF CONTENTS 199 OPINION OF THE COURT. A. B. Combustion Engineering’s Asbestos-Induced Bankruptcy . Issues Presented on Appeal. T Overview . T — i OO <M<M II. Background. A. Combustion Engineering. B. The Master Settlement Agreement. C. The Pre-Pack Plan. D. Plan Voting and Approval. E. The Bankruptcy Court Proceedings. F. District Court Proceedings and Plan Confirmation G. The Consolidated Appeals. 00 CO \"'ÑT LO t- 00 rH CO OOOOOOt — ít-H <NJ<N<Nl<MC<IC<IOa<NI TTT Ktandinn-A. Background.214 B. Objecting Insurers and London Market Insurers.215 C. Indemnified Insurers.220 D. Certain Cancer Claimants.223 ^ 1-H OJ IV. “Related to” Jurisdiction.224 A. Overview.225 B. Jurisdiction Over Independent Claims Against Non-Debtors .227 1. Corporate Affiliation.227 2. Financial Contributions.228 3. Related Liability.230 4. Shared Insurance .232 V. Section 105(a) Equitable Injunction . tO CO co A. The Requirements of Section 524(g)(4)(A) tO CO ox B. Section 105(a). tO CO cn 238 VI. Two-Trust Structure. 239 A. Discriminatory Treatment of Claims 242 B. Creation of the “Stub Claims”. VII. Going Concern Requirement: Section 524(g)(2)(b)(i)(II) 248 VIII. Conclusion. 248 This case involves twelve consolidated appeals from the District Court’s order approving Combustion Engineering’s bankruptcy Plan of Reorganization under 11 U.S.C. § 1101 et seq. We will vacate and remand. I.Overview For decades, the state and federal judicial systems have struggled with an avalanche of asbestos lawsuits. For reasons well known to observers, a just and efficient resolution of these claims has often eluded our standard legal process — where an injured person with a legitimate claim (where liability and injury can be proven) obtains appropriate compensation without undue cost and undue delay. See Fed. R.Civ.P. 1 (goal “to secure the just, speedy and inexpensive determination of every action”). The difficulties with asbestos litigation have been well documented by RAND and others. Efforts to resolve the asbestos problem through global settlement class actions under Fed.R.Civ.P. 23(b)(3) and 23(b)(1)(B) have so far been unsuccessful. See Amchem Prods. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (affirming denial of class certification of nationwide settlement class of asbestos claimants); Ortiz" }, { "docid": "6007659", "title": "", "text": "indirectly, of IKON Securities at prices which are alleged to have been wrongfully inflated during the Class Period.” Final Judgment H 6. By asking the court to issue a ruling further explaining this language, the ERISA plaintiffs effectively request a premature ruling on the res judicata or collateral estoppel effects of a settlement when these issues are not yet before the court. The facts will be developed subsequently in the ongoing Whetmcm litigation under this court’s supervision; before that, time, the court cannot speculate as to what specific effect this settlement will have. The ERISA plaintiffs suggest that to approve a settlement that could release the claims they describe would be unfair, and, in support, they rely on two Supreme Court decisions, Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), and Ortiz v. Fibreboard Corporation, Inc., 527 U.S. 815, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999), in which settlements were rejected in part because of their failure to address adequately the varying interests of different subclasses. These cases are distinguishable. Both settlements arose in the unique context of asbestos-related tort claims, a particularly troublesome area of the law that has repeatedly defied class-wide resolution and that, according to the Supreme Court, requires legislative action. See Ortiz, 119 S.Ct. at 2302. More significantly, Ortiz and Amchem address the appropriate treatment of subclasses in class action settlements. In this case, there has never been any request for certification of an ERISA subclass or suggestion that the ERISA plaintiffs’ interests are so divergent that class certification is inappropriate. Indeed, such claims would have little merit, at least based on the present record. On this point, some comparison to Amchem is helpful. There, the district judge approved the proposed settlement and found that common questions predominated based on class members’ shared exposure to asbestos products supplied by the defendants and their common interest in receiving prompt compensation for claims with minimal transaction cost. See Amchem, 521 U.S. at 622-23, 117 S.Ct. 2231. The Third Circuit and the Supreme Court rejected the settlement, finding that the class failed" }, { "docid": "16106895", "title": "", "text": "were not proper parties to that judgment, as we conclude below, res judicata cannot defeat their claims. Further, such collateral review would not, as defendants maintain, violate defendants’ due process rights by exposing them to double liability. Exposure to liability here is not duplicative if plaintiffs were never proper parties to the prior judgment in the first place. We therefore hold that a collateral attack to contest the application of res judi-cata is available. We turn next to the merits of this attack. C. Due Process Considerations and Res Judicata The doctrine of res judicata dictates that “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Kremer v. Chem. Constr. Corp., 456 U.S. 461, 466 n. 6, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982). Bes judicata ordinarily applies “if the earlier decision was (1) a final judgment on the merits, (2) by a court of competent jurisdiction, (3) in a case involving the same parties or their privies, and (4) involving the same cause of action.” Anaconda-Ericsson Inc. v. Hessen (In re Teltronics Servs., Inc.), 762 F.2d 185, 190 (2d Cir.1985). Plaintiffs’ argument focuses on element number three in the res judicata analysis: whether they are parties bound by the settlement. Plaintiffs rely primarily on the United States Supreme Court’s decisions in Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), and Ortiz v. Fibreboard Corp., 527 U.S. 815, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999). In Amchem, the Supreme Court confronted, on direct appeal, a challenge to class certification for settlement purposes in an asbestos litigation. The class defined in the complaint included both individuals who were presently injured as well as individuals who had only been exposed to asbestos. Amchem, 521 U.S. at 602 n. 5, 117 S.Ct. 2231. The Supreme Court held that this “sprawling” class was improperly certified under Federal Rules of Civil Procedure 23(a) and (b). Id. at 622-28, 117 S.Ct. 2231. Specifically, the Court held that Rule 23(a)(4)’s requirement" }, { "docid": "16106896", "title": "", "text": "their privies, and (4) involving the same cause of action.” Anaconda-Ericsson Inc. v. Hessen (In re Teltronics Servs., Inc.), 762 F.2d 185, 190 (2d Cir.1985). Plaintiffs’ argument focuses on element number three in the res judicata analysis: whether they are parties bound by the settlement. Plaintiffs rely primarily on the United States Supreme Court’s decisions in Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), and Ortiz v. Fibreboard Corp., 527 U.S. 815, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999). In Amchem, the Supreme Court confronted, on direct appeal, a challenge to class certification for settlement purposes in an asbestos litigation. The class defined in the complaint included both individuals who were presently injured as well as individuals who had only been exposed to asbestos. Amchem, 521 U.S. at 602 n. 5, 117 S.Ct. 2231. The Supreme Court held that this “sprawling” class was improperly certified under Federal Rules of Civil Procedure 23(a) and (b). Id. at 622-28, 117 S.Ct. 2231. Specifically, the Court held that Rule 23(a)(4)’s requirement that the named parties “ ‘will fairly and adequately protect the interests of the class’ ” had not been satisfied. Id. at 625-26, 117 S.Ct. 2231. The Court reasoned that named parties with diverse medical conditions sought to act on behalf of a single giant class rather than on behalf of discrete subclasses. In significant respects, the interests of those within the single class are not aligned. Most saliently, for the currently injured, the critical goal is generous immediate payments. That goal tugs against the interest of exposure-only plaintiffs in ensuring an ample, inflation-protected fund for the future. Id. at 626, 117 S.Ct. 2231. Amchem also implied, but did not decide, that the notice provided to exposure-only class members was likewise inadequate. The Court stated that, because many exposure-only individuals, may not be aware of their exposure or realize the ramifications of exposure, “those without current afflictions may not have the information or foresight needed to decide, intelligently, whether to stay in or opt out.” Id. at 627, 117 S.Ct. 2231. In Ortiz, the Supreme" }, { "docid": "20471430", "title": "", "text": "or relating to” language was necessarily confined to in rem claims against the Manville estate. But the bankruptcy court’s 2004 interpretation of the 1986 Orders is not so limited. Chubb does not, as a legal matter, seek to collect from the insurance policies that Travelers issued to Manville. Thus, contrary to the district court’s ruling, the bankruptcy court was not exercising its in rem power when it concluded that Chubb’s claims were enjoined. Therefore, the “special remedial scheme” due process “exception” relating to in rem bankruptcy proceedings is insufficient to sustain the bankruptcy court’s action as to Chubb. Finally, we are also unpersuaded by the district court’s conclusion that Chubb’s due process rights were satisfied by the bankruptcy court’s August 2, 1984 Notice of Hearing to Consider Approval of Compromise and Settlement of Insurance Litigation. Given the manner in which the 1986 Orders have been interpreted, we are placed in legal territory that is undoubtedly sui generis as to the due process question before us. But, because the 1986 Orders purport to bind Chubb’s in person-am claims, the better due process analogy in terms of notice and representation principles is to class action settlements, not in rem bankruptcy proceedings. As a result, we find Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) and Stephenson v. Dow Chemical Co., 273 F.3d 249 (2d Cir.2001) to be the pertinent authority. In Amchem, a group of asbestos manufacturers sought to achieve final resolution of their liability by attempting to settle future, unfiled claims by potential asbestos claimants. 521 U.S. at 600-01, 117 S.Ct. 2231. Their chosen litigation mechanism was a settlement-only class action pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. The manufacturers proposed a class of those who: (1) had not already filed an asbestos claim against the defendants, and (2) either had been exposed to asbestos or had family members who had been exposed. Id. at 603, 117 S.Ct. 2231. The lawyers purporting to act on behalf of this class “had no attorney-client relationship with such claimants,” id. at 601, 117" }, { "docid": "17924665", "title": "", "text": "class certification under both Rule 23(b)(2) and 23(b)(3), although they greatly prefer certification under the latter provision. Any analysis must be guided by two recent Supreme Court decisions in which the Court underscored the fundamental differences between mandatory class actions under Rules 23(b)(1) and (b)(2), and “opt-out” class actions under Rule 23(b)(3). The Supreme Court’s decision in Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), carefully examined the 1966 amendments to the Federal Rules of Civil Procedure creating Rule 23 and the types of class actions authorized under Rule 23(b)(1), (2) and (3). “Rule 23(b)(2) permits class actions for declaratory or injunctive relief where ‘the party opposing the class has acted or refused to act on grounds generally applicable to the class.’ ” The Supreme Court described the third category under Rule 23(b)(3) as the “most adventuresome” innovation. “Rule 23(b) added to the complex-litigation arsenal class actions for damages designed to secure judgments binding all class members save those who affirmatively elected to be excluded.” 521 U.S. at 614,117 S.Ct. 2231. In Amchem, the Supreme Court confronted an attempted expansion of Rule 23(b)(3). In that case, a group of lawyers filed a class action complaint identifying nine lead plaintiffs and members of their families as representing a class of all persons who had not yet filed an asbestos-related lawsuit against certain asbestos manufacturers but who had personally been exposed to asbestos or whose spouse or family member had been so exposed. A stipulated settlement accompanied the pleadings. The stipulation proposed to settle and preclude nearly all class members from litigating against CCR companies all claims not filed before January 15, 1993, involving compensation for present and future asbestos-related personal injury or death. 521 U.S. at 603, 117 S.Ct. 2231. The district court conditionally certified, under Federal Rule of Civil Procedure 23(b)(3), an encompassing opt-out class. 521 U.S. at 605, 117 S.Ct. 2231. The district court approved “the settling parties’ elaborate plan for giving notice to the class.” Id. at 606, 117 S.Ct. 2231. The district judge rejected objections to the proposed settlement, found" }, { "docid": "4335816", "title": "", "text": "of total spending on asbestos compensation. RAND Report 2002, supra, at 60-61; see also Amchem Products, Inc. v. Windsor, 521 U.S. 591, 598, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (“[Tjransaction costs exceed the victims’ recovery by nearly two to one; exhaustion of assets threatens and distorts the process; and future claimants may lose altogether.” (internal quotation and citation omitted)). As reflected in increased efficiency in claims processing of the Manville Trust, relative transaction costs have come down. Defense counsel fees have been reduced since so many claims are now handled by trusts administratively without resort to litigation. Plaintiff lawyers’ fees remain relatively high except when sharply limited as in the Manville 1995 and 2002 TDPs. Many workers can properly allege that they were exposed to many different manufacturers’ products. The number of suppliers of asbestos to whose products exposure arguably occurred is increased greatly by the transient nature of the work of so many of the claimants. Electronic production of papers for multiple claims against many potential defendants and trusts, with cheap electronic filing in courts and trusts all over the country, has substantially increased the leverage of the plaintiffs’ bar. The fact that trusts such as Manville pay only 5% or 10% of the approved claim is offset in many instances by the fact that the claimant will obtain compensation from many sources. See, e.g., RAND Report 2002, supra, at 40-41 (typical claimants today name 60 to 70 defendants); Judge Weiner Letter, supra (75,000 cases with 9,900,000 claims). 3. Manville Trust About July of 2000, the Manville Trust began to experience a dramatic and unanticipated rise in the number of claims being filed and expansion in scope of the industries and occupations which generated those claims. Over the last two years, that trend has continued. At the time of the bankruptcy proceedings in 1988, it was projected that the Trust would receive between eighty-three thousand and one hundred thousand claims over the life of the Trust. See Transcript Dec. 13, 2001, supra, at 9. This proved to be a gross under-estimate. In 2000 and 2001 alone, the Trust" }, { "docid": "9890029", "title": "", "text": "248 VIII. Conclusion. 248 This case involves twelve consolidated appeals from the District Court’s order approving Combustion Engineering’s bankruptcy Plan of Reorganization under 11 U.S.C. § 1101 et seq. We will vacate and remand. I.Overview For decades, the state and federal judicial systems have struggled with an avalanche of asbestos lawsuits. For reasons well known to observers, a just and efficient resolution of these claims has often eluded our standard legal process — where an injured person with a legitimate claim (where liability and injury can be proven) obtains appropriate compensation without undue cost and undue delay. See Fed. R.Civ.P. 1 (goal “to secure the just, speedy and inexpensive determination of every action”). The difficulties with asbestos litigation have been well documented by RAND and others. Efforts to resolve the asbestos problem through global settlement class actions under Fed.R.Civ.P. 23(b)(3) and 23(b)(1)(B) have so far been unsuccessful. See Amchem Prods. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (affirming denial of class certification of nationwide settlement class of asbestos claimants); Ortiz v. Fibreboard Corp., 527 U.S. 815, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999) (reversing grant of class certification in limited fund class action under Fed. R.Civ.P. 23(b)(1)(B)). More than once, the Supreme Court has called on. Congress to enact legislation creating a “national asbestos dispute-resolution scheme,” but Congress has yet to act. Amchem, 521 U.S. at 598, 117 S.Ct. 2231; Ortiz, 527 U.S. at 822, 119 S.Ct. 2295. For some time now, mounting asbestos liabilities have pushed otherwise viable companies into bankruptcy. The current appeal represents a major effort to extricate a debtor and two non-debtor affiliates from asbestos liability through a prepackaged Chapter 11 bankruptcy reorganization that includes 11 U.S.C. §§ 524(g) and 105(a) “channeling injunctions” ánd a post-confirmation trust fund for asbestos claimants. The Plan has been presented as a pre-packaged Chapter 11 reorganization plan, but it more closely resembles, in form and in substance, a liquidation of the debtor with a post-confirmation trust' funded in part by non-debtors. Although prepackaged bankruptcy may yet provide debtors and claimants with a vehicle for the" }, { "docid": "6934861", "title": "", "text": "in Battle v. Liberty National Life Insurance Co., 877 F.2d 877 (11th Cir.1989), to be in conflict with the Third Circuit's decision in Real Estate. We also note that the unique procedural posture of this case closely parallels that in Adams v. Southern Farm Bureau Life Insurance Co., 493 F.3d 1276 (11th Cir.2007). There, the defendant filed a \"Motion to Enforce Final Judgment” in the Middle District of Georgia, arguing that a 1999 class settlement approved by that court barred two Mississippi state court actions that were filed in 2005. Id. at 1278. The motion to enforce sought in part to enjoin the Mississippi litigation. Id. In opposition, the state court plaintiffs contended that they did not receive adequate notice in the prior class action, and therefore, permitting the class settlement to have res judicata effect would be inconsistent with due process. Id. at 1285. The class action court resolved the collateral challenge, holding there were no due process violations, although neither the district court nor the Eleventh Circuit addressed the issue of the appropriate forum. Id. at 1289. . In the district court, relying on Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), Juris contended that \"meaningful notice for 'future' claimants, such as Juris was, in fact, impossible.” In Amchem, although it did not decide the issue, the Supreme Court questioned whether constitutionally sufficient class notice could ever be given to exposure-only asbestos tort claimants. Id. at 628, 117 S.Ct. at 2252. The Court emphasized that many exposure-only individuals \"may not even know of their exposure, or realize the extent of the harm they may incur.” Id. Judge Pointer rejected this argument when raised by class objectors in 1998, and Judge Proctor did the same. According to Judge Proctor, unlike exposure-only asbestos tort claimants, who may not know of their exposure until they contract asbestos-related illnesses, all breast implant recipients — whether they have manifested injuries or not — know that they have had implants and are capable of being notified. Judge Proctor was additionally persuaded that the Amchem court’s concern that" }, { "docid": "20471431", "title": "", "text": "person-am claims, the better due process analogy in terms of notice and representation principles is to class action settlements, not in rem bankruptcy proceedings. As a result, we find Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) and Stephenson v. Dow Chemical Co., 273 F.3d 249 (2d Cir.2001) to be the pertinent authority. In Amchem, a group of asbestos manufacturers sought to achieve final resolution of their liability by attempting to settle future, unfiled claims by potential asbestos claimants. 521 U.S. at 600-01, 117 S.Ct. 2231. Their chosen litigation mechanism was a settlement-only class action pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. The manufacturers proposed a class of those who: (1) had not already filed an asbestos claim against the defendants, and (2) either had been exposed to asbestos or had family members who had been exposed. Id. at 603, 117 S.Ct. 2231. The lawyers purporting to act on behalf of this class “had no attorney-client relationship with such claimants,” id. at 601, 117 S.Ct. 2231, but the parties’ settlement applied to nearly all of the class’s future claims. See id. at 604, 117 S.Ct. 2231. For example, the agreement sought to enjoin, and provided no compensation for, certain types of claims that would otherwise have been available under state law. See id. at 604, 117 S.Ct. 2231. The district court conducted fairness hearings, certified the class, and ultimately approved the settlement. Id. at 608, 117 S.Ct. 2231. The Third Circuit vacated the district court’s orders, holding that factual and legal differences created “ ‘serious intra-class conflicts.’ ” Id. at 610, 117 S.Ct. 2231 (quoting Georgine v. Amchem Prods., Inc., 83 F.3d 610, 630 (3d Cir.1996)). The Supreme Court affirmed the court of appeals based on deficiencies in the proposed class under Rule 23. First, the Court held that the class could not satisfy the predominance requirement of Rule 23(b)(3) because, inter alia, “[differences in state law ... compounded] the[ ] disparities” in the interests of the class. Id. at 624, 117 S.Ct. 2231. Second, the Court held that" }, { "docid": "9884713", "title": "", "text": "In June 1997, the Georgine settlement was disapproved by the United States Supreme Court in Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). The Court had no quarrel with the settlement criteria set forth therein, but determined that the settlement did not comport with the requirements of Rule 23 of the Federal Rules of Civil Procedure. In its opinion in Am-chem, the Supreme Court urged Congress to implement legislation to establish an asbestos dispute-resolution system, explaining that “a nationwide administrative claims processing regime would provide the most secure, fair, and efficient means of compensating victims of asbestos exposure.” Id. at 628-29, 117 S.Ct. 2231. In the wake of Amehem, a number of companies formed the Coalition for Asbestos Resolution (“CAR”), the goal of which was to work toward the adoption of legislation estáblishing a fair and efficient administrative facility for resolving asbestos claims. When it was formed, CAR’s members included Kaiser Aluminum Corporation (“Kaiser Aluminum”), Georgia-Pacific Corporation (“Georgia-Pacific”), Westinghouse, United States Gypsum Company (“US Gypsum”), ABB Combustion Engineering, Turner & Newell PLC (“Turner”), Armstrong and GAF. The Fairness in Asbestos Compensation Act (“FACA” or the “Act”) was first introduced in October 1998, near the end of the 105th Congress. With the support of GAF and the CAR, it was reintroduced at the start of the 106th Congress in early 1999. The legislation, which was co-sponsored by over 102 Republican and Democratic senators and congressmen, was designed to compensate individuals who are actually sick and to defer resolution of the claims of “non-sick” individuals until such time as those individuals actually developed an asbestos-related illness. Pursuant to the Act, an industry-funded national claims facility was to be created that would have applied essentially the same objective medical criteria that were embodied in the Georgine settlement. These criteria have been approved by-leaders in the public health community, including Dr. Louis W. Sullivan, former Secretary of the Department of Health and Human Services, who testified before the House Judiciary Committee that the criteria contained “generous” impairment guidelines that are “designed to ensure that no individual suffering" }, { "docid": "19186357", "title": "", "text": "to do so. The plaintiffs rely on a recent decision of the United States Supreme Court, and several lower court opinions applying that decision, to argue that the Court should defer an examination of the named-plaintiffs’ ability to represent unnamed plaintiffs with claims under the laws of states in which the named plaintiffs are not located or have members until the class certification stage of litigation. Opp’n at 18.' The plaintiffs rely on Ortiz v. Fibreboard Corporation, 527 U.S. 815, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999), for the proposition that class certification must come before an examination of the named plaintiffs’ ability to assert the claims of unnamed parties to a class action. Ortiz involved a global settlement of claims against a manufacturer of asbestos-containing products. The issue before the Court in Ortiz was the propriety of the district court’s certification of a class consisting of all persons with personal injury claims against Fibreboard [the manufacturer] for asbestos exposure who had not yet brought suit or settled their claims before the previous August 27; those who had dismissed such a claim but retained the right to bring a future action against Fi-breboard; and “past, present and future spouses, parents, children, and other relatives” of class members exposed to Fibre-board asbestos. Id. at 826-27, 119 S.Ct. 2295 (internal quotations omitted). Before reaching the issue of the certification’s propriety under Rule 23, the Supreme Court addressed the petitioners’ argument that the class claims were nonjusticiable under Article III of the Constitution for lack of standing. The petitioners argued that “this is a feigned action initiated by Fibreboard to control its future asbestos tort liability, with the ‘vast majority’ of the ‘exposure-only’ class members being without injury in fact and hence without standing to sue.” Id. at 831, 119 S.Ct. 2295. Notably, the petitioners attacked the standing of the absent class members and not the standing of the named plaintiffs. In that context, the Supreme Court followed its decision in Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), and deferred consideration of Article III standing" }, { "docid": "9890030", "title": "", "text": "v. Fibreboard Corp., 527 U.S. 815, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999) (reversing grant of class certification in limited fund class action under Fed. R.Civ.P. 23(b)(1)(B)). More than once, the Supreme Court has called on. Congress to enact legislation creating a “national asbestos dispute-resolution scheme,” but Congress has yet to act. Amchem, 521 U.S. at 598, 117 S.Ct. 2231; Ortiz, 527 U.S. at 822, 119 S.Ct. 2295. For some time now, mounting asbestos liabilities have pushed otherwise viable companies into bankruptcy. The current appeal represents a major effort to extricate a debtor and two non-debtor affiliates from asbestos liability through a prepackaged Chapter 11 bankruptcy reorganization that includes 11 U.S.C. §§ 524(g) and 105(a) “channeling injunctions” ánd a post-confirmation trust fund for asbestos claimants. The Plan has been presented as a pre-packaged Chapter 11 reorganization plan, but it more closely resembles, in form and in substance, a liquidation of the debtor with a post-confirmation trust' funded in part by non-debtors. Although prepackaged bankruptcy may yet provide debtors and claimants with a vehicle for the general resolution of asbestos liability, we find the Combustion Engineering Plan defective for the reasons set forth. ■ A. Combustion Engineering’s Asbestos-Induced Bankruptcy Combustion Engineering defended asbestos-related litigation for nearly four decades until mounting personal injury liabilities eventually brought the company to the brink of insolvency. In the fall of 2002, Combustion Engineering and its parent company,' Asea Brown Boveri, Inc. (“U.S.ABB”), attempted to > resolve Combustion Engineering’s asbestos problems, as well as those of two U.S. ABB affiliates, ABB Lummus Global, Inc, and Basic, Inc., through a pre-packaged Chapter 11 bankruptcy reorganization. To this end, Combustion Engineering contributed half of its assets • to a pre-petition trust (the “CE Settlement Trust”) to pay asbestos , claimants with pending lawsuits for part, but not ,the entire amount, of their claims. The remaining, unpaid portion of these claims, known as “stub claims,” provided prepetition trust participants with creditor status under the Bankruptcy Code. Combustion Engineering then filed a prepackaged bankruptcy Plan of Reorganization under Chapter 11. The centerpiece of the Plan is an injunction in favor" }, { "docid": "20462123", "title": "", "text": "OPINION OF THE COURT SCIRICA, Circuit Judge. Federal-Mogul Global and its affiliates filed for Chapter 11 bankruptcy and sought to resolve asbestos-related liability through the creation of a personal-injury trust under 11 U.S.C. § 524(g). As part of its reorganization plan, it sought to transfer rights under insurance liability policies to the trust. Appellants Insurers had provided liability policies to the debtors prior to bankruptcy and objected that the transfer violated the policies’ anti-assignment provisions. Federal-Mogul contended that 11 U.S.C. § 1123(a)(5)(B) preempts those provisions, and the bankruptcy and district courts agreed. We will affirm. I. A. For almost two decades, Chapter 11 bankruptcies have employed a statutory mechanism created by 11 U.S.C. § 524(g) to resolve massive asbestos liability and to evaluate claims and allocate payments to current and future asbestos claimants. When this provision’s requirements are satisfied, the bankruptcy court may issue an injunction channeling all current and future claims based on the debtor’s asbestos liability to a personal injury trust. This case centers on these trusts. The salience of § 524(g) trusts stems from the ongoing dilemma of asbestos liability, “the longest-running mass tort litigation in the United States.” Stephen J. Carroll et al., RAND Inst, for Civil Justice, Asbestos Litigation 21-24 (2005). As courts and commentators have noted, a just and efficient resolution of asbestos claims has often eluded the traditional tort system. See In re Congoleum Corp., 426 F.3d 675, 693 (3d Cir.2005); In re Combustion Eng’g, Inc., 391 F.3d 190, 200 (3d Cir.2004); see also Richard A. Nagareda, Mass Torts in a World of Settlement x-xiii (2007). The aggregate pressure of such claims has led to a variety of quasi-administrative approaches to asbestos liability, but Congress has yet to create the “national asbestos dispute-resolution scheme” requested by the Supreme Court, Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 598, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (citing Judicial Conference of the U.S., Report of the Judicial Conference Ad Hoc Committee on Asbestos Litigation 3, 27-35 (1991)); see also Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 & n. 1, 119 S.Ct. 2295, 144 L.Ed.2d" }, { "docid": "10871252", "title": "", "text": "from participating in an oil pipeline construction project in Myanmar (Burma). Id. at 1147. The court found that the plaintiffs, who had alleged that they were victims of forced labor, forced relocation, and various forms of cruel, inhuman, and degrading treatment in connection with the pipeline construction project, did not have standing to seek injunctive relief because an injunction against the corporation would be unlikely to redress their injuries given that “the cessation of these alleged illegal acts would depend on the independent actions of companies and governmental entities who are not parties to this lawsuit.” Id. See also Doe I v. Unocal Corp., 395 F.3d 932, 943, 954 n. 31, 955 (9th Cir.2002), reh’g en banc granted by 395 F.3d 978 (9th Cir.2003). (2) Mass Tort Litigation Class certification decisions in mass tort cases offer additional guidance in analyzing the predominance of common questions over individual issues in a case in which class members have suffered physical injuries. Of particular relevance are three categories of mass tort cases: pollution or “toxic tort” cases, product liability cases, and mass accident cases. Following a discussion of the Supreme Court’s landmark decision in this area, decisions of note in each of these three areas will be discussed. The leading Supreme Court case in the field of mass tort class certification is Am-chem Prods., Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). In Amchem, asbestos manufacturers and plaintiffs sought approval of a comprehensive settlement package that would provide a mandatory claims resolution procedure for all current and future asbestos-related personal injury claims. The Court held that the requirement under Rule 23(b)(3) that common questions predominate over individual issues was not met, because although class members shared the common experience of exposure to asbestos, they “were exposed to different asbestos-containing products, for different amounts of time, in different ways, and over different periods.” Id. at 624, 117 S.Ct. 2231 (citation omitted). Contrasting claims for consumer or securities fraud or antitrust violations, where the predominance test is “readily met,” the Court observed that ordinarily, certification in mass tort cases is" }, { "docid": "20462124", "title": "", "text": "stems from the ongoing dilemma of asbestos liability, “the longest-running mass tort litigation in the United States.” Stephen J. Carroll et al., RAND Inst, for Civil Justice, Asbestos Litigation 21-24 (2005). As courts and commentators have noted, a just and efficient resolution of asbestos claims has often eluded the traditional tort system. See In re Congoleum Corp., 426 F.3d 675, 693 (3d Cir.2005); In re Combustion Eng’g, Inc., 391 F.3d 190, 200 (3d Cir.2004); see also Richard A. Nagareda, Mass Torts in a World of Settlement x-xiii (2007). The aggregate pressure of such claims has led to a variety of quasi-administrative approaches to asbestos liability, but Congress has yet to create the “national asbestos dispute-resolution scheme” requested by the Supreme Court, Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 598, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (citing Judicial Conference of the U.S., Report of the Judicial Conference Ad Hoc Committee on Asbestos Litigation 3, 27-35 (1991)); see also Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 & n. 1, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999). Initial attempts to employ the class action device to resolve the claims of present and future asbestos victims failed to adequately protect the interests of absent class members. Amchem, 521 U.S. at 625-28, 117 S.Ct. 2231; Ortiz, 527 U.S. at 848-59, 119 S.Ct. 2295. A consequence of the failure to create a comprehensive resolution to asbestos litigation has been a- reliance on the Bankruptcy Code to provide some predictability and regularity in addressing mass tort liability. Bankruptcy has proven an attractive alternative to the tort system for corporations because it permits a global resolution and discharge of current and future liability, while claimants’ interests are protected by the bankruptcy court’s power to use future earnings to compensate similarly situated tort claimants equitably. S. Elizabeth Gibson, Fed. Judicial Ctr., Judicial Management of Mass Tort Bankruptcy Cases 1-2 (2005). The primary bankruptcy innovation for addressing mass tort liability has been the post-confirmation trust, which first appeared in the bankruptcy proceedings of the JohnsManville Corporation, the largest producer of asbestos-containing products. Lloyd Dixon et al., RAND" } ]

[ { "docid": "23432950", "title": "", "text": "curtailment of cross-examination on this point, and the Government stipulated at trial that Morris had received some pay, although for matters unrelated to this case. . 18 U.S.C. § 3503(íj) reads as follows: “Whenever due to exceptional circumstances it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved, the court at any time after the filing of an indictment or information may upon motion of such party and notice to the parties order that the testimony of such witness be taken by deposition and that any designated book, paper, document, record, recording, or other material not privileged be produced at the same time and place. If a witness is committed for failure to give bail to appear to testify at a trial or hearing, the court on written motion of the witness and upon notice to the parties may direct that his deposition be taken. After the deposition has been subscribed the court may discharge the witness. A motion by the Government to obtain an order under this section shall contain certification by the Attorney General or his designee that the legal proceeding is against a person who is believed, to have participated in an organized criminal activity.” . H.R.Rep. No. 91-1549, B^.Code Cong. & Admin.News, pp. 4007, 4025 (1970). . House Committee Report, supra, note 4. . A better analogy would be to various statutes, e. g. 18 U.S.C. §§ 2514, 3486(c), 6003, which require the approval of the Attorney General of a United States Attorney’s decision that it is in the public interest to grant immunity to a witness in order to compel his testimony. The courts have accepted such approval as they have construed it as beyond their jurisdiction to make their own determination of whether or not the grant of immunity is justified in the public interest, Ullmann v. United States, 350 U.S 422, 432-434, 76 S.Ct. 497, 100 L.Ecl 511 (1956). Cf., In re Russo, 448 F.2d 369 (9 Cir. 1971); and Licata v. United States, 429 F.2d 1177 (9 Cir.), vac. as moot," } ]

[ { "docid": "12086668", "title": "", "text": "that state court is without jurisdiction, without reference to tribal jurisdiction, is adequate). In fact,, only two courts of appeals, the Second Circuit and the Eleventh Circuit, have addressed this question. In United States v. Vancier, 515 F.2d 1378 (2d Cir.), cert. denied, 423 U.S. 857, 96 S.Ct. 107, 46 L.Ed.2d 82 (1975), the Second Circuit held that it could not review the certification. Vancier contended that, although the government correctly certified that the New York State Juvenile Court did not have jurisdiction over him, he was subject to the jurisdiction of an appropriate court, the New York City Criminal Court. The government countered that the Youthful Offender Program in the city court was not an adequate substitute for the state juvenile court. In finding that the certification was not subject to judicial review, the court noted that the Act contains no provision for judicial review of the Attorney General’s certification and no standards by which to evaluate whether an appropriate court has jurisdiction or whether adequate programs and services exist. Id. at 1380. Further, the court recognized several instances where the executive branch is granted unreviewable discretion in law enforcement matters: the grant of immunity to compel testimony, certification that a proceeding is against someone believed to have participated in organized crime, and certification that an interlocutory appeal is not taken solely for delay. Id. at 1381. Thus, the court held that the certification “falls into the category of unreviewable determinations to be made, in this instance, by the Attorney General.” Id. The Eleventh Circuit, in United States v. C.G., 736 F.2d 1474, 1477-78 (11th Cir.1984), relying on Vancier, held that an appellate court “may not inquire into the correctness of the statements made in the certification. Indeed, such an inquiry is appropriate only when the juvenile has established bad faith on the part of the government.” The court did not preclude review of a certification to insure compliance with section 5032. “[T]he court may reject a certification where the certifying party is not a proper delegate of the Attorney General, where the certification is not filed in a" }, { "docid": "8414793", "title": "", "text": "I.D.P. as adults, therefore, we first must decide whether the government’s certification that endows the federal court with jurisdiction over this case is subject to judicial review. A. Certification In United States v. C.G., 736 F.2d 1474 (11th Cir.1984), we examined whether the Attorney General’s certification necessary to invoke federal jurisdiction under either of the first two statutorily prescribed categories — in other words, that the state either does not have-or refuses to assume jurisdiction over a juvenile or, in the alternative, does not have programs available to meet the needs of juveniles — was amenable to our review. We resolved that certification under section 5032 generally was not reviewable. Several exceptions to this rule were explicitly noted: We acknowledged, for instance, that a court could review a certification for formal compliance with the statute. We further established that review was proper where the juvenile had alleged that the government had certified the action in bad faith. See id. at 1478. In the absence of a purely formal error on the face of the certification or proof of bad faith on the part of the government, we concluded that certifications made in accord with section 5032 customarily “must be accepted as final.” Id. In reaching this determination, we adopted the Second Circuit’s approach to this issue as articulated in United States v. Vancier, 515 F.2d 1378 (2d Cir.), cert. denied, 423 U.S. 857, 96 S.Ct. 107, 46 L.Ed.2d 82 (1975). In Vancier, the court’s legal analysis was grounded in part on the observation that section 5032 not only failed to set forth standards by which the court could determine the appropriateness of certification bút also served to qualify prosecuto-rial discretion rather than confer upon the courts the power to decide in which forum to bring juvenile delinquency eases. See Vancier, 515 F.2d at 1380-81. Moreover, we found persuasive the Vancier court’s reference to other instances in which courts have found decisions made by the executive branch in connection with law enforcement matters to be non-reviewable. See United States v. C.G., 736 F.2d at 1478 (citing Vancier, 515 F.2d at 1381" }, { "docid": "5580766", "title": "", "text": "as, for instance, that the state lacks “adequate” services and programs, or on the assertion of legal “facts” and conclusions such as the lack of state court jurisdiction (Vancier, C.G.) or that the charge involves a “crime of violence” (Male Juvenile). Whether there is a “substantial Federal interest,” however, comes closer to the sort of discretionary decision more commonly thought of as the type of prosecutorial decisions that are immune from judicial review. See Vancier, 515 F.2d at 1381 (noting “several instances in which it has been held that members of the executive branch are authorized to make certain unreviewable determinations in connection with law enforcement matters”). The Attorney General’s decision in this regard is perhaps entitled to more deference than a determination that a given offense is a “crime of violence.” Nevertheless, we believe that the intent of Congress was that a court must first satisfy itself that there is indeed a substantial interest before jurisdiction can be assumed over the juvenile. D The lack of a specific provision addressing judicial review is in and of itself no bar to review. In Gutierrez de Martinez v. Lamagno, — U.S. -, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995), the Court analyzed a similar question of “who decides” in the context of the scope-of-employment certification under the Westfall Act. Because the text of the statute was ambiguous, the Court “adopt[ed] the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review and that mechanical judgments are not the kind federal courts are set up to render.” Id. at-, 115 S.Ct. at 2236. The Court found nothing in the language of the statute or in the legislative history to indicate that the scope-of-employment decision was intended to be unreviewable. The Court also noted two considerations that militated in favor of finding that the decision was reviewable. First, there is often a financial incentive present in the scope-of-employment decision, and second, the certification decision itself is dispositive of the controversy. Id. at-, 115 S.Ct. at 2227. The structure of § 5032 is similar to the" }, { "docid": "5580796", "title": "", "text": "F.2d 1224, 1226 (3d Cir.1979), and certification by the Attorney General under 18 U.S.C. § 3503(a) that the subject of a deposition to preserve testimony is believed to have participated in organized crime, see United States v. Ricketson, 498 F.2d 367, 374 (7th Cir.), cert. denied, 419 U.S. 965, 95 S.Ct. 227, 42 L.Ed.2d 180 (1974); United States v. Singleton, 460 F.2d 1148, 1154 (2d Cir.1972), cert. denied, 410 U.S. 984, 93 S.Ct. 1506, 36 L.Ed.2d 180 (1973). None of this calls into question our authority to review a certification for compliance with the formal requirements of section 5032. See United States v. C.G., 736 F.2d 1474, 1477 (11th Cir.1984). But the statute forecloses us from reexamining whether there exists a “substantial Federal interest in the case or the offense to warrant the exercise of Federal jurisdiction.” 18 U.S.C. § 5032. We have our job to do under the statute, and the prosecutors have theirs. I would thus hold, as did the district court, that the certification of a “substantial Federal interest” is immune from judicial review. . The factors are: \"the age and social background of the juvenile; the nature of the alleged offense; the extent and nature of the juvenile’s prior delinquency record; the juvenile’s present intellectual development and psychological maturity; the nature of past treatment efforts and the juvenile's response to such efforts; the availability of programs designed to treat the juvenile’s behavioral problems.” 18 U.S.C. § 5032. . The Supreme Court’s decision in Gutierrez de Martinez v. Lamagno, - U.S. -, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995), supporting judicial review of the Attorney General's certification under the Westfall Act that an employee was acting within the scope of his employment, turned on concerns not at issue here. Two considerations \"weigh[ed] heavily” on the Court's decision — that the Attorney General argued in favor of judicial review of certification, and that certification was \"dispositive of a court controversy.” Id. at-, 115 S.Ct. at 2231. Neither of these concerns exists here. See Juvenile Male, 915 F.Supp. at 795; W.P., Jr., 898 F.Supp. at 850; see also United" }, { "docid": "23248028", "title": "", "text": "a transfer to adult status would be “in the interest of justice.” Furthermore, the section emphasizes that those factors “shall be considered” and that “findings with regard to each factor shall be made.” Id. (emphases added). Section 5032 specifically prescribes the judicial role in determining the propriety of a transfer and directs the course of the judicial inquiry in painstaking detail. The level of specific instruction to judges in this area stands in stark contrast to the statute’s silence on any standards to guide or by which to evaluate an Attorney General’s certification decision. The certification decision is no different than several other determinations committed solely to a prosecutor’s discretion. Obviously, first and foremost among this genre is the ultimate decision to prosecute someone in federal court (unless motivated by unconstitutional bad faith). Other decisions of this sort include a U.S. Attorney’s certification that an interlocutory appeal in certain classes of cases is undertaken to secure the use of “substantial,” material evidence rather than for the purpose of delay. See 18 U.S.C. § 3731; United States v. Comiskey, 460 F.2d 1293, 1298 (7th Cir.1972). A federal prosecutor also has unreviewable power to decide that the “public interest” demands granting immunity to a witness in order to compel that witness’s testimony. See 18 U.S.C. § 6002; Ullmann v. United States, 350 U.S. 422, 431-34, 76 S.Ct. 497, 502-04, 100 L.Ed. 511 (1956). The certification requirement, therefore, is just another decision in this mold and may be reviewed — like these other determinations — only for the aforementioned unconstitutional bad faith and technical compliance. The “substantial Federal interest” standard, without any further explanation, might seem an odd phrase to courts, but it is a term of art with which executive officials are very familiar. The term is used throughout the United States Attorneys’ Manual as the touchstone of all exercises of federal prosecu-torial discretion. See Juvenile No. 1, 118 F.3d at 305-06. For instance, the Manual advises U.S. Attorneys to abstain from initiating proceedings if “[n]o substantial federal interest would be served by prosecution.” U.S. Dept. of Justice, U.S. Attorneys’ Manual §" }, { "docid": "7021951", "title": "", "text": "substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute. Id. at 607-08, 105 S.Ct. at 1530-31. Other unreviewable acts of prosecutorial discretion include the Attorney General’s decision under 28 U.S.C. § 594(e) to refer jurisdiction over a matter to an independent counsel, see Tucker, 78 F.3d at 1316-19; a United States Attorney’s decision under 18 U.S.C. § 6003 that compelling a witness to testify is in the public interest, see Ullmann v. United States, 350 U.S. 422, 431-34, 76 S.Ct. 497, 502-04, 100 L.Ed. 511 (1956); a United States Attorney’s certification under 18 U.S.C. § 3731 that an appeal from an adverse suppression ruling is not taken for purposes of delay and involves evidence material to the proceedings, see United States v. Kepner, 843 F.2d 755, 761 (3d Cir.1988); the Attorney General’s certification under 18 U.S.C. § 3503(a) that the subject of a deposition to preserve testimony is believed to have participated in organized crime, see United States v. Ricketson, 498 F.2d 367, 374 (7th Cir.1974); and a United States Attorney’s decision under the Justice Department’s Petite Policy to prosecute a defendant in federal court after the defendant has faced state charges for the same underlying conduct, see Delay v. United States, 602 F.2d 173, 178-79 (8th Cir.1979). To determine if Congress intended § 5032 to allow judicial review of a United States Attorney’s certification that the federal prosecution of a juvenile would serve a substantial federal interest, we look to the text and structure of the statute, see Kifer v. Liberty Mut. Ins. Co., 777 F.2d 1325, 1332 (8th Cir.1985) (“[W]e are guided by the ‘cardinal rule’ that our primary object is to determine and to effectuate the legislative intent as gleaned from the language of the statute .considered in its entirety.”), as well as any additional factors that may illuminate § 5032’s purpose. See, e.g., Gutierrez, 515 U.S. at 424, 115 S.Ct. at 2231 (relying heavily on two additional considerations to find reviewability: (1) the Attorney General advocated reviewability, because there was a financial incentive for a United States Attorney to certify;" }, { "docid": "5580765", "title": "", "text": "That there is a clear congressional intent to limit the types of eases that the executive should bring in federal court does not necessarily implicate a concomitant judicial power to look behind such decision. Nevertheless, although neither Juvenile Male nor Male Juvenile provides a completely satisfactory rationale, we are of the opinion that the “substantial interest” and other prongs of the certification statute act as limits on the federal courts’ jurisdiction to act in this sphere. C It should be beyond serious argument that the courts should review compliance with the essentially technical requirements of § 5032, such as the proper certifying party (United States v. Cuomo, 525 F.2d 1285, 1287 (5th Cir.1976)), timeliness of the certification (id at 1289; United States v. Baker, 10 F.3d 1374, 1396 (9th Cir.1993), cert. denied — U.S. -, 115 S.Ct. 330, 130 L.Ed.2d 289 (1994)), inclusion of the statutory language (Juvenile Male), or the age of the juvenile. The issue of reviewability is a closer one when certification is based on a judgment call by the prosecutor such as, for instance, that the state lacks “adequate” services and programs, or on the assertion of legal “facts” and conclusions such as the lack of state court jurisdiction (Vancier, C.G.) or that the charge involves a “crime of violence” (Male Juvenile). Whether there is a “substantial Federal interest,” however, comes closer to the sort of discretionary decision more commonly thought of as the type of prosecutorial decisions that are immune from judicial review. See Vancier, 515 F.2d at 1381 (noting “several instances in which it has been held that members of the executive branch are authorized to make certain unreviewable determinations in connection with law enforcement matters”). The Attorney General’s decision in this regard is perhaps entitled to more deference than a determination that a given offense is a “crime of violence.” Nevertheless, we believe that the intent of Congress was that a court must first satisfy itself that there is indeed a substantial interest before jurisdiction can be assumed over the juvenile. D The lack of a specific provision addressing judicial review is in" }, { "docid": "923629", "title": "", "text": "issue of adequate programs and services. The certification requirement imposed by Congress qualifies the Government’s prose-cutorial discretion to bring juvenile de linquency cases in the district courts, but it does not grant the power to the courts to make the final decision. In United States v. Carter, 493 F.2d 704, 707-08 & n.3 (2d Cir. 1974), this court recently noted several instances in which it has been held that members of the executive branch are authorized to make certain unreviewable determinations in connection with law enforcement matters. See, e. g., Ullman v. United States, 350 U.S. 422, 431-34, 76 S.Ct. 497, 100 L.Ed. 511 (1956) (determination by United States Attorney that the public interest requires that a witness be compelled to testify under a grant of immunity); United States v. Singleton, 460 F.2d 1148, 1153-55 (2d Cir. 1972), cert. denied, 410 U.S. 984, 93 S.Ct. 1506, 36 L.Ed.2d 180 (1973) (certification of Attorney General that proceeding is against a person believed to have participated in organized crime); United States v. Comiskey, 460 F.2d 1293, 1297—98 (7th Cir. 1972) (certification of United States Attorney that interlocutory appeal is not being taken for purposes of delay). We conclude that the certification called for by § 502, 18 U.S.C.A. § 5032 (Supp.1975), also falls into the category of unreviewa-ble determinations to be made, in this instance, by the Attorney General. See note 1 supra, Moreover, even if judicial review of the certification were proper, and we hold that it is not, we would nevertheless reject appellant’s contention that the certification is in error or that a hearing is necessary to determine if it is in error. As the Government stated in the district court, there are several significant deficiencies in the New York youthful offender program, as compared to the federal juvenile delinquency system. These include the criminal nature of youthful offender proceedings up to the time of sentencing and the lack of special provisions for a mode of detention suitable for juveniles. Congress clearly considered it essential that juveniles not be incarcerated together with adult criminals at any time and that every" }, { "docid": "67780", "title": "", "text": "substantial Federal interest which would warrant the exercise of Federal jurisdiction. The United States counters that such a Federal interest does exist, and that in any event, this Court does not have the authority to review the United States Attorney’s certification. The case law relating to the reviewability of the Attorney General’s certification of juveniles is somewhat sparse. In United States v. Hill, 538 F.2d 1072 (1976), the Fourth Circuit declined to decide the issue as it was unnecessary on the facts of that case. Other Circuits, however, have addressed the question of the reviewability of § 5032 certifications generally, but none has yet spoken on the issue of the reviewability of a finding of substantial Federal interest . In United States v. Vancier, 515 F.2d 1378 (2nd Cir.1975), cert. denied 423 U.S. 857 (1975), the Second Circuit held that certification is not subject to judicial review. That case involved a challenge to the Attorney General’s certification that no appropriate state court had jurisdiction over the defendant, since although the New York State Juvenile Court did not have jurisdiction, the New York City Criminal Court did. The Court found that the Act contains no provision for judicial review of certification and no standards by which to evaluate whether an appropriate court has jurisdiction or whether adequate programs and services exist . The Eleventh Circuit in United States v. C.G., 736 F.2d 1474 (1984) , threw out a challenge to certification based on a claim that, contrary to the certification, a state court actually did have jurisdiction. The Court adopted the reasoning of Vancier and held that absent bad faith, a certification is only reviewable for compliance with § 5032, not for the truth of the matters certified. The Eighth Circuit, however, distinguished Vancier and C.G. when it spoke on the issue. In U.S. v. Juvenile Male, 923 F.2d 614 (8th Cir.1991), certification was challenged by a juvenile charged with conspiring to travel in interstate commerce for the purpose of committing a murder on the grounds that the conspiracy was not a crime of violence. The Court found review proper since" }, { "docid": "12086669", "title": "", "text": "the court recognized several instances where the executive branch is granted unreviewable discretion in law enforcement matters: the grant of immunity to compel testimony, certification that a proceeding is against someone believed to have participated in organized crime, and certification that an interlocutory appeal is not taken solely for delay. Id. at 1381. Thus, the court held that the certification “falls into the category of unreviewable determinations to be made, in this instance, by the Attorney General.” Id. The Eleventh Circuit, in United States v. C.G., 736 F.2d 1474, 1477-78 (11th Cir.1984), relying on Vancier, held that an appellate court “may not inquire into the correctness of the statements made in the certification. Indeed, such an inquiry is appropriate only when the juvenile has established bad faith on the part of the government.” The court did not preclude review of a certification to insure compliance with section 5032. “[T]he court may reject a certification where the certifying party is not a proper delegate of the Attorney General, where the certification is not filed in a timely fashion, or where the certification fails to state that the state courts lack or decline jurisdiction or lack appropriate juvenile services.” Id. at 1477 (citations omitted). Given proper compliance with section 5032, the court declined to review the factual accuracy of the statement that the Alabama state courts did not have jurisdiction over C.G. Id. Neither of the above cases persuades us that we cannot review the certification here. In Vancier, the court’s decision was based on a lack of standards by which to review the correctness of the certification and the fact that the statute, while qualifying the government’s prosecutorial discretion, does not grant the court the power to decide which juvenile cases should be brought in federal court. Vancier, 515 F.2d at 1380-81. And, in C.G., the court recognized that it could review a certification for compliance with section 5032. C.G., 736 F.2d at 1477. Here, no question exists as to the standard we should apply to determine whether the crime alleged is one of the crimes that Congress has determined merits" }, { "docid": "7021950", "title": "", "text": "607, 105 S.Ct. 1524, 1530-31, 84 L.Ed.2d 547 (1985) (“So long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” (quotations, citations, and alteration omitted)). The Supreme Court explained that: This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular con- eern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmak-ing to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy. All these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute. Id. at 607-08, 105 S.Ct. at 1530-31. Other unreviewable acts of prosecutorial discretion include the Attorney General’s decision under 28 U.S.C. § 594(e) to refer jurisdiction over a matter to an independent counsel, see Tucker, 78 F.3d at 1316-19; a United States Attorney’s decision under 18 U.S.C. § 6003 that compelling a witness to testify is in the public interest, see Ullmann v. United States, 350 U.S. 422, 431-34, 76 S.Ct. 497, 502-04, 100 L.Ed. 511 (1956); a United States Attorney’s certification under 18 U.S.C. § 3731 that an appeal from an adverse suppression ruling is not taken for purposes of delay and involves evidence material to the proceedings, see United States v. Kepner, 843 F.2d 755, 761 (3d Cir.1988); the Attorney General’s certification under 18 U.S.C. § 3503(a) that the subject of a deposition to preserve testimony is believed to have participated in organized crime, see United States v. Ricketson, 498 F.2d 367, 374 (7th Cir.1974); and a United" }, { "docid": "16724129", "title": "", "text": "v. Vancier, 515 F.2d 1378 (2nd Cir.), cert. denied, 423 U.S. 857, 96 S.Ct. 107, 46 L.Ed.2d 82 (1975). There the Second Circuit held that certifications made in accordance with section 5032 generally must be accepted by the courts as final. The court reasoned: Section 502, [18 U.S.C. § 5032,] which has been in effect only since September 7, 1974, does not provide for judicial review of the Attorney General’s certification. Nor does the statute set out standards by which the court could determine the correctness of a certification either on the issue of whether an appropriate court has jurisdiction or on the issue of adequate programs and services. The certification requirement imposed by Congress qualifies the Government’s prosecutorial discretion to bring juvenile delinquency cases in the district courts, but it does not grant the power to the courts to make the final decision. Id. at 1380-81. The court added: In United States v. Carter, 493 F.2d 704, 707-08 & n. 3 (2d Cir.1974), this court recently noted several instances in which it has been held that members of the executive branch are authorized to make certain unreviewable determinations in connection with law enforcement matters. See, e.g., Ullmann v. United States, 350 U.S. 422, 431-34, 76 S.Ct. 497, 503, 100 L.Ed. 511 (1956) (determination by United States Attorney that the public interest requires that a witness be compelled to testify under a grant of immunity); United States v. Singleton, 460 F.2d 1148, 1153-55 (2d Cir.1972), cert. denied, 410 U.S. 984, 93 S.Ct. 1506, 36 L.Ed.2d 180 (1973) (certification of Attorney General that proceeding is against a person believed to have participated in organized crime); United States v. Comiskey, 460 F.2d 1293, 1297-98 (7th Cir.1972) (certification of United States Attorney that interlocutory appeal is not being taken for purposes of delay). We conclude that the certification called for by § 502, 18 U.S.C.A. § 5032 (Supp.1975), also falls into the category of unreviewable determinations to be made, in this instance, by the Attorney General. Id. at 1381. While adopting a general rule insulating certifications from review, we recognize an exception for" }, { "docid": "6042307", "title": "", "text": "“final” for the purposes of 28 U.S.C. § 1291 or 48 U.S.C. § 1613a(e), we have appellate jurisdiction pursuant to the collateral order doctrine. See In re A.M., 34 F.3d 153, 155-56 (3d Cir.1994). III. REVIEW OF THE PROSECUTOR’S § 5032 CERTIFICATION A. Is a § 5032 Certification Reviewable? As a threshold matter, we must determine whether we have jurisdiction to review the prosecutor’s § 5032 certification. Although this is an issue of first impression for us, we do not write on a blank slate, for a number of Courts of Appeals have already published opinions on the point, from which we draw instruction. The seminal case is United States v. Vancier, 515 F.2d 1378 (2d Cir.1975). In Vancier, the United States Attorney had certified to the district court that no appropriate state court had jurisdiction over the defendant. On appeal, Vancier argued that the certification was improper because there existed an “appropriate” state court with jurisdiction over him. The court noted, however, that § 5032 does not explicitly provide for judicial review of a certification, nor does it provide articulable standards against which a court could measure whether an appropriate state court could exercise jurisdiction over the juvenile. See id. at 1380. It concluded that, although the statute provides some limitations on the prosecutor’s discretion to certify a juvenile for federal jurisdiction, those limitations do not afford the courts the power to review the exercise of that discretion. See id. at 1380-81. Analogizing the certification decision to other non-reviewable determinations made by law enforcement officials, the court held that the § 5032 certification is unreviewable. See id. at 1381. Other circuits have reached a similar conclusion. The Eleventh Circuit, in United States v. C.G., 736 F.2d 1474 (11th Cir.1984), adopted the reasoning of Vancier and held that a court could not review the correctness of a § 5032 certification asserting that an appropriate state court did not have jurisdiction over the juvenile. See id. at 1477-78. The Eleventh Circuit suggested, however, that it could review a certification to ensure .that the certifying party was authorized under the statute, that" }, { "docid": "923628", "title": "", "text": "juvenile delinquency, see N. Y. Family Court Act § 712 (McKinney 1963). However, he argues that the New York City Criminal Court is an “appropriate” court with jurisdiction over him by virtue of the state’s youthful offender program. N. Y. Criminal Procedure Law §§ 720.-10-720.35 (McKinney 1971). The Government contends that the youthful offender program is not an adequate substitute for juvenile court treatment and that it fails to provide the juvenile with the safeguards and advantages offered by the federal juvenile delinquency program. Further, the Government contends, and the district court agreed, that at least absent allegations of bad faith, the certification of the Attorney General in accordance with the Act must be accepted by the courts as final. Section 502, which has been in effect only since September 7, 1974, does not provide for judicial review of the Attorney General’s certification. Nor dfees the statute set out standards by which the court could determine the correctness of a certification either on the issue of whether an appropriate court has jurisdiction or on the issue of adequate programs and services. The certification requirement imposed by Congress qualifies the Government’s prose-cutorial discretion to bring juvenile de linquency cases in the district courts, but it does not grant the power to the courts to make the final decision. In United States v. Carter, 493 F.2d 704, 707-08 & n.3 (2d Cir. 1974), this court recently noted several instances in which it has been held that members of the executive branch are authorized to make certain unreviewable determinations in connection with law enforcement matters. See, e. g., Ullman v. United States, 350 U.S. 422, 431-34, 76 S.Ct. 497, 100 L.Ed. 511 (1956) (determination by United States Attorney that the public interest requires that a witness be compelled to testify under a grant of immunity); United States v. Singleton, 460 F.2d 1148, 1153-55 (2d Cir. 1972), cert. denied, 410 U.S. 984, 93 S.Ct. 1506, 36 L.Ed.2d 180 (1973) (certification of Attorney General that proceeding is against a person believed to have participated in organized crime); United States v. Comiskey, 460 F.2d 1293, 1297—98" }, { "docid": "8414794", "title": "", "text": "or proof of bad faith on the part of the government, we concluded that certifications made in accord with section 5032 customarily “must be accepted as final.” Id. In reaching this determination, we adopted the Second Circuit’s approach to this issue as articulated in United States v. Vancier, 515 F.2d 1378 (2d Cir.), cert. denied, 423 U.S. 857, 96 S.Ct. 107, 46 L.Ed.2d 82 (1975). In Vancier, the court’s legal analysis was grounded in part on the observation that section 5032 not only failed to set forth standards by which the court could determine the appropriateness of certification bút also served to qualify prosecuto-rial discretion rather than confer upon the courts the power to decide in which forum to bring juvenile delinquency eases. See Vancier, 515 F.2d at 1380-81. Moreover, we found persuasive the Vancier court’s reference to other instances in which courts have found decisions made by the executive branch in connection with law enforcement matters to be non-reviewable. See United States v. C.G., 736 F.2d at 1478 (citing Vancier, 515 F.2d at 1381 (collecting eases)). Although our decision in United States v. C.G. necessarily guides our disposition of this case, it does not resolve entirely the matter before us. Significantly, the statutory language at issue here — that is, a third possible basis for federal jurisdiction provided by the Attorney General’s certification that the offense charged involves a “substantial federal interest” — was added to section 5032 in 1984 subsequent to our decision in United States v. C.G. We are convinced, however, that the reasoning underlying our decision in United States v. C.G. obtains equally with respect to the amended language presented in this instance. The statute, as amended, specifies that the Attorney General shall certify to the court that “the offense charged is a crime of violence that is a felony ... and that there is a substantial Federal interest in the case or the offense to warrant the exercise of Federal jurisdiction.” 18 U.S.C. § 5032. The statute goes on to provide that transfer is appropriate if the court finds, after a hearing, that such a" }, { "docid": "23248029", "title": "", "text": "States v. Comiskey, 460 F.2d 1293, 1298 (7th Cir.1972). A federal prosecutor also has unreviewable power to decide that the “public interest” demands granting immunity to a witness in order to compel that witness’s testimony. See 18 U.S.C. § 6002; Ullmann v. United States, 350 U.S. 422, 431-34, 76 S.Ct. 497, 502-04, 100 L.Ed. 511 (1956). The certification requirement, therefore, is just another decision in this mold and may be reviewed — like these other determinations — only for the aforementioned unconstitutional bad faith and technical compliance. The “substantial Federal interest” standard, without any further explanation, might seem an odd phrase to courts, but it is a term of art with which executive officials are very familiar. The term is used throughout the United States Attorneys’ Manual as the touchstone of all exercises of federal prosecu-torial discretion. See Juvenile No. 1, 118 F.3d at 305-06. For instance, the Manual advises U.S. Attorneys to abstain from initiating proceedings if “[n]o substantial federal interest would be served by prosecution.” U.S. Dept. of Justice, U.S. Attorneys’ Manual § 9-27.220. This is a decision federal prosecutors must make in every single case. The Manual goes on to discuss some of the factors that should govern this determination: In determining whether prosecution should be declined because no substantial federal interest would be served by prosecution, the attorney for the government should weigh all relevant considerations, including: (1) Federal law enforcement priorities; (2) The nature and seriousness of the offense; (3) The deterrent effect of prosecution; (4) The person’s culpability in connection with the offense; (5) The person’s history with respect to criminal activity; (6) The person’s willingness to cooperate in the investigation and prosecution of others; and (7) The probable sentence or other consequences if the person is convicted. Id. § 9-27.230. In a passage relevant to a juvenile’s challenge to the Attorney General’s certification under § 5032, the Manual advises against commencing a federal prosecution based on the same acts involved in a prior state proceeding unless the matter involves a “substantial federal interest.” Id. § 9-2.142. The Attorney General’s certification, thus, is essentially" }, { "docid": "5580794", "title": "", "text": "are not readily susceptible to the kind of analysis the courts are competent to undertake.” Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547 (1985). They are more appropriately left within the sole discretion of the executive, as Congress sought to do here. The majority’s approach is fraught with mischief. Its reasoning would require, in every juvenile proceeding in federal court, that the district court fully reevaluate the government’s reasons for invoking a federal forum. The prospect of inter-branch conflict is apparent. Suppose that the Attorney General believes that a particular case involves sufficiently serious violations of the federal criminal code to warrant federal adjudication. A district court, under the majority’s interpretation of section 5032, could repudiate the Attorney General’s policy determination by subjectively deciding that the case does not merit a federal proceeding. Yet the court’s decision would necessarily be based on the sorts of considerations that the Supreme Court held in Wayte are executive (not judicial) in nature. Id.; see United States v. Armstrong, — U.S. -, -, 116 S.Ct. 1480, 1486, 134 L.Ed.2d 687 (U.S.Cal. May 13, 1996) (“Judicial deference to the decisions of ... executive officers rests in part on an assessment of the relative competence of prosecutors and courts” and “also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function.”). Moreover, executive determinations under other, similar statutory provisions have been deemed outside the scope of judicial review. Vancier, 515 F.2d at 1381. Examples include a judgment by the U.S. Attorney under 18 U.S.C. § 6003 that compelling a witness to testily is in the public interest, see Ullmann v. United States, 350 U.S. 422, 431-34, 76 S.Ct. 497, 502-04, 100 L.Ed. 511 (1956); United States v. Hooks, 848 F.2d 785, 802 (7th Cir.1988), certification by the U.S. Attorney under 18 U.S.C. § 3731 that an appeal from an adverse suppression ruling is not taken for purposes of delay and involves evidence material to the proceedings, see United States v. Kepner, 843 F.2d 755, 761 (3d Cir.1988); In re Grand Jury Investigation, 599" }, { "docid": "16724130", "title": "", "text": "held that members of the executive branch are authorized to make certain unreviewable determinations in connection with law enforcement matters. See, e.g., Ullmann v. United States, 350 U.S. 422, 431-34, 76 S.Ct. 497, 503, 100 L.Ed. 511 (1956) (determination by United States Attorney that the public interest requires that a witness be compelled to testify under a grant of immunity); United States v. Singleton, 460 F.2d 1148, 1153-55 (2d Cir.1972), cert. denied, 410 U.S. 984, 93 S.Ct. 1506, 36 L.Ed.2d 180 (1973) (certification of Attorney General that proceeding is against a person believed to have participated in organized crime); United States v. Comiskey, 460 F.2d 1293, 1297-98 (7th Cir.1972) (certification of United States Attorney that interlocutory appeal is not being taken for purposes of delay). We conclude that the certification called for by § 502, 18 U.S.C.A. § 5032 (Supp.1975), also falls into the category of unreviewable determinations to be made, in this instance, by the Attorney General. Id. at 1381. While adopting a general rule insulating certifications from review, we recognize an exception for certifications made in bad faith. This qualification is not only urged by the government, but also suggested by the cases dealing with analogous executive determinations, see, e.g., United States v. Carter, 493 F.2d 704, 707 (2nd Cir.1974); United States v. Singleton, 460 F.2d 1148, 1154 (2nd Cir.1972), cert. denied, 410 U.S. 984, 93 S.Ct. 1506, 36 L.Ed.2d 180 (1973). Appellant has not alleged that the government acted in bad faith in making the certification at issue. We therefore decline to question its accuracy. Since the certification otherwise satisfies the requirements of the statute, we hold that the district court properly denied appellant’s motion to strike certification. V. TRANSFER In reviewing the district court’s order granting the government’s motion to transfer, we must assess the adequacy of the court’s findings of fact before addressing the court’s ultimate determination that the transfer would be in the interest of justice. In order to transfer for prosecution as an adult, the district court must make findings which are sufficient to satisfy the requirements of section 5032 and to enable" }, { "docid": "5580762", "title": "", "text": "found it lacking because it failed to state that there was a substantial federal interest in the case. Id. at 620. This technical requirement was deemed a “jurisdictional prerequisite,” albeit one that could be readily remedied by retyping the certification document. Id. No mention was made of reviewing the basis for finding a “substantial Federal interest,” but the implication is that merely reciting the statutory language would be sufficient. See id. at 617-18 (“While this court may not have the power to guide a federal prosecutor’s discretion, we must insure that the exercise of that discretion is within the confines of section 5032.”). See also United States v. Doe, 49 F.3d 859, 866-67 (2nd Cir.1995) (reviewing district court’s finding that the offense charged was a “crime of violence” within § 5032’s certification provisions). The Second and Eleventh Circuits, on the other hand, have held that the district court may not look behind the certification decision except where there are allegations of prosecutorial bad faith. See United States v. C.G., 736 F.2d 1474 (11th Cir.1984); United States v. Vancier, 515 F.2d 1378 (2nd Cir.), cert. denied, 423 U.S. 857, 96 S.Ct. 107, 46 L.Ed.2d 82 (1975). In Vancier, the court pointed to the lack of any specific statutory provision for judicial review and the lack of standards under which such review should be conducted. Id. at 1380. The certification also was viewed as belonging to a category of unreviewable prosecutorial decisions, such as a determination that the public interest requires that a witness be compelled to testify under immunity. Id. at 1381. Under this view, the certification requirement “qualifies the Government’s discretion, ... but it does not grant the power to the courts to make the final decision.” Id. at 1380-81. B One district court in our circuit has concluded, based on the Eighth Circuit’s decision in Juvenile Male, that the “substantial Federal interest” element of the certification is reviewable. United States v. Male Juvenile, 844 F.Supp. 280 (E.D.Va.1994). Confronted with an obvious crime of violence— armed bank robbery — the court pointed to a Senate report on the 1984 amendments" }, { "docid": "5580795", "title": "", "text": "-, 116 S.Ct. 1480, 1486, 134 L.Ed.2d 687 (U.S.Cal. May 13, 1996) (“Judicial deference to the decisions of ... executive officers rests in part on an assessment of the relative competence of prosecutors and courts” and “also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function.”). Moreover, executive determinations under other, similar statutory provisions have been deemed outside the scope of judicial review. Vancier, 515 F.2d at 1381. Examples include a judgment by the U.S. Attorney under 18 U.S.C. § 6003 that compelling a witness to testily is in the public interest, see Ullmann v. United States, 350 U.S. 422, 431-34, 76 S.Ct. 497, 502-04, 100 L.Ed. 511 (1956); United States v. Hooks, 848 F.2d 785, 802 (7th Cir.1988), certification by the U.S. Attorney under 18 U.S.C. § 3731 that an appeal from an adverse suppression ruling is not taken for purposes of delay and involves evidence material to the proceedings, see United States v. Kepner, 843 F.2d 755, 761 (3d Cir.1988); In re Grand Jury Investigation, 599 F.2d 1224, 1226 (3d Cir.1979), and certification by the Attorney General under 18 U.S.C. § 3503(a) that the subject of a deposition to preserve testimony is believed to have participated in organized crime, see United States v. Ricketson, 498 F.2d 367, 374 (7th Cir.), cert. denied, 419 U.S. 965, 95 S.Ct. 227, 42 L.Ed.2d 180 (1974); United States v. Singleton, 460 F.2d 1148, 1154 (2d Cir.1972), cert. denied, 410 U.S. 984, 93 S.Ct. 1506, 36 L.Ed.2d 180 (1973). None of this calls into question our authority to review a certification for compliance with the formal requirements of section 5032. See United States v. C.G., 736 F.2d 1474, 1477 (11th Cir.1984). But the statute forecloses us from reexamining whether there exists a “substantial Federal interest in the case or the offense to warrant the exercise of Federal jurisdiction.” 18 U.S.C. § 5032. We have our job to do under the statute, and the prosecutors have theirs. I would thus hold, as did the district court, that the certification of a “substantial Federal interest” is immune from" } ]

[ { "docid": "685487", "title": "", "text": "only Luis, but petitioner herself was illegitimate at birth. It is apparent, moreover, that this decision was reached on the basis of discrepancies in the documents submitted by petitioner in support of her application for a preference. Thus, the hearing officer had before him, as required by regulation, extracts (and translations) of plaintiff’s birth certificate and the marriage certificate of her purported parents. 8 C.F.R. § 204.2(c)(4). Petitioner relies on the fact that the extract of her birth certificate states that she is the legitimate daughter of Hesikier Mack (the common father) and Virginia Richards, a native of Ingenio Consuelo, Dominican Republic and a domiciliary of San Pedro de Macoris, Dominican Republic. The marriage certificate submitted, however, declares the civil marriage of Esehiah Mack to Elena Octavia Richard; a native of San Pedro de Macoris and a domiciliary of Ingenio Consuelo. Perhaps these differences in names and birth places resulted from administrative error. But they support the District Director’s conclusion that petitioner was illegitimate at birth. Indeed, the discrepancy in names appears even more significant in light of the fact that Luis’ mother, whom plaintiff concedes is unrelated to her mother, was named Maria Cristina Richards. Petitioner had the burden below of establishing Luis’ qualifications for a preference. 8 U.S.C. § 1153(a); Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). She has not explained, or even addressed, the discrepancies in the documents. Therefore, since an evidentiary basis exists to support the District Director’s determination concerning petitioner, he has acted within his discretion. The Service must be recognized to possess the means for preventing fraud. Yet, as this case shows, the laudable aim of defeating fraudulent schemes need not (and should not) be achieved through the use of rules that may be both Unreasonable and inconsistently applied. See note 7, supra. The Service has ample power to reject any and all applications for preferences in which the petitioner fails to meet his or her burden of proof. It may even conclude, in my view, after appropriate proceedings and findings, that documentation from certain nations may be so unreliable as to" } ]

[ { "docid": "13002307", "title": "", "text": "legal separation have been instituted. Nevertheless, and in spite of the fact that plaintiffs’ marital relationship has never been dissolved and that they clearly meet the literal requirements of the law, the Board of Immigration Appeals, relying on its own earlier decision in Matter of Sosa, Interim Decision 2469 (BIA 1976), decided that the Chans’ marriage was “nonviable,” that sections 1151(b) and 1154(b) therefore do not apply, and that their petition would not be approved. For a number of reasons, the Board’s construction of the law is plainly wrong. First. There is no support for defendant’s interpretation in the language of the Statute. Section 1154(b) explicitly directs the Attorney General to grant immediate relative status to the spouse of an American citizen, without any reference whatever to marriage viability or solidity. Indeed, section 1101(a)(35) of title 8, U.S. Code, the definitional section, excludes from the definition of “spouse” only those situations “where the contracting parties [to the marriage ceremony] are not physically present in the presence of each other,” and even that condition is waived when “the marriage shall have been consummated.” Plaintiffs here were united by a marriage ceremony, they were present at that ceremony, and the marriage was consummated. Second. The Service’s interpretation is unsupported by its own and the Department of Justice’s regulations. No rule or regulation issued by the Attorney General or the Immigration and Naturalization Service requires the existence of a “viable” marriage as a precondition to the grant of immediate relative status. To the contrary, 8 C.F.R. § 204.2(2) implies that no such precondition exists for it requires only that “a petition [for classification to immediate relative status] submitted on behalf of a wife or husband . . . must be accompanied by a certificate of marriage to the beneficiary and proof of the legal termination of all previous marriages of both husband and wife” — requirements that, too, were met in the instant case. Likewise, 8 C.F.R. § 205.1(a)(4) quite appropriately conditions the revocation of a petition merely upon the “legal termination” of the relationship of husband and wife, not upon any assumed" }, { "docid": "22357797", "title": "", "text": "prong and for the exercise of discretion regarding suspension of deportation. IV. Adjustment of Status Hernandez also appeals the BIA’s denial of her petition for adjustment of status under section 245 of the INA, 8 U.S.C. § 1255. The BIA deemed Hernandez statutorily ineligible for relief, and alternatively denied her relief as a discretionary manner. As an initial matter, we note that the INS’s treatment of Hernandez’s application for adjustment of status provides belated support for Congress’s assessment that the INS’s hostility to battered women results in unnecessary barriers to relief to which they appear entitled. Both grounds relied upon by the BIA to justify its denial of Hernandez’s application — her inability to provide a copy of the approved visa petition and the deterioration of her marriage — relate directly to her status as a battered woman. A. Statutory Eligibility For Adjustment of Status Section 245(i) requires that in order for an applicant to be eligible for an adjustment of status, the applicant must show that: “(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and (B) an immigrant visa is immediately available to the alien at the time the application is filed.” 8 U.S.C. § 1255(i). During the time that Hernandez lived with her husband, who was a legal permanent resident of the United States, he filed an 1-130 petition for her to become a legal permanent resident pursuant to 8 U.S.C. § 1154(a)(1)(B). As the spouse of a legal permanent resident, Hernandez was eligible for an immigrant visa under the second family preference category upon approval of the petition. See 8 U.S.C. § 1153(a)(2)(A). However, the IJ, affirmed by the BIA, found that Hernandez was statutorily ineligible for adjustment of status because she could not show that she had an approved visa petition and because she had not been allocated an immigrant visa number. We address these issues in turn. 1) Approved Visa Petition The INS claims that Hernandez must show that a visa petition has been approved on her behalf. Neither the BIA nor the" }, { "docid": "22793039", "title": "", "text": "to produce her or any other witnesses at the deportation hearing. Matter of Agyeman, No. [ AXX-XXX-XXX ]-Eloy, slip op. at 2 (BIA Mar. 16, 1999). Therefore, the BIA ruled, Agyeman “failed to establish his marriage to a United States citizen for purposes of adjustment of status.” Id. At the outset, we note that Levy’s attendance and testimony at the deportation hearing was not a statutory prerequisite for adjustment of status. On the face of the statute and accompanying regulations, Agyeman was only required to provide sufficient evidence of his bona fide marriage to a United States citizen. Yet, this was never explained to him. He was simply told that she must be there or his application would be denied. For a full understanding of what was legally required, we turn to a discussion of the statutory and regulatory framework governing the adjudication of adjustment of status applications based on marriage to a United States citizen. a. Statutory and Regulatory Framework Section 245 is the proper statutory framework for adjudicating an application for adjustment of status filed by an alien in deportation proceedings. 8 C.F.R. §§ 240.1(a)(1)(h), 240.11(a)(1) (2001). The IJ has exclusive jurisdiction to decide the adjustment of status application. 8 C.F.R. § 245.2(a)(1) (2001). However, only the INS may adjudicate the underlying I 130 visa petition. 8 C.F.R. § 204.1(e) (2001); Dielmann v. INS, 34 F.3d 851, 854 (9th Cir.1994). Under Section 245, an alien may be eligible for adjustment of status if, among other prerequisites, an immigrant visa is immediately available. INA § 245(a); 8 U.S.C. § 1255(a). One of the ways by which- an alien may become eligible to receive an immigrant visa is through marriage to a United States citizen. INA § 201(b), 8 U.S.C. § 1151(b). An approved I 130 filed by the spouse satisfies the requirement that a visa is immediately available. INS, v. Miranda, 459 U.S. 14, 15, 103 S.Ct. 281, 74 L.Ed.2d 12 (1982). Once approved, the I 130 remains valid for the legal duration of the marriage. 8 C.F.R. § 204.2(h)(1) (2001). However, approval of the I 130 petition does" }, { "docid": "13690311", "title": "", "text": "ruling of the BIA standing alone). The Board itself made no similar comment regarding whether a specific finding of a “sham marriage” was warranted on the evidence, instead holding only that Ms. Reynoso had failed to carry her burden of proof. Second, Ms. Reynoso’s argument turns on her interpretation of the statute dealing with sham marriage determinations, 8 U.S.C. § 1154(c). This provision, however, has a single directive: It prohibits issuance of a visa to an individual if the Attorney General determines that the individual ever had sought status on the basis of a sham marriage. See 8 U.S.C. § 1154(c). Here, neither the IJ nor the BIA was adjudicating a new visa petition for Ms. Reynoso. Instead, they were charged with making a determination about permanent resident status based on a visa petition that already had been granted years ago by the Department, the validity of which was not in question in the removal proceedings. Ms. Reynoso did have a second such visa petition pending at the time of her removal proceedings, filed by her second husband, but the contemporaneous review of that petition by the Department was an entirely separate administrative proceeding. See Oluyemi v. INS, 902 F.2d 1032, 1034 (1st Cir.1990); Matter of Aurelio, 19 I. & N. Dec. 458, 460 (BIA 1987) (noting that “[t]he proceedings in which visa petitions are adjudicated are separate and apart from exclusion and deportation proceedings” and that, consequently, “it is well established that immigration judges have no jurisdiction to decide visa petitions, a matter which is solely within the authority of the district director”). Section 1154(c), therefore, had no application to these proceedings, and the IJ’s failure to cite it, or render a decision under it, in no way conflicts with the entirely separate determination that Ms. Reynoso had failed to establish the bona fides of her first marriage in her removal proceedings. The Board’s decision to deny removal of the conditions on Ms. Reynoso’s residency, is, therefore, supported by substantial evidence, and we shall not disturb it. B. Cancellation of Removal 1. Standard of Review In order to demonstrate" }, { "docid": "5261986", "title": "", "text": "constitutional or otherwise, in the policy adopted by the BIA. Arthur determined that a presumption in favor of the marriage’s validity was inconsistent with the statutory mandate implemented by the 1990 amendments to the Immigration and Nationality Act, and refused to intrude upon the Attorney General’s authority to adjudicate immediate relative visa petitions by engaging in an independent inquiry into the bona fides of the marriage. We find no fault with that conclusion. This court has recently affirmed that the authority to adjudicate immediate relative preference petitions properly rests with the Attorney General (who has, in turn, delegated it to the district directors), and not with the BIA or the immigration judge. Dodig v. INS, 9 F.3d 1418, 1420 (9th Cir.1993); see Immigration and Nationality Act of 1952 (“INA”) § 204, codified at 8 U.S.C. § 1154. The same applies to the adjustment of status under INA § 245 (8 U.S.C. § 1255). The BIA was correct to await the Attorney General’s determination. Moreover, Petitioner is not wronged by the fact that the Attorney General, not the BIA, was charged with the adjudication of the immediate relative petition. Before Garcia, we approved a policy substantially the same ás the current one. In Phatanakitjumroon v. INS, 577 F.2d 84, 86 (9th Cir.1978), this court held that the immigration judge had discretion to deny a motion to reopen because “on the date of the alien’s application for adjustment of status he was not eligible for an adjustment of status as a matter of right because his wife’s visa petition had not yet been approved.” We were not swayed by the argument that “the finding of ineligibility here [was] based solely on a procedural requirement outside the control of the alien.” Id.; see also Pritchett v. INS, 993 F.2d 80, 84-85 (5th Cir.) (finding Arthur reasonable and upholding a BIA denial of a motion to reopen), cert. denied, — U.S.-, 114 S.Ct. 345, 126 L.Ed.2d 310 (1993). The BIA was entitled to presume that Petitioner was not statutorily entitled to an adjustment of status until the relative visa petition had been adjudicated. The" }, { "docid": "9977319", "title": "", "text": "as well. This is because both statutory schemes implicate a deeper juridical problem, which results from placing greater emphasis on the date of adjudication rather than on the date of filing. We thus conclude that the proper construction of the pre-IIRIRA voluntary departure provision requires that aliens be afforded a reasonable opportunity to receive a ruling on the merits of a timely-filed motion to reopen. VI. Accordingly, we will GRANT the Petition for Review of the BIA’s decision, and remand this matter to the BIA for further proceedings consistent with this opinion. . Barrios’s petition is controlled by that now-repealed section because he was charged by the INS with deportation prior to its repeal. . The INS is now the Bureau of Citizenship and Immigration Services within the Department of Homeland Security. 6 U.S.C. § 271. Because the INS commenced the relevant proceedings, we will use INS herein, unless otherwise indicated. . Barrios's case was consolidated with the related cases of his parents and sister into one deportation proceeding. . Section 245 of the INA is the proper statutory framework for adjudicating an application for adjustment of status filed by an alien in deportation proceedings. Under section 245, an alien may be eligible for adjustment of status if, among other prerequisites, an immigrant visa is immediately available. 8 U.S.C. § 1255(a). One of the ways by which an alien may become eligible to receive an immigrant visa is through marriage to a United States citizen. 8 U.S.C. § 1151(b)(2)(A)(i). An approved 1-130 filed by the spouse satisfies the requirement that a visa be immediately available. INS v. Miranda, 459 U.S. 14, 15, 103 S.Ct. 281, 74 L.Ed.2d 12 (1982). However, approval of the 1-130 petition does not automatically entitle the alien to adjustment of status. INS v. Chadha, 462 U.S. 919, 937, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (citing Menezes v. INS, 601 F.2d 1028 (9th Cir.1979)). While an 1-130 establishes eligibility for adjustment of status, the Attorney General — or in the context of deportation proceedings, the IJ — still has discretion to accord the status. 8 U.S.C." }, { "docid": "2136751", "title": "", "text": "it implies that the marriage took place after Garcia had been ordered deported. 16 I. & N. Dec. at 654. The fact that the BIA granted Garcia’s motion to reopen suggests that the evidence relating to his marriage could not have been presented at his original deportation hearing. See 8 C.F.R. § 3.2. Moreover, in oral argument before this court, counsel for the INS conceded that the legally relevant facts in Garcia and Israel are indistinguishable. . The new policy announced in Garcia was based on a change in the law and implementing regulations. An alien applying for adjustment of status under 8 U.S.C. § 1255 must show that he or she: (1) is admissible for permanent residence and eligible for an immigrant visa; and (2) has an immigrant visa “immediately available.\" 8 U.S.C. § 1255(a); Ahwazi v. INS, 751 F.2d 1120, 1122 n. 1 (9th Cir.1985). Before 1977, the INS would routinely deny adjustment applications submitted simultaneously with visa petitions because the visa in such cases would by definition not be immediately available. The petition had to be first processed and approved for the visa to become \"available.” Garcia, 161. & N. Dec. at 654. In 1976 Congress amended section 1255’s provision for dating the adjustment application, and the INS accordingly amended its regulation to provide for the simultaneous filing of a visa petition and an adjustment application. 8 C.F.R. § 245.2(a)(2) (1985); Garcia, 16 I. & N. Dec. at 654-55. The BIA in Garcia recognized that the new simultaneous filing provision would be nullified if the INS continued its previous practice of requiring already-available visas. Accordingly, the BIA established a new policy for simultaneously filed adjustment applications and visa petitions: unless it is clear from the record that the petition would not be approved, or that the adjustment application would be denied on statutory grounds, or as a matter of discretion notwithstanding approval of the petition, the motion to reopen should be granted and the adjustment application retained pending a ruling on the visa petition. Id. at 657. . See also Matter of Cavazos, 17 I. & N." }, { "docid": "22356972", "title": "", "text": "implement the public policy underlying these laws. See, e. g., INS v. Jong Ha Wang, 450 U. S. 139, 144-145 (1981) (per curiam); Hibi, supra, at 8. Appropriate deference must be accorded its decisions. This case does not require us to reach the question we reserved in Hibi, whether affirmative misconduct in a particular case would estop the Government from enforcing the immigration laws. Proof only that the Government failed to process promptly an application falls far short of establishing such conduct. Accordingly, we grant the petition for certio-rari and reverse the judgment of the Court of Appeals. It is so ordered. Section 201(b) of the Immigration and Nationality Act of 1952 provides for the admission of immigrants who are immediate relatives of United States citizens. 66 Stat. 175, as amended, 8 U. S. C. § 1151(b). Section 245(a) provides that the status of an alien who was admitted into the United States “may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.” 66 Stat. 217, as amended, 8 U. S. C. § 1255(a). The INS has maintained consistently that the 18-month delay was reasonable because of the need to investigate the validity of respondent’s marriage. Because the issue of estoppel was raised initially on appeal, the parties were unable to develop any factual record on the issue. In 1976, the year in which Milligan filed her petition on behalf of respondent, some 206,319 immediate-relative petitions were filed. See INS Ann. Rep. 11 (1976). The Service has noted: “In dealing with these petitions, an inordinate amount of fraud, particularly in relation to claimed marriages, has been uncovered. . . . For a fee, partners are provided and marriages contracted to establish eligibility under the statutes" }, { "docid": "19880003", "title": "", "text": "approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed. . The 1-360 petition is a form that relatives of U.S. citizens — including abused spouses of such persons — must file in order to obtain immigrant status based on their \"qualifying relationship to a citizen,” 8 C.F.R. § 204.1(a)(3). See 8 U.S.C. § 1154(a)(1)(A)(iii)(I) & (II)(aa)(CC)(ccc) (setting forth the procedure for adjustment to immigrant status by an alien whose marriage to a U.S. citizen terminated on account of “battering or extreme cruelly by the United States citizen spouse”); 8 C.F.R § 204.2(c)(1)(i)(E) (same). . As we noted in Ibragimov v. Gonzales: A B-2 visa, often referred to as a \"tourist” visa, may be issued to a \"visitor for pleasure” so that such a person may remain legally in the United States for a temporary period. The initial period of authorization of a B-2 visa may not exceed one year, but may be extended in increments of six months. 476 F.3d 125, 128 n. 2 (2d Cir.2007) (citing 8 C.F.R. § 214.2(b)(1)). .The 1-130 petition is a form that a U.S. citizen must file in order to obtain immigrant status for an alien spouse based on their marital relationship. See 8 U.S.C. § 1154(a)(1)(A)(i) (setting forth the procedure whereby a U.S. citizen may petition for an adjustment to immigrant status for his or her alien spouse); 8 C.F.R. § 204.1(a) (same). . The letter states, in relevant part: “In the process of seeking answers to your questions, I learn[ed] that way back in 1989 when Stella applied for an American [v]isa and was turned down, she agreed to Mr. Oke’s suggestion to make a fresh application using" }, { "docid": "20817835", "title": "", "text": "decision of the immigration judge to the Board of Immigration Appeals (BIA). See generally 8 C.F.R. § 3.1(b)(2) (1976). Liu contended that inasmuch as the INS had “unjustifiably refused to act” upon an immediate relative visa petition filed on his behalf, the immigration judge should have corrected that injury by granting Liu a “conditional termination of [the deportation] proceedings.” Liu did not point to nor could the BIA find any provision in the immigration statutes or in the pertinent regulations that would authorize an immigration judge to adjudicate a visa petition or to grant extended voluntary departure, the closest analogue to the “conditional termination of proceedings” sought by Liu. Accordingly, in April 1978 the BIA dismissed Liu’s appeal by written order and reinstated the privilege of voluntary departure for an additional thirty days. Liu did not take an appeal to this court from that adverse decision. II. Along a second procedural route, albeit with considerable chronological overlap, Liu employed other means in his quest to remain in this country. In May 1975 he married Peggy Joyce Mitchell, a citizen of the United States. In October of that year, after some delay in acquiring divorce certificates from her three or four previous marriages, Mrs. Liu filed an immediate relative visa petition (Form 1-130) on behalf of her new husband, Te Kuei Liu. See generally 8 U.S.C. §§ 1151(b), 1154, 1204 (1976); 8 C.F.R. § 204.1(a) (1975). In September 1976, an interview was conducted by the INS with Liu and his wife. The adjudicator determined that the petitioner could speak little or no Chinese and the beneficiary could speak little or no English. An investigation was therefore ordered into the bona fides of Liu’s marriage. An INS criminal investigator subsequently questioned Mrs. Liu, who was residing in Houston, Texas, and determined that Mr. Liu was living in Galveston, Texas, for the stated purpose of being closer to his work. Record memoranda also indicate some discussion of the possibility that Liu was using petitioner to gain residency in the United States, but that Mrs. Liu was unwilling to withdraw her petition because she" }, { "docid": "7871311", "title": "", "text": "ARNOLD, Circuit Judge. After an immigration judge denied Mohammed Thimran’s request for a continuance and voluntary departure and ordered him removed, he appealed to the Board of Immigration Appeals. The BIA affirmed the IJ’s order and Mr. Thimran then filed this petition for review. We deny the petition. Mr. Thimran, a native and citizen of Yemen, was lawfully admitted to the United States as a nonimmigrant. He overstayed his visa and married Nafeesah Lawrence Brooks, a United States citizen. When a resident alien marries a U.S. citizen, the citizen spouse may file a Form I-130, Petition for Alien Relative, to acquire an “immediate relative” visa for the alien spouse, see 8 U.S.C. §§ 1151(b)(2)(A)®, 1154(a)(1)(A)®; 8 C.F.R. § 204.1(a)(1); if the petition is approved, the alien may then apply to become a lawful permanent resident, see 8 U.S.C. § 1255(a). The Department of Homeland Security will not approve an 1-130 petition unless the claimed relationship is verified; to establish a spousal relationship, the petitioner must provide documentation, including proof that any previous marriages of the petitioner or beneficiary have been legally terminated. See 8 U.S.C. § 1154(b); 8 C.F.R. § 204.2(a). Ms. Brooks filed an 1-130 petition on behalf of Mr. Thimran, but officials at the United States Embassy in Yemen determined that a divorce certificate that Mr. Thimran had provided was not authentic. The embassy officials also advised that even though Mr. Thimran’s birth certificate was a genuine Yemeni document, it could not be relied upon as the sole basis of any claim of identity, relationship, or civil status, since corruption in the Yemeni government was widespread. Mr. Thimran now concedes that the divorce certificate was not authentic but maintains that a private agency provided both that document and the birth certificate to him and that he had believed the agency’s representations that the certificates were authentic and reliable. Based on the embassy’s report, a District Director of the United States Citizenship & Immigration Service (part of DHS) concluded that Ms. Brooks had not established that Mr. Thimran’s previous marriage was legally dissolved and thus could not prove that" }, { "docid": "5261983", "title": "", "text": "are ordinarily to be reopened when a prima facie approvable visa petition and adjustment application have been submitted. Id. at 656. It would be an abuse of discretion for the BIA to fail to follow Garcia consistently. Israel v. INS, 785 F.2d 738 (9th Cir.1986). Garcia, however, is no longer the policy of the BIA. The Immigration Marriage Fraud Amendments of 1986, Pub.L. No. 99-639,100 Stat. 3537, and the Immigration Act of 1990, Pub.L. No. 101-649,104 Stat. 4978, amended the immigration laws to require that a spouse seeking adjustment of status must either reside outside of the United States for two years or establish by clear and convincing evidence that the marriage was entered into in good faith and not for the purpose of immigrating to the United States. 8 U.S.C. §§ 1154(h), 1255(e). After these amendments, the BIA decided that it was no longer justified in assuming that an application for adjustment of status based on a marriage constituted a prima facie showing that a party moving to reopen proceedings is entitled to relief. In re Arthur, Interim Dec. 3173, 1992 WL 195807, 1992 BIA LEXIS 8 (BIA, May 5, 1992). The BIA explained that [a]n inquiry into whether the evidence submitted in support of a visa petition is sufficient, in light of the heavy burden imposed on the petitioner, to demonstrate prima facie eligibility for the preference sought would necessarily involve an in-depth examination into the merits of the petition. Such examination would, in our view, constitute a substantial and unwarranted intrusion into the district director’s authority over the adjudication of visa petitions. In light of the foregoing discussion, we shall hereafter decline to grant motions to reopen for consideration of applications for adjustment of status based upon unadjudi-cated visa petitions which fall within [8 U.S.C. §§ 1154(g), 1255(e) ]. Id. (citation omitted). It is clear that Arthur, and not Garcia, is now the established policy of the BIA. Under Arthur, Petitioner’s motion to reopen was properly denied. Petitioner realizes that Arthur controls and argues that the precedent set in that case, and the Board’s decision in his" }, { "docid": "21637953", "title": "", "text": "strict standards for making this determination. See Systronics Corp. v. INS, 153 F.Supp.2d 7, 11-12 (D.D.C.2001); accord ANA Int’l, Inc. v. Way, 242 F.Supp.2d 906 (D.Or.2002) El-Khader argues only that the broad statutory language of § 1155 is limited by INS precedent establishing that revocation of a visa petition is only appropriate when the petition should not have been approved in the first place, which, he contends, is not a discretionary decision. See Matter of Tawfik, 20 I. & N. Dec. 166 (BIA 1990); Matter of Estime, 19 I. & N. Dec. 450 (BIA 1987). Moreover, he notes that 8 U.S.C. § 1154(c) dictates that “no petition shall be approved if’ the petitioning alien has previously committed a marriage fraud in an attempt to secure an immigration benefit. El-Khader argues that the INS’s decision was not discretionary because the INS revoked his visa petition based on its finding that he committed a marriage fraud by entering into a marriage for purposes of procuring an immigration benefit. El-Khader contends that this finding nullifies the INS’s discretion because the INS is prohibited from issuing a visa petition to anyone who has committed a marriage fraud for immigration purposes. El-Khader’s argument is misguided. It is true that the INS has regulations requiring that there must be “substantial and probative” evidence of marriage fraud to deny a petition on these grounds. See Ghaly v. INS, 48 F.3d 1426, 1436 (7th Cir.1995) (Posner, C.J., concurring) (citing 8 C.F.R. § 204.2(a)(1)(ii)). Nevertheless, these regulations are inapplicable in those instances where the INS, acting under the authority of the Attorney General, chooses to exercise its discretion in revoking a visa under § 1155 after a petition for that visa has already been granted. Likewise, the fact that the INS is required to deny petitions to those who have committed marriage fraud for immigration purposes in no way limits the discretionary status of the Attorney General’s subsequent revocation under § 1155 of a granted petition that, it turns out, should have never been made in the first instance. No statutory or regulatory mandate exists requiring the Attorney General" }, { "docid": "5261982", "title": "", "text": "relative visa, which were filed at the same time. The BIA denied Petitioner’s motion to reopen. The Board ruled that the unadjudicat-ed visa petition did not establish that he was entitled to the relief he sought because his status may only be adjusted if he establishes by “clear and convincing evidence” that the marriage was entered into in good faith and not for the purpose of gaining entry to the United States. 8 U.S.C. § 1255(e)(3). Petitioner now appeals the BIA’s ruling. DISCUSSION Petitioner argues that the BIA erred by failing to defer its consideration of the motion to reopen until after the relative visa petition was adjudicated. Denial of a motion to reopen deportation proceedings on the grounds that the moving party has failed to establish a prima facie case for the relief sought is reviewed for an abuse of discretion. INS v. Doherty, 502 U.S. 314,-, 112 S.Ct. 719, 724-25, 116 L.Ed.2d 823 (1992). Petitioner relies on In re Garcia, 16 I & N Dec. 653 (BIA 1978), which held that deportation proceedings are ordinarily to be reopened when a prima facie approvable visa petition and adjustment application have been submitted. Id. at 656. It would be an abuse of discretion for the BIA to fail to follow Garcia consistently. Israel v. INS, 785 F.2d 738 (9th Cir.1986). Garcia, however, is no longer the policy of the BIA. The Immigration Marriage Fraud Amendments of 1986, Pub.L. No. 99-639,100 Stat. 3537, and the Immigration Act of 1990, Pub.L. No. 101-649,104 Stat. 4978, amended the immigration laws to require that a spouse seeking adjustment of status must either reside outside of the United States for two years or establish by clear and convincing evidence that the marriage was entered into in good faith and not for the purpose of immigrating to the United States. 8 U.S.C. §§ 1154(h), 1255(e). After these amendments, the BIA decided that it was no longer justified in assuming that an application for adjustment of status based on a marriage constituted a prima facie showing that a party moving to reopen proceedings is entitled to relief." }, { "docid": "9347879", "title": "", "text": "and capricious if the agency fails to examine relevant evidence or articulate a satisfactory explanation for the decision. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The reviewing court “may not supply a reasoned basis for the agency’s action that the agency itself has not given.” Id. at 43, 103 S.Ct. 2856. However, “[e]ven when an agency explains its decision with less than ideal clarity, a reviewing court will not upset the decision on that account if the agency’s path may reasonably be discerned.” Alaska Dep’t of Env’t Conservation v. EPA 540 U.S. 461, 497, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004). ii. The INA And Its Implementing Regulations In addition to arbitrary and capricious review, the APA authorizes courts to review agency actions for conformity with law. 5 U.S.C. § 706(2)(A); see also Carabell, 391 F.3d at 707; N.E. Ohio Reg. Sewer Dist., 411 F.3d at 731. In this case, the relevant law is contained in the INA and its implementing regulations, which govern petitions for immediate relative visas. In particular, the issues in this case revolve around the application of § 204(c) of the INA, which requires the Attorney General to deny a visa petition made on behalf of any alien whom the Attorney General determines “previously [ ] accorded or [ ] sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States ... by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading immigration laws.” 8 U.S.C. § 1154(c). Under the INA, a determination of marriage fraud made pursuant to § 204(c) must be supported by substantial and probative. evidence. In re Agdinaoay, 16 I. & N. Dec. 545, 546 (BIA 1978); In re Tawfik, 20 I. & N. Dec. 166, 167 (BIA 1990). Therefore, this Court must overturn any finding of marriage fraud not supported by substantial and probative evidence. iii. The INS’s Denial of Chisley’s Petition Did Not Violate the APA" }, { "docid": "13002308", "title": "", "text": "when “the marriage shall have been consummated.” Plaintiffs here were united by a marriage ceremony, they were present at that ceremony, and the marriage was consummated. Second. The Service’s interpretation is unsupported by its own and the Department of Justice’s regulations. No rule or regulation issued by the Attorney General or the Immigration and Naturalization Service requires the existence of a “viable” marriage as a precondition to the grant of immediate relative status. To the contrary, 8 C.F.R. § 204.2(2) implies that no such precondition exists for it requires only that “a petition [for classification to immediate relative status] submitted on behalf of a wife or husband . . . must be accompanied by a certificate of marriage to the beneficiary and proof of the legal termination of all previous marriages of both husband and wife” — requirements that, too, were met in the instant case. Likewise, 8 C.F.R. § 205.1(a)(4) quite appropriately conditions the revocation of a petition merely upon the “legal termination” of the relationship of husband and wife, not upon any assumed dissolution of the marriage by reference to a standard not known to the law of domestic relations. Third. There is no support for defendant’s interpretation in the judicial case law. The only court to date to construe a provision similar to the one at issue here squarely determined the Service’s construction to be in error. In Whetstone v. Immigration and Naturalization Service, 561 F.2d 1303 (9th Cir. 1977), the U.S. Court of Appeals for the Ninth Circuit was faced with construing 8 U.S.C. §§ 1101(a)(15)(K) and 1184(d), the statutes governing admission of fiances of United States citizens. If anything, those particular provisions are more hospitable to the Service’s position than the section here involved, for section 1184(d) (the “fiance” section) expressly refers to the parties’ “bona fide intention to marry” and to their actual willingness “to conclude a valid marriage,” while no comparable language can be found in the “immediate relative” provisions of the immigration laws. Nevertheless, the court rejected arguments similar to those advanced by the Service in the instant case, holding (561 F.2d" }, { "docid": "22357823", "title": "", "text": "contained in the BIA’s adjudication of Hernandez's claim. Although the Supreme Court has held that case-by-case adjudications under the INA may be subject to Chevron deference, see INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999), there is no indication that the BIA intended to issue an interpretation of extreme cruelty in this case. The decision was not designated as precedential. Moreover, the BIA did not focus on the term or even reference its own regulation, and the opinion contains no definition or explicit consideration of the term. In essence, the BIA appeared to treat \"extreme cruelty” as a mere extension of \"battery,” an interpretation that would not present a permissible construction of the regulation, even if the BIA had so intended it. See, e.g., Lal v. INS, 255 F.3d 998, 1004 (9th Cir.2001). . See 8 U.S.C. § 1154(a)(l)(A)(iii) (allowing battered alien to self petition only if she has \"resided in the United States with the alien’s spouse \" (emphasis added)). . The first act in obtaining a visa is filing a petition with the INS. Gordon et al.. Immigration Law & Procedure, § 41.01(l)(c) (2003). The INS determines whether a petition will be approved or denied. Certain categories of beneficiaries, for example spouses of United States citizens, are eligible to receive immigrant visas immediately upon approval of their petitions. Id. at § 51.01(2)(b)(iii). Otherwise, once a petition is approved, a visa issuance priority date is assigned. For petitions based on a family preference category, the priority date is the date that the approved petition was filed. See 22 C.F.R. § 42.53; Gordon, supra, § 51.01(2)(b)(iii). . In most cases, a family petition may not be filed by the individual desiring to acquire status (the beneficiary), but must be filed by the relative who is the United States citizen or legal permanent resident (the petitioner). . Approved petitions are now forwarded to the National Visa Center, which is a division of the State Department. Between 1991 and 1994 (the period during which Hernandez's petition was filed and processed), petitions went to the Transitional Immigrant" }, { "docid": "22793040", "title": "", "text": "status filed by an alien in deportation proceedings. 8 C.F.R. §§ 240.1(a)(1)(h), 240.11(a)(1) (2001). The IJ has exclusive jurisdiction to decide the adjustment of status application. 8 C.F.R. § 245.2(a)(1) (2001). However, only the INS may adjudicate the underlying I 130 visa petition. 8 C.F.R. § 204.1(e) (2001); Dielmann v. INS, 34 F.3d 851, 854 (9th Cir.1994). Under Section 245, an alien may be eligible for adjustment of status if, among other prerequisites, an immigrant visa is immediately available. INA § 245(a); 8 U.S.C. § 1255(a). One of the ways by which- an alien may become eligible to receive an immigrant visa is through marriage to a United States citizen. INA § 201(b), 8 U.S.C. § 1151(b). An approved I 130 filed by the spouse satisfies the requirement that a visa is immediately available. INS, v. Miranda, 459 U.S. 14, 15, 103 S.Ct. 281, 74 L.Ed.2d 12 (1982). Once approved, the I 130 remains valid for the legal duration of the marriage. 8 C.F.R. § 204.2(h)(1) (2001). However, approval of the I 130 petition does not automatically entitle the alien to adjustment of status as an immediate relative of a United States citizen. INS v. Chadha, 462 U.S. 919, 937, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (citing Menezes v. INS, 601 F.2d 1028 (9th Cir.1979)). While an I 130 establishes eligibility for status, the Attorney General- — or in the context of deportation proceedings, the IJ — must still decide to accord the status. Amarante v. Rosenberg, 326 F.2d 58, 62 (9th Cir.1964). As part of the investigative process for adjustment of status, the alien must attend an interview with an immigration officer. 8 C.F.R. § 245.6 (2001). While the regulations do not explicitly require the spouse to appear or testify on the alien’s behalf, as a practical matter, the INS often requests the attendance of both the alien and the spouse at the initial adjustment interview. See SARAH IGNATIUS, IMMIGRATION LAW AND THE FAMILY § 8.04[5] at 8-60 (2001). Its authority to do so is found in its general regulatory power to request the appearance of an applicant," }, { "docid": "7871312", "title": "", "text": "petitioner or beneficiary have been legally terminated. See 8 U.S.C. § 1154(b); 8 C.F.R. § 204.2(a). Ms. Brooks filed an 1-130 petition on behalf of Mr. Thimran, but officials at the United States Embassy in Yemen determined that a divorce certificate that Mr. Thimran had provided was not authentic. The embassy officials also advised that even though Mr. Thimran’s birth certificate was a genuine Yemeni document, it could not be relied upon as the sole basis of any claim of identity, relationship, or civil status, since corruption in the Yemeni government was widespread. Mr. Thimran now concedes that the divorce certificate was not authentic but maintains that a private agency provided both that document and the birth certificate to him and that he had believed the agency’s representations that the certificates were authentic and reliable. Based on the embassy’s report, a District Director of the United States Citizenship & Immigration Service (part of DHS) concluded that Ms. Brooks had not established that Mr. Thimran’s previous marriage was legally dissolved and thus could not prove that her marriage to him was valid. The Director further determined that “the submission of fraudulent documents [sic] clearly demonstrates that [Ms. Brooks’s] marriage to Mr. Thimran was entered into for the purpose of committing marriage fraud and evading the immigration laws.” See 8 U.S.C. § 1154(c). DHS therefore denied Ms. Brooks’s 1-130 petition. DHS then charged Mr. Thimran with being removable under 8 U.S.C. § 1227(a)(1)(A), as an alien who had sought to procure a visa by fraud or by willfully misrepresenting a material fact, see 8 U.S.C. § 1182(a)(6)(C)(i), and under § 1227(a)(1)(B), as an alien who was admitted as a nonimmigrant but remained longer than permitted. Shortly thereafter, Ms. Brooks filed a second 1-130 petition on Mr. Thimran’s behalf, accompanied by new documents obtained directly from the Yemeni government. Mr. Thimran appeared on the removability charges, and the IJ granted him a continuance and then another. Mr. Thimran later conceded that he was removable for overstaying his visa but maintained that he was not removable for fraud. The IJ continued the case four" }, { "docid": "93739", "title": "", "text": "has the requisite qualifications. See 8 C.F.R. § 204.5(l)(3)(ii)(A); see also In re [Identifying Information Redacted by Agency [hereinafter “[IIRA ]”]], 2014 WL 3951145, at *3-6 (AAO Jan. 3, 2014) (finding that the record fails to support “the beneficiary’s claimed high school attendance” and “the required two years of [pri- or work] experience”); In re [IIRA], 2012 WL 8526515, at *8-9 (AAO Aug. 27, 2012) (affirming the revocation, inter alia, because “the petitioner did not submit evidence that the beneficiary has the education required by the terms of the labor certification”). Here, similarly, the agency revoked the prior approval of the visa petition filed on behalf of Freitas because the inconsistent documents did not evidence the “two years of experience in the offered position or the related occupation of ‘Manager/Supervisor,’ ” Appellants’ Add. at 10, 13-18 — a fact that would have “warranted [] denial” in the first place. Matter of Ho, 19 I. & N. Dec. at 590. Objective legal criteria also govern family-based visa petitions approved under § 1154. In determining the necessary familial relationships, the agency relies on objective documentation, such as a marriage certificate or a birth certificate. 8 C.F.R. § 204.2; see also Instructions for Form 1-130, Petition for Alien Relative, at 2 (USCIS 2015). Further, where the denial of visa petitions turns on the validity of a marriage, see 8 U.S.C. § 1154(c), the agency examines the relevant evidence under the “substantial and probative” standard. Matter of Tawfik, 20 I. & N. Dec. at 167. Indeed, with the benefit of the applicable legal standard and objective factual evidence, numerous courts have reviewed the agency’s denials of visa petitions based on marriage fraud. See Gupta v. U.S. Att’y Gen., No. 6:13-cv-1027-Orl-40KRS, 2015 WL 5687853, at *10-11 (M.D.Fla. July 7, 2015) (applying Matter of Tawfik in reviewing the denial of a visa petition based on marriage fraud); Zemeka v. Holder, 989 F.Supp.2d 122, 129-130 (D.D.C.2013) (applying the “substantial and probative” standard in reviewing the denial of a petition based on marriage fraud); Matter of Arias, 19 I. & N. Dec. 568, 569-71 (BIA 1988) (reversing a" } ]

[ { "docid": "10299452", "title": "", "text": "MEMORANDUM McCLURE, District Judge. BACKGROUND Plaintiffs Robert D. Waye and B. Joan Waye d/b/a Medfax-Sentinel filed this action to recover for alleged improprieties of defendant First Citizen’s National Bank d/b/a Citizen’s Financial Services, Inc. (First Citizen’s or the bank) in the handling of a business checking account which plaintiffs maintained with the bank. Plaintiffs’ allegations arise out of the bank’s notification, in February, 1991, to federal authorities of suspected check kiting by plaintiff Barbara Joan Waye and the events which preceded and followed that notification. Plaintiffs allege that the bank contacted federal authorities “to report that they had been defrauded by the Plaintiffs. The defendant reported that Mrs. Waye had used a business account at First Citizen’s ... to conduct an elaborate check kiting scheme.” (Plaintiffs complaint, para. 1). The bank’s charges led to the filing of federal criminal charges against the plaintiff, Barbara Joan Waye, for check kiting. Plaintiffs allege that this report was false and that the bank’s release of financial information to authorities was a violation of the Right to Financial Privacy Act (the Act), 12 U.S.C. §§ 3401-3422. Plaintiffs allege six instances/types of wrongdoing by the bank in connection with its handling of plaintiffs’ business account and matters related to it: 1) Count I alleges negligence and bad faith based on allegedly false reports made to federal banking authorities regarding the status of and transactions linked to plaintiffs’ account and Barbara Joan Waye’s suspected involvement in a check kiting scheme; 2) Count II alleges the violation of the Financial Privacy Act based on the bank’s release of financial records on the Medfax-Sentinel business account to federal authorities; 3) Count III alleges claims of harassment and libel based on a letter sent to the plaintiffs on December 20, 1991 which plaintiffs alleged contained libelous remarks •concerning Mrs. Waye; 4) Count IV alleges cláims for demanding and receiving usurious interest based on the bank’s alleged demand for interest 'charges of $1,295.40 and defendant’s alleged seizure of $967.50 from the plaintiffs’ bank accounts; 5) Count V alleges a claim for theft based on defendant’s alleged failure to use funds" } ]

[ { "docid": "10299473", "title": "", "text": "the protection afforded the bank for reporting such matters under 12 U.S.C. § 3403(c). The letter was part of a series of communications made to regulatory authorities concerning the suspected illegal activities of plaintiff. Moreover, it was a response to a letter written to plaintiff herself, forwarded to OTS. Plaintiffs libel claim is also barred by the statute of limitations. Under Pennsylvania law, claims for libel must be filed within one year of the date the cause of action arises and the plaintiff knows, or reasonably should have known, of the allegedly defamatory communication. Andrews v. Time, Inc., 690 F.Supp. 362, 365 (E.D.Pa.1988); Gallucci v. Phillips & Jacobs, Inc., 418 Pa.Super. 306, 614 A.2d 284 (1992), appeal denied, 533 Pa. 660, 625 A.2d 1193 (1993) and 42 Pa.Cons.Stat.Ann. § 5523. Plaintiff was copied in on defendant’s letter dated December 20, 1991. This action was not filed until March 2, 1993, more than, one year after the cause of action accrued. In addition to its other short-comings, plaintiffs libel claim is, therefore, also time-barred. Count III also alleges a claim for harassment. No civil cause of action exists for harassment. Plaintiffs allege that the timing of the letter constitutes harassment. They claim that the letter was sent to arrive just before Christmas for the purpose of ruining their holiday. Pennsylvania law recognizes no cause of action based on the timing of sending a letter. Claim for usury Count IV of plaintiffs complaint alleges that defendant demanded a usurious rate of interest from plaintiffs for the use of monies advanced by the bank to cover plaintiffs’ outstanding checks, in violation of Pa.Stat. Ann. tit. 41, •§ 502 (1992). Plaintiffs allege that the bank demanded interest at the rate of 8%%, or a total of $1,295.40, to cover monies advanced by the bank for checks drawn on plaintiffs’ business account, and ultimately collected $967.50 via a setoff against other accounts held by Medfax-Sentinel and Joan Waye at the bank. (See: plaintiffs complaint, exhibits “H” through “K”). Pennsylvania law sets the maximum lawful rate of interest recoverable for the “loan or use of money" }, { "docid": "10299472", "title": "", "text": "certainly apply to you. Your letter indicates that the charges against you are ‘politically motivated’ by Dr. John Thomas. I can only respond, that desperate people, such as yourself, will say and do desperate things. To try and ‘blame’ Dr. Thomas for your problems is certainly the act of a desperate person. The course of action followed by Star Savings is the one that would have been taken for any account involved in this type of activity. Your relationship with Dr. Thomas has absolutely no bearing on the legal action you are now facing as a result of check kiting. Plaintiff Barbara Joan Waye claims that the reference to fraud and the characterization of her as a “desperate person” are defamatory. Her claims fail for two reasons. The statements made are not defamatory. Second, the letter was not published to anyone outside the privileged circle of communicants. It was addressed to plaintiff herself. Although a copy was mailed to OTS, that communication was privileged and cannot give rise to a cause of action because of the protection afforded the bank for reporting such matters under 12 U.S.C. § 3403(c). The letter was part of a series of communications made to regulatory authorities concerning the suspected illegal activities of plaintiff. Moreover, it was a response to a letter written to plaintiff herself, forwarded to OTS. Plaintiffs libel claim is also barred by the statute of limitations. Under Pennsylvania law, claims for libel must be filed within one year of the date the cause of action arises and the plaintiff knows, or reasonably should have known, of the allegedly defamatory communication. Andrews v. Time, Inc., 690 F.Supp. 362, 365 (E.D.Pa.1988); Gallucci v. Phillips & Jacobs, Inc., 418 Pa.Super. 306, 614 A.2d 284 (1992), appeal denied, 533 Pa. 660, 625 A.2d 1193 (1993) and 42 Pa.Cons.Stat.Ann. § 5523. Plaintiff was copied in on defendant’s letter dated December 20, 1991. This action was not filed until March 2, 1993, more than, one year after the cause of action accrued. In addition to its other short-comings, plaintiffs libel claim is, therefore, also time-barred. Count III" }, { "docid": "15972046", "title": "", "text": "money from illegal activities.” Id. at 560, 543 A.2d 80. The court distinguished Libertel-li, stating that Potter did much more than ‘protest the director’s improprieties’ relating to a regulatory scheme. He blew the whistle on suspected criminal conduct involving one or more directors. Hence, Potter’s termination relates to the public policy designed to encourage citizens to report suspected criminal violations to the proper authorities in order to ensure proper enforcement of both state and federal penal laws. Id. at 559, 543 A.2d 80. Therefore, a comparison of Potter and Libertelli demonstrates that public policy does not forbid termination of a banking officer for reporting violations of the Banking Act, although public policy forbids termination of a banking officer for reporting violations of criminal or other laws. However, the instant case merely involves allegations that Tracey reported violations of the “banking regulations.” Although no case law or specific regulations are identified, Tracey states in his brief that he “contacted the Federal Loan Bank prior to his discharge in order to express his concern that the conduct of the then President Gerald O’Keefe was in violation of banking regulations.” Tracey’s Brief at 12 (emphasis added). In his certification, Tracey refers to the subject matter of his reports as “what I considered to be financial improprieties.” See Tracey Cert., 116. The letter that Tracey sent to FHLBB further illuminates that he was primarily complaining that O’Keefe was drawing checks on insufficient funds and waiving late fees in violation of bank policy and/or banking regulations. Thus, under Pierce and Libertelli, plaintiff cannot make out a claim for wrongful discharge in violation of public policy. For all the foregoing reasons, summary judgment will be granted in favor of First Atlantic on Count Two of Tracey’s third-party complaint. (3) Count Three: Breach of an Oral Employment Agreement With regard to Tracey’s claim of an oral employment contract, First Atlantic initially argues that Tracey's claim is barred by Savarese v. Pyrene, 9 N.J. 595, 599, 89 A.2d 237 (1952), which requires that the terms of an alleged oral contract of lifetime employment be precise and definite. Apparently," }, { "docid": "10299458", "title": "", "text": "claims like those asserted here. Section 3403(c) provides, in relevant part: Nothing in this chapter shall preclude any financial institution ... from notifying a Government authority that such institution ... has information which may be relevant to a possible violation of any statute or regulation ... Any financial institution making a disclosure of information pursuant to this subsection, shall not be liable to the customer under any law or regulation of the United States or any constitution, law, or regulation of any State or political subdivision thereof, for such disclosure or for any failure to notify the customer of such disclosure. Under the plain language of the section 3403, plaintiffs have no cause of action against First Citizen’s for its notification of suspected wrongdoing on the part of plaintiff Barbara Joan Waye. Moreover, plaintiffs negligence claim fails because no duty is alleged, and none is owed by the bank under the facts, as alleged, and as fleshed out in the numerous documents attached as exhibits to plaintiffs’ complaint. Plaintiffs allege that the bank reported to the Federal Bureau of Investigation that their account was overdrawn by approximately $91,000.00 over a period of time. While it is never the province of the court to go behind factual allegations of plaintiffs’ complaint in ruling on a Rule 12(b)(6) motion, this court is not required to accept plaintiffs’ legal conclusions, particularly when the conclusions asserted are directly contrary to plaintiffs’ conduct evidenced in documents attached to their complaint. Plaintiffs attach as exhibit “E” to their complaint a copy of a letter dated April 19, 1991 from their attorney at the time, Harry B. Goldberg, Esq., enclosing a check in the amount of $81,803.85 “representing payment of six checks returned to you [a reference to First Citizen’s] from First Midwest Bank, the six checks being made payable to Medfax-Sentinel....” (Plaintiffs complaint, exhibit “E”). Attached as exhibit “F” is the response of the bank solicitor, in which he states that: “We appreciate receipt of your check in the amount of $81,803.85 making good the principal amounts of the checks outlined in your letter.” (Plaintiffs complaint," }, { "docid": "10299460", "title": "", "text": "exhibit “F”). Attached as exhibit “H” is a letter dated May 29, 1991 from the bank, known at that time as Star Savings and Loan, demanding interest on the $81,803.85 in the amount of $1,295.40. Curiously, plaintiffs also attach to their complaint a letter from First Midwest Bank dated February 26, 1991 which states that the six cheeks sent to it for collection drawn on the account of Joan Waye, MedfaxSentinel, of Waverly, New York, are being returned, because: “there are not funds in the accounts to cover the checks.” Plaintiffs do not disclaim the statements in either letter or deny that the transaction occurred, but merely assert legal conclusions based on what they claim occurred instead, i.e. the allegedly false reporting by defendant of the overdrawn status of their account and allegedly false claims of losses sustained by the bank due to returned checks. If plaintiffs had any claim at all under the facts alleged, it would be in the nature of a claim for malicious prosecution based on the alleged false communications to regulatory and law enforcement authorities which resulted in the filing of federal criminal charges against plaintiff Barbara Joan Waye. However, plaintiffs cannot state a claim for such a cause of action at this time, because an essential element is lacking. To establish a claim for malicious prosecution, plaintiffs must allege the conclusion in her favor of criminal proceedings initiated against plaintiff Barbara Joan Waye. Allegation of that element at this time would be impossible. This court takes judicial notice of the fact that the criminal charges filed against Barbara Joan Waye are still pending, and trial on those charges is scheduled to occur some time this Spring. Plaintiffs’ claim for bad -faith fails as well. No such cause of action exists. “Bad faith” is not a cause of action. In addition, once again, no duty is alleged, and none exists under the facts pled. Plaintiffs’ claims of negligence and bad faith asserted in Count I will, therefore, be dismissed. Claims asserted under the Financial Privacy Act Count II of plaintiffs’ complaint asserts a claim under" }, { "docid": "15003699", "title": "", "text": "MEMORANDUM OPINION AND ORDER ALESIA, District Judge. On October 14, 1992, plaintiffs filed a two-count complaint alleging the violation of 42 U.S.C. § 1983 and 15 U.S.C. § 1692. Before the court are the motions of defendant Regency Savings Bank (“Regency”) and defendants Joel Truemper, Donald Bisch and the City of Naperville to dismiss the plaintiffs’ complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth in this order the court grants defendants’ motions to dismiss. I. STATEMENT OF FACTS According to the defendants, Regency mistakenly credited plaintiffs’ bank account with a deposit in the amount of $20,000 when plaintiffs had only deposited $2,000. Upon discovering this error, Regency demanded that plaintiffs return the amount of $18,000 which had been credited to their account in error. When the plaintiffs refused to return the funds, Regency suspected plaintiffs had committed a theft and therefore contacted the Naperville Police Department as Regency believed it was obligated to do in adherence to federal regulatory requirements. It is Regency’s conduct and the ensuing conduct of police officers Joel Truemper and Donald Bisch, who investigated Regency’s charge, of which plaintiffs complain. Count I of the complaint alleges that the defendants “conspired with each other to de-. prive the plaintiffs of due process of law and their right of privacy and equal protection of the laws, by arbitrarily and irrationally attempting to collect an alleged civil debt purportedly owed plaintiffs to [Regency] by threats of criminal prosecution, coercion and harassment_” Complaint, at ¶ 9. Specifically, plaintiffs’ complaint contains the following claims. First, plaintiffs allege that Regency filed a criminal charge against the plaintiffs with defendant City of Naperville that plaintiffs had “passed a ‘bad check’.” Complaint, at ¶ 9(a). Plaintiffs allege that this “act was irrational and without legal justification and was done for the purpose of pursuing a civil matter.” Id. Second, plaintiffs allege that police officers Truemper and Bisch “arbitrarily harassed the plaintiffs at their home and at their respective places of employment by letting it be known that plaintiffs purportedly owed $18,000.00 to" }, { "docid": "15164332", "title": "", "text": "the record actually contradicted any inference that the defendants ever made use of the banking statements and overdraft notices they received to manage a short-lived check-kiting scheme involving two bank accounts. The problem with plaintiffs’ complaint here is that, even making all inferences in the plaintiffs’ favor, the Bank’s mailing of monthly statements and overdraft notices did not further the defendants’ alleged scheme. The scheme did not consist of misrepresenting Gallimore, Inc.’s account balance, nor did it consist of collecting excessive overdraft charges, or of misrepresenting that overdraft checks were being honored when in fact they were not. Instead, plaintiffs allege that the defendants extracted personal collateral from the Gallimores by falsely representing that the Bank would continue to honor Gallimore, Inc.’s overdraft checks. How routine, accurate banking statements and overdraft notices could possibly aid the defendants in carrying out any aspect of this scheme is difficult to imagine. Indeed, if anything, the banking statements and overdraft notices would probably make it more likely that the alleged scheme would be discovered because they would show whether or not the Bank was continuing to honor checks drawn on insufficient funds. See, e.g., Spiegel v. Continental Illinois National Bank, 790 F.2d 638, 649 (7th Cir.) (mailings that made it more likely that the alleged scheme would be uncovered could not constitute mail fraud because they were not in furtherance of the scheme), cert. denied, — U.S.-, 107 S.Ct. 579, 93 L.Ed.2d 582 (1986); United States v. Staszcuk, 502 F.2d 875, 881 (7th Cir.1974) (rejecting as irrelevant the government’s argument that but for the fraudulent scheme there would have been no mailings), cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975); Evanston Bank v. ContiCommodity Services, Inc., 623 F.Supp. at 1025 (mailing regular and accurate reports to the victim cannot further a scheme to defraud). Because plaintiffs’ mail fraud allegations are deficient, the complaint alleges no “racketeering activity” under § 1961(1). Therefore, there can be no “pattern of racketeering activity” (we do not, therefore, address the weakness of the pattern allegations, which necessarily must relate to the encumberance of assets" }, { "docid": "15487624", "title": "", "text": "County Jail in Douglasville, Georgia. Complaint, para. 1-2; Return of Service. This court’s jurisdiction is premised upon 28 U.S.C. Section 1332. Plaintiff’s complaint alleges the following. On July 1, 1984, plaintiff issued a $10,000 fidelity bond covering defendant in the execution of his duties as secretary-treasurer of the Brotherhood of Locomotive Engineers Division 305, Atlanta, Georgia (hereinafter “the Brotherhood”). The bond, executed in favor of the Brotherhood, was issued for a three-year term between July 1, 1984 and July 1, 1987. Complaint, para. 4. On December 10, 1985, the Brotherhood filed with the plaintiff a proof of loss under the bond alleging that the defendant had “failed to discharge faithfully his duties as secretary-treasurer causing the Brotherhood to sustain a loss in the net amount of $10,828.84.” Id., para. 5 and Exhibit A. Specifically, it is alleged that defendant (1) failed to deposit into the Brotherhood’s bank account several checks made payable to the Brotherhood, and (2) made numerous, unauthorized withdrawals from the Brotherhood’s bank account for his own use. Id., para. 6 and Exhibit A. After investigation confirming these allegations, plaintiff fulfilled its obligation to the Brotherhood under the bond and issued a check payable to the Brotherhood in the full amount of the bond, $10,000. Id., para. 8 and Exhibit B. In return, the Brotherhood executed in plaintiff’s favor a “Release and Assignment” whereby it assigned to plaintiff “any and all rights of action it has against any persons connected with the claim arising out of the acts of [defendant].” Id., para. 9 and Exhibit C. When plaintiff’s attempts to arrange reimbursement discussions with defendant were unsuccessful, the present lawsuit was instigated. Id., para. 10. Plaintiff’s complaint is comprised of four alternative counts. Count I alleges defendant’s liability to plaintiff “for all losses and damages ... occurred or suffered by reason or in consequence of the bond” under the state law principle of indemnity. Id., para. 11-12. Count II is brought pursuant to the common law principle of subrogation. Under this count, as well as under Count III alleging “statutory subrogation,” it is asserted that “[plaintiff’s] rights as" }, { "docid": "10299461", "title": "", "text": "regulatory and law enforcement authorities which resulted in the filing of federal criminal charges against plaintiff Barbara Joan Waye. However, plaintiffs cannot state a claim for such a cause of action at this time, because an essential element is lacking. To establish a claim for malicious prosecution, plaintiffs must allege the conclusion in her favor of criminal proceedings initiated against plaintiff Barbara Joan Waye. Allegation of that element at this time would be impossible. This court takes judicial notice of the fact that the criminal charges filed against Barbara Joan Waye are still pending, and trial on those charges is scheduled to occur some time this Spring. Plaintiffs’ claim for bad -faith fails as well. No such cause of action exists. “Bad faith” is not a cause of action. In addition, once again, no duty is alleged, and none exists under the facts pled. Plaintiffs’ claims of negligence and bad faith asserted in Count I will, therefore, be dismissed. Claims asserted under the Financial Privacy Act Count II of plaintiffs’ complaint asserts a claim under the federal Right to Financial Privacy Act. Plaintiffs allege that the bank improperly provided federal authorities with records pertaining to the Medfax-Sentinel account. Plaintiffs allege that their financial records, consisting specifically of six can-celled cheeks drawn on the Medfax-Sentinel account, were supplied pursuant to government subpoena. (Plaintiffs’ complaint, pp. 3-5 and exhibits “E” and “F”). This was, they allege, a violation of their rights under the Act because they were not provided with a copy of the subpoena. The asserted bases for their claims are sections 3403 and 3405 of the Act. Section 3403(a) establishes a right of privacy in financial records held by a financial institution. It provides, in relevant part: No financial institution ... may provide to any Government authority access to or copies of, or the information contained in, the financial records of any customer ex cept in accordance with the provisions of this chapter. 12 U.S.C. § 3403(a). We reject the bank’s argument that the cancelled checks are not financial records within the meaning of the Act. “Financial record” is broadly" }, { "docid": "23618961", "title": "", "text": "barring the United States from seizing property pursuant to § 981; (7) money damages against the federal and Bank Defendants for alleged intentional misrepresentations; (8) money damages for negligent misrepresentations; and (9) declaratory and injunctive relief striking down 31 U.S.C. § 5324 as being void for vagueness in violation of the due process clause. Thus, Plaintiffs sought to add three new causes of action, counts III, VIII, and IX. In addition, Plaintiffs argued that the United States’ sovereign immunity, and thus the sovereign immunity of its officers and agents in their official capacities, was waived under the APA, 5 U.S.C. § 702. First, as discussed earlier, the APA does not operate to waive the government’s sovereign immunity from suit as to Plaintiffs’ claims for money damages in counts I, II, and III of the first amended complaint (counts I, II, and VII of the second amended complaint). Plaintiffs’ action for negligent misrepresentation against the federal Defendants in the second amended complaint (count VIII) is similarly barred by sovereign immunity. Second, Plaintiffs’ claim for declaratory relief setting aside the consent judgment for the civil forfeiture of their property (count III) is barred by the doctrine of claim preclusion. Plaintiffs had a full and fair opportunity to present challenges to the legality of the civil forfeiture of their property in the action in which the consent judgment was entered. Count IV against Reno and Green for failure to return Plaintiffs’ forfeited assets is barred, as discussed earlier, by prosecu-torial or qualified immunity. Further, Plaintiffs’ claim for negligent misrepresentation (count VIII) against Defendant Oxford Bank is barred by 12 U.S.C. § 3403(c), which precludes actions against financial institutions for reporting potentially illegal activity under that section. Finally, Plaintiffs’ claim for declaratory and injunctive relief striking down 31 U.S.C. § 5324(a)(3) (count IX) will not survive a motion to dismiss. Section 5324(a)(3) provides that No person shall for the purpose of evading the reporting requirements of section 5313(a) or 5325 or any regulation prescribed under any such section— (3) structure or assist in structuring, or attempt to structure or assist in structuring, any transaction" }, { "docid": "10299457", "title": "", "text": "Cir.1980); and Truhe v. Rupell, 641 F.Supp. 57, 58 (M.D.Pa.1985) (Rambo, J.). Although the complaint is to be liberally construed in favor of the plaintiff (See: Fed.R.Civ. 8(f)), the court does not have to accept every allegation it contains as true. Conclusory allegations of law, unsupported conclusions and unwarranted inferenees need not be accepted as true. Conley, supra, 355 U.S. at 45-46, 78 S.Ct. at 102. Claims of negligence and bad faith Count I of plaintiffs complaint asserts a cause of action based on the alleged disclosure of financial records to federal authorities. Although captioned a claim for negligence and bad faith, the claims asserted under Count I fall under the federal Right to Financial Privacy Act. Defendant’s reporting of suspected check kiting on the part of plaintiff Barbara Joan Waye does not establish the violation of any legal right of plaintiffs. Plaintiffs’ attempt to state a cause of action for such conduct is thwarted by the plain language of section 3403(c) of the Act, which authorizes such notification and declares financial institutions exempt from claims like those asserted here. Section 3403(c) provides, in relevant part: Nothing in this chapter shall preclude any financial institution ... from notifying a Government authority that such institution ... has information which may be relevant to a possible violation of any statute or regulation ... Any financial institution making a disclosure of information pursuant to this subsection, shall not be liable to the customer under any law or regulation of the United States or any constitution, law, or regulation of any State or political subdivision thereof, for such disclosure or for any failure to notify the customer of such disclosure. Under the plain language of the section 3403, plaintiffs have no cause of action against First Citizen’s for its notification of suspected wrongdoing on the part of plaintiff Barbara Joan Waye. Moreover, plaintiffs negligence claim fails because no duty is alleged, and none is owed by the bank under the facts, as alleged, and as fleshed out in the numerous documents attached as exhibits to plaintiffs’ complaint. Plaintiffs allege that the bank reported to" }, { "docid": "16340881", "title": "", "text": "ORDER LEE, District Judge. THIS MATTER is before the Court on Defendant’s Motion for Judgment on the Pleadings. This case concerns Plaintiffs allegations that Defendant violated the Fair Credit Reporting Act (“FCRA”). Ex-perian Information Systems, Inc. (“Experi-an,” “Defendant”) is a consumer reporting agency, as defined by FCRA § 1681(f). The issue before the Court is whether Defendant violated the FCRA by reporting derogatory information that Plaintiff concedes is accurate. The Court grants Defendant’s Motion for Judgment on the Pleadings because FCRA actions require a showing that the challenged credit report contains inaccurate information. I. BACKGROUND On October 18, 2001, Stephanie Dauster (“Plaintiff,” “Ms. Dauster”) purchased a sofa from Roomstore using a revolving credit agreement set up through Household Bank. See Compl. at 2. Ms. Dauster alleges that the sofa had several material defects. Id. After a Roomstore repairper-son said he could not repair the sofa, Plaintiff attempted to return it. Id. at 3. Roomstore refused to accept the sofa and refused to credit Ms. Dauster’s account for its return. Id. Roomstore and Household now report the account as delinquent and have caused derogatory information to be placed on Plaintiffs credit report. Id. In or about February 2004, Plaintiff sent a letter to Experian disputing the accuracy of her account. Id. Experian’s investigation confirmed that the account was delinquent and that it belonged to Plaintiff. Id. at 4. II. DISCUSSION A. Standard of Review Judgment on the pleadings, as provided by Rule 12(c) of the Federal Rules of Civil Procedure, is appropriate if “it appears to a certainty that the nonmoving party cannot prove any set of facts in support of its claim that would entitle it to relief.” Shooting Point, L.L.C. v. W.M. Cumming, 238 F.Supp.2d 729, 735 (E.D.Va.2002). The standard of review under a Rule 12(c) motion and a Rule 12(b)(6) motion are identical. Id. The Court is required to accept the complaint’s factual allegations as true and view the allegations in the light most favorable to the nonmoving party. Id. B. Analysis The Court grants Defendant’s Motion for Judgment on the Pleadings because Plaintiff failed to establish that" }, { "docid": "10299471", "title": "", "text": "be granted. Claims for harassment and libel Count III of plaintiffs’ complaint asserts claims for harassment and libel. Both claims are based on a letter dated December 20, 1991 sent by Chester L. Reed, Office Manager of defendant’s Sayre, Pennsylvania branch. Reed’s letter was written in response to a letter from Mrs. Waye to the Office of Bank customer Affairs which was forwarded to the Office of Thrift Supervision (OTS). Reed copied in Mark Graham of OTS in his reply letter. Plaintiff claims that two statements made in the letter are defamatory: If some writes checks on their own account knowing there are insufficient funds to cover the amount of the checks, then deposits the checks in another account of their own, what would you call this activity? The facts certainly seem to indicate that you were very aware that your deposits at Star Savings and Loan were being made with funds you did not have at your account with First Midwest Bank. I this is indeed the case, then Webster’s definition of fraud would certainly apply to you. Your letter indicates that the charges against you are ‘politically motivated’ by Dr. John Thomas. I can only respond, that desperate people, such as yourself, will say and do desperate things. To try and ‘blame’ Dr. Thomas for your problems is certainly the act of a desperate person. The course of action followed by Star Savings is the one that would have been taken for any account involved in this type of activity. Your relationship with Dr. Thomas has absolutely no bearing on the legal action you are now facing as a result of check kiting. Plaintiff Barbara Joan Waye claims that the reference to fraud and the characterization of her as a “desperate person” are defamatory. Her claims fail for two reasons. The statements made are not defamatory. Second, the letter was not published to anyone outside the privileged circle of communicants. It was addressed to plaintiff herself. Although a copy was mailed to OTS, that communication was privileged and cannot give rise to a cause of action because of" }, { "docid": "8036431", "title": "", "text": "possessing information relevant to a possible violation of law involving one of its accounts is permitted to make a disclosure of that information to law enforcement. However, the disclosure permitted is limited to the name of the account holder and “the nature of any suspected illegal activity.” 12 U.S.C. § 3403(c). Because the complaint alleges that First Union went beyond that and disclosed actual financial records pertaining to Lopez’s account (i.e., the electronic funds transfers communications, the contents of which were held in electronic storage), First Union’s alleged disclosures are not protected by 12 U.S.C. § 3403(c). Accordingly, count III of Lopez’s complaint states a claim under the RFPA. 3. The Annunzio-Wylie Anti-Money Laundering Act The Annunzio-Wylie Anti-Money Laundering Act of 1992, 31 U.S.C. § 5318(g), provides in relevant part: (g) Reporting of suspicious transactions.— (1) In general. — The [Treasury] Secretary may require any financial institution, and any director, officer, employee, or agent of any financial institution, to report any suspicious transaction relevant to a possible violation of law or regulation. (2) Notification prohibited. — A financial institution, and a director, officer, employee, or agent of any financial institution, who voluntarily reports a suspicious transaction, or that reports a suspicious transaction pursuant to this section or any other authority, may not notify any person involved in the transaction that the transaction has been reported. (3) Liability for disclosures. — Any financial institution that makes [i.] a disclosure of any possible violation of law or regulation or [ii.] a disclosure pursuant to this subsection or [iii.] any other authority, and any director, officer, employee, or agent of such institution, shall not be liable to any person under any law or regulation of the United States or any constitution, law, or regulation of any State or political subdivision thereof, for such disclosure or for any failure to notify the person involved in the transaction or any other person of such disclosure. The three safe harbors provided by § 5318(g)(3) supply an affirmative defense to claims against a financial institution for disclosing an individual’s financial records or account-related activity. Financial institutions are" }, { "docid": "8036430", "title": "", "text": "to enact the Right to Financial Privacy Act, 12 U.S.C. §§ 3401 et seq., (“the RFPA”), which provides individuals with some privacy rights in financial records that are in the hands of third parties. Among other things, the RFPA defines the conditions in which financial institutions may disclose an individual’s financial records, see 12 U.S.C. § 3403, defines the conditions in which government officials may access an individual’s financial records, see 12 U.S.C. § 3402, and provides a civil cause of action for anyone injured by a violation of the act’s substantive provisions, see 12 U.S.C. § 3417. In count III of her complaint, Lopez alleges First Union violated her rights under the RFPA by disclosing her financial records under conditions not authorized by the RFPA. First Union does not argue that Lopez has failed to allege a prima facie violation of the RFPA. Instead, it contends that count III should be dismissed because the alleged disclosures are protected by 12 U.S.C. § 3403(c), another section of the RFPA. Under § 3403(c), a financial institution possessing information relevant to a possible violation of law involving one of its accounts is permitted to make a disclosure of that information to law enforcement. However, the disclosure permitted is limited to the name of the account holder and “the nature of any suspected illegal activity.” 12 U.S.C. § 3403(c). Because the complaint alleges that First Union went beyond that and disclosed actual financial records pertaining to Lopez’s account (i.e., the electronic funds transfers communications, the contents of which were held in electronic storage), First Union’s alleged disclosures are not protected by 12 U.S.C. § 3403(c). Accordingly, count III of Lopez’s complaint states a claim under the RFPA. 3. The Annunzio-Wylie Anti-Money Laundering Act The Annunzio-Wylie Anti-Money Laundering Act of 1992, 31 U.S.C. § 5318(g), provides in relevant part: (g) Reporting of suspicious transactions.— (1) In general. — The [Treasury] Secretary may require any financial institution, and any director, officer, employee, or agent of any financial institution, to report any suspicious transaction relevant to a possible violation of law or regulation. (2) Notification prohibited." }, { "docid": "23618943", "title": "", "text": "v. First Union Nat’l Bank of Florida, 129 F.3d 1186, 1190 (11th Cir.1997). However, § 3403(c) on its face applies in the instant case such that Defendant Oxford Bank is immune from suit. See Waye v. Commonwealth Bank, 846 F.Supp. 321, 324 (W.D.Pa.1994) (holding that § 3403 barred plaintiffs negligence and bad faith claims against bank for reporting to federal authorities that plaintiffs were involved in a check kiting scheme, which they claim was untrue; bank had no fiduciary duty “to refrain from reporting suspected illegal activity on the part of their customers”). Plaintiffs’ reliance on Lopez is clearly misplaced. The Lopez Court determined that release of financial records after a verbal request rather than a written request and release of information other than the account holder’s name and the nature of the suspected illegal activity was outside the scope of § 3403(c). See Lopez, 129 F.3d at 1190-91. Lopez does not apply in the instant case because Plaintiffs do not allege that Defendant Oxford Bank released information outside the scope of § 3403(c) — the reporting of their suspected illegal activity is exactly what is at issue — or released information prior to obtaining a written request from the government. Therefore, the district court properly dismissed Plaintiffs’ fraud claim based on Defendant’s immunity from suit under § 3403(c). The district court also dismissed , Plaintiffs’ fraud claim on the ground that Plaintiffs filed their action outside Michigan’s six-year statute of limitations, for such actions. Plaintiffs argue that their claim for fraud did not accrue until at least September 25, 1992, the date of the consent judgment for civil forfeiture. Plaintiffs filed their complaint in state court on September 23, 1998. Under Michigan law, a cause of action accrues when the plaintiff can allege each element of the asserted claim. Moll v. Abbott Labs., 444 Mich. 1, 506 N.W.2d 816, 824 (Mich.1993). Further, Michigan courts apply the discovery rule, whereby a claim accrues when the plaintiff discovers, or through the exercise of reasonable diligence, should have discovered, an injury and causal connection between his injury and the defendant’s conduct. Id." }, { "docid": "10299456", "title": "", "text": "the party neglected to make before judgment. Id. at 318. Plaintiffs’ motion raises no new issues of merit. The court’s reasons for denying the motion for default initially are set forth at length in the prior order, and there is no need to revisit those issues. We therefore decline to reconsider plaintiffs’ motion for a default judgment. DEFENDANT’S RULE 12(b)(6) MOTION TO DISMISS Rule 12(b)(6) standard Under a Rule 12(b)(6) motion, a complaint may not be dismissed for failure to state a claim upon which relief can be granted unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which could entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The court must accept all material allegations in the complaint as true and construe them in the light most favorable to the party opposing the motion. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Johnsrud v. Carter, 620 F.2d 29 (3d. Cir.1980); and Truhe v. Rupell, 641 F.Supp. 57, 58 (M.D.Pa.1985) (Rambo, J.). Although the complaint is to be liberally construed in favor of the plaintiff (See: Fed.R.Civ. 8(f)), the court does not have to accept every allegation it contains as true. Conclusory allegations of law, unsupported conclusions and unwarranted inferenees need not be accepted as true. Conley, supra, 355 U.S. at 45-46, 78 S.Ct. at 102. Claims of negligence and bad faith Count I of plaintiffs complaint asserts a cause of action based on the alleged disclosure of financial records to federal authorities. Although captioned a claim for negligence and bad faith, the claims asserted under Count I fall under the federal Right to Financial Privacy Act. Defendant’s reporting of suspected check kiting on the part of plaintiff Barbara Joan Waye does not establish the violation of any legal right of plaintiffs. Plaintiffs’ attempt to state a cause of action for such conduct is thwarted by the plain language of section 3403(c) of the Act, which authorizes such notification and declares financial institutions exempt from" }, { "docid": "18271507", "title": "", "text": "arbitration under the rules of the New York Stock Exchange. The accounts were closed in the spring of 1978. Throughout the period in which they had accounts with Proctor, Cook and Adams & Peck, the plaintiffs received confirmation slips whenever a transaction occurred in any of the accounts and monthly statements showing any transactions and listing the holdings in their accounts at the end of each month. II. Claims of Plaintiffs. Plaintiffs’ major allegations are that defendants, through the representations of Potts and by their own actions, committed fraud and violated various federal laws and rules and regulations of the Securities and Exchange Commission (S.E.C.) and of the New York Stock Exchange (N.Y.S.E.). Count I charges common law fraud. Counts II and III allege breaches of contracts. Count IV appears to allege a violation of S.E.C. Rule 10b-5, 17 C.F.R. § 240, 10b-5. In Count V, plaintiffs allege that their accounts were “securities” and that Potts made untrue statements in the solicitation of those “securities” in violation of Rule 10b-5. Counts VI and XI also charge violations of Rule 10b-5 in that trading in the accounts when they were not registered as securities was a fraudulent and deceptive course of business. Count X charges that all defendants are derivatively liable for the alleged violations of securities law because they either knew or had reason to know of the illegal activities and participated therein. Finally, Count XIII states a claim for a violation of N.Y.S.E. rules. Plaintiffs seek recision of their contracts with Proctor, Cook, the return of all funds and property deposited with Proctor, Cook, plus interest, damages, costs and attorney’s fees. III. Motions to Dismiss And/Or for Summary Judgment. (A) Proctor, Cook '& Co. Proctor, Cook & Co. was dissolved by decree of the Massachusetts Supreme Judicial Court on December 12, 1973. According to M.G.L. c. 156B, § 102, “Every corporation whose corporate existence for other purposes is terminated . . . shall nevertheless be continued as a body corporate for three years after the time its existence is terminated, for the purpose of prosecuting and defending suits by" }, { "docid": "10299477", "title": "", "text": "requesting the interest was addressed to Joan Waye is of no consequence. It is the business on behalf of which plaintiffs invoke the claim of usury and a business account in connection with which the interest was requested. Smith v. Mitchell, 420 Pa.Super. 137, 616 A.2d 17 (1992). ' -Defendant’s motion to dismiss Count IV will, therefore, be granted. Claim for theft Count V of plaintiffs complaint alleges a claim for theft based on defendant’s alleged conversion of monies remitted by plaintiffs to correct an overdraft to its own use. Plaintiffs allege that on April 19, 1991, through their then counsel, Harry B. Goldberg, Esq., they sent defendant a check in the amount of $81,803.85 “to be deposited into their business account ... to cover an alleged overdraft which Defendant had informed government agencies existed on Plaintiffs’ business account as a result of six returned deposit items.” (Plaintiffs’ complaint,, pp. 6-7). Plaintiffs allege that defendants “failed to deposit the Plaintiffs’ money ... into the Plaintiffs’ business account ... but instead, used the Plaintiffs’ money ... for the Defendant’s own benefit.” (Plaintiffs’ complaint, p. 7) Under Pennsylvania law, there is no statutory or common law cause of action for theft. “Theft” refers to criminal conduct governed by statutory law found at 18 Pa. Cons.Stat.Ann., Chap. 39. Plaintiffs’ allegations could, however, be construed as an attempt to allege a claim for conversion and we will consider its potential merit as such. The exhibits attached to plaintiffs’ complaint belie plaintiffs’ claim that the bank wrongfully converted funds sent to it by Goldberg. The chain of correspondence between the bank and Goldberg makes it clear that the $81,803.85 was for, and was remitted to the bank for, that purpose. In his letter of April 19, 1991 to Chester L. Reed at First Citizen’s, which is referenced in plaintiffs complaint on page 7, Goldberg states: Enclosed please find check in the amount of $81,803.85, representing payment of six checks returned to you from First Midwest Bank; the six checks being made' payable to Medfax-Sentinel ... (Plaintiffs’ complaint, exhibit “E”). See also: (Goldberg’s follow-up letter dated" }, { "docid": "23618942", "title": "", "text": "or officer, employee, or agent has information which may be relevant to a possible violation of any statute or regulation. Such information may include only the name or other identifying information concerning any individual, corporation, or account involved in and the nature of any suspected illegal activity. Such information may be disclosed notwithstanding any constitution, law, or regulation of any State or political subdivision thereof to the contrary. Any financial institution, or officer, employee, or agent thereof, making a disclosure of information pursuant to this subsection, shall not be hable to the customer under any law or regulation of the United States or any constitution, law, or regulation of any State or political subdivision thereof, for such disclosure or for any failure to notify the customer of such disclosure. 12 U.S.C. § 3403(c). Plaintiffs do not dispute that the alleged disclosures by Defendant Oxford Bank, which serve as the basis for the fraud claim, were made pursuant to § 3403(c). Plaintiffs nevertheless argue that § 3403(c) does not protect Defendant Oxford Bank, relying on Lopez v. First Union Nat’l Bank of Florida, 129 F.3d 1186, 1190 (11th Cir.1997). However, § 3403(c) on its face applies in the instant case such that Defendant Oxford Bank is immune from suit. See Waye v. Commonwealth Bank, 846 F.Supp. 321, 324 (W.D.Pa.1994) (holding that § 3403 barred plaintiffs negligence and bad faith claims against bank for reporting to federal authorities that plaintiffs were involved in a check kiting scheme, which they claim was untrue; bank had no fiduciary duty “to refrain from reporting suspected illegal activity on the part of their customers”). Plaintiffs’ reliance on Lopez is clearly misplaced. The Lopez Court determined that release of financial records after a verbal request rather than a written request and release of information other than the account holder’s name and the nature of the suspected illegal activity was outside the scope of § 3403(c). See Lopez, 129 F.3d at 1190-91. Lopez does not apply in the instant case because Plaintiffs do not allege that Defendant Oxford Bank released information outside the scope of § 3403(c) —" } ]

[ { "docid": "22883782", "title": "", "text": "American Pipe, wherein the running of the statute of limitations was suspended as to both named and unnamed class members. Defendants argue, however, that American Pipe cannot be used here because plaintiffs have resisted that part of the American Pipe rule that provides for suspension and have instead insisted that the statute of limitations run anew. To the extent that defendants make an estoppel argument, we reject it, but the substance of their argument bears further consideration. Application of state tolling rules to § 1983 claims is required by 42 U.S.C. § 1988, Board of Regents v. Tomanio, 446 U.S. at 484-85, 100 S.Ct. at 1795; Robertson v. Wegmann, 436 U.S. 584, 588, 98 S.Ct. 1991, 1994, 56 L.Ed.2d 554 (1978), unless the state rules are inconsistent with the federal policy underlying § 1983, Board of Regents v. Tomanio, 446 U.S. at 485-86, 100 S.Ct. at 1795, 1796; see Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 465, 95 S.Ct. 1716, 1722, 44 L.Ed.2d 295 (1975) (same as to § 1981 claims). Thus in a § 1983 case, the federal rule and underlying reasoning of American Pipe are not generally applicable. Johnson v. Railway Express Agency, Inc., 421 U.S. at 466-67, 95 S.Ct. at 1723. But see Morton v. Charles County Bd. of Educ., 373 F.Supp. 394, 396 (D.Md.1974), aff’d on other grounds, 520 F.2d 871 (4th Cir.), cert. denied, 423 U.S. 1034, 96 S.Ct. 566, 46 L.Ed.2d 408 (1975) (under American Pipe, § 1983 class action tolled limitations period for all class members). In the instant case, though, there is no discernible state rule. Moreover, Puerto Rico has modeled its class action procedure, P.R. Laws Ann. tit. 32, App. II, R. 20.1, on the federal class action procedure. Caguas Lumber Yard, Inc. v. Superior Court, 96 P.R.R. 826, 830 (1969). Because the decision in American Pipe that unnamed class members could take advantage of the tolling effect of a pending class action was based on an interpretation of the federal class action rule, Fed.R.Civ.P. 23(a), American Pipe & Constr. Co. v. Utah, 414 U.S. at 550-52, 94 S.Ct." } ]

[ { "docid": "7414354", "title": "", "text": "limitations period in § 605(a) for all putative class members, including Menominee, under American Pipe. At the same time, Menominee acknowledges that it did not submit its claims to the contracting officer until after class certification was denied, and it concedes that the submission of such a claim is a jurisdictional prerequisite to judicial review. Appellant’s Br. at 42 n. 17. It follows that Menominee should have been excluded from the Cherokee class, had one been certified, because the tribe had not satisfied the jurisdictional exhaustion requirement. In arguing otherwise, the tribe relies on cases permitting class-action tolling of the administrative filing deadlines in Title VII and the Age Discrimination in Employment Act (ADEA). See Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1392-93 (11th Cir.1998) (en banc); Griffin v. Singletary, 17 F.3d 356, 359-61 (11th Cir.1994); Andrews v. Orr, 851 F.2d 146, 148-49 (6th Cir.1988). Those cases are inapposite, however, because neither Title VII nor the ADEA incorporates a jurisdictional exhaustion requirement. See Zipes, 455 U.S. at 395 n. 11, 397, 102 S.Ct. 1127. Also unhelpful is Menominee’s citation to McDonald v. Secretary of Health & Human Services, 834 F.2d 1085 (1st Cir. 1987), in which all unnamed class members had already satisfied “the non-waivable jurisdictional requirement of having presented ‘a claim for benefits ... to the Secretary,’ ” id. at 1092 n. 4 (quoting Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). Accord Arctic Slope, 583 F.3d at 794 & n. 1. Menominee further argues that even if the Cherokee court could not have exercised jurisdiction over its claims, class-action tolling of the period for filing an administrative claim is nevertheless required. In keeping with this court’s “functional reading of American Pipe,” McCarthy v. Kleindienst, 562 F.2d 1269, 1274 (D.C.Cir.1977), we consider whether tolling under these circumstances would serve the purposes underlying the class-action tolling doctrine. We hold that the limitations period for submitting an administrative claim is not tolled under American Pipe for asserted class members who, because of their failure to satisfy a jurisdictional exhaustion requirement, are ineligible to participate" }, { "docid": "21827833", "title": "", "text": "forward to “pick up the spear” after Collins’s claim was dismissed. Cowen, 70 F.3d at 941. That makes sense. Because the limitations period was not tolled during the pendency' of the Sonne appeal, it’s hot likely that any class member has a timely claim. That’s not to say that no 'one could step forward to bring a class claim. 'If there are class members for whom the statute of limitations has not run, the district court’s summary denial of class certification would not bind them. See Sawyer v. Atlas Heating & Sheet Metal Works, Inc., 642 F.3d 560, 564 (7th Cir. 2011). The limitations clock on Collins s claim resumed when the Serme class action was dismissed with prejudice .prior to class certification. Accordingly, his claim is time-barred. The judgment of the district court is Affirmed. . Phipps v. Wal-Mart Stores, Inc., 792 F.3d 637, 650 (6th Cir. 2015) (\"When the district court denied class certification .... American Pipe tolling ended....”); Giovanniello v. ALM Media, LLC, 726 F.3d 106, 116 (2d Cir. 2013) (“We now take this opportunity to join our sister circuits and hold that [American Pipe] tolling does not extend beyond the denial of class status.\"); Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 519 (5th Cir. 2008) (\"Therefore, it is clear from these cases that if the district court denies class certification under Rule 23, tolling of the statute of limitations ends.”); Bridges v. Dep’t of Md. State Police, 441 F.3d 197, 211 (4th Cir. 2006) (\"[T]he statute of limitations ‘remains tolled for all members of the putative class until class certification is denied for whatever reason,’ ” (quoting Crown, Cork & Seal v. Parker, 462 U.S. 345, 354, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983))); Stone Container Corp. v. United States, 229 F.3d 1345, 1355 (Fed. Cir. 2000) (\"[T]olling ends with the district court’s dismissal of the class action”); Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1378 (11th Cir. 1998) (en banc) (\"[W]e hold that the tolling of the statute of limitations ceases when the district court enters an interlocutory order denying class certification,”);" }, { "docid": "13347164", "title": "", "text": "Crown, Cork “ ‘untethered’ ” the American Pipe rule “ ‘from any necessary connection to the reasons for denying certification.’ ” Bridges v. Dep’t of Maryland State Police, 441 F.3d 197, 211 (4th Cir.2006) (quoting Smith v. Pennington, 352 F.3d 884, 892 (4th Cir.2003)). The result of this untethering was to extend American Pipe as far as is justified by the objectively reasonable reliance interests of the absent class members. If courts were to toll statutes of limitations only when class certification was denied for lack of numerosity, the rule, which would turn on the substantive reason for the denial, would not discourage premature intervention because class members could not know or predict at the time of filing why class certification might eventually be denied. Bridges, 441 F.3d at 211. 2. With this understanding of the American Pipe rule, we must address whether the Supreme Court of Arizona would adopt this rule to toll statutes of limitations for purported class actions filed under its own version of Rule 23. As noted by the district court, Arizona Rule of Civil Procedure 23 “is identical to Federal Rule of Civil Procedure 23,” and “Arizona courts view federal cases construing the federal rule as authoritative, though not controlling.” (citing Lennon v. First Nat’l Bank of Ariz., 21 Ariz.App. 306, 518 P.2d 1230, 1232 n. 3 (1974); ESI Ergonomic Solutions, LLC v. United Artists Theatre Circuit, Inc., 203 Ariz. 94, 50 P.3d 844, 848 n. 2 (2002)). Furthermore, the Supreme Court of Arizona has recognized class-action tolling in the administrative context. In Arizona Department of Revenue v. Dougherty, 200 Ariz. 515, 29 P.3d 862 (2001), the court considered whether “filing a class claim in an administrative procedure will toll the statute of limitations for all putative class members,” id. at 863, or whether individual administrative claims were necessary to preserve one’s rights. The court held that the filing of a class administrative claim satisfied the exhaustion requirement as to all members of the putative class and further held that the filing of the administrative claim tolled the statute of limitations “for other putative class" }, { "docid": "4253911", "title": "", "text": "a class claim is asserted until the day the suit is conclusively not a class action — which may be because the judge rules adversely to the plaintiff, or because the plaintiff reads the handwriting on the wall and decides not to throw good money after bad. (Or perhaps because the defendant buys off the original plaintiff as soon as the statute of limitations runs, hoping to extinguish the class members’ claims. That’s a good reason for tolling, not a reason for blocking later suits.) We arrive at Atlas Heating’s final argument, and the reason why the district judge found that the case presents a substantial and difficult question justifying an interlocutory appeal. The judge thought that there is a conflict among the circuits on the question whether a second case may proceed as a class action. In both American Pipe and Crown, Cork & Seal, the second suits were brought as individual litigation, after the judge in the initial suits had determined that the victims were not numerous enough to justify class litigation CAmerican Pipe) or that the representative’s claims were not typical of the class (Crown, Cork & Seal). As the district judge and the parties understand the cases, five courts of appeals have concluded that successive suits that rely on American Pipe’s tolling principle never may proceed as class actions, while three courts of appeals have held otherwise. Compare Basch v. Ground Round, Inc., 139 F.3d 6 (1st Cir.1998); Korwek v. Hunt, 827 F.2d 874 (2d Cir.1987); Salazar-Calderon v. Presidio Valley Farmers Association, 765 F.2d 1334, 1351 (5th Cir.1985); Andrews v. Orr, 851 F.2d 146, 149 (6th Cir.1988); and Griffin v. Singletary, 17 F.3d 356 (11th Cir.1994) (all holding that the successive suits cannot proceed as class actions), with Yang v. Odom, 392 F.3d 97, 111 (3d Cir.2004); Great Plains Trust Co. v. Union Pacific R.R., 492 F.3d 986, 997 (8th Cir.2007); and Catholic Social Services, Inc. v. INS, 232 F.3d 1139, 1147-49 (9th Cir.2000) (en banc) (all holding that the successive suits may be certified as class actions). The parties ask us to choose sides. There" }, { "docid": "20396821", "title": "", "text": "cannot avoid that issue because the application of either the state or federal statute of limitations raises a question of law unresolved in this circuit. It serves neither the parties nor district courts presented with TCPA filings to resolve the issue applicable to 28 U.S.C. § 1658(a) — the reach of American Pipe tolling — and to avoid the one pertaining to Conn. Gen.Stat. § 52-570c(d)— the construction of the \"otherwise permitted\" provision of 47 U.S.C. § 227(b)(3) — the latter of which shows that the state statute of limitations, in fact, controls this TCPA filing. This opinion does not further address American Pipe tolling, and we intimate no view with respect to whether tolling under American Pipe extends through the pendency of a motion for reconsideration or on appeal. We acknowledge, however, that every circuit to have addressed the scope of this doctrine has concluded, as the district court did here, that American Pipe tolling ceases upon denial of class certification. See Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 519 (5th Cir.2008); Bridges v. Dep’t of Md. State Police, 441 F.3d 197, 211 (4th Cir.2006); Yang v. Odom, 392 F.3d 97, 102 (3d Cir.2004); Culver v. City of Milwaukee, 111 F.3d 908, 914 (7th Cir.2002); Stone Container Corp. v. United States, 229 F.3d 1345, 1355-56 (Fed.Cir.2000); Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1391 (11th Cir.1998) (en banc); Andrews v. Orr, 851 F.2d 146, 149-50 (6th Cir.1988); Fernandez v. Chardon, 681 F.2d 42, 48 (1st Cir.1982). . In maintaining that federal rather than state law provided the applicable statute of limitations, Giovanniello calculated the federal four-year limitations period to afford him 1,461 days from the January 28, 2004 fax transmission to file his TCPA complaint. Although acknowledging that his September 8, 2009 complaint was filed 2,051 days after the fax transmission, or 590 days outside the federal statute of limitations, Giovanniello asserted that this delinquency would be eliminated if the statute were tolled during the pendency of his two Connecticut putative class actions and the Southern District action. Specifically, if tolling continued through the August 6," }, { "docid": "15084626", "title": "", "text": "interests of the excluded putative class members.” Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1381 (11th Cir.1998) (holding that a denial of class certification stops American Pipe tolling); accord, Culver v. City of Milwaukee, 277 F.3d 908, 914 (7th Cir. 2002) (acknowledging that the statute of limitations resumes running “when class certification is denied”). The lesson of American Pipe and Crown, Cork & Seal is that tolling is appropriate for a second class action attempt, and the merits of that attempt can be addressed through application of principles of stare decisis and issue preclusion. Conclusion American Pipe and Crown, Cork & Seal require that the statute of limitations for class claims be tolled during the pendency of a previous class certification petition, at least where there is any issue as to the adequacy of the first representatives. The perceived problems of relitigating the class certification issue or not providing repose to the defendant can be curbed through other, better targeted doctrines that would not block legitimate class actions pursued by more appropriate class representatives. Accordingly, St. Vincent’s motion for partial dismissal (Dkt. No. 15) is denied. So ordered. . Initially, this action was filed with four named plaintiffs, but two have withdrawn, leaving only Gomez and Wagner-Barnett. . The Eighth Circuit endorsed the approach of Yang in Great Plains Trust Co. v. Union Pacific R. Co., 492 F.3d 986, 997 (8th Cir. 2007) (\"Whether the American Pipe rule applies to subsequent class actions, however, depends on the reasons for the denial of certification of the predecessor action.”). Great Plains Trust was decided on other grounds without discussing the Griffin approach. . Of course, Judge Barker was not writing with the Yang standard in mind or with any intention of informing a colleague whether she was denying class relief because of problems with the representatives or the class itself. The issue before her was whether the proposed class with the named plaintiffs and the plaintiffs’ counsel should be certified. As then-Circuit Judge Alito wrote in a separate opinion in Yang, \"in most circuits, the distinction ... between deficiencies in the" }, { "docid": "21469232", "title": "", "text": "argument at this stage of litigation. Great Plains asserts that In re General American Life Insurance Co. Sales Practices Litigation, 391 F.3d 907 (8th Cir.2004), requires us to remand this case to the District Court to consider whether class-action tolling is warranted. In that case, this Court remanded for consideration of whether cross-jurisdictional tolling was appropriate. Id. at 915. In this case, however, the circumstances presented allow us to determine whether the previous class actions tolled the statutes of limitation and if so, the effect of this tolling. This question can be answered by reference to the records of the previous class actions, and we may take judicial notice of proceedings in other courts that relate directly to matters at issue. Con- forti v. United States, 74 F.3d 838, 840 (8th Cir.), cert. denied, 519 U.S. 807, 117 S.Ct. 49, 136 L.Ed.2d 14 (1996). Accordingly, we will proceed with our analysis. In American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), the Supreme Court held that an applicable statute of limitations is tolled during the pendency of a class action for putative class members who intervene after the denial of class certification—at least where certification is denied for failure to meet the numerosity requirement of Rule 23 of the Federal Rules of Civil Procedure. Id. at 552-53, 94 S.Ct. 756. The American Pipe rule is designed to protect the federal procedural interest by preventing duplicative litigation from purported class members during the period that certification is pending. Id. at 553, 94 S.Ct. 756. The American Pipe rule has been extended to purported members of the class who later file individual suits rather than intervene. Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). Whether the American Pipe rule applies to subsequent class actions, however, depends on the reasons for the denial of certification of the predecessor action. See Yang v. Odom, 392 F.3d 97, 111 (3d Cir.2004) (“[W]here class certification has been denied solely on the basis of the lead plaintiffs’ deficiencies ..." }, { "docid": "14712709", "title": "", "text": "756, 38 L.Ed.2d 713 (1974), the Supreme Court allowed unnamed members of a class to intervene as individual plaintiffs in an individual action that continued after denial of class certification. The Court concluded that “the commencement of the original class suit tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status.” Id. at 553, 94 S.Ct. 756. In Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), the Court extended American Pipe to allow tolling not only when plaintiffs sought to intervene in a continuing action, but also when they sought to file an entirely new action. Specifically, the Court noted that “[t]he filing of a class action tolls the statute of limitations as to all asserted members of the class, not just as to interve-nors.” Id. at 350, 103 S.Ct. 2392 (internal quotation marks and citation omitted). However, the principles articulated in American Pipe and Crown, Cork are not without exceptions. In Andrews v. Orr, 851 F.2d 146, 149 (6th Cir.1988), the Sixth Circuit refused to interpret American Pipe to allow tolling when the district court in the previous action had denied class certification, and when the second action merely sought to re-litigate the same issue of class certification and thereby to circumvent the earlier denial of class status. In addition, tolling only applies to claims that were or could have been brought in the original class action. See Weston v. AmeriBank, 265 F.3d 366, 368-69 (6th Cir. 2001) (citing Crown, Cork, 462 U.S. at 354, 103 S.Ct. 2392 (Powell, J., concurring)). Neither Andrews nor Weston applies in this case, however. First, class certification was never denied (or granted) in the initial action, and the present case was not filed as a class action. Second, the claims brought in this case clearly fall within the rubric of those articulated in the Taylor-Poole action. Plaintiffs here point to the Supreme Court precedent holding that tolling of the limitations period continues up" }, { "docid": "21827827", "title": "", "text": "for putative class members of an uncertified class “when the suit is dismissed without prejudice or when class certification is denied.” Culver v. City of Milwaukee, 277 F.3d 908, 914 (7th Cir. 2002). Here we face a slightly different scenario. The question of class certification was never addressed because the district court (1) initially dispissed the case with prejudice and (2) later entered summary judgment. Does it matter for tolling purposes whether a suit is dismissed with prejudice or not? We’ve suggested before that it doesn’t. See In re Copper Antitrust Litig., 436 F.3d 782, 793 (7th Cir. 2006). The plaintiff in In re Copper argued that tolling continued through appeal of an order dismissing an earlier putative class action with prejudice. Id, We rejected that approach, holding that the plaintiff was “not entitled to take advantage of tolling ... beyond the date when the district court dismissed” the earlier suit. Id. “At that point,” we said, “the parties are on notice that' they must take steps to protect their rights or suffer the consequences.” Id. We are not aware of any federal court that has reached a contrary conclusion. The Fifth Circuit has held that tolling continues on appeal from a dismissal with prejudice but only when a class has been certified. See Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 520-21 (5th Cir. 2008). The court explained that “members of the certified class may continue to rely on the class representative to protect their interests throughout the entire prosecution of the suit, including appeal.” Id. But, the court observed, “[t]he same result does not flow for members of a putative class that has not been certified,” noting a “distinction between putative members of an uncertified class and members of a certified class in determining the application of tolling principles.” Id. at 517. The Fifth Circuit’s reasoning in Taylor is fully consistent with a rule that the limitations clock resumes when a noncertifled class claim is dismissed with or without prejudice. Finally, it’s important to note again that American Pipe and Crown, Cork & Seal struck a balance" }, { "docid": "16897652", "title": "", "text": "take this opportunity to join our sister circuits and hold that American Pipe tolling does not extend beyond the denial of class status. Class status was denied in this case when the Southern District of New York determined that a class action was unavailable under New York law. Individual class members were required at that time to take action to preserve their rights or face the possibility that their action could become time barred. Such a rule is consistent with — if not compelled by — the decisions of the Supreme Court and this court. The Supreme Court in American Pipe held that “the commencement of the class action in th[e] case suspended the running of the limitations period only during the pendency of the motion to strip the suit of its class action character.” 414 U.S. at 561, 94 S.Ct. 756 (emphasis added). Further, the Court in Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), held: “Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action.” Id. at 354, 103 S.Ct. 2392 (emphasis added). Similarly, we have explained that [bjecause members of the asserted class are treated for limitations purposes as having instituted their own actions, at least so ' long as they continue to be members of the class, the limitations period does not run against them during that time. Once they cease to be members of the class — for instance, when they opt out or when the certification decision excludes them — the limitation period begins to run again on their claims. In re WorldCom Secs. Litig., 496 F.3d 245, 255 (2d Cir.2007) (emphasis added); see In re Agent Orange Product Liability Litigation, 818 F.2d 210, 214 (2d Cir.1987) (explaining that “[t]he intent of the American Pipe rule is to preserve the individual right to sue of the members of a proposed class" }, { "docid": "20396822", "title": "", "text": "Bridges v. Dep’t of Md. State Police, 441 F.3d 197, 211 (4th Cir.2006); Yang v. Odom, 392 F.3d 97, 102 (3d Cir.2004); Culver v. City of Milwaukee, 111 F.3d 908, 914 (7th Cir.2002); Stone Container Corp. v. United States, 229 F.3d 1345, 1355-56 (Fed.Cir.2000); Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1391 (11th Cir.1998) (en banc); Andrews v. Orr, 851 F.2d 146, 149-50 (6th Cir.1988); Fernandez v. Chardon, 681 F.2d 42, 48 (1st Cir.1982). . In maintaining that federal rather than state law provided the applicable statute of limitations, Giovanniello calculated the federal four-year limitations period to afford him 1,461 days from the January 28, 2004 fax transmission to file his TCPA complaint. Although acknowledging that his September 8, 2009 complaint was filed 2,051 days after the fax transmission, or 590 days outside the federal statute of limitations, Giovanniello asserted that this delinquency would be eliminated if the statute were tolled during the pendency of his two Connecticut putative class actions and the Southern District action. Specifically, if tolling continued through the August 6, 2007 dismissal of the Southern District action, the complaint would be untimely by 30 days, but if tolling were extended through either the motion for reconsideration or appeal of that decision, as Giovanniello urged, the complaint would be timely. . As we recognized in Holster, the Supreme Court’s opinion in Shady Grove abrogated our decision in Bonime only to the extent that it relied on the doctrine of Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), to hold that, in a federal diversity action, N.Y. C.P.L.R. § 901(b) required the dismissal of a putative class action under the TCPA. See Holster v. Gatco, Inc., 618 F.3d at 216-17. Nothing in Shady Grove disturbed Bonime’s alternative ground for decision, which construed the plain language of the TCPA's \"otherwise permitted” provision to require federal courts to respect the prohibition of § 901(b). This distinction was drawn by Judge Calabresi in his concurring opinion in Bonime, which did not join the majority in relying on Erie because a TCPA action is" }, { "docid": "7112486", "title": "", "text": "643, 661 (N.D.Ill. 1986) (“where there is reason to doubt [class] counsel’s ability to meet those [fiduciary] duties [to the class], class certification must be denied”). Although the class was rightly decertified, and the suit, having thus been demoted to an individual action, therefore rightly dismissed because Culver’s claim had become moot, there is a loose end. Rule 23(e) requires that notice of a proposed dismissal “be given to all members of the class.” The purpose is to enable the class members to protect their interests in the face of the dismissal of the class action. One thing they may need protection against is the class representative’s selling out the class by trading dismissal for benefits to himself. This was not a factor here; another thing they may need protection against, however, and it may be a factor here, is the expiration of the statute of limitations on the class members’ claims without their realizing it. The filing of a class action suit tolls the statute of limitations for all the members of the class, Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 352-54, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983); American Pipe & Construction Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974); Elmore v. Henderson, 227 F.3d 1009, 1012 (7th Cir.2000); Glidden v. Chromalloy American Corp., 808 F.2d 621, 627 (7th Cir.1986), but when the suit is dismissed without prejudice or when class certification is denied the statute resumes running for the class members. Crown, Cork & Seal Co. v. Parker, supra, 462 U.S. at 354, 103 S.Ct. 2392; Chardon v. Fumero Soto, 462 U.S. 650, 658-60, 103 S.Ct. 2611, 77 L.Ed.2d 74 (1983); Elmore v. Henderson, supra, 227 F.3d at 1012; In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1298 (7th Cir.1995); Glidden v. Chromalloy American Corp., supra, 808 F.2d at 627; Stone Container Corp. v. United States, 229 F.3d 1345, 1355-56 (Fed.Cir.2000); Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1384-85 (11th Cir.1998) (en banc); Rodriguez v. Banco Central, 790 F.2d 172, 179 (1st Cir.1986). Unless they are notified" }, { "docid": "19065663", "title": "", "text": "prior, related class action lawsuit, Sanford v. West, without ever ruling on a motion for class certification. Id. After discussing Andrews at length, we turned to Yertrue’s argument that Andrews established a “bright line rule that American Pipe tolling never applies to subsequent class actions by putative class members,” and thus the class action subsequent to Sanford was time-barred. Id. at 479. We rejected Yertrue’s proposed bright-line rule. We reasoned that Andrews concerned a situation in which a subsequent class action was brought after class certification already had been denied whereas in Vertrue no court had definitively addressed the requested class certification because the Sanford court had dismissed the initial suit before ruling on a pending motion for class certification. Id. at 479-80. Because no court had denied class certification and “[bjecause the risk'motivating our decision in Andrews — namely, repetitive and indefinite class action lawsuits addressing the same claims” was “simply not present,” we held that the commencement of the Sanford class action tolled the statute of limitations under American Pipe for subsequent class claims. Id. at 480. Significantly, we observed that “[ojther courts have followed this same approach when faced with a situation in which a previous court has not made a determination as to the ‘validity of the class.’ ” Id. at 480 n. 2. In support, we cited Yang v. Odom, 392 F.3d 97, 104, 112 (3d Cir.2004), for the proposition “that tolling applies to a subsequent class action when the prior denial of class certification was ‘based solely on Rule 23 deficiencies of the putative representative.’ ” Id. We also cited Catholic Social Services, Inc. v. I.N.S., 232 F.3d 1139, 1149 (9th Cir.2000) (en banc), for the holding “that tolling applies to a subsequent class action when class certification was granted in a prior case.” Id. We drew further support from Great Plains Trust Co. v. Union Pacific Railroad Co., 492 F.3d 986, 997 (8th Cir.2007), where the Eighth Circuit assumed “without deciding that American Pipe analysis applies in cases where one putative class action suit was dismissed without prejudice and one was voluntarily dismissed.”" }, { "docid": "16897651", "title": "", "text": "doctrine, “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” 414 U.S. at 554, 94 S.Ct. 756. We have not had occasion to determine the scope of American Pipe toll ing. As we identified previously, however, each of our sister circuits to have discussed this issue has determined that American Pipe tolling ends upon denial of class certification. See Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 519 (5th Cir.2008); Bridges v. Dep’t of Md. State Police, 441 F.3d 197, 211 (4th Cir.2006); Yang v. Odom, 392 F.3d 97, 102 (3d Cir.2004); Culver v. City of Milwaukee, 277 F.3d 908, 914 (7th Cir.2002); Stone Container Corp. v. United States, 229 F.3d 1345, 1355-56 (Fed.Cir.2000); Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1391 (11th Cir.1998) (en banc); Andrews v. Orr, 851 F.2d 146, 149-50 (6th Cir.1988); Fernandez v. Chardon, 681 F.2d 42, 48 (1st Cir.1982). We now take this opportunity to join our sister circuits and hold that American Pipe tolling does not extend beyond the denial of class status. Class status was denied in this case when the Southern District of New York determined that a class action was unavailable under New York law. Individual class members were required at that time to take action to preserve their rights or face the possibility that their action could become time barred. Such a rule is consistent with — if not compelled by — the decisions of the Supreme Court and this court. The Supreme Court in American Pipe held that “the commencement of the class action in th[e] case suspended the running of the limitations period only during the pendency of the motion to strip the suit of its class action character.” 414 U.S. at 561, 94 S.Ct. 756 (emphasis added). Further, the Court in Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), held: “Once the statute of limitations has been tolled, it" }, { "docid": "15084625", "title": "", "text": "the doomsday scenario envisioned in many of these opinions is likely to occur. Doctrines of issue preclusion and stare decisis are available to respond to second or later attempts to certify classes. If this court rejects class certification in this case, is it really likely that plaintiffs’ attorney after losing certification twice would expend the resources to try to litigate it a third time before a third judge? Moreover, the issue of whether American Pipe tolling is permissible after multiple denials of class certification is distinctly different from the issue of whether or not class claims are tolled during the initial class certification attempt. See, e.g., Salazar-Calderon, 765 F.2d at 1351. An initial denial of class certification should put a potential plaintiff on notice to vindicate his or her own claim. Such a holding is consistent with the way American Pipe tolling works for individual claims when the class certification decision is appealed. The tolling stops when class certification is denied. From that point, “the named plaintiffs no longer have a duty to advance the interests of the excluded putative class members.” Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1381 (11th Cir.1998) (holding that a denial of class certification stops American Pipe tolling); accord, Culver v. City of Milwaukee, 277 F.3d 908, 914 (7th Cir. 2002) (acknowledging that the statute of limitations resumes running “when class certification is denied”). The lesson of American Pipe and Crown, Cork & Seal is that tolling is appropriate for a second class action attempt, and the merits of that attempt can be addressed through application of principles of stare decisis and issue preclusion. Conclusion American Pipe and Crown, Cork & Seal require that the statute of limitations for class claims be tolled during the pendency of a previous class certification petition, at least where there is any issue as to the adequacy of the first representatives. The perceived problems of relitigating the class certification issue or not providing repose to the defendant can be curbed through other, better targeted doctrines that would not block legitimate class actions pursued by more appropriate class representatives." }, { "docid": "16897650", "title": "", "text": "when it enacted the TCPA, particularly section 227(b)(3). Given the liberal interpretation we are required to give section 1658(a), see Jones, 541 U.S. at 382, 124 S.Ct. 1836, we conclude that section 227(b)(3)’s “if otherwise permitted” language does not operate as an exception to the generally applicable federal catch-all limitations period in 28 U.S.C. § 1658(a). That statute’s four-year limitations period therefore governs Giovanniello’s September 8, 2009 filing in Connecticut District Court. IV. Giovanniello’s September 8, 2009 action was filed more than four-years after he allegedly received the unlawful fax on January 28, 2004. Giovanniello contends that applicable tolling rules extended the federal limitations period, making his September 8, 2009 filing timely. We did not reach the tolling question in our prior decision because we concluded that Connecticut’s two-year limitations period applied, rendering Giovanniello’s claim untimely even under broad tolling principles. 660 F.3d at 589. Having determined that the federal catch-all limitations period applies to Giovanniello’s claim, we now apply federal tolling rules from American Pipe and its progeny. A. Under the American Pipe tolling doctrine, “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” 414 U.S. at 554, 94 S.Ct. 756. We have not had occasion to determine the scope of American Pipe toll ing. As we identified previously, however, each of our sister circuits to have discussed this issue has determined that American Pipe tolling ends upon denial of class certification. See Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 519 (5th Cir.2008); Bridges v. Dep’t of Md. State Police, 441 F.3d 197, 211 (4th Cir.2006); Yang v. Odom, 392 F.3d 97, 102 (3d Cir.2004); Culver v. City of Milwaukee, 277 F.3d 908, 914 (7th Cir.2002); Stone Container Corp. v. United States, 229 F.3d 1345, 1355-56 (Fed.Cir.2000); Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1391 (11th Cir.1998) (en banc); Andrews v. Orr, 851 F.2d 146, 149-50 (6th Cir.1988); Fernandez v. Chardon, 681 F.2d 42, 48 (1st Cir.1982). We now" }, { "docid": "16897659", "title": "", "text": "e.g., Taylor, 554 F.3d at 519; Bridges, 441 F.3d at 212; Yang, 392 F.3d at 102; Culver, 277 F.3d at 914; Stone Container Corp., 229 F.3d at 1355-56. Further, there is no reason why Rule 23(f) compels a conclusion that we must depart from our sister circuits. Interlocutory appeal from a denial of class certification existed prior to the enactment of Rule 23(f), even if it was rare. See, e.g., Armstrong, 138 F.3d at 1387. While Rule 23(f) removes some procedural burden to interlocutory appeal of class certification decisions, the circuit court has “unfettered discretion whether to permit [an] appeal, akin to the discretion exercised by the Supreme Court in acting on a petition for certiorari.” Fed.R.Civ.P. 23 advisory committee’s notes to the 1998 amendment. Giovanniello has not demonstrated that circuit courts freely grant petitions for interlocutory review of class status decisions nor that where such petitions are granted, interlocutory appeal is more likely to be successful because of Rule 23(f). Thus, we continue to conclude with the court in Armstrong that even after Rule 23(f), “reliance on the possibility of a reversal of the [district] court’s [class status] decision is ordinarily not reasonable.” 138 F.3d at 1381. In addition, Giovanniello’s argument as to Rule 23(f) ignores what has stayed the same. Nothing in Rule 23(f) impacts the availability of a motion for reconsideration. Likewise, some named plaintiffs are content to wait until a final judgment before pursuing appeal of a class status determination. Thus, in some instances, the final word on class status may remain unresolved for many years while proceedings play out. See Stone Container, 229 F.3d at 1355. In those cases, then, Armstrong’s rationale that some appeals will remain in “limbo” for years, remains unaffected. 138 F.3d at 1388. Accordingly, the advent of Rule 23(f) does not compel us to depart from the rule adopted by every other circuit court to have addressed this issue. Finally, we emphasize the need for a bright-line rule in this area of law. American Pipe tolling is an exception to the operation of an applicable statute of limitations. See Police &" }, { "docid": "16897658", "title": "", "text": "decisions, changes the nature of appeals from the denial of class status and thereby undermines any reliance on the Armstrong line of cases. We conclude that Rule 23(f) does not alter our analysis. To begin, Giovanniello’s appeal from the Southern District of New York’s dismissal was not an interlocutory appeal under Rule 23(f). As explained, the district court dismissed Giovanniello’s putative class action after determining that class status was unavailable under New York law. This gave Giovanniello an appeal as of right to this court. Giovanniello’s argument as to Rule 23(f) is therefore relevant only as it relates to the general argument that the rule requires departure from our sister circuits. We conclude that the rule does not affect our decision as to the scope of American Pipe tolling. Although Armstrong, the lead case on this issue, was decided prior to the enactment of Rule 23(f), a number of post-Rule 23(f) cases have held that tolling does not extend beyond a district court decision denying class status even after the promulgations of Rule 23(f). See, e.g., Taylor, 554 F.3d at 519; Bridges, 441 F.3d at 212; Yang, 392 F.3d at 102; Culver, 277 F.3d at 914; Stone Container Corp., 229 F.3d at 1355-56. Further, there is no reason why Rule 23(f) compels a conclusion that we must depart from our sister circuits. Interlocutory appeal from a denial of class certification existed prior to the enactment of Rule 23(f), even if it was rare. See, e.g., Armstrong, 138 F.3d at 1387. While Rule 23(f) removes some procedural burden to interlocutory appeal of class certification decisions, the circuit court has “unfettered discretion whether to permit [an] appeal, akin to the discretion exercised by the Supreme Court in acting on a petition for certiorari.” Fed.R.Civ.P. 23 advisory committee’s notes to the 1998 amendment. Giovanniello has not demonstrated that circuit courts freely grant petitions for interlocutory review of class status decisions nor that where such petitions are granted, interlocutory appeal is more likely to be successful because of Rule 23(f). Thus, we continue to conclude with the court in Armstrong that even after Rule" }, { "docid": "21827834", "title": "", "text": "take this opportunity to join our sister circuits and hold that [American Pipe] tolling does not extend beyond the denial of class status.\"); Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 519 (5th Cir. 2008) (\"Therefore, it is clear from these cases that if the district court denies class certification under Rule 23, tolling of the statute of limitations ends.”); Bridges v. Dep’t of Md. State Police, 441 F.3d 197, 211 (4th Cir. 2006) (\"[T]he statute of limitations ‘remains tolled for all members of the putative class until class certification is denied for whatever reason,’ ” (quoting Crown, Cork & Seal v. Parker, 462 U.S. 345, 354, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983))); Stone Container Corp. v. United States, 229 F.3d 1345, 1355 (Fed. Cir. 2000) (\"[T]olling ends with the district court’s dismissal of the class action”); Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1378 (11th Cir. 1998) (en banc) (\"[W]e hold that the tolling of the statute of limitations ceases when the district court enters an interlocutory order denying class certification,”); Nelson v. County of Allegheny, 60 F.3d 1010, 1013 (3d Cir. 1995) (concluding that \"the tolling period ended when the district court denied certification of the class”); Tosti v. City of Los Angeles, 754 F.2d 1485, 1488 (9th Cir. 1985) (\"The statute begins running anew‘from the date of notice that certification has been denied.”); Fernandez v. Chardon, 681 F.2d 42, 48 (1st Cir. 1982) (\"[T]he statute will resume running when class certification is denied.”). . See, e.g., Realmonte v. Reeves, 169 F.3d 1280, 1284 (10th Cir. 1999) (”[W]e hold that the fact that the Realmontes’ participation in the class action terminated with a decision to opt out of a certified class rather than with the denial of class certification is irrelevant to the applicability of the American Pipe tolling rule.”); Adams Pub. Sch. Dist. v. Asbestos Corp., 7 F.3d 717, 718 n.1 (8th Cir. 1993) (\"The fact that this participation ended with a decision to 'opt out’ rather than with denial of class certification is irrelevant to the applicability of the American Pipe rule.\"); Tosti," }, { "docid": "4253912", "title": "", "text": "Pipe) or that the representative’s claims were not typical of the class (Crown, Cork & Seal). As the district judge and the parties understand the cases, five courts of appeals have concluded that successive suits that rely on American Pipe’s tolling principle never may proceed as class actions, while three courts of appeals have held otherwise. Compare Basch v. Ground Round, Inc., 139 F.3d 6 (1st Cir.1998); Korwek v. Hunt, 827 F.2d 874 (2d Cir.1987); Salazar-Calderon v. Presidio Valley Farmers Association, 765 F.2d 1334, 1351 (5th Cir.1985); Andrews v. Orr, 851 F.2d 146, 149 (6th Cir.1988); and Griffin v. Singletary, 17 F.3d 356 (11th Cir.1994) (all holding that the successive suits cannot proceed as class actions), with Yang v. Odom, 392 F.3d 97, 111 (3d Cir.2004); Great Plains Trust Co. v. Union Pacific R.R., 492 F.3d 986, 997 (8th Cir.2007); and Catholic Social Services, Inc. v. INS, 232 F.3d 1139, 1147-49 (9th Cir.2000) (en banc) (all holding that the successive suits may be certified as class actions). The parties ask us to choose sides. There is no conflict. The decisions collected in the preceding paragraph concern, not the statute of limitations or the effects of tolling, but the preclusive effect of a judicial decision in the initial suit applying the criteria of Rule 23. The opinions that Atlas Heating reads as holding that a plaintiff who relies on American Pipe to toll the statute of limitations cannot represent a class actually hold instead that a decision declining to certify a class in the first suit binds all class members, who cannot try to evade that decision by asking for a second opinion from a different judge. Class members must abide by the first court’s understanding and application of Rule 23. If, after concluding that the plaintiff would be an adequate representative of the class, the court denies certification for a reason that would be equally applicable to any later suit — for example, that the supposed victims are too few to justify class litigation, that a common question does not predominate, or that person-specific issues would make class treatment unmanageable" } ]

[ { "docid": "14388156", "title": "", "text": "it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The Ninth Circuit has held that Rule 60(b) is meant to be remedial in nature, and therefore must be liberally applied. Falk v. Allen, 739 F.2d 461, 463 (9th Cir.1984). The Falk court set out three factors which should be evaluated in considering a motion to set aside a judgment of default under Rule 60(b): (1) whether the plaintiff will be prejudiced; (2) whether the defendant has a meritorious defense; and (3) whether culpable conduct of the defendant led to the default. Id. at 463-64. The standard for determining whether the plaintiff will be prejudiced is whether its ability to pursue its claim will be hindered if relief is granted. Id. In this case, there is no evidence that TFC would not be able to pursue its claim against Ever Bright if the case is reopened. Ever Bright contends that it has not one but three meritorious defenses: that this court lacks personal jurisdiction over it; that the service of process was defective; and that it cannot be held liable on the contract claims of TFC because Ever Bright did not contract with TFC or enter into an agency or joint venture relationship with Richmark. TFC claims that Ever Bright is an “agency or instrumentality” of the People’s Republic of China, and is therefore subject to the personal jurisdiction of this court under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1603(b). An agency or instrumentality of a foreign state includes any entity which is a separate legal person, corporate or otherwise, and which is an organ of a foreign state or is an entity, the majority of whose shares or other ownership interest is owned by a foreign state. Id. TFC points to statements made by witnesses in depositions, newspaper and magazine articles, and to promotional materials published by Ever Bright which describe Ever Bright as: a state-owned comprehensive corporation with independent accounting" } ]

[ { "docid": "4214736", "title": "", "text": "performance bond, in part because the government of Mexico guarantees Pemex-Refining’s performance. B. Analysis The FSIA is the exclusive source of subject matter jurisdiction over suits involving foreign states and their instrumentalities. Gates v. Victor Fine Foods, 54 F.3d 1457, 1459 (9th Cir.1995), cert. denied, - U.S. 116 .Ct. 187, 133 L.Ed.2d 124 (1995). The Act provides that \"a foreign state shall be immune from the jurisdiction of the Courts of the United States and of the gtates\" except in certain specified circumstances. 28 U.S.C. § 1604. Under the FSIA, a \"foreign state\" includes any \"agency or instrumentality of a foreign state.\" 28 U.S.C. § 1603(a). In turn, an \"agency or instrumentality of a foreign state\" is defined as: any entity-(1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or a political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or a political subdivision thereof, and (3) which is neither a citizen of a State of the United States as defined in section 1332(c)and (d) of this title, nor created under the laws of any third country. 28 U.S.C. § 1603(b) (emphasis added). The defendants argue that Pemex-Refin-ing does not qualify as an “agency or instrumentality of a foreign state” under § 1603(b)(2) because it is a subsidiary of Pemex. For authority, the defendants cite to Gates v. Victor Fine Foods, 54 F.3d at 1461-63. Gates focused on § 1603(b)(2) of the FSIA. In that case, a group of plaintiffs in California sued Alberta Pork and its fully owned subsidiary, Fletcher’s Fine Foods (FFF). Alberta Pork was a pork marketing board in Alberta, Canada; its primary role was to purchase live hogs from producers and sell the porkers to packers. Id. at 1461. FFF was a pork processing plant headquartered in British Columbia, Canada. Id. at 1459. Both Alberta Pork and FFF claimed that they were “agencies or instrumentalities of a foreign state” and hence immune from the court’s jurisdiction under the FSIA. We explained in Gates that there" }, { "docid": "5531983", "title": "", "text": "Iran’s motion to dismiss for want of jurisdiction under FSIA. 1. The Legal Standard Under FSIA FSIA applies to instrumentalities and agencies of the foreign sovereign, as well as to the state itself. See 28 U.S.C. § 1603(a), (b). But instrumentalities and agencies are accorded a presumption of independent status. See First Nat’l City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 626-27, 103 S.Ct. 2591, 2599-2600, 77 L.Ed.2d 46 (1983) (“Bancec”). In Bancec, the Supreme Court applied this presumption in the liability context, considering the question whether a claim of a foreign agency was subject to set-off for the debts of its parent government. The Bancec Court explained that the presumption of juridical separateness may be overcome where “internationally recognized equitable principles” mandate attribution in order to avoid injustice, id. at 633-34, 103 S.Ct. at 2603-04, and suggested that the presumption would be overcome where “a corporate entity is so extensively controlled by its owner that a relationship of principal and agent is created.” Id. at 629, 103 S.Ct. at 2601. The House Report accompanying FSIA set forth the reasons for separating the liabilities of one state instrumentality from those of another or from those of the state. The House Report explained that “[tjhere are compelling reasons for” the presumption of separateness in 28 U.S.C. § 1610(b): If U.S. law did not respect the separate juridical identities of different agencies or instrumentalities, it might encourage foreign jurisdictions to disregard the juridical divisions between different U.S. corporations or between a U.S. corporation and its independent subsidiary. H.Rep. No. 1487, 94th Cong., 2d Sess. 29-30 (1976), U.S.Code Cong. & Admin.News 1976, pp. 6628-29; Bancec, 462 U.S. at 628, 103 S.Ct. at 2600 (quoting same passage). The presumption of the juridical separateness of entities also applies to jurisdictional issues. See, e.g., Gilson v. Republic of Ireland, 682 F.2d 1022, 1029-30 (D.C.Cir.1982); Hester Int’l Corp. v. Federal Republic of Nigeria, 879 F.2d 170, 176 (5th Cir.1989). As noted in the Restatement, “[w]hen a state instrumentality is not immune ..., for instance because the claim arises out of a commercial" }, { "docid": "11336311", "title": "", "text": "title, nor created under the laws of any third country. Defendant contends that the Committee of Receivers is an agency or instrumentality of a foreign state as defined by the Foreign Sovereign Immunities Act. Plaintiff obviously takes the opposing position. Unfortunately, the great majority of cases defining instrumentality or agency concern the question of whether a government owned commercial entity is an agency or instrumentality and thus are of little help in this case. Neither this court nor the parties have been able to find a case or legislative history which states what requirements an entity must meet to constitute a political subdivision in a non-commercial context. There is, however, some case law which provides a modicum of help in determining the unique facts of this case. In O’Connell Machinery Co., Inc. v. M.V. Americana, 734 F.2d 115, (2d Cir.), cert. denied, 469 U.S. 1086, 105 S.Ct. 591, 83 L.Ed.2d 701 (1984) the court found that an Italian shipping corporation was an agency or instrumentality of the Italian government when a majority of the corporation’s shares were owned by an entity under the direct control of a public financial entity. Of interest in this case is the fact that the court found that an entity which coordinated the management of the commercial enterprises of the Italian government was an agency or instrumentality of the government. Id. at 116. Similarly, another court has found that the administrative arm of the Caribbean Regional Labour Board was an instrumentality of a foreign state. This labor board had the responsibility of negotiating labor arrangements between the British West Indian governments and the United States. Rios v. Marshall, 530 F.Supp. 351 (S.D.N.Y.1981). See also, Bowers for and on behalf of NYSA-ILA Pension Trust Fund v. Transportes Navieros Ecuadorianos (Transnave), 719 F.Supp. 166, 170 (S.D.N.Y.1989) (court gives weight to fact that the agency was created by presidential decree). “According to the legislative history of the FSIA, political subdivisions were intended to include ‘all governmental units beneath the central government'” O’Connell, 734 F.2d at 116 (citing H.R.Rep. No. 1487, 94th Cong., 2d Sess. 15, reprinted in 1976" }, { "docid": "14842145", "title": "", "text": "all Defendants in these actions. Ashton Complaint ¶ 570; Burnett Complaint ¶ 95. Muwaffaq allegedly provided Osama bin Laden with $3 million in 1998. Ashton Complaint ¶ 573. Plaintiffs claim NCB knew or should have known it was materially supporting al Qae-da, Osama bin Laden, and international terrorism. Ashton Complaint ¶ 570; Burnett Complaint ¶ 95. C. Defendants’ Status as Foreign States for FSIA Purposes The Court must first determine if the moving Defendants are “foreign states” for purposes of the FSIA. A “foreign state” is statutorily defined: (a) A “foreign state” ... includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b). (b) An “agency or instrumentality of a foreign state” means any entity - (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States ... nor created under the laws of any third country. 28 U.S.C. § 1603. There is no dispute that the Kingdom of Saudi Arabia is a foreign state. The status of each of the Princes and NCB are discussed below. 1. Prince Sultan and Prince Turki Several courts have recognized that “[ijmmunity under the FSIA extends also to agents of a foreign state acting in their official capacities [since] ‘[i]t is generally recognized that a suit against an individual acting in his official capacity is the practical equivalent of a suit against the' sovereign directly.’ ” Bryks v. Canadian Broad. Corp., 906 F.Supp. 204, 210 (S.D.N.Y.1995) (quoting Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095, 1101 (9th Cir.1990) (“Nowhere in the text or legislative history does Congress state that individuals are not encompassed within 28 U.S.C. § 1603(b).”)); see also Velasco v. Gov’t of Indonesia, 370 F.3d 392, 398-99 (4th Cir.2004) (collecting cases extending FSIA immunity to individuals sued in their official capacities); Byrd" }, { "docid": "23272535", "title": "", "text": "amendment proscribes suit against state agencies \"regardless of the nature of the relief sought\"); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam). To determine whether a governmental agency is an arm of the state, the following factors must be examined: whether a money judgment would be satisfied out of state funds, whether the entity performs central governmental functions, whether the entity may sue or be sued, whether the entity has the power to take property in its own name or only the name of the state, and the corporate status of the entity. Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir.1982). To determine these factors, the court looks to the way state law treats the entity. Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.s. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1349 (9th Cir.1981), aff'd. sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983). California cases demonstrate that California state colleges and universities are \"dependent instrumentalities of the state.\" Hayakawa, 682 F.2d at 1350 (citing Slivkoff v. California State Univ. and Colleges, 69 Cal.App.3d 394, 400, 137 Cal.Rptr. 920, 924 (1977) (\"California state universities and colleges are subject to full legislative control\") and Poschman v. Dumke, 31 Cal.App.3d 932, 942, 107 Cal.Rptr. 596, 603 (1973) (\"The Trustees of California State Colleges are a state agency created by the Legislature\")). As the district court noted, the district's budget is made up of funds received from the state's general fund pursuant to a state calculated formula. In addition, some fees charged by the district's colleges go to the state. We hold that, under California law, the district is a state entity that possesses eleventh amendment immunity from the appellant's section 1981, 1983 and 1985 claims in damages and for injunctive relief. Likewise, the individual defendants share in the district's eleventh amendment immunity because they were sued in their official capacities. Such suits \"are, in essence, actions against the governmental entity of which" }, { "docid": "10696191", "title": "", "text": "and fiscal interests were a federal court to find erroneously that an entity was an arm of the state, when the state did not structure the entity to share its sovereignty. 322 F.3d at 63. b. Ninth Circuit Cases In accord with these compelling considerations, our cases confirm that private entities have no place within the state sovereign immunity legal framework. The usual issue in our cases has been whether a governmental entity is an arm of the state or is better characterized as part of another level of government. Our inquiry has been careful, and we have often de- dined to extend immunity even to governmental entities. The factors we apply in the state sovereign immunity inquiry, drawn from Mitchell v. Los Angeles Community College Dist., 861 F.2d 198, 201 (9th Cir.1988), are thus designed to discriminate between governmental bodies, not to determine whether private entities are arms of the state. See id. (“To determine whether a governmental agency is an arm of the state, the following factors must be examined ....”) (emphasis added) (citing Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir.1982)). Under Mitchell, courts look to five factors: “(1) whether a money judgment would be satisfied out of state funds; (2) whether the entity performs central governmental functions; (3) whether the entity may sue or be sued; (4) whether the entity has the power to take property in its own name or only in the name of the state; and (5) the corporate status of the entity.” DMJM, 355 F.3d at 1147 (citing Mitchell, 861 F.2d at 201). This test was not meant for, is ill-adapted to, and loses its utility when performed upon a private entity. The negative result it generates will always be the same: Only the second Mitchell factor could ever cut in favor of granting a private entity sovereign immunity, as DMJM, our sole case to apply the Mitchell factors to a private entity, amply demonstrates. In DMJM, a private contractor repairing state university buildings asserted state sovereign immunity, deriving from its state contract, against a qui tarn action under the False" }, { "docid": "5893805", "title": "", "text": "Sovereign Immunity Deutsche Bahn argues that this court has no subject matter jurisdiction over the claims against it, because it is an agency or instrumentality of a foreign sovereign and therefore immune from suit pursuant to the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1603-10. As previously noted, Deutsche Bahn is the national rail operator of Germany, wholly owned by the German government. The FSIA provides foreign states with immunity from suits in American courts, subject to certain exceptions. See Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 489, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). Section 1603 states that immunity extends not only to political subdivisions, but also to agencies and instrumentalities of a foreign state, defined as: [A]ny entity ... (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States ... nor created under the laws of any third country. 28 U.S.C. § 1603(b). Once a defendant makes a prima facie showing that it is an agency or instrumentality of a foreign state, the plaintiff must demonstrate that a statutory exception to immunity applies. See Cargill Int’l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016 (2d Cir.1993). Plaintiffs concede that Deutsche Bahn is an instrumentality of the Republic of Germany. They argue, however, that two of the FSIA’s exceptions remove the cloak of immunity from Deutsche Bahn in this case. The FSIA provides, in relevant part: A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case— (1) in which the foreign state has waived its immunity either explicitly or by implication ...; [or] (2) in which, the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States" }, { "docid": "16987483", "title": "", "text": "its immunity or that Congress has expressly abrogated the state’s immunity under the federal securities laws. B Under the “arm of the state” doctrine, a state agent or agency is immune from suit under the Eleventh Amendment because “the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials [or state entities] are nominal defendants.” Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945); see also Ronwin v. Shapiro, 657 F.2d 1071, 1073 (9th Cir.1981). Sovereign immunity cloaks the state agent or agency because, if the plaintiff prevails, “[s]uch a judgment would have the same effect as if it were rendered directly against the State for the amount specified in the complaint.” Smith v. Reeves, 178 U.S. 436, 439, 20 S.Ct. 919, 920, 44 L.Ed. 1140 (1900). We have held that: To determine whether a governmental agency is an arm of the state, the following factors must be examined: [1] whether a money judgment would be satisfied out of state funds, [2] whether the entity performs central governmental functions, [3] whether the entity may sue or be sued, [4] whether the entity has the power to take property in its own name or only the name of the state, and [5] the corporate status of the entity. Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir.1982). To determine these factors, the court looks to the way state law treats the eñtity. Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 [97 S.Ct. 568, 572-73, 50 L.Ed.2d 471] ... (1977); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1349 (9th Cir.1981), aff'd sub nom. Kush v. Rutledge, 460 U.S. 719 [103 S.Ct. 1483, 75 L.Ed.2d 413] ... (1983). Mitchell v. Los Angeles Community College Dist., 861 F.2d 198, 201 (9th Cir.1988), cert. denied, 490 U.S. 1081, 109 S.Ct. 2102, 104 L.Ed.2d 663 (1989). Careful consideration of these five factors demonstrates that the Wyoming Community Development Authority is not an arm of the state" }, { "docid": "9444731", "title": "", "text": "429, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997) (citations omitted) (holding that the University of California is immune from suit under the Eleventh Amendment as an arm of the state). A court must look to the state law that establishes and controls the agency in order to ascertain whether that agency operates as an arm of the state. Id. at 430 n. 5, 117 S.Ct. 900 (“Ultimately, of course, the question whether a particular state agency has the same kind of independent status as a county or is instead an arm of the State... is a question of federal law. But that federal question can be answered only after considering the provisions of state law that define the agency’s character.”). The Ninth Circuit has enumerated five factors to be used in determining when a nominally non-state body is in fact a state instrumentality: (1) “whether a money judgment would be satisfied out of state funds,” (2) “whether the entity performs central governmental functions,” (3) “whether the entity may sue or be sued,” (4) “whether the entity has the power to take property in its own name or only the power of the state,” and (5) “the corporate status of the entity.” Mitchell v. Los Angeles, 861 F.2d 198, 201 (9th Cir.1988). In this multi-factor analysis, the first factor predominates. Belanger v. Madera Unified School District, 963 F.2d 248, 251 (9th Cir.1992). However, Eleventh Amendment immunity does not attach merely because a judgment will likely have some impact upon the state fisc. Instead, “it is the entity’s potential legal liability, rather than its ability or inability to require a third party to reimburse it, or to discharge the liability in the first instance, that is relevant.” Eason v. Clark County School District, 303 F.3d 1137, 1142 (9th Cir.2002) (citing Regents of the Univ. of Calif., 519 U.S. at 431, 117 S.Ct. 900 (holding that the University of California enjoys Eleventh Amendment immunity despite the fact that it was indemnified by the federal government and therefore would not have to expend its own funds in satisfaction of a judgment)) (emphasis added) (internal" }, { "docid": "11336312", "title": "", "text": "shares were owned by an entity under the direct control of a public financial entity. Of interest in this case is the fact that the court found that an entity which coordinated the management of the commercial enterprises of the Italian government was an agency or instrumentality of the government. Id. at 116. Similarly, another court has found that the administrative arm of the Caribbean Regional Labour Board was an instrumentality of a foreign state. This labor board had the responsibility of negotiating labor arrangements between the British West Indian governments and the United States. Rios v. Marshall, 530 F.Supp. 351 (S.D.N.Y.1981). See also, Bowers for and on behalf of NYSA-ILA Pension Trust Fund v. Transportes Navieros Ecuadorianos (Transnave), 719 F.Supp. 166, 170 (S.D.N.Y.1989) (court gives weight to fact that the agency was created by presidential decree). “According to the legislative history of the FSIA, political subdivisions were intended to include ‘all governmental units beneath the central government'” O’Connell, 734 F.2d at 116 (citing H.R.Rep. No. 1487, 94th Cong., 2d Sess. 15, reprinted in 1976 U.S.Code Cong. & Ad.News 6604, 6613. The legislative history further evinces the congresses intent that the definition of agency or instrumentality be broad. See Id. In addition, “Statements of foreign officials ... have been accorded great weight in determining whether an entity is entitled to claim the protection of the FSIA”. S.S. Machinery Co. v. Masinexportimport, 706 F.2d 411, 415 (2d Cir.), cert. denied, 464 U.S. 850, 104 S.Ct. 161, 78 L.Ed.2d 147 (1983) (citing Yessenin-Volpin v. Novosti Press Agency, 443 F.Supp. 849, 854 (S.D.N.Y.1978)). In this case, defendants have submitted the affirmation of Nabil Aref a member of the Committee and more importantly a director of the marine and road section of the Federal Ministry of Public Works in Dubai. Mr. Aref states that the Committee is an agency or instrumentality of the Government of Dubai because it was established specifically by the government for the purpose of winding up the affairs of Galadari. Aref aff. at II17. This court agrees with Mr. Aref and finds that the Committee is an agency or instrumentality" }, { "docid": "7801270", "title": "", "text": "1391(f)(3) is not exclusive. If the agency or instrumentality is not “doing business,” it may be sued “in any judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated.” 28 U.S.C. § 1391(f)(1). The venue provision simply recognizes that many agencies and instru-mentalities are commercial enterprises that may conveniently defend suits where they do business. It in no way establishes that an “agency or instrumentality” must always be a commercial enterprise. The same response applies to the majority’s assertion that the House Report “is at odds with itself,” maj. op. at 152, because its examples of agencies and instrumentalities tend to be commercial enterprises, while at the same time it seems to adopt a broader general definition of “agency or instrumentality.” Again, that many, even most, agencies and instrumentalities may be primarily commercial in nature does not prove that all must be. If Congress meant for commerciality to be a defining characteristic, it could have said so. Instead, Congress said “separate legal person.” 28 U.S.C. § 1603(b)(1). In sum, I see no good reason to focus on a distinction between commercial and non-commercial activities as the touchstone of juridical separateness. Then what does it mean to be legally separate? The House Report gives us a sketchy definition: an entity that “acts and is suable in its own name.” In keeping with several district court precedents, the court below looked at contracts executed by La Fuerza, apparently in its own name, and at previous lawsuits in which La Fuerza was mentioned by name (admittedly, an ambiguous indicator), to find that La Fuerza is a separate legal person. Cf. Bowers v. Transportes Navieros Ecuadorianos, 719 F.Supp. 166, 170 (S.D.N.Y.1989); Unidyne Corp. v. Aerolineas Argentinas, 590 F.Supp. 398, 400 (E.D.Va.1984). Although I would prefer more extensive factfinding with regard to La Fuerza’s activities — e.g., property ownership, previous contracting history — I think the district court was on the right track. I think the language, policy, and legislative history of" }, { "docid": "15734984", "title": "", "text": "subject to suit because it was “more like a county or city than ... like an arm of the State.” Id. at 280, 97 S.Ct. 568. Moreover, most courts have held that school districts are not entitled to Eleventh Amendment immunity. In. Mitchell v. Los Angeles, 861 F.2d 198 (9th Cir.1989), we articulated five factors to determine whether an agency is an arm of the state; (1) “whether a money judgment would be satisfied out of state funds,” (2) “whether the entity performs central governmental functions,” (3) “whether the entity may sue or be sued,” (4) “whether the entity has the power to take property in its own name or only the name of the state” and (5) “the corporate status of the entity.” Id. at 201. We consider each of these factors in turn. The first Mitchell factor — whether a money judgment will be satisfied out of state funds — is the most important. See e.g., Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Belanger v. Madera Unified School Dist., 963 F.2d 248, 251 (9th Cir.1992); Durning v. Citibank, N.A., 950 F.2d 1419, 1424 (9th Cir.1991); Jackson v. Hayakawa, 682 F.2d 1344 (9th Cir.1982). The Supreme Court stressed in Regents of the University of California that “it is the entity’s potential legal liability, rather than its ability or inability to require a third party to reimburse it, or to discharge the liability in the first instance, that is relevant.” 519 U.S. at 431, 117 S.Ct. 900(finding irrelevant the fact that the federal government would indemnify the State of California for any damages judgment against the University); see also Duming, 950 F.2d at 1424 n. 2 (“The relevant question is whether the state would have a legal liability to pay the judgment, not whether the defendant entity would have the practical ability to pay it.”); Duke, 127 F.3d at 981 (concluding that the “factor relating to the liability of the state treasury points away from Eleventh Amendment immunity, for the simple reason that the state of New Mexico is not legally liable for" }, { "docid": "7801252", "title": "", "text": "otherwise” under section 1603(b)(1). The words in themselves are opaque. Some district courts have sought to illuminate them by balancing three “characteristics” of separate legal status: whether, under the law of the foreign state where it was created, the entity can sue and be sued in its own name, contract in its own name, or hold property in its own name. Bowers v. Transportes Navieros Ecuadorianos, 719 F.Supp. 166, 170 (S.D.N.Y.1989); see also Unidyne Corp. v. Aerolineas Argentinas, 590 F.Supp. 398, 400 (E.D.Va.1984). But other courts have thought the distinction is instead a categorical one, and depends on whether the defendant is the type of entity “that is an integral part of a foreign state’s political structure, [or rather] an entity whose structure and function is predominantly commercial.” Segni v. Commercial Office of Spain, 650 F.Supp. 1040, 1041-42 (N.D.Ill.1988). The amicus curiae brief of the United States in this case proposes a similar test that looks to the “core function” of the foreign governmental body at issue. See Br. of United States at 12-13, 16. We think that the categorical approach adopted in Segni and urged, in a somewhat different form, by the United States—whether the core functions of the foreign entity are predominantly governmental or commercial—best captures the statutory meaning. Congress spoke against a rich background of federal and international law that colors the statutory terms and fills them out. The Supreme Court has held that the Act largely codifies the “restrictive” theory of sovereign immunity, under which “immunity is confined to suits involving the foreign sovereign’s public acts, and does not extend to cases arising out of a foreign state’s strictly commercial acts.” Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 487, 103 S.Ct. 1962, 1968, 76 L.Ed.2d 81 (1983). See also Republic of Argentina v. Weltover, Inc., — U.S. -, -, 112 S.Ct. 2160, 2165, 119 L.Ed.2d 394 (1992). Thus the Act repealed foreign immunity for “commercial activities,” § 1605(a)(2), but preserved it for inherently sovereign or public acts. See Saudi Arabia v. Nelson, — U.S. -, -, 113 S.Ct. 1471, 1479, 123 L.Ed.2d 47" }, { "docid": "14048681", "title": "", "text": "named defendants in this action. For the purposes of this motion, they will be referred to collectively as \"the Treuhand.\" . The legal basis for the attachment asserted by Muender was that the purchase conditions agreed to by WEMEX and WMW provided that all Heckert machines remained the property of WEMEX until the purchase price was fully paid. . Under the FSIA, the immunity extends to \"agencies or instrumentalities” of a foreign state. 28 U.S.C. § 1603. An \"agency or instrumentality,” is defined as any entity (1) which is a separate legal person and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or subdivision thereof, and (3) which is neither a citizen of a State of the United States nor created under the laws of any third country. 28 U.S.C. § 1603. Here, the Treuhand and its successor BVS are clearly \"agents or instrumentalities\" of a foreign state within the meaning of the FSIA. The Treu-hand was created and regulated by the laws of the GDR until the GDR reunited with the FRG, at which time it became a public organization of the FRG subject to regulation by that government. It was designated the authority by the GDR to oversee and conduct the privatization of business enterprises of the GDR. BVS was later created by the FRG as the successor to the Treu-hand. . To date, the Ninth Circuit is the only court of appeals to have held that section 1605(a)(5)(B) does not restrict the scope of the commercial activities exception established by section 1605(a)(2). See Export Group, 54 F.3d 1466. But see Gregorian v. Izvestia, 871 F.2d 1515, 1522 n. 4 (9th Cir.1989) (stating in dictum that Congress, in all likelihood, intended to clauses retaining immunity in section 1605(a)(5)(B) to deny jurisdiction over any claims alleging the torts listed). This Court has found only one case, Bryks v. Canadian Broadcasting Corp., 906 F.Supp. 204 (S.D.N.Y.1995), that has specifically held otherwise. In Bryks, the court admittedly found the \"literal" }, { "docid": "20199638", "title": "", "text": "U.S.C. § 1604. Under the FSIA, “foreign state” includes “an agency or instrumentality of a foreign state,” defined as: any entity— (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (e) of this title, nor created under the laws of any third country. 28 U.S.C. § 1603(a)-(b). Petrobrás argues that because Brazil owns a majority of its common or voting shares, it is an organ of the Brazilian government and immune from suit under the FSIA. (Def. Br. 6-11). Plaintiffs argue that Petrobrás is not entitled to FSIA immunity, however, because Brazil does not own a majority of its shares when all classes of stock are considered. At the very least, Plaintiffs argue, they should be permitted discovery as to whether Petrobrás is an organ of Brazil. (Pltf. Br. 8-9) Defendant’s foreign state status merits little discussion. Case law makes clear that Petrobrás is considered immune under the FSIA. See U.S. Fidelity & Guar. Co. v. Braspetro Oil Servs., Co., 199 F.3d 94, 98 (2d Cir.1999) (per curiam) (noting that “acts of Petrobrás” were “[a]cts of the state” but upholding the exercise of subject matter jurisdiction over Petrobrás under the FSIA’s commercial activity exception); Strata Heights Int’l Corp. v. Petroleo Brasileiro, S.A., 67 Fed.Appx. 247, 2003 WL 21145663, at *4 (5th Cir.2003) (“The district court properly applied the third clause of the commercial activity of the FSIA ... to determine that Petrobrás was not entitled to foreign sovereign immunity.”); Atwood Turnkey Drilling, Inc. v. Petroleo Brasileiro, 875 F.2d 1174, 1176 (5th Cir.1989) (“Petrobrás is entitled to sovereign immunity under the FSIA”). Because Petrobrás falls under the definition of a “foreign state,” this Court must consider whether any of the FSIA’s exceptions to immunity apply. Petrobrás argues that Plaintiffs fail to, and cannot, demonstrate that any" }, { "docid": "23276789", "title": "", "text": "are barred if the school district is indeed a state agency for purposes of the Eleventh Amendment. See, e.g., Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (state governments and their agencies are not amenable to suit under 42 U.S.C. § 1983). Whether the school district is a state agency for purposes of the Eleventh Amendment turns on the application of the multi-factored balancing test summarized in Mitchell v. Los Angeles Community College Dist., 861 F.2d 198, 201 (9th Cir.1988), cert. denied, 490 U.S. 1081, 109 S.Ct. 2102, 104 L.Ed.2d 663 (1989). To determine whether a governmental agency is an arm of the state, the following factors must be examined: [1] whether a money judgment would be satisfied out of state funds, [2] whether the entity performs central governmental functions, [3] whether the entity may sue or be sued, [4] whether the entity has the power to take property in its own name or only the name of the state, and [5] the corporate status of the entity. Id. (citing Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir.1982)). We must examine these factors in light of the way California law treats the governmental agency. Id. As indicated by the reasoning and holding in Mitchell, the first factor is predominant: “The most ‘crucial question ... is whether the named defendant has such independent status that a judgment against the defendant would not impact the state treasury.’ ” Jackson, 682 F.2d at 1350 (quoting Ronwin v. Shapiro, 657 F.2d 1071, 1073 (9th Cir.1981)); see also Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 1358, 39 L.Ed.2d 662 (1974) (if a “retroactive award of monetary relief” will be paid from state treasury funds, it is barred by the Eleventh Amendment); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1349 (9th Cir.1981) (“Obviously the source from which the sums sought by the plaintiff must come is the most important single factor in determining whether the Eleventh Amendment bars federal jurisdiction.”), aff'd on other grounds sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483," }, { "docid": "7801251", "title": "", "text": "defined in subsection (b). (b) An “agency or instrumentality of a foreign state” means any entity— (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States ..., nor created under the laws of any third country. 28 U.S.C. § 1603 (emphasis added). Section 1608 does not further define either term. Section 1608(a) establishes certain requirements for service on “a foreign state or political subdivision of a foreign state,” while section 1608(b) establishes different requirements for service on “agencies or instrumen-talities” of foreign states. B. The nub of the dispute is whether the Bolivian Air Force counts as a “foreign state” or rather as an “agency or instrumentality” under section 1608. That in turn depends upon whether the Bolivian Air Force is a “separate legal person, corporate or otherwise” under section 1603(b)(1). The words in themselves are opaque. Some district courts have sought to illuminate them by balancing three “characteristics” of separate legal status: whether, under the law of the foreign state where it was created, the entity can sue and be sued in its own name, contract in its own name, or hold property in its own name. Bowers v. Transportes Navieros Ecuadorianos, 719 F.Supp. 166, 170 (S.D.N.Y.1989); see also Unidyne Corp. v. Aerolineas Argentinas, 590 F.Supp. 398, 400 (E.D.Va.1984). But other courts have thought the distinction is instead a categorical one, and depends on whether the defendant is the type of entity “that is an integral part of a foreign state’s political structure, [or rather] an entity whose structure and function is predominantly commercial.” Segni v. Commercial Office of Spain, 650 F.Supp. 1040, 1041-42 (N.D.Ill.1988). The amicus curiae brief of the United States in this case proposes a similar test that looks to the “core function” of the foreign governmental body at issue. See Br. of United States at 12-13, 16." }, { "docid": "3959362", "title": "", "text": "entitled to immunity except as exempted from immunity by the FSIA. Thus, the FSIA “must be applied by the District Courts in every action against a foreign sovereign, since subject-matter jurisdiction in any such action depends on the existence of one of the specified exceptions to foreign sovereign immunity.” Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 493, 103 S.Ct. 1962, 1971, 76 L.Ed.2d 81 (1983); Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443, 109 S.Ct. 683, 693, 102 L.Ed.2d 818 (1989) (FSIA provides sole basis for obtaining jurisdiction over a foreign state in a United States Court). Under the FSIA, a “foreign state” includes “political subdivision[s]” and “agenc[ies] or instrumentalities]” thereof. 28 U.S.C. § 1603(a). The FSIA defines “agency or instrumentality of a foreign state” as any entity (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (d) of [Title 28], nor created under the laws of any third country. 28 U.S.C. § 1603(b). An “agency or instrumentality of a foreign state” includes individuals acting in their official capacities; however, an official is not entitled to immunity under the FSIA for acts which are not committed in an official capacity. See El-Fadl v. Central Bank of Jordan, 75 F.3d 668, 671 (D.C.Cir.1996); accord Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095, 1099-1103 (9th Cir.1990); In re Estate of Ferdinand E. Marcos Litigation, 978 F.2d 493, 496-97 (9th Cir.1992), cert. denied 508 U.S. 972, 113 S.Ct. 2960, 125 L.Ed.2d 661 (1993). Thus, with respect to an individual defendant, it must be determined whether that defendant was acting in their official capacity and thus was an “agency or instrumentality” of a foreign state in order to be accorded immunity under the FSIA. See El-Fadl, 75 F.3d at 671. To make this" }, { "docid": "3234402", "title": "", "text": "jurisdiction has the burden of making a prima facie showing of their existence). Subject matter jurisdiction under section 1605(a)(2) requires a showing of commercial activity carried on by the defendant foreign state. Maritime International Nominees Establishment v. The Republic of Guinea, 693 F.2d at 1105. A foreign state is defined in 28 U.S.C. § 1603: (a) A ‘foreign state,’ except as used in section 1608 of this title, includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b). (b) An ‘agency or instrumentality of a foreign state’ means any entity— (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (d) of this title, nor created under the laws of any third country. It is undisputed that Cross River State is one of nineteen states comprising the Federal Republic of Nigeria and Cross River is a political subdivision of Nigeria. Therefore, Cross River is a foreign state, as defined in section 1603(a). NGPC is a corporation created as a separate entity by the Nigerian government which owns 100% of its stock (testimony of Alhaji Alkali, NGPC’s general manager). See Exhibit P-261. NGPC, as well as Cross River, can sue and be sued (affidavit of Mashood 0. Adio, Legal Advisor/Assistant Director of the Federal Ministry of Justice, attached to defendants’ motions to dismiss as Exhibit 1). NGPC is an agency or instrumentality of Nigeria and thus a foreign state, as defined in section 1603(a). The status of NGPC as an agency or instrumentality of Nigeria under the FSIA is insufficient to subject Nigeria to suit for NGPC’s alleged wrongdoings. In Gibbons v. The Republic of Ireland, the court found that: Congress contemplated that an action could be brought against either a foreign state or one" }, { "docid": "3998727", "title": "", "text": "are inapplicable under the plain language of the FSIA unless the purported agent first meets the statutory definition of “agency or instrumentality of a foreign state” under § 1603(b). Section 1603(b) defines an “agency or instrumentality of a foreign state” as any entity: (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State or of the United States as defined in section 1332(c) and (e) of this title, nor created under the laws of any third country. 28 U.S.C. § 1603(b). OBB argues that this definition of agency applies throughout the FSIA to limit who could be considered an agent of a foreign state. Under this theory, the court can consider common-law definitions of agency only after the statutory definition of agency is met. OBB contends that because RPE cannot meet the definition of agency under § 1603(b), RPE’s sale of the Eurail pass cannot be imputed to OBB and no jurisdiction exists under the FSIA. We reject this contention. The plain text of the FSIA does not support OBB’s proposed' framework for determining whether RPE is an agent of OBB. Section 1603(b) defines what type of entity can be considered a foreign state for purposes of claiming sovereign immunity. If an entity cannot show that it meets that definition then it is not entitled to sovereign immunity. Whether an entity meets the definition of an “agency or instrumentality of a foreign state” to claim immunity is a “completely different question” from whether the acts of an agent can be imputed to a foreign state for the purpose of applying the commercial-activity exception. Gates v. Victor Fine Foods, 64 F.3d 1457, 1460 n. 1 (9th Cir.1995) (quoting Hester Int’l Corp. v. Fed. Republic of Nigeria, 879 F.2d 170, 176 n. 5 (5th Cir.1989)). Common sense also tells us that an agent that carries on commercial activity" } ]

[ { "docid": "9286317", "title": "", "text": "1 year after the date on which the petitioner, the real party in interest, or privy of the petitioner is served with a complaint alleging infringement of the patent.\" 35 U.S.C. § 315(b) ; Pub. L. No. 112-29, § 3(b)(1), 125 Stat. 284, 287 (2011). Neither the AIA nor the Patent Act ( 35 U.S.C. §§ 1 et seq ) defines \"privity\" or \"privy of the petitioner.\" Nor has this court had ample opportunity to address the legal standards for privity under § 315(b), primarily because time bar determinations under § 315(b) were not reviewable until the en banc court recently held that \"time-bar determinations under § 315(b) are reviewable by this court,\" and overruled earlier panel decisions to the contrary. Wi-Fi One, LLC v. Broadcom Corp. , 878 F.3d 1364, 1374 (Fed. Cir. 2018) (en banc). In Wi-Fi One , we recognized that, as a well-established common law concept, privity under § 315(b) should be examined under the backdrop of the \"cardinal rule of statutory construction that where Congress adopts a common-law term without supplying a definition, courts presume that Congress knows and adopts the cluster of ideas that were attached to the term.\" WesternGeco LLC v. ION Geophysical Corp. , 889 F.3d 1308, 1317 (Fed. Cir. 2018) (quoting FAA v. Cooper , 566 U.S. 284, 291-92, 132 S.Ct. 1441, 182 L.Ed.2d 497 (2012) ) (quotation marks omitted); see Wi-Fi One, LLC v. Broadcom Corp. , 887 F.3d 1329, 1335 (Fed. Cir. 2018) (\" Wi-Fi One Remand \") (\"Congress intended to adopt common law principles to govern the scope of the section 315(b) one-year bar.\"). The AIA's legislative history also recognizes the common law meanings for privity. See WesternGeco , 889 F.3d at 1317 ; Wi-Fi One Remand , 887 F.3d at 1335. Congress did not leave to the PTO's discretion to determine the legal standards for privity; it is a question well within the province of the judiciary. See McDonnell Douglas Corp. v. United States , 323 F.3d 1006, 1014 (Fed. Cir. 2003) (holding that \"determination of legal standards is a pure issue of law\" that we review" } ]

[ { "docid": "9286264", "title": "", "text": "time barred without speaking of control.\" J.A. 2024. In its final written decisions, the Board again rejected AIT's real-party-in-interest challenge and determined that all challenged claims are unpatentable as anticipated or obvious in view of certain prior art references. 482 Decision , 2016 WL 7985456, at *19 ; 111 Decision , 2016 WL 7991300, at *3, *15. AIT appeals from the final written decisions, arguing that the Board both \"lacked authority to proceed in rendering the [decisions] because it misconstrued the law of privity and real party in interest\" and erred in certain of its claim constructions and unpatentability determinations. J.A. 483-91. II. DISCUSSION The primary issue in this appeal is whether the Board relied on an erroneous understanding of the term \"real party in interest\" in determining that the IPR petitions filed by RPX were not time-barred under § 315(b). We conclude that it did. This court has had little occasion to grapple with the meaning of the term \"real party in interest\" in the context of § 315(b). This is due, in no small part, to the fact that time-bar determinations under this provision were not reviewable until we issued our en banc opinion in Wi-Fi One, LLC v. Broadcom Corporation , 878 F.3d 1364, 1374 (Fed. Cir. 2018) (Wi-Fi En Banc ), holding \"that time-bar determinations under § 315(b) are reviewable by this court.\" On remand, the panel held that \"[t]he use of the familiar common law terms 'privy' and 'real party in interest' indicate that Congress intended to adopt common law principles to govern the scope of the [§] 315(b) one-year bar.\" Wi-Fi One, LLC v. Broadcom Corp. , 887 F.3d 1329, 1335 (Fed. Cir. 2018) ( Wi-Fi Remand ). Although we have issued a few decisions recently applying these common-law principles in the context of § 315(b) challenges, they have been in cases where privity challenges were raised and where the arguments on that question related to the parties' relationship during an earlier litigation that reached a final judgment; the question of who is a \"real party in interest\" in the context of an IPR" }, { "docid": "9286335", "title": "", "text": "error of conflating § 315(b) with § 312(a)(2). Sections 315(b) and 312(a)(2) entail distinct, independent inquiries. Section 312(a)(2) requires that a petition may be considered only if \"the petition identifies all real parties in interest.\" Section 312(a)(2) is akin to a pleading requirement that can be corrected, and this court has noted that \"the Director [of the PTO] can, and does, allow the petitioner to add a real party in interest.\" Wi-Fi One , 878 F.3d at 1374 n.9. Section 312(a)(2) does not act as a prohibition on the Director's authority to institute. In contrast, § 315(b)\"sets limits on the Director's statutory authority to institute\" if a petition is time barred. Id. at 1374. This court has recognized the difference between the two statutory provisions and has warned that § 315(b) should not be \"conflat[ed]\" with § 312(a)(2). Id. at 1374 n.9. I suspect that this is what happened in this case. Despite AIT's specific allegation that RPX should be time barred under § 315(b), the Board framed the entire issue as \"whether Petitioner has identified all RPIs\"-a § 312(a)(2) determination. J.A. 1395 (institution decisions); see id. at 1396 (summarizing that \"we must determine whether Salesforce should have been identified as an RPI in this proceeding\"); id. at 1402-03 (concluding that \"we are not persuaded that Salesforce should have been identified as an RPI in this proceeding\"); id. at 403-04 (same, final written decisions). Importantly, the Board failed to expressly address whether RPX's petitions were time barred under § 315(b). Rather, the Board viewed § 315(b) as a mere \"relevant factor\" to the real party in interest inquiry. J.A. 1069 (\"[D]etails of the relationship between Petitioner [RPX] and Salesforce and Petitioner's reasons for filing the instant Petitions, particularly in view of the fact Salesforce is time-barred under 35 U.S.C. § 315(b), are certainly relevant to the RPI inquiry in these proceedings.\" (emphasis added) ). As the Supreme Court recently noted, Congress designed IPR to be a \"party-directed , adversarial process,\" not an \"agencyled, inquisitorial process.\" SAS Inst. Inc. v. Iancu , --- U.S. ----, 138 S.Ct. 1348, 1355, 200 L.Ed.2d" }, { "docid": "19529684", "title": "", "text": "2002) (citing United States v. Garza , 165 F.3d 312, 314 (5th Cir. 1999) ). Although this does not equate to a right to a full written opinion on every issue raised, this court should not avoid addressing the very question on appeal: what is the legal standard for establishing that a petition is time barred under § 315(b) ? This is particularly true where, as here, we review for the first time the legal standard for privity under § 315(b), a question that naturally rises from our en banc decision holding that this court has jurisdiction to review § 315(b) determinations. Wi-Fi One , 878 F.3d at 1375. The use of \"prior litigation\" does not imply that the prior district court action must be resolved or reach a judgment for the purpose of the time bar under § 315(b). Section 315(b) states that \"[a]n inter partes review may not be instituted if the petition requesting the proceeding is filed more than 1 year after the date on which the petitioner, real party in interest, or privy of the petitioner is served with a complaint alleging infringement of the patent .\" 35 U.S.C. § 315(b) (emphasis added). Once a complaint of infringement is served, the petitioner, real party in interest, or privy of the petitioner has a statutory one year period to file an IPR from the date of service. Nothing in § 315(b) indicates that the outcome of the district court litigation affects the time bar determinations. The time bar applies regardless if the prior litigation is still ongoing at the end of the one year period, or if the parties settle before that date. Broadcom and the Texas Litigation defendants re-fused to waive confidentiality with regard to the indemnification agreements before the Board. J.A. 51. Wi-Fi sought to discover contracts between the parties, especially the terms of the indemnification agreements, records of invoices and payments between them pursuant to the indemnification agreements, and communications relating solely to the Texas Litigation and the IPRs. The Board may limit the scope of additional discovery." }, { "docid": "19597777", "title": "", "text": "the operative terms \"served\" and \"complaint\" support the understanding that it is wholly irrelevant to the § 315(b) inquiry whether the civil action in which the complaint was filed is later voluntarily dismissed without prejudice. Black's Law Dictionary defines \"serve\" as \"[t]o make legal delivery of (a notice or process)\" or \"[t]o present (a person) with a notice or process as required by law,\" and defines \"service\" as \"[t]he formal delivery of a writ, summons, or other legal process[.]\" Black's Law Dictionary 1491 (9th ed. 2009). It defines \"complaint\" as \"[t]he initial pleading that starts a civil action and states the basis for the court's jurisdiction, the basis for the plaintiff's claim, and the demand for relief.\" Id. at 323, 129 S.Ct. 878. These definitions confirm that the plain meaning of the phrase \"served with a complaint\" is \"presented with a complaint\" or \"delivered a complaint\" in a manner prescribed by law. Indeed, at least one Board decision has interpreted the phrase \"served with a complaint\" in precisely this manner: \"the legally-charged text 'served with a complaint' is used ordinarily in connection with the official delivery of a complaint in a civil action.\" Amkor Tech., Inc. v. Tessera,Inc. , No. IPR2013-00242, slip op. at 9, 2014 WL 2864151 (P.T.A.B. Jan. 31, 2014), Paper No. 98. This reading of § 315(b) is confirmed by our en banc decision in Wi-Fi One , in which we held that the provision sets forth a \"condition precedent to the Director's authority to act,\" based on the \"timely filing of a petition.\" 878 F.3d at 1374. Indeed, we observed that, \"if a petition is not filed within a year after a real party in interest, or privy of the petitioner is served with a complaint, it is time-barred by § 315(b), and the petition cannot be rectified and in no event can IPR be instituted.\" Id. at 1374 n.9 (emphases added). This is so because § 315(b)'s time bar concerns \"real-world facts that limit the agency's authority to act under the IPR scheme,\" reflecting Congress's \"balancing [of] various public interests.\" Id. at 1374 ; see" }, { "docid": "9286272", "title": "", "text": "not be instituted if the petition requesting the proceeding is filed more than 1 year after the date on which the petitioner, real party in interest, or privy of the petitioner is served with a complaint alleging infringement of the patent.\" Two insights into Congress's intent vis-à-vis the reach of § 315(b) can be gleaned from the statutory text alone. First, the inclusion of the terms \"real party in interest\" and \"privy of the petitioner\" in § 315(b) makes clear that Congress planned for the provision to apply broadly-sweeping in not only what might be traditionally known as real parties in interest, but privies as well. Second, Congress did not speak of there being only one interested party in each case; instead, it chose language that bars petitions where proxies or privies would benefit from an instituted IPR, even where the petitioning party might separately have its own interest in initiating an IPR. Indeed, Congress understood that there could be multiple real parties in interest, as evidenced by § 312(a)'s requirement that an IPR petition must \"identif[y] all real parties in interest.\" 35 U.S.C. § 312(a)(2) (emphasis added). The terms \"real party in interest\" and \"privy of the petitioner\" are not defined in the AIA. As we recognized in Wi-Fi Remand , however, \"[t]he use of the familiar common law terms 'privy' and 'real party in interest' indicate that Congress intended to adopt common law principles to govern the scope of the section 315(b) one-year bar.\" 887 F.3d at 1335 ; see also Kirtsaeng v. John Wiley & Sons, Inc. , 568 U.S. 519, 538, 133 S.Ct. 1351, 185 L.Ed.2d 392 (2013) (explaining that, where terms in a statute cover \" 'issue[s] previously governed by the common law,' \" courts \"must presume that 'Congress intended to retain the substance of the common law.' \" (quoting Samantar v. Yousuf , 560 U.S. 305, 320 n.13, 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2010) ) ). In WesternGeco LLC v. ION Geophysical Corp. , we shed additional light on the meaning of \"privy\" in the context of § 315(b), but did not elaborate" }, { "docid": "20868280", "title": "", "text": "for the challenge to each claim.” That requirement is closely tied to the Director’s determination of a “reasonable likelihood” of unpatentability of at least one claim. The time bar is not. The issue that Wi-Fi appeals also is not “some minor statutory technicality.” Cuozzo, 136 S.Ct. at 2140. The time bar is not merely about preliminary procedural requirements that may be corrected if they fail to reflect real-world facts, but about real-world facts that limit the agency’s authority to act under the IPR scheme. The timely filing of a petition under § 315(b) is a condition precedent to the Director’s authority to' act. It sets limits on the Director’s statutory authority to institute, balancing various public interests. And like § 315 as a whole, it governs the relation of IPRs to other proceedings or actions, including actions taken in district court. Thus, the statutory scheme as a whole demonstrates that § 315 is not “closely related” to the institution decision addressed in § 314(a), and it therefore is not subject to § 314(d)’s bar on judicial review. Cuozzo, 136 S.Ct. at 2142; cf. Credit Acceptance Corp. v. Westlake Servs., 859 F.3d 1044, 1049-51 (Fed. Cir. 2017) (holding that a similar nonappealability provision with respect to post-grant review, 35 U.S.C. § 324(e), does not preclude our review of an estoppel determination under 35 U.S.C. § 325(e)(1)). Accordingly, our review of the statutory language and the statutory scheme reveals no clear and convincing indication of Congress’s intent to bar judicial review of § 315(b) time-bar determinations. Enforcing statutory limits on an agency’s authority to act is precisely the type of issue that courts have historically reviewed. See, e,g., City of Arlington v. F.C.C., 569 U.S. 290, 307, 133 S.Ct. 1863, 185 L.Ed.2d 941 (2013); Bowen, 476 U.S. at 671, 106 S.Ct. 2133; Leedom v. Kyne, 358 U.S. 184, 190, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). As a statutory limit on the Director’s ability to institute IPR, the § 315(b) time bar is such an issue. We hold that time-bar determinations under § 315(b) are reviewable by this court. III. Conclusion The" }, { "docid": "9286318", "title": "", "text": "supplying a definition, courts presume that Congress knows and adopts the cluster of ideas that were attached to the term.\" WesternGeco LLC v. ION Geophysical Corp. , 889 F.3d 1308, 1317 (Fed. Cir. 2018) (quoting FAA v. Cooper , 566 U.S. 284, 291-92, 132 S.Ct. 1441, 182 L.Ed.2d 497 (2012) ) (quotation marks omitted); see Wi-Fi One, LLC v. Broadcom Corp. , 887 F.3d 1329, 1335 (Fed. Cir. 2018) (\" Wi-Fi One Remand \") (\"Congress intended to adopt common law principles to govern the scope of the section 315(b) one-year bar.\"). The AIA's legislative history also recognizes the common law meanings for privity. See WesternGeco , 889 F.3d at 1317 ; Wi-Fi One Remand , 887 F.3d at 1335. Congress did not leave to the PTO's discretion to determine the legal standards for privity; it is a question well within the province of the judiciary. See McDonnell Douglas Corp. v. United States , 323 F.3d 1006, 1014 (Fed. Cir. 2003) (holding that \"determination of legal standards is a pure issue of law\" that we review de novo ). Privity is a well-recognized common law concept that is primarily based on the legal relationship between parties . The general definition of privity is \"[t]he connection or relationship between two parties, each having a legally recognized interest in the same subject matter (such as a transaction, proceeding, or piece of property).\" Privity , Black's Law Dictionary (10th ed. 2014). The Supreme Court has noted that \"[t]he substantive legal relationships justifying preclusion are sometimes collectively referred to as 'privity.' \" See Taylor v. Sturgell , 553 U.S. 880, 894 n.8, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008). The roots of privity are grounded in the general principle of due process that one is not bound by a judgment \"in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.\" Hansberry v. Lee , 311 U.S. 32, 40, 61 S.Ct. 115, 85 L.Ed. 22 (1940) (quoting Pennoyer v. Neff , 95 U.S. 714, 24 L.Ed. 565 (1877) ). On" }, { "docid": "19529680", "title": "", "text": "of the actual stakeholder(s). Additional discovery should only be denied when a patentee fails to concretely identify evidence implicating at least one Taylor factor, or when the allegation of privity, if taken as true, cannot establish a single Taylor factor. Wi-Fi's motion for additional discovery should be granted because the record shows that the relationship between Broadcom and the Texas Litigation defendants went beyond a typical supplier/buyer relationship; Wi-Fi alleged factual evidence to support its discovery request; and most of Wi-Fi's requested evidence, such as the indemnification agreements (the existence of which is not disputed by Broadcom) are easy to produce and cannot be otherwise obtained. When viewed in aggregate, Wi-Fi's showing established a strong basis for allowing discovery. The Board's expediency ground also fails. The Board notes that given the statutory deadlines for issuing final written decisions in IPRs, the Board \"must be conservative in authorizing additional discovery.\" J.A. 80. However, the desire to expedite the proceedings cannot come at the cost of justice. Sackett v. EPA , 566 U.S. 120, 130, 132 S.Ct. 1367, 182 L.Ed.2d 367 (2012) (repudiating \"the principle that efficiency of regulation conquers all\"). Importantly, a fundamental statutory purpose of § 315(b) is to \"govern[ ] the relation of IPRs to other proceedings or actions, including actions taken in district court,\" and to \"set[ ] limits on the [PTO] Director's statutory authority to institute, balancing various public interests.\" Wi-Fi One , 878 F.3d at 1374. As a threshold issue prior to institution, time bar determinations are vital because IPRs can deprive a patentee of significant property rights though the cancellation of patents, as happened in this case. Although the statute imposes no standing requirement on who may file a petition, § 315(b) attests that the doors to IPR institution are not open to every would-be petitioner. As this court noted en banc , § 315(b) protects both the integrity and efficiency of the IPR process by giving the Director of the PTO an important tool to refuse institution. Wi-Fi One , 878 F.3d at 1374. The restrictive standard adopted by the majority dulls that tool" }, { "docid": "19597778", "title": "", "text": "a complaint' is used ordinarily in connection with the official delivery of a complaint in a civil action.\" Amkor Tech., Inc. v. Tessera,Inc. , No. IPR2013-00242, slip op. at 9, 2014 WL 2864151 (P.T.A.B. Jan. 31, 2014), Paper No. 98. This reading of § 315(b) is confirmed by our en banc decision in Wi-Fi One , in which we held that the provision sets forth a \"condition precedent to the Director's authority to act,\" based on the \"timely filing of a petition.\" 878 F.3d at 1374. Indeed, we observed that, \"if a petition is not filed within a year after a real party in interest, or privy of the petitioner is served with a complaint, it is time-barred by § 315(b), and the petition cannot be rectified and in no event can IPR be instituted.\" Id. at 1374 n.9 (emphases added). This is so because § 315(b)'s time bar concerns \"real-world facts that limit the agency's authority to act under the IPR scheme,\" reflecting Congress's \"balancing [of] various public interests.\" Id. at 1374 ; see id. at 1377 (O'Malley, J., concurring) (explaining that \" § 315(b) codifies one of the 'important procedural rights' that Congress chose to afford patent owners in the IPR context\" (quoting Lindahl v. Office of Pers. Mgmt. , 470 U.S. 768, 791, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985) ) ). It is impossible to square Wi-Fi One 's \"cannot be rectified\" and \"in no event\" language with the possibility that subsequent events in the civil action might operate to \"nullify\" service of the complaint for the purpose of § 315(b)'s time bar. Moreover, adopting the Board's preferred construction of the phrase \"served with a complaint\" in § 315(b)\"would impose additional conditions not present in the statute's text.\" Return Mail, Inc. v. U.S. Postal Serv. , 868 F.3d 1350, 1363 (Fed. Cir. 2017) (citing Norfolk Dredging Co. v. United States , 375 F.3d 1106, 1111 (Fed. Cir. 2004), for its holding that courts must avoid \"add[ing] conditions\" to the applicability of a statute that do not appear in the provision's text). Congress specifically addressed the effect" }, { "docid": "9286265", "title": "", "text": "small part, to the fact that time-bar determinations under this provision were not reviewable until we issued our en banc opinion in Wi-Fi One, LLC v. Broadcom Corporation , 878 F.3d 1364, 1374 (Fed. Cir. 2018) (Wi-Fi En Banc ), holding \"that time-bar determinations under § 315(b) are reviewable by this court.\" On remand, the panel held that \"[t]he use of the familiar common law terms 'privy' and 'real party in interest' indicate that Congress intended to adopt common law principles to govern the scope of the [§] 315(b) one-year bar.\" Wi-Fi One, LLC v. Broadcom Corp. , 887 F.3d 1329, 1335 (Fed. Cir. 2018) ( Wi-Fi Remand ). Although we have issued a few decisions recently applying these common-law principles in the context of § 315(b) challenges, they have been in cases where privity challenges were raised and where the arguments on that question related to the parties' relationship during an earlier litigation that reached a final judgment; the question of who is a \"real party in interest\" in the context of an IPR was not addressed. In the years since the enactment of the Leahy-Smith America Invents Act, Pub. L. No. 112-29, § 6(a)-(c), 125 Stat. 284, 299-305 (2011) (\"AIA\"), the PTO has attempted to provide guidance with respect to the meaning of § 315(b) and the terms used therein. Specifically, it has published a Trial Practice Guide discussing these terms. And the PTO's tribunals, including the Board below, have rendered time-bar determinations involving alleged real parties in interest and privies of petitioners that have relied, to varying degrees, on statements contained in the Trial Practice Guide. The facts of this case and the arguments made by the parties require us to explore in greater detail the meaning of the term \"real party in interest\" in the context of the AIA. As such, we first construe § 315(b) by examining the language of the provision, its place in the overall statutory scheme, and the legislative history of the provision. We then explain how the Board in this case rendered a flawed time-bar determination under § 315(b) by taking" }, { "docid": "19536128", "title": "", "text": "Nike, Inc. v. Adidas AG , 812 F.3d 1326, 1332 (Fed. Cir. 2016) ; In re Giannelli , 739 F.3d 1375, 1378-79 (Fed. Cir. 2014). Substantial evidence is \"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\" Consol. Edison Co. v. NLRB , 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ; In re Applied Materials, Inc. , 692 F.3d 1289, 1294 (Fed. Cir. 2012). DISCUSSION WesternGeco contends that the Board's decisions invalidating claims of the WesternGeco Patents are wrong on the merits and should be reversed. But WesternGeco argues we need not reach the merits because Wi-Fi One has made time-bar decisions under § 315(b) judicially reviewable, and, as a threshold matter, we should vacate and dismiss the petitions as time-barred. In WesternGeco's view, (1) ION was served with a patent infringement complaint well over a year before the IPR petitions were filed and unquestionably would have been time-barred from filing any petitions challenging the WesternGeco Patents had it not been joined with PGS's petitions; and (2) PGS's petitions should be time-barred because ION was a \"real party in interest,\" or \"privy\" of PGS. Consequently, WesternGeco argues that the Board never should have instituted the requested IPRs because no party timely filed the petitions. I. Time Bar Under 35 U.S.C. § 315(b) A. Legal Standard for Privity Section 315(b) of the Leahy-Smith America Invents Act (AIA), Pub. L. No. 112-29, § 3(b)(1), 125 Stat. 284, 287 (2011) provides that the USPTO may not institute an IPR where the petition \"is filed more than 1 year after the date on which the petitioner, the real party in interest , or privy of the petitioner is served with a complaint alleging infringement of the patent.\" 35 U.S.C. § 315(b) (emphases added). For purposes of this appeal, WesternGeco focuses on privity as the key basis of its time-bar challenge, reasoning that privity is more expansive in the types of parties it encompasses compared to real party in interest. See Appellant's Supp. Br. 8 n.5 (citing the USPTO Office Patent Trial Practice Guide, 77" }, { "docid": "19461299", "title": "", "text": "878 F.3d 1364 (Fed. Cir. 2018) (en banc). As such, Bungie in its briefing relied on Achates Reference Publishing, Inc. v. Apple Inc. to argue that the Board's real-party-in-interest determination for purposes of evaluating the time bar under § 315(b) is not subject to review by this court. 803 F.3d 652, 659 (Fed. Cir. 2015), overruled by Wi-Fi One , 878 F.3d at 1367. In Wi-Fi One , the court overruled Achates and held that the § 314(d) bar on the appeal of the Director's determination of whether to institute an IPR proceeding does not apply to the Board's time-bar determinations under § 315(b), thus making such time-bar determinations reviewable on appeal. Wi-Fi One , 878 F.3d at 1367. The Federal Register notice cited in Atlanta Gas Light includes the PTO's responses to public comments. In response to a question regarding burdens of proof and persuasion in a challenge to the real-party-in-interest identification, the PTO stated: \"The Office generally will accept the petitioner's 'real party-in-interest' identification at the time of filing the petition.\" Part III, 77 Fed. Reg. 48,680, 48,695 (Aug. 14, 2012). Although exceptions to this general rule exist, for example, where elements of a plaintiff's claim \"can fairly be characterized as affirmative defenses or exemptions,\" Schaffer , 546 U.S. at 57, 126 S.Ct. 528, we do not view § 315(b) as an affirmative defense. Instead, unlike a traditional statute of limitations defense, \"[t]he timely filing of a petition under § 315(b) is a condition precedent to the Director's authority to act,\" and \"[it] sets limits on the Director's statutory authority to institute.\" Wi-Fi One , 878 F.3d at 1374. For purposes of deciding this case, we need not address the quantum of support required from a patent owner. If it were not framed in terms of a presumption, the standard used in Atlantic Gas Light- evidence that \"reasonably brings into question the accuracy of a petitioner's identification of the real parties in interest\"-may prove useful. In this case, it suffices to say that, as discussed below, Worlds presented more than enough evidence to sufficiently put this issue into" }, { "docid": "20868270", "title": "", "text": "Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201 (Fed. Cir. 2014). Broadcom Corporation (“Broad-com”), the appellee here, was never a defendant in that litigation. In 2013, Broadcom filed three separate petitions for IPR of the ’215, ’568, and ’625 patents. When Broadcom filed the IPR petitions, Ericsson owned these patents. During the pendency of the IPRs, Ericsson transferred ownership of the three patents to Wi-Fi One, LLC (“Wi-Fi”). In response to Broadcom’s petitions, Wi-Fi argued that the Director was prohibited from instituting review on any of the three petitions. Specifically, Wi-Fi argued that the Director lacked authority to institute IPR under § 315(b) because Broadcom was in privity with defendants that were served with a complaint in the Eastern District of Texas litigation. Wi-Fi alleged that the IPR petitions were therefore time-barred under § 315(b) because Erics son, the patents’ previous owner, had already asserted infringement in district court against defendants that were in privity with petitioner Broadcom more than a year prior to the filing of the petitions. Wi-Fi filed a motion seeking discovery regarding indemnity agreements, defense agreements, payments, and email or other communications between Broadcom and the defendants in the Eastern District of Texas litigation. The Board denied both the motion and Wi-Fi’s subsequent motion for rehearing. Wi-Fi petitioned this court for a writ of mandamus, which we denied. In re Telefonaktiebolaget LM Ericsson, 564 Fed.Appx. 585 (Fed. Cir. 2014). The Board instituted IPR on the challenged claims, and issued Final Written Decisions finding the challenged claims un-patentable. In the Final Written Decisions, the Board determined that Wi-Fi had not shown that Broadcom was in privity with the defendants in the Eastern District of Texas litigation, and therefore, the IPR petitions were not time-barred under § 315(b). Broadcom Corp. v. Wi-Fi One, LLC, No. IPR2013-00601, 2015 WL 1263008, at *4-5 (P.T.A.B. Mar. 6, 2015); Broadcom Corp. v. Wi-Fi One, LLC, No. IPR2013-00602, 2015 WL 1263009, at *4 (P.T.A.B. Mar. 6, 2015); Broadcom Corp. v. Wi-Fi One, LLC, No. IPR2013-00636, 2015 WL 1263010, at *4 (P.T.A.B. Mar. 6, 2015). Wi-Fi appealed the Final Written Decisions, arguing, among" }, { "docid": "9286316", "title": "", "text": "arguments resting on theories relating thereto. See J.A. 17, 1367-68. On remand, if necessary, the Board must address these other theories focused on the actual relationship between Salesforce and RPX. In addition, § 1552 of Wright & Miller and § 4456 of Wright, Miller, & Cooper examine the rights of associations, and also appear to be relevant to the undisputed facts of this case. Reyna, Circuit Judge, concurring. I concur with my colleague Judge O'Malley's opinion that the Patent Trial and Appeal Board (\"Board\") erred in its determination that RPX's petitions for inter partes review (\"IPR\") are not time barred under 35 U.S.C. § 315(b). But I also conclude that the Board erred by failing to fully address the question of whether RPX's petitions are time barred under the privity provision of § 315(b). This error constitutes an independent ground for vacating and remanding. I. PRIVITY UNDER § 315(B) The Leahy-Smith America Invents Act (\"AIA\") provides that the Patent and Trademark Office (\"PTO\") may not institute an IPR where the petition \"is filed more than 1 year after the date on which the petitioner, the real party in interest, or privy of the petitioner is served with a complaint alleging infringement of the patent.\" 35 U.S.C. § 315(b) ; Pub. L. No. 112-29, § 3(b)(1), 125 Stat. 284, 287 (2011). Neither the AIA nor the Patent Act ( 35 U.S.C. §§ 1 et seq ) defines \"privity\" or \"privy of the petitioner.\" Nor has this court had ample opportunity to address the legal standards for privity under § 315(b), primarily because time bar determinations under § 315(b) were not reviewable until the en banc court recently held that \"time-bar determinations under § 315(b) are reviewable by this court,\" and overruled earlier panel decisions to the contrary. Wi-Fi One, LLC v. Broadcom Corp. , 878 F.3d 1364, 1374 (Fed. Cir. 2018) (en banc). In Wi-Fi One , we recognized that, as a well-established common law concept, privity under § 315(b) should be examined under the backdrop of the \"cardinal rule of statutory construction that where Congress adopts a common-law term without" }, { "docid": "9286334", "title": "", "text": "RPX's documented history of acting as a proxy on behalf of its clients in filing IPR petitions, coupled with RPX's offering of patent validity challenges to its fee-paying members, AIT proffered sufficient concrete evidence to suggest that RPX was in privity with Salesforce. I would remand with instruction that the Board thoroughly review whether privity exists between RPX and Salesforce, including application of all of the Taylor factors. In addition, while the Board partially granted AIT's motion for additional discovery into \"whether Petitioner [RPX] should have identified Salesforce as an RPI in this proceeding,\" it denied AIT's request for discovery into \"[d]ocuments discussing any efforts by RPX to shield its clients from being named as real parties in interest in inter parte [sic ] reviews and covered business method patent reviews.\" J.A. 972, 1069. The § 315(b) time bar inquiry is broader than the real party in interest inquiry, and the Board should consider new motions for additional discovery. IV. CONFLATION OF § 315(B) WITH § 312(A)(2) On remand, the Board should not repeat its error of conflating § 315(b) with § 312(a)(2). Sections 315(b) and 312(a)(2) entail distinct, independent inquiries. Section 312(a)(2) requires that a petition may be considered only if \"the petition identifies all real parties in interest.\" Section 312(a)(2) is akin to a pleading requirement that can be corrected, and this court has noted that \"the Director [of the PTO] can, and does, allow the petitioner to add a real party in interest.\" Wi-Fi One , 878 F.3d at 1374 n.9. Section 312(a)(2) does not act as a prohibition on the Director's authority to institute. In contrast, § 315(b)\"sets limits on the Director's statutory authority to institute\" if a petition is time barred. Id. at 1374. This court has recognized the difference between the two statutory provisions and has warned that § 315(b) should not be \"conflat[ed]\" with § 312(a)(2). Id. at 1374 n.9. I suspect that this is what happened in this case. Despite AIT's specific allegation that RPX should be time barred under § 315(b), the Board framed the entire issue as \"whether Petitioner has" }, { "docid": "9286273", "title": "", "text": "must \"identif[y] all real parties in interest.\" 35 U.S.C. § 312(a)(2) (emphasis added). The terms \"real party in interest\" and \"privy of the petitioner\" are not defined in the AIA. As we recognized in Wi-Fi Remand , however, \"[t]he use of the familiar common law terms 'privy' and 'real party in interest' indicate that Congress intended to adopt common law principles to govern the scope of the section 315(b) one-year bar.\" 887 F.3d at 1335 ; see also Kirtsaeng v. John Wiley & Sons, Inc. , 568 U.S. 519, 538, 133 S.Ct. 1351, 185 L.Ed.2d 392 (2013) (explaining that, where terms in a statute cover \" 'issue[s] previously governed by the common law,' \" courts \"must presume that 'Congress intended to retain the substance of the common law.' \" (quoting Samantar v. Yousuf , 560 U.S. 305, 320 n.13, 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2010) ) ). In WesternGeco LLC v. ION Geophysical Corp. , we shed additional light on the meaning of \"privy\" in the context of § 315(b), but did not elaborate on the scope of \"real party in interest\" because the patent owner focused on privity as the key basis of its time-bar challenge. WesternGeco , 889 F.3d 1308, 1316-19 (Fed. Cir. 2018). We now examine the common-law meaning of \"real party in interest,\" keeping in mind the administrative context in which this question arises. As the Supreme Court explained in Sprint Communications Co. v. APCC Services, Inc. , the concept of a \"real party in interest\" developed at common law over the centuries in large measure as a means of eliminating a restrictive common law rule that prohibited assignees of a legal claim for money from bringing suit in their own name. 554 U.S. 269, 273-81, 128 S.Ct. 2531, 171 L.Ed.2d 424 (2008) ; see also 6A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure § 1545 (3d ed. 2018) (\"Wright & Miller\") (\"At common law the assignee of a chose in action did not hold legal title to it and could not qualify as the real party in" }, { "docid": "19536167", "title": "", "text": "showing of obviousness in this case. See Sud-Chemie, Inc. v. Multisorb Techs., Inc. , 554 F.3d 1001, 1009 (Fed. Cir. 2009). CONCLUSION We have considered WesternGeco's remaining arguments and find them unpersuasive. The Board properly held that ION is not a real party in interest or privy of PGS. Thus, the statutory time bar does not apply. On the merits, we find that, for each of the WesternGeco Patents, the Board correctly interpreted the claims, and substantial evidence supports the Board's unpatentability findings. For these reasons, the Board's decisions regarding the WesternGeco Patents are AFFIRMED While WesternGeco's appeal before this court was pending, PGS settled with WesternGeco and withdrew from the appeal. See PGS's Unopposed Mot. to Withdraw at 2, ECF No. 82; Order at 2, ECF No. 86. The prior appeals involved an additional patent owned by WesternGeco, U.S. Patent No. 6,691,038 (the '038 Patent), which is not at issue here. We vacated the judgment of no willful infringement by ION and remanded for further consideration of enhanced damages under § 284. See WesternGeco L.L.C.v. ION Geophysical Corp. , 837 F.3d 1358, 1364 (Fed. Cir. 2016). We also reversed the District Court's award of lost profits resulting from conduct occurring abroad. Id. (reinstating aspects of our judgment set forth in WesternGeco L.L.C. v. ION Geophysical Corp. , 791 F.3d 1340, 1344 (Fed. Cir. 2015) ). In January 2018, the Supreme Court agreed to review WesternGeco's challenge to our ruling on lost profits. WesternGeco L.L.C. v. ION Geophysical Corp. , --- U.S. ----, 138 S.Ct. 734, 199 L.Ed.2d 601 (2018). It heard oral argument in April 2018. WesternGeco did not argue before the Board, nor does it argue here, that ION is barred from joining the IPRs pursuant to 35 U.S.C. § 315(c), provided the IPRs were properly instituted. J.A. 13436; see 35 U.S.C. § 315(b) (\"The time limitation set forth in the preceding sentence shall not apply to a request for joinder under subsection (c).\" (emphasis added) ). Considering that the context here involves an interpretation of the text of § 315(b), WesternGeco's reliance on our assignor estoppel case" }, { "docid": "19529681", "title": "", "text": "1367, 182 L.Ed.2d 367 (2012) (repudiating \"the principle that efficiency of regulation conquers all\"). Importantly, a fundamental statutory purpose of § 315(b) is to \"govern[ ] the relation of IPRs to other proceedings or actions, including actions taken in district court,\" and to \"set[ ] limits on the [PTO] Director's statutory authority to institute, balancing various public interests.\" Wi-Fi One , 878 F.3d at 1374. As a threshold issue prior to institution, time bar determinations are vital because IPRs can deprive a patentee of significant property rights though the cancellation of patents, as happened in this case. Although the statute imposes no standing requirement on who may file a petition, § 315(b) attests that the doors to IPR institution are not open to every would-be petitioner. As this court noted en banc , § 315(b) protects both the integrity and efficiency of the IPR process by giving the Director of the PTO an important tool to refuse institution. Wi-Fi One , 878 F.3d at 1374. The restrictive standard adopted by the majority dulls that tool and defeats the purpose of § 315(b). For these reasons, I respectfully dissent. See also J.A. 85 (\"The totality of the evidence fails to amount to more than a 'mere possibility' that Broadcom controlled, or could have controlled, the Texas litigation .\") (emphasis added); J.A. 87 (\"[T]he IPR filings fail to show control over the Texas Litigation . The evidence does not amount to more than speculation that any of Broadcom's activity constitutes evidence of collusion with the D-Link defendants in the Texas Litigation in a manner that would bind Broadcom to the outcome thereof.\") (emphasis added); J.A. 89 (\"The evidence and arguments fail to show that the sought-after discovery would have more than a mere possibility of producing useful privity information, i.e., that Broadcom controlled or could have controlled the Texas Litigation .\") (emphasis added). The majority justifies its narrow holding on grounds that Wi-Fi did not raise other Taylor grounds before the Board and that Wi-Fi limited its argument to the \"control over the prior litigation\" ground. Maj. Op. at 1338 n.3. This" }, { "docid": "20868286", "title": "", "text": "a real party in interest, or privy of the petitioner is served with a complaint, it is time-barred by § 315(b), and the petition cannot be rectified and in no event can IPR be instituted. O’MALLEY, Circuit Judge, concurring. I agree with much of the majority’s thoughtful reasoning, and I certainly agree with its conclusion that time-bar determinations under 35 U.S.C. § 315(b) are not exempt from judicial review. I write separately because, in my view, the question presented for en banc rehearing in this case is much simpler than the majority’s analysis implies; it turns on the distinction between the Director’s authority to exercise discretion when reviewing the adequacy of a petition to institute an inter partes review (“IPR”) and authority to undertake such a review in the first instance. If the United States Patent and Trademark Office (“PTO”) exceeds its statutory authority by instituting an IPR proceeding under circumstances contrary to the language of § 315(b), our court, sitting in its proper role as an appellate court, should review those determinations. Indeed, we should address those decisions in order to give effect to the congressionally imposed statutory limitations on the PTO’s authority to institute IPRs. As we explained in Intellectual Ventures II LLC v. JPMorgan Chase & Co., 781 F.3d 1372 (Fed. Cir. 2015), when assessing whether we may exercise jurisdiction over an appeal from institution decisions regarding covered business method patents (“CBMs”), Congress consistently differentiated between petitions to institute and the act of institution in the AIA. Id. at 1376. The former is what a party seeking to challenge a patent in a CBM proceeding, a derivation proceeding, a post-grant proceeding, or an IPR files—and of which the PTO reviews the sufficiency—and the latter is what the Director is authorized to do. Id. Because only the Director or her delegees may “institute” a proceeding, § 315(b)’s bar on institution is necessarily directed to the PTO, not those filing a petition to institute. See id. The PTO’s own regulations support this reading of § 315(b); they clearly consider the possibility that the Board might mistakenly take actions in" }, { "docid": "9286336", "title": "", "text": "identified all RPIs\"-a § 312(a)(2) determination. J.A. 1395 (institution decisions); see id. at 1396 (summarizing that \"we must determine whether Salesforce should have been identified as an RPI in this proceeding\"); id. at 1402-03 (concluding that \"we are not persuaded that Salesforce should have been identified as an RPI in this proceeding\"); id. at 403-04 (same, final written decisions). Importantly, the Board failed to expressly address whether RPX's petitions were time barred under § 315(b). Rather, the Board viewed § 315(b) as a mere \"relevant factor\" to the real party in interest inquiry. J.A. 1069 (\"[D]etails of the relationship between Petitioner [RPX] and Salesforce and Petitioner's reasons for filing the instant Petitions, particularly in view of the fact Salesforce is time-barred under 35 U.S.C. § 315(b), are certainly relevant to the RPI inquiry in these proceedings.\" (emphasis added) ). As the Supreme Court recently noted, Congress designed IPR to be a \"party-directed , adversarial process,\" not an \"agencyled, inquisitorial process.\" SAS Inst. Inc. v. Iancu , --- U.S. ----, 138 S.Ct. 1348, 1355, 200 L.Ed.2d 695 (2018) (emphasis added). The Board is required to address the issues that the parties raise during the proceeding, and it lacks authority to substitute its choice of issues over that of the parties'. Thus, when a patent owner alleges a violation of § 315(b) and proffers concrete evidence in support, the Board is required to conduct a thorough § 315(b) analysis and include such analysis it in its decisions. Due process, the bedrock of privity, requires as much. This is particularly true in the context of § 315(b). As a threshold issue prior to institution, § 315(b) time bar determinations are vital because IPRs can deprive a patentee of significant property rights through the cancellation of claims, as in this case. The AIA imposes no standing requirement on who may file a petition, but the gate to IPR institution is not open to every would-be petitioner. Section 315(b) is the gatekeeper to deny institution of petitions from time barred petitioners, their real parties in interest, and their privies. Privity serves the important purpose of" } ]

[ { "docid": "702074", "title": "", "text": "v. Klincar, 748 F.2d 1177, 1184 (7th Cir.1984)), under Rules 23(a) and (b). In this case, therefore, the plaintiffs must demonstrate that all of the requirements of Rule 23(a) and (b)(2) are satisfied. A. Rule 23(a) Subsection (a) of Rule 23 provides that: One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Rule 23(a), in addition to its four express requirements, contains two implicit conditions which must be met: first, an identifiable class must exist; and second, the named representatives must be members of the class. Edmondson v. Simon, 86 F.R.D. 375, 379 (N.D.Ill.1980); Helfand v. Cenco, Inc., 80 F.R.D. 1, 6 (N.D.Ill.1977); see also Miller, An Overview of Federal Class Actions: Past, Present and Future, 13, 15-18 (1977) [hereinafter Miller ]. The Court accordingly will address the six requirements of Rule 23(a) seriatim. 1. The existence of an identifiable class Before a class can be certified, the . party seeking certification must show that an identifiable class exists. An identifiable class exists if its members can be ascertained by reference to objective criteria. Alliance to End Repression v. Rockford, 565 F.2d 975, 977 (7th Cir.1977). A class description is insufficient, however, if membership is contingent oh the prospective member’s state of mind. Simer v. Rios, 661 F.2d 655, 668-69 (7th Cir.1981); Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1072 (7th Cir.1976), modified in part on rehearing en banc, 548 F.2d 715 (7th Cir.1977). In this case, the plaintiffs seek to certify the following class: All Spanish-speaking children who have been, are, or will be enrolled in Illinois public schools, and who have been, should have been, or should be assessed as limited English-proficient. Complaint, par. 8. We" } ]

[ { "docid": "11150184", "title": "", "text": "available under the FDCPA, see 15 U.S.C. § 1692k(a)(l), but are not sought in the instant case. The party seeking class certification bears the burden of establishing that certification is proper. Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir.1993). Rule 23 requires a two-step analysis to determine whether class certification is appropriate. First, the action must satisfy all four requirements of Rule 23(a). That is, “the plaintiff must meet the prerequisites of numerosity, commonality, typicality, and adequacy of representation.” Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir.1993) (internal quotation marks omitted). “All of these elements are prerequisites to certification; failure to meet any one of these precludes certification as a class.” Retired Chicago Police, 7 F.3d at 596; Harriston, 992 F.2d at 703. Second, the action must satisfy one of the conditions of Rule 23(b). Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir.1977). Gammon seeks certification under Rule 23(b)(2), which provides: (b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole[.] Fed.R.Civ.P. 23(b)(2). Gammon maintains that all of the requirements of Rule 23(a) and (b)(2) are met. GC Services does not contest that Gammon satisfies Rule 23(a)(l)-(3) (i.e., the numerosity, commonality, and typicality prerequisites) , but contends that Gammon fails to satisfy Rule 23(a)(4) and 23(b)(2). Accordingly, we address only these latter two requirements for Rule 23(b)(2) certification below. A. Rule 23(a)(4) Rule 23(a)(4) requires that the named plaintiff “fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). The adequacy of representation requirement has three elements: (1) the chosen class representative cannot have antagonistic or conflicting claims with other members of the class, Rosario v. Livaditis, 963 F.2d 1013 (7th Cir.1992); (2) the named representative must have a “sufficient interest in the outcome to" }, { "docid": "12567905", "title": "", "text": "improper racial considerations. CONCLUSION The Plaintiffs’ Motion for Class Certification is granted under Rule 23(b)(2) for purposes of injunctive relief only. The following class of persons is certified: All African-Americans who filed applications for home loans to Citibank on or after July 6, 1992, and whose applications were rejected because they were African-American and/or the racial composition of the neighborhoods in which their properties were located was predominantly African-American. The Court expressly notes that under Rule 23(c)(1), the Court’s order certifying this class is conditional and may be amended before any decision on the merits. In addition, Rule 23(c)(4) empowers the Court to divide the class into subclasses. Should it appear in the course of litigation that the individual issues in this case prevent efficient or just resolution, this Court shall not hesitate to exercise the authority it retains to create appropriate sub-classes represented by separate counsel or to take whatever other measures are necessary to ensure fairness of representation. Plaintiffs are directed to file a Second Amended Complaint within fourteen (14) days from the date of this Order in conformance with the Court’s directive in footnote 3. Citibank will have twenty (20) days to answer. This case will be set for status on July 24, 1995, at 9:00 a.m. to discuss further proceedings in this ease. The parties are directed to file a joint proposed discovery and litigation schedule which will govern this case for the Court’s evaluation before July 20, 1995. . Redlining has been defined as \"mortgage credit discrimination based on the characteristics of the neighborhood surrounding the would-be borrower’s dwelling.” Thomas v. First Fed. Sav. Bank of Ind., 653 F.Supp. 1330, 1337 (N.D.Ind.1987). See also NAACP v. AFMI Co., 978 F.2d 287, 290 (7th Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 2335, 124 L.Ed.2d 247 (1993); Cartwright v. American Savs. Ass'n, 880 F.2d 912, 922 (7th Cir.1989). . Plaintiffs define the Caucasian race to include persons of European and Asian descent. The sole Hispanic applicant in the relevant statistical group has been excluded from Plaintiffs' proposed class. See Plaintiffs’ Memorandum In Support Of Their Third" }, { "docid": "19026340", "title": "", "text": "plaintiffs have instituted this litigation to declare the Secretary’s regulatory policies illegal and to enjoin their application. If the prayed for relief is granted, both the named and unnamed plaintiffs will benefit equally. The Secretary does not allege, nor does this Court find, any facts suggesting that plaintiffs’ interest in the case is inconsistent with the interests of the class as a whole. II. Requisites Under Fed.R.Civ.P. 23(a) In addition to meeting the requirements of Fed.R.Civ.P. 23(a), a class action must qualify under one of the subsections of 23(b). The Secretary’s regulatory policies challenged here affect equally all members of the class. Indeed, plaintiffs have defined the class by reference to the scope of the Secretary’s policies at issue. Thus, there is ample support for plaintiffs’ assertion that the Secretary has acted or refused to act on grounds generally applicable to the class, thereby making injunctive or declaratory relief with respect to the class as a whole appropriate. Alliance to End Repression v. Rochford, 565 F.2d 975, 978 (7th Cir.1977); Dixon v. Quern, 76 F.R.D. 617, 620 (N.D.Ill.1977). Conclusion Plaintiffs have met their four-part burden under Fed.R.Civ.P. 23(a) for certification of a class action. The objections raised by defendant to numerosity and commonality of issues have been considered and rejected in the foregoing discussion. The remaining two prerequisites of 23(a), typicality of claims and representativeness of named plaintiffs have also been met. Furthermore, the requirements of Fed.R.Civ.P. 23(b)(2) are satisfied in that the Secretary’s two eligibility policies are generally applicable to the proposed class, making appropriate injunctive and declaratory relief with respect to the class as a whole. Therefore, plaintiffs’ motion for class certification is granted. IT IS SO ORDERED. . 20 C.R.F. §§ 404.1520 and 416.920 (1982) were promulgated as final regulations to be effective in February, 1979. 40 Fed.Reg. 55363 and 55371 (November 29, 1978) to be codified as 20 C.F.R. §§ 404.1503(c) and 416.903(c). These regulations were recodified as 404.-1520(c) and 416.920(c) in 45 Fed.Reg. No. 163 (August 20, 1980). . 20 C.F.R. 404.1522 and 416.922 (1982) were promulgated in August, 1980. 45 Fed.Reg. 55566 et seq." }, { "docid": "17632930", "title": "", "text": "Co. of S.W. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); Valentino v. Howlett, 528 F.2d 975 (7th Cir.1976). If all of the elements of Rule 23(a) are met, the moving party must also show that one of the elements outlined in Federal Rule of Civil Procedure 23(b). See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 611-613, 117 S.Ct. 2231, 2244, 138 L.Ed.2d 689 (1997) (“In addition to satisfying Rule 23(a)’s prerequisites, parties seeking class certification must show that the action is maintainable under Rule 23(b)(1), (2), or (3).”); see also Alliance to End Repression v. Rockford, 565 F.2d 975, 977 (7th Cir.1977). The plaintiffs in this ease seek class certification under Rule 23(b)(2), which provides for certification if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). The Court has the authority to certify the class on some issues and refuse to certify the class on others. Fed.R.Civ.P. 23(c)(4). When determining a motion for class certification, the Court deems as true all of the allegations in the complaint. See Johns, 145 F.R.D. at 482. Moreover, the Court does not consider the merits of the case; rather, the Court focuses on whether the certification requirements are satisfied. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974) (Rule 23 does not “give a court authority to conduct a preliminary inquiry into the merits of a suit to determine whether it may be maintained as a class action”); In re VMS Sec. Litig., 136 F.R.D. 466, 473 (N.D.Ill.1991). Thus, the Court’s role in the action currently under review is to determine whether the plaintiff is asserting a claim which, assuming its merits, would satisfy the requirements of Rule 23. See H. Newberg, Newberg on Class Actions, § 24.13 (3d ed.1992). Nonetheless, the determination of a class certification motion may involve some consideration of the factual and legal issues" }, { "docid": "12567904", "title": "", "text": "the class for injunctive relief only. Williams, 129 F.R.D. at 639 (where case is certified for injunctive relief “[mjembers of such a class generally share a common interest in the direction and outcome of the case ... and a court does not violate the rights of individual class members by failing to provide individual notice ... or an opportunity to withdraw and pursue claims individually”). If Citibank is ultimately found liable of redlining, the Court will address the issue of notice under Rule 23(b)(2). Finally, the definition of the class in this ease is simplified by certifying the class for injunctive relief only. As the court in Rice stated: Defining a class as consisting of all persons who have been or will be affected by the conduct charged to the defendants is entirely appropriate where only injunctive or declaratory relief is sought. 66 F.R.D. at 20. The class members in this case can be defined by reference to Citibank’s alleged conduct, namely, African-Americans who were denied home mortgage loans by Citibank on the basis of improper racial considerations. CONCLUSION The Plaintiffs’ Motion for Class Certification is granted under Rule 23(b)(2) for purposes of injunctive relief only. The following class of persons is certified: All African-Americans who filed applications for home loans to Citibank on or after July 6, 1992, and whose applications were rejected because they were African-American and/or the racial composition of the neighborhoods in which their properties were located was predominantly African-American. The Court expressly notes that under Rule 23(c)(1), the Court’s order certifying this class is conditional and may be amended before any decision on the merits. In addition, Rule 23(c)(4) empowers the Court to divide the class into subclasses. Should it appear in the course of litigation that the individual issues in this case prevent efficient or just resolution, this Court shall not hesitate to exercise the authority it retains to create appropriate sub-classes represented by separate counsel or to take whatever other measures are necessary to ensure fairness of representation. Plaintiffs are directed to file a Second Amended Complaint within fourteen (14) days from the" }, { "docid": "7085433", "title": "", "text": "for the fair and efficient adjudication of the controversy.” Rule 23(b)(2) requires a showing that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Plaintiff seeks, pursuant to Rule 23(b)(2) or (3), formation of the Medical Monitoring Class of all United States residents that used Stadol NS in order to establish a court-supervised fund to: (1) notify individuals who use Stadol NS of the addictive nature of the drug; (2) identify Stadol NS users who are addicted to the drug; (3) fund studies on the long-term effects of Stadol NS on its users; (4) fund research, into possible cures for the detrimental effect of Stadol NS (including treatment for Stadol NS addiction); (5) gather and forward to treating physicians information related to the diagnosis and treatment of drug addiction and other injuries from Stadol NS; and (6) treatment of Stadol NS addicts. Pursuant to Rule 23(b)(3), plaintiff seeks formation of the Consumer Fraud Subclass for persons addicted to Sta-dol NS so they may recover damages under the Illinois and New Jersey statutes. Defendant argues that, whether treated as a 23(b)(2) or (3) class, plaintiffs motion for certification should be denied because the primary relief sought is legal, not equitable. Defendant also contends that neither the predominance nor superiority requirements of Rule 23(b)(3) are met. Defendant asserts that a number of individual issues predominate over any common issues and variations in state law will require a large number of individualized hearings, making manageability of the proposed Medical Monitoring Class difficult and an inferior method of resolving the claims. 1. Rule 23(b)(2) Two basic requirements must be satisfied under Rule 23(b)(2): first, the party opposing the class must have acted in a consistent manner towards members of the class so that its actions may be viewed as a pattern of activity; and, second, final injunctive or corresponding relief must be appropriate. See Buycks-Roberson v. Citibank Fed. Savings Bank, 162 F.R.D. 322, 334 (N.D.Ill.1995); Edmondson v." }, { "docid": "12567899", "title": "", "text": "class for purposes of determining Citibank’s liability (if any) and fashioning injunctive relief which is based on the common interests of the class members. The Court then will require individual claims for damages to proceed separately under Rule 23(d)(2), which allows individual class members to opt-out of the monetary damages phase. See generally Williams v. Burlington Northern, Inc., 832 F.2d 100, 103 n. 2 (7th Cir.1987) (bifurcating ease may be best solution where plaintiff class is not sufficiently homogenous to ensure fairness in consideration of the damage claims of absent members); Williams v. Lane, 129 F.R.D. 636, 640-41 (N.D.Ill.1990) (“many courts have required that the case be bifurcated to allow the injunctive relief to be adjudicated under Rule 23(b)(2) and allow the damage elaims to proceed separately ... or as individual claims”). The Court recognizes that the question of each class member’s individual financial qualifications will be critical. Eliminating ancillary monetary damages from the liability phase merely simplifies the question; it does not provide a definitive resolution. On a motion for class certification we can assume that the allegations related to the class representatives’ financial allegations are true. On summary judgment, that assumption evaporates, and the class representatives must produce enough evidence to support a judgment in their favor. For instance, to survive summary judgment on allegations that Citibank was redlining, Plaintiffs will need to produce evidence challenging Citibank’s assertion that the loans were denied to African-American applicants who lived in predominantly African-American communities due to inadequate financial qualifications. Without such evidence neither the Court nor a jury could infer — on the basis of statistics alone — that Citibank engaged in discriminatory redlining. Therefore, financial qualifications, at least for the class representatives, are a prerequisite for injunctive relief. Although Citibank maintains that the individual qualifications of each potential class member should defeat certification, the Court has solved this problem by adopting the “class-wide presumption capable of rebuttal as to individual claimants used in securities fraud cases,” see generally Jaroslawicz v. Engelhard Corporation, 724 F.Supp. 294, 301 (D.N.J.1989), antitrust actions, In re Sugar Industry Antitrust Litig., 73 F.R.D. 322, 347" }, { "docid": "12567865", "title": "", "text": "MEMORANDUM OPINION AND ORDER CASTILLO, District Judge. Plaintiffs Selma S. Buycks-Roberson, Calvin R. Roberson and Rene Brooks (“Plaintiffs”) are African-American and sue defendant Citibank Federal Savings Bank (“Citibank”) seeking redress for alleged racial discrimination and discriminatory redlining practices in connection with Citibank’s home loan application approval process. Count I of the complaint alleges that Citibank intentionally discriminated against the Plaintiffs on the basis of race with respect to a credit transaction in violation of the Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq. Count II alleges that Citibank, whose business includes engaging in transactions related to residential real estate, discriminated against the Plaintiffs on the basis of race or color in violation of the Fair Housing Act, 42 U.S.C. § 3601, et seq. Count III alleges that Citibank’s discriminatory acts violate the Thirteenth Amendment and invokes 42 U.S.C. § 1981, which secures the right of plaintiffs to make and enforce contracts on the same basis as Caucasian citizens, and 42 U.S.C. § 1982, which secures the right of plaintiffs to inherit, purchase, lease, sell, hold and convey real and personal property on the same basis as white citizens. Plaintiffs seek injunctive relief, actual damages and punitive damages with respect to all three counts. Pursuant to Federal Rule of Civil Procedure 23, Plaintiffs move for class certification on all counts. Specifically, Plaintiffs propose that the class be defined as all African- Americans who filed home loan applications with Citibank on or after July 6, 1992, and whose applications were rejected on the basis of race, color or the racial composition of the neighborhood in which their properties were located. See Amended Compl. ¶ 8(b). BACKGROUND Selma S. Buycks-Roberson On approximately April 4, 1992, Selma Buycks-Roberson applied for a home loan of approximately $48,700 from Citibank. Compl. ¶ 9. Ms. Buycks-Roberson wished to use the loan to refinance an existing mortgage of approximately $43,500 on her home, located at 2057 South 25th Avenue in Broad-view, Illinois. Compl. ¶ 10. The property that Ms. Buycks-Roberson attempted to refinance is located in a neighborhood in which the African-American representation is growing and" }, { "docid": "12567880", "title": "", "text": "finds that this allegation of “subjective decisionmaking” is sufficient to satisfy the commonality requirement of Rule 23(a)(2) and the dictates of General Tel. Co. v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). We begin by addressing Citibank’s arguments against certification. Citibank’s primary contention is that individual issues regarding the class members’ financial qualifications for the home loans will defeat certification. The question of individual issues does not defeat commonality, as demonstrated below; moreover, these issues are more properly the focus of the Court’s Rule 23(b)(2) analysis and thus will not be discussed in depth here. Citibank’s alternative argument is that Plaintiffs have failed to identify a particular policy or practice “generally applicable” to the class which will unify the individual and class claims under a common theory. Having failed to identify such a practice, Citibank claims that Plaintiffs’ only common nexus is their race; and race alone is not sufficient to establish commonality. See Falcon, 457 U.S. at 159, 162, 102 S.Ct. at 2371, 2373. See also Hartman v. Duffey, 19 F.3d 1459 (D.C.Cir. 1994) (“[a]s Falcon made clear, there is more to a showing of commonality than a demonstration that class plaintiffs suffered discrimination on the basis of membership in a particular group.”). To support their “policy and practice” argument, Citibank has cited several cases where class certification was denied based on a plaintiffs failure to identify a “standardized” practice generally applicable to the class. See Washington v. Brown, 959 F.2d 1566, 1570 (11th Cir.1992) (class certification denied where African-American plaintiffs failed to identify a specific employment practice); Coon v. Georgia Pac. Corp., 829 F.2d 1563, 1566-67 (11th Cir.1987) (class certification denied where female plaintiffs failed to identify a common injury); Allen v. City of Chicago, 828 F.Supp. 543, 552-553 (N.D.Ill.1993) (class certification denied where African-American and Hispanic plaintiffs failed to allege a discriminatory “standardized employment practice” generally applicable to the class). The common theme in these cases is that a plaintiff seeking class certification must allege a “nexus” or a “unifying force” other than race between the class representatives and the proposed members of" }, { "docid": "12567870", "title": "", "text": "where the racial composition of the neighborhood was predominantly African-American than it was in areas where the composition of the neighborhood was predominantly White. In 1992, for example, Citibank denied refinancing loans to only 19% of upper-income applicants living in areas with less than 10% minority populations. In that same year and income bracket, Citibank denied refinancing loans to 42% of the applicants in areas with an 80-100% minority population. Pls.Reply, Ex. F. Plaintiffs allege that this data “strongly suggests) that African-American home loan applicants and applicants from largely African-American neighborhoods are discriminated against by Citibank in significantly large numbers even though some African-Americans receive loans.” Pis. Reply at 9. Plaintiffs also claim that these statistics demonstrate that Citibank had a policy of rejecting home loan applications on the basis of the applicants’ race, color or the racial composition of the neighborhood in which their properties were located. Plaintiffs also assert that the 1992 and 1993 Loan Application Registers for Citibank in Illinois show that over 780 African-Americans were denied home loans in the State of Illinois alone between 1992 and 1993, and that this fact supports Plaintiffs’ claim that Citibank has exhibited a pattern of discrimination based on race. ANALYSIS The party seeking class certification bears the burden of establishing that certification is appropriate. Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir.1993); Trotter v. Klincar, 748 F.2d 1177, 1184 (7th Cir.1984). After careful review, the Court concludes that Plaintiffs have carried their burden. Rule 23 requires a two-step analysis to determine whether class certification is appropriate. First, a plaintiff must satisfy all four requirements of Rule 23(a). That is, “the plaintiff must meet the prerequisites of numerosity, commonality, typicality and adequacy of representation.” Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir.1993) (internal quotation marks omitted). “All of these elements are prerequisites to certification; failure to meet any one of them precludes certification as a class.” Retired Chicago Police Ass’n, 7 F.3d at 596; Harri-ston, 992 F.2d at 703. Second, the action must satisfy one of the three subsections of Rule" }, { "docid": "11623375", "title": "", "text": "certify a class under Rule 23(b)(2), which applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). The district court did not analyze the specific requirements of Rule 23(a) or Rule 23(b)(2). Instead, it denied Shelton’s motion for class certification because it found that the proposed class was not “objectively, reasonably ascertainable.” Shelton v. Bledsoe, No. 3:CV-11-1618, 2012 WL 5250401, at *4 (M.D.Pa. Oct. 24, 2012). Because we have not yet addressed the issue, this appeal requires us to decide whether ascertainability is a requirement for certification of a Rule 23(b)(2) class that seeks only injunctive and declaratory relief. We must also address the question of whether the district court properly defined the class in analyzing whether class certification was appropriate. A. Ascertainability The word “ascertainable” does not appear in the text of Rule 23. However, “[although not specifically mentioned in the rule, an essential prerequisite of an action under Rule 23 is that there must be a ‘class.’ ” 7A C. Wright, A. Miller, & M. Kane, Fed. Prac. & Proc. Civ. § 1760 (3d ed.2005). Courts have generally articulated this “essential prerequisite” as the implied requirement of “ascertainability”— that the members of a class are identifiable at the moment of certification. Be cause the question is intensely fact-specific and the origins of the requirement murky, a precise definition of the judicially-created requirement of ascertainability is elusive. See Alliance to End Repression v. Rochford, 565 F.2d 975, 980 n. 6 (7th Cir.1977) (noting that “[i]t is not clear whether the source of th[e] implied requirement [of ascertainability] is ... Rule 23(a)(2) or more simply something inherent in the very notion of a ‘class’ ”). We recently held, in the context of a Rule 23(b)(3) class action, that certification is only appropriate if the members of the class are “currently and readily ascertainable based on objective criteria.” Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 593 (3d Cir.2012)." }, { "docid": "12567872", "title": "", "text": "23(b). Alliance to End Repression v. Rockford, 565 F.2d 975, 977 (7th Cir.1977). Plaintiffs in this ease seek certification under either Rule 23(b)(2) or Rule 23(b)(3). Where a class can be certified under either Rule 23(b)(2) or 23(b)(3), courts have generally held certification under Rule 23(b)(2) to be preferable. See H. Newberg, Class Actions § 4.20 (1992) and cases cited therein. Because the Court finds that this action falls squarely within the reach of Rule 23(b)(2), which provides for certification if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole,” Fed. R.Crv.P. 23(b)(2), this Opinion addresses only the requirements for certification under Rule 23(b)(2). Plaintiffs maintain that all of the requirements of Rule 23(a) and (b)(2) are met. Citibank does not dispute the appropriateness of Rule 23(b)(2) to the facts of the instant case, but contends that the plaintiffs fail to satisfy any of Rule 23(a)’s prerequisites. A. Rule 23(a) As a threshold matter, Citibank contends that Plaintiffs have failed to identify a class with sufficient “definiteness.” Definiteness of the proposed class is an implicit requirement of Rule 23(a). See Alliance to End Repression, 565 F.2d at 977; Gomez v. Illinois State Bd. of Educ., 117 F.R.D. 394, 397 (N.D.Ill.1987). With respect to this requirement, the Seventh Circuit has stated that the scope of a class may be defined by reference to the defendants’ conduct. Alliance to End Repression, 565 F.2d at 978. Citibank argues that Plaintiffs have offered “no definition of a class beyond all blacks who applied but did not obtain loans from Citibank,” and “rejection alone does not indicate discrimination,” because “[tjhousands of white applicants also have been rejected.” Def.’s Opp.Mem. at 1. In the instant case, the Court disagrees with Citibank that the plaintiffs’ proposed class is insufficiently definite. The class has been defined to include only African-Americans whose applications for home mortgage loans were rejected by Citibank on or after July 6,1992, or who lived in predominantly minority" }, { "docid": "12567893", "title": "", "text": "much longer (2% years), but this case has, as indicated, met all relevant statutes of limitation and therefore satisfied any legitimate time requirements. See Mem.Op. at note 3. Giving due consideration to the requirements for certification under Rule 23(a)(4), the Court finds that both Plaintiffs and their counsel are adequate representatives in this case. B. Rule 23(b)(2) Rule 23(b)(2) provides in relevant part: (b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole[.] Fed.R.Cw.P. 23(b)(2). In Edmondson v. Simon, 86 F.R.D. 375 (N.D.Ill.1980), the district court found the “general applicability” requirement of Rule 23(b)(2) to mean that “the party opposing the class must have acted in a consistent manner toward members of the class so that [its] actions may be viewed as part of a pattern of activity.” Id. at 382-83. However, “[a]ll the class members need not be aggrieved by or desire to challenge the defendants’ conduct.” Id. In the instant case, the general applicability requirement is satisfied by Plaintiffs’ allegation that Citibank engaged in a subjective application of neutral underwriting criteria for the purpose of racial discrimination. As a general matter, Rule 23(b)(2) is invoked in cases where injunctive or declaratory relief is the primary or exclusive relief sought. Where a plaintiff seeks both injunctive and monetary relief, however, courts have adopted various approaches to maintaining the economy of a class action while assuring comportment with due process in the allocation of individual damages. Some cases have allowed damages to be adjudicated in a Rule 23(b)(2) action where the monetary damages are merely ancillary to the injunction relief sought. See, e.g., Edmondson, 86 F.R.D. at 383; Williams v. Lane, 129 F.R.D. 636, 639 (N.D.Ill.1990); Lawson v. Metropolitan Sanitary Dist. of Greater Chicago, 102 F.R.D. 783, 793 (N.D.Ill.1983). One court notes, however, that: the cases in which this" }, { "docid": "12567871", "title": "", "text": "of Illinois alone between 1992 and 1993, and that this fact supports Plaintiffs’ claim that Citibank has exhibited a pattern of discrimination based on race. ANALYSIS The party seeking class certification bears the burden of establishing that certification is appropriate. Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir.1993); Trotter v. Klincar, 748 F.2d 1177, 1184 (7th Cir.1984). After careful review, the Court concludes that Plaintiffs have carried their burden. Rule 23 requires a two-step analysis to determine whether class certification is appropriate. First, a plaintiff must satisfy all four requirements of Rule 23(a). That is, “the plaintiff must meet the prerequisites of numerosity, commonality, typicality and adequacy of representation.” Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir.1993) (internal quotation marks omitted). “All of these elements are prerequisites to certification; failure to meet any one of them precludes certification as a class.” Retired Chicago Police Ass’n, 7 F.3d at 596; Harri-ston, 992 F.2d at 703. Second, the action must satisfy one of the three subsections of Rule 23(b). Alliance to End Repression v. Rockford, 565 F.2d 975, 977 (7th Cir.1977). Plaintiffs in this ease seek certification under either Rule 23(b)(2) or Rule 23(b)(3). Where a class can be certified under either Rule 23(b)(2) or 23(b)(3), courts have generally held certification under Rule 23(b)(2) to be preferable. See H. Newberg, Class Actions § 4.20 (1992) and cases cited therein. Because the Court finds that this action falls squarely within the reach of Rule 23(b)(2), which provides for certification if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole,” Fed. R.Crv.P. 23(b)(2), this Opinion addresses only the requirements for certification under Rule 23(b)(2). Plaintiffs maintain that all of the requirements of Rule 23(a) and (b)(2) are met. Citibank does not dispute the appropriateness of Rule 23(b)(2) to the facts of the instant case, but contends that the plaintiffs fail to satisfy any of Rule 23(a)’s prerequisites. A." }, { "docid": "12567892", "title": "", "text": "applicable underwriting procedures. Citibank argues that these are “unique defenses” which will distract the class representatives from vigorously advocating on behalf of the class. See Hardin, 814 F.Supp. at 708; Koos v. First Nat’l Bank of Peoria, 496 F.2d 1162, 1164-65 (7th Cir. 1974). Citibank also claims that Plaintiff Buycks-Roberson has credibility problems that could harm the class members’ case on cross-examination. Citibank Resp. at 11. Finally, Citibank asserts that Plaintiff Buycks-Roberson’s delay in pursuing class relief (1/6 years) makes her an inadequate representative. See Harriston v. Chicago Tribune Co., 992 F.2d 697, 704 (7th Cir.1993). Citibank’s contentions are meritless. First, Citibank’s “unique defenses” argument is not persuasive, because any “distraction” attending individual issues has been minimized, at least for purposes of certification, by the Court’s ruling on the Rule 23(b)(2) issues discussed below. Second, any credibility problems related to Buycks-Roberson are subsumed by the adequacy of the remaining two named representatives, Brooks and Roberson. Third, the asserted delay has no weight for purposes of the adequacy requirement. Not only was the' delay in Harri-ston much longer (2% years), but this case has, as indicated, met all relevant statutes of limitation and therefore satisfied any legitimate time requirements. See Mem.Op. at note 3. Giving due consideration to the requirements for certification under Rule 23(a)(4), the Court finds that both Plaintiffs and their counsel are adequate representatives in this case. B. Rule 23(b)(2) Rule 23(b)(2) provides in relevant part: (b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole[.] Fed.R.Cw.P. 23(b)(2). In Edmondson v. Simon, 86 F.R.D. 375 (N.D.Ill.1980), the district court found the “general applicability” requirement of Rule 23(b)(2) to mean that “the party opposing the class must have acted in a consistent manner toward members of the class so that [its] actions may be viewed as part of" }, { "docid": "12567874", "title": "", "text": "neighborhoods at the time their applications were denied. As defined, the class definition properly focuses on defendant’s conduct with respect to the denial rate of African-American home loan applicants, in general, and African-Americans living in African-American neighborhoods, in particular. The definiteness threshold requirement is therefore met. See Alliance to End Repression, 565 F.2d at 977; Gomez, 117 F.R.D. at 397. Courts retain broad power to modify the definition of a proposed class. See, e.g., Metropolitan Area Hous. Alliance v. United States Dep’t of Hous. & Urban Dev., 69 F.R.D. 633 (N.D.Ill.1976) (citing Metcalf v. Edelman, 64 F.R.D. 407, 409 (N.D.Ill.1974)) (“[a] court may modify the proposed definition of a class if it believes the definition is inadequate”); see also C.A. Wright, et al., Federal Practice & Procedure § 1760 at 127-28 (2d ed. 1986). This Court retains the power to modify the class definition at anytime before a final judgment on the merits, if the evidence or the legal principles governing this case establishes that the class definition is too broad. Fed.R.Civ.P. 23(c)(1). We now address the explicit requirements of Rule 23(a). 1. Numerosity Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). In making this determination, “the court is entitled to make common sense assumptions.” Patrykus v. Gomilla, 121 F.R.D. 357, 360 (N.D.Ill.1988). See also In re VMS Sec. Litig., 136 F.R.D. 466, 473 (N.D.Ill.1991). Additionally, although “the one who asserts the class must show some evidence or reasonable estimate of the number of class members[,] if a plaintiff cannot provide precise numbers, “a good faith estimate is sufficient [to satisfy the numerosity requirement] where it is difficult to assess the exact class membership.” Long v. Thornton Township High Sch. Dist. 205, 82 F.R.D. 186, 189 (N.D.Ill.1979). Plaintiffs allege that Citibank denied home loans to over 780 African-Americans between 1992 and 1993. The HMDA data also suggest that a substantial percentage of these African-American applicants sought home loans for properties located in predominantly African-American neighborhoods. Plaintiffs have cited cases in which classes were certified with fewer than 780 members. See" }, { "docid": "12567903", "title": "", "text": "general overview on the theory of disparate impact and the types of evidence used to prove discrimination under this theory). The Court’s comments regarding the monetary damages phase are brief, given that this class is certified only for injunctive relief and there has not yet been a determination of liability. Several district courts have discussed the due process concerns related to the need to provide notice to absent class members in classes certified under Rule 23(b)(2) that contain claims for both injunctive relief and monetary damages. See Allen n. Isaac, 100 F.R.D. 373, 375-77 (N.D.Ill. 1983) (Hart, J.); Williams v. Lane, 129 F.R.D. 636, 640-41 (N.D.Ill.1990) (Shadur, J.). To avoid claim preclusion and ensure due process, courts are advised to give notice regarding a class member’s right to opt-out of the damages phase and to raise any objections to the class representation. See Rice, 66 F.R.D. at 20. Although the issue of notice is not clear cut in Rule 23(b)(2) cases, the issue is not yet relevant in this case because the Court is certifying the class for injunctive relief only. Williams, 129 F.R.D. at 639 (where case is certified for injunctive relief “[mjembers of such a class generally share a common interest in the direction and outcome of the case ... and a court does not violate the rights of individual class members by failing to provide individual notice ... or an opportunity to withdraw and pursue claims individually”). If Citibank is ultimately found liable of redlining, the Court will address the issue of notice under Rule 23(b)(2). Finally, the definition of the class in this ease is simplified by certifying the class for injunctive relief only. As the court in Rice stated: Defining a class as consisting of all persons who have been or will be affected by the conduct charged to the defendants is entirely appropriate where only injunctive or declaratory relief is sought. 66 F.R.D. at 20. The class members in this case can be defined by reference to Citibank’s alleged conduct, namely, African-Americans who were denied home mortgage loans by Citibank on the basis of" }, { "docid": "12567873", "title": "", "text": "Rule 23(a) As a threshold matter, Citibank contends that Plaintiffs have failed to identify a class with sufficient “definiteness.” Definiteness of the proposed class is an implicit requirement of Rule 23(a). See Alliance to End Repression, 565 F.2d at 977; Gomez v. Illinois State Bd. of Educ., 117 F.R.D. 394, 397 (N.D.Ill.1987). With respect to this requirement, the Seventh Circuit has stated that the scope of a class may be defined by reference to the defendants’ conduct. Alliance to End Repression, 565 F.2d at 978. Citibank argues that Plaintiffs have offered “no definition of a class beyond all blacks who applied but did not obtain loans from Citibank,” and “rejection alone does not indicate discrimination,” because “[tjhousands of white applicants also have been rejected.” Def.’s Opp.Mem. at 1. In the instant case, the Court disagrees with Citibank that the plaintiffs’ proposed class is insufficiently definite. The class has been defined to include only African-Americans whose applications for home mortgage loans were rejected by Citibank on or after July 6,1992, or who lived in predominantly minority neighborhoods at the time their applications were denied. As defined, the class definition properly focuses on defendant’s conduct with respect to the denial rate of African-American home loan applicants, in general, and African-Americans living in African-American neighborhoods, in particular. The definiteness threshold requirement is therefore met. See Alliance to End Repression, 565 F.2d at 977; Gomez, 117 F.R.D. at 397. Courts retain broad power to modify the definition of a proposed class. See, e.g., Metropolitan Area Hous. Alliance v. United States Dep’t of Hous. & Urban Dev., 69 F.R.D. 633 (N.D.Ill.1976) (citing Metcalf v. Edelman, 64 F.R.D. 407, 409 (N.D.Ill.1974)) (“[a] court may modify the proposed definition of a class if it believes the definition is inadequate”); see also C.A. Wright, et al., Federal Practice & Procedure § 1760 at 127-28 (2d ed. 1986). This Court retains the power to modify the class definition at anytime before a final judgment on the merits, if the evidence or the legal principles governing this case establishes that the class definition is too broad. Fed.R.Civ.P. 23(c)(1). We now" }, { "docid": "17632948", "title": "", "text": "smoking cessation programs, a relief that would be of absolutely no value to a former smoker. Secondly, the named plaintiffs do not seek to recover for personal injury. A judgment against the proposed class in this case would likely preclude recovery by other potential plaintiffs, who fit within the class definition, for personal injury. See, e.g., Small v. Lorillard Tobacco Co., 252 A.D.2d 1, 679 N.Y.S.2d 593, 601 (N.Y.1998). The election of a remedy that does not benefit the entire class (i.e. cessation programs for non-smokers) and that is not the remedy that would be chosen by the entire class (i.e. failure to account for a more lucrative personal injury claim) creates a conflict of interest. This conflict renders the plaintiffs’ representation of the class as a whole inadequate. Gilpin v. American Fed’n of State, Cty., and Mun. Employees, 875 F.2d 1310, 1313 (7th Cir.1989). VI. Rule 23(b)(2) Requirements In addition to failing the mandates of Rule 23(a), this case clearly falls outside the purview of Rule 23(b)(2). The plaintiffs seek class certification under Rule 23(b)(2) only; they do not seek certification alternatively under Rule 23(b)(1) or (b)(3). The Court may certify a claim under Rule 23(b)(2) if the requirements of Rule 23(a) are satisfied and: the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. Fed.R.Civ.P. 23(b)(2). The Court must find that the opposing parties’ conduct or refusal to act was generally applicable to the class and that final injunctive or declaratory relief with respect to the entire class would be the appropriate remedy. Retired Chicago Police Assn., 7 F.3d at 596. “As a general matter, Rule 23(b)(2) is invoked in cases where injunctive or declaratory relief is the primary or exclusive relief sought.” Buycks-Roberson v. Citibank Fed. Sav. Bank, 162 F.R.D. 322, 335 (N.D.Ill.1995). Therefore, “the primary limitation on the use of Rule 23(b)(2) is the requirement that injunctive or declaratory relief be the predominant remedy requested for the class members.” Doe" }, { "docid": "12567889", "title": "", "text": "Citibank allegedly applied its lending criteria in a discriminatory fashion to one applicant would not establish that any other rejected applicant was qualified to receive a loan under Citibank’s lending criteria or that Citibank discriminated in applying its lending criteria to that applicant. See Def.’s Opp. at 9. In particular, Citibank argues that neither injunctive nor compensatory relief can be fashioned for an entire class “absent a challenge to a particular Citibank underwriting criteria.” Id. According to Citibank, without such a challenge, the Plaintiffs’ cannot prove discrimination, because the “plaintiffs must demonstrate that their claims are based upon the same core of factual allegations such that proof of one plaintiffs claims would establish the bulk of the elements of each class member’s claims.” See Citibank’s Suppl.Mem. at 3-4 (citing Allen, 828 F.Supp. at 553). Once again, Citibank misses the point. It is the allegedly discriminatory subjective application of Citibank’s neutral underwriting criteria as a whole that may have adversely impacted the class. Plainly, the named plaintiffs’ claims arise out of the same alleged course of conduct giving rise to the claims of the other class members. Although Citibank may ultimately prove that they did not engage in a pattern of race discrimination by rejecting African-Americans’ applications for home loans, the determination of whether the named plaintiffs are typical class members for purposes of class certification does not depend upon resolving the merits of this case. The typicality requirement is satisfied because the named representatives’ claims have the “same essential characteristics” as the potential class, ie., they were African-Americans who were allegedly denied home loan based upon their race or the racial composition of their neighborhoods. 4. Adequacy of Representation Rule 23(a)(4)’s adequacy of representation requirement has two elements: “ ‘the adequacy of the named plaintiffs counsel, and the adequacy of representation pro vided in protecting the different, separate, and distinct interest[s]’ of the class members.” Retired Chicago Police Ass’n, 7 F.3d at 598 (quoting Secretary of Labor v. Fitzsimmons, 805 F.2d 682, 697 (7th Cir.1986) (en banc)). Thus, “[a] class is not fairly and adequately represented if class members have" } ]

[ { "docid": "3201857", "title": "", "text": "to surrender his driver’s license. Thereafter, on February 18, 1970, plaintiffs Alex and Michael Salkay, without complying with the suspension orders, filed the instant suit against the Florida Insurance Commissioner in federal district court on behalf of themselves “and all others similarly situated.” Alleging a cause of action under 42 U.S.C.A. § 1983, plaintiffs contended that the Florida statutory and administrative scheme violated their rights to due process and equal protection under the Fourteenth Amendment. On May 6, 1970, the district court entered a final order granting defendant’s motion to dismiss on the ground that plaintiffs had failed to exhaust the applicable administrative remedies, including, it must be assumed, the administrative hearing procedure detailed above. Plaintiffs now appeal from this order of dismissal, Subsequent to this ruling by the district court and following oral argument and submission to this court, the Supreme Court of the United States handed down its decision in Bell v. Burson, 1971, 402 U.S. 535, 91 S.Ct. 1586, 29 L. Ed.2d 90, wherein it held that an almost identical statutory and administrative scheme in Georgia violated the due process clause of the Fourteenth Amendment. Speaking for a unanimous Court, Mr. Justice Brennan characterized the Court’s holding as follows: “We hold, then, that under Georgia’s present statutory scheme, [Motor Vehicle and Safety Responsibility Act, Ga.Code Ann. §§ 92A-601 et seq.] before the State may deprive petitioner of his driver’s license and vehicle registration it must provide a forum for the determination of the question whether there is a reasonable possibility of a judgment being rendered against him as a result of the accident * * * we hold only that the failure of the present Georgia scheme to afford the petitioner a prior hearing on liability of the nature we have defined denied him procedural due process in violation of the Fourteenth Amendment.” 402 U.S. at 542, 91 S.Ct. at 1591. The legal framework against which the present case was decided has been dramatically altered by this decision of the Supreme Court. Thus, the district court’s ruling that plaintiffs must exhaust their administrative remedies may no longer" } ]

[ { "docid": "20795460", "title": "", "text": "Florida. The Fourteenth Amendment provides that no state shall deprive any person of liberty without due process of law. The fundamental requisite of due process of law is the opportunity to be heard. Grannis v. Ordean, 234 U.S. 385, 34 S.Ct. 779, 58 L.Ed. 1363 (1914). “It is an opportunity which must be granted at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). It has been held that a hearing must be given before a drivers license and vehicle registration can be suspended, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Salkay v. Williams, 445 F.2d 599 (5 Cir. 1971); before prohibiting the sale of liquor to an individual for one year, Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515; before termination of welfare payments (even though a subsequent hearing was afforded), Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); before garnishment of wages (even though there was a subsequent trial), Snidach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1920, 23 L.Ed.2d 349 (1969); before a thirty day suspension from a public school, Williams v. Dade County School Board, 441 F.2d 299 (5 Cir. 1971); before refusal of admission to public hospital staff, Sosa v. Board of Managers, 437 F.2d 173 (5 Cir. 1971); and before termination of employment on college faculty, Ferguson v. Thomas, 430 F.2d 852 (5 Cir. 1970). It would appear beyond question that due process demands a preliminary hearing within a reasonable time after an accused has been deprived of his freedom. In Goldberg v. Kelly, the Court summarized the test for providing procedural due process as follows: The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be “condemned to suffer grievous loss.” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 647, 95 L.Ed. 817 (1951) (Frankfurter J., concurring), and depends upon whether the recipient’s interest in avoiding" }, { "docid": "23273463", "title": "", "text": "providing the recipient with a hearing. The New York procedure challenged in that case included a pre-termination notice stating the reasons for termination, and the adequacy of the notice was therefore not in issue. Nevertheless, the Court addressed itself to that subject, among others, in the following passage: “ ‘The fundamental requisite of due process of law is the opportunity to be heard.’ Grannis v. Ordean, 234 U.S. 385, 394, [34 S.Ct. 779, 782, 58 L.Ed. 1363] (1914). The hearing must be ‘at a meaningful time and in a meaningful manner.’ Armstrong v. Manxo, 380 U.S. 545, 552, [85 S.Ct. 1187, 1191, 14 L.Ed.2d 62] (1965). In the present context these principles require that a recipient have timely and adequate notice detailing the reasons for a proposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally.” 397 U.S. at 267-268, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287. Although the statement that the notice must be an “adequate notice detailing the reasons” may be considered dictum, we are hardly at liberty to ignore it. There is, moreover, other authority to the same effect. This court, in Brooks v. Center Township, 485 F.2d 383, 385 (7th Cir. 1973), held the Indiana “poor relief” statute invalid, stating: “We hold that the statute is constitutionally infirm facially for want of due process in failing to provide, inter alia, a pre-termination hearing, an effective opportunity for Brooks to defend, and want of due notice of reasons for termination. Goldberg v. Kelly, 397 U.S. 254, 264-268, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).” Similarly, the Second Circuit found a denial of due process in a state agency’s procedures for terminating the leases of public-housing tenants for “non-desirable conduct” in Escalera v. New York City Housing Authority, 425 F.2d 853, 862-863 (2d Cir. 1970), because, inter alia, the notices did not advise the tenants of the reasons for the termination. Three-judge courts have held that failure of state authorities to inform a public assistance recipient of the reason for reducing or terminating his benefits before" }, { "docid": "11627433", "title": "", "text": "Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62, [66].” Furthermore, the risk of loss of employment because of the issuance of a writ of garnishment is not illusory. The administrative burden upon the employer caused by the imposition of writs of garnishment for wages of his employees can be onerous. This problem becomes magnified because of the percentage limitations on disposable earnings that may be imposed under the Consumer Credit Protection Act. 15 U.S.C. § 1673. -See Florida Wage Garnishment: An Anachronistic Remedy, 23 U.Fla.L.Rev. 681, 686 (Summer 1971). Therefore, a garnishee-employer may well have a vested interest in discharging the debtor-employee because of a garnishment. Therefore, aside from any temporary deprivation of earnings occasioned by a garnishment of wages, the wage earner is subject to a substantial risk of being discharged from his employment due to the existence of a garnishment for more than one indebtedness. In addition, to reiterate, there is a substantial risk of error attendant to the issuance of a writ of garnishment because the Florida law does not require the creditor who is applying for the writ of garnishment to assert under oath that the judgment debtor is entitled to a statutory exemption. On this basis, this Court must conclude that procedural due process requires that a judgment debtor whose wages are to be garnished must be afforded prior notice and an opportunity to be heard in order to assert any exemptions to which he may be entitled under Florida law prior to the execution of a writ of garnishment upon the debt- or’s employer. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). This is" }, { "docid": "500035", "title": "", "text": "of the Fourteenth Amendment. Burton, supra, 365 U.S. at 725, 81 S.Ct. at 862. Having decided that the Due Process Clause applies to Defendant’s actions in terminating service to Plaintiff and the class she represents, we must turn to the questions of whether due process is afforded by Defendant’s existing procedures and, if not, what remedy is available. “The fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). The hearing must be “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). The requirements of due process, of course, must be adapted to the circumstances at hand. Requirements of due process in the instant case can perhaps best be distilled from the standards enunciated in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). “We cannot write a code of procedure. Our task is limited to deciding the minimum requirements of due process.” Morrissey, supra 408 U.S. at 488-489, 92 S.Ct. at 2604. In the present case we perceive them to be: 1) written notice of the grounds for termination; 2) opportunity to be heard in person and to present witnesses and documentary evidence prior to termination of service; 3) the right to be represented by retained counsel, though counsel need not be furnished; 4) the right to confront and cross-examine adverse witnesses; 5) a “neutral and detached” hearing officer, who need not be a judicial officer or lawyer, but who must not have participated in making the determination under review; 6) the decision-maker should state the reasons for his determination and indicate the evidence upon which he relied, though he need not make full written findings of fact or conclusions of law. The hearing need not involve formal legal rules of evidence, but the procedure should be sufficiently flexible to admit all material of probative value. We are" }, { "docid": "8755110", "title": "", "text": "Amendment draws no bright lines around three-day, 10-day or 50-day deprivations of property. Any significant taking of property ... is within the purview of the Due Process Clause.” Fuentes v. Shevin; supra, 407 U.S. at 84-86, 92 S.Ct. at 1996. When such substantial private interests are affected by government action, procedural due process demands that notice and an opportunity for a hearing “appropriate to the nature of the case” be granted to the individual against whom the state acts. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). See Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 58 L.Ed. 1363 (1914). The notice and opportunity to be heard must be granted at a meaningful time and in a meaningful manner. Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). Furthermore, the opportunity for a hearing must be given before the deprivation takes effect, unless exceptional circumstances justify postponement of the hearing until after the event. See, e. g., Fuentes v. Shevin, supra, 407 U.S. at 81-82, 92 S.Ct. 1983; Boddie v. Connecticut, 401 U.S. 371, 378-379, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Goldberg v. Kelly, supra, 397 U.S. at 263-264, 90 S.Ct. 1011; Sniadach v. Family Finance Corp., supra, 395 U.S. at 342, 343, 89 S.Ct. 1820 (Harlan, J., concurring). Thus, once it has been determined that a significant private interest is af fected by government action, the next question is whether fundamental fairness and practicality require that notice and an opportunity for a hearing, prior to towing, be granted to car owners in the situation before the court. Pursuant to statute, the challenged ordinance creates a presumption of abandonment when a motor vehicle is in “such a state of disrepair as -to be incapable of being driven in its present condition, or has not been moved or used for more than seven consecutive days and is apparently deserted.” MCC § 27-372. Although, as the facts of this case indicate, it is the practice of the Chicago Police Department to post" }, { "docid": "3301239", "title": "", "text": "location and deprived of participation in any institutional activities; category “D” entails all the restrictions of category “C” with the additional loss of radio privileges. . The district court concluded that procedural due process was accorded the appellant in the disciplinary proceeding because he was fully advised prior to the hearing of the infraction of the rules, had an opportunity to confer with his counsel with respect thereto, had an opportunity to have a counsel-substitute during the hearing, the charges were read to him at the hearing and he was given the opportunity to explain his actions, he was informed of the evidence against him, and the decision of the disciplinary board was based on facts rationally determined. . See Note, Beyond the Ken of the Courts: A Critique of Judicial Refusal to Review the Complaints of Convicts, 72 Yale L.J. 506 (1963). See, e. g., Roberts v. Pegelow, 313 F.2d 548, 550 (4th Cir. 1963). . This newly awakened judicial sensitivity is but part of a growing concern that governmental decisions directly affecting individual interests and causing significant deprivations conform to the rudiments of due process, regardless of whether what is at stake is termed a right, privilege, liberty, or property. See, e. g., Gagnon v. Searpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (due process may require counsel in probation revocation hearings) ; Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (due process before parole revocation) ; Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (due process before repossession) ; Bell v. Burson, 402 U.S. 535 (1971) (due process before suspension of driver’s license) ; Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) (due process before publicly advertised loss of right to purchase liquor) ; Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed. 2d 287 (1969) (due process before termination of welfare payments) ; Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (due process before removal or garnishment of wages)." }, { "docid": "852086", "title": "", "text": "license suspensions, plaintiffs contend, render the current suspension procedure a denial of due process of law. I. Due Process Claims A. Failure to Provide Hearings [3,4] It is commonly understood that the cornerstone of due process is the opportunity to be heard prior to the adjudication of important rights. Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 162, 168-69, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J. concurring); Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). Because of the importance of the right to drive a car in our society, the Supreme Court has squarely held that the due process clause applies to the deprivation of a driver’s license by the state. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971); quoted in Dixon v. Love, 431 U.S. 105, 112, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977). The question raised in this case is whether the due process clause requires that Vermont provide a hearing to motorists who face possible suspension of their operator’s licenses despite their having had the opportunity to appear in court and contest the charges against them. Plaintiffs acknowledge that they were apprised of their right to be heard on the question of their guilt or innocence of the offense charged, but contend that at no time were they afforded an opportunity to contest the imposition of a license suspension or to present evidence on the question of what should have been the appropriate length of the suspension. Of course, plaintiffs’ argument rests on the proposition that a suspension of their operator’s licenses deprives them of a right which was not at issue in the guilt-determining process which" }, { "docid": "8755109", "title": "", "text": "required to provide a forum for determining whether there existed a reasonable possibility of a judgment being rendered against him as a result of the accident. Bell v. Burson, supra, 402 U.S. at 542, 91 S.Ct. 1586, 29 L.Ed.2d 90. In light of that precedent and the position of motor vehicles as virtual “necessaries for ordinary, day-to-day living” in American society, see, e. g., Adams v. Egley, 338 F. Supp. 614, 621 (S.D.Cal.1972), it cannot reasonably be disputed that the impoundment of one’s automobile may constitute or eventuate a “grievous loss”. Goldberg v. Kelly, supra, 397 U.S. at 263, 90 S.Ct. 1011, 25 L.Ed.2d 287. Thus, before a state or local government may so interrupt its use, the owner is entitled to due prosess. The possibility that the interference with an owner’s access to and use of his vehicle may be temporary does not defeat the plaintiff’s constitutional claim. “[I]t is now well settled that a temporary, nonfinal deprivation of property is nonetheless a ‘deprivation’ in the terms of the Fourteenth Amendment. . The Fourteenth Amendment draws no bright lines around three-day, 10-day or 50-day deprivations of property. Any significant taking of property ... is within the purview of the Due Process Clause.” Fuentes v. Shevin; supra, 407 U.S. at 84-86, 92 S.Ct. at 1996. When such substantial private interests are affected by government action, procedural due process demands that notice and an opportunity for a hearing “appropriate to the nature of the case” be granted to the individual against whom the state acts. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). See Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 58 L.Ed. 1363 (1914). The notice and opportunity to be heard must be granted at a meaningful time and in a meaningful manner. Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). Furthermore, the opportunity for a hearing must be given before the deprivation takes effect, unless exceptional circumstances justify postponement of the hearing until after the event. See, e." }, { "docid": "17782527", "title": "", "text": "be Heard Along with notice, the opportunity to be heard is the fundamental bulwark of due process. When all other procedural safeguards are weeded out because of pressing government interests, these two remain. The basic rule regarding opportunity to be heard is that it be presented at “a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62, 66 (1965); Grannis v. Ordean, 234 U.S. 385, 34 S.Ct. 779, 58 L.Ed. 1363 (1914). What amounts to a “meaningful” opportunity to be heard must depend on the competing interest involved, and all the facts and circumstances of each individual case. Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748-49, 6 L.Ed.2d 1230,1236 (1961); Vance v. Chester County Board of School Trustees, 504 F.2d 820, 824 (4th Cir. 1974); Grimes v. Nottoway County School Board, 462 F.2d 650, 653 (4th Cir. 1972); Schoonfield v. Mayor and City Council of Baltimore, 399 F.Supp. 1068 (D.Md.1975). Two preliminary points should be made before considering the evidence. First, the timeliness of the hearing is not in question here. In many cases (see e. g., Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Huntley v. North Carolina, 493 F.2d 1016 (4th Cir. 1974)) the issue is whether a hearing must be provided before or after the deprivation. That issue does not arise here since the plaintiff was not terminated until after his hearing. Second it should be noted that the only plausible claim that plaintiff has to due process is a denial of a liberty interest. In such cases the courts have held that the purpose of the hearing is to allow the discharged employee an opportunity to clear his name. The most striking piece of evidence in the case is a 2500-page transcript of the hearings. These proceedings lasted 60 hours and were spread out over a two-week period. Plaintiff called 40 witnesses, and his counsel carefully cross-examined the Board" }, { "docid": "15736156", "title": "", "text": "conducted in 1975. Due process requires at least notice and an opportunity to be heard. Goss v. Lopez, 419 U.S. 565, 581, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Sullivan v. Meade Independent School District No. 101, 530 F.2d 799, 806 (8th Cir. 1976); Strickland v. Inlow, 519 F.2d 744, 746 (8th Cir. 1975). The opportunity to be heard must be provided “at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976); Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). Generally, a hearing must be conducted before a right is terminated. Board of Regents v. Roth, 408 U.S. 564, 570 n. 7, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Fuentes v. Shevin, 407 U.S. 67, 80-84, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337, 342, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). As the Supreme Court stressed in Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90 (1971), it is fundamental that except in emergen-\" cy situations * * * due process requires that when a State seeks to terminate an interest * * * it must afford “notice and opportunity for hearing appropriate to the nature of the case” before the termination becomes effective. [Emphasis in original.] Courts have allowed post-termination hearings when the delay merely caused a loss of money during the period of the delay. In Mathews v. Eldridge, supra, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18, the Supreme Court approved the Social Security Administration’s practice of conducting hearings on the termination of disability benefits after the termination. In Wellner v. Minnesota State Junior College Board, 487 F.2d 153 (8th Cir. 1973), after ordering a hearing on the earlier termination of a teacher, we ordered the defendant to pay" }, { "docid": "8819703", "title": "", "text": "32 L.Ed. 623 (1889). The “right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of criminal conviction, is a principle basic to our society.” Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). The fundamental requirement of due process is the opportunity to be heard “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). See Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 58 L.Ed. 1363 (1914). Eldridge agrees that the review procedures available to a claimant before the initial determination of ineligibility becomes final would be adequate if disability benefits were not terminated until after the evidentiary hearing stage of the administrative process. The dispute centers upon what process is due prior to the initial termination of benefits, pending review. In recent years this Court increasingly has had occasion to consider the extent to which due process requires an evidentiary hearing prior to the deprivation of some type of property interest even if such a hearing is provided thereafter. In only one case, Goldberg v. Kelly, 397 U.S. 254, 266-271, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), has the Court held that a hearing closely approximating a judicial trial is necessary. In other cases requiring some type of pretermination hearing as a matter of constitutional right the Court has spoken sparingly about the requisite procedures. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), involving garnishment of wages, was entirely silent on the matter. In Fuentes v. Shevin, 407 U.S. 67, 96-97, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), the Court said only that in a replevin suit between two private parties the initial determination required something more than an ex parte proceeding before a court clerk. Similarly, Bell v. Burson, 402 U.S. 535, 540, 91 S.Ct. 1586, 1590, 29 L.Ed.2d 90 (1971), held, in the context of the revocation" }, { "docid": "7759227", "title": "", "text": "The dispute focuses on plaintiffs’ rights under the Constitution. Plaintiffs’ due process contention rests upon a series of recent Supreme Court decisions which require notice and an opportunity for a hearing before certain administrative action can be taken. See Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (hearing required before goods may be repossessed) ; Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) (hearing required before suspension of uninsured motorists’ license); Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) (hearing required before posting of notice forbidding sale of liquor to an individual) ; Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (notice and hearing required before termination of welfare benefits); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (hearing required before garnishment of wages). These decisions have developed a doctrine of entitlements to protect what has been variously described as “statutory entitlements” or “important interests” Bell v. Burson, supra, 402 U.S. at 539, 91 S.Ct. at 1589; Goldberg v. Kelly, supra, 397 U.S. at 262, 90 S.Ct. at 1017. This doctrine contemplates no distinction between “rights” and “privileges.” Goldberg v. Kelly, supra. And it encompasses any significant interest in property even if disputed. Fuentes v. Shevin, supra, 92 S.Ct. at 1997. There can be little doubt that utility services “fall within the same constitutional protections afforded welfare benefits, wages, drivers’ licenses, reputation in the community, and possession of personal property. . . . ” Stanford v. Gas Service Co., 346 F. Supp. 717, 721 (D.Kan.1972); Bronson v. Consolidated Edison Co. of New York, Inc., 350 F.Supp. 443 (S.D.N.Y.1972). Termination of water service inflicts hardships on the consumer that transcend the deprivation of other protected interests. Cf. Palmer v. Columbia Gas Co., 342 F.Supp. 241, 244 (N.D.Ohio 1972). Moreover, in operating as an apparent monopoly the Water Department confers an important benefit on its customers sufficiently analogous to other “entitlements” recognized in recent Supreme Court decisions. Davis v. Weir, 328 F.Supp. 317, 321 (N.D.Ga.1971)." }, { "docid": "23448235", "title": "", "text": "any tribunal. It is odious wherever exhibited, and nowhere does it appear more so than when exercised by a judicial officer towards a member of the bar practicing before him.” We turn to some of the incidents of due process claimed to be denied attorneys by the procedure used by the state in disciplining members of the bar. B. Meaningful Hearing by Trier of Fact 1. Requirement of Opportunity tobe Heard “The fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). Particularly when a person’s good name, integrity, reputation or hon- or is at stake because of government action, a full and fair hearing should include, at the very least, notice of the charges or complaint, disclosure of the evidence supporting the charges, and an opportunity, to be heard and to confront and cross-examine witnesses. See, e. g., Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972); Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed. 2d 515 (1971); Willner v. Comm, on Character & Fitness, 373 U.S. 96, 103, 83 S.Ct. 1175, 1180, 10 L.Ed.2d 224 (1963); Greene v. McElroy, 360 U.S. 474, 492, 496-97, 79 S.Ct. 1400, 1411, 1413, 3 L.Ed.2d 1377 (1959). It follows that in attorney disciplinary proceedings, due process requires a reasonable opportunity to present, a defense to the trier. See, e. g., In Re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117, reh. denied, 391 U.S. 961, 88 S.Ct. 1833, 20 L.Ed.2d 874 (1967); Kivitz v. SEC, 154 U.S.App.D.C. 372, 475 F.2d 956 (1973); In Re Los Angeles County Pioneer Society, 217 F.2d 190 (9th Cir. 1954). The hearing “must be granted . . . in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). a. Evaluating Credibility of Witnesses When the credibility of witnesses is involved, a meaningful hearing should include their appearance before the trier-of-fact so that it can observe" }, { "docid": "5556576", "title": "", "text": "provider administrative due process. Judicial precedent requires no more. First, Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), vouches this position. There State- welfare payments had been discontinued without first giving the recipient notice of the proposed termination. On his application the District Court enjoined the indicated action because “only a pre-termination evidentiary hearing would satisfy the [due process clause] command”. Id. 261, 90 S.Ct. 1016. Affirming, Goldberg instructed in these opinion excerpts: “The constitutional issue to be decided, therefore, is the narrow one whether the Due Process- Clause requires that the recipient be afforded an evidentiary hearing before the termination of benefits.” p. 260, 90 S. Ct. p. 1016. “We also agree with the District Court, however, that the pre-termination hearing need not take the form of a judicial or quasi-judicial trial. Accordingly, the pre-termi-nation hearing has one function only: to produce an initial determination of the validity of the welfare department’s grounds for discontinuance of payments in order to protect a recipient against an erroneous termination of his benefits. . . . Thus, a complete record and a comprehensive opinion, which would serve primarily to facilitate judicial review and to guide future decisions, need not be provided at the pre-termination stage”, pp. 266-267, 90 S.Ct. p. 1020. “ ‘The fundamental requisite of due process of law is the opportunity to be heard.’ Grannis v. Ordean, 234 U.S. 385, 394 [34 S.Ct. 779, 783, 58 L.Ed. 1363] (1914). The hearing must be‘at a meaningful time and in a meaningful manner.’ Armstrong v. Manzo, 380 U.S. 545, 552 [85 S.Ct. 1187, 1191, 14 L.Ed.2d 62], (1965). In the present context these principles require that a recipient have timely and adequate notice detailing the reasons for a proposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally.” pp. 267-268, 90 S.Ct. p. 1020. As is evident, the procedure ordained in Goldberg is the pattern traced by the Secretary. In summary, we find no basis for the injunction and the District Court should vacate it." }, { "docid": "10816302", "title": "", "text": "Clerk of the Superior Court which issued the writ, and the Register of Deeds in whose office the attachment was recorded. The constitutional issue presented is a narrow one. It is whether the failure of Maine law to afford a defendant an opportunity to be heard, before attachment of his real property, deprives the defendant of due process of law. We have concluded that fundamental principles of procedural due process, which have long been recognized by the Supreme Court and have most recently been reaffirmed by that Court in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) make clear that, by denying the defendant any prior opportunity to be heard and to present any defense he may have to the plaintiff’s claim, Maine’s prejudgment attachment procedure cannot pass constitutional muster. For over 100 years the controlling principles have been well established: “The fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914); Baldwin v. Hale, 1 Wall. (68 U.S.) 223, 233, 17 L.Ed. 531 (1864); Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). Such hearing must be “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, supra. “[Opportunity for that hearing must be provided before the deprivation at issue takes effect.” Fuentes, supra, 407 U.S. at 82, 92 S.Ct. at 1995 (emphasis supplied). In a variety of contexts, the Supreme Court has been insistent that due process so requires. E. g., Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed. 2d 287 (1970); Armstrong v. Manzo, supra, 380 U.S. at 551, 85 S.Ct. 1187; Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950). As the Court observed in Fuentes, “this is no new principle of" }, { "docid": "20795459", "title": "", "text": "must be provided against the dangers of the overzealous as well as the despotic. The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication. Legislation such as this, requiring that the police must with reasonable promptness show legal cause for detaining arrested persons, constitutes an important safeguard — not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. 318 U.S. 332, 343-344, 63 S.Ct. 608, 614, 87 L.Ed. 819 (1943). Over forty years ago the Florida Legislature (1939) enacted a statute requiring any officer arresting without a warrant to take the defendant before a committing magistrate without unnecessary delay, F.S.A. § 901.23. Thus we see the requirement for a preliminary hearing is not a new innovation in the law of the State of Florida. The Fourteenth Amendment provides that no state shall deprive any person of liberty without due process of law. The fundamental requisite of due process of law is the opportunity to be heard. Grannis v. Ordean, 234 U.S. 385, 34 S.Ct. 779, 58 L.Ed. 1363 (1914). “It is an opportunity which must be granted at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). It has been held that a hearing must be given before a drivers license and vehicle registration can be suspended, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Salkay v. Williams, 445 F.2d 599 (5 Cir. 1971); before prohibiting the sale of liquor to an individual for one year, Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515; before termination of welfare payments (even though a subsequent hearing was afforded), Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); before garnishment of wages (even though" }, { "docid": "20795461", "title": "", "text": "there was a subsequent trial), Snidach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1920, 23 L.Ed.2d 349 (1969); before a thirty day suspension from a public school, Williams v. Dade County School Board, 441 F.2d 299 (5 Cir. 1971); before refusal of admission to public hospital staff, Sosa v. Board of Managers, 437 F.2d 173 (5 Cir. 1971); and before termination of employment on college faculty, Ferguson v. Thomas, 430 F.2d 852 (5 Cir. 1970). It would appear beyond question that due process demands a preliminary hearing within a reasonable time after an accused has been deprived of his freedom. In Goldberg v. Kelly, the Court summarized the test for providing procedural due process as follows: The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be “condemned to suffer grievous loss.” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 647, 95 L.Ed. 817 (1951) (Frankfurter J., concurring), and depends upon whether the recipient’s interest in avoiding that loss outweighs the governmental interest in summary adjudication. 397 U.S. 254, 262-63, 90 S.Ct. 1011, 1017-1018, 25 L.Ed.2d 287. In this case the grievous loss is that of one’s freedom and the countervailing governmental interest is that of the state in avoiding the burden of preliminary hearings. Although the state may incur additional expense in expanding its existing committing system to include hearings for direct information cases, this expense will be more than offset by the savings in jail and trial costs regarding those persons heretofore jailed and/or tried without probable cause. Moreover, these financial considerations are so grossly overbalanced by the prolonged loss of freedom by innocent persons that further comment is unnecessary. The taxpayers of this community have labored under a near intolerable burden of the spiraling cost of combating crime. The expense of maintaining a jail, with many persons who would never be there in the first instance if their case had been reviewed by a judge in an effective committing magistrate system, will be substantially less than its present cost" }, { "docid": "7759226", "title": "", "text": "the claims of other members and they have adequately represented the interests of the other members. Moreover, the grievance which the class members assert falls within the letter and spirit of Rule 23(b)(2). They complain that defendants have acted in a way which has similarly affected each member of the class. And, having abandoned their damage claim, they seek declaratory and injunctive relief only. Thus, the action is properly a class action, and it is not moot. Thomas v. Clarke, supra, 54 F.R.D. at 252; C. Wright, Law of Federal Courts 312 (2d ed. 1970). To prevail under 42 U.S.C. § 1983 plaintiffs must show that defendants, acting under color of state law, have deprived them of a right secured by the Constitution and laws. of the United States. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). There is no question that defendants have been acting under color of state law. They are municipal officials and are responsible for the operation of a municipally owned utility. The dispute focuses on plaintiffs’ rights under the Constitution. Plaintiffs’ due process contention rests upon a series of recent Supreme Court decisions which require notice and an opportunity for a hearing before certain administrative action can be taken. See Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (hearing required before goods may be repossessed) ; Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) (hearing required before suspension of uninsured motorists’ license); Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) (hearing required before posting of notice forbidding sale of liquor to an individual) ; Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (notice and hearing required before termination of welfare benefits); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (hearing required before garnishment of wages). These decisions have developed a doctrine of entitlements to protect what has been variously described as “statutory entitlements” or “important interests” Bell v. Burson," }, { "docid": "10816303", "title": "", "text": "heard.” Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914); Baldwin v. Hale, 1 Wall. (68 U.S.) 223, 233, 17 L.Ed. 531 (1864); Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). Such hearing must be “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, supra. “[Opportunity for that hearing must be provided before the deprivation at issue takes effect.” Fuentes, supra, 407 U.S. at 82, 92 S.Ct. at 1995 (emphasis supplied). In a variety of contexts, the Supreme Court has been insistent that due process so requires. E. g., Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed. 2d 287 (1970); Armstrong v. Manzo, supra, 380 U.S. at 551, 85 S.Ct. 1187; Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950). As the Court observed in Fuentes, “this is no new principle of constitutional law.” Fuentes, supra, 407 U.S. at 82, 92 S.Ct. at 1995. Judged by this standard, the procedure provided by Maine law fails to meet even the minimum demands of due process. The effect of the Maine law is to permit, at the option of the plaintiff, the immediate attachment, without opportunity to be heard, of the real property of the defendant, simply upon the plaintiff’s unsubstantiated assertion that he has a meritorious claim for damages. Cf. Fuentes, supra, 407 U.S. at 83, 92 S. Ct. 1983. It may be that Rule 4A, as recently amended, permits the defendant, after he receives notice of the attachment, to obtain an expeditious dissolution or modification of the attachment. But Maine law still allows the defendant’s property to be attached for a substantial period of time without his prior knowledge. More fundamentally, op portunity for hearing after the event is no substitute for the right to a prior hearing “that is the only truly effective safeguard against arbitrary deprivation of property.” Idem. In both Sniadach and Fuentes, the" }, { "docid": "18338651", "title": "", "text": "basis of his dismissal was a denial of freedom of association. Battle v. Mulholland, 439 F.2d 321 (5th Cir. 1971). See also Fluker v. Alabama State Board of Education, 441 F.2d 201 (5th Cir. 1971). This federal right to a hearing which comports with minimal due process does not belong to school teachers alone, nor does it extend only to those who found their claim upon a federal substantive right. It has been accorded to students attending a State college, Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961); to county high school students, Williams v. Dade County School Bd., 441 F.2d 299 (5th Cir. 1970); to a doctor seeking admission to the staff of a county hospital, Sosa v. Board of Managers of Val Verde Memorial Hosp., 437 F.2d 173 (5th Cir. 1971); to persons whose names are posted in retail liquor outlets as given to excessive drinking, Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); and to welfare recipients whose benefits are terminated. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Thus, our determination that Dr. McDowell was not denied federal substantive due process does not control our determination with regard to whether he possessed a federal procedural right. Since he charged that the Board really cloaked a wrong under Texas law in the garb of a contractual dismissal, the question turns upon whether Dr. McDowell had a right to have those federal Constitutional procedures defined in the other situations mentioned above applied in judging the validity of his termination. In other terms, did he have a right to a hearing before some impartial official with a meaningful opportunity to try to establish his contentions and confront his detractors? We hold not. Under the circumstances of this case, no federal Constitutional right to a trial type hearing existed. In Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), the Supreme Court held federal Constitutional due process did not require such a hearing in every conceivable case" } ]

[ { "docid": "7973107", "title": "", "text": "definition of “labor dispute.” Matson Navigation Company v. Seafarers International Union, 100 F.Supp. 730 (D.Md. 1951). It also appears that for the purpose of determining whether particular union activity is subject to § 8(b.) (4) of the National Labor Relations Act and that state jurisdiction over the matter is thereby displaced, no distinction is made between secondary activity which is a part of a controversy between a union and an employer or between two unions. San Diego Building Trades Council etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959); Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546 (1955). The character of the underlying dispute in the present case comes well within the statutory definition It is not merely peripheral to it or completely outside of it as was the case in National Labor Relations Board v. International Longshoremen’s Association, 332 F.2d 992 (4th Cir. 1964) in which the cause of work stoppage was purely political, i. e. refusal to load cargo on a vessel because it was destined for delivery to Cuba. The Petitioner also asserts that there can be no violation of § 8(b) (4) unless there exists a dispute with a primary employer. In effect it argues that § 8(b) (4) was enacted to prohibit the use of a secondary boycott and that a secondary boycott cannot exist unless there is a dispute between the union and a primary employer. The statute does not use either the term “secondary boycott” or the term “primary employer.” It is true that these words frequently appear in the legislative history for the reason that they assist in describing the most usual form of the kind of activity Congress intended to proscribe but Congress did not use those terms in the statute nor did the Senators and Representatives show by using them in debates and reports that the operation of the statute was to be coextensive with the usual meaning of those terms. Indeed, the Supreme Court has said that all secondary boycotts were not outlawed in § 8(b) (4) (A), which is" } ]

[ { "docid": "22942887", "title": "", "text": "was precisely th^t which would flow from Ebasco’s hiring strikebreakers to work on its own premises.” And at 95 Cong.Rec. (1949) page 8709 Senator Taft said: “The spirit of the Act is not intended to protect a man who in the last case I mentioned is cooperating with a primary employer and taking his work and doing the.work which he is unable to do because of the strike.” President Eisenhower’s recommendation referred to above was to make it explicit “that concerted action against (1) an employer who is performing ‘farmed-out’ work for the account of another employer whose employees are on strike * * * will not be treated as a secondary boycott.” Text of President’s Message to Congress on Taft-Hartley Amendments, January 11, 1954. At least one commentator has suggested that the enactment of this change would add nothing to -existing law. Cushman, Secondary Boycotts and the Taft-Hartley Law, 6 Syracuse L.Rev. 109, 121 (1954). Moreover, there is evidence that the secondary strikes and boycotts sought to be outlawed by § 8(b) (4) (A) were only those which had been unlawful at common law. 93 Cong.Rec. (1947) 3950, 4323 (Senator Taft), 2 Legislative History of the Labor-Management Relations Act, 1947, pp. 1006, 1106. And although secondary boycotts were generally unlawful, it has been held that the common law does not proscribe union activity designed to prevent employers from doing the farmed-out work of a struck employer. Iron Molders Union No. 125 of Milwaukee, Wis. v. Allis-Chalmers Co., 7 Cir., 1908, 166 F. 45, 51, 20 L.R.A.,N.S., 315. Thus the picketing of the independent typewriter companies was not the kind of secondary activity which § 8(b) (4) (A) of the Taft-Hartley Act was designed to outlaw. Where an employer is attempting to avoid the economic impact of a strike by securing the services of others to do his work, the striking union. obviously has a great interest, and we think a proper interest, in preventing those services from being rendered. This interest is more fundamental than the interest in bringing pressure on customers of the primary employer. Nor are those" }, { "docid": "22790097", "title": "", "text": "lawful, so-called primary activity. “While § 8 (b) (4) does not expressly mention ‘primary’ or ‘secondary’ disputes, strikes or boycotts, that section often is referred to in the Act’s legislative history as one of the Act’s ‘secondary boycott sections.’ ” Labor Board v. Denver Building Council, 341 U. S. 675, 686. “Congress did not seek, by § 8 (b)(4), to interfere with the ordinary strike . . . .” Labor Board v. International Rice Milling Co., 341 U. S. 665, 672. The impact of the section was directed toward what is known as the secondary boycott whose “sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it.” International Brotherhood of Electrical Workers v. Labor Board, 181 F. 2d 34, 37. Thus the section “left a striking labor organization free to use persuasion, including picketing, not only on the primary employer and his employees but on numerous others. Among these were secondary employers who were customers or suppliers of the primary employer and persons dealing with them . . . and even employees of secondary employers so long as the labor organization did not . . . ‘induce or encourage the employees of any employer to engage in a strike or a concerted refusal in the course of their employment’. . . .” Labor Board v. Local 294, International Brotherhood of Teamsters, 284 F. 2d 887, 889. But not all so-called secondary boycotts were outlawed in § 8 (b)(4)(A). “The section does not speak generally of secondary boycotts. It describes and condemns specific union conduct directed to specific objectives. . . . Employees must be induced; they must be induced to engage in a strike or concerted refusal; an object must be to force or require their employer or another person to cease doing business with a third person. Thus, much that might argumentatively be found to fall within the broad and somewhat vague concept of secondary boycott is not in terms prohibited.” Local 1976, United Brotherhood of Carpenters v. Labor Board, 357 U. S. 93," }, { "docid": "8562888", "title": "", "text": "doors and that this is a primary object not forbidden by those sections. Id. at 616-18, 87 S.Ct. 1250. The NLRB found no violation of either section but the court of appeals disagreed. The court noted that section 8(e) was inserted in the Act at the same time as the proviso that section 8(b)(4) would not apply to primary strikes or picketing. Finding no similar restriction in 8(e), it concluded that there was a violation of section 8(e) regardless whether the union conduct was primary or secondary. Id. The Supreme Court began its analysis with an exhaustive review of the legislative history. The Court concluded that section 8(e) as well as section 8(b)(4) was not meant to prohibit primary activity. Both sections were directed only at secondary boycotts whose “core concept” is “union pressure directed at a neutral employer the object of which [is] to induce or coerce him to cease doing business with an employer with whom the union [is] engaged in a labor dispute.” 386 U.S. at 622, 87 S.Ct. at 1257 (footnote omitted). The Court noted the importance of technological change to labor-management relations and reasoned that any effort by Congress to curtail voluntary negotiations of solutions to these problems would be accom panied by extensive study and debate. Id. at 640-42, 87 S.Ct. 1250. The Court also stated that the provisions of the Act guaranteeing labor the rights to bargain collectively and to strike except as specifically provided in the Act, 29 U.S.C. §§ 157, 163, “caution against reading statutory prohibitions as embracing employee activities to pressure their own employers into improving the employees’ wages, hours, and working conditions.” Id. at 643, 87 S.Ct. at 1268. In National Woodwork the determination whether a particular agreement and its enforcement violated sections 8(e) and 8(b)(4) required “an inquiry into whether, under all the surrounding circumstances, the Union’s objective was preservation of work for Frouge’s employees, or whether the agreements and boycott were tactically calculated to satisfy union objectives elsewhere.” Id. at 644, 87 S.Ct. at 1268 (footnote omitted). In making this inquiry, the Court focussed on two factors:" }, { "docid": "2600100", "title": "", "text": "a truly neutral party. H.R.Rep. No. 510, 80th Cong., 1st Sess. 43 (1947), reprinted in I Legislative History of the Labor Management Relations Act, 1947, at 546-547, U.S.Code Cong.Serv. 1947, p. 1135. The comments on the floor of the Senate by Senator Robert Taft, a co-sponsor of the Act, further clarify Congressional intent. The senator explained: This provision makes it unlawful to resort to a secondary boycott to injure the business of a third person who is wholly unconcerned in the disagreement between an employer and his employees ____ [Ujnder the common law, a secondary boycott was unlawful____ [But] under the provisions of the Norris-La-guardia Act, it became impossible to stop a secondary boycott or any other kind of strike, no matter how unlawful it may have been at common law. All this provision of the bill does is to reverse the effect of the law as to secondary boycotts. 93 Cong.Rec. 4198 (1947), reprinted in II Legislative History of the Labor Management Relations Act, 1947, at 1106 (emphasis added). This unequivocal legislative history makes clear that union action is secondary, and therefore proscribed by the Act, only if it fits within the common law definition of secondary boycotts. See Production Workers Union, 793 F.2d at 329. The classic definition, often relied upon by the Supreme Court in connection with Section 8(b)(4), was written by Judge Learned Hand: “The gravamen of a secondary boycott is that its sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it.” International Brotherhood of Electrical Workers v. NLRB, 181 F.2d 34, 37 (2d Cir.1950), aff'd, 341 U.S. 694, 71 S.Ct. 954, 95 L.Ed. 1299 (1951); see Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 388, 89 S.Ct. 1109, 22 L.Ed.2d 344 (1969); Local 761, International Union of Electrical, Radio & Machine Workers v. NLRB, 366 U.S. 667, 672, 81 S.Ct. 1285, 1288, 6 L.Ed.2d 592 (1961). The central inquiry is whether “pressure [is] tactically directed toward a neutral employer in a labor dispute not his own.”" }, { "docid": "22629473", "title": "", "text": "§ 8 (b) (4)(B), the 1959 amendments produced §§8(b)(4)(i) and (ii) expanding the modes of union pressure covered by § 8 (b) (4); See. Labor Board v. Servette, Inc., 377 U. S. 46, 51-54. Among the changes was the deletion of the Act’s original requirement that union pressure on individuals for the objectives proscribed must be pressure commanding “concerted” activity on the part of those individuals. This was the legislative response to Labor Board v. International Rice Milling Co., 341 U. S. 665, where the Court had indicated that jobsite picketing directed at truck drivers employed by a customer of the struck employer was not an unfair labor practice because there was no attempt to persuade the truck drivers to engage in “concerted” activity. In addition to dropping the “concerted” activity requirement and thus bringing secondary conduct directed at an individual employee within §8 (b)(4), Congress also added the proviso that nothing in the amended section “shall be construed to make unlawful, where not otherwise unlawful,. any primary strike or primary picketing.” The purpose of this proviso was simply to make clear that Congress did not intend to disturb another ground of the Court’s decision in Rice Milling — that jobsite picketing of the employees of others was protected primary activity. See Local 761, Electrical Workers v. Labor Board, 366 U, S. 667, 681. Thus, the proviso was not intended to modify the distinction between proscribed secondary boycotts and permitted primary strikes and picketing embodied in the. original Act: The conference report on the 1959 amendments specifically states' that “the changes in section 8 (b) (4) do not overrule or .qualify the present rules of law permitting picketing at the site of a primary labor dispute.” H. R. Conf. Rep. No. 1147, 86th Cong., 1st Sess., 38,1 Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 (hereinafter 1959 Leg. Hist.), 942. Congress thus intended no change in the Taft-Hartley Act’s proscription of product boycotts, which court decisions had consistently recognized as “secondary” and illegal. What has been said establishes that product boycotts, are normally illegal regardless of the" }, { "docid": "22797709", "title": "", "text": "(1927); Barnard & Graham, Labor and the Secondary Boycott, 15 Wash. L. Rev. 137 (1940); Hellerstein, Secondary Boycotts in Labor Disputes, 47 Yale L. J. 341 (1938). Cf. Aaron, Labor Injunctions in the State Courts — Pt. I: A Survey, 50 Va. L. Rev. 950, 971-977 (1964). For these reasons, as well as those stated above, at 382-383, this body of common law offers no guidance for the problem at hand. It was widely assumed that, prior to 1947, the Norris-LaGuardia Act prevented federal courts from enjoining any “secondary boycotts.” See 93 Cong. Rec. 4198 (remarks of Senator Taft); Bakery Drivers v. Wagshal, 333 U. S. 437, 442 (1948). Indeed, in an opinion written by Judge Learned Hand, the Court of Appeals for the Second Circuit held that secondary conduct was fully protected by the Wagner Act. NLRB v. Peter Cailler Kohler Swiss Chocolates Co., 130 F. 2d 503 (1942). The 1947 Taft-Hartley amendments, 61 Stat. 140, and the 1959 Landrum-Griffln amendments, 73 Stat. 545, explicitly narrowed the scope of protected employee conduct under the National Labor Relations Act; §§ 8 (b) (4) and 8 (e) of the Act proscribed a variety of secondary activities. But Congress enacted “no . . . sweeping prohibition” of secondary conduct. Carpenters v. NLRB, 367 U. S. 93, 98 (1958). And despite their relative precision of language, the experience under these amendments amply demonstrates that — -as at common law — bright lines cannot be drawn between “legitimate ‘primary activity’ and banned ‘secondary activity’. . . .” Electrical Workers v. NLRB, 366 U. S. 667, 673 (1961). The fuzziness of this distinction stems from the overlapping characteristics of the two opposing concepts, and from the vagueness of the concepts themselves. The protected primary strike “is aimed at applying economic pressure by halting the day-to-day operations of the struck employer,” Steelworkers v. NLRB, 376 U. S. 492, 499 (1964); and protected primary picketing “has characteristically been aimed at all those approaching the situs whose mission is selling, delivering or otherwise contributing to the operations which the strike is endeavoring to halt,” ibid., including other employers" }, { "docid": "6744113", "title": "", "text": "253. The decisions of the National Labor Relations Board and of the Supreme Court establish that Section 8(b) (4) sought to reconcile the “dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own.” (Emphasis supplied.) National Labor Relations Board v. Denver Building and Construction Trades Council, 341 U.S. 675, 692, 71 S.Ct. 943, 953, 95 L.Ed. 1284, 1297; Local 761, International Union of Electrical, Radio and Machine Workers, AFL-CIO v. National Labor Relations Board, 366 U.S. 667, 673, 81 S.Ct. 1285, 6 L.Ed.2d 592, 597; United Steelworkers of America, AFL-CIO v. National Labor Relations Board, 376 U.S. 492, 496, 84 S.Ct. 899, 11 L.Ed.2d 863, 866; National Woodwork Manufacturers Ass’n v. National Labor Relations Board, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357, 368. “The existence of a lawful primary dispute is not required as a necessaiy element in finding a violation of Section 8(b) (4).” Millmen & Cabinet Makers Union, Local No. 550, Etc. (Steiner Lumber Company), 153 N.L. R. B. 1285, 1289, affirmed National Labor Relations Board v. Millmen & Cabinet Makers Union, Local No. 550, etc., 9 Cir., 1966, 367 F.2d 953; National Maritime Union of America, AFL-CIO v. National Labor Relations Board, 1965, 120 U.S.App.D.C. 299, 346 F.2d 411, 419, cert. den. 382 U.S. 840, 86 S.Ct. 90, 15 L.Ed.2d 82, reh. den. 382 U.S. 933, 86 S.Ct. 312, 15 L.Ed.2d 346. Indeed, the secondary boycott is “more reprehensible if there is no legitimate primary dispute with the primary employer.” Millmen & Cabinet Makers Union, Local No. 550, Etc. (Steiner Lumber Company), 153 N.L.R.B. 1285, 1289, affirmed National Labor Relations Board v. Millmen & Cabinet Makers Union, Local No. 550, etc., 9 Cir., 1966, 367 F.2d 953; National Labor Relations Board v. Washington-Oregon Shingle Weavers’ Dist. Council, et al, 9 Cir., 1954, 211 F.2d 149, 152. “The crucial question” in every secondary boycott case “is always to determine the object of the labor activity.” National Labor Relations Board v." }, { "docid": "9761407", "title": "", "text": "the object — clearly present here — ’“is * * * forcing or requiring any employer * * * to cease using •x- * * tkg products of any other * * manufacturer, or to cease doing business with any other person”. In the instant case, we have seen that, despite the “hot cargo” provision in the contract, supra, the employees had actually been handling Paine doors. They ceased doing so only upon Pleisher’s and Steinert's orders. Those orders, we think, were in direct contravention of the mandate. In National Labor Relations Board v. Washington-Oregon Shingle Weavers’ Dist. Council, 9 Cir., 1954, 211 F.2d 149, 152, we said: “The prohibited object of the boycott is stated by the statute to be ‘forcing * * * any employer or other person to cease using * * * the products of any other producer, processor, or manufacturer * * *.’ In fact, if the object is sought, not because of any dispute, but merely because the union dislikes the other producer for any reason, or for no reason, the conduct would appear even more reprehensible. * * * The only dispute between the Union and the Company was over the latter’s use of unfair shingles, and had no bearing on wages, working conditions, etc. In such a case, a strike called by the Union can have no other purpose than to compel the Company to cease using what the Union considers unfair shingles. “Furthermore, the legislative history of the Act [infra] clearly shows that Congress intended to proscribe exactly the type of union action involved here.” In General Drivers, etc., and American Iron and Machine Works Company, No. 121, 115 NLRB 800, 801, decided on March 15, 1956, the Board said: “1. We find, as did the Trial Examiner, that Respondent Teamsters, by its inducement of Employees of the common carriers (secondary employers) to engage in a concerted refusal in the course of their employment to handle freight brought by American Iron and Machine Works Company (the primary employer) to the carriers’ docks, with an object of forcing or requiring the carriers" }, { "docid": "22074148", "title": "", "text": "such agreements were already expressly prohibited by § 8 (e). As it had in 1947 and 1959, however, Congress in 1961 rejected this effort to subject illegal union secondary conduct to the sanctions of the antitrust laws. In sum, the legislative history of the 1947 and 1959 amendments and additions to national labor law clearly demonstrates that Congress did not intend to restore antitrust sanctions for secondary boycott activity such as that engaged in by Local 100 in this case, but rather intended to subject such activity only to regulation under the National Labor Relations Act and § 303 of the Labor Management Relations Act. The judicial imposition of “independent federal remedies” not intended by Congress, no less than the application of state law to union conduct that is either protected or prohibited by federal labor law, threatens “to upset the balance of power between labor and management expressed in our national labor policy.” Teamsters v. Morton, 377 U. S., at 260. See Carpenter's v. NLRB, 357 U. S., at 98-100; National Woodwork Mfrs. Assn. v. NLRB, 386 U. S., at 619-620. Accordingly, the judgment before us should be affirmed. Before 1932 this Court had held that secondary strikes and boycotts were not exempt from the coverage of the antitrust laws. E. g., Duplex Printing Press Co. v. Deering, 254 U. S. 443; Bedford Cut Stone Co. v. Journeymen Stone Cutters’ Assn., 274 U. S. 37. Duplex and its progeny were overruled by Congress with passage of the Norris-LaGuardia Act, 47 Stat. 70. See Milk Wagon Drivers’ Union v. Lake Valley Farm Products, Inc., 311 U. S. 91, 100-103; United States v. Hutcheson, 312 U. S. 219, 229-231, 235-237. The Act added § 8 (b) (4) to the National Labor Relations Act, making it an unfair labor practice for a labor organization or its agents “to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities" }, { "docid": "21498495", "title": "", "text": "acceptance of the Board’s test of common ownership and control as the proper standard to be applied. The Fifth Circuit, alluding to the Roy and Bach-man cases, has most recently formulated the test in these terms: S “The Board emphasized that centralized control of labor relations is a factor to be considered in finding common control of separate entities. To this we might add other factors, for example, I common management, integrated operations and complete dependence of one company upon the other for its work. Suffice it to say however that in all events the single employer exception to the secondary boycott proscription runs only to those situations where because of conditions existing the two employers may - and should be considered as one.” Employing Lithographers of Greater Miami v. NLRB, 301 F.2d 20, 29 (5th Cir. 1962). . The Supreme Court has characterized these provisions of the Act as directed to the achievement of “the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own.” NLRB v. Denver Bldg. & Const. Trades Council, 341 U.S. 675, 692, 71 S.Ct. 943, 953, 95 L.Ed. 1284 (1951). . In the House debates in August, 1959, both Representatives Landrum and Griffin said that the proposed changes in the secondary boycott provisions of the law “would in no way affect the existing law concerning the allied employer doctrine.” II Legislative History of the Labor-Man agement Reporting and Disclosure Act of 1959 (G.P.O.1959), p. 1681. And see H.R.Rep.No.1147, 86th Cong., 1st Sess. 38 (1959), U. S. Code Congressional and Administrative News, p. 2318; Koretz, Federal Regulation of Secondary Strikes and Boycotts — A Third Chapter, 13 Syracuse L.Rev. 1, 3 (1961); and, The Land-rum-Griffin Amendments: Labor’s Use of the Secondary Boycott, 45 Cornell L.Q. 724, 758 n. 158 (1960). . This formulation emerged more clearly upon oral argument. As the point was made in the Union’s brief, it was cast more as a renewal of the claim that" }, { "docid": "11856033", "title": "", "text": "889, 120 NLRB 753; International Brotherhood of Electrical Workers, Local 861, 142 NLRB 1006, enforced, 5 Cir. 1965, 353 F.2d 736; Millwrights Local Union No. 1102, 155 NLRB 126. . “The building trades unions have been advancing this argument before Congress (thus far without success) for all of the years since Congress adopted the ‘secondary boycott’ provisions of the Taft-Hartley Act, 61 Stat. 136, 141-142 (1947), as amended, 29 U.S.C. § 158(b) (4) (1964), * * *.” N.L.R.B. v. Nashville Building and Construction Trades Council, 6 Cir. 1967, 383 F.2d 562. . “We agree with the Board also in its conclusion that the fact that the contractor and subcontractor were engaged on the same construction project, and that the contractor had some supervision over the subcontractor’s work, did not eliminate the status of each as an independent contractor or make the employees of one the employees of the other. The business relationship between independent contractors is too well established in the law to be overridden without clear language doing so. * * * ” N.L.R.B. v. Denver Building and Construction Trades Council, 1951, 341 U.S. 675, 689, 71 S.Ct. 943, 952, 95 L.Ed. 1284. . Denver would be distinguishable from the instant case under the rationale set forth by Lesnick, supra note 3, who poses the crucial question thus; “does the picketing union intend to subject the secondary employer to a loss of the services of his employees broader in impact than would be directly caused by the unavailability, as a result of the complete success of the strike, of the services of the primary employees? If so, the picketing is secondary; otherwise, it is primary.” 62 Colum.L.Rev. at 1414. “The ‘intent’ that is significant * * * is the intent to subject the secondary to pressure different in kind from that generated against him by a primary strike.” Id. at 1412. Under this analysis, where the union dispute is with the general contractor and pressure is put on the neutral subcontractor, the subcontractor is at worst faced with his men off work — a result that would follow if" }, { "docid": "8002717", "title": "", "text": "488, 491 (1st Cir. 1977): “the statutory prohibition only applies when employees of a secondary employer are induced to strike or ... to use other economic pressures against their employer to aid a union that has a dispute with another employer.” The district court interpreted this passage to require a dispute with a “primary employer” before a violation of section 8(b)(4) could be found. As the district court noted, however, this statement was made in the course of dealing with an entirely different issue—whether the union had used the sort of “coercive” measures a violation of the section requires. To be sure, descriptions of the reach of the secondary boycott prohibition are normally couched in terms of union conduct emanating from a primary “labor dispute,” since this is the typical situation in which section 8(b)(4) is, and was meant to be, applied. For example, the Supreme Court has said that enactment of the section was prompted by “[c]ongressional concern over the involvement of third parties in labor disputes not their own.” NLRB v. Local 825, International Union of Operating Engineers, 400 U.S. 297, 302, 91 S.Ct. 402, 406, 27 L.Ed.2d 398 (1971) (emphasis added). However, this language does not suggest that it is permissible under section 8(b)(4) for a union to direct pressure against a neutral employer in order to satisfy objectives unrelated to any “labor dispute” at all. Such an interpretation would be contrary to the congressional purpose behind the section, and we reject it. Cf. National Maritime Union v. NLRB, 342 F.2d 538 (2d Cir.), cert. de nied, 382 U.S. 835, 86 S.Ct. 78, 15 L.Ed.2d 78 (1965); National Maritime Union v. NLRB, 346 F.2d 411, 416-20 (D.C.Cir.), cert. denied, 382 U.S. 840, 86 S.Ct. 90, 15 L.Ed.2d 82 (1965); NLRB v. Twin City Carpenters District Council, 422 F.2d 309, 312-13 (8th Cir. 1970); NLRB v. Local No. 751, Carpenters, 285 F.2d 633, 639 & n.6 (9th Cir. 1960). We think it more rather than less objectionable that a national labor union has chosen to marshal against neutral parties the considerable powers derived by its locals and itself" }, { "docid": "2600098", "title": "", "text": "generally considered to be determinative of a single employer make sense when they are applied in the bargaining obligation context. In this case, as the majority notes, the jury’s determination of the separate employer issue was focused on whether there was centralized control over the labor relations of the two companies. In the ordinary case in which the doctrines variously referred to as “alter ego,” “successorship,” or “single employer” are invoked, the centralized control of labor relations is patently related to the ultimate issue of the bargaining obligation of the employer. In the double breasted operation, however, it would not be unusual to find decentralized control of labor relations, and thus that factor should have no bearing on the treatment of such operations for purposes of secondary boycotts. The inquiry for purposes of determining whether there were separate employers for purposes of the secondary boycott issue is an entirely different one. Congress condemned secondary boycotts because it believed that they “unfairly ... enmesh in a proliferating dispute a person who [is] in truth a ‘neutral,’ a ‘stranger’ to that dispute who was ‘uninvolved’ in the union’s grievance against the primary employer.” See R. Gorman, Labor Law 241 (1976); National Woodwork Mfrs. Ass’n v. NLRB, 386 U.S. 612, 627, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967) (broad policy objective of section 8(b)(4) is “the protection of neutrals against secondary pressure”); NLRB v. Local 810, Steel, Metals, Alloys & Hardware Fabricators, 460 F.2d 1, 5 (2d Cir.) (same), cert. denied, 409 U.S. 1041, 93 S.Ct. 527, 34 L.Ed.2d 491 (1972). The statutory language distinguishes between primary activity, which is protected, and secondary activity, which is not. See proviso to § 8(b)(4)(B) (nothing in the section “shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing”). The legislative history of section 8(b)(4) “securely indicates” that Congress intended the section to prevent only pressure against neutral employers. Production Workers Union v. NLRB, 793 F.2d 323, 328 (D.C.Cir.1986). The Conference Report accompanying the Taft-Hartley Act lists as examples of prohibited conduct only classic secondary boycotts — pressure directed against" }, { "docid": "22074132", "title": "", "text": "federal antitrust laws even though it involved secondary pressure that culminated in the union’s compelling the carrier’s principal patron to break its contract with the carrier and to discharge the carrier from further service. “That which Congress has recognized as lawful,” the Court noted, “this Court has no constitutional power to declare unlawful, by arguing that Congress has accorded too much power to labor organizations.” Id., at 825 n. 1. Congressional concern over labor abuses of the broad immunity granted by the Norris-LaGuardia Act was one of the considerations that resulted in passage of the Taft Hartley Act in 1947, which, among other things, prohibited specified union secondary activity. See National Woodwork Mfrs. Assn. v. NLRB, supra, at 623. The central thrust of that statutory provision was to forbid “a union to induce employees to strike against or to refuse to handle goods for their employer when an object is to force him or another person to cease doing business with some third party.” Carpenters’ Union v. NLRB, 357 U. S. 93, 98. In condemning “specific union conduct directed to specific objectives,” ibid., however, Congress deliberately chose not to subject unions engaging in prohibited secondary activity to the sanctions of the antitrust laws. Section 12 (a) (3) of the Hartley bill, H. R. 3020, 80th Cong., 1st Sess., as initially passed by the House, defined “unlawful concerted activities” to include an “illegal boycott.” 1 NLRB Legislative History of the Labor Management Relations Act, 1947, p. 205 (hereinafter Leg. Hist, of LMRA). Section 12 (c) provided that the Norris-LaGuardia Act should have no “application in any action or proceeding in a court of the United States involving any activity defined in this section as unlaw ful.” 1 Leg. Hist, of LMRA 206-207. The Committee on Education and Labor explained in its report on the Hartley bill: “Illegal boycotts take many forms. . . . Sometimes they are direct restraints of trade, designed to compel people against whom they are engaged in to place their business with some other than those they are dealing with at the time .... Under [§ 12]," }, { "docid": "22629394", "title": "", "text": "by coercing third persons against their will to cease patronizing him by threats of similar injury.'. . . The question in such cases is whether the moral - coercion exercised over a stranger to the original controversy by steps in themselves legal becomes a legal wrong.” See 1 Teller, Labor Disputes and Collective Bargaining § 1.45 (1940). Commentators of the day, while noting the ambiguity which lurked in the definition, discerned its core concept: union pressure directed at a neutral employer the object of which was to induce or coerce him to cease doing business with an employer with whom the union was engaged in a labor dispute. In 1932 Congress enacted the Norris-LaGuardia Act and tipped the scales the other way. Its provisions “established that the allowable area of union activity was not to be restricted, as it had been in the Duplex case, to an immediate employer-employee relation.” United States v. Hutcheson, 312 U. S. 219, 231. Congress abolished, for purposes of labor immunity, the distinction ■ between primary activity between the “immediate disputants” and secondary activity in which the employer disputants and the members of the union do not stand “in the proximate relation of employer and employee....” H. R. Rep. No. 669, 72d Cong., 1st Sess., 8 (1932). Thus, in Hutcheson, supra, the Court held that the Norris--LaGuardia Act immunized a jurisdictional strike trapping a neutral employer in the middle of an “internecine struggle between two unions seeking the favor of the same employer,” supra, at 232. Commentators of the post-Norris-LaGuardia era, as those before, while continuing to deplore the chameleon-like qualities of the term “secondary boycott,” agreed upon its central aspect: pressure tactically directed toward a neutral employer in a labor dispute not his own. Labor abuses of the broad immunity granted by the Norris-LaGuardia Act resulted in the Taft-Hartley Act prohibitions against secondary activities enacted in §8 (b)(4)(A), which, as amended in 1969, is now § 8 (b)(4)(B). As will appear, the basic thrust of the accommodation there effected by Congress was not expanded by the Landrum-Griitin amendments. The congressional design in enacting ." }, { "docid": "22074131", "title": "", "text": "of the NorrisLaGuardia Act, 47 Stat. 70, in 1932 until enactment of the Labor Management Relations Act (the Taft-Hartley Act), 61 Stat. 136, in 1947, union economic pressure directed against a neutral, secondary employer was not subject to sanctions under either federal labor law or antitrust law, at least in the absence of proof that the union was coercing the secondary employer in furtherance of a conspiracy with a nonlabor group. See United States v. Hutcheson, 312 U. S. 219; Allen Bradley Co. v. Electrical Workers, 325 U. S. 797. “Congress abolished, for purposes of labor immunity, the distinction between primary activity between the ‘immediate disputants’ and secondary activity in which the employer disputants and the members of the union do not stand ‘in the proximate relation of employer and employee ....’” National Woodwork Mfrs. Assn. v. NLRB, 386 U. S. 612, 623. In Hunt v. Crumboch, 325 U. S. 821, for example, the Court found that union conduct in forcing a freight carrier out of business was protected activity beyond the reach of the federal antitrust laws even though it involved secondary pressure that culminated in the union’s compelling the carrier’s principal patron to break its contract with the carrier and to discharge the carrier from further service. “That which Congress has recognized as lawful,” the Court noted, “this Court has no constitutional power to declare unlawful, by arguing that Congress has accorded too much power to labor organizations.” Id., at 825 n. 1. Congressional concern over labor abuses of the broad immunity granted by the Norris-LaGuardia Act was one of the considerations that resulted in passage of the Taft Hartley Act in 1947, which, among other things, prohibited specified union secondary activity. See National Woodwork Mfrs. Assn. v. NLRB, supra, at 623. The central thrust of that statutory provision was to forbid “a union to induce employees to strike against or to refuse to handle goods for their employer when an object is to force him or another person to cease doing business with some third party.” Carpenters’ Union v. NLRB, 357 U. S. 93, 98. In condemning" }, { "docid": "2600099", "title": "", "text": "a ‘stranger’ to that dispute who was ‘uninvolved’ in the union’s grievance against the primary employer.” See R. Gorman, Labor Law 241 (1976); National Woodwork Mfrs. Ass’n v. NLRB, 386 U.S. 612, 627, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967) (broad policy objective of section 8(b)(4) is “the protection of neutrals against secondary pressure”); NLRB v. Local 810, Steel, Metals, Alloys & Hardware Fabricators, 460 F.2d 1, 5 (2d Cir.) (same), cert. denied, 409 U.S. 1041, 93 S.Ct. 527, 34 L.Ed.2d 491 (1972). The statutory language distinguishes between primary activity, which is protected, and secondary activity, which is not. See proviso to § 8(b)(4)(B) (nothing in the section “shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing”). The legislative history of section 8(b)(4) “securely indicates” that Congress intended the section to prevent only pressure against neutral employers. Production Workers Union v. NLRB, 793 F.2d 323, 328 (D.C.Cir.1986). The Conference Report accompanying the Taft-Hartley Act lists as examples of prohibited conduct only classic secondary boycotts — pressure directed against a truly neutral party. H.R.Rep. No. 510, 80th Cong., 1st Sess. 43 (1947), reprinted in I Legislative History of the Labor Management Relations Act, 1947, at 546-547, U.S.Code Cong.Serv. 1947, p. 1135. The comments on the floor of the Senate by Senator Robert Taft, a co-sponsor of the Act, further clarify Congressional intent. The senator explained: This provision makes it unlawful to resort to a secondary boycott to injure the business of a third person who is wholly unconcerned in the disagreement between an employer and his employees ____ [Ujnder the common law, a secondary boycott was unlawful____ [But] under the provisions of the Norris-La-guardia Act, it became impossible to stop a secondary boycott or any other kind of strike, no matter how unlawful it may have been at common law. All this provision of the bill does is to reverse the effect of the law as to secondary boycotts. 93 Cong.Rec. 4198 (1947), reprinted in II Legislative History of the Labor Management Relations Act, 1947, at 1106 (emphasis added). This unequivocal legislative history makes" }, { "docid": "22629395", "title": "", "text": "disputants” and secondary activity in which the employer disputants and the members of the union do not stand “in the proximate relation of employer and employee....” H. R. Rep. No. 669, 72d Cong., 1st Sess., 8 (1932). Thus, in Hutcheson, supra, the Court held that the Norris--LaGuardia Act immunized a jurisdictional strike trapping a neutral employer in the middle of an “internecine struggle between two unions seeking the favor of the same employer,” supra, at 232. Commentators of the post-Norris-LaGuardia era, as those before, while continuing to deplore the chameleon-like qualities of the term “secondary boycott,” agreed upon its central aspect: pressure tactically directed toward a neutral employer in a labor dispute not his own. Labor abuses of the broad immunity granted by the Norris-LaGuardia Act resulted in the Taft-Hartley Act prohibitions against secondary activities enacted in §8 (b)(4)(A), which, as amended in 1969, is now § 8 (b)(4)(B). As will appear, the basic thrust of the accommodation there effected by Congress was not expanded by the Landrum-Griitin amendments. The congressional design in enacting . § 8 (b)(4)(A) is therefore crucial to the determination of the scope of §§ 8 (e) and 8 (b)(4)(B). Senator Taft said of its purpose: “This provision- makes it unlawful to resort to a secondary boycott to injure the business of a third ;person who is wholly unconcerned in the disagreement between an employer and his employees-. . . . [UJnder the provisions of the Norris-LaGuardia Act, it became impossible to stop a secondary boycott or any other kind of a strike, no matter how unlawful it may have been at common law. All this provision of the bill does is to reverse the effect of the law as to secondary boycotts.” (Emphasis supplied.) Senator Taft and others frequently sounded this note that § 8 (b)(4)(A) was designed to eliminate the “secondary boycott,” and its proponents uniformly cited examples of union conduct which evidenced labor efforts to draw in neutral employers through pressure calculated to induce them to cease doing business with the primary employer. And the Senate Committee Report carefully characterized the conduct prohibited" }, { "docid": "8002718", "title": "", "text": "International Union of Operating Engineers, 400 U.S. 297, 302, 91 S.Ct. 402, 406, 27 L.Ed.2d 398 (1971) (emphasis added). However, this language does not suggest that it is permissible under section 8(b)(4) for a union to direct pressure against a neutral employer in order to satisfy objectives unrelated to any “labor dispute” at all. Such an interpretation would be contrary to the congressional purpose behind the section, and we reject it. Cf. National Maritime Union v. NLRB, 342 F.2d 538 (2d Cir.), cert. de nied, 382 U.S. 835, 86 S.Ct. 78, 15 L.Ed.2d 78 (1965); National Maritime Union v. NLRB, 346 F.2d 411, 416-20 (D.C.Cir.), cert. denied, 382 U.S. 840, 86 S.Ct. 90, 15 L.Ed.2d 82 (1965); NLRB v. Twin City Carpenters District Council, 422 F.2d 309, 312-13 (8th Cir. 1970); NLRB v. Local No. 751, Carpenters, 285 F.2d 633, 639 & n.6 (9th Cir. 1960). We think it more rather than less objectionable that a national labor union has chosen to marshal against neutral parties the considerable powers derived by its locals and itself under the federal labor laws in aid of a random political objective far removed from what has traditionally been thought to be the realm of legitimate union activity. Cf. NLRB v. Washington-Oregon Shingle Weavers’ District Council, 211 F.2d 149, 152 (9th Cir. 1954) (boycott ordered “not because of any dispute, but merely because the union dislikes the producer for any reason, or for no reason, . .. would appear even more reprehensible”). The labor laws do not confer upon bargaining representatives a voice in the conduct of foreign policy. The fact that there have been few, if any, cases that have applied the secondary boycott provisions to activity motivated by a “purely political dispute” illustrates little more than the rarity with which labor unions have seen fit to engage in this sort of “political strike” conduct. The language of section 8(b)(4) and the congressional objectives that prompted its enactment point to no reason why the section should not prohibit such secondary pressure, for whatever reasons motivated. The potential danger of uncontrolled, whimsical activity is obvious." }, { "docid": "8002719", "title": "", "text": "under the federal labor laws in aid of a random political objective far removed from what has traditionally been thought to be the realm of legitimate union activity. Cf. NLRB v. Washington-Oregon Shingle Weavers’ District Council, 211 F.2d 149, 152 (9th Cir. 1954) (boycott ordered “not because of any dispute, but merely because the union dislikes the producer for any reason, or for no reason, . .. would appear even more reprehensible”). The labor laws do not confer upon bargaining representatives a voice in the conduct of foreign policy. The fact that there have been few, if any, cases that have applied the secondary boycott provisions to activity motivated by a “purely political dispute” illustrates little more than the rarity with which labor unions have seen fit to engage in this sort of “political strike” conduct. The language of section 8(b)(4) and the congressional objectives that prompted its enactment point to no reason why the section should not prohibit such secondary pressure, for whatever reasons motivated. The potential danger of uncontrolled, whimsical activity is obvious. It must be remembered that a union’s ability to apply crippling secondary pressure is greatly enhanced by its position under the federal labor laws; without even the justification of a labor-oriented motive, such forbidden secondary activity is a fortiori precluded. Likewise, we reject the view, apparently adopted by the district court, that section 8(b)(4) may not be applied to national boycotts undertaken as a form of “political expression.” To our knowledge, the only other precedent that would support such a sweeping proposition is NLRB v. ILA (Ocean Shipping Services), 332 F.2d 992 (4th Cir. 1964), which involved the ILA’s refusal, during the height of the Cuban missile crisis in 1962, to load ships that were trading or had traded with Cuba. The court decided the case on the ground that the NLRB lacked jurisdiction over the dispute, but “deem[ed] it appropriate to consider further” whether an unfair labor practice had been alleged. The court then suggested that a politically motivated and selective boycott would not violate section 8(b)(4) because “if the bare refusal to work" } ]

[ { "docid": "8732819", "title": "", "text": "right to confront and cross-examine witnesses. However, these omissions by the district court are not sufficient to require us to vacate the district court’s judgment. In McCarthy v. United States, 394 U.S. 459,'89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), the Supreme Court held that trial judges must strictly adhere to the requirements of Rule 11 when accepting a guilty plea from a criminal defendant. Id. at 463-64, 89 S.Ct. at 1169-1170. The Court stated that Rule 11 is designed: (1) to assist the district judge in making the constitutionally required determination that a guilty plea is truly voluntary; and (2) to produce a complete record of the factors relevant to the voluntariness determination. It was further held that Rule 11 also requires the district judge to directly inquire of a defendant as to whether he understands the nature of the charge against him and is aware of the consequences of his plea. 394 U.S. at 464-467, 89 S.Ct. at 1169-1171. In 1983, Congress enacted subdivision (h) of Rule 11. This amendment incorporates the harmless error standard of Rule 52(a) of the Federal Rules of Criminal Procedure into Rule 11. Consequently, a guilty plea entered pursuant to Rule 11 will now be reversed only where the trial court, in accepting the guilty plea, violates a substantial right of the criminal defendant. See Fed.R.Crim.P. 11(h) advisory committee note. The adoption of this recent amendment to Rule 11 alters the approach this Court must now use in reviewing guilty pleas. Prior to the enactment of Rule 11(h), this Court addressed challenges to Rule 11 guilty pleas in two ways. Where the guilty plea was the subject of a collateral attack, substantial compliance with Rule 11 was sufficient. United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979); Fontaine v. United States, 526 F.2d 514 (6th Cir.1975). Strict compliance with Rule 11 was required by this Court where the guilty plea was being reviewed on direct appeal. See, e.g., United States v. Stanton, 703 F.2d 974 (6th Cir.1983). Since Rule 11(h) requires reversal only where substantial rights have been affected," } ]

[ { "docid": "23386318", "title": "", "text": "United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir.2005). In order to show plain error, a defendant must demonstrate that (1) error existed, (2) the error was plain, (3) the error affected his substantial rights, and (4) the error seriously affected the fairness, integrity or public reputation of judicial proceedings. Id. A plain error is an error that is obvious and clear under current law. United States v. Humphrey, 164 F.3d 585, 588 (11th Cir.1999). Federal Rule of Criminal Procedure Rule 11 “imposes upon a district court the obligation and responsibility to conduct an inquiry into whether the defendant makes a knowing and voluntary guilty plea.” United States v. Hernandez-Fraire, 208 F.3d 945, 949 (11th Cir.2000). That inquiry “must address three core concerns underlying Rule 11: ‘(1) the guilty plea must be free from coercion; (2) the defendant must understand the nature of the charges; and (3) the defendant must know and understand the consequences of his guilty plea.’ ” Id. (quoting United States v. Jones, 143 F.3d 1417, 1418-19 (11th Cir.1998)). Failure to address any of these concerns will amount to plain error. Id. However, a variance from the requirements of Rule 11 is harmless error if it does not affect substantial rights, see Fed. R.Crim.P. 11(h); United States v. Dominguez Benitez, 542 U.S. 74, 80, 124 S.Ct. 2333, 2338, 159 L.Ed.2d 157 (2004), and “a defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court committed plain error under Rule 11, must show a reasonable probability that, but for the error, he would not have entered the plea,” Moriarty, 429 F.3d at 1020 (quoting Dominguez Benitez, 542 U.S. at 83, 124 S.Ct. at 2340) (internal quotation marks omitted). Although Gandy characterizes the issue as a breach of a plea agreement, the prosecutor’s mistaken representations were not an enforceable contract, as there was no written agreement, and there is no indication in the record, nor does Gandy assert, that the prosecutor agreed to make a sentencing recommendation. However, because the magistrate judge failed to inform Gandy of the correct mandatory" }, { "docid": "22841030", "title": "", "text": "the context of a Rule 11 error, prejudice to the defendant means “a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 2340, 159 L.Ed.2d 157 (2004). We may consider the whole record when assessing whether a Rule 11 error affected Brown’s substantial rights. See United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002). Even if Brown carries his burden of establishing clear, prejudicial error, we may not remedy that error unless it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Puckett v. United States, 556 U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009) (quotation marks, citation, and bracket omitted). A guilty plea is knowingly and voluntarily made if the defendant enters his plea without coercion and understands the nature of the charges and the consequences of his plea. See United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir.2005) (per curiam). The consequences of a guilty plea include “any maximum possible penalty, including imprisonment, fine, and term of supervised release[.]” Fed. R.Crim.P. 11(b)(1)(H). Here, the plea agreement and the district court incorrectly advised Brown that the maximum term of supervised release was three years, instead of life. See 18 U.S.C. § 3583(k) (2009) (mandatory supervised release term for violating 18 U.S.C. § 2250 is five years to life). Thus, as the government concedes, the error in this case was plain. See United States v. Carey, 884 F.2d 547, 548 (11th Cir.1989) (per curiam) (“[I]t is clear that the district court erred in not informing appellant at the plea hearing that appellant, if sentenced to prison, would be subject to a term of supervised release.”). Nevertheless, Brown has not carried his burden of showing prejudice. In Bejarano, both the written plea agreement and the district court during the plea colloquy failed to inform Bejarano that his sentence would include a mandatory minimum term of five years of supervised release. See Bejarano, 249 F.3d at 1305-06. Instead, the plea agreement and the" }, { "docid": "15416091", "title": "", "text": "the time of the plea are subject to plain error review under Rule 52(b) of the Federal Rules of Criminal Procedure. United States v. Vonn, 535 U.S. 55, 62-63, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). Plain error review requires a defendant to demonstrate that “(1) there was error, (2) the error was plain, (3) the error prejudicially affected his substantial rights, and (4) the error seriously affected the fairness, integrity or public reputation of judicial proceedings.” United States v. Flaharty, 295 F.3d 182, 195 (2d Cir.2002) (internal quotation marks and brackets omitted). To be plain, an error of the district court must be “obviously wrong in light of existing law.” United States v. Pipola, 83 F.3d 556, 561 (2d Cir.1996). Additionally, to show that a Rule 11 violation was plain error, the defendant must demonstrate “that there is ‘a reasonable probability that, but for the error, he would not have entered the plea.’” United States v. Vaval, 404 F.3d 144, 151 (2d Cir.2005) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). The Government asserts that Youngs did not timely object during his plea proceeding, and therefore this Court should review his claim under the plain error standard. Youngs does not disagree, and issues not argued in the briefs are considered waived. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998). Moreover, regardless of the standard of review, we hold that the district court did not err by accepting Youngs’s guilty plea without advising him of the civil commitment implications of the Act. The United States Supreme Court has concluded that a defendant can make an intelligent and voluntary guilty plea satisfying due process if he is “fully aware of the direct consequences” of a guilty plea. Brady, 397 U.S. at 755, 90 S.Ct. 1463 (emphasis added) (adopting the language of the Fifth Circuit in Shelton v. United States, 246 F.2d 571, 572 n. 2 (5th Cir.1957) (en banc), rev’d on other grounds, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958)). However, “[cjertain possible consequences of a" }, { "docid": "3211562", "title": "", "text": "1166, 22 L.Ed.2d 418 (1969)). Further, where, as here, the defendant has failed to make a timely Rule 11 objection in the district court, we conduct only plain-error review, see United States v. Dominguez Benitez, 542 U.S. 74, 76, 80, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004); United States v. Vonn, 535 U.S. 55, 58-59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). Under the plain-error standard, we decline to reverse unless the defendant “ ‘demonstrate^ that (1) there was error, (2) the error was plain, (3) the error preju-dicially affected his substantial rights, and (4) the error seriously affected the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Adams, 768 F.3d 219, 223 (2d Cir. 2014) (quoting United States v. Cook, 722 F.3d 477, 481 (2d Cir. 2013)), cert. denied, — U.S. -, 135 S.Ct. 1726, 191 L.Ed.2d 694 (2015). “In order to establish that a Rule 11 violation affected ‘substantial rights,’ the defendant must show ‘that there is “a reasonable probability that, but for the error, he would not have entered the plea.” ’ ” United States v. Pattee, 820 F.3d 496, 505 (2d Cir.) (quoting United States v. Vaval, 404 F.3d 144, 151 (2d Cir. 2005) (which was quoting Dominguez Benitez, 542 U.S. at 83, 124 S.Ct. 2333)), cert. denied, — U.S. -, 137 S.Ct. 222, 196 L.Ed.2d 171 (2016). Although Martinez contends that he “was openly confused and defensive about the facts surrounding the § 924(c) Count and did not understand the ways in which he could be held liable for this charge” (Martinez brief on appeal at 45), the record does not support this contention. In the plea hearing colloquy quoted in detail in Part V.A. above, the court explained that since Martinez was charged in Count Three with “aiding and abetting” the use of firearms, “the government d[id]n’t have to prove that [Martinez] actually carried a gun or a firearm,” and that he could be “found guilty of Count Three if the jury [were to] find[ ] beyond a reasonable doubt that the government has proven that another person actually committed" }, { "docid": "23020355", "title": "", "text": "file his motion for reconsideration, not because of his lack of knowledge of procedure. Accordingly, the district court did not abuse its discretion in concluding that Oliver waived his argument that the paper found in his clothes pocket should be suppressed. See Knezek, 964 F.2d at 397. B. Appeal Waiver Oliver contends that the district court failed to comply with the requirements of Federal Rule of Criminal Procedure ll(b)(l)(N), rendering his appeal waiver ineffective. Specifically, Oliver complains that the district court’s description of the appeal waiver was confusing and that the judge failed to ensure that Oliver understood the terms of the plea agreement, particularly the exceptions. Rule ll(b)(l)(N) requires the district court, before accepting a plea of guilty, to address the defendant personally in open court and to make sure the defendant understands the terms of any plea agreement provision waiving the right to appeal or to attack the sentence collaterally. Fed.R.CrimP. ll(b)(l)(N). Because Oliver did not specifically object to the district court’s plea colloquy as it pertains to Rule ll(b)(l)(N), this court reviews for plain error. United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Reyna, 358 F.3d 344, 354 (5th Cir.) (Jones, J., concurring). The plain error inquiry requires Oliver to demonstrate that his substantial rights were affected by the district judge’s alleged failure to explain the terms of the appeal waiver adequately. United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005). When reviewing under a plain error standard, this “court may consult the whole record when considering the effect of any error on substantial rights.” Vonn, 535 U.S. at 59, 122 S.Ct. 1043. Moreover, to justify reversal for a district court’s error in a Rule 11 admonishment, the defendant “must show a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). In addition, this court may correct a plain error only if it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”" }, { "docid": "21476969", "title": "", "text": "are turned on demonstrating the substan-tiality of any effect on a defendant’s rights: the defendant who sat silent at trial has the burden to show that his “substantial rights” were affected. [United States v.] Olano, 507 U.S. [725,] 734-735 [113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)]. And because relief on plain-error review is in the discretion of the reviewing court, a defendant has the further burden to persuade the court that the error “ ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. at 736 [113 S.Ct. 1770] (quoting United States v. Atkinson, 297 U.S. 157, 160 [56 S.Ct. 391, 80 L.Ed. 555] (1936)). 535 U.S. at 62-63, 122 S.Ct. 1043. Under United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004), Sura was “obliged to show a reasonable probability that, but for the [Rule 11] error, he would not have entered the plea.” Id. at 76, 124 S.Ct. 2333. Before Rule 11 was amended, we had held in United States v. Wenger, 58 F.3d 280 (7th Cir.1995), that a district judge’s failure to address an appeal waiver during the Rule 11 colloquy did not warrant setting aside a plea agreement as involuntary. We noted particularly that “warnings about waivers of appeal are not to be found” in Rule 11, and that “Rule ll’s value is as a formulary.” Id. at 282. We also commented that “[i]f the [plea] agreement is voluntary, and taken in compliance with Rule 11, then the waiver of appeal must be honored.” Id. at 283. Since 1999, a plea taken in compliance with Rule 11 must include the very kind of specific alert to a waiver of the right to appeal that we noted was not required under the rule in 1995. The “formulary” has changed and it now requires more. Thus, the rationale of Wenger is consistent with a finding that because Sura’s acceptance of the plea agreement was not taken in compliance with Rule 11, it also might not have been voluntary. Since the addition of Rule ll(b)(l)(N), we have addressed it in four" }, { "docid": "19793253", "title": "", "text": "order for the district court’s error to be plain, we must find that it: (1) affected Polak’s substantial rights; and (2) seriously affected the fairness, integrity, or public reputation of the judicial proceedings. United States v. McMath, 559 F.3d 657, 667 (7th Cir.2009) (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). It is Polak’s burden to demonstrate that the district court’s failure to abide by Rule 11 affected his substantial rights. United States v. Olano, 507 U.S. 725, 734-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We must look to the totality of the circumstances surrounding the negotiation of the plea agreement and the court’s acceptance of the plea to determine whether the district court’s failure to properly inquire about the appellate waiver during the plea colloquy constitutes plain error. Sura, 511 F.3d at 661. In doing so, the most important question to ask is whether the plea was truly voluntary. Id. In making this evaluation, we may examine evidence outside the Rule 11 colloquy. United States v. Vonn, 535 U.S. 55, 74-75, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). It is a defendant’s burden to show that his plea was not voluntary. Sura, 511 F.3d at 661. To do so, he must “show a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 76, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). If “the safeguard required by Rule 11 is missing, the record must reveal an adequate substitute for it, and the defendant must show why the omission made a difference to him.” Sura, 511 F.3d at 667. In Sura, although the district court asked whether the defendant read his plea agreement and advised him that he was relinquishing certain rights, it failed to inquire about the defendant’s knowledge of an appellate waiver during the plea colloquy. Id. at 656-57. We found that, in the absence of a proper and complete Rule 11 colloquy, the defendant’s plea was not knowing and voluntary. Id. at 662-63. In determining this, we" }, { "docid": "22841029", "title": "", "text": "and discussed it with Brown. Brown himself acknowledged that he understood what was contained in the PSI. After Brown’s attorney affirmed that he had no objections to the PSI, the district court adopted the PSI as published. The court ultimately sentenced Brown to 21 months of imprisonment followed by a life term of supervised release. Brown did not object to the life term of supervised release. This appeal followed. II. DISCUSSION A. Whether a Rule 11 Violation Invalidated Brown’s Guilty Plea Brown first contends that his guilty plea was unknowing and involuntary because the district court committed plain error when it informed him that he faced a maximum three-year term of supervised release. The government concedes error but contends that no prejudice has been shown. Because Brown did not object to the Rule 11 colloquy in district court, we review for plain error. See United States v. Bejarano, 249 F.3d 1304, 1306 (11th Cir.2001) (per curiam). This requires Brown to show a clear error that 'prejudiced him by affecting his substantial rights. See id. In the context of a Rule 11 error, prejudice to the defendant means “a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 2340, 159 L.Ed.2d 157 (2004). We may consider the whole record when assessing whether a Rule 11 error affected Brown’s substantial rights. See United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002). Even if Brown carries his burden of establishing clear, prejudicial error, we may not remedy that error unless it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Puckett v. United States, 556 U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009) (quotation marks, citation, and bracket omitted). A guilty plea is knowingly and voluntarily made if the defendant enters his plea without coercion and understands the nature of the charges and the consequences of his plea. See United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir.2005) (per curiam). The consequences of a" }, { "docid": "15364893", "title": "", "text": "at 1166. Beck did not, however, address the alleged error in the context of Rule 11(b)(3) and the colloquy designed to ensure a knowing and voluntary plea. And notwithstanding the statements about “waiver” of a challenge to the factual basis, the court ultimately concluded that there was “no plain error” in the district court’s acceptance of the guilty plea, id. at 1167, thus sending arguably mixed signals about the availability of appellate review. We think the earlier decision in Marks, augmented by the plain-error analysis of the Supreme Court in Vonn and Dominguez Benitez, indicates the correct approach. Accord Garcia, 587 F.3d at 520-21; United States v. Arenal, 500 F.3d 634, 637 (7th Cir.2007); United States v. Caraballo-Rodriguez, 480 F.3d 62, 69-70 (1st Cir.2007); United States v. Evans, 478 F.3d 1332, 1338 (11th Cir.2007); United States v. Castro-Trevino, 464 F.3d 536, 540-41 (5th Cir.2006); United States v. Martinez, 277 F.3d 517, 531-32 (4th Cir.2002). Frook did not object to the district court’s determination that there was an adequate factual basis, so we review only for plain error. To obtain relief on plain error review, Frook must show that the district court committed an error that was obvious and that affected his substantial rights. United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). A defendant asserting a Rule 11 violation satisfies the substantial-rights prong of the inquiry if he demonstrates “a reasonable probability that, but for the error, he would not have entered the plea.” Dominguez Benitez, 542 U.S. at 83, 124 S.Ct. 2333. If the first three criteria are met, then this court should correct the error if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Olano, 507 U.S. at 736, 113 S.Ct. 1770 (internal quotation omitted). Rule 11(b)(3) requires that, “[bjefore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.” This provision is “satisfied by the existence of sufficient evidence at the time of the plea upon which a court may reasonably determine that the defendant likely committed the" }, { "docid": "11297594", "title": "", "text": "Fed. R. Cbim. P. 32(e)(2). I, Subject Matter Jurisdiction Sanders challenges the district court’s subject matter jurisdiction. A criminal, case is properly before the district court if the indictment charges the defendant “with an offense against the United States in language similar to that used by the relevant statute.” United States v. Scruggs, 714 F.3d 258, 262 (5th Cir. 2013) (quotation marks omitted). This indictment so charged Sanders, so the district court had subject matter jurisdiction. II. Coerced Guilty Plea, ‘Sanders argues that his guilty plea was “made under duress and coercion,” thereby invalidating the plea and the plea agreement. The Government contends that review is for plain error because Sanders did not object to the sufficiency of the plea colloquy. On the other hand, review is for harmless error “[w]hen a defendant objects at the district court level to the court’s failure to comply with Rule 11 during the plea colloquy.” United States v. Powell, 354 F.3d 362, 367 (5th Cir. 2003). Sandérs repeatedly filed motions to withdraw his guilty plea at the district court level. The difficulty with deciding the effectiveness of these motions in preserving error is that Sanders filed each motion while he was represented by counsel. As a result, the court struck some of Sanders’s personal filings from the record. The district court was certainly correct that Sand ers was not entitled to representation by himself and by appointed counsel. United States v. Daniels, 572 F.2d 535, 540 (5th Cir. 1978). We conclude that there was no properly filed motion preserving the issue of the validity of the plea. We thus engage in plain-error review. Sanders must show an obvious error that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). There must be “a reasonable probability that, but for the eiTor, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). The court may then, in its discretion, correct the error only if it “seriously affects the fairness, integrity or public" }, { "docid": "18131293", "title": "", "text": "motion and sentenced Coleman to 324 months’ imprisonment. The court then imposed a ten-year term of supervised release that included “standard conditions.” In its. oral pronouncement of these conditions, the court did not discuss 18 U.S.C. § 3553(a) or describe what the “standard conditions” were. Coleman did not object to the plea colloquy or the conditions of supervised release. He now appeals both his conviction and sentence, arguing that his plea colloquy did not inform him of the collateral-attack waiver as required, and that several conditions- of his supervised release are unconstitutionally vague. II Before a district court accepts a guilty plea, Rule 11 requires it to address the defendant personally in open court and determine that he understands “the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Fed.R.Crim.P. 11(b)(1)(N). The district judge here covered the appellate waiver, but did not personally inform the defendant of the collateral-attack waiver. This was a Rule 11 error. Coleman did not object at the time, and so under plain-error review, he cannot undo his conviction unless he shows the error affected his substantial rights. United States v. Polak, 573 F.3d 428, 431 (7th Cir.2009). This means he must establish “a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 76, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). Compliance with Rule 11 is not meant to' exalt ceremony over substance. United States v. Davila, — U.S. -, 133 S.Ct. 2139, 2147, 186 L.Ed.2d 139 (2013) (quoting Advisory Committee’s 1983 Note 749). In this context, the defendant’s burden stems from the “particular importance of the finality of guilty pleas” and so “should not be too easy.” Dominguez Benitez, 542 U.S. at 82, 124 S.Ct. 2333. If the record reveals an adequate substitute for the missing Rule 11 safeguard, and the defendant fails to show why the omission made a difference to him, his substantial rights were not affected. See United States v. Sura, 511 F.3d 654, 662 (7th Cir.2007). We look at the entire" }, { "docid": "22149728", "title": "", "text": "2004) requires Murdock to show a reasonable probability that, but for the Rule 11 violation by the district court, he would not have entered a plea of guilty. The Court in Dominguez Benitez held “that a defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court committed plain error under Rule 11, must show a reasonable probability that, but for the error, he would not have entered the plea.” 542 U.S. at-, 124 S.Ct. at 2340 (emphasis added). We decline to adopt the government’s view of this issue, and instead conclude that Dominguez Benitez is inapplicable here because Murdock is not seeking to reverse his conviction, but merely to void the appellate waiver provision in order to challenge his sentence. See United States v. Arellano-Gallegos, 387 F.3d 794, 797 (9th Cir.2004) (“Indeed, Arellano does not appeal his conviction. Cf. United States v. Benitez, 542 U.S. 74, 124 S.Ct. 2333, 159 L.E.2d 157 (2004). He only appeals from his sentence.”) We therefore will not require that Murdock show that, but for the district court’s failure to discuss the appellate waiver provision of the plea agreement, he would not have pleaded guilty. Instead, we adhere to the rule set forth in United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002), which instructs us to review violations of Rule 11 for plain error if the defendant did not object before the district court. A defendant bears the burden of proof on plain error review, id. at 62, 122 S.Ct. 1043, and must show that there is “1) error, 2) that is plain, and 3) that affects substantial rights. If all three conditions are met, an appellate court may exercise its discretion to notice a forfeited error, but only if 4) the error seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citations and internal quotation marks omitted). C. Whether the district court’s failure to discuss the appellate waiver provision with Murdock" }, { "docid": "19900621", "title": "", "text": "and present evidence and compel the attendance of witnesses, the district court clearly erred. See Fed.R.Crim.P. 11(b)(1)(B), (C), (E); Plea Tr. at 3 8. Dorsey has thus satisfied the first requirement for plain error. See Baker, 489 F.3d at 371. In order to establish that the court’s error affected his substantial rights, however, he “must show a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). Although Dorsey makes the argument that, had the district court informed him of the rights it omitted, he would not have pleaded guilty, Appellants’ Br. 24, we are not persuaded. The court’s omissions caused him to plead guilty, he asserts, because in their absence he “believed he had no choice but to” enter a guilty plea. Id. For several reasons, this assertion defies belief. First, Dorsey read and signed a plea agreement informing him of his trial rights. Dorsey Plea Agr. at 5; see Dominguez Benitez, 542 U.S. at 85, 124 S.Ct. 2333 (defendant’s familiarity with plea agreement “tends to show that the Rule 11 error made no difference to the outcome”); cf. In re Sealed Case, 283 F.3d at 355 (Rule 11 omission not plain error in part because of defendant’s familiarity with factual proffer covering omitted content). Indeed, during the plea collo quy, the court asked Dorsey if he had been “able to understand and read the plea agreement,” to which he responded, “Yes, ma’am.” Plea Tr. at 39. Second, Dorsey acknowledged during his plea hearing that his lawyer had advised him as to his “choices” and his “options.” Plea Tr. at 39-40; see In re Sealed Case, 283 F.3d at 355 (Rule 11 omission not plain error in part because defendant “was represented and advised by counsel throughout”). Third, Dorsey had just sat through complete Rule 11 plea colloquies with Dodd and with Robinson. Plea Tr. at 1-38. While Dorsey may not have been paying strict attention (an assertion he does not directly make), his presence throughout two complete plea" }, { "docid": "2200273", "title": "", "text": "court spell out the elements of the charge in order to inform the defendant adequately.” In re Sealed Case, 283 F.3d 349, 354 (D.C.Cir.2002) (citing United States v. Liboro, 10 F.3d 861, 865 (D.C.Cir.1993)). Instead, a plea colloquy must, “based on the totality of the circumstances, lead a reasonable person to believe that the defendant understood the nature of the charge.” United States v. Ahn, 231 F.3d 26, 33 (D.C.Cir.2000) (citations omitted) (internal quotation marks omitted). This is the focus of any inquiry on appeal. Therefore, a trial judge’s failure to fully spell out the elements of a charge, without more, may be insufficient to sustain a challenge under Rule 11. In normal circumstances, if a Rule 11 error occurs during a plea hearing and the defendant objects, the Government carries the burden of demonstrating that the error was harmless. In re Sealed Case, 283 F.3d at 351-52; see also Fed. R.Crim.P. 11(h). If, however, an alleged error is committed without objection from the defendant, then the defendant carries the burden on appeal of demonstrating “plain error” pursuant to Rule 52(b) of the Federal Rules of Criminal Procedure. See United States v. Dominguez Benitez, 542. U.S. 74, 80, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (confirming that “when a defendant is dilatory in raising Rule 11 error ... reversal is not in order unless the error is plain” (citations omitted)). Because Moore raised no objections during his plea hearing, save for expressing concerns about the amount of restitution, he now bears the burden of showing that, during the plea colloquy, (1) the District Court erred, (2) the error was clear or obvious, (3) the error affected his substantial rights, and (4) the error “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citation omitted) (internal quotation marks omitted). In determining whether the District Court’s colloquy with the defendant “would lead a reasonable person to believe that the defendant understood the nature of the charge,” Dewalt, 92 F.3d at 1212 (citation omitted) (internal quotation" }, { "docid": "19836553", "title": "", "text": "went to trial. The Court held that a defendant who does not lodge a timely objection to Rule 11 error in the district court must satisfy the plain error standard in Federal Rule of Criminal Procedure 52(b). Id. at 58-59, 122 S.Ct. 1043. In a later case, the Court clarified the showing a defendant must make to obtain relief for an unpreserved claim of Rule 11 error under the third prong of the plain error test. United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). The Court held that “a defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court committed plain error under Rule 11, must show a reasonable probability that, but for the error, he would not have entered the plea.” Id. at 83, 124 S.Ct. 2333. In Borrero-Acevedo, as a matter of first impression, we applied Vonn and Dominguez Benitez to a defendant’s claim that his waiver of appellate rights should be set aside because the district court failed to comply with Rule 11(b)(1)(N) at his change-of-plea colloquy. We held that “the plain error standard applies to unpreserved claims of violations of Fed.R.Crim.P. 11(b)(1)(N),” reasoning that Vonn was not by its terms restricted to particular types of Rule 11 errors. Borrero-Acevedo, 533 F.3d at 13, 16. We further held that, in order to establish that the Rule 11(b)(1)(N) error affected his substantial rights under the third prong of the plain error test, the defendant must show “a reasonable probability that he would not have entered the plea had the error not been made.” Id. at 13-14. Sotirion concedes that his unpreserved Rule 11(b)(1)(N) challenge to the waiver is subject to plain error review under Vonn and Borrero-Acevedo. “In order to show plain error, a defendant must demonstrate that there is (1) error, (2) that is plain, and (3) that affect[s] substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or" }, { "docid": "22219842", "title": "", "text": "well as his rights as a criminal defendant.” United States v. Vonn, 535 U.S. 55, 62, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); see also United States v. Wood, 378 F.3d 342, 349 (4th Cir.2004) (explaining that the plea colloquy is the avenue by which the court conclusively “establishes] that the defendant knowingly and voluntarily enters his plea”); United States v. Standiford, 148 F.3d 864, 868 (7th Cir.1998) (“The whole point of the Rule 11 colloquy is to establish that the plea was knowingly and voluntarily made.”). We “accord deference to the trial court’s decision as to how best to conduct the mandated colloquy with the defendant.” United States v. DeFuseo, 949 F.2d 114, 116 (4th Cir.1991). Because Moussaoui’s claims are raised for the first time on appeal, our review is for plain error. See Vonn, 535 U.S. at 71, 122 S.Ct. 1043. Moussaoui must therefore establish (1) error; (2) that was plain; and (3) that affected his substantial rights, i.e., “a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominquez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004); see United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Even then, the court will not “correct the forfeited error ... unless [it] seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 731-32, 113 S.Ct. 1770. A. Nature of the Charges Moussaoui claims that the district court failed to inform him of the nature of the charges and ensure that he understood them. See Fed.R.Crim.P. 11(b)(1)(G). Specifically, he contends that the Indictment charged him with participation in the 9/11 attacks, but he was led to believe that he was pleading guilty to a different conspiracy. We disagree. As an initial premise, we reject Moussaoui’s claim that the Indictment charged him only with conspiring to personally participate in the 9/11 attacks as a 9/11 hijacker. The Indictment charged Moussaoui with six conspiracy counts arising out of al Qaeda’s plan to hijack airplanes and fly them into designated" }, { "docid": "19900620", "title": "", "text": "Sent. Tr. at 23 (assessing Dodd’s sentencing prospects under the “guidelines as they now exist”). Appellant Dorsey also raises a separate claim, contending that the district court failed to advise him of certain trial rights pursuant to Rule 1 1(b)(1). He makes this objection for the first time on appeal and therefore we review for plain error only. See In re Sealed Case, 283 F.3d 349, 352 (D.C.Cir.2002). “To prevail under the plain error standard, an appellant bears the burden of demonstrating that (1) the court clearly erred, (2) the error implicated the appellant’s substantial rights, and (3) the error has ‘seriously affected the fairness, integrity or public reputation of the judicial proceedings.’ ” Baker, 489 F.3d at 371 (quoting In re Sealed Case, 283 F.3d at 352). Dorsey was the last of the appellants to plead guilty on January 17, 2007. Plea Tr. By failing to separately advise Dorsey of several trial rights, including the right to plead not guilty, be tried by a jury, confront and cross-examine witnesses, be protected from self-incrimination, testify and present evidence and compel the attendance of witnesses, the district court clearly erred. See Fed.R.Crim.P. 11(b)(1)(B), (C), (E); Plea Tr. at 3 8. Dorsey has thus satisfied the first requirement for plain error. See Baker, 489 F.3d at 371. In order to establish that the court’s error affected his substantial rights, however, he “must show a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). Although Dorsey makes the argument that, had the district court informed him of the rights it omitted, he would not have pleaded guilty, Appellants’ Br. 24, we are not persuaded. The court’s omissions caused him to plead guilty, he asserts, because in their absence he “believed he had no choice but to” enter a guilty plea. Id. For several reasons, this assertion defies belief. First, Dorsey read and signed a plea agreement informing him of his trial rights. Dorsey Plea Agr. at 5; see Dominguez Benitez, 542 U.S." }, { "docid": "18131294", "title": "", "text": "he cannot undo his conviction unless he shows the error affected his substantial rights. United States v. Polak, 573 F.3d 428, 431 (7th Cir.2009). This means he must establish “a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 76, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). Compliance with Rule 11 is not meant to' exalt ceremony over substance. United States v. Davila, — U.S. -, 133 S.Ct. 2139, 2147, 186 L.Ed.2d 139 (2013) (quoting Advisory Committee’s 1983 Note 749). In this context, the defendant’s burden stems from the “particular importance of the finality of guilty pleas” and so “should not be too easy.” Dominguez Benitez, 542 U.S. at 82, 124 S.Ct. 2333. If the record reveals an adequate substitute for the missing Rule 11 safeguard, and the defendant fails to show why the omission made a difference to him, his substantial rights were not affected. See United States v. Sura, 511 F.3d 654, 662 (7th Cir.2007). We look at the entire record to assess the probability that Coleman would have exercised his right to trial but for the trial court’s failure to personally address the collateral-attack waiver. See Davila, 133 S.Ct. at 2150; United States v. Vonn, 535 U.S. 55, 74-75, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Williams, 559 F.3d 607, 613 (7th Cir.2009). Coleman has not met his burden. The written plea agreement and his admissions that his lawyer explained the agreement to him and he understood the agreement — presumed to be true, see United States v. Griffin, 521 F.3d 727, 730 (7th Cir.2008) — are adequate substitutes for the verbal in-court colloquy about the collateral-attack waiver. The district court noted a concern that Coleman was semi-illiterate, but the record as a whole reveals that Coleman corresponded in writing with his lawyer, said he could read and write, and had the agreement read to him verbatim by his lawyer. The language of the collateral-attack waiver, although containing some cumbersome phrases apparently meant to ensure that Coleman was making a personal" }, { "docid": "23386319", "title": "", "text": "address any of these concerns will amount to plain error. Id. However, a variance from the requirements of Rule 11 is harmless error if it does not affect substantial rights, see Fed. R.Crim.P. 11(h); United States v. Dominguez Benitez, 542 U.S. 74, 80, 124 S.Ct. 2333, 2338, 159 L.Ed.2d 157 (2004), and “a defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court committed plain error under Rule 11, must show a reasonable probability that, but for the error, he would not have entered the plea,” Moriarty, 429 F.3d at 1020 (quoting Dominguez Benitez, 542 U.S. at 83, 124 S.Ct. at 2340) (internal quotation marks omitted). Although Gandy characterizes the issue as a breach of a plea agreement, the prosecutor’s mistaken representations were not an enforceable contract, as there was no written agreement, and there is no indication in the record, nor does Gandy assert, that the prosecutor agreed to make a sentencing recommendation. However, because the magistrate judge failed to inform Gandy of the correct mandatory minimum sentence for his offense, it failed to address Gandy’s knowledge and understanding of the consequences of his guilty plea — a core concern of Rule 11. Al though this was obvious error, it was harmless error as it does not affect Gan-dy’s substantial rights. See id. After stating that he had discussed the matter with his attorney, and after he was informed of the actual consequences of his guilty plea by the district court, Gandy declined to withdraw his plea. Gandy cannot “show a reasonable probability that, but for the error, he would not have entered the plea.” See id. Accordingly, Gandy has failed to establish plain error. In any event, the district court was bound to apply the statutory mandatory minimum sentence to Gandy. See, e.g., United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir.2007). For the foregoing reasons, we affirm Gandy’s sentence. AFFIRMED. . Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). . For shorthand, we refer to this offense as \"simple vehicle flight.” ." }, { "docid": "3211561", "title": "", "text": "for new counsel was properly denied. C. The Sufficiency of the Count Three Plea Allocution Martinez’s contention that he was not sufficiently informed about the firearm count to make his plea of guilty to that count knowing and voluntary fares no better. Rule 11 imposes the strict requirement that the court, before accepting a plea of guilty, must “address the defendant personally in open court” and, inter alia, “inform the defendant of, and determine that the defendant understands ... the nature of each charge to which the defendant is pleading.” Fed. R. Crim. P. 11(b)(1)(G). “ “What is essential ... is that the court determine by some means that the defendant actually understands the nature of the charges.’” United States v. Torrellas, 455 F.3d 96, 102 (2d Cir. 2006) (“Torrellas”) (quoting United States v. Maher, 108 F.3d 1513, 1521 (2d Cir. 1997)). “ ‘[I]n all such inquiries, matters of reality, and not mere ritual, should be controlling.’ ” Torrellas, 455 F.3d at 102 (quoting McCarthy v. United States, 394 U.S. 459, 467 n.20, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969)). Further, where, as here, the defendant has failed to make a timely Rule 11 objection in the district court, we conduct only plain-error review, see United States v. Dominguez Benitez, 542 U.S. 74, 76, 80, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004); United States v. Vonn, 535 U.S. 55, 58-59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). Under the plain-error standard, we decline to reverse unless the defendant “ ‘demonstrate^ that (1) there was error, (2) the error was plain, (3) the error preju-dicially affected his substantial rights, and (4) the error seriously affected the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Adams, 768 F.3d 219, 223 (2d Cir. 2014) (quoting United States v. Cook, 722 F.3d 477, 481 (2d Cir. 2013)), cert. denied, — U.S. -, 135 S.Ct. 1726, 191 L.Ed.2d 694 (2015). “In order to establish that a Rule 11 violation affected ‘substantial rights,’ the defendant must show ‘that there is “a reasonable probability that, but for the error, he would not have" } ]

[ { "docid": "22316931", "title": "", "text": "of the protest. If, on the other hand, the picketer intends to communicate generally, a carefully crafted ordinance will allow him or her to do so without intruding upon or unduly harassing the resident. Consequently, the discomfort to which the Court must refer is merely that of knowing there is a person outside who disagrees with someone inside. This may indeed be uncomfortable, but it does not implicate the town’s interest in residential privacy and therefore does not warrant silencing speech. A valid time, place, or manner law neutrally regulates speech only to the extent necessary to achieve a substantial governmental interest, and no further. Because the Court is unwilling to examine the Brookfield ordinance in light of the precise governmental interest at issue, it condones a law that suppresses substantially more speech than is necessary. I dissent. The Court today soundly rejects the town’s rogue argument that residential streets are something less than public fora. Ante, at 479-481. I wholeheartedly agree with this portion of the Court’s opinion. The Court relies on our “two-court rule” to avoid appellees’ argument that state law creates a labor picketing exception to the Brookfield ordinance, and thus that the law is not content neutral. Ante, at 481-482. However, I would not be as quick to apply the rule here. The District Court’s opinion focuses solely on the language and history of the town ordinance and does not refer to state law, 619 F. Supp. 792, 796 (ED Wis. 1985); the panel simply deferred to the District Court; and the en banc court issued no opinion. I cannot find even one court, let alone two, that has clearly passed on appellees’ argument. Cf. Virginia v. American Booksellers Assn., 484 U. S. 383, 395 (1988). However, nothing in the Court’s opinion forecloses consideration of this question on remand. Like Justice White, I am wary of the Court’s rather strained “single-residence” construction of the ordinance. Moreover, I give little weight to the town attorney’s interpretation of the law; his legal interpretations do not bind the state courts, and therefore they cannot bind us. American Booksellers, supra," } ]

[ { "docid": "2509359", "title": "", "text": "Corbin’s opinion construing Article XXVIII is merely an advisory one under Arizona law and is not binding on either the Arizona courts, Marston’s, Inc. v. Roman Catholic Church of Phoenix, 132 Ariz. 90, 94, 644 P.2d 244, 248 (1982), or on any citizen who sues under Article XXVIII’s private right of action provision. Furthermore, the Attorney General’s opinion does not address all of the issues raised by the plaintiffs in this action, the opinion’s main concern being the effect of Article XXVIII on the use of non-English languages in the delivery of governmental services. More importantly, however, the Attorney General’s interpretation of Article XXVIII does not amount to a sufficient limiting construction because the Article is not readily susceptible to the Attorney General’s construction, a construction that is simply at odds with Article XXVIII’s plain language. The gist of the Attorney General’s interpretation of Article XXVIII is that the English-only requirement applies solely to official acts of the state governmental entities and does not prohibit the use of languages other than English that are reasonably necessary to facilitate the day-to-day operation of government. The Attorney General’s belief that Article XXVIII is directed only towards sovereign governmental acts centers upon § 3(l)(a) of Article XXVIII which provides, with a few limited exceptions, that the “State and all political subdivisions of this State shall act in English and in no other language.” The Attorney General’s interpretation of what “to act” means, however, in effect ignores § l(3)(a)(iv) of Article XXVIII which states that the Article applies to “all government officials and employees during the performance of government business.” The various levels of legislative, executive and judicial branches of government in Arizona affected by Article XXVIII perform business in a whole variety of ways that do not rise to the level of “sovereign” acts, as the Attorney General apparently uses that term. The manner in which the term “act” is used in § 3(2) of the Article, the subsection setting forth the exceptions to the ban on the use of non-English languages, is illustrative of the unreasonableness of the Attorney General’s limitation on" }, { "docid": "20330875", "title": "", "text": "“a complete rewrite” in order to pass constitutional scrutiny. Lind, 30 F.3d at 1121 (citing Houston, 482 U.S. at 470-71, 107 S.Ct. at 2514-15). To be sure, the Supreme Court in American Booksellers did opt to certify the question of the proper interpretation of a statute to the Virginia Supreme Court. 484 U.S. at 386, 108 S.Ct. at 639. However, American Booksellers presented the Court with a “unique factual and procedural setting.” Id. In that ease, the plaintiffs had filed a pre-enforcement challenge to a state obscenity statute that the State Attorney General conceded would be unconstitutional if construed as the plaintiffs contended it should be. Id. at 393 & n. 8,108 S.Ct. at 643 & n. 8 (quoting state counsel as saying that if the plaintiffs’ interpretation of the statute were correct, then the state “should lose the ease”). Moreover, there were no non-governmental defendants such as Arizonans for Official English in the case, no state court had ever had the opportunity to interpret the pertinent statutory language, and both levels of lower federal courts had made critically flawed assessments of the statute’s coverage because they had relied on invalid evidence. Id. at 395-97, 108 S.Ct. at 644-45. The Attorney General here, in contrast, has never conceded that the statute would be unconstitutional if construed as Yniguez asserts it properly should be. Moreover, at least one Arizona state court has had the opportunity to construe Article XXVIII, and has done nothing to narrow it. See Ruiz v. State, No. CV 92-19603 (Jan. 24, 1994) (disposing of First Amendment challenge in three paragraphs). Thus, unlike in Virginia Booksellers, there are no unique circumstances in this case militating in favor of certification. See Lind, 30 F.3d at 1122 n. 7 (declining to certify question of state law interpretation in the absence of state concession that law would be unconstitutional on the plaintiffs construction). Accordingly, we must proceed to determine the constitutionality of Article XXVIIL D. Conclusion We agree with the district court’s construction of Article XXVIIL The article’s plain language broadly prohibits all government officials and employees from speaking languages other" }, { "docid": "22540477", "title": "", "text": "Article III jurisdiction of this Court and the courts below, not to the merits of the case. Cf. U S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U. S. 18, 20-22 (1994). IV To qualify as a case fit for federal-court adjudication, “an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Preiser v. Newkirk, 422 U. S. 395, 401 (1975) (quoting Steffel v. Thompson, 415 U. S. 452, 459, n. 10 (1974)) (internal quotation marks omitted). As a state employee subject to Article XXVIII, Yniguez had a viable claim at the outset of the litigation in late 1988. We need not consider whether her case lost vitality in January 1989 when the Attorney General released Opinion No. 189-009. That opinion construed Article XXVIII to require the expression of “official acts” in English, but to leave government employees free to use other languages “if reasonably necessary to the fair and effective delivery of services” to the public. See App. 71, 74; supra, at 52-53, 54; see also Marston’s Inc. v. Roman Catholic Church of Phoenix, 132 Ariz. 90, 94, 644 P. 2d 244, 248 (1982) (“Attorney General opinions are advisory only and are not binding on the court. . . . This does not mean, however, that citizens may not rely in good faith on Attorney General opinions until the courts have spoken.”). Yniguez left her state job in April 1990 to take up employment in the private sector, where her speech was not governed by Article XXVIII. At that point, it became plain that she lacked a still vital claim for prospective relief. Cf. Boyle v. Landry, 401 U. S. 77, 78, 80-81 (1971) (prospective relief denied where plaintiffs failed to show challenged measures adversely affected any plaintiff’s primary conduct). The Attorney General suggested mootness, but Yniguez resisted, and the Ninth Circuit adopted her proposed method of saving the case. See supra, at 60-61. It was not dis-positive, the court said, that Yniguez “may no longer be affected by the English only provision,” 975 F. 2d, at 647," }, { "docid": "2509360", "title": "", "text": "necessary to facilitate the day-to-day operation of government. The Attorney General’s belief that Article XXVIII is directed only towards sovereign governmental acts centers upon § 3(l)(a) of Article XXVIII which provides, with a few limited exceptions, that the “State and all political subdivisions of this State shall act in English and in no other language.” The Attorney General’s interpretation of what “to act” means, however, in effect ignores § l(3)(a)(iv) of Article XXVIII which states that the Article applies to “all government officials and employees during the performance of government business.” The various levels of legislative, executive and judicial branches of government in Arizona affected by Article XXVIII perform business in a whole variety of ways that do not rise to the level of “sovereign” acts, as the Attorney General apparently uses that term. The manner in which the term “act” is used in § 3(2) of the Article, the subsection setting forth the exceptions to the ban on the use of non-English languages, is illustrative of the unreasonableness of the Attorney General’s limitation on the meaning of “act”. Under the provisions of § 3(2)(c), for example, a governmental entity within Arizona “may act in a language other than English” to teach a student a foreign language as part of an educational curriculum. While the teaching of a foreign language by a public school teacher comes within the definition of performing government business, it does not come within the definition of performing a sovereign act. The Attorney General’s restrictive interpretation of Article XXVIII is in effect a “remarkable job of plastic surgery upon the face of the ordinance,” Shuttlesworth v. City of Birmingham, 394 U.S. 147, 153, 89 S.Ct. 935, 940, 22 L.Ed.2d 162 (1969), and one which this court cannot accept. The defendants have not proffered any other limiting construction of Article XXVIII and the court is unable to discern any construction to which the Article is fairly subject that would limit its application in such a way as to render unnecessary or substantially modify the federal constitutional questions. Abstention The defendants, invoking the abstention doctrine of Railroad Comm’n" }, { "docid": "2509356", "title": "", "text": "private suits, or to curtail their free speech rights. Although the plaintiffs have not argued that Article XXVIII is unconstitutionally vague, vagueness affects the overbreadth analysis because in determining whether Article XXVIII is so overbroad as to deter others from engaging in otherwise protected expression the court has to evaluate the ambiguous as well as the unambiguous scope of the Article. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n. 6, 102 S.Ct. 1186, 1191 n. 6, 71 L.Ed.2d 362 (1982). While the defendants’ assertion that the examples of Article XXVIII’s unconstitutional reach proffered by the plaintiffs are too extreme to demonstrate the Article’s facial unconstitutionality because they represent situations which plainly do not come within the rational parameters of Article XXVIII may be correct, the defendants’ assertion only emphasizes Article XXVIII’s potential for chilling First Amendment rights. See Baggett v. Bullitt, 377 U.S. 360, 373, 84 S.Ct. 1316, 1323, 12 L.Ed.2d 377 (1964). If those affected by Article XXVIII are unclear as to its coverage, the result will be that they will “ ‘steer far wider of the unlawful zone’ ... than if the boundaries of the forbidden areas were clearly marked.” Id. at 372, 84 S.Ct. at 1322. Yniguez’s self-imposed decision to refrain from speaking Spanish while performing her job, a decision vociferously criticized as unfounded by the defendants, is but a product of her legitimate sensitivity to the perils posed by the Article’s language and her desire to restrict her conduct to that which is unquestionably safe. Id. A law which reasonably results in such restrictions is substantially overbroad. In determining the facial constitutionality of Article XXVIII the court must also consider any authoritative limiting construction placed on the enactment by Arizona state courts or enforcement agencies, Broadrick v. Oklahoma, 413 U.S. at 618, 93 S.Ct. at 2919, because a state law cannot be facially invalidated as overbroad if it is readily susceptible to a narrowing construction that would make it constitutional. Virginia v. American Booksellers Ass’n, 484 U.S. at 397, 108 S.Ct. at 645. As the Supreme Court has noted, the" }, { "docid": "2509352", "title": "", "text": "615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973), and the Article is not susceptible to a narrowing construction that would cure any constitutional infirmities. Id. at 613, 93 S.Ct. at 2916. While the Supreme Court has acknowledged that the concept of “substantial overbreadth” is not readily reduced to an exact definition, it has made it clear that a law cannot be facially invalidated as over-broad simply because some constitutionally impermissible applications of the law are conceivable. Members of City Council of City of Los Angeles v. Taxpayers for Vin cent, 466 U.S. 789, 800, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772 (1984). For such an invalidation to be appropriate, a substantial number''of instances must exist in which the overbroad law can be applied in contravention of the First Amendment. New York State Club Ass’n, v. City of New York, 487 U.S. 1, 13, 108 S.Ct. 2225, 2234, 101 L.Ed.2d 1 (1988). In order to determine whether Article XXVIII reaches a substantial amount of constitutionally protected conduct, the court must first determine what the Article means, Broadrick v. Oklahoma, 413 U.S. at 618 n. 16, 93 S.Ct. at 2919 n. 16, which is a matter of substantial dispute between the parties. The plaintiffs’ position is that Article XXVIII is a blanket prohibition on the use of any language other than English in the state workplace, whereas the defendants’ position is that Article XXVIII does not reach that broadly because it is merely a directive for state and local governmental entities to act in English when acting in their sovereign capacities. For the purposes of the instant action, the court finds from Article XXVIII’s plain language that it is a prohibition on the use of any language other than English by all officers and employees of all political subdivisions in Arizona while performing their official duties, save to the extent that they may be allowed to use a foreign language by the limited exceptions contained in § 3(2) of Article XXVIII. Given this interpretation of the Article, an interpretation obviously not binding on state authorities, id.; Webster v. Reproductive Health Services," }, { "docid": "21151334", "title": "", "text": "for Responsible Gov’t State Political Action Comm. v. Davidson, 236 F.3d 1174, 1194 (10th Cir.2000)). He avers that because Colorado’s definition of political committee is substantially similar to the federal definition, and Colorado “has used federal campaign law as a template for its campaign laws,” § 2(12) should withstand constitutional scrutiny. Id. at 39. Generally, we consider the application of a narrowing construction in the context of a facial challenge. See Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 397, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988) (“It has long been a tenet of First Amendment law that in determining a facial challenge to a statute, if it be ‘readily susceptible’ to a narrowing construction that would make it constitutional, it will be upheld.”); Citizens for Responsible Gov’t State Political Action Comm., 236 F.3d at 1194. As we later discuss, we decline to reach CRLC’s facial challenge to § 2(12). However, regardless of whether we characterize the Secretary’s argument as addressing a facial or as-applied challenge, we agree with the district court that the statute does not lend itself to a narrowing construction. To be readily susceptible to a narrowing construction, such a construction must be “reasonable and readily apparent.” Stenberg v. Carhart, 530 U.S. 914, 944, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000) (internal quotation marks omitted). “[WJhere an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the in tent of Congress.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988). Thus, “we will not rewrite a state law to conform it to constitutional requirements.” Am. Booksellers Ass’n, 484 U.S. at 397, 108 S.Ct. 636. Here, importantly, we note that Article XXVIII’s definition of “issue committee” includes the very “major purpose” test at issue, suggesting that the legislature was well aware of Buckley’s requirements when it drafted Article XXVIII. See id. § 2(10)(a) (“ ‘Issue committee’ means any person, other than a natural" }, { "docid": "2509358", "title": "", "text": "key to the application of this principle is that the state law must be “readily susceptible” of the limitation proffered by the state court or agency because a federal court lacks the power itself to rewrite a state law to conform it to constitutional requirements. Id. No Arizona state court has as yet construed or interpreted Article XXVIII. The Arizona Attorney General has, however, construed Article XXVIII in a narrow fashion in a formal opinion, 189-009, an opinion which the defendants argue resolves the overbreadth issue in this action. While the court must consider the Attorney General’s opinion to some degree, Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1972), the opinion is not binding on this court and the court declines to follow it. A state attorney general’s interpretation of a state law which is not binding on the courts of that state cannot be accepted as authoritative by this court. Virginia v. American Booksellers Ass’n, 484 U.S. at 395, 108 S.Ct. at 643. Attorney General Corbin’s opinion construing Article XXVIII is merely an advisory one under Arizona law and is not binding on either the Arizona courts, Marston’s, Inc. v. Roman Catholic Church of Phoenix, 132 Ariz. 90, 94, 644 P.2d 244, 248 (1982), or on any citizen who sues under Article XXVIII’s private right of action provision. Furthermore, the Attorney General’s opinion does not address all of the issues raised by the plaintiffs in this action, the opinion’s main concern being the effect of Article XXVIII on the use of non-English languages in the delivery of governmental services. More importantly, however, the Attorney General’s interpretation of Article XXVIII does not amount to a sufficient limiting construction because the Article is not readily susceptible to the Attorney General’s construction, a construction that is simply at odds with Article XXVIII’s plain language. The gist of the Attorney General’s interpretation of Article XXVIII is that the English-only requirement applies solely to official acts of the state governmental entities and does not prohibit the use of languages other than English that are reasonably" }, { "docid": "20330876", "title": "", "text": "courts had made critically flawed assessments of the statute’s coverage because they had relied on invalid evidence. Id. at 395-97, 108 S.Ct. at 644-45. The Attorney General here, in contrast, has never conceded that the statute would be unconstitutional if construed as Yniguez asserts it properly should be. Moreover, at least one Arizona state court has had the opportunity to construe Article XXVIII, and has done nothing to narrow it. See Ruiz v. State, No. CV 92-19603 (Jan. 24, 1994) (disposing of First Amendment challenge in three paragraphs). Thus, unlike in Virginia Booksellers, there are no unique circumstances in this case militating in favor of certification. See Lind, 30 F.3d at 1122 n. 7 (declining to certify question of state law interpretation in the absence of state concession that law would be unconstitutional on the plaintiffs construction). Accordingly, we must proceed to determine the constitutionality of Article XXVIIL D. Conclusion We agree with the district court’s construction of Article XXVIIL The article’s plain language broadly prohibits all government officials and employees from speaking languages other than English in performing their official duties, save to the extent that the use of non-English languages is permitted pursuant to the provision’s narrow exceptions section. We reject both the Attorney General’s narrowing construction of the article and his suggestion of abstention and certification. We conclude that-were an Arizona court ever to give the broad language of Article XXVIII a limiting construction similar to that proffered by the Attorney General, it would constitute a “remarkable job of plastic surgery upon the face of the [provision].” Shuttlesworth v. City of Birmingham, 394 U.S. 147, 153, 89 S.Ct. 935, 940, 22 L.Ed.2d 162 (1969). Where, as here, a state provision has been challenged on federal constitutional grounds and a state’s limiting construction of that provision would directly clash with its plain meaning, we should neither abstain nor certify the question to the state courts. Rather, under such circumstances, it is our duty to adjudicate the constitutional question without delay. III. Article XXVIII and The First Amendment A. Overbreadth After construing Article XXVIII, the district court ruled that" }, { "docid": "407374", "title": "", "text": "be “readily susceptible” to a narrowing construction that would make it constitutional, it will be upheld. Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). The key to application of this principle is that the statute must be “readily susceptible” to limitation. We will not rewrite a state law to conform it to constitutional requirements. Virginia v. American Booksellers Ass’n, 484 U.S. 383, 397, 108 S.Ct. 636, 644-45, 98 L.Ed.2d 782 (1988). Thus, we must consider the allegations of the potential range of materials covered by the statute, and the possible burdens on adults’ access imposed by mandatory compliance measures, in light of our twin obligations to (1) construe the statute narrowly, (2) without rewriting its terms. III. FIRST AMENDMENT STANDARDS We decline to restate the bedrock case law and general principles of First Amendment jurisprudence which guide our analysis. We are content to note that (1) content-based restrictions on speech survive constitutional scrutiny only under extraordinary circumstances; but (2) material judged “obscene” under the appropriate constitutional standard is not protected by the First Amendment; (3) indirect burdens placed on protected speech in an effort to regulate obscenity must be supported by important state interests and should not be unnecessarily burdensome; and (4) the state’s interest in protecting its youth justifies a limited burden on free expression. See generally Webb II, 643 F.Supp. at 1551-52 (and cases cited therein). We begin our analysis with the Supreme Court's decision in Ginsberg that a state may deny minors access to materials acceptable for adults but obscene for minors. While the statute in Ginsberg banned only the sale or distribution of this material to minors and did not implicate the First Amendment rights of adults, it is clear from our reading of Ginsberg that a state may, absent an impermissible burden on adults, deny minors all access in any form to materials obscene as to them. Minors have no right to view or in any way consume this material — even if they do" }, { "docid": "407373", "title": "", "text": "right of a person (in this case, an adult) to present or procure protected expression, it does not impinge upon “mere speech”; rather, it regulates the method of presenting, or the form of, expression. Regulations on display affect “conduct plus speech.” Upper Midwest Booksellers, 780 F.2d at 1391-92; M.S. News Co. v. Casado, 721 F.2d 1281, 1289 (10th Cir.1983); American Booksellers Ass’n v. Rendell, 332 Pa. Super. 537, 581, 481 A.2d 919, 941 (1984). “[W]hen conduct plus speech is involved, the overbreadth must be ‘real’ and ‘substantial’ in relation to [the regulation’s] ‘plainly legitimate sweep’ before the [regulation] should be invalidated on its face.” Upper Midwest Booksellers, 780 F.2d at 1391-92 (quoting Ferber, 458 U.S. at 770, 102 S.Ct. at 3361-62). As the Supreme Court recently stated when considering a facial challenge to a Virginia regulation on the display of materials “harmful to juveniles,” courts have an obligation to construe the challenged statute narrowly: It has long been a tenet of First Amendment law that in determining a facial challenge to a statute, if it be “readily susceptible” to a narrowing construction that would make it constitutional, it will be upheld. Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). The key to application of this principle is that the statute must be “readily susceptible” to limitation. We will not rewrite a state law to conform it to constitutional requirements. Virginia v. American Booksellers Ass’n, 484 U.S. 383, 397, 108 S.Ct. 636, 644-45, 98 L.Ed.2d 782 (1988). Thus, we must consider the allegations of the potential range of materials covered by the statute, and the possible burdens on adults’ access imposed by mandatory compliance measures, in light of our twin obligations to (1) construe the statute narrowly, (2) without rewriting its terms. III. FIRST AMENDMENT STANDARDS We decline to restate the bedrock case law and general principles of First Amendment jurisprudence which guide our analysis. We are content to note that (1) content-based restrictions on speech survive constitutional scrutiny only under" }, { "docid": "2509351", "title": "", "text": "applied to others. New York v. Ferber, 458 U.S. 747, 767-68, 102 S.Ct. 3348, 3359-60, 73 L.Ed.2d 1113 (1982). Yniguez has alleged a sufficiently colorable claim that Article XXVIII is overly broad in violation of the First Amendment rights of other Arizona government officials and employees not before the court to confer standing on her even if her own First Amendment rights are not violated by Article XXVIII. Virginia v. American Booksellers Ass’n, 484 U.S. at 392-93, 108 S.Ct. at 642-43. Facial Invalidity The plaintiffs argue that Article XXVIII should be invalidated on its face in part because it violates the First Amendment overbreadth doctrine. An over-breadth challenge is appropriately entertained in this case because Article XXVIII, by its literal wording, is capable of reaching expression protected by the First Amendment, such as Gutierrez’s right to communicate in Spanish with his Spanish-speaking constituents. Facial invalidation of Article XXVIII is mandated, however, only if its overbreadth is both real and substantial judged in relation to the Article’s plainly legitimate sweep, Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973), and the Article is not susceptible to a narrowing construction that would cure any constitutional infirmities. Id. at 613, 93 S.Ct. at 2916. While the Supreme Court has acknowledged that the concept of “substantial overbreadth” is not readily reduced to an exact definition, it has made it clear that a law cannot be facially invalidated as over-broad simply because some constitutionally impermissible applications of the law are conceivable. Members of City Council of City of Los Angeles v. Taxpayers for Vin cent, 466 U.S. 789, 800, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772 (1984). For such an invalidation to be appropriate, a substantial number''of instances must exist in which the overbroad law can be applied in contravention of the First Amendment. New York State Club Ass’n, v. City of New York, 487 U.S. 1, 13, 108 S.Ct. 2225, 2234, 101 L.Ed.2d 1 (1988). In order to determine whether Article XXVIII reaches a substantial amount of constitutionally protected conduct, the court must first determine what the Article" }, { "docid": "640100", "title": "", "text": "Fed.R. Civ.P. 59(e) that the judgment entered in this action be altered or amended because the court’s memorandum opinion and order failed to dispose of the defendants’ request that the state law question be certified to the Arizona Supreme Court. Assuming, without deciding, that Corbin has standing to bring this motion in light of his dismissal as a party defendant, the court finds that such a certification would be inappropriate. The court initially notes that neither the defendants’ Motion to Supplement Argument, in which the certification issue was raised in one conclusory paragraph, nor Corbin’s instant motion specifies what the “state law question” is that should be certified. In light of Corbin’s reply memorandum in support of the instant motion, the court construes the motion as requesting that the court certify to the Arizona Supreme Court the question of whether the narrow interpretation of Article XXVIII proffered by Corbin in Attorney General Opinion I 89-009 is a valid construction of the Article. While Corbin is correct that the court’s opinion did not specifically resolve the certification issue, an inadvertence on the court’s part, the conclusion that the certification request must be denied is implicit in court’s reasoning underlying its denial of the defendants’ request that the court abstain from deciding the constitutionality of Article XXVIII. Given this court’s conclusion that Article XXVIII is not obviously susceptible of a construction that would eliminate its unconstitutional overbreadth, any certification of the validity of the proffered narrowing construction would be improper inasmuch as it would be “askpng] a state court if it would care in effect to rewrite a statute.” City of Houston, Texas v. Hill, 482 U.S. 451, 471, 107 S.Ct. 2502, 2515, 96 L.Ed.2d 398 (1987). The Court is unpersuaded by Corbin’s assertion that Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988), requires certification given the Supreme Court’s acknowledgement in that case that its decision to certify a narrowing construction of the state statute proffered by the state attorney general, rather than deciding itself whether the state statute was readily susceptible of the" }, { "docid": "20330866", "title": "", "text": "rely on that group’s standing as a party. Yniguez’s standing and that of the other parties and intervenors is sufficient to support the determination that we make here. II. The Proper Construction of Article XXVIII A. The District Court’s Construction Although eighteen states have adopted “official-English” laws, Arizona’s Article XXVIII is “by far the most restrictively worded official-English law to date.” Note, English Only Laws and Direct Legislation: The Battle in the States Over Language Minority Rights, 7 J.L. & Pol. 325, 337 (1991). Besides declaring English “the official language of the State of Arizona,” Article XXVIII states that English is “the language of ... all government functions and actions.” §§ 1(1), 1(2). The article further specifies that the state and its subdivisions— defined as encompassing “all government officials and employees during the performance of government business” — “shall act in English and no other language.” §§ l(3)(a)(iv), 3(l)(a). Its broad coverage is punctuated by several exceptions permitting, for example, the use of non-English languages as required by federal law, § 3(2)(a), and in order to protect the rights of criminal defendants and victims of crime, § 3(2)(e). The district court, interpreting what it found to be the “sweeping language” of Article XXVIII, determined that the provision prohibits: the use of any language other than English by all officers and employees of all political subdivisions in Arizona while performing their official duties, save to the extent that they may be allowed to use a foreign language by the limited exceptions contained in § 3(2) of Article XXVIII. Yniguez, 730 F.Supp. at 314. For reasons we explain below, we agree with the district court’s construction of the article. B. The Attorney General’s Construction The Arizona Attorney General proffers a highly limited reading of Article XXVIII under which it applies only to “official acts” of state governmental entities. According to this construction of the provision, which the Attorney General has memorialized in a written opinion, the provision “does not mean that languages other than English cannot be used when reasonable to facilitate the day-today operation of government.” Op.Atty.Gen. Az. No. 189-009 (1989)." }, { "docid": "20330867", "title": "", "text": "to protect the rights of criminal defendants and victims of crime, § 3(2)(e). The district court, interpreting what it found to be the “sweeping language” of Article XXVIII, determined that the provision prohibits: the use of any language other than English by all officers and employees of all political subdivisions in Arizona while performing their official duties, save to the extent that they may be allowed to use a foreign language by the limited exceptions contained in § 3(2) of Article XXVIII. Yniguez, 730 F.Supp. at 314. For reasons we explain below, we agree with the district court’s construction of the article. B. The Attorney General’s Construction The Arizona Attorney General proffers a highly limited reading of Article XXVIII under which it applies only to “official acts” of state governmental entities. According to this construction of the provision, which the Attorney General has memorialized in a written opinion, the provision “does not mean that languages other than English cannot be used when reasonable to facilitate the day-today operation of government.” Op.Atty.Gen. Az. No. 189-009 (1989). The Supreme Court has, in the past, looked to the narrowing construction given a provision by the State’s Attorney General as a guide to evaluating the provision’s scope. Broadrick v. Oklahoma, 413 U.S. 601, 618, 93 S.Ct. 2908, 2919, 37 L.Ed.2d 830 (1973). For two reasons, however, we do not adopt the Attorney General’s construction of Article XXVIII in this case. First, the Attorney General’s opinion is not binding on the Arizona courts, Marston’s Inc. v. Roman Catholic Church of Phoenix, 132 Ariz. 90, 644 P.2d 244, 248 (1982), and is therefore not binding on this court. Compare Virginia v. American Booksellers Ass’n, 484 U.S. 383, 396,108 S.Ct. 636, 644, 98 L.Ed.2d 782 (1988) (refusing to accept as authoritative a non-binding attorney general opinion), with Frisby v. Schultz, 487 U.S. 474, 483, 108 S.Ct. 2496, 2501, 101 L.Ed.2d 420 (1988) (accepting city’s binding narrow interpretation). Second, we cannot adopt the Attorney General’s limiting construction because it is completely at odds with Article XXVIII’s plain language. The Supreme Court has made clear that a limiting construction" }, { "docid": "2509357", "title": "", "text": "that they will “ ‘steer far wider of the unlawful zone’ ... than if the boundaries of the forbidden areas were clearly marked.” Id. at 372, 84 S.Ct. at 1322. Yniguez’s self-imposed decision to refrain from speaking Spanish while performing her job, a decision vociferously criticized as unfounded by the defendants, is but a product of her legitimate sensitivity to the perils posed by the Article’s language and her desire to restrict her conduct to that which is unquestionably safe. Id. A law which reasonably results in such restrictions is substantially overbroad. In determining the facial constitutionality of Article XXVIII the court must also consider any authoritative limiting construction placed on the enactment by Arizona state courts or enforcement agencies, Broadrick v. Oklahoma, 413 U.S. at 618, 93 S.Ct. at 2919, because a state law cannot be facially invalidated as overbroad if it is readily susceptible to a narrowing construction that would make it constitutional. Virginia v. American Booksellers Ass’n, 484 U.S. at 397, 108 S.Ct. at 645. As the Supreme Court has noted, the key to the application of this principle is that the state law must be “readily susceptible” of the limitation proffered by the state court or agency because a federal court lacks the power itself to rewrite a state law to conform it to constitutional requirements. Id. No Arizona state court has as yet construed or interpreted Article XXVIII. The Arizona Attorney General has, however, construed Article XXVIII in a narrow fashion in a formal opinion, 189-009, an opinion which the defendants argue resolves the overbreadth issue in this action. While the court must consider the Attorney General’s opinion to some degree, Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1972), the opinion is not binding on this court and the court declines to follow it. A state attorney general’s interpretation of a state law which is not binding on the courts of that state cannot be accepted as authoritative by this court. Virginia v. American Booksellers Ass’n, 484 U.S. at 395, 108 S.Ct. at 643. Attorney General" }, { "docid": "640101", "title": "", "text": "certification issue, an inadvertence on the court’s part, the conclusion that the certification request must be denied is implicit in court’s reasoning underlying its denial of the defendants’ request that the court abstain from deciding the constitutionality of Article XXVIII. Given this court’s conclusion that Article XXVIII is not obviously susceptible of a construction that would eliminate its unconstitutional overbreadth, any certification of the validity of the proffered narrowing construction would be improper inasmuch as it would be “askpng] a state court if it would care in effect to rewrite a statute.” City of Houston, Texas v. Hill, 482 U.S. 451, 471, 107 S.Ct. 2502, 2515, 96 L.Ed.2d 398 (1987). The Court is unpersuaded by Corbin’s assertion that Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988), requires certification given the Supreme Court’s acknowledgement in that case that its decision to certify a narrowing construction of the state statute proffered by the state attorney general, rather than deciding itself whether the state statute was readily susceptible of the attorney general’s interpretation, was due to the unusual factual and procedural circumstances of that case. The unique situation which led to certification in American Booksellers is not present here and under the circumstances of the instant case, certification would entail both disadvantage and cost since it would only unnecessarily prolong the limbo of uncertainty that Article XXVIII created for those adversely affected by its chilling effect. CORBIN’S MOTION TO INTERVENE Corbin, on behalf of the State of Arizona, has moved to intervene as a defendant in this action so that he may participate in all post-judgment proceedings, including an appeal. Both Corbin and the State were named defendants in this action and both filed motions to dismiss which the court subsequently granted. Corbin’s assertion that he now has standing to intervene on the State’s behalf is premised solely on 28 U.S.C. § 2403(b), which provides in part that when the constitutionality of a state statute is drawn into question the court shall certify that fact to the state attorney general and shall permit the state" }, { "docid": "22540493", "title": "", "text": "our decision certifying questions in Virginia v. American Booksellers Assn., Inc., 484 U. S. 383 (1988), we noted the State’s concession that the statute there challenged would be unconstitutional if construed as plaintiffs contended it should be, id., at 393-396. But neither in that case nor in any other did we declare such a concession a condition precedent to certification. The District Court and the Court of Appeals ruled out certification primarily because they believed Article XXVIII was not fairly subject to a limiting construction. See 730 F. Supp., at 316 (citing Houston v. Hill, 482 U. S. 451, 467 (1987)); 69 F. 3d, at 930. The assurance with which the lower courts reached that judgment is all the more puzzling in view of the position the initiative sponsors advanced before this Court on the meaning of Article XXVIII. At oral argument on December 4, 1996, counsel for petitioners AOE and Park informed the Court that, in petitioners' view, the Attorney General's reading of the Article was “the correct interpretation.” Tr. of Oral Arg. 6; see id., at 5 (in response to the Court’s inquiry, counsel for petitioners stated: “[W]e agree with the Attorney General’s opinion as to [the] construction of Article XXVIII on [constitutional] grounds.”). The Ninth Circuit found AOE’s “explanations as to the initiative's scope . . . confused and self-contradictory,” 69 F. 3d, at 928, n. 12, and we agree that AOE wavered in its statements of position, see, e. g., Brief for Petitioners 15 (AOE may “protect its political and statutory rights against the State and government employees”), 32-39 (Article XXVIII regulates Yniguez’s “language on the job”), 44 (“AOE might... sue the State for limiting Art. XXVIII”). Nevertheless, the Court of Appeals understood that the ballot initiative proponents themselves at least “partially endorsed the Attorney General’s reading.” 69 F. 3d, at 928, n. 12. Given the novelty of the question and its potential importance to the conduct of Arizona’s business, plus the views of the Attorney General and those of Article XXVIII's sponsors, the certification requests merited more respectful consideration than they received in the proceedings" }, { "docid": "20330868", "title": "", "text": "The Supreme Court has, in the past, looked to the narrowing construction given a provision by the State’s Attorney General as a guide to evaluating the provision’s scope. Broadrick v. Oklahoma, 413 U.S. 601, 618, 93 S.Ct. 2908, 2919, 37 L.Ed.2d 830 (1973). For two reasons, however, we do not adopt the Attorney General’s construction of Article XXVIII in this case. First, the Attorney General’s opinion is not binding on the Arizona courts, Marston’s Inc. v. Roman Catholic Church of Phoenix, 132 Ariz. 90, 644 P.2d 244, 248 (1982), and is therefore not binding on this court. Compare Virginia v. American Booksellers Ass’n, 484 U.S. 383, 396,108 S.Ct. 636, 644, 98 L.Ed.2d 782 (1988) (refusing to accept as authoritative a non-binding attorney general opinion), with Frisby v. Schultz, 487 U.S. 474, 483, 108 S.Ct. 2496, 2501, 101 L.Ed.2d 420 (1988) (accepting city’s binding narrow interpretation). Second, we cannot adopt the Attorney General’s limiting construction because it is completely at odds with Article XXVIII’s plain language. The Supreme Court has made clear that a limiting construction will not be accepted unless the provision to be construed is “readily susceptible” to it. American Booksellers Ass’n, 484 U.S. at 397, 108 S.Ct. at 645. Here, Article XXVIII’s clear terms are simply not “readily susceptible” to the constraints that the Attorney General attempts to place on them. The Attorney General’s reading of Article XXVIII focuses on § 3(l)(a), which provides, with limited exceptions, that the “State and all political subdivisions of this State shall act in English and in no other language.” § 3(l)(a). The Attorney General takes the word “act” from § 3(l)(a) and engrafts onto it the word “official,” found in the Article’s proclamation of English as the official language of Arizona. In thus urging that the Article only applies to the “official acts” of the state, he also relies on a limited meaning of the noun “act,” defined as a “decision or determination of a sovereign, a legislative council, or a court of justice.” Op.Atty.Gen. Az. No. 189-009, at 21 (quoting Webster’s International Dictionary 20 (3d ed., unabridged, 1976) (third sense" }, { "docid": "20330869", "title": "", "text": "will not be accepted unless the provision to be construed is “readily susceptible” to it. American Booksellers Ass’n, 484 U.S. at 397, 108 S.Ct. at 645. Here, Article XXVIII’s clear terms are simply not “readily susceptible” to the constraints that the Attorney General attempts to place on them. The Attorney General’s reading of Article XXVIII focuses on § 3(l)(a), which provides, with limited exceptions, that the “State and all political subdivisions of this State shall act in English and in no other language.” § 3(l)(a). The Attorney General takes the word “act” from § 3(l)(a) and engrafts onto it the word “official,” found in the Article’s proclamation of English as the official language of Arizona. In thus urging that the Article only applies to the “official acts” of the state, he also relies on a limited meaning of the noun “act,” defined as a “decision or determination of a sovereign, a legislative council, or a court of justice.” Op.Atty.Gen. Az. No. 189-009, at 21 (quoting Webster’s International Dictionary 20 (3d ed., unabridged, 1976) (third sense of “act”)). In doing so, however, he ignores the fact that “act,” when used as a verb as in Article XXVIII, does not include among its meanings this limited one. Moreover, even were such a meaning somehow plausible if the two phrases were examined out of context, it is contradicted by the remainder of the provision. Section l(3)(a)(iv) broadly declares that the rule that Arizona “act in English and in no other language” applies to all government officials and employees during the performance of government business. This prohibition on the use of foreign languages when conducting government business supplements the Article’s listing of “statutes, ordinances, rules, orders, programs and policies,” an enumeration of presumably official acts on which the Attorney General relies heavily. § l(3)(iii). Thus, not only is the Attorney General’s narrow reading of Article XXVIII contradicted by the provision’s expansive language, his reading would render a sizeable portion of the Article superfluous, “violating the settled rule that a [provision] must, if possible, be construed in such fashion that every word has some operative" } ]

[ { "docid": "12746257", "title": "", "text": "including those remedies that Executive Order 11478 made available both before and after the passage of the Act. Since Roger’s pending case satisfied this condition precedent, the express language of § 717(c) authorizes him to seek judicial relief. In this respect, he stands in the same position as an employee who exhausted his administrative remedies for a claim of post-Act discrimination. Therefore, no rational purpose is served by invoking the doctrine of sovereign immunity to bar judicial adjudication of Roger’s complaint simply because his pending case involved pre-Act discrimination. We conclude that Congress, being fully aware of the general rule favoring retrospective application of procedural statutes, intended by enacting § 717(c) to grant employees consent to sue for redress of pending cases of pre-Act discrimination. The judgment is reversed, and the case is remanded for further proceedings. . Pub.L.No. 92-261, 86 Stat. 103 (March 24, 1972), 42 U.S.C. § 2000e et seq. (1972). . Other courts reaching the same conclusion include: Hill-Vincent v. Richardson, 359 F.Supp. 308 (N.D.Ill.1973); Freeman v. Defense Constr. Supply Center, 5 FEP Cases 505 (S.D.Ohio 1972); Mosely v. United States, 6 FEP Cases 462 (S.D.Cal.1973); Palmer v. Rogers, 6 FEP Cases 892 (D.D.C.1973). In contrast, however, a majority of the courts considering the problem have applied the Act retrospectively: Walker v. Kleindienst, 357 F.Supp. 749 (D.D.C.1973); Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973); Johnson v. Froehlke, 5 FEP Cases 1138 (D.Md.1973); Pointer v. Sampson, 6 FEP Cases 9 (D.D.C.1973); Harrison v. Butz, 375 F.Supp. 1056 (D.D.C.1973); Grubbs v. Butz, 6 FEP Cases 432 (D.D.C.1973); Henderson v. Defense Contract Admin. Region, 370 F.Supp. 180 (S.D.N.Y.1973); Johnson v. Lybecker, 7 FEP Cases 279 (D.Or.1974); Gautier v. Weinberger, 7 FEP Cases 473 (D.D.C.1973). . Exec. Order 11478 became effective on August 7, 1969. 3 C.F.R., 1969 Comp. 133, 42 U.S.C. § 2000e note (1970). The Civil Service Regulations which implemented the Order became effective on January 1, 1971. 5 C.F.R. § 713.201 et seq. (1971). The preamble to the Order states : “It has long been the policy of the United States Government to provide equal opportunity in Federal" } ]

[ { "docid": "8969129", "title": "", "text": "415 F.2d 1271 (8th Cir. 1969), cert. denied, 397 U.S. 934, 90 S.Ct. 941, 25 L.Ed.2d 115 (1970), since the Equal Employment Opportunity Act of 1972 purportedly did not retroactively extend jurisdiction to cases where the alleged discrimination occurred prior to the Act’s passage. Judge Ge-sell denied appellees’ motion without stating any rationale, see Hackley v. Johnson, 360 F.Supp. 1247 (order of Mar. 14, 1973), and later specifically reaffirmed that ruling upon the ground that the 1972 amendments were retroactive as to discrimination complaints administratively pending at the time they went into effect. See Hackley v. Johnson, 360 F.Supp. 1247, 1249 n. 1 (D.D.C.1973). We concur in this determination of the scope of Title VII’s coverage. See, e. g., Grubbs v. Butz, 169 U.S.App.D.C. 82, 514 F.2d 1323 (1975); Womack v. Lynn, 164 U.S.App.D.C. 198, 504 F.2d 267, 269 & nn. 4, 6 (1974). See also, e. g., Sperling v. United States, 515 F.2d 465, 474-475 (3d Cir. 1975); Koger v. Ball, 497 F.2d 702 (4th Cir. 1974). . Hackley v. Johnson, 360 F.Supp. 1247 (D.D. C.1973). . It is not totally clear, however, how Judge Gesell considered the burden of proof was to be allocated. He stated: The District Court is required by the Act to examine the administrative record with utmost care. If it determines that an absence of discrimination is affirmatively established by the clear weight of the evidence in the record, no new trial is required. * * * * * * Those who feel aggrieved, once having brought forward any proof suggestive of discrimination, are entitled to require those most cognizable [sic] of the relevant employment practices to come forward and disprove the accusation by the clear weight of the evidence. Id. at 1252-1253. This approach may be inconsistent with that enunciated by the Supreme Court in other Title VII contexts. See 171 U.S.App.D.C. p. -, 520 F.2d p. 157 infra. Moreover, although Judge Gesell held that the lack of discrimination must be proved by the “clear weight of the evidence,” 360 F.Supp. at 1252, he actually affirmed the finding of no discrimination because it" }, { "docid": "7056304", "title": "", "text": "District Court must grant a de novo trial. See McCreesh v. Berude, Civil Action 73-1098 (E.D.Pa. 1974). The district courts which have faced the issue of whether a de novo trial is mandated have reached conflicting results. At least two courts have concluded that Section 2000e-16(c) requires a trial de novo in all cases where an aggrieved government employee institutes such a civil action. Henderson v. Defense Contract Administration Services Region, New York, 370 F.Supp. 180 (S.D.N.Y.1973); Thompson v. United States Dept. of Justice, Bureau of Narcotics and Dangerous Drugs, 360 F. Supp. 255 (N.D.Cal.1973). The majority of our U.S. District Courts have, however, reached the conclusion that a trial de novo is not mandated in all government employee cases, but that the grant of a de novo trial rests in the sound discretion of the trial judge. Hackley v. Johnson, 360 F.Supp. 1247 (D.C.D.C.1973); Johnson v. United States Postal Service, 364 F.Supp. 37 (N.D.Fla.1973); Handy v. Gayler, 364 F.Supp. 676 (D.Md.1973); Tomlin v. United States Air Force Medical Center, 369 F.Supp. 353 (S.D.Ohio 1973); McCreesh v. Berude, C.A. 73-1098 (E.D.Pa.1974). The majority of the cases indicate that the disposition of the matter by the District Court depends upon an individual assessment of the administrative record in each case. Judge Gesell, in Hackley, discussed the Congressional intent in enacting Section 2000e-16 and concluded that it was the intention to retain the Civil Service Commission as the main arm of enforcement and that the U.S. District Court was to exercise a supervisory role over the administrative process. He concluded that the supervisory role for the Court would avoid unnecessary duplicity and would permit the developing expertise of the Civil Service Commission to continue, with the court retaining ultimate discretion to proceed in whatever manner it deemed appropriate. The trial de novo is not required in all cases. The District Court is required by the Act to examine the administrative record with utmost care. If it determines that an absence of discrimination is affirmatively established by the clear weight of the evidence in the record, no new trial is required. If this" }, { "docid": "12553097", "title": "", "text": ". In extending the period for filing an administrative employment-discrimination complaint from 90 to 180 days after the alleged act of discrimination occurs, Congress was guided by the lay complainants’ lack of expertise: It is intended by expanding the time period for filing charges in this subsection that aggrieved individuals who frequently are untrained laymen who are not always a ware of the discrimination which is practiced against them, should be given a greater opportunity to prepare their charges and file their complaints, and that existent but undiscovered acts of discrimination should not escape the effect of the law through a procedural oversight. Section-by-Section Analysis of S. 2515, The Equal Employment Opportunities Act of 1972, 118 Cong.Rec. 4940, 4941 (1972) (emphasis added). See also S.Rep. No. 92-415, supra note 26, at 27. We ourselves have recognized that solicitude for the welfare of the unrepresented complainant pervades the statutory scheme. Bell v. Brown, 181 U.S.App.D.C. 226, 230-231, 557 F.2d 849, 853-854 (1977); Coles v. Penny, 174 U.S.App.D.C. 277, 283, 531 F.2d 609, 615 (1976). . As we stated in Grubbs v. Butz, supra note 52, 169 U.S.App.D.C. at 87, 514 F.2d at 1328, “the Act is in part a response to Congressional realization that ‘the doctrine of exhaustion of remedies . . . had become [a] barrier to meaningful court review’ ” (quoting Hackley v. Johnson, 360 F.Supp. 1247, 1251 (D.D.C.1973), rev’d sub nom. Hackley v. Roudebush, 171 U.S.App.D.C. 376, 520 F.2d 108 (1975) (footnote omitted)); see also S.Rep. No. 92-415, supra note 26, at 16; H.R.Rep. No. 92-238, supra note 26, at 22-26. . Love v. Pullman Co., supra note 51, 404 U.S. at 526-527, 92 S.Ct. at 619, 30 L.Ed.2d at 684-685. . Shehadeh v. C & P Tel. Co., 193 U.S.App.D.C. 326, 342, 595 F.2d 711, 727 (1978). . See, e. g., Russell v. American Tobacco Co., 528 F.2d 357, 365 (4th Cir. 1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1666, 1667, 48 L.Ed.2d 176 (1976); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462, 464 (5th Cir. 1970); Tipler v. E. I. duPont de Nemours &" }, { "docid": "4918639", "title": "", "text": "established by the clear weight of the evidence”. Hackley v. Johnson, 360 F.Supp. 1247, 1252 (D.D.C.1973); Chandler v. Johnson, 515 F.2d 251 (9th Cir. 1975); Salone v. U. S., 511 F.2d 902 (10th Cir. 1975). Plaintiffs, on the other hand, contend the available administrative records have serious deficiencies that can only be remedied through judicial discovery. They contend that at the least they are entitled to supplement the administrative record (Chandler v. Johnson, supra), and that the more appropriate relief would be a hearing de novo in district court. Sperling v. United States, 515 F.2d 465 (3d Cir. 1975). A. The District Court Decisions Federal employees were expressly excluded from the coverage of Title VII as it was initially enacted. 42 U.S.C. § 2000e(a) and (e). In 1972, Title VII was amended by the Equal Opportunity Employment Act of 1972 (42 U.S.C. § 2000e-16), and federal employees were brought within the ambit of the Act. Since that time, the scope of judicial review in federal employee discrimination cases has been a much litigated issue. Several courts have reasoned that since private employees who bring discrimination suits pursuant to Title VII are entitled to hearings de novo in federal court (Alexander v. Gardner-Denver Co., supra; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)), federal employees who bring discrimination actions under the same statute are also entitled to de novo hearings (e. g. Reynolds v. Wise, 375 F.Supp. 145 (N.D.Tex.1974); Henderson v. Defense Contract Admin. Service Region, 370 F.Supp. 180 (S.D.N.Y. 1973). Other district courts have taken a contrary position holding that federal employees, suing under Title VII, are not entitled as a matter of right to hearings de novo in federal courts. e. g. Hackley v. Johnson, supra; Carreathers v. Alex- under, No. C-5082 (D.Colo. Dec. 11, 1974). These courts, after declaring the legislative history of the 1972 Amendments to Title VII to be murky, compare the legislative scheme for private and public employee discrimination suits. They reason that private employees who are entitled to hearings de novo in federal court may only process" }, { "docid": "8969128", "title": "", "text": "and 11478. Jurisdiction was invoked under, inter alia, the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (1970), the Civil Rights Act, 28 U.S.C. § 1343 (1970), and the Tucker Act, 28 U.S.C. § 1346 (1970), as well as the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16 (Supp. Ill 1973). In light of our disposition of the Title VII claim, we need not reach the question whether a trial de novo (or some variant thereof) might be appropriate under the other asserted jurisdictional bases. See, e. g., Bowers v. Campbell, 505 F.2d 1155 (9th Cir. 1974); note 172 infra. . The agency whose decision was under review in the District Court was the Civil Service Commission’s Board of Appeals and Review, which had itself reviewed the final decision of the VA. 171 U.S.App.D.C. pp. ---,---, 520 F.2d pp. 114-115, 116 & n. 72 infra. . Appellees also sought dismissal of appellant’s claims on the ground that this was an unconsented suit against the sovereign, see, e. g., Gnotta v. United States, 415 F.2d 1271 (8th Cir. 1969), cert. denied, 397 U.S. 934, 90 S.Ct. 941, 25 L.Ed.2d 115 (1970), since the Equal Employment Opportunity Act of 1972 purportedly did not retroactively extend jurisdiction to cases where the alleged discrimination occurred prior to the Act’s passage. Judge Ge-sell denied appellees’ motion without stating any rationale, see Hackley v. Johnson, 360 F.Supp. 1247 (order of Mar. 14, 1973), and later specifically reaffirmed that ruling upon the ground that the 1972 amendments were retroactive as to discrimination complaints administratively pending at the time they went into effect. See Hackley v. Johnson, 360 F.Supp. 1247, 1249 n. 1 (D.D.C.1973). We concur in this determination of the scope of Title VII’s coverage. See, e. g., Grubbs v. Butz, 169 U.S.App.D.C. 82, 514 F.2d 1323 (1975); Womack v. Lynn, 164 U.S.App.D.C. 198, 504 F.2d 267, 269 & nn. 4, 6 (1974). See also, e. g., Sperling v. United States, 515 F.2d 465, 474-475 (3d Cir. 1975); Koger v. Ball, 497 F.2d 702 (4th Cir. 1974). . Hackley v. Johnson, 360 F.Supp. 1247" }, { "docid": "4220957", "title": "", "text": "Jackson v. United States Civil Service Commission, Civil No. 72-H—1003 (S.D.Tex., filed Dec. 13, 1973). Griffin v. United States Postal Service, 385 F.Supp. 273 (M.D. Fla., 1973). Several courts have taken a contra position. The court in Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973), rejected the contention that the 1972 Act contained any requirement of an automatic trial de novo. Similarly, the court in Handy v. Gayler, 364 F.Supp. 676 (D.Md.1973), ruled that the 1972 Act, envisioned only a review of the administrative record. See Spencer v. Schlesinger, 374 F.Supp. 840 (D.D.C., filed Apr. 23, 1974). Pointer v. Sampson, 62 F.R.D. 689 (D.D.C., filed Apr. 18, 1974). Williams v. Mumford, Civil No. 1633-72 (D.D.C., filed Aug. 17, 1973). It is also interesting to note that the court in Thompson v. United States Dept. of Justice, 372 F.Supp. 762 (N.D.Cal.1974), upon which many of the district courts holding in favor of a trial de novo relied, recently reversed itself and held in favor of review of the administrative record. This court is persuaded by the reasoning of the latter cases. Particularly apropos at this point is the reasoning set forth by Judge Gesell in his opinion in Hackley. There is a need to establish an especially high standard of review in government employment cases involving aspects of discrimination prohibited by the Civil Rights Act of 1972, but an interpretation that embraces an automatic requirement of trial de novo in all instances with all its inherent uncertainties and substantial delays will defeat rather than advance the Act’s objectives. The trial de novo is not required in all cases. The District Court is required by the Act to examine the administrative record with utmost care. If it determines that an absence of discrimination is affirmatively established by the clear weight of the evidence in the record, no new trial is required. If this exacting standard is not met, the Court shall, in its discretion, as appropriate, remand, take testimony to supplement the administrative record, or grant the plaintiff relief on the administrative record. 360 F.Supp. at 1252. Accordingly, defendants’ motion for summary judgment" }, { "docid": "946751", "title": "", "text": "final agency action on Evono’s claim of racial discrimination, finding no such discrimination. On January 17, 1973, the Assistant Attorney General for Administration upheld Evono’s separation from the Marshals Service. Evono, on February 5, 1973, through counsel, noted a timely appeal of both decisions to the Civil Service Commission (CSC). The Atlanta Regional Office of the CSC also upheld the removal and the finding of no racial discrimination in a decision on July 17, 1973. Thereafter, on December 6, 1973, the CSC Board of Appeals and Review sustained Evono’s removal and found also that there was insufficient evidence to support his claim that the removal was racially motivated. Shortly thereafter, Evono filed this civil action in a timely manner on December 26, 1973. In passing the Equal Employment Opportunity Act of 1972, it is clear that Congress intended a judicial review of the administrative record in cases arising under that Act, and not a trial de novo. See, e. g., Pointer v. Sampson, 62 F.R.D. 689 (D.D.C.1974) (Gasch, J.); Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973) (Gesell, J.), appeal pending, No. 73-2072 (D.C. Cir.). See also League of United Latin American Citizens v. Hampton, supra. The traditional remedy, of course, for aggrieved federal employees, in personnel matters of a non-Title VII nature, is also judicial review on the record after exhaustion of administrative remedies. Polcover v. Secretary of Treasury, 155 U.S.App.D.C. 338, 477 F.2d 1223 (1973). Therefore, after careful review of the entire administrative record, the Court finds that there is a rational basis in that record for the decision of the CSC sustaining plaintiff Evono’s removal, and that the removal action was not the result of racial discrimination. 5 U.S.C. § 706(2). Cf. O’Leary v. Macy, 111 U.S.App.D.C. 357, 297 F.2d 434 (1961), cert. denied, 370 U.S. 953, 82 S.Ct. 1603, 8 L.Ed.2d 819 (1962). Compare Mendelson v. Macy, 123 U.S.App.D.C. 43, 356 F.2d 796 (1966). IV Accordingly, it is this 5th day of August, 1974, Ordered and adjudged that the complaint of plaintiffs Roney and Miller be, and the same is hereby, dismissed for lack of subject matter" }, { "docid": "2228851", "title": "", "text": "study of the legislative history does not point to a reading of congressional intent that conflicts with the foregoing interpretation of section 717 of the 1972 Act. As Judge Gesell concludes in Hackley v. Johnson, 360 F.Supp. 1247, 1250 (D.D.C.1973) after a lucid and exhaustive analysis of the legislative history and the 1972 Act, A search of the legislative history and consideration of the Act’s language reveals no clear-cut congressional determination to require trial de novo as a matter of right nor does the Act itself specify the standard of review short of this which Congress may have contemplated would be applied. It is apparent that Judge Gesell is speaking of a trial de novo in the sense of conducting a wholly new trial without regard to the administrative record developed in the Civil Service Commission. He had quoted Senator Williams, one of the sponsors of the bill, whose statement ended Aggrieved employees or applicants will also have the full rights of review available in the courts. Judge Gesell then declares: This conclusion is also supported by the rest of the Act’s language and by common sense. It is clear the Court was authorized to act if the administrative process was delayed. Congress wanted prompt and consistent deci sions in these discrimination matters. A trial de novo does not accomplish this but rather works in the opposite direction for a wholly new record must be made and opportunity for reasonable discovery provided. Hackley, supra at 1252. It is also evident that Judge Gesell determines that the district court should make an independent determination of fact based on the “clear weight of the evidence” in the administrative record, which in the discretion of the district court might be supplemented. He states The trial de novo is not required in all cases. The District Court is required by the Act to examine the administrative record with utmost care. If it determines that an absence of discrimination is affirmatively established by the clear weight of the evidence in the record, no new trial is required. If this exacting standard is not met, the" }, { "docid": "12553098", "title": "", "text": "we stated in Grubbs v. Butz, supra note 52, 169 U.S.App.D.C. at 87, 514 F.2d at 1328, “the Act is in part a response to Congressional realization that ‘the doctrine of exhaustion of remedies . . . had become [a] barrier to meaningful court review’ ” (quoting Hackley v. Johnson, 360 F.Supp. 1247, 1251 (D.D.C.1973), rev’d sub nom. Hackley v. Roudebush, 171 U.S.App.D.C. 376, 520 F.2d 108 (1975) (footnote omitted)); see also S.Rep. No. 92-415, supra note 26, at 16; H.R.Rep. No. 92-238, supra note 26, at 22-26. . Love v. Pullman Co., supra note 51, 404 U.S. at 526-527, 92 S.Ct. at 619, 30 L.Ed.2d at 684-685. . Shehadeh v. C & P Tel. Co., 193 U.S.App.D.C. 326, 342, 595 F.2d 711, 727 (1978). . See, e. g., Russell v. American Tobacco Co., 528 F.2d 357, 365 (4th Cir. 1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1666, 1667, 48 L.Ed.2d 176 (1976); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462, 464 (5th Cir. 1970); Tipler v. E. I. duPont de Nemours & Co., 443 F.2d 125, 131 (6th Cir. 1971); Waters v. Heubelin, Inc., 547 F.2d 466, 468 (9th Cir. 1976), cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1100 (1977). As the Fifth Circuit observed in Sanchez, “the specific words of the [administrative] charge of discrimination need not presage with literary exactitude the judicial pleadings which may follow.” 431 F.2d at 465. . Had President been a private-sector employee filing a complaint with EEOC rather than an employee of the Federal Government filing the identical complaint with the employing agency, there would have been little question as to the availability of promotion as a remedy in his civil action. We are unable to discern in the text or legislative history of § 717 anything indicating that when Congress extended Title VII coverage to federal employees, in 1972, it intended to draw any such distinction. . Our conclusion that Congress must have intended the agency to share the task of determining appropriate relief is buttressed by an examination of the regulations issued by the Civil" }, { "docid": "923192", "title": "", "text": "1972. The Conference Report is found in S.Rep.No.92-681, 92d Cong., 2d Sess. (1972), and is reprinted in part in 2 U.S.Code Cong. & Admin.News, p. 2179 (1972). On March 24, 1972 the Equal Employment Opportunity Act of 1972 took effect. . For analysis of Judge Gesell’s opinion see, Comment, Hackley v. Johnson: The Federal Employee’s Right to Trial De Novo Review of Civil Service Discrimination Determinations, 123 U.Pa.L.Rev. 206 (1974). The author concludes that a “close analysis of the language [of 717(c)] suggests that a trial de novo was' intended.” Id. at 208. . 360 F.Supp. 1247 (D.D.C.1973). . 385 F.Supp. 1096 (D.Del.1974). . 360 F.Supp. at 1252-53; 385 F.Supp. at 1099-1102. . 360 F.Supp. at 1252. . The classic trichotomy is proof beyond a reasonable doubt, clear and convincing proof, or proof by a preponderance of the evidence. It is unclear where the “clear weight” test lies between the reasonable doubt and the preponderance of evidence standards, or whether in fact, it makes any difference. . § 717(c); 5 C.F.R. § 713.231 et seq. . Compare with the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Remand from the district court to the administrative agency is permitted under 5 U.S.C. § 706. . 385 F.Supp. at 1099-1102. . Id. at 1099. See the concluding paragraph of this section, p. 484 infra. . Id. at 1102. . In Hackley v. Johnson, supra, Judge Gesell appears to have taken the view that a complainant satisfies his or her burden of going forward by introducing any proof suggestive . of discrimination. “Those who feel aggrieved, once having brought forward any proof suggestive of discrimination, are entitled to require those most cognizable of the relevant employment practices to come forward and disprove the accusation by the clear weight of the evidence.” 360 F.Supp. at 1253. We believe this view to be incorrect. The burden is on the federal employee to prove his or her discrimination claim by a preponderance of the evidence. . 5 U.S.C. § 7151 provides: “It is the policy of the United States to" }, { "docid": "10653525", "title": "", "text": "as the court noted in Henderson v. Defense Contract Administration Services, 370 F.Supp. 180 (S.D.N.Y.1973): “. . . Senator Cranston, one of the cosponsors of the Act, was origi nally reported to have stated that there was no right to a de novo trial in this type of suit. Subsequently, after this statement was brought to his attention, he corrected the record and categorically asserted: ‘As with other cases brought under title VII of the Civil Rights Act of 1964, Federal district court review would not be based on the agency and/or CSC record and would be a trial de novo.’ ” 370 F.Supp. at 184 [footnotes omitted]. On the other hand, certain language in the legislative history envisions only “review of the administrative proceeding record.” The fact that the Civil Service Commission was granted substantially greater remedial powers than those held by the Equal Employment Opportunity Commission tends to indicate that de novo litigation in federal employee, cases is less appropriate than in private sector employee cases. However, the fact that a federal employee can, following an adverse decision by his employing agency, file an action in federal district court directly and bypass the Civil Service Commission, § 2000e-16(c), carries an opposite implication. The leading case on the issue of trial de novo in federal employee discrimination cases is Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973). There, Judge Gesell reached the conclusion, based on the legislative history of the 1972 Act, “common sense”, experience, and precedent, that no automatic trial de novo is required: “The trial de novo is not required in all cases. The District Court is required by the Act to examine the administrative récord with utmost care. If it determines that an absence of discrimination is affirmatively established by the clear weight of the evidence on the record, no new trial is required. If this exacting standard is not met, the Court shall, in its discretion, as appropriate, remand, take testimony to supplement the administrative record, or grant the plaintiff relief on the administrative record.” 360 F.Supp. at 1252. Most courts that have considered this issue" }, { "docid": "8969130", "title": "", "text": "(D.D. C.1973). . It is not totally clear, however, how Judge Gesell considered the burden of proof was to be allocated. He stated: The District Court is required by the Act to examine the administrative record with utmost care. If it determines that an absence of discrimination is affirmatively established by the clear weight of the evidence in the record, no new trial is required. * * * * * * Those who feel aggrieved, once having brought forward any proof suggestive of discrimination, are entitled to require those most cognizable [sic] of the relevant employment practices to come forward and disprove the accusation by the clear weight of the evidence. Id. at 1252-1253. This approach may be inconsistent with that enunciated by the Supreme Court in other Title VII contexts. See 171 U.S.App.D.C. p. -, 520 F.2d p. 157 infra. Moreover, although Judge Gesell held that the lack of discrimination must be proved by the “clear weight of the evidence,” 360 F.Supp. at 1252, he actually affirmed the finding of no discrimination because it was “supported by a preponderance of the evidence.” Id. at 1255. The potential vagaries of the standard of review if the federal employee is not accorded a trial de novo with the same standard and allocation of the burden of proof as govern private sector employee civil actions are considerable. See, e. g., note 152 infra. . See generally 171 U.S.App.D.C. pp. ---, ---, 520 F.2d pp. 118-122, 142-159 infra. . Since this remand will probably result in the introduction of further evidence in this case, we do not address appellant’s alternative claim that even under the standard of review applied in the District Court, summary judgment was improper because an absence of discrimination was not shown by a preponderance of the evidence already available. . In September 1967 appellant was promoted to the GS-9 level and in November 1968 he was promoted to GS-11. These rapid advances were partially due to the fact appellant had been hired at a lower salary level than the GS-ll which is normal for his position, since he was" }, { "docid": "10653526", "title": "", "text": "can, following an adverse decision by his employing agency, file an action in federal district court directly and bypass the Civil Service Commission, § 2000e-16(c), carries an opposite implication. The leading case on the issue of trial de novo in federal employee discrimination cases is Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973). There, Judge Gesell reached the conclusion, based on the legislative history of the 1972 Act, “common sense”, experience, and precedent, that no automatic trial de novo is required: “The trial de novo is not required in all cases. The District Court is required by the Act to examine the administrative récord with utmost care. If it determines that an absence of discrimination is affirmatively established by the clear weight of the evidence on the record, no new trial is required. If this exacting standard is not met, the Court shall, in its discretion, as appropriate, remand, take testimony to supplement the administrative record, or grant the plaintiff relief on the administrative record.” 360 F.Supp. at 1252. Most courts that have considered this issue have adopted the Hackley position. A minority of courts has concluded that employees of the federal government are entitled to a trial de novo just as employees in the private sector are so entitled. This view has received scholarly support. On balance, this Court , determines that the Hackley position is the better view. In the absence of clear guidelines from Congress, it is appropriate for the courts to consider the inter ests of judicial economy and fairness before requiring an automatic trial de novo. To the extent that a trial de novo would require pretrial discovery and trial proof of factual background already developed in administrative proceedings, it would be unjustifiably duplicative. Moreover, in light of the fact that procedural and substantive rights of a grievant before the Civil Service Commission are significantly greater than correlative rights before the Equal Employment Opportunity Commission, it is not unfair that the rights of federal and private employees to a trial de novo are not symmetrical. See Pointer v. Sampson, supra, 62 F.R.D. at 693. Finally, this" }, { "docid": "4918669", "title": "", "text": "Moses Saunders, C-74-0520; Jose Terrazas, C-74-0764; Joshua Williams, C-73-1794. The claims of Etta Saunders I, C-73-0241, and Manuel Alvarado, C-74-0764, were never processed at even the agency level. . Gwendolyn Dawson, C-74-0764; Elly Diggs, C-73-1794; Joseph Ellis, C-73-1794; Moses Saunders, C-74-0520 (harassment claim only); Jose Terrazas, C-74-0764; Joshua Williams, C-73-1794. . The exact scope of the discrimination claims of each plaintiff will be determined at a later time during the pretrial preparation. . Memorandum Opinion and Order, Ellis v. Naval Air Rework Facility, 404 F.Supp. 377 (N.D.Cal., June 20, 1975). This Court has also previously certified this suit as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. Ellis v. Naval Air Rework Facility, supra, 404 F.Supp. 391, 1975. . See Hackley v. Roudehush, 520 F.2d 108 (D.C.Cir. 1975); Sperling v. United States, 515 F.2d 465 (3d Cir. 1975); Caro v. Schultz, 521 F.2d 1084 (7th Cir., 1975); cf. Chandler v. Johnson, 515 F.2d 251 (9th Cir. 1975); Salone v. U. S., 511 F.2d 902 (10th Cir. 1975). For a survey of the varying judicial views taken on the issue see, also, Rotstein, Robert H., “Federal Employment Discrimination: Scope of Inquiry and the Class Action Under Title VII”. 22 UCLA Law Review 6 : 1288 (Aug. 1975). . The government did concede that in certain instances the district court in its discretion could supplement the records of the administrative hearings. Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973). However, the government contended that in the cases presently at bar no supplementation would be appropriate either (1) because the records were adequate, or (2) plaintiffs had failed to preserve their objections to the current state of the records. . As the Court of Appeals so clearly explained, the district court’s faulty analysis of the legislative history resulted in judicial misconstruction by many courts of the legislative intent underlying the 1972 amendments to Title VII. See Thompson v. United States Department of Justice, Bureau of Narcotics and Dangerous Drugs, 372 F. Supp. 762 (N.D.Cal.1974); Handy v. Gayler, 364 F.Supp. 676 (D.Md.1973); and other progeny of Hackley v. Johnson," }, { "docid": "5673540", "title": "", "text": "ORDER GRANTING SUMMARY JUDGMENT WOLLENBERG, District Judge. Plaintiff Charles Dennis Thompson brings this action under the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000-16, claiming he was terminated from employment as a Special Agent with the Bureau of Narcotics and Dangerous Drugs (hereinafter “the Bureau”) on account of his race. On April 7, 1972, plaintiff was informed by the Bureau that his employment was terminated, and he filed a Complaint of Discrimination with the Equal Employment Opportunity Officer of the Bureau on May 10, 1972. Subsequently, a thorough investigation of plaintiff’s charges was made, and plaintiff was provided a complete summary of the investigation, including findings and recommendations, in a letter dated December 4, 1972, from Kenneth G. Cloud, Equal Employment Opportunity Officer for the Bureau. That letter is a part of the record in this case and is included in the compilation of certified copies of personnel records regarding plaintiff and is attached to defendant’s motion for summary judgment filed May 3, 1973. Hereinafter this compilation of personnel records will be referred to as the “Administrative Record”. The case is now before the Court on defendant’s second motion for summary judgment. In an order filed June 12, 1973, 360 F.Supp. 255, the Court denied “defendant’s” first motion for summary judgment and held that under the Equal Employment Opportunity Act plaintiff is entitled to a trial de novo on his charges of racial discrimination. Since then, the Court has had the benefit of three other decisions which have considered the same question and held that a trial de novo is not necessarily required in district court actions under § 2000e-16. Handy v. Gayler, 364 F.Supp. 676 (D.Md.1973); Williams v. Mumford, Civ. No. 1633-72 (D.D.C. filed August 20, 1973); Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973). In Hackley v. Johnson, supra, which was relied upon by both the other cases cited, Judge Gesell meticulously considered the text, purpose and legislative history of the Equal Employment Opportunity Act and concluded no new hearing in district court is necessary if “the clear weight of the evidence” in the administrative record supports" }, { "docid": "5673541", "title": "", "text": "to as the “Administrative Record”. The case is now before the Court on defendant’s second motion for summary judgment. In an order filed June 12, 1973, 360 F.Supp. 255, the Court denied “defendant’s” first motion for summary judgment and held that under the Equal Employment Opportunity Act plaintiff is entitled to a trial de novo on his charges of racial discrimination. Since then, the Court has had the benefit of three other decisions which have considered the same question and held that a trial de novo is not necessarily required in district court actions under § 2000e-16. Handy v. Gayler, 364 F.Supp. 676 (D.Md.1973); Williams v. Mumford, Civ. No. 1633-72 (D.D.C. filed August 20, 1973); Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973). In Hackley v. Johnson, supra, which was relied upon by both the other cases cited, Judge Gesell meticulously considered the text, purpose and legislative history of the Equal Employment Opportunity Act and concluded no new hearing in district court is necessary if “the clear weight of the evidence” in the administrative record supports the agency’s findings. 360 F.Supp. at 1252. Plaintiff here seeks to distinguish all these cases on the ground that in each of them the complaining party had been afforded an administrative hearing in which he could present witnesses and evidence and could respond to the testimony against him. Because he has not had an administrative hearing on his complaint, plaintiff argues, a decision on the merits by this Court without holding a trial de novo would deny him his due process right to a hearing. Under the indicator labeled “EEO” in the Administrative Record is a letter dated December 4, 1972, from Kenneth G. Cloud to the plaintiff. The letter summarizes at length the evidence against plaintiff’s claims of discrimination and advises plaintiff of his right to a hearing: You also have the right to request a hearing in this matter, with a final decision to be rendered by the Complaint Adjudication Officer for the Department of Justice. The regulations provide that you have 15 days from receipt of this letter to request a hearing." }, { "docid": "15351810", "title": "", "text": "v. Lynn, 507 F.2d 1186. (D.C. Cir. 1974). . See Quaker Action Group v. Hickel, 137 U.S.App.D.C. 176, 421 F.2d 1111, 1116 (1969); Industrial Bank of Washington v. Tobriner, 132 U.S.App.D.C. 51, 405 F.2d 1321, 1324 (1968). Before granting a preliminary injunction, the trial judge must also consider “the inconvenience that an injunction would cause the opposing party, and must weigh the public interest as well.” Quaker Action Group v. Hickel, supra, 421 F.2d at 1116. . Prior to the enactment of the EEOA, several draft bills, in dealing with complaints of discrimination advanced by private employees, did provide that the jurisdiction of the court would become exclusive once a civil action was filed and that administrative processing of the complaint would have to cease at that point. See, e.g., S. 2515, 92d Cong., 1st Sess, § 4; H.R. 1746, 92d Cong., 1st Sess, § 8. No such provision appeared in the legislation that was ultimately enacted. . Section 2000e-5(f)(l) may be made explicit- ' ly applicable to the federal employment situation by § 2000e— 16(d). See note 16 supra. If so, its relevance to Ms. Grubbs’ claim of exclusive jurisdiction in the federal court is of course heightened. . The authority to issue regulations appropriate to the carrying out of its responsibilities under the EEOA is granted to the Civil Service Commission by 42 U.S.C. § 2000e-16(b). . Hoffenberg v. Kaminstein, 130 U.S.App.D.C. 35, 396 F.2d 684, 685 (1968), cert. denied, 393 U.S. 913, 89 S.Ct. 235, 21 L.Ed.2d 199 (1968). . See, e. g., Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973) (appeal pending); Johnson v. United States Postal Service, 364 F.Supp. 37 (D.Fla.1973); Thompson v. United States Department of Justice, Bureau of Narcotics and Dangerous Drugs, 360 F.Supp. 255 (C.D.Cal. 1973); Guilday v. Department of Justice, 385 F.Supp. 1096 (D.Del. 1974). . Notwithstanding any implication to the contrary in the trial court’s ruling, the mere fact that the administrative record is subject to review does not dispose of Ms. Grubbs’ irreparable harm claim. Without the assurance that she will be able to present her own evidence in court," }, { "docid": "4918638", "title": "", "text": "bringing certain claims under Title VII because' they have failed to exhaust their available administrative remedies, they would also be precluded from raising these claims pursuant to 42 U.S.C. § 1981 or the Fifth Amendment. Bowers v. Campbell, supra. Plaintiffs cannot circumvent the exhaustion requirements by alleging additional jurisdictional grounds. Accordingly, all jurisdictional grounds other than Title VII are dismissed. McLaughlin v. Callaway, 382 F. Supp. 885 (S.D.Ala.1974). II. SCOPE OF REVIEW Ten of the eleven plaintiffs’ claims were investigated by the employees’ own agency at the naval base (5 C.F.R. §§ 713.213-713.218). Six of the plaintiffs also had more formal “quasi-judicial” hearings before the Civil Service Commission (“CSC”) (5 C.F.R. § 713.231). Bowers v. Campbell, supra. The defendants contend that the records produced by these administrative bodies adequately develop the discrimination claims,. that any deficits in the records are due to plaintiffs’ own failure to make timely requests for additional information or witnesses, and that the Court is, therefore, limited to reviewing the administrative records and determining whether “an absence of discrimination is affirmatively established by the clear weight of the evidence”. Hackley v. Johnson, 360 F.Supp. 1247, 1252 (D.D.C.1973); Chandler v. Johnson, 515 F.2d 251 (9th Cir. 1975); Salone v. U. S., 511 F.2d 902 (10th Cir. 1975). Plaintiffs, on the other hand, contend the available administrative records have serious deficiencies that can only be remedied through judicial discovery. They contend that at the least they are entitled to supplement the administrative record (Chandler v. Johnson, supra), and that the more appropriate relief would be a hearing de novo in district court. Sperling v. United States, 515 F.2d 465 (3d Cir. 1975). A. The District Court Decisions Federal employees were expressly excluded from the coverage of Title VII as it was initially enacted. 42 U.S.C. § 2000e(a) and (e). In 1972, Title VII was amended by the Equal Opportunity Employment Act of 1972 (42 U.S.C. § 2000e-16), and federal employees were brought within the ambit of the Act. Since that time, the scope of judicial review in federal employee discrimination cases has been a much litigated issue. Several" }, { "docid": "4138013", "title": "", "text": "regarding the scope of review of actions brought by federal employees under the Amendments. The Court concluded from the language of the 1972 Amendments and the report of the Congressional managers that federal employees are entitled to a trial de novo, not merely a review of the administrative record, for actions brought under 42 U.S.C. § 2000e-16. 360 F.Supp. 256-58. However, see 372 F.Supp. 762 (1974) where the same court reversed itself and' held that no de novo trial was required. Judge Newell Edenfield of this district recently ruled that in a Title YII suit brought by a federal employee who has properly completed the administrative prerequisites to filing suit, the federal employee is entitled to a trial de novo on the merits and not merely a review of the administrative record employing a “substantial evidence” standard of review. Henry Thomas v. George W. Camp, (Civ. No. C75-652A, decided September 8, 1975). Even more persuasive is Judge Gibbons’s opinion in Sperling v. United States, 515 F.2d 465, 474-484 (3 Cir. 1975), which extensively analyzed the legislative history of the Act and concluded that the analysis of Judge Ge-sell’s leading opinion in Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973) misread the Act’s legislative history. The Third Circuit in Sperling found that a federal employee under § 2000e-16 had a right to a trial de novo. Accordingly, based on the Sperling decision, the Fifth Circuit’s recent citation with approval of the earlier Thompson case in Parks v. Dunlop, and Judge Edenfield’s decision in Thomas v. Camp, supra, this Court concludes that Mr. Jones is entitled to a de novo trial, not merely a review of the administrative record under § 2000e-16. III. Scope of Relief Under U.S.C. § 1981 The defendant Brennan argues that plaintiff’s claims for injunctive, declaratory, compensatory and back-pay relief against the defendant government officers are barred by the sovereign immu nity doctrine. Penn v. Schlesinger, 490 F.2d 700, 703 (5 Cir. 1973) (Penn I). The Fifth Circuit reversed itself on the administrative exhaustion issue in an en banc decision in Penn v. Schlesinger, 497 F.2d 970 (5 Cir." }, { "docid": "923193", "title": "", "text": ". Compare with the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Remand from the district court to the administrative agency is permitted under 5 U.S.C. § 706. . 385 F.Supp. at 1099-1102. . Id. at 1099. See the concluding paragraph of this section, p. 484 infra. . Id. at 1102. . In Hackley v. Johnson, supra, Judge Gesell appears to have taken the view that a complainant satisfies his or her burden of going forward by introducing any proof suggestive . of discrimination. “Those who feel aggrieved, once having brought forward any proof suggestive of discrimination, are entitled to require those most cognizable of the relevant employment practices to come forward and disprove the accusation by the clear weight of the evidence.” 360 F.Supp. at 1253. We believe this view to be incorrect. The burden is on the federal employee to prove his or her discrimination claim by a preponderance of the evidence. . 5 U.S.C. § 7151 provides: “It is the policy of the United States to insure equal employment opportunities for employees without discrimination because of race, color, religion, sex, or national origin. The President shall use his existing authority to carry out this policy.” The President implemented this policy with his issuance of Executive Order 11478. . 5 C.F.R. § 713.261(a)." } ]

[ { "docid": "6797838", "title": "", "text": "It is our view that a plea of guilty puts the accused in jeopardy, and even though the plea be withdrawn, or its acceptance' refused by the trial judge, so long as it is permitted to stand, there is jeopardy, and the cases which hold that jeopardy charge had attached at the first trial by reasoning that jeopardy did not come to an end until the accused was acquitted or his conviction became final, are cited in the note to Green v. United States, supra, 355 U.S. at page 189, 78 S.Ct. at page 224. We are, therefore, unable to sustain the position of the government that no jeopardy resulted from the plea of guilty in the Nashville case. Be that as it may, it is an inescapable element to sustain a defense of double jeopardy that the two cases must involve the same offense: “The recognized test for determining the identity or separateness of offenses chai\"ged in two indictments is whether or not the same proof will sustain a conviction under both, or whether one requires proof of facts not required by the other.” Bacom v. Sullivan, 5 Cir., 200 F.2d 70, 71, certiorari denied, 345 U.S. 910, 73 S.Ct. 651, 97 L.Ed. 1345. The Memphis indictment does not charge making, or forging, nor were the acts of possessing and passing of counterfeit bills either on the same day or at the same place. In that respect, the present case differs from Smith v. United States, 6 Cir., 211 F.2d 957; Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905, overruling, 6 Cir., 213 F.2d 629 and Rayborn v. United States, 6 Cir., 234 F.2d 368. The only common denominators in the present case were that the transfer in each instance was made to the same Secret Service Agent and that the notes were probably printed from the same plate. They were, however, undoubtedly different notes and the plea of guilty in Nashville pertained not only to their manufacture but to the passing and possession of a quantity far in excess of the number involved" } ]

[ { "docid": "6771834", "title": "", "text": "and had pleaded guilty, followed by judgment of conviction and sentence for that offense. The $20.00 Federal Reserve Notes which the officers had found in the possession of each of the Phelps brothers were clearly proved by expert testimony to be counterfeit. The only witnesses, however, who traced that counterfeit back to the defendant were the Phelps brothers themselves. Each of the Phelps brothers had been convicted of a felony, and each had testified that he was a willing accomplice with the defendant in the commission of the crimes here charged. Two things occurred, however, which made defendant’s conviction almost inevitable, and in connection with each of these occurrences we find that reversible error was committed, First, the Government produced two surprise witnesses: Warren Odham, a former employee of the defendant in his dog food plant; and John Marshall, a Government Secret Service Agent. Odham testified that in April, 1957, the defendant had given him three twenty-dollar counterfeit bills with the statement that, “We will split them.” Odham testified that Secret Service Agent Marshall was called and the counterfeit bills shown to him, and that under his supervision he returned the counterfeit bills to the defendant. Mr. Marshall verified the fact that Odham had shown him three counterfeit twenty-dollar notes, each of which bore the same serial number, and that he had instructed Odham to deliver the notes to the defendant; that the last he saw of the notes they were in Odham’s possession; that he did not see Odham deliver the notes to defendant, but did see him go to defendant’s dog food plant with the notes, and “When Mr. Odham left the dog food plant I searched his pockets and he did not have the three notes in his possession.” This transaction, though of course known to the Government, was in no way referred to among the overt acts of the alleged conspiracy or in any other way in any count of the indictment. Obviously, it was saved to be used as a surprise knockout blow. As soon as the testimony started coming in, defendant’s counsel objected and" }, { "docid": "23549051", "title": "", "text": "ten additional counterfeit bills. Five of these counterfeits were twenty-dollar bills, and the other five were fifty-dollar bills. B. On November 13, 2001, criminal complaints were filed against Leftenant and Freeman in the Eastern District of Virginia, charging them with possession of counterfeit obligations of the United States, in violation of 18 U.S.C. § 470. On November 26, 2001, Leftenant and Freeman were arrested in connection with this charge. Two days later, on November 28th, the Government sought to amend the complaints to clarify that they intended to charge a violation of 18 U.S.C. § 472, rather than § 470, because § 470 applies only to acts committed outside the United States. After a detention hearing on November 28, 2001, and a bond reconsideration-hearing conducted six days later, Leftenant was released on a personal recognizance bond on December 4, 2001. Thereafter, on December 28, 2001, the Government gave Leftenant and Freeman the opportunity to plead guilty to a misdemeanor charge. On that date, the Government filed a criminal information in the district court, charging Leftenant and Freeman with a misdemeanor offense, namely, possession of paper similar in size and shape to lawful currency with the intent to use it fraudulently, in violation of 18 U.S.C. § 491(b). On January 17, 2002, Leftenant and Freeman were arraigned on this misdemeanor charge, and trial was scheduled for March 7, 2002. On January 22, 2002, Freeman pled guilty to the misdemeanor, and he was later sentenced to three years of probation. After a breakdown in plea negotiations with Leftenant, however, the Government discontinued its effort to prosecute him on the misdemeanor charge, and it instead presented the grand jury with an indictment charging felony possession of counterfeit bills. In particular, the indictment charged Leftenant with violating 18 U.S.C. § 472. Because Leftenant possessed groups of bills with six separate and distinct serial numbers,' the indictment charged six counts of felony possession. The grand jury returned the indictment on March 5, 2002, and a jury trial was scheduled for May 29, 2002. On March 15, 2002, Leftenant moved to dismiss the indictment, maintaining that" }, { "docid": "2331721", "title": "", "text": "plead guilty to Count I of the indictment. Calculation of the sentencing guidelines for this count of unlawful possession depended upon whether the base offense could be increased by points for distribution of the firearms, the number of firearms involved, and whether any of the firearms were stolen or had altered serial numbers. The district court found that the cross reference to section 2K2.2 in section 2K2.1(c)(l) of the Sentencing Guidelines did not apply here since the guns named in the possession count of the indictment were not offered for sale by the defendant. Therefore, the enhancements found in section 2K2.2 did not apply to the calculation of the offense level for Count I. Section 2K2.2 would apply, however, to Counts II and III and raise their offense levels to twenty-three or twenty-four points. The court calculated Count I’s offense level to be eighteen points. . The district court rejected the second plea agreement for the same reasons it rejected the first one. The court stated that acceptance of the plea to Count I and the dismissal of the other three counts would “substantially and significantly undermine the statutory purposes of sentencing.”- The court recognized that Counts II and III were more serious than Count I. The court reasoned that Count I would not adequately reflect the seriousness of the actual offense behavior. The third plea agreement called for the defendant to plead guilty to Count II and for the government to dismiss the other counts. The district court accepted this third agreement. The district court calculated that Count II’s total offense level was twenty-two .points after adjustments for the number of firearms involved, the obliteration of serial numbers on a firearm, and the defendant’s acceptance of responsibility. The guideline imprisonment range for this offense was forty-one to fifty-one months for a defendant with no prior criminal history. The district court accepted the plea agreement stating that it “adequately represents the Defendant’s criminal conduct and does not undermine the sentencing guidelines and the statutory purposes of sentencing.” The court sentenced the defendant to forty-one months in prison and three years" }, { "docid": "7492580", "title": "", "text": "WOODROUGH, Circuit Judge. Thomas Carrullo appeals from a judgment of conviction and sentence to ten years imprisonment imposed upon him pursuant to a jury verdict finding him guilty upon six counts of an indictment each of which charged him with unlawfully possessing or with unlawfully passing a described counterfeited security of the United States, to wit, a ten dollar Federal Reserve Note, in violation of Section 472, New Title 18 U.S.C.*A. Three of the counterfeits were described. He contends for reversal (1) that the court erred in admitting in evidence over his objection certain counterfeit ten dollar bills which were not mentioned in the indictment and (2) that the evidence is insufficient to sustain the verdict and judgment. (1) The evidence introduced by the government tended to show that the three counterfeit ten dollar bills described and referred to in the indictment were alike and bore marks which identified them as being part of a large emission of like counterfeit ten dollars bills bearing the same serial number K53375351E that were passed all over the United States. One of them had been sent to the Bureau of Engraving where it was processed by testing the ink and the paper and giving it a thorough scrutinization. There was no evidence as to the methods that had been followed or the circumstances or the environments in which they had generally been passed throughout the United States, but the prosecution introduced evidence tending to show that altogether twelve of the counterfeits were passed at three several road houses of about the same general character and not far from each other in the outskirts of St. Joseph, Missouri, on Sunday-night of January 21-22, 1950, under generally similar circumstances. All the counterfeit ten dollar bills passed within the small area were counterparts of each other and they were all tendered and taken for drinks at the several places and within a short space of time. It was shown that the appellant and a companion visited and made purchases of drinks at each of the roadhouses where the counterfeits were taken in, on the Sunday night" }, { "docid": "9952027", "title": "", "text": "if anything would be thrown out of either side. They saw nothing thrown out. However, as defendants’ vehicle turned to the right into the Patrol Post driveway, it appeared to be momentarily out of control, during which interval, “a fraction of a second,” the officer’s vision of the driver’s side of the Berkley car was blocked. At the police post, the suits purchased were found in the Berkley car. Berkley admitted buying the suits with the $100.00 bills which he then claimed he had won in a poker game. Both defendants denied knowledge that the bills were counterféit. Defendants were indicted on October 22, 1959. On the trial, which commenced on March 2, 1960, the government produced one Bruno Pucci, maintenance man at the mentioned Highway Patrol Post. Over objection, this witness testified that on October 1, 1959, while spreading crushed stone, on the driveway at the Patrol Post, he found in a hole which he was filling a packet of five counterfeit $100.00 bills. Four of these bore a serial number one digit higher than one of the two bills which had been passed by the defendant Berkley five days previously. The fifth bore the identical serial number as one of the bills so passed by Berkley. A government secret service agent testified that no genuine bills ever bear the same serial numbers. Such agent further testified that all of the counterfeit bills introduced in evidence were part of a production of about one million dollars’ worth, $750,000.00 worth of which were seized before they had been put in circulation. The balance had been put in circulation all over the country. About forty of such $100.00 counterfeit bills had been seized in the Cleveland, Ohio, area in the fourteen months preceding the trial, including some that were seized subsequent to defendants’ apprehension on September 26, 1959. The same government witness testified that on January 12, 1960, he talked with defendant Berkley concerning the five counterfeit bills found in the Patrol Post driveway, stating to Berkley, “That was a pretty cute trick you' pulled ditching those notes from the car" }, { "docid": "11915150", "title": "", "text": "on the ground that he had been placed in double jeopardy for a single offense. The district court denied the petition, and petitioner appealed. The question whether petitioner was placed in double jeopardy for a single crime depends upon whether the first indictment and the second count in the subsequent indictment charged the same offense. The recognized test for determining the identity or separateness of offenses charged in two indictments or in different counts in a single indictment is whether the same proof would sustain a conviction under both or whether each requires proof of one or more facts which is not required by the other. Curtis v. United States, 10 Cir., 67 F.2d 943; Schultz v. Zerbst, 10 Cir., 73 F.2d 668; Chrysler v. Zerbst, 10 Cir., 81 F.2d 975; Norton v. Zerbst, 10 Cir., 83 F.2d 677, certiorari denied 299 U.S. 541, 57 S.Ct. 21, 81 L.Ed. 398; Bracey v. Zerbst, 10 Cir., 93 F.2d 8; Reger v. Hudspeth, 10 Cir., 103 F.2d 825, certiorari denied 308 U.S. 549, 60 S.Ct. 79, 84 L.Ed. 462; Rosenhoover v. Hudspeth, 10 Cir., 112 F.2d 667. Here the first indictment charged that the stolen automobile was transported from Omaha, Nebraska, to Los Angeles, California, while the second count in the subsequent indictment charged that the car was transported from Culbertson, Nebraska, to Long Beach, California. The points of origin and destination were not the same. They were entirely different. In addition, the first indictment charged that the automobile was a Plymouth Coach, bearing a certain motor number, and the second charged that the automobile there in question was a Plymouth Sedan, with no number given. The same proof would not have sustained a conviction under both charges. Manifestly each required proof of facts different and distinct from the other. That is too plain to warrant elucidation. It follows that the two charges were not identical, and that acquittal under the former did not bar conviction under the latter. Furthermore, it is well settled that the right of immunity against being placed twice in jeopardy for the same offense, guaranteed by the" }, { "docid": "15103984", "title": "", "text": "On May 12, 1971, an Allis-Chalmers front-end loader, bearing the same transmission and axle numbers as those on the vehicle sold to Road Machinery in July 1970 but with the serial number missing, was recovered in a rural area in the vicinity of McKinney, Texas, when a Texas highway patrolman stopped a large truck in which appellant Bryant was a passenger. The reason for stopping the truck was that it was pulling a trailer carrying an excessive and oversized load, an Allis-Chalmers front-end loader, and the trailer lacked the requisite motor vehicle inspection certificate. Just minutes prior to this incident the same highway patrolman had stopped appellant Impson who was driving a Lincoln Continental automobile. The front-end loader was later determined to be the same vehicle stolen from Georgia. Both appellants were subsequently arrested and charged. At the trial Impson presented no testimony nor did he elect to testify. Bryant, however, testified and introduced testimony of several witnesses in an attempt to establish that he was unaware that the front-end loader had been stolen. Appellants make numerous contentions on appeal, none of which warrants the granting of new trials or reversal of their convictions. We affirm. The evidence was sufficient to prove identity of the stolen vehicle. In order to sustain a conviction under the pertinent statutes the stolen vehicle and the vehicle found in possession of the accused must be identical. While there must be some evidence of common characteristics other than color, make and model of the vehicle, in order to establish proof, identity of the engine serial number is not required. United States v. Johnson, 5 Cir., 1969, 413 F.2d 1396; Watkins v. United States, 5 Cir., 1969, 409 F.2d 1382. The Government’s evidence showed that in the place where the engine serial number plate would normally be affixed there were instead four holes and that the number plate is easily removable with a screwdriver or tin snips, as are the axle and transmission number plates. The axle serial number plate is affixed to the rear face of the main housing and is accessible only by crawling" }, { "docid": "17780390", "title": "", "text": "Estes v. United States, 8 Cir., 227 F. 818; Banta et al. v. United States, 9 Cir., 12 F.2d 765; Stubbs v. United States, 9 Cir., 1 F.2d 837; Ramirez v. United States, 9 Cir., 23 F.2d 788; Boone v. United States, 8 Cir., 257 F. 963, 965. 3. There is no merit in the contentions relating to double jeopardy and res adjudicata. The first and third counts do charge the passing of the same note but to different persons. It would have been possible for defendant to pass the same note to different persons and thereby commit two separate crimes and failure of the proof as to one would not be an adjudication as to the other, and trial for one after acquittal on the other would not constitute double jeopardy. The record shows that the pleader did not intend in this case to charge two offenses in passing the same note but intended to insert in the first count a different serial number. Through mistake of the pleader, defendant had the benefit of acquittal on the first count, hut that fact does not affect the legal principle involved. 4. A sentence within the limits of the statute is in the discretion of the trial judge and can not be changed by the appellate court. Newman v. United States, 4 Cir., 299 F. 128 (7); Maresca et al. v. United States, 2 Cir., 277 F. 727 (1); Lonergan v. United States, 8 Cir., 287 F. 538; United States v. Siden, D.C., 293 F. 422 (7). Even if the other assignments of error had not been abandoned in the brief, they are not meritorious. 5. The argument of the United States Attorney complained of was not improper. There was evidence that the note passed to the witness Magee was identical with the other two, except as to serial number and was made from the same plate; that it was passed on the same night the others were passed and was passed in the purchase of gasoline as were the others. Although the passing of that note was not charged in" }, { "docid": "20097485", "title": "", "text": "On the floor underneath the bed, a stack of paper. The paper found here and in the briefcase bore the watermarks “Gilbert Writing 25 percent cotton” and “Circa 83.” The counterfeit currency attributed to the Jones bore both watermarks. Genuine currency bears no watermarks. In the Jones’ kitchen, Matanich located additional sheets of paper that bore the Gilbert watermark and (with the exception of some paper found on the ldtchen table) the Circa 83 watermark as well. In the rear stairway of the house, Matanich discovered a sewing kit containing counterfeit $10 bills without serial numbers and, on a windowsill behind a shoe box top, an ink pad and a stamper. That stamper was of the same type used to stamp serial numbers onto the counterfeit currency, and in fact it was set to reproduce the same serial number found on all of the stamped counterfeit currency in the house. Finally, on top of a television control box in the basement, Special Agent Doyle discovered a counterfeit $100 bill. Both Otto and Ann Jones were arrested before the search of the house was completed; two years later they were indicted. Count One of the indictment alleged that the Jones had conspired throughout June 1989 to make and possess counterfeit U.S. federal reserve notes, in violation of 18 U.S.C. § 371. Count Two alleged that in or about June 1989, the defendants had made counterfeit $100, $50, and $20 federal reserve notes bearing the same serial number with the intent to defraud, in violation of 18 U.S.C. §§ 2 and 471. Count Three asserted that on or about June 29, 1989, the Jones had possessed, again with the intent to defraud, counterfeit $100, $50, and $20 federal reserve notes all bearing the same serial number, in violation of 18 U.S.C. §§ 2 and 472. In advance of trial, Otto Jones sought to suppress evidence of the statements he made following his arrest, as well as the $299 in genuine currency found in the pocket of his bathrobe. Mr. Jones contended that at the time he was arrested and searched, the authorities" }, { "docid": "9952028", "title": "", "text": "than one of the two bills which had been passed by the defendant Berkley five days previously. The fifth bore the identical serial number as one of the bills so passed by Berkley. A government secret service agent testified that no genuine bills ever bear the same serial numbers. Such agent further testified that all of the counterfeit bills introduced in evidence were part of a production of about one million dollars’ worth, $750,000.00 worth of which were seized before they had been put in circulation. The balance had been put in circulation all over the country. About forty of such $100.00 counterfeit bills had been seized in the Cleveland, Ohio, area in the fourteen months preceding the trial, including some that were seized subsequent to defendants’ apprehension on September 26, 1959. The same government witness testified that on January 12, 1960, he talked with defendant Berkley concerning the five counterfeit bills found in the Patrol Post driveway, stating to Berkley, “That was a pretty cute trick you' pulled ditching those notes from the car as you pulled in the Highway Patrol Post.” Asked what Berkley’s reply was, the witness said, “He smiled and said there were nine of those notes.” On cross examination, the witness said that he did not think Berkley’s answer was meant to be facetious. The store proprietors who received the bills testified that when received, they believed them to be genuine. The secret service agent testified that non-experts might accept the bills as bona fide — that they were considered a good counterfeit job. Defendant Berkley had a prior criminal record of two felonies and some juvenile offenses. Defendant Verzi had no criminal record. Berkley, testifying in his own behalf, gave the following account of his possession and passing of the counterfeit bills: He had acquired the bills as part of his winnings in the daily double at a race track on the day previous to passing them; that on the day in question he drove to Ashtabula to look up an old friend. Verzi went along at Berkley’s invitation. They discovered that Berkley’s old" }, { "docid": "6797837", "title": "", "text": "Amendment, no case has been cited to us, and none has been found upon independent investigation, that specifically holds that a plea of guilty does, or does not per se, put an accused person in jeopardy, nor is there any statutory provision in the law against counterfeiting that creates a limitation upon the defense of double jeopardy, or broadens its application. There is, however, the inescapable requirement that the two indictments, or trials, must be for the same offense to create the status of double jeopardy. The rationalization applied in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, would indicate the unsoundness of the government’s position that there was no jeopardy in the Nashville case, in view of the statement therein at page 188 of 355 U.S., at page 224 of 78 S.Ct. that “Moreover it is not even essential that a verdict of guilty or innocence be returned for a defendant to have once been placed in jeopardy so as to bar a second trial on the same charge.” It is our view that a plea of guilty puts the accused in jeopardy, and even though the plea be withdrawn, or its acceptance' refused by the trial judge, so long as it is permitted to stand, there is jeopardy, and the cases which hold that jeopardy charge had attached at the first trial by reasoning that jeopardy did not come to an end until the accused was acquitted or his conviction became final, are cited in the note to Green v. United States, supra, 355 U.S. at page 189, 78 S.Ct. at page 224. We are, therefore, unable to sustain the position of the government that no jeopardy resulted from the plea of guilty in the Nashville case. Be that as it may, it is an inescapable element to sustain a defense of double jeopardy that the two cases must involve the same offense: “The recognized test for determining the identity or separateness of offenses chai\"ged in two indictments is whether or not the same proof will sustain a conviction under both, or whether" }, { "docid": "17117059", "title": "", "text": "the indictment, he cannot now contend that the counts constitute the same offense unless they are facially multiplicitous. Here, the facial allegations of the four counts consisted of distinct offenses, charging Grant with the possession of eleven different weapons in two separate cities on three different dates. While it is true that Counts Two and Three charge Grant with possession of certain weapons on the same day, the two counts allege possession of different weapons in different cities. Count Two alleges possession in Fairhaven of two Glock semi-automatic pistols, and Count Three alleges possession in Westport of another Glock semi-automatic pistol (with a different serial number from either of the two other Glocks) and a Huger semi-automatic pistol. Grant’s guilty plea constituted an admission to each of the distinct factual predicates underlying the separate counts and, consequently, the plea “conceded guilt to [four] separate offenses.” Broce, 488 U.S. at 571, 109 S.Ct. at 763. The four counts being distinct from one another in time, place, or both, and weapon possessed, they are not facially multiplicitous. Grant’s efforts to dodge this conclusion are two-fold. First, he contends that, because neither the PSR nor the plea colloquy establish where Rivera turned the firearms over to Grant, we must disregard the distinction between the reference in Counts One and Two to possession of different firearms in Fairhaven and the reference in Counts Three and Four to possession of other firearms in West-port. Because Grant’s guilty plea to all four counts conceded that his possession of the different firearms took place in the locations alleged in each count, however, no such showing was required. Grant’s second argument is that the sentencing court found that the possession of these weapons amounted to a single course of conduct. Accordingly, Grant reasons, the acts alleged in the four separate counts constitute this single course of conduct, making them the same offense for Double Jeopardy purposes. Again, Grant’s argument fails. First, Grant’s claim that the district court made a finding that his possession of these firearms constituted a single scheme or course of conduct is belied by the" }, { "docid": "11915151", "title": "", "text": "L.Ed. 462; Rosenhoover v. Hudspeth, 10 Cir., 112 F.2d 667. Here the first indictment charged that the stolen automobile was transported from Omaha, Nebraska, to Los Angeles, California, while the second count in the subsequent indictment charged that the car was transported from Culbertson, Nebraska, to Long Beach, California. The points of origin and destination were not the same. They were entirely different. In addition, the first indictment charged that the automobile was a Plymouth Coach, bearing a certain motor number, and the second charged that the automobile there in question was a Plymouth Sedan, with no number given. The same proof would not have sustained a conviction under both charges. Manifestly each required proof of facts different and distinct from the other. That is too plain to warrant elucidation. It follows that the two charges were not identical, and that acquittal under the former did not bar conviction under the latter. Furthermore, it is well settled that the right of immunity against being placed twice in jeopardy for the same offense, guaranteed by the Fifth Amendment lo the Constitution of the United States, is a personal right, and may be waived by the accused. Bracey v. Zerbst, supra; Caballero v. Hudspeth, 10 Cir., 114 F.2d 545; Brady v. United States, 10 Cir., 24 F.2d 399, certiorari denied, 278 U.S. 603, 49 S.Ct. 10, 73 L.Ed. 531. And the waiver may be express or implied. Brady v. United States, supra. Lt is not alleged in the petition for the writ or otherwise suggested that petitioner asserted in any manner in the second criminal case his constitutional guaranty against being tried twice for the same crime. The government introduced in evidence an affidavit of the Assistant United States Attorney for the District of Nebraska, in which certain facts were detailed relating to the proceedings had in the two criminal cases. Proof which is requisite in a proceeding in habeas corpus to secure discharge from confinement after conviction for crime cannot be supplied by an cx-parte affidavit. Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. -. But the error" }, { "docid": "4456599", "title": "", "text": "had been there with Adrian on prior dates. He was told by the Crowes to come back in an hour, which he did, and received $300 in counterfeit ten dollar bills, for which he paid Crowe $120 in genuine money. Brooks, Adrian Higgins and Mary Corn-well were together in Metropolis when' Brooks passed some of the counterfeit bills for himself and some for Adrian. Annie Higgins and Newton Higgins passed a number of the counterfeit bills in Missouri. Newton (Sweety) Higgins discussed the possession of counterfeit bills on a trip from Metropolis, Illinois, to East Prairie, Missouri, in the company of Cecil Williams and Brooks. All of the ten dollar bills in evidence are counterfeit, were made from the same plate, and bear the same serial number. Appellants urge that the court erred in admitting in evidence, under count nine, the eighty-five ten dollar counterfeit notes found in Crowe’s Plymouth car, at Cairo, Illinois, on November 10, 1949; and of the ownership of the car, even though Crowe and his wife admitted such ownership and the fact that they permitted Skekell and his friend Hicks to take it on that date, although denying that they knew anything about the counterfeit bills alleged to have been found in the car. Count nine charged the conspiracy existed from on or about April .15, 1950, and continued until on or about May 1, 1950. When it began is problematical. Brooks is the only defendant admitting his part in it. Appellants denied any participation in it. However, the Government contends that the conspiracy was of a duration longer than merely April 1950, and that it probably included others than those named in the indictment. It further ■ contends that the conspiracy goes back to November 10, 1949, when Skekell and Hicks took Crowe’s Plymouth automobile with eighty-five counterfeit ten dollar bills in it, and passed others of such bills at Cairo, Illinois, before they were arrested. Adrian Higgins was in the conspiracy on or prior to January 8, 1950, when he planned on selling the family 'car so that he could buy some of" }, { "docid": "12019437", "title": "", "text": "protect against all attempts at fraud upon the genuine monetary obligations or securities of the United States.” (Emphasis added.) In 1935 the Tenth Circuit affirmed a conviction for a counterfeiting hoax almost exactly like the one at bar. We quote the Court’s analysis in that case: “The offense denounced by section 148, supra, is the alteration of an obligation of the United States with intent to defraud. The alteration need not be one which destroys or impairs the validity of the obligation. It is enough if an alteration is made in furtherance of a scheme to defraud and it is not necessary that the United States be the intended or actual victim of the scheme. An alteration made as a material part of a scheme to defraud any person comes within the terms of the statute. Crouch v. United States (C.C.A.) 298 F. 437. The test, therefore, is whether the alterations in question were material to a scheme to defraud. The scheme was to convince Billington that through a chemical and rolling process appellants were producing replicas of genuine $5 bills, to persuade him to furnish $2,500 in new bills of five, ten, and fifty dollar denominations under the pretext that they would make replicas and divide the profit, but in fact to abscond with the money thus furnished. In order to convince him that they were producing replicas of genuine notes, it was necessary to exhibit to him two bills bearing the same serial numbers, check letters, and face plate numbers. That was accomplished by the alterations set forth in the indictment. The alterations were not only material to the fraudulent scheme, but they were essential to it. They were the essence of it in the sense that the fraud could not be effected without them. Plainly, the contention that they were immaterial cannot be sanctioned.” Foster v. United States, 10 Cir. 1935, 76 F.2d 183, 184. The above. analysis has recently been quoted by our Court in affirming as to substance the conviction of three men who had increased the trading value of coins by altering the dates" }, { "docid": "13982156", "title": "", "text": "stipulation, the government and appellant’s counsel did advise the jury that said codefendants had passed, the counterfeit bills at the times and places set forth in the indictment. This stipulation includes the statement that appellant “does not admit that he knew at the time that Marion Eugene McClure and Ralph Randy Releford possessed or passed the said fifty dollar counterfeit notes.” Defendant did not testify and rested his case at the conclusion of the government’s proofs. The jury disagreed as to the conspiracy count but found appellant guilty of the substantive offenses charged in counts two, three and four. Concurrent sentences of eight years imprisonment were imposed under counts two and three and five years probation ordered under count four. This appeal charges that there was not sufficient evidence to support the jury’s finding of guilt and that the District Judge erred in the instructions given and in failing to give an instruction requested by defendant-appellant. 1. Sufficiency of evidence It is familiar law that in testing the propriety of setting aside a jury’s verdict of guilty on grounds of insufficient evidence we appraise the government’s evidence and the legitimate inferences therefrom in the light most favorable to the prosecution. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Decker, 304 F.2d 702, 705 (C.A.6, 1962). There was abundant evidence to support the jury’s verdict. July 2, 1962 was a day of much commerce in fifty-dollar counterfeit bills in the cities of Kingsport, Rogersville and Greenville, Tennessee. Some seventeen successful transactions were accomplished on that day in the area described. Each of the notes bore the same serial number — a circumstance peculiar to counterfeit bills. Defendant was positively identified as the person that cashed such notes at Latimer Looney Chevrolet Company, in Kingsport and at Joe’s Food Market, in Rogersville. The identification of defendant as the man who passed one of the notes at Staple-ton’s Super Market, in Rogersville was less positive. Mary Stapleton, wife of the proprietor of Stapleton’s, expressed her guarded belief that defendant, sitting in the court" }, { "docid": "7389292", "title": "", "text": "Opinion for the Court filed by Circuit Judge RANDOLPH. RANDOLPH, Circuit Judge: Juan Bowie appeals his conviction for possession of counterfeit currency, claiming the district court improperly admitted evidence of his possession of counterfeit currency on an earlier occasion. We find the evidence admissible, though not on all the grounds cited by the district court, and therefore affirm the conviction. I. On May 16, 1997, a joint Federal Bureau of Investigation/Metropolitan Police Department narcotics task force executed a search warrant at a southeast Washington, D.C. apartment. During the search, an officer outside noticed Paul Little sitting in the passenger side of a parked green Pontiac with Tennessee plates, drinking a beer and listening to loud music. Little told the officer the car belonged to “Boo” and consented to a search. He also indicated that the driver was upstairs in the apartment building and motioned toward the apartment being searched. Officers found Bowie in the apartment. He identified himself as “Boo” but denied owning the Pontiac. The search of the Pontiac turned up a large amount of counterfeit currency and several items linking Bowie to the car. More than $3,000 of counterfeit twenty and fifty dollar bills were inside a console between the driver’s and passenger’s seats, lying underneath a pager activation form signed by Juan Bowie and dated May 16, 1997. In the glove compartment was a Maryland traffic ticket issued ten days earlier. The ticket named Juan Bowie and indicated he was driving a car with the same Tennessee plates. The glove compartment also contained a court document bearing Bowie’s printed name and what appeared to be his signature. An addition al $90 in counterfeit fifty and twenty dollar bills were inside the pocket of a black leather jacket in the trunk. The serial numbers on the counterfeit bills from the Pontiac’s console and from the trunk were identical. Secret Service agents summoned to the scene recognized the serial numbers on the bills as the subject of an ongoing investigation. They took Bowie to the Secret Service’s Washington Office for questioning. Agents testified at trial that Bowie confessed to" }, { "docid": "12019438", "title": "", "text": "producing replicas of genuine $5 bills, to persuade him to furnish $2,500 in new bills of five, ten, and fifty dollar denominations under the pretext that they would make replicas and divide the profit, but in fact to abscond with the money thus furnished. In order to convince him that they were producing replicas of genuine notes, it was necessary to exhibit to him two bills bearing the same serial numbers, check letters, and face plate numbers. That was accomplished by the alterations set forth in the indictment. The alterations were not only material to the fraudulent scheme, but they were essential to it. They were the essence of it in the sense that the fraud could not be effected without them. Plainly, the contention that they were immaterial cannot be sanctioned.” Foster v. United States, 10 Cir. 1935, 76 F.2d 183, 184. The above. analysis has recently been quoted by our Court in affirming as to substance the conviction of three men who had increased the trading value of coins by altering the dates on such coins. Barnett v. United States, supra, 384 F.2d at 854-855. To be sure, the Tenth Circuit’s conviction in Foster was based on Section 148 (then 18 U.S.C. § 262 and currently codified as 18 U.S.C. § 471) which prohibits “altering” “with intent to defraud” and which has never included in its statutory framework an “intent to pass” requirement. Likewise, the relevant statute in our Barnett case makes any fraudulent altering a crime. Nevertheless, the Foster holding is equally applicable to the present wording of Section 472 which, like Section 471, contains no indication of an “intent to pass” requirement. Moreover, even under the pre-1948 wording of what is now Section 472 many courts repudiated any “intent to pass” requirement. The discussion in United States v. Provenzano, S.D.N.Y. 1909, 171 F. 675, 676-677, demonstrates the earliest such rejection: “It is contended that, where there is mere possession with knowledge of the counterfeit character of the obligation, it is necessary to charge in the indictment, and prove, not only an intent to defraud, but an" }, { "docid": "5597763", "title": "", "text": "charged in the indictment. The jury had heard the evidence and knew that the defendant had passed the four counterfeit bills. Failure to describe more specifically the separate counts of the indictment did not deprive the defendant of any constitutional right nor deprive the court of jurisdiction to render the judgment. The defendant also objects to the trial court’s definition of reasonable doubt and says that “actually the Court gave no definition for reasonable doubt.” In Kenion v. Gill, 81 U.S.App.D.C. 96, 155 F.2d 176, the charge to the jury was questioned in a petition for habeas corpus. There the trial court had instructed the jury that to convict they must find the accused guilty beyond a reasonable doubt, but failed to define reasonable doubt. The court there pointed out, 155 F.2d at page 179, that such an “inadequacy (in the charge) was subject to exception and to appeal”, but held that it did not amount to a denial of due process such as to oust the court of jurisdiction to enter the judgment. The defendant strenuously objects to the statements of the trial judge that the fact that the four bills were counterfeit had “been admitted and proved.” In connection with that statement the court called the jury’s attention to the fact that all four of the bills bore the same serial number which was impossible in anything but counterfeit bills. The bills were introduced in evidence and were before the jury. There was, of course, no denial, nor any attempt to deny, that the bills were counterfeit. In addition to the fact that the bills bore the same serial number, the jury heard the undisputed testimony of Government witnesses that the bills were counterfeit. The defendant further objects to the statement in the charge that the trial judge did not think there was “any great amount of question in the evidence that he (the defendant) did pass these bills at the places indicated.” It is not even reversible error for the court in its instructions to assume the existence of facts, the existence of which is undisputed or" }, { "docid": "18003677", "title": "", "text": "unpersuasive. No person is required to take possession of an unregistered firearm, whether he is the maker, a finder, or a receiver. The Act makes it equally unlawful for any person to receive or possess a firearm which is not registered to him, 26 U.S.C. § 5861(d), or to possess a destructive device which is not identified by a serial number. 26 U.S.C. § 5861 (i). Appellant insists that the indictment is defective because it, in effect, charges him twice with the same offense and that he was tried on the two counts and convicted with identical evidence thus exposing him to double jeopardy. The well-settled rule is, that for the double jeopardy provision to apply, the offense charged and tried in the first count and the offense charged in the second count must be identical in law and fact. The test for determining whether the offenses charged are identical is whether the facts alleged in one, if offered in support of the other, would sustain a conviction. Where one count requires proof of a fact which the other count does not, the separate of fenses charged are not identical, even though the charges arise out of the same acts. Here, Count I charged possession of an unregistered firearm; Count II charged possession of a firearm not identified by a serial number. To convict defendant under Count I, no proof of lack of identification by serial number was needed but Count II did require such proof and it was established by the evidence. Defendant’s claim of double jeopardy must be rejected. Affirmed. . The instruction given read : “Now, tile Government has introduced into evidence a Certificate of the custodian of the National Firearms Register and Transfer Record, to the effect that he has made a diligent search and has found no record of any firearms or destructive device being registered to the defendant. Such a certificate is competent evidence that the item — items introduced in this case were not registered to the defendant. However, it is up to you to determine what evidence you will accept, and what" } ]

[ { "docid": "3368675", "title": "", "text": "amount to a default which excuses the other party’s performance. See Piro v. Pekin Ins. Co., 162 Ill.App.3d 225, 113 Ill.Dec. 220, 223, 514 N.E.2d 1231, 1234 (5th Dist.1987); Circle Security Agency, Inc. v. Ross, 107 Ill.App.3d 195, 63 Ill.Dec. 18, 23, 437 N.E.2d 667, 672 (1st Dist.1982); Hanson v. Duffy, 106 Ill.App.3d 727, 62 Ill.Dec. 401, 406, 435 N.E.2d 1373, 1378 (2d Dist.1982). Only a material breach constitutes a default. Eastern Illinois Trust & Savings Bank v. Sanders, 631 F.Supp. 1393, 1396 (N.D. Ill.1986) aff'd, 826 F.2d 615 (7th Cir.1987). A breach is material when it amounts to the failure to perform an important or substantial obligation under the contract. Anderson v. Long Grove Country Club Estates, Inc., 111 Ill.App.2d 127, 249 N.E.2d 343, 349 (2d Dist.1969). Among the factors to consider in determining whether a breach is material are whether the breach worked to defeat the bargained for objec tive of the parties; whether the breach caused disproportionate prejudice to the nonbreaching party; and whether custom and usage considers such a breach to be material. Eastern Illinois, 631 F.Supp. at 1396; Sahadi v. Continental Illinois National Bank & Trust Co., 706 F.2d 193, 196 (7th Cir.1983). In the instant case, all of the above inquiries must be answered in the affirmative. The Zollicoffers’ failure to make mortgage payments was not a minor or technical breach. Rather, it was a material breach. Illinois courts have consistently held that breach of the duty to make payments under a contract is material. See, e.g., F.E. Holmes & Son Construction Co., Inc. v. Gualdoni Electric Service, Inc., 105 Ill.App.3d 1135, 61 Ill.Dec. 883, 886, 435 N.E.2d 724, 727 (5th Dist.1982) (failure to make installment payments under construction contract is a material breach); B & C Electric, Inc. v. Pullman Bank and Trust Co., 96 Ill.App.3d 321, 51 Ill.Dec. 698, 713, 421 N.E.2d 206, 211 (1st Dist.1981); Brady Brick & Supply Co. v. Lotito, 43 Ill.App.3d 69, 1 Ill.Dec. 844, 848, 356 N.E.2d 1126, 1130 (2d Dist.1976); Watson v. Auburn Iron Works, Inc., 23 Ill.App.3d 265, 318 N.E.2d 508, 511 (2d Dist.1974). This" } ]

[ { "docid": "11375934", "title": "", "text": "Mr. Rosenblum’s action for breach of the Acquisition Agreement. Accordingly, the judgment of the district court is reversed and the case is remanded for further proceedings consistent with this opinion. Mr. Rosenblum may recover his costs of this appeal. Reveesed and Remanded . The parties to the Acquisition Agreement are Mr. Rosenblum and Travelbyus.com, Ltd., a Canadian corporation. Mr. Kerby was the chief executive officer of Travelbyus.com, Ltd., at the time Mr. Rosenblum filed his complaint. Travelbyus.com, Inc., is a Delaware corporation. The relationship between these parties is not revealed by the record and is not material to the issues in this appeal. In the district court, the defendants argued that Mr. Kerby and the American Travelbyus.com were not appropriate defendants in this action. Without expressing any opinion on this issue, we shall refer to the defendants collectively as Travelbyus. . By their terms, the contracts are governed by the laws of Canada and of the Province of Ontario. See R.3, Ex.A art. 1.5; R.12, Ex.B § 21. Neither party has argued that Canadian or Ontario law differs materially from Illinois law on this issue, and both parties have argued Illinois law to the district court and on appeal. We therefore shall apply the law of Illinois. See Brunswick Leasing Corp. v. Wisc. Cent., Ltd., 136 F.3d 521, 525-26 (7th Cir.1998). . See, e.g., Bock v. Computer Assocs. Int’l, 257 F.3d 700, 706-07 (7th Cir.2001) (discussing the meaning and effect of a merger clause); ECHO, Inc. v. Whitson Co., Inc., 52 F.3d 702, 707 (7th Cir.1995) (discussing purpose of merger clause); Betaco v. Cessna Aircraft Co., 32 F.3d 1126, 1132-33 (7th Cir.1994) (same); Barille v. Sears Roebuck & Co., 289 Ill.App.3d 171, 224 Ill.Dec. 557, 682 N.E.2d 118, 122-23 (1997) (same); J & B Steel Contractors, Inc. v. C. Iber & Sons, Inc., 162 Ill.2d 265, 205 Ill.Dec. 98, 642 N.E.2d 1215, 1220 (1994) (same). . The Employment Agreement also contains a merger clause: This Agreement constitutes and expresses the whole agreement of the parties hereto with respect to the employment of the Executive by the Company and with respect" }, { "docid": "13036987", "title": "", "text": "Justine had not received the February 15, 1988, payment. American then had twelve (12) days from February 29, 1988, to make the required payment. American failed to make the payment within the twelve-day grace period, and did not tender payment until March 17, 1988, five days after the deadline of March 12, 1988, and thirty-one days after the February 15, 1988, due date. Justine rejected American’s late payment of the $7,691.67 on March 17, 1988, and by certified letter dated March 18, 1988, demanded payment of all remaining installments under the Settlement Agreement, as well as interest on the accelerated amount and costs of collection, including reasonable attorneys’ fees. The remaining payments, from the missed February payment through January of 1997, totaled $1,030,-699.92. During the course of the litigation, the parties entered into a mitigation agreement under which American continued to pay monthly installments. The district court ruled in favor of American, characterizing the Settlement Agreement as a lease, and finding the acceleration clause to be an unenforceable penalty under Illinois law. The district court also refused to award Justine attorneys’ fees under Article IV.A. of the Settlement Agreement. Justine has appealed these rulings. II. DISCUSSION Acceleration clauses are widely recognized and enforceable under Illinois law. Continental Nat’l Bank v. Schiller, 89 Ill.App.3d 216, 44 Ill.Dec. 471, 473, 411 N.E.2d 593, 595 (1980) (acceleration of an installment loan); Plasti-Drum Corp. v. Ferrell, 70 Ill.App.3d 441, 26 Ill.Dec. 723, 731, 388 N.E.2d 438, 447 (1979) (acceleration of a promissory note); Curran v. Houston, 201 Ill. 442, 66 N.E. 228 (1903) (acceleration of a deed of trust note). An acceleration clause sets the damages due at the time of default as the amount attributable to the principle in the remaining periodic payments. As long as the accelerated sum is an ascertainable amount, an acceleration clause does not constitute a liquidated damages provision. See, Papo v. Aglo Restaurants of San Jose, Inc., 149 Mich.App. 285, 386 N.W.2d 177, 181 (1986). 1. Lease The district court characterized the Settlement Agreement as most closely akin to a lease. We find this designation by the district" }, { "docid": "13036994", "title": "", "text": "this credit, without a rebate of interest, is to take from him without consideration so much money as the interest on the installments not due, for the periods they respectively run, amounts to. This can be nothing else than a penalty which equity will always relieve against. Tiernan, 16 Ill. at 402. Even though the mortgage did not mention interest, and merely fixed annual sums to be paid, the court found that these annual payments contained an interest component. The court further found that an acceleration of the debt, without a corresponding present value discount, would result in a forfeiture of the interest, and that such a forfeiture would be a penalty under Illinois law. See also, Puritan Finance Corp. v. Vest, 152 Ill.App.3d 625, 105 Ill.Dec. 628, 630, 504 N.E.2d 913, 915 (1987) (unearned interest must be deducted upon acceleration and payment of indebtedness prior to maturity); Illinois Steel Co. v. O’Donnell, 156 Ill. 624, 41 N.E. 185 (1895) (same); Hoodless v. Reid, 112 Ill. 105, 1 N.E. 118 (1885). Under established Illinois law, the acceleration of American’s monthly installment payments must include a deduction for that sum which is attributable to interest. The payments under the Settlement Agreement increase over time, from $7,691.67 per month for the first three years, to $9,358.33 per month for the next four years, to a maximum payment of $11,-025.00 per month for the last three years of the agreement. Justine characterized these payments as the “equivalent of $107,-700.00” per year. We find, therefore, that payments due under the Settlement Agreement include a time-value component. If the district court determines on remand that the acceleration clause should be enforced in this case, American will be liable to Justine for the total of the accelerated payments minus a deduction for the interest intrinsic to those payments. A computation of this intrinsic interest will be an issue for the district court to resolve on remand. American also will be entitled to a setoff for any payments made under the mitigation agreement. 3. Materiality of Breach The district court also relied on the rationale set out" }, { "docid": "13036999", "title": "", "text": "Illinois law requires a subtraction of any inherent interest from the accelerated total of the debt, we see no reason not to enforce the acceleration clause as written. However, since the district court made no specific finding of materiality, we remand for a determination of whether American’s breach of the Settlement Agreement was material. Under Illinois law, failure to pay an installment when due frequently has been found to be a material breach of a contract. Fireman’s Fund Mortgage Corp. v. Zollicoffer, 719 F.Supp. 650, 655 (N.D.Ill.1989) (failure to make installment payments on mortgage found to be material); F.E. Holmes & Son Const. Co., Inc. v. Gualdoni Elec. Servs., Inc., 105 Ill.App.3d 1135, 61 Ill.Dec. 883, 435 N.E.2d 724, 727 (1982) (failure to make installment payments as provided in construction contract found to be material); Brady Brick & Supply Co. v. Lotito, 43 Ill.App.3d 69, 1 Ill.Dec. 844, 848, 356 N.E.2d 1126, 1130 (1976) (same); Watson v. Auburn Iron Works, Inc., 23 Ill.App.3d 265, 318 N.E.2d 508, 511 (1974) (same). There is, however, no absolute rule under Illinois law, and the courts apply a totality of the circumstances test. Heritage Bank & Trust Co. v. Abdnor, 906 F.2d 292, 301 (7th Cir.1990); Sahadi v. Continental Illinois Nat’l Bank and Trust Co., 706 F.2d 193 (7th Cir.1983). In cases where a timely payment requirement was found to be “accessory rather than central” the courts have found a late payment to be a non-material breach. Chariot Holdings Ltd. v. Eastmet Corp., 153 Ill.App.3d 50, 106 Ill.Dec. 285, 505 N.E.2d 1076, 1082 (1987); citing, Sahadi, 706 F.2d at 198; see also, Village of Fox Lake v. Aetna Cas. & Sur. Co., 178 Ill.App.3d 887, 128 Ill.Dec. 113, 534 N.E.2d 133 (1989). While the district court appears, by implication, to have found American’s breach to be material; its opinion does not make any specific findings on the matter. Since the only obligation under this agreement is timely payment, and this case involves a relatively short time period of nonpayment, the district judge, on remand, should make a specific determination on this issue, keeping in" }, { "docid": "17137159", "title": "", "text": "Ed Miniat, Inc., 315 F.3d 712, 715 (7th Cir.2002) (noting that under Illinois law all contract terms must be given effect); In re Marriage of Wenc, 294 Ill.App.3d 239, 247, 228 Ill.Dec. 552, 689 N.E.2d 424, 429 (2nd Dist.1998) (declaring that Illinois courts will not assume parties inserted “key contractual language for no reason at all”). Because the loan documents here expressly provide for a prepayment premium even when the debt is accelerated, the premium is “provided for under the agreement.” (2) Enforceable Under State Law The prepayment premium is also enforceable under state law. LHD declares as a general matter that “reasonable prepayment premiums are enforceable.” LHD, 726 F.2d at 330; see also Automotive Fin. Corp. v. Ridge Chrysler Plymouth L.L.C., 219 F.Supp.2d 945, 949 (N.D.Ill.2002). The smattering of Illinois case law on the subject seems to agree. See First Nat’l Bank v. Equitable Life Assurance Soc’y, 157 Ill.App.3d 408, 414, 109 Ill.Dec. 650, 510 N.E.2d 518, 523 (4th Dist.1987) (“Whether characterized as a ‘fee,’ ‘premium,’ or ‘penalty’ for prepayment of a loan, such provisions have been routinely upheld and enforced where the mortgagor’s election to call the loan to maturity was voluntary.”); see also Village of Rosemont v. Maywood-Proviso State Bank, 149 Ill.App.3d 1087, 1091, 103 Ill.Dec. 542, 501 N.E.2d 859, 861-62 (1st Dist. 1986) (assuming enforceability); Slevin, 98 Ill.App.3d at 647, 54 Ill.Dec. 189, 424 N.E.2d at 940 (same). Certainly, no lili- nois decision says prepayment premiums are per se ^enforceable. Enforceability depends on whether the premium is meant to liquidate damages or impose a penalty. Ridge, 219 F.Supp.2d at 949-50; Schaumburg, 97 B.R. at 953. A liquidated damages clause will be enforced; a penalty will not. Saunders v. Michigan Ave. Nat'l Bank, 278 Ill.App.3d 307, 314, 214 Ill.Dec. 1036, 662 N.E.2d 602, 609 (1st Dist.1996). For the clause to be upheld, (1) the parties must have intended to agree in advance on damages from a breach, (2) the amount must have been reasonable as of the time of contracting, bearing some relation to the damage that might be sustained, and (3) the amount of actual damages" }, { "docid": "6864424", "title": "", "text": "the partnership agreement, but rather what remedy is reasonable for the breach of the agreed order. This latter breach, the only relevant one for purposes of this opinion, was caused by the tardiness of some of the defendants’ installment payments. For the reasons explained above, requiring the defendants to pay an additional $150,000 is not a reasonable estimate of the damages caused by these late payments. The plaintiffs also argue that courts should respect contracts between two sophisticated parties and not reform such agreements so as to give one party a bargain to which the other did not agree. This claim amounts to a generalized assertion that contract provisions between commercially experienced parties should never constitute penalty clauses because the parties are of roughly equal bargaining strength. While we have noted similar criticisms in this circuit’s opinions discussing Illinois penalty clause jurisprudence, see Lawyers Title, 118 F.3d at 1160-61, Lake River, 769 F.2d at 1288-90, Illinois continues to invalidate damages provisions in contracts that fail the test outlined above even if both parties are economically sophisticated, see, e.g., Telenois, Inc. v. Village of Schaumburg, 256 Ill.App.3d 897, 195 Ill.Dec. 117, 628 N.E.2d 581, 584-85 (1993); Grossinger Motorcorp, Inc. v. American Nat'l Bank & Trust Co., 240 Ill.App.3d 737,180 Ill.Dec. 824, 607 N.E.2d 1337, 1345-46 (1992). The plaintiffs’ argument would prove too much if accepted, because then no damages clause between commercially experienced parties could be considered a penalty, which clearly contradicts actual Illinois law. Since, as aforementioned, we apply Illinois law in this case; we must reject the plaintiffs’ argument. III. Conclusion Because the damages clause is an unenforceable penalty under Illinois law, the plaintiffs are entitled only to the actual damages caused by the defendants’ late payments, as measured by an appropriate interest rate. For the reasons stated herein, we Reverse and Remand for further proceedings consistent with this opinion. . The parties who are the defendants in the instant dispute are La-Van Hawkins, Hawkins One, Inc., Hawkins Two, Iiic., Hawkins Four, Inc., Hawkins Five, Inc., Hawkins Eight, Inc., The La-Van Hawkins Group, Inc., Windy City Construction, Inc., Inner" }, { "docid": "17923923", "title": "", "text": "awarding consequential damages was improper. As a remedy for breach of contract in Illinois, the injured party may be entitled to an award of consequential damages measured by its lost profits. F.E. Holmes & Son Constr. Co., Inc. v. Gualdoni Electric Service, Inc., 105 Ill.App.3d 1135, 61 Ill.Dec. 883, 887, 435 N.E.2d 724, 728 (1982). Illinois law defines a “material or total breach” as a “failure to do an important, substantial or material undertaking set forth in a contract.” Anderson v. Long Grove Country Club Estates, Inc., 111 Ill.App.2d 127, 249 N.E.2d 343, 349 (1969). The determination of whether a breach is material, thereby entitling the non-breaching party to damages, is a question of fact to be determined by the trial court. F.E. Holmes, 61 Ill.Dec. at 886, 435 N.E.2d at 727; Anderson, 249 N.E.2d at 349. Therefore, we will reverse the trial court’s finding of a breach of contract only if that finding was clearly erroneous. United States v. $73,277, United States Currency, 710 F.2d 283, 288 (7th Cir.1983); Rule 52(a), Fed.R.Civil PROC. At the liability trial, the jury found that: 1) Papeleras failed to pay Adams Apple $29,793 in contract rebates; 2) Papel-eras failed to pay Adams Apple an $8,000 rebate for the purchase of “Big Bambú” cigarette papers; and 3) Papeleras failed to pay Adams Apple the guaranteed stock profit in breach of the agreement. We find no error in the trial court’s conclusion that Papeleras’s failure to perform these conditions constituted a material breach of the contract entitling Adams Apple to an award of consequential damages measured by lost profits. Papeleras’s argument that “more fundamental” breaches were required for the court to award consequential damages is without legal support. The trial court issued its ruling that Adams Apple was entitled to consequential damages after a conference with the parties pre-dating the damages trial. See Order of July 13, 1981. The trial court’s findings which Papeleras contends contradict the jury’s verdict were made at the damages trial in considering Papeleras’s argument that Adams Apple failed to mitigate its damages after Papeleras breached the contract. These findings are" }, { "docid": "10890203", "title": "", "text": "310, 314-15 (1990). The mere fact that parties may not agree upon the meaning of the terms of a contract (such as the definition of “dies”) does not create an ambiguity. See Hickox v. Bell, 195 Ill.App.3d 976, 142 Ill.Dec. 392, 401, 552 N.E.2d 1133, 1142 (1990) (finding no ambiguity in express language of agreement, despite fact that parties do not agree on meaning of terms of contract). Nor does the fact that Arrow Master notified all its suppliers, rather than just the foundries holding its dies, lead to the conclusion that the contract is ambiguous. 2. Having determined that the meaning of paragraph 9(c) is clear, we turn to the question whether Arrow Master substantially performed its requirements. It is well established in Illinois that “only a material breach of a contract provision will justify non-performance by the other party.” Borys v. Rudd, 152 Ill.Dec. at 628, 566 N.E.2d at 315 (collecting cases). “The determination of whether a party has committed breach of contract is a question of fact, which will nqt be disturbed on review unless the finding is against the manifest weight of the evidence.” Id. (collecting cases). “Whether a- breach is material, thereby discharging the other party’s duty to perform, is an issue to be determined based on the inherent justice.of the matter.” Rogers v. Balsley, 240 Ill.App.3d 1005, 181 Ill.Dec. 814, 818, 608 N.E.2d 1288, 1292 (1993). “[A] minor nonmaterial breach by the plaintiff will not preclude specific performance.” Regan v. Garfield Ridge Trust & Sav., 220 Ill.App.3d 1078, 1084, 581 N.E.2d 759, 765 (1991) (citing cases). Under Illinois law, the test for determining whether failure of performance constitutes a material breach was clearly enunciated in Haisma v. Edgar, 218 Ill.App.3d 78, 161 Ill.Dec. 36, 578 N.E.2d 163 (1991): [A] court must ask whether “the matter, in respect to which the failure of performance occurs, is of such a nature and of such importance that the contract would not have been made without it.” Id. 161 Ill.Dec. at 41, 578 N.E.2d at 168 (quoting Trapkus v. Edstrom’s, Inc., 140 Ill.App.3d 720, 95 Ill.Dec. 119, 124," }, { "docid": "3650918", "title": "", "text": "Fed.R.Civ.P. 56(c). We cannot agree with the district court that under Illinois law, expressly made applicable in the agreements here, this record presents no issues of material fact requiring a full trial. While outstanding issues of material fact may well exist also in relation to the Sahadis’ waiver and breach of “good faith” claims, we need not reach those questions here and so confine our analysis for the purposes of this appeal to the issues of “material” breach. It is black letter law in Illinois and elsewhere that only a “material” breach of a contract provision by one party will justify non-performance by the other party. See Janssen Bros. v. Northbrook Trust and Savings Bank, 12 Ill.App.3d 840, 299 N.E.2d 431, 434 (2d Dist.1973); Herbert Shaffer Associates, Inc. v. First Bank of Oak Park, 30 Ill.App.3d 647, 332 N.E.2d 703, 710 (1st Dist.1975); Anderson v. Long Grove Country Club Estates, 111 Ill.App.2d 127, 249 N.E.2d 343, 349 (2d Dist.1969); Wright v. Douglas Furniture Corp., 98 Ill.App.2d 137, 240 N.E.2d 259,262 (1st Dist.1968); See also C.G. Caster Co. v. Regan, 88 Ill.App.3d 280, 43 Ill.Dec. 422, 426, 410 N.E.2d 422-426 (1st Dist.1980); John Kubinski & Sons, Inc. v. Dockside Development Corp., 33 Ill.App.3d 1015, 339 N.E.2d 529, 534 (1st Dist.1975); 5 Williston on Contracts §§ 675, 805 (3d ed. 1961); Restatement (Second) of Contracts § 229 (1979). Moreover, the determination of “materiality” is a complicated question of fact, involving an inquiry into such matters as whether the breach worked to defeat the bargained-for objective of the parties or caused disproportionate prejudice to the non-breaching party, whether custom and usage considers such a breach to be material, and whether the allowance of reciprocal non-performance by the non-breaching party will result in his accrual of an unreasonable or unfair advantage. Wright, 240 N.E.2d at 262; Anderson, 249 N.E.2d at 349; C.G. Caster Co., 43 Ill.Dec. at 426, 410 N.E.2d at 426; National Importing & Trading Co. v. E.A. Bear Co., 324 Ill. 346, 155 N.E. 343, 346 (1927); Cantrell v. Kruck, 25 Ill.App.3d 1060, 324 N.E.2d 260, 263 (2d Dist.1975); Janssen Bros., 299" }, { "docid": "10890204", "title": "", "text": "on review unless the finding is against the manifest weight of the evidence.” Id. (collecting cases). “Whether a- breach is material, thereby discharging the other party’s duty to perform, is an issue to be determined based on the inherent justice.of the matter.” Rogers v. Balsley, 240 Ill.App.3d 1005, 181 Ill.Dec. 814, 818, 608 N.E.2d 1288, 1292 (1993). “[A] minor nonmaterial breach by the plaintiff will not preclude specific performance.” Regan v. Garfield Ridge Trust & Sav., 220 Ill.App.3d 1078, 1084, 581 N.E.2d 759, 765 (1991) (citing cases). Under Illinois law, the test for determining whether failure of performance constitutes a material breach was clearly enunciated in Haisma v. Edgar, 218 Ill.App.3d 78, 161 Ill.Dec. 36, 578 N.E.2d 163 (1991): [A] court must ask whether “the matter, in respect to which the failure of performance occurs, is of such a nature and of such importance that the contract would not have been made without it.” Id. 161 Ill.Dec. at 41, 578 N.E.2d at 168 (quoting Trapkus v. Edstrom’s, Inc., 140 Ill.App.3d 720, 95 Ill.Dec. 119, 124, 489 N.E.2d 340, 345 (1986)). In other words, we ask whether the performance of that provision “was a sine qua non of the contract’s fulfillment.” Sahadi v. Continental Ill. Nat’l Bank & Trust Co., 706 F.2d 193, 198 (7th Cir.1983). Under that standard of evaluation, we examine the record for evidence of the extent of the parties’ performance or lack thereof. As Judge Wood described the task in Sahadi: [T]he determination of “materiality” is a complicated question of fact, involving an inquiry into such matters as whether the breach worked to defeat the bargained-for objective of the parties or caused disproportionate prejudice to the non-breaching party, whether custom and usage considers such a breach to be material, and whether the allowance of reciprocal nonperformance by the non-breaching party will result in his accrual of an unreasonable or unfair advantage. Id. at 196. The district court considered documents and testimony to determine whether the parties had substantially performed under the contract. That evidence indicates, as the district court noted, that Arrow Master went beyond the specific" }, { "docid": "13406162", "title": "", "text": "was running up a greater and greater expense without receiving any progress payments to offset it) to anticipate that Maddox would commit a breach, to suspend its own performance for the sake of self-protection, and to demand payment for the work done to date. B & C Electric, Inc. v. Pullman Bank & Trust Co., 96 Ill.App.3d 321, 51 Ill.Dec. 698, 703, 421 N.E.2d 206, 211 (1981); First National Bank v. Continental Illinois National Bank, 933 F.2d 466, 469 (7th Cir.1991) (interpreting Illinois law). Coalfield would have been imprudent to continue working with no assurance of payment. Against this it can be argued that since the parties already had a contract, Coalfield need not have required Mr. Maddox to sign anything and therefore did not have to worry about his failure to respond to the repeated demands to sign Coalfield’s written offer, and could treat Maddox’s counteroffer as a request for modification and ignore it. But the doctrine of anticipatory breach presupposes that the parties have a contract, and entitles a party to walk away from the contract once the other party'has manifested an intention of breaking it. The walking away is a (self-help) remedy for the (anticipated) breach. We are mindful of the standard formula, illustrated in Illinois by In re Marriage of Olsen, 124 Ill.2d 19, 123 Ill.Dec. 980, 983, 528 N.E.2d 684, 687 (1988); Draper v. Frontier Ins. Co., 265 IIl.App.3d 739, 203 Ill.Dec. 50, 55, 638 N.E.2d 1176, 1181 (1994); Farwell Construction Co. v. Ticktin, 84 Ill.App.3d 791, 39 Ill.Dec. 916, 925, 405 N.E.2d 1051, 1060 (1980), and B & C Electric, Inc. v. Pullman Bank & Trust Co., supra, 51 Ill.Dec. at 703, 421 N.E.2d at 211, that an anticipatory breach occurs only when a party makes a clear and unequivocal statement of his intention to break the contract when his performance comes due — a statement “sufficiently positive to be reasonably understood as meaning that the breach will actually occur.” 2 Farnsworth, supra, § 8.21, p. 475. We have no quarrel with the formula. But obviously it is meant for cases in which the" }, { "docid": "13037000", "title": "", "text": "rule under Illinois law, and the courts apply a totality of the circumstances test. Heritage Bank & Trust Co. v. Abdnor, 906 F.2d 292, 301 (7th Cir.1990); Sahadi v. Continental Illinois Nat’l Bank and Trust Co., 706 F.2d 193 (7th Cir.1983). In cases where a timely payment requirement was found to be “accessory rather than central” the courts have found a late payment to be a non-material breach. Chariot Holdings Ltd. v. Eastmet Corp., 153 Ill.App.3d 50, 106 Ill.Dec. 285, 505 N.E.2d 1076, 1082 (1987); citing, Sahadi, 706 F.2d at 198; see also, Village of Fox Lake v. Aetna Cas. & Sur. Co., 178 Ill.App.3d 887, 128 Ill.Dec. 113, 534 N.E.2d 133 (1989). While the district court appears, by implication, to have found American’s breach to be material; its opinion does not make any specific findings on the matter. Since the only obligation under this agreement is timely payment, and this case involves a relatively short time period of nonpayment, the district judge, on remand, should make a specific determination on this issue, keeping in mind the impact the decision will have on the contract as a whole and the acceleration clause in particular. See Sahadi, 706 F.2d at 197. 4. Attorneys’ Fees Under Illinois law, “the decision to award or deny prejudgment interest as an element of recoverable damages is committed to the discretion of the trial judge” and is reviewable only for an abuse of that discretion. Ross-Berger Co., Inc., v. Equitable Life Assur. Soc’y, 872 F.2d 1331, 1339 (7th Cir.1989). The allocation of costs and award of attorneys’ fees are similarly reviewed for an abuse of discretion. Because we find that the district court relied on an erroneous legal position, we reverse the district court’s refusal to award attorneys’ fees and we remand this issue to the district court. The attorneys’ fees provision in the Settlement Agreement entitled Justine to recover its “cost of collection” of the accelerated payments. Therefore, if the district court decides, on remand, that the acceleration clause should be enforced, an award of attorneys’ fees will be appropriate. III. CONCLUSION For the reasons" }, { "docid": "13036998", "title": "", "text": "only for the more substantial breach of a failure to pay an installment at the specified date, coupled with a subsequent failure to cure within the window of time designated in the Settlement Agreement for timely cure. The Settlement Agreement clearly differentiates between the remedy of acceleration and the remedy of interest. Therefore, the Settlement Agreement does not “specify a single sum in damages for any and all breaches” and Lake River does not prevent the enforcement of the acceleration clause. Settlement agreements are generally encouraged and favored by the courts. In the absence of mistake or fraud, a settlement agreement will not be lightly set aside. McCracken Contracting Co. v. R.L. DePrizio & Assocs. Inc., 122 Ill.App.3d 680, 78 Ill.Dec. 563, 566, 462 N.E.2d 682, 685 (1984). The parties seem to have defined minor and material breaches of their agreement through the differing remedies available in the event of breach. This agreement was the product of negotiations between the parties, and there are no allegations of fraud or unfairness. Therefore, with the proviso that Illinois law requires a subtraction of any inherent interest from the accelerated total of the debt, we see no reason not to enforce the acceleration clause as written. However, since the district court made no specific finding of materiality, we remand for a determination of whether American’s breach of the Settlement Agreement was material. Under Illinois law, failure to pay an installment when due frequently has been found to be a material breach of a contract. Fireman’s Fund Mortgage Corp. v. Zollicoffer, 719 F.Supp. 650, 655 (N.D.Ill.1989) (failure to make installment payments on mortgage found to be material); F.E. Holmes & Son Const. Co., Inc. v. Gualdoni Elec. Servs., Inc., 105 Ill.App.3d 1135, 61 Ill.Dec. 883, 435 N.E.2d 724, 727 (1982) (failure to make installment payments as provided in construction contract found to be material); Brady Brick & Supply Co. v. Lotito, 43 Ill.App.3d 69, 1 Ill.Dec. 844, 848, 356 N.E.2d 1126, 1130 (1976) (same); Watson v. Auburn Iron Works, Inc., 23 Ill.App.3d 265, 318 N.E.2d 508, 511 (1974) (same). There is, however, no absolute" }, { "docid": "13036997", "title": "", "text": "a reasonable effort to estimate damages; and when in addition the fixed sum greatly exceeds the actual damages likely to be inflicted by a minor breach, its character as a penalty becomes unmistakable. Id. at 1290. While the above-quoted language may be an accurate statement of the law in Illinois, the Settlement Agreement provision at issue in this case does not specify a single sum of damages for all breaches regardless of gravity, and therefore Lake River is not controlling authority- Article IV of the Settlement Agreement provides two remedies for breach of the Agreement. Article IV.A. of the Settlement Agreement provides for acceleration, and Article IV.B. provides for interest on any payment tendered after the due date, but before the acceleration date. Thus, there are two measures of damages under the Settlement Agreement: payment with interest, and acceleration. Payment with interest is available as a remedy for the breach of failure to pay an installment at the specified date, when that failure is cured in a timely manner. The remedy of acceleration is available only for the more substantial breach of a failure to pay an installment at the specified date, coupled with a subsequent failure to cure within the window of time designated in the Settlement Agreement for timely cure. The Settlement Agreement clearly differentiates between the remedy of acceleration and the remedy of interest. Therefore, the Settlement Agreement does not “specify a single sum in damages for any and all breaches” and Lake River does not prevent the enforcement of the acceleration clause. Settlement agreements are generally encouraged and favored by the courts. In the absence of mistake or fraud, a settlement agreement will not be lightly set aside. McCracken Contracting Co. v. R.L. DePrizio & Assocs. Inc., 122 Ill.App.3d 680, 78 Ill.Dec. 563, 566, 462 N.E.2d 682, 685 (1984). The parties seem to have defined minor and material breaches of their agreement through the differing remedies available in the event of breach. This agreement was the product of negotiations between the parties, and there are no allegations of fraud or unfairness. Therefore, with the proviso that" }, { "docid": "22973282", "title": "", "text": "192 F.3d 724, 729 (7th Cir.1999). Such documents may permit the court to determine that the plaintiff is not entitled to judgment. Hecker v. Deere & Co., 556 F.3d 575, 588 (7th Cir.2009). A. Reger Development’s Breach of Contract Claim Under Illinois law, a plaintiff looking to state a colorable breach of contract claim must allege four elements: “(1) the existence of a valid and enforceable contract; (2) substantial performance by the plaintiff; (3) a breach by the defendant; and (4) resultant damages.” W.W. Vincent & Co. v. First Colony Life Ins. Co., 351 Ill.App.3d 752, 286 Ill.Dec. 734, 814 N.E.2d 960, 967 (2004). We construe contracts by giving their unambiguous terms clear and ordinary meaning, Reynolds v. Coleman, 173 Ill.App.3d 585, 123 Ill.Dec. 259, 527 N.E.2d 897, 902 (1988), in an effort to determine the parties’ intent. Harrison v. Sears, Roebuck & Co., 189 Ill.App.3d 980, 137 Ill.Dec. 494, 546 N.E.2d 248, 253 (1989). During our review, we do not look at any one contract provision in isolation; instead, we read the document as a whole. Martindell v. Lake Shore Nat’l Bank, 15 Ill.2d 272, 154 N.E.2d 683, 689 (1958). While Illinois law generally holds that “a covenant of fair dealing and good faith is implied into every contract absent express disavowal,” Foster Enter., Inc. v. Germania Fed. Sav. & Loan Ass’n, 97 Ill.App.3d 22, 52 Ill.Dec. 303, 421 N.E.2d 1375, 1380 (1981), the duty to act in good faith does not apply to lenders seeking payment on demand notes. See N.W.I. Int’l, Inc. v. Edgewood Bank, 291 Ill.App.3d 247, 225 Ill.Dec. 716, 684 N.E.2d 401, 409 (1997); see also 810 ILCS 5/1-309 cmt. (“Obviously this section [which imposes a requirement that lenders utilize their rights under acceleration clauses only when they have a good-faith belief that the prospect of performance is impaired] has no application to demand instruments or obligations whose very nature permits call at any time with or without reason. This section applies only to an obligation of payment or performance which in the first instance is due at a future date.”). In light of this" }, { "docid": "13036988", "title": "", "text": "also refused to award Justine attorneys’ fees under Article IV.A. of the Settlement Agreement. Justine has appealed these rulings. II. DISCUSSION Acceleration clauses are widely recognized and enforceable under Illinois law. Continental Nat’l Bank v. Schiller, 89 Ill.App.3d 216, 44 Ill.Dec. 471, 473, 411 N.E.2d 593, 595 (1980) (acceleration of an installment loan); Plasti-Drum Corp. v. Ferrell, 70 Ill.App.3d 441, 26 Ill.Dec. 723, 731, 388 N.E.2d 438, 447 (1979) (acceleration of a promissory note); Curran v. Houston, 201 Ill. 442, 66 N.E. 228 (1903) (acceleration of a deed of trust note). An acceleration clause sets the damages due at the time of default as the amount attributable to the principle in the remaining periodic payments. As long as the accelerated sum is an ascertainable amount, an acceleration clause does not constitute a liquidated damages provision. See, Papo v. Aglo Restaurants of San Jose, Inc., 149 Mich.App. 285, 386 N.W.2d 177, 181 (1986). 1. Lease The district court characterized the Settlement Agreement as most closely akin to a lease. We find this designation by the district court to be erroneous. Justine had initially proposed that the lease be modified to reflect the new agreement between the parties, and American refused. In lieu of a modification of the lease, American suggested the payment arrangement at issue in this case. American cannot characterize this agreement as a modification of the lease for litigation purposes when it explicitly refused to modify the lease during the negotiation of the Settlement Agreement. Rather than a lease, this agreement most closely resembles a debtor-creditor relationship with the defendant agreeing to pay Justine a sum certain broken down into periodic payments that include interest. The language of the Settlement Agreement makes no mention of the lease, or more significantly, of the underlying property. If this Settlement Agreement were truly a lease, Justine would have recourse to the property as a remedy for American’s breach of its covenant to pay under the agreement. The underlying lease on the property contains the following remedies for failure to pay rental installments: 9. In the event Lessee fails to pay when due" }, { "docid": "11162931", "title": "", "text": "in exactly the same pickle that she is in today. Not having been harmed by the bank’s breach of contract, she cannot recover damages (beyond nominal damages, which she does not seek) for the breach. Sanwa Business Credit Corp. v. Continental Ill. Nat’l Bank & Trust Co., 247 Ill.App.3d 155, 187 Ill.Dec. 45, 617 N.E.2d 253, 260 (1993); Modern Equipment Corp. v. Northern Trust Co., 284 Ill.App. 586, 1 N.E.2d 105, 107 (1936); Ambassador Financial Services, Inc. v. Indiana Nat’l Bank, 605 N.E.2d 746, 754 (Ind.1992); Hall v. Mid-Century Ins. Co., 248 Kan. 847, 811 P.2d 855, 858-59 (1991); Tonelli v. Chase Manhattan Bank, N.A., 41 N.Y.2d 667, 394 N.Y.S.2d 858, 363 N.E.2d 564, 567 (1977). In any event, she ratified the transfer of the money from her bank account to Shook. For she accepted several partial payments on her loan after learning that her check had not been endorsed and that her contract with the bank had therefore been broken. No more is required for ratification under Illinois law. E.g., Stathis v. Geldermann, Inc., 295 Ill.App.3d 844, 229 Ill.Dec. 809, 692 N.E.2d 798, 808 (1998); Athanas v. City of Lake Forest, 276 Ill.App.3d 48, 212 Ill.Dec. 686, 657 N.E.2d 1031, 1037 (1995); Reavy Grady & Crouch Realtors v. Hall, 110 Ill.App.3d 325, 66 Ill.Dec. 35, 442 N.E.2d 307, 310-11 (1982); Kores v. Western Office Supply Co., 349 Ill.App. 208, 110 N.E.2d 461, 463 (1953). If the other party to your contract breaks it, and instead of walking away from it you act as if it remains in force, it does remain in force. You cannot later repudiate it. That would be to play heads I win tails you lose, since you would take the benefit of the contract if it turned out well and walk away from it if it turned out badly, as may indeed have been the case here. Sanwa Business Credit Corp. v. Continental Ill. Nat’l Bank & Trust Co., supra, 187 Ill.Dec. 45, 617 N.E.2d at 253; Freeport Journal-Standard Publishing Co. v. Frederic W. Ziv Co., 345 Ill.App. 337, 103 N.E.2d 153, 158 (1952). Although" }, { "docid": "19958640", "title": "", "text": "Defendants incurred injuries proximately caused by the breach. See Adams v. N. Ill. Gas Co., 211 Ill.2d 32, 284 Ill.Dec. 302, 809 N.E.2d 1248, 1257 (2004). Defendants allege that LaSalle owed them a “duty to administer the Paramont loan with the same degree of care, skill and learning that an ordinarily careful lender would use under the same or similar circumstances.” (R. 15-1, Countercls. ¶ 18.) According to Defendants, LaSalle breached this duty by: (1) disregarding its internal lending guidelines (id. ¶ 11(a)); (2) advancing funds on the basis of flawed and incomplete budgets and without requiring competitive bids (id. ¶ 11(c), (d), (f), (i)); (3) disregarding the Note’s requirement that advances be made pursuant to a Request for Advance form submitted by Paramont (id. ¶ 11(b), (e)); (4) failing to inspect the progress of construction despite knowledge of cost overruns (id. ¶ 11(g)); (5) advancing funds on the basis of budgets that conflicted with the allocation of loan proceeds provided in the Escrow Agreement (id. ¶ 11(h), (j), (k)); and (6) refusing (until a demand was made) to disburse funds to pay carrying charges for September 2007 as required by the Note (id. ¶ 15). The economic-loss, or Moor-man, doctrine generally prohibits tort claims to recover purely economic loss. See Moorman Mftg. Co. v. Nat’l Tank Co., 91 Ill.2d 69, 61 Ill.Dec. 746, 435 N.E.2d 443 (1982); First Midwest Bank, N.A. v. Stewart Title Guar. Co., 218 Ill.2d 326, 300 Ill.Dec. 69, 843 N.E.2d 327, 334 (2006). The economic-loss doctrine bars negligence claims based on the failure to perform contractual obligations. Prime Leasing, Inc. v. Kendig, 332 Ill.App.3d 300, 265 Ill.Dec. 722, 773 N.E.2d 84, 94 (Ill.App.Ct.2002) (summarizing the Illinois economic-loss doctrine which provides that “tort law is not intended to compensate parties for monetary losses suffered as a result of duties which are owed to them simply as a result of a contract” (quoting Tolan & Son, Inc. v. KLLM Architects, Inc., 308 Ill.App.3d 18, 241 Ill.Dec. 427, 719 N.E.2d 288 (1999))). The negligent acts alleged above in numbers (2), (3), (4), (5), and (6) are founded on" }, { "docid": "17923922", "title": "", "text": "to the court. The court did state, however, that it would set aside the lien if Papeleras provided the court with certified English translations of Spanish law which showed a conflict with imposing a lien on the trademarks and if Adams Apple’s status as a creditor was recognized in Spain. Accordingly, the trial court granted Adams Apple’s motion to impose a lien on Papeleras’s U.S. trademarks for Bambú papers. II Papeleras first argues that its failure to pay Adams Apple the rebates and the guaranteed stock profit required by the contract cannot form the basis for an award of consequential damages because “more fundamental” breaches are required for such an award to be proper. Def’s br. at 12. Papeleras then asserts that the district court only found these “more fundamental” breaches during the damages trial, and that these findings were impermissibly in contravention of the jury’s verdict at the liability trial. We find that Papeleras has misconstrued the nature of the trial court’s findings at the damages trial and we disagree with its contention that awarding consequential damages was improper. As a remedy for breach of contract in Illinois, the injured party may be entitled to an award of consequential damages measured by its lost profits. F.E. Holmes & Son Constr. Co., Inc. v. Gualdoni Electric Service, Inc., 105 Ill.App.3d 1135, 61 Ill.Dec. 883, 887, 435 N.E.2d 724, 728 (1982). Illinois law defines a “material or total breach” as a “failure to do an important, substantial or material undertaking set forth in a contract.” Anderson v. Long Grove Country Club Estates, Inc., 111 Ill.App.2d 127, 249 N.E.2d 343, 349 (1969). The determination of whether a breach is material, thereby entitling the non-breaching party to damages, is a question of fact to be determined by the trial court. F.E. Holmes, 61 Ill.Dec. at 886, 435 N.E.2d at 727; Anderson, 249 N.E.2d at 349. Therefore, we will reverse the trial court’s finding of a breach of contract only if that finding was clearly erroneous. United States v. $73,277, United States Currency, 710 F.2d 283, 288 (7th Cir.1983); Rule 52(a), Fed.R.Civil PROC. At" }, { "docid": "3368674", "title": "", "text": "each month, commencing on May 1, 1986, until the principal amount of $65,653.00 plus interest was paid. It is undisputed that the Zollicoffers made only the first two payments under the Note and Mortgage, in May and June of 1986, and have not made a single payment since then. In order to avoid the inevitable consequences of their failure to make mortgage payments — default under the Note & Mortgage — the Zollicoffers assert that their failure to make mortgage payments “can at worst be considered minor breaches.” Memorandum in Response to Plaintiffs’ Motion for Summary Judgment at 4. This assertion is so contrary to law and reason as to almost defy comment. A party’s failure to perform even a minor contractual term constitutes a breach. Midland Hotel v. Reuben H. Donnelley Corp., 149 Ill.App.3d 53, 103 Ill.Dec. 742, 748, 501 N.E.2d 1280, 1286 (1st Dist.1986), aff'd in part rev’d in part, 118 Ill.2d 306, 113 IllDec. 252, 515 N.E.2d 61 (1987). Yet, minor or technical breaches by one party to the contract do not amount to a default which excuses the other party’s performance. See Piro v. Pekin Ins. Co., 162 Ill.App.3d 225, 113 Ill.Dec. 220, 223, 514 N.E.2d 1231, 1234 (5th Dist.1987); Circle Security Agency, Inc. v. Ross, 107 Ill.App.3d 195, 63 Ill.Dec. 18, 23, 437 N.E.2d 667, 672 (1st Dist.1982); Hanson v. Duffy, 106 Ill.App.3d 727, 62 Ill.Dec. 401, 406, 435 N.E.2d 1373, 1378 (2d Dist.1982). Only a material breach constitutes a default. Eastern Illinois Trust & Savings Bank v. Sanders, 631 F.Supp. 1393, 1396 (N.D. Ill.1986) aff'd, 826 F.2d 615 (7th Cir.1987). A breach is material when it amounts to the failure to perform an important or substantial obligation under the contract. Anderson v. Long Grove Country Club Estates, Inc., 111 Ill.App.2d 127, 249 N.E.2d 343, 349 (2d Dist.1969). Among the factors to consider in determining whether a breach is material are whether the breach worked to defeat the bargained for objec tive of the parties; whether the breach caused disproportionate prejudice to the nonbreaching party; and whether custom and usage considers such a breach to" } ]

[ { "docid": "19825478", "title": "", "text": "although he did not read the offering materials at issue, can rely on the advice of financial advisors, stock brokers and friends and still be an adequate and typical class representative. Plaintiffs correctly note that the court in Lubin refused to deny certification even though the named plaintiff did not read portions of the offering materials. The court reasoned that it defied common sense to deny certification based on “the possibility of individual questions appertaining to one of the elements [reliance] of one of the case’s causes of action.” Lubin, 688 F.Supp. at 1460. In this Court’s view, the failure of an essential element of the securities claim upon which jurisdiction is premised is a sufficient ground for denying certification here. In Barkman v. Wabash, Inc., 674 F.Supp. 623, 634 (N.D.Ill.1987), the court granted certification stating that the named plaintiffs reliance on alleged misrepresentations “will become an issue only when damages recoverable by individual class members are determined.” I decline to follow Bark-man. Williams’ non-reliance may very well become a significant focus of this case, diverting attention away from issues common to the class, long before damage determinations as to individual class members could possibly come to the fore. The Court agrees that reliance on a secondary source does not itself render a plaintiff atypical. But the better reasoned decisions require a nexus between the statements of the secondary source on which the plaintiff relies and the alleged misrepresentations in the offering materials. Two of the cases cited by plaintiffs fit this description. In those cases the courts emphasized that the statements made by the secondary source could be traced back to the offering materials that allegedly contained the false and misleading information upon which the investor ultimately relied. See Randle v. Spectran, 129 F.R.D. 386, 391 (D.Mass.1988) (in claim based on fraud on the market theory, reliance includes reliance on statements of third parties that merely reiterate, digest, or reflect the misstated market information); Holton v. Rothschild, 118 F.R.D. 280, 282 (D.Mass.1987) (plaintiff relied on advice of son who swore he read prospectus and relied on misrepresentations and omissions" } ]

[ { "docid": "579316", "title": "", "text": "purported representations set forth in those fora, and how each plaintiff may have reacted to such information. . In so stating, the Court does not hold that the mere existence of fraud claims, without more, is automatically fatal to plaintiffs’ bid for class certification. The law is otherwise. See Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 724-25 (11th Cir.1987) (deeming Rule 23(b)(3) satisfied as to plaintiffs’ misrepresentation claims, inasmuch as \"the mere presence of the factual issue of individual reliance could not render the claims unsuitable for class treatment\"); see also Klay, 382 F.3d at 1258 (observing that \"the simple fact that reliance is an element in a cause of action is not an absolute bar to class certification\"); but see Castano v. American Tobacco Co., 84 F.3d 734, 745 (5th Cir.1996) (\"a fraud cause of action cannot be certified when individual reliance will be an issue”) (citing Simon v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 482 F.2d 880, 882 (5th Cir.1973)). Nonetheless, even where a common core of facts exists, \"a fraud case may be unsuited for treatment as a class action if there was material variation in the representations made or in the kinds or degrees of reliance by the persons to whom they were addressed.” Rule 23(b)(3), Advisory Notes to 1966 Amendment (emphasis added); see also Clopton v. Budget Rent A Car Corp., 197 F.R.D. 502, 509 (N.D.Ala.2000) (RICO and fraud claims are not wholly subject to class-wide resolution because each plaintiff must demonstrate reliance); Pipes v. American Sec. Ins. Co., 169 F.R.D. 382, 384 n. 2 (N.D.Ala.1996) (opining that individualized reliance issues almost always militate against class treatment of fraud claims). Thus, an accurate summary of the law is that while fraud claims requiring individual proof of reliance are not per se barred from class certification, material differences in the representations made or the reliance of the addressee may render such claims unsuitable for class treatment. Such is the case here. . Plaintiffs have candidly admitted in previous briefing that ”[t]he issue is when should they have known. That time is not necessarily" }, { "docid": "12696016", "title": "", "text": "resides); Page v. Frazier, 388 Mass. 55, 445 N.E.2d 148, 153-54 (Mass.1983) (in Massachusetts, where Weikel resides, plaintiffs limited to those in privity with defendants, unless defendants knew plaintiffs relied on misstatement)). Courts in this circuit have found it to be an abuse of discretion to deny class certification on the sole ground of differences concerning individual issues of reliance. See Eisenberg, 766 F.2d at 786-87; but see Peil, 806 F.2d at 1159 n. 8 (finding district court had not abused its discretion in denying certification upon finding individual questions of reliance would predominate). Eisenberg marked the beginning of a trend in which lower courts in this circuit have certified pendent negligent misrepresentation claims after finding common questions concerning the existence of any misrepresentations, their materiality and the intent of defendants predominated over individual questions of reliance. See, e.g., In Re Bell Atlantic Corp. Sec. Litig., 1995 WL 733381, at *7 (E.D.Pa.11 Dec.1995); In re Regal Comm. Corp. Sec. Litig., 1995 WL 550454, at *9-10 (E.D.Pa.14 Sept.1995); Zinberg, 138 F.R.D. at 411-12; In re ORFA Sec. Litig., 654 F.Supp. 1449, 1459-62 (D.N.J. 1987). The Circuit, in Eisenberg, found class actions were a particularly appropriate means for resolving securities fraud claims because “the effectiveness of the securities laws may depend in large measure on the application of the class action device.” 766 F.2d at 785 (quotation omitted). At the time, the Circuit feared that allowing individual questions of reliance to prevent certification of a class would eliminate the possibility of any class action proceeding pursuant to Rule 10b-5. See id. at 786. The cases extending the Eisenberg decision to encompass certification of pendent state .law claims have addressed the reliance issue as being the only individual question that could arise during the course of litigation. See, e.g., In re Bell Atlantic Corp. Sec. Litig., 1995 WL 733381 at *7; In re Regal Comm. Corp. Sec. Litig., 1995 WL 550454 at *9-10; Zinberg, 138 F.R.D. at 411; In re ORFA Sec. Litig., 654 F.Supp. at 1459-62. In the instant matter, however, Defendants argue individual questions of both reliance and privity will arise" }, { "docid": "5245825", "title": "", "text": "the absence of such evidence, plaintiffs cannot satisfy their burden of showing that this issue presents a common question that predominates in importance over individual issues. Compare Peoples, 176 F.R.D. at 643-44 (refusing to certify where plaintiffs’ recollections of oral representations varied materially from alleged model sales presentation) and Stephenson v. Bell Atlantic Corp., 177 F.R.D. 279, 293-94 (D.N.J.1997) (refusing to certify in absence of verbatim oral sales presentation scripts) imth In re American Continental, 140 F.R.D. at 430 (certifying where salespersons testified to having merely repeated misrepresentations made by employer). Litigating plaintiffs’ claims as a class action also is problematic because several of their fraud-based claims (i.e., fraud, fraudulent inducement, and negligent misrepresentation) add a further layer of individual questions that predominate over any common issues. Resolution of these claims requires proof both that Chubb’s agents made misrepresentations and that the individual class members reasonably relied on those representations in purchasing their insurance policies. See Andrews v. American Tel. & Tel. Co., 95 F.3d 1014, 1025 (11th Cir.1996); Castano v. American Tobacco Co., 84 F.3d 734, 745 (5th Cir.1996); Martin v. Dahlberg, Inc., 156 F.R.D. 207, 213 (N.D.Cal.1994). Some courts have held that class certification is appropriate notwithstanding individual questions of reliance. See e.g., Eisenberg v. Gagnon, 766 F.2d 770, 786 (3d Cir.), cert. denied, 474 U.S. 946, 106 S.Ct. 342, 88 L.Ed.2d 290 (1985); In re Prudential Ins. Co. of Am. Sales Practices Litig., 962 F.Supp. 450, 516 (D.N.J.1997); Holton v. L.F. Rothschild, Unterberg, Towbin, 118 F.R.D. 280, 283 (D.Mass.1987). I agree, however, with the majority view that certification generally is inappropriate when individual reliance is an issue. See, e.g., Andrews, 95 F.3d at 1025; Castano, 84 F.3d at 745; Simon, 482 F.2d at 882; In re One Bancorp Securities Litig., 136 F.R.D. 526, 533 (D.Me.1991). As the Supreme Court stated in Basic Inc. v. Levinson, “[requiring proof of individualized reliance from each member of the proposed plaintiff class effectively would ... prevent[ ] ... proceeding with the class action, since individual questions then would ... overwhelm^ ] the common ones.” 485 U.S. 224, 242, 250, 108 S.Ct." }, { "docid": "579315", "title": "", "text": "proof regarding which plaintiffs have been harmed and in what ways.” Klay, 382 F.3d at 1267. . Klay's resolution of the Rule 23(b)(3) issue is echoed in other federal decisions in a variety of jurisdictions and contexts. See, e.g., Perez v. Me-tabolife Intern., Inc., 218 F.R.D. 262, 273 (S.D.Fla.2003) (predomination requirement not satisfied in medical monitoring action where most elements of claims require individualized proof, such that efficiency gained by deciding common elements will be lost by individual determinations); Noble, 224 F.R.D. at 339 (\"Because Rule 23(b)(3) requires that common issues predominate, courts often deny certification ... where resolving the claims for relief would require individualized inquiries.\"). . For example, plaintiffs impute fraudulent statements to defendants through a variety of media, including without limitation newspaper articles, town meetings, and statements to regulators that were subsequently transmitted via mail or electronically disseminated to the public. An individualized inquiry will be essential to determine which plaintiffs were exposed to which of these methods of communication at which particular times, which of them were even aware of Olin's purported representations set forth in those fora, and how each plaintiff may have reacted to such information. . In so stating, the Court does not hold that the mere existence of fraud claims, without more, is automatically fatal to plaintiffs’ bid for class certification. The law is otherwise. See Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 724-25 (11th Cir.1987) (deeming Rule 23(b)(3) satisfied as to plaintiffs’ misrepresentation claims, inasmuch as \"the mere presence of the factual issue of individual reliance could not render the claims unsuitable for class treatment\"); see also Klay, 382 F.3d at 1258 (observing that \"the simple fact that reliance is an element in a cause of action is not an absolute bar to class certification\"); but see Castano v. American Tobacco Co., 84 F.3d 734, 745 (5th Cir.1996) (\"a fraud cause of action cannot be certified when individual reliance will be an issue”) (citing Simon v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 482 F.2d 880, 882 (5th Cir.1973)). Nonetheless, even where a common core of facts exists, \"a" }, { "docid": "12696015", "title": "", "text": "Corp., 164 F.R.D. 391, 399 (D.N.J.1996)) (choice of law concerns are virtually never a bar to class certification); Zinberg, 138 F.R.D. at 411 (courts in this district overwhelmingly favor certification of pendent state law claims). These cases, however, rested upon the conclusion the differences in state law would be minimal or would differ only as to the question of reliance. Defendants argue the application of the law from different states will cause the questions of individual reliance and privity to predominate over questions common to the class. See Opposition Brief at 13-19 (citing Mirkin v. Wasserman, 5 Cal.4th 1082, 23 Cal.Rptr.2d 101, 858 P.2d 568, 579-81 (Cal.1993) (fraud on the market not applicable in California, where Meruelo resides); Kahler v. E.F. Hutton & Co., 558 So.2d 144, 145 (Fla.Dist.Ct.App.1990) (fraud on the market theory not applicable in Florida, where Carroll resides); Prudential Ins. Co. v. Dewey Ballantine, Bushby, Palmer & Wood, 80 N.Y.2d 377, 590 N.Y.S.2d 831, 605 N.E.2d 318 (N.Y.1992) (plaintiffs are limited to those in privity with defendants in New York, where Lyons resides); Page v. Frazier, 388 Mass. 55, 445 N.E.2d 148, 153-54 (Mass.1983) (in Massachusetts, where Weikel resides, plaintiffs limited to those in privity with defendants, unless defendants knew plaintiffs relied on misstatement)). Courts in this circuit have found it to be an abuse of discretion to deny class certification on the sole ground of differences concerning individual issues of reliance. See Eisenberg, 766 F.2d at 786-87; but see Peil, 806 F.2d at 1159 n. 8 (finding district court had not abused its discretion in denying certification upon finding individual questions of reliance would predominate). Eisenberg marked the beginning of a trend in which lower courts in this circuit have certified pendent negligent misrepresentation claims after finding common questions concerning the existence of any misrepresentations, their materiality and the intent of defendants predominated over individual questions of reliance. See, e.g., In Re Bell Atlantic Corp. Sec. Litig., 1995 WL 733381, at *7 (E.D.Pa.11 Dec.1995); In re Regal Comm. Corp. Sec. Litig., 1995 WL 550454, at *9-10 (E.D.Pa.14 Sept.1995); Zinberg, 138 F.R.D. at 411-12; In re ORFA" }, { "docid": "18336461", "title": "", "text": "or (3), stating that proof of actual reliance is required under section (2), as liability under this provision is premised directly upon the misstatements or omissions, while proof of direct reliance is not required under sections (1) and (3), which are aimed at broader schemes of securities fraud. Shores v. Sklar, 647 F.2d at 469; See In re Sahlen & Associates, Inc., Securities Litigation, 773 F.Supp. at 354. The Shores court thus refused to apply the fraud-on-the-market theory to 10b-5(2) cases in the undeveloped, primary market context. A review of the Complaint indicates that Plaintiffs’ are not seeking to recover solely for the fraudulent statements and omissions of Defendants pursuant to section (2). The Complaint specifically alleges that Plaintiffs are proceeding under all three subsections of Rule 10b-5. {See Plaintiffs’ Complaint, Ts 204-205). For this reason, the Court rejects the Defendants’ argument and finds that the fraud-on-the-market presumption is available in this case. Common Course of Conduct Finally, Plaintiffs argue that even if they do not have the Affiliated Ute and fraud-on-the-market presumptions, Defendants were involved in a single, common scheme or course of conduct, therefore, any issues of individual reliance on the securities claims are dwarfed by common questions of fact and law. As stated earlier, the Complaint here alleges that the Defendants, through their acts and omissions, were engaged in a common course of conduct to defraud the investors. {See Plaintiffs’ Complaint, Ts 204-205). Thus, in order to succeed under Count III, the Plaintiffs and class members will have to prove the existence of this common fraudulent scheme. As a result of this alleged fraudulent scheme, there are numerous questions of law and fact common to the class with regard to the claims in Counts III through VII. {See this Order, p. 325). Several courts, when confronted with single, common fraudulent schemes such as the one in the case at hand, have found that common questions predominate and that class certification is appropriate. See Kirkpatrick v. J.C. Bradford & Co., 827 F.2d at 724-25; Kennedy v. Tallant, 710 F.2d 711, 718 (11th Cir.1983); CV Reit, Inc. v. Levy," }, { "docid": "23155402", "title": "", "text": "presumptively individualized. These circuits therefore treat class certification of fraud claims based upon oral misrepresentations as improper, absent a showing that the misrepresentations were made pursuant to a written, standardized sales script and that the sales agent participated in a common training program that emphasized uniformity in sales techniques. See, e.g., Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 341 (4th Cir.1998) (holding that fraud claims “based substantially on oral rather than written communications are inappropriate for treatment as class actions unless the communications are shown to be standardized”) (internal quotation marks omitted); Sprague v. Gen. Motors Corp., 133 F.3d 388, 399 (6th Cir.1998) (“The district court took testimony from more than three hundred class members in an effort to obtain a purportedly representative sample of the representations and communications by GM. That it was necessary to do so strongly suggests to us that class-wide relief was improper.”); Marcial v. Coronet Ins. Co., 880 F.2d 954, 957-58 (7th Cir.1989) (holding that issues specific to each plaintiff predominated because the major issue in contention — whether the insurance company had fraudulently informed the plaintiffs that they could only recover under an insurance policy if they submitted to a polygraph test — depended upon evidence of the individual oral communications between the defendant and each plaintiff); Grainger, 547 F.2d at 307-08 (“It is possible, although unlikely, that oral misrepresentations can be uniform, e.g., through use of a standardized sales pitch by all the company’s salesmen.... If plaintiffs cannot [demonstrate uniformity], then the district court may quite properly refuse to certify a class on the grounds that common questions of law or fact do not predominate.”); see also Cohn v. Mass. Mut. Life Ins. Co., 189 F.R.D. 209, 215 (D.Conn.1999) (noting that it is “common sense” that sales presentations will vary in material respects, depending upon “the nature of the questions asked by the purchaser, the purchaser’s relationship with the salesperson, and the salesperson’s perception of the purchaser’s needs, objectives, and financial sophistication”); Rothwell v. Chubb Life Ins. Co., 191 F.R.D. 25, 30 (D.N.H.1998) (“[M]ost courts hold that certification is not" }, { "docid": "19890979", "title": "", "text": "omission by defendants. In re Storage Technology Corp. Securities Litigation, 630 F.Supp. 1072, 1080 (D.Colo.1986). This burden contrasts markedly with the presumption of reliance supplied by the fraud-on-the-market theory under section 10(b). See Basic Inc. v. Levinson, 485 U.S. 224, 243-47, 108 S.Ct. 978, 989-99, 99 L.Ed.2d 194 (1988) (reliance may be presumed under § 10(b) under fraud-on-the-market theory). No Colorado court has applied the fraud-on-the-market theory to a negligent misrepresentation claim. Here, each plaintiff must prove his or her individual reliance. As a result, the statutory purpose underlying class certification evaporates. Indeed, this purpose is frustrated because the question of each plaintiffs reliance must be treated and tried separately. See In re Rospatch Securities Litigation, 1991 WL 427890 *11-12 (W.D.Mich.1991) (denying class certification of pendent state law fraud and fraudulent concealment claims). Because questions of fact involving each plaintiffs’ reliance predominate over issues common to all members of the class, I will deny class certification for plaintiffs’ negligent misrepresentation claim. Fed.R.Civ.P. 23(a) and (b)(3). Other courts in this circuit have reached this same conclusion. Antonson v. Robertson, 141 F.R.D. 501, 508 (D.Kan.1991); Farber v. Public Service Co. of New Mexico, 1990 WL 257286 *4 (D.N.M. 1990); Kelley v. Mid-America Racing Stables, Inc., 139 F.R.D. 405, 411 (W.D.Okla. 1990) (denying certification for common law fraud claim). Moreover, certification of this state claim could implicate the laws of each state where a class member purchased stock. Plaintiffs argue that a choice of law analysis should await final determination at trial. Alternatively, they contend that Colorado’s substantive law applies to their negligent misrepresentation claim. Even assuming universal application of Colorado law governing this state law claim, class certification remains inappropriate. Again, factual issues of reliance predominate and, therefore, certification of this claim is contrary to the efficient adjudication of this controversy. Accordingly, I will deny class certification of plaintiffs’ negligent misrepresentation claim. III. I must determine whether exercising my supplemental jurisdiction over plaintiffs’ negligent misrepresentation claim is proper in light of my decision to decline certification. Synergen moves to dismiss plaintiffs’ negligent misrepresentation claim under 28 U.S.C. § 1367, the Judicial Improvements" }, { "docid": "18336450", "title": "", "text": "will predominate in this action over questions common to the class. In doing so the Court does not “delve” into the merits of Plaintiffs’ proof of reliance. Specifically, the Court does not assess the Plaintiffs’ likelihood of success on the claims, as the district court improperly did in Kirkpatrick. See Kirkpatrick v. J.C. Bradford & Co., 827 F.2d at 722-23 (finding that the trial court’s rejection of the fraud-on-the-market theory and subsequent denial of class certification was improperly based on nothing other than the court’s assessment of the plaintiffs’ likelihood of success on the claims). The Court is not determining that Plaintiffs’ claims of reliance lack evidentiary support, or that they are likely to be unsuccessful, etc. Such an assessment of the validity of Plaintiffs’ proof of reliance would be a clear violation of the Eisen doctrine. Instead, the Court looks beyond the allegations in the complaint, at some of the named Plaintiffs’ depositions for example, in order to determine whether individual questions of reliance will predominate in this action over issues of law or fact common to the class. Id. at 723 (consideration of the deposition of a named plaintiff to determine whether Rule 23(a)’s requirements have been met is not improper). In making this determination, however, the Court does not violate the Eisen doctrine by getting into the merits of Plaintiffs’ claims. SECURITIES CLAIMS Count III of Plaintiffs’ Complaint seeks certification of a Global Class to pursue a claim under Section 10b of the Securities Exchange Act and Rule 10b-5 against the Insider Defendants, the Funding Entity Defendants, the General Partner Defendants and the Promoter Defendants. The Court notes that the only opposition of such a class comes from the Weitzmans and the Sazant Funding Entities. Plaintiffs assert two the-ones under which they claim that they are entitled to a class-wide presumption of reliance. First, Plaintiffs contend that their claims concern primarily acts of omission, thereby necessitating a finding that reliance on the part of the individual class members is presumed under the rule of Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 92 S.Ct." }, { "docid": "3177502", "title": "", "text": "material information regarding the company and its business.... Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on, the statements. Basic, Inc. v. Levinson, 485 U.S. 224, 241-42, 108 S.Ct. 978, 989, 99 L.Ed.2d 194 (1988) (quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir.1986)). The Court’s reason for employing a presumption of reliance in Basic rested upon the very nature of the market itself and the price as set by the market. An investor who buys or sells stock at the price set by the market does so in reliance on the integrity of that price. Because most publicly available information is reflected in market price, an investor’s reliance on any public material misrepresentations, therefore, may be presumed for purposes of a Rule 10b-5 action. Id. at 247, 108 S.Ct. at 992. Our circuit has adopted the theory that the unique nature of the public securities market distinguishes fraud on the market from other claims of garden-variety fraud. Our case law refers to this unique nature of the public securities market as the “integrity of the market.” Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 722 (11th Cir.1987); Shores v. Sklar, 647 F.2d 462, 469 (5th Cir. May 1981) (en banc) (holding that reliance may be established by proof that securities not traded on the open market could not have been issued at all but for a fraudulent scheme of the defendants; the plaintiff still had to prove that he “relied on the integrity of the offerings of the securities market”). While Kirkpatrick stated that the fraud-on-the-market theory did not preclude class treatment when the purchasers of a security “might have relied on factors other than the integrity of the market,” 827 F.2d at 723, it clarified that the fact that the plaintiffs “may have obtained the allegedly misleading information via their individual brokers” did not preclude class treatment, id. at 724. In other words, Kirkpatrick simply held that, in the fraud-on-the-market context, class treatment was not precluded just because some plaintiffs may have relied upon a person who owed" }, { "docid": "19822227", "title": "", "text": "S.Ct. 898, 905 n. 5, 31 L.Ed.2d 170 (1972)). Although Illinois courts look to the Federal Trade Commission Act for guidance in determining whether a practice is “unfair,” the inquiry under the Consumer Fraud Act also requires a case-by-case determination of unfairness. See Elder v. Coronet Ins. Co., 201 Ill.App.3d 733, 146 Ill.Dec. 978, 982, 558 N.E.2d 1312, 1316 (1st Dist.1990). To establish that a practice is “deceptive” within the meaning of the statute, a plaintiff must show (1) a deceptive act or practice, (2) an intent by the defendant that he rely on the deception, and (3) that the deception occurred in the course of conduct involving a trade or business. Knecht Services, 159 Ill.Dec. at 327, 575 N.E.2d at 1387. In affirmative misrepresentation or omission cases, a plaintiff must also allege the misrepresentation of a material fact. Id. Defendants here have questioned whether plaintiffs consumer fraud claim raises common questions of law or of fact. Since the class plaintiff would have certified is a nationwide class of consumers receiving loans from ITT, defendants contend that the laws of all 33 states where they do business would apply. Referring to a law review article discussing differences in state consumer fraud statutes, defendants contend that individual questions of law predominate over questions common to those state statutes. Plaintiff responds that that same article notes that all state UDAP statutes were inspired by and are to some extent patterned after the Federal Trade Commission Act. See Comment, 59 Tul.L.Rev. at 429. Plaintiff therefore sees class members’ consumer fraud claims as involving common questions of law. Defendants have cited a number of decisions in which federal courts have declined class certification because the laws of different states would apply to individual class members’ claims. See, e.g., Kirkpatrick v. J.C. Bradford Co., 827 F.2d 718, 725 (11th Cir.1987), cert. denied, 485 U.S. 959, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988); In re Storage Technology Corp. Securities Litigation, 630 F.Supp. 1072, 1080-1081 (D.Colo.1986); Zandman v. Joseph, 102 F.R.D. 924, 929 (N.D.Ind.1984); Elster v. Alexander, 76 F.R.D. 440, 442 (N.D.Ga.1977), appeal dismissed, 608 F.2d 196" }, { "docid": "16267598", "title": "", "text": "each plaintiff allegedly defrauded, see Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 434-35 (4th Cir.2003), fraud and negligent misrepresentation claims are not readily susceptible to class action treatment, precluding certification of such actions as a class action. See id.; Broussard, 155 F.3d at 341; Andrews v. AT & T Co., 95 F.3d 1014, 1025 (11th Cir.1996) (decertifying class in part because “the plaintiffs would ... have to show, on an individual basis, that they relied on the misrepresentations, suffered injury as a result, and incurred a demonstrable amount of damages”); Castano v. Am. Tobacco Co., 84 F.3d 734, 745 (5th Cir.1996) (concluding that “a fraud class action cannot be certified when individual reliance will be an issue”). As the Supreme Court explained in Basic, Inc. v. Levinson, 485 U.S. 224, 242, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), “[Requiring proof of individualized reliance from each member of the proposed plaintiff class effec tively would have prevented [plaintiffs] from proceeding with a class action, since individual issues then would have overwhelmed the common ones.” Both the plaintiffs and the district court recognized the barriers to certifying a class action where proof of individualized reliance would have to be proved because such individual issues would then likely “overwhelm” the common ones and preclude the court from finding satisfaction of the predominance requirement of Rule 23(b)(3). Reliance can, however, be treated as a common issue if it is presumed under the theory that the defendants defrauded the market — not the individual plaintiffs — so long as the plaintiffs purchased their stock in an efficient market. The “fraud-on-the-market” theory was recognized by the Supreme Court in Basic as a way to litigate securities-fraud class actions. In Basic, the Court acknowledged that Rule 10b-5 actions include a reliance element and recognized that proof of individualized reliance from each class member “effectively would have prevented” the plaintiff from proceeding with a class action, given the commonality and predominance requirements of Rules 23(a)(2) and 23(b)(3). 485 U.S. at 242, 108 S.Ct. 978. But the Court held that this barrier could be overcome with a rebuttable" }, { "docid": "23155401", "title": "", "text": "to each member of the proposed class, however, class certification is improper because plaintiffs will need to submit proof of the statements made to each plaintiff, the nature of the varying material misrepresentations, and the reliance of each plaintiff upon those misrepresentations in order to sustain their claims. Grainger v. State Sec. Life Ins. Co., 547 F.2d 303, 307 (5th Cir.1977) (“[T]he key concept in determining the propriety of class action treatment is the existence or nonexistence of material variations in the alleged misrepresentations.”). As these are questions that more than likely will be the central disputed issues in a fraud action, certification of the class will not negate the need for a series of mini-trials where there are material variations in the nature of the misrepresentations made. The question posed in the present case is whether the oral misrepresentations made to the individual plaintiffs fall within the first or the second category. The district court followed the lead of the Third, Fourth, Fifth, Sixth, and Seventh Circuits, which have held that oral misrepresentations are presumptively individualized. These circuits therefore treat class certification of fraud claims based upon oral misrepresentations as improper, absent a showing that the misrepresentations were made pursuant to a written, standardized sales script and that the sales agent participated in a common training program that emphasized uniformity in sales techniques. See, e.g., Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 341 (4th Cir.1998) (holding that fraud claims “based substantially on oral rather than written communications are inappropriate for treatment as class actions unless the communications are shown to be standardized”) (internal quotation marks omitted); Sprague v. Gen. Motors Corp., 133 F.3d 388, 399 (6th Cir.1998) (“The district court took testimony from more than three hundred class members in an effort to obtain a purportedly representative sample of the representations and communications by GM. That it was necessary to do so strongly suggests to us that class-wide relief was improper.”); Marcial v. Coronet Ins. Co., 880 F.2d 954, 957-58 (7th Cir.1989) (holding that issues specific to each plaintiff predominated because the major issue in contention" }, { "docid": "23193628", "title": "", "text": "is alleged. In Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718 (11th Cir.1987), for example, the district court declined to certify a securities-fraud class action after determining that questions of individual investors’ reliance on misrepresentations predominated over the common questions. Upon review, we noted that although plaintiffs were required to show that they each relied upon defendants’ misrepresentation, they alleged a common course of misrepresentation. Id. at 724. Under these circumstances, we held that “the mere presence of the factual issue of individual reliance could not render the claims unsuitable for class treatment.” Id. at 724-25; see also In re Data Access Systems Securities Litigation, 103 F.R.D. 130, 139 (D.N.J.1984); Gelb v. American Tel. & Tel. Co., 150 F.R.D. 76, 77-78 (S.D.N.Y.1993). In this case, the district court found that individual reliance on any misrepresentation would be obvious and easy to prove because “the 900-numbers are not listed in any public telephone directory and are not otherwise in general circulation, so it may be reasonably assumed that the caller learned of the game ... and decided to call, at least in part, from the [defendant’s] promotional materials or from another person who learned of the enterprise through those promotional materials.” Similarly, the majority places too much emphasis on the number of different schemes involved, identifying this issue as the biggest one confounding class certification. As an initial matter, I emphasize again that the district judge had the benefit of a six-day hearing on the merits of certifying the class, and, given the thoroughness of that hearing, I am hesitant to substitute our judgment for his on such a fact-based inquiry. But even upon my independent review of the schemes at issue here, I find that the similarities far outweigh the differences. Generally, the schemes offer a chance to win a prize— $20,000, $15,000, a Chevrolet Blazer — in exchange for dialing, and being billed for, the 900 number. Though the prizes and the charges vary (the schemes charge varying amounts by the minute; others charge a flat fee for the call), the schemes generally involve one or more prizes" }, { "docid": "16267597", "title": "", "text": "plaintiffs who propose to represent the class bear the burden of demonstrating that the requirements of Rule 23 are satisfied. Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 (4th Cir.2001). [2] The claims on which the plaintiffs seek to proceed against Grant Thornton as representatives of a class are essentially securities-fraud claims under federal and state law. To prove a violation of the federal antifraud provisions of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5, “a plaintiff must prove that, in connection with the purchase or sale of a security, (1) the defendant made a false statement or omission of material fact (2) with scienter (3)upon which the plaintiff justifiably relied (4) that proximately caused the plaintiffs damages.” Longman v. Food Lion, Inc., 197 F.3d 675, 682 (4th Cir.1999) (internal quotation marks and citations omitted). The parties agree that the requirements for state common law fraud and negligent misrepresentation have analogous elements. Because proof of reliance is generally individualized to each plaintiff allegedly defrauded, see Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 434-35 (4th Cir.2003), fraud and negligent misrepresentation claims are not readily susceptible to class action treatment, precluding certification of such actions as a class action. See id.; Broussard, 155 F.3d at 341; Andrews v. AT & T Co., 95 F.3d 1014, 1025 (11th Cir.1996) (decertifying class in part because “the plaintiffs would ... have to show, on an individual basis, that they relied on the misrepresentations, suffered injury as a result, and incurred a demonstrable amount of damages”); Castano v. Am. Tobacco Co., 84 F.3d 734, 745 (5th Cir.1996) (concluding that “a fraud class action cannot be certified when individual reliance will be an issue”). As the Supreme Court explained in Basic, Inc. v. Levinson, 485 U.S. 224, 242, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), “[Requiring proof of individualized reliance from each member of the proposed plaintiff class effec tively would have prevented [plaintiffs] from proceeding with a class action, since individual issues then would have overwhelmed the common ones.” Both" }, { "docid": "22192584", "title": "", "text": "recognized that when an antitrust violation impacts upon a class of persons ..., there is no reason why proof of the impact cannot be made on a common basis so long as the common proof adequately demonstrates some damage to each individual. Whether or not fact of damage can bé proven on a common basis therefore depends upon the circumstances of each case. Id. at 454. Likewise, in In re NASDAQ Market-Makers, a class was certified to pursue allegations that market makers of NASDAQ traded securities conspired to charge supra-competitive prices on the securities they traded for investors. 169 F.R.D. 493. The court noted that plaintiffs' claim of antitrust injury was \"susceptible [to] ... common classwide proof [because] ... an illegal price-fixing scheme presumptively damages all purchasers of a price-fixed product in an affected market.” Id. at 526. Nevertheless, antitrust cases still require proof of injury to each individual for common questions to predominate in a class action. Windham v. Am. Brands, Inc., 565 F.2d 59, 65-66 (4th Cir.1977) (en banc); see also Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 342-43 (4th Cir.1998) (citing Windham, 565 F.2d at 66); Kline v. Coldwell, Banker & Co., 508 F.2d 226, 233 (9th Cir.1974). . The cases on which we rely generally discuss loss causation in the context of applying the requirements of a Rule 10b-5 claim, not class certification. Many of these cases arise as class actions, but they typically involve motions to dismiss for failure to state a claim or motions for summary judgment rather than class certification. . Plaintiffs also contend that the claims in this case are similar to those in Prudential, where we certified a settlement class alleging fraud. 148 F.3d 283. The claims here are easily distinguished from the securities fraud claims in Prudential. In Prudential, the federal securities claims involved the sale of vanishing premium life insurance policies which the insurance company fraudulently claimed would become self-funding. 148 F.3d at 300 (citing In re Prudential Ins. Co. of Am. Sales Practices Litig., 962 F.Supp. 450, 500 (D.N.J.1997)). By purchasing the policies, plaintiffs risked" }, { "docid": "23193627", "title": "", "text": "primarily on its conclusion that the district court “underestimated the management difficulties that would persist as these suits proceed as class actions.” Maj.Op. at 3580. According to the majority, management would be difficult because the district court would have to resolve “an unmanageable variety of individual legal and factual issues,” id., that would predominate over the common questions of fact and law. According to the majority, three primary issues are present: determining whether each individual relied on deceptive conduct; determining the legality and “deceptiveness” of each of the various 900-number schemes; and interpreting and applying the gambling laws of all fifty states. As explained below, I believe that these issues would not predominate so as to render the action unmanageable; and even if they did, the district court could always decertify the class or address them through the other mechanisms provided by Rules 23(c)(1) and 23(c)(4). As to the mail- and wire-fraud-based RICO claims, issues of individual reliance do not generally preclude Rule 23(b)(3) certification, particularly in cases where a common course of deceptive conduct is alleged. In Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718 (11th Cir.1987), for example, the district court declined to certify a securities-fraud class action after determining that questions of individual investors’ reliance on misrepresentations predominated over the common questions. Upon review, we noted that although plaintiffs were required to show that they each relied upon defendants’ misrepresentation, they alleged a common course of misrepresentation. Id. at 724. Under these circumstances, we held that “the mere presence of the factual issue of individual reliance could not render the claims unsuitable for class treatment.” Id. at 724-25; see also In re Data Access Systems Securities Litigation, 103 F.R.D. 130, 139 (D.N.J.1984); Gelb v. American Tel. & Tel. Co., 150 F.R.D. 76, 77-78 (S.D.N.Y.1993). In this case, the district court found that individual reliance on any misrepresentation would be obvious and easy to prove because “the 900-numbers are not listed in any public telephone directory and are not otherwise in general circulation, so it may be reasonably assumed that the caller learned of the game ..." }, { "docid": "16267596", "title": "", "text": "of representation, with “the final three requirements ‘tending] to merge.’ ” Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 337 (4th Cir.1998) (quoting Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 157, n. 13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). In addition, a proposed class must also satisfy the requirements of one of the three Rule 23(b) categories. In this case, the plaintiffs requested certification of the class under Rule 23(b)(3), which requires the court to find (1) that “questions of law or fact common to the members of the class predominate over any questions affecting only individual members” (the predominance requirement), and (2) that “a class action is superior to other available methods for the fair and efficient adjudication of the controversy” (the superiority requirement). Rule 23(b)(3)’s predominance requirement is “far more demanding” than Rule 23(a)’s commonality requirement and “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). The plaintiffs who propose to represent the class bear the burden of demonstrating that the requirements of Rule 23 are satisfied. Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 (4th Cir.2001). [2] The claims on which the plaintiffs seek to proceed against Grant Thornton as representatives of a class are essentially securities-fraud claims under federal and state law. To prove a violation of the federal antifraud provisions of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5, “a plaintiff must prove that, in connection with the purchase or sale of a security, (1) the defendant made a false statement or omission of material fact (2) with scienter (3)upon which the plaintiff justifiably relied (4) that proximately caused the plaintiffs damages.” Longman v. Food Lion, Inc., 197 F.3d 675, 682 (4th Cir.1999) (internal quotation marks and citations omitted). The parties agree that the requirements for state common law fraud and negligent misrepresentation have analogous elements. Because proof of reliance is generally individualized to" }, { "docid": "13089697", "title": "", "text": "have been known by or reasonably available to that plaintiff, and whether and how that plaintiff was damaged by virtue of any such reasonable reliance. These inquiries are all necessarily individualized in scope, and demand the sort of plaintiff-specific evidence that the parties developed at the Hearing in questioning plaintiff McIntyre about his personal interaction with Ciba relating to contamination, his knowledge of Ciba’s operations and contamination, his reading habits, what he had heard in the community about Ciba contamination, the activities of his family members in combating alleged contamination by Ciba, and the like. (Tr., at 215-24.) Thus, the fraud-related claims are characterized by both common proof (concerning the alleged misrepresentations and omissions, the alleged conspiracy, and the alleged pattern of racketeering) and individual proof (concerning reliance and damages). The critical legal question is whether the reliance and damages elements of these claims defeat Rule 23(b)(3) predominance. The factual issue of individual reliance is not necessarily fatal to class certification under Rule 23(b)(3). See, e.g., Kirkpatrick, v. J.C. Bradford & Co., 827 F.2d 718, 724-25 (11th Cir. 1987) (deeming Rule 23(b)(3) satisfied as to plaintiffs’ misrepresentation claims, inasmuch as “the mere presence of the factual issue of individual reliance could not render the claims unsuitable for class treatment”). That said, even where a common core of facts exists, “a fraud case may be unsuited for treatment as a class action if there was material variation in the representations made or in the kinds or degrees of reliance by the persons to whom they were addressed.” Rule 23(b)(3), Advisory Notes to 1966 Amendment (emphasis added); see also Clopton v. Budget Rent A Car Corp., 197 F.R.D. 502, 509 (N.D.Ala.2000) (RICO and fraud claims are not wholly subject to class-wide resolution because each plaintiff must demonstrate reliance); Pipes v. American Sec. Ins. Co., 169 F.R.D. 382, 384 n. 2 (N.D.Ala.1996) (opining that individualized reliance issues almost always militate against class treatment of fraud claims). In sum, then, while fraud claims requiring individual proof of reliance are not per se barred from class certification, material differences in the representations made or the" }, { "docid": "1814012", "title": "", "text": "on the relationship between the common and individual issues.” Class certification under Rule 23(b)(3) is proper when common questions present a significant portion of the case and can be resolved for all members of the class in a single adjudication. Hanlon, 150 F.3d at 1019-22. A plaintiff asserting securities fraud under Section 10(b) must prove (1) a material misrepresentation or omission, (2) scienter, (3) in connection with the purchase or sale of a security, (4) reliance, (5) economic loss, and (6) loss causation. Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 341-42, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005). Defendants’ opposition to class certification focuses in large part on the commonality and predominance requirements. First, defendants contend that individual questions concerning the element of reliance and the “fraud-on-the-market” presumption predominate over common questions. Second, relying on the Fifth Circuit’s decision in Oscar Private Equity Investments v. Allegiance Telecom, Inc., 487 F.3d 261 (5th Cir.2007), defendants claim that plaintiff must establish loss causation at the class certification stage and has failed to do so. A. Reliance and the Fraud-on-the Market Theory. Defendants contend that individual issues concerning reliance predominate over common issues, at least for a portion of the proposed class period. As is often the case in securities actions, plaintiff relies on the “fraud-on-the-market” theory to establish reliance. In Basic, Inc. v. Levinson, 485 U.S. 224, 242-43, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), the Supreme Court ruled that reliance may be presumed in securities cases under the fraud-on-the-market doctrine. Basic “created a rebuttable presumption of investor reliance based on the theory that investors presumably rely on the market price, which typically reflects the misrepresentation or omission.” No. 81 Employer-Teamster Joint Council Pension Trust Fund v. America West Holding Corp., 320 F.3d 920, 934 n. 12 (9th Cir.2003). Without the presumption, class certification would be virtually impossible as individual questions regarding reliance would predominate over common questions. Binder v. Gillespie, 184 F.3d 1059, 1063 (9th Cir.1999); In re Initial Public Offering Securities Litigation, 471 F.3d 24, 42-43 (2d Cir. 2006). The fraud-on-the-market theory is based on the efficient market hypothesis" } ]

[ { "docid": "20394773", "title": "", "text": "appeal from a final order of the district court affirming the bankruptcy court’s grant of defendants’ motions to dismiss for failure to state a claim for relief. We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s acceptance of subject matter jurisdiction de novo, while reviewing any factual findings for clear error. In re Harris Pine Mills, 44 F.3d 1431, 1434 (9th Cir.1995). We review de novo the grant of a motion to dismiss for failure to state a claim for relief. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005). III. Analysis A. The bankruptcy court had subject matter jurisdiction to adjudicate Harris’s state law contract claim. A bankruptcy court’s jurisdiction is established by statute. 28 U.S.C. § 1334(b) gives federal district courts subject matter jurisdiction over “all civil proceedings arising under title 11, or arising in or related to cases under title 11.” 28 U.S.C. § 157(a) allows district courts to refer any of these proceedings to bankruptcy courts. However, because bankruptcy judges are not Article III judges, the Constitution limits their ability to adjudicate— i.e., to render a final judgment — to issues that are at the “core” of the bankruptcy power. Because of this limitation, 28 U.S.C. § 157(b)(1) provides bankruptcy judges authority to make binding decisions only in “core proceedings” that arise under or arise in a case under Title 11. A bankruptcy judge may hear a non-core proceeding that is otherwise related to a case under Title 11, but there, the bankruptcy judge may make only proposed findings of fact and conclusions of law to the district judge, who reviews all non-core matters de novo. 28 U.S.C. § 157(c)(1). 1. Harris’s claim arose in his Chapter 7 bankruptcy case; therefore, the bankruptcy court could hear it. “Arising under” and “arising in” jurisdiction are terms of art. “Congress used the phrase ‘arising under title IT to describe those proceedings that involve a cause of action created or determined by a statutory provision of title 11.” Harris Pine Mills, 44 F.3d at 1435. Harris’s breach of contract claim is not created or determined" } ]

[ { "docid": "4563923", "title": "", "text": "fact.” Id. The Court will examine the Bankruptcy Court’s findings of fact for clear error, and its conclusions of law de novo. B. Standard of Review Regarding Confirmation of the Joint Plan The parties dispute the proper standard of review to be applied by this Court in reviewing the Bankruptcy Court’s confirmation of the Joint Plan. Grace contends that this Court should apply the clear error test to the Bankruptcy Court’s findings of fact, but should review its conclusions of law de novo. Four of the twelve Appellants disagree, claiming that the proper standard of review is de novo review of both the Bankruptcy Court’s findings of fact and conclusions of law because entry of a channeling injunction is a non-core matter under 28 U.S.C. § 157. Section 157 of the United States Code provides that “[bjankruptcy judges may hear and determine ... all core proceedings arising under title 11[.]” 28 U.S.C. § 157(b)(1). The Third Circuit has held that “[i]n core matters, the District Court reviews the Bankruptcy Court’s findings of fact for clear error and its conclusions of law de novo.” In re Anes, 195 F.3d 177, 180 (3d Cir.1999) (citing Meridian Bank v. Alten, 958 F.2d 1226, 1229 (3d Cir.1992)). A matter is considered “core” if it “involves a right created by the federal bankruptcy law” or involves a proceeding “that would only arise in bankruptcy[.]” In re Guild & Gallery Plus, Inc., 72 F.3d 1171, 1178 (3d Cir.1996) (quoting In re Wood, 825 F.2d 90, 97 (5th Cir.1987)). The Third Circuit has found that “[cjonfirmation of a proposed bankruptcy plan is a core bankruptcy matter” under the United States Code. Anes, 195 F.3d at 180 (citing 28 U.S.C. § 157(b)(2)(L)). In line with this Third Circuit precedent, the Court finds that appellate analysis of Grace’s proposed Joint Plan is a core matter under Title 11. Review of the Joint Plan is the type of proceeding “that would only arise in bankruptcy.” Guild & Gallery, 72 F.3d at 1178. As such, the Court will review the Bankruptcy Court’s findings of fact for clear error and its conclusions" }, { "docid": "10255193", "title": "", "text": "substantive issue of whether or not it has a claim which was discharged by the confirmation of the plan. II. Subject Matter Jurisdiction — Core Proceeding MESC asserts that this Court does not have jurisdiction to hear this matter. MESC raises issues such as this Court’s competence to rule on state tax issues, sovereign immunity (discussed infra), notice (discussed infra), and post-confirmation jurisdiction per se (discussed infra), as directed at this Court’s jurisdiction, or lack thereof. Chapter 6 of title 28 of the United States Code governs the designation and jurisdiction of bankruptcy judges. Original jurisdiction of all bankruptcy cases and proceedings is vested in the district courts pursuant to 28 U.S.C. § 1334. The district court may then refer to the bankruptcy court for its district all cases or proceedings arising under title 11. 28 U.S.C. § 157(a). In July 1984, Judge Robert J. Ward, United States District Judge for the Southern District of New York, issued the “Standing Order of Referral of Cases to Bankruptcy Judges.” This Order referred all cases and proceedings arising under title 11 to the bankruptcy court to the maximum extent permitted by 28 U.S.C. § 157(a). Bankruptcy judges may hear and enter final judgments in all cases arising under title 11 and in all core proceedings. Related, non-core proceedings may also be referred to the bankruptcy judge, but not for final disposition, unless the parties expressly consent. Here, the bankruptcy judge submits proposed findings of fact and conclusions of law to the district court, which may review de novo any matter objected to in a timely fashion. 28 U.S.C. § 157(c)(1) and (2). Section 157 of title 28 does not explicitly define “core proceedings,” but provides a non-exclusive list of matters within its embrace. 28 U.S.C. § 157(b)(2)(aHo). A proceeding is core pursuant to § 157 if it invokes a substantive right provided by title 11 or if it is a proceeding that, by its nature, could arise only in the context of a bankruptcy case. In re Wood, 825 F.2d 90, 97 (5th Cir.1987); see also In re Ben Cooper, Inc., 896" }, { "docid": "8720540", "title": "", "text": "consummation motion; (2) the bankruptcy court should have abstained from hearing the plan consummation motion where Luan had filed suit regarding the lease at issue in federal district court; and (3) the bankruptcy court erred by excluding parol evidence regarding the interpretation of the lease. We address each argument in turn but write primarily to address the first. Our review of a district court decision affirming a bankruptcy court order is plenary. FCC v. NextWave Personal Communications, Inc. (In re NextWave Personal Communications, Inc.), 200 F.3d 43, 50 (2d Cir.1999). We therefore independently review the factual findings and legal conclusions of the bankruptcy court. Id. We must accept the bankruptcy court’s findings of fact unless clearly erroneous; conclusions of law are reviewed de novo. Id. I. Bankruptcy Court Jurisdiction Luan argues that the bankruptcy court did not have subject matter jurisdiction over the contract dispute raised in the plan consummation motion and did not have personal jurisdiction over Luan as to that motion. A. Subject Matter Jurisdiction Luan argues that the bankruptcy court did not have subject matter jurisdiction over the plan consummation motion because it was part of a post-sale contract dispute between two non-debtors. The jurisdiction of the bankruptcy court is set forth in 28 U.S.C. § 157. Bankruptcy proceedings are divided into two principal categories: “core” and “non-core.” 28 U.S.C. § 157 (2001); United States Lines, Inc. v. Am. Steamship Owners Mut. Protection and Indem. Ass’n, Inc. (In re United States Lines, Inc.), 197 F.3d 631, 636 (2d Cir.1999). In core proceedings, the bankruptcy court has comprehensive power and may enter appropriate orders and judgments. 28 U.S.C. § 157(b)(1) (2001); see S.G. Phillips Constrs., Inc. v. City of Burlington (In re S.G. Phillips Constrs., Inc.), 45 F.3d 702, 704 (2d Cir.1995). In proceedings which are non-core, but which otherwise relate to a bankruptcy case under title 11, “the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court[J” 28 U.S.C. § 157(c)(1) (2001). The core/non-core distinction was first articulated in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S." }, { "docid": "17322765", "title": "", "text": "adjudication that a disclosure statement contained ‘materially false’ information.”). We note, however, that the bankruptcy court specifically found that “[t]he Plan ha[d] been proposed in good faith and not by any means forbidden by law.” Clerk’s R., Ex. G at 2-3. The complaint in this case alleges a fraudulent scheme broader than the solicitation and disclosure portions of the bankruptcy process. For purposes of summary judgment, we assume these allegations are true and hold that the defendants are not statutorily immune from suit under section 1125(e). C. Claim and Issue Preclusion 1. Res Judicata In order to satisfy constitutional concerns presented by Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), bankruptcy courts may only hear and determine “core proceedings” arising under the Bankruptcy Code. 28 U.S.C. § 157(b)(1). Although bankruptcy courts may hear non-core proceedings that are “related to” bankruptcy (28 U.S.C. § 157(c)(1)), they cannot determine related issues absent the consent of all parties. 28 U.S.C. § 157(c)(2). Absent such consent, the bankruptcy court can only propose findings of fact and conclusions of law that are subject to de novo review by the district court. 28 U.S.C. § 157(c)(1). In evaluating the res judicata effect of a bankruptcy case, we have recently held that there is “no structural obstacle to a core proceeding’s having a preclusive effect on a later non-core claim.” In re International Nutronics, Inc., 28 F.3d 965, 970 (9th Cir.), cert. denied, — U.S. —, 115 S.Ct. 577, 130 L.Ed.2d 493 (1994). We thus disagree with the Fifth and Seventh Circuit eases which have held differently on this same subject. See Howell Hydrocarbons, Inc. v. Adams, 897 F.2d 183, 189-90 (5th Cir.1990); Barnett v. Stern, 909 F.2d 973, 978 (7th Cir.1990). In this case the bankruptcy court made findings of fact and conclusions of law regarding the sufficiency of the disclosure and plan of reorganization for purposes of confirmation. It did not make any binding determination regarding independent allegations of securities fraud, which would have been issues of non-core proceedings. Thus, the court’s confirmation of" }, { "docid": "16689291", "title": "", "text": "title 11. 28 U.S.C. § 157(c)(1). However, he does not determine such a proceeding, but merely submits proposed findings of fact and conclusions of law to the district court. 28 U.S.C. § 157(c)(1). Any final order or judgment is to “be entered by the district judge after considering the bankruptcy judge’s proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected.” Id. Bankruptcy Rule 9033, modeled on Fed. R.Civ.P. Rule 72, lays down the following standard for de novo review: The district judge shall make a de novo review upon the record or, after additional evidence, of any portion of the bankruptcy judge’s findings of fact or conclusions of law to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the proposed findings of fact or conclusions of law, receive further evidence, or recommit the matter to the bankruptcy judge with instructions, (emphasis added) The parties, however, may, if they so elect, permit the bankruptcy judge to hear and determine a non-core proceeding just as he would a core proceeding. 28 U.S.C. § 157(c)(2). With the consent of all the parties, the district court may refer a non-core case to a bankruptcy judge to hear and determine and to enter appropriate orders and final judgments subject to review under 28 U.S.C. § 158, meaning the “clearly erroneous” standard. Id. 28 U.S.C. § 157(b)(3) requires a bankruptcy judge to determine on the judge’s own motion, or on timely motion of a party, whether a proceeding is a core proceeding or is a proceeding that is otherwise related to a case under title 11 and adds that a “[determination that a proceeding is not a core proceeding is not to be made solely on the basis that its resolution may be affected by State law.” No rule as yet fixes the time for this determination to be made. It is not unusual for it to be delayed until final adjudication. In this District all bankruptcy cases have been automatically referred to" }, { "docid": "7282461", "title": "", "text": "right created by federal bankruptcy law or one which could not exist outside of the bankruptcy.” Lowenbraun v. Canary, 453 F.3d 314, 320 (6th Cir.2006) (internal punctuation omitted). Neither is true here: Stone’s affirmative claims are based on Kentucky law, not federal bankruptcy law; and he could have filed them as easily before he declared bankruptcy as afterward. Nor do the claims fall within the types of proceedings listed as core in § 157(b)(2). Stone’s affirmative claims are just ordinary state-law claims for fraud. Thus they are only “related to” the bankruptcy estate, which means the bankruptcy court may submit proposed findings of fact and conclusions of law for them. 28 U.S.C. § 157(c)(1). It is true, of course, that both parties alleged in the bankruptcy court (albeit without explanation) that all of Stone’s claims are core; and that Waldman therefore waived his right to argue to this court that Stone’s affirmative claims are non-core. But the fortuity of Waldman’s waiver of his own rights does nothing to diminish the bankruptcy court’s authority under § 157(c)(1). That is the authority we direct the court to exercise on remand here. The bankruptcy court shall recast its judgment as to Stone’s affirmative claims as proposed findings of fact and conclusions of law, which the district court shall review de novo. In doing so, the district court may “accept, reject, or modify the proposed findings of fact or conclusions of law, receive further evidence, or recommit the matter to the bankruptcy judge with instructions.” Fed. R. Bankr.P. 9033(d). III. Waldman challenges the merits of the bankruptcy court’s judgment with respect to the disallowance claims. As to those claims, we review the court’s factual findings for clear error and its legal conclusions de novo. Stamper v. United States (In re Gardner), 360 F.3d 551, 557 (6th Cir.2004). When reviewing for clear error, the question is simply “whether a reasonable person could agree with the bankruptcy court’s decision.” Volvo Comm. Fin. LLC the Americas v. Gasel Transp. Lines, Inc. (In re Gasel Transp. Lines, Inc.), 326 B.R. 683, 685-86 (6th Cir. BAP 2005). A. Waldman" }, { "docid": "14572008", "title": "", "text": "a court of first instance with comprehensive power to hear, decide and enter final orders and judgments. See 28 U.S.C. § 157(b)(1). Appellate review of the Bankruptcy Court’s judgment is available initially in the District Court and then in the Court of Appeals. See 28 U.S.C. § 158. Second, in “noncore” proceedings, the Bankruptcy Court’s adjudicatory power is limited to hearing the dispute and submitting “proposed findings of facts and conclusions of law to the district court.” Id. § 157(c)(1). The District Court, after considering the Bankruptcy Court’s proposed findings and conducting a de novo review of any matter objected to therein, enters final orders and judgments in “non-core” proceedings. See id. at § 157(c)(1). Section 157’s distinction between “core” and “non-core” proceedings mirrors Justice Brennan’s distinction in Marathon, and the jurisdictional variance between the two types of proceedings was intended “to satisfy the concerns of Marathon.” Phar-Mor, 22 F.3d at 1234; see In re Wood, 825 F.2d 90, 96 (5th Cir.1987)(dis-cussing congruence between Marathon and § 157’s jurisdictional regime). Thus, a proceeding’s core or non-core nature is crucial in bankruptcy cases because it defines both the extent of the Bankruptcy Court’s jurisdiction, and the standard by which the District Court reviews its factual findings. To determine whether a proceeding is a “core” proceeding, courts of this Circuit must consult two sources. First, a court must consult § 157(b). Although § 157(b) does not precisely define “core” proceedings, it nonetheless provides an illustrative list of proceedings that may be considered “core.” See id. § 157(b)(2)(A)-(0). Second, the court must apply this court’s test for a “core” proceeding. Under that test, “ ‘a proceeding is core [1] if it invokes a substantive right provided by title 11 or [2] if it is a proceeding, that by its nature, could arise only in the context of a bankruptcy case.’ ” In re Guild & Gallery Phis, Inc., 72 F.3d 1171, 1178 (3d Cir.1996)(quoting Marcus Hook, 943 F.2d at 267); see In re Continental Airlines, 125 F.3d 120, 131 (3d Cir.1997); cf. Beard v. Braunstein, 914 F.2d 434, 444 (3d Cir.1990). This Court" }, { "docid": "12697760", "title": "", "text": "its jurisdiction is delimited accordingly. Although the bankruptcy court may hear all “related-to” proceedings which have been referred to it, whether core or non-core, it may enter a final appealable judgment only if (i) the proceeding itself is core, viz., closely intertwined with and integral to the bankruptcy court’s mandate to administer a bankrupt cy case; or (ii) the case or proceeding is non-core, but the litigants nonetheless have consented to the entry of a final disposition by the bankruptcy court, rather than by the district court. See Northern Pipeline, 458 U.S. at 86-87, 102 S.Ct. 2858. If the proceeding is core, the bankruptcy court’s final judgment is immediately appealable either to the district court or, with the consent of the parties, to the BAP. 28 U.S.C. § 158(b)(1); § 157(b)(1). In either instance, the appellate tribunal applies a deferential standard of review to the bankruptcy court’s findings of fact, and will upset those findings only if clearly erroneous. See In re Spadoni, 316 F.3d 56, 58 (1st Cir.2003). In a non-core proceeding, however, the bankruptcy court is not empowered to enter final, appealable orders without the parties’ consent. Instead, after it has conducted the required proceedings, it must submit its proposed findings of fact and conclusions of law for consideration by the district court. See 28 U.S.C. § 157(c)(1); Cong. Credit Corp. v. AJC Int'l, Inc., 42 F.3d 686, 690 (1st Cir.1994). The role of the district court in turn is to conduct de novo review of the findings of fact and the conclusions of law submitted by the bankruptcy court. In so doing, the district court may receive further evidence, modify the findings proposed by the bankruptcy court, and/or remand to the bankruptcy court with instructions. See Fed. R. Bankr.P. 9033(d). At that stage, any appeal from the “final” district court order may be taken only to the court of appeals, which applies a deferential standard of review. Id. § 158(d). In the instant case, the BAP did not address the core/non-core distinction in its decision, Sheridan, 282 B.R. at 86-89, perhaps because Sheridan’s reference to it —" }, { "docid": "14455153", "title": "", "text": "non-core proceeding that could not have been litigated there; 2) the Trustees’ full claim could not have been brought before the bankruptcy court, because only a portion of the Trustees’ claim against MacDonald was ripe at the time of the Santini Plan’s confirmation. Neither argument prevails. 1. Non-Core Proceedings The Trustees argue that the withdrawal liability claim could not have been litigated in bankruptcy court because it was not a “core proceeding” under 28 U.S.C. § 157(b). A bankruptcy judge may hear proceedings that are not core proceedings, but that are “otherwise related to a ease under title 11.” 28 U.S.C. § 157(c)(1). In that situation, the bankruptcy judge submits proposed findings of fact and conclusions of law to the district court, which then reviews any objections to the proposed findings de novo and enters a final judgment. Id. At least in the first instance, the decision as to whether a claim is “core” is “reserved for the bankruptcy judge to determine.” Sure-Snap, 948 F.2d at 873 (claims at issue were barred by res judicata, even if they were not core proceedings) (citing § 157(b)(3)). The bankruptcy court evidently concluded that the withdrawal liability claim was a core claim. (The record does not reflect that the bankruptcy court submitted proposed findings of fact and conclusions of law to the district court, as would have been necessary for resolution of a non-core proceeding by the bankruptcy court. See 28 U.S.C. § 157(c)(1).) The Santini plan expressly resolves the question of MacDonald’s liability for the withdrawal liability claim: “the Local 814 Claim will be paid over sixty (60) months in equal monthly installments from the combined excess cash flow of Santini and MacDonald [].” Reorg. Plan § 4.8 (emphasis added). This statement, combined with the definition of “Excess Cash Flow” (fifty percent of Santini’s cash flow, plus MacDonald’s, minus the amounts previously paid to unsecured creditors, Reorg. Plan § 1.39), makes clear that MacDonald was made hable on stated terms and conditions for payment of the Local 814 Claim. Moreover, §§ 14.16 and 13.2 of the Santini Plan operate to release and" }, { "docid": "276545", "title": "", "text": "misread Stern and ignore the expansive nature of the bankruptcy courts’ subject matter jurisdiction. The second question, however, does raise an issue of subject matter jurisdic tion: if the Court lacks the constitutional power to issue a final judgment in this proceeding, does it have statutory or other authority to submit proposed findings of fact and conclusions of law to the district court under the Judicial Code, Fed. R. Bankr.P. 9033 or the Standing Order of Reference? This question arises because 28 U.S.C. § 157(b)(2) states that “bankruptcy judges may hear and determine ... all core proceedings arising under title 11, or arising in a case under title 11, referred under subsection (a) of this section, and may enter appropriate orders and judgments, subject to review under section 158 of this title,” and 28 U.S.C. § 157(c)(1) states that “[a] bankruptcy judge may hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11, [in which case] the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge after considering the bankruptcy judge’s proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected,” but Stem can be said to have created a new type of proceeding: a core proceeding in which the bankruptcy judge is constitutionally precluded from entering a final order or judgment. This, in turn, raises the issue whether there is a gap in the statutory scheme preventing the Court’s submission of proposed conclusions of law to the district court if a matter falls into the new “core but precluded” category. See also Fed. R. Bankr.P. 9033(a), which — understandably, because Congress did not anticipate Stem’s new category of unconstitutional core proceedings — provides only for the bankruptcy judge’s filing of proposed findings of fact and conclusions of law “[i]n non-core proceedings heard pursuant to 28 U.S.C. § 157(c)(1).” Given the procedural stage of this proceeding, the answer to the" }, { "docid": "18600679", "title": "", "text": "by drawing a distinction between “core” and “non-core” proceedings. Bankruptcy courts now have jurisdiction to adjudicate matters constituting core proceedings pursuant to 28 U.S.C. § 157(b)(1). Although the statute does not define “core,” § 157(b)(2) sets forth a non-exclusive list of matters considered to be core. Bankruptcy courts may also hear matters which are not core but are otherwise related to the bankruptcy case. See 28 U.S.C. § 157(c)(1). These non-core but “related” matters are also left undefined. Because the bankruptcy court has jurisdiction to adjudicate both categories of proceedings, the primary consequence of a determination of whether the proceeding is core or non-core in this ease is the applicable standard of review on appeal of the bankruptcy court’s decision. When adjudicating core matters, the bankruptcy court may issue final orders and judgments, which are subject to appellate review pursuant to Bankruptcy Rule 8013. Under that rule, a district court reviews the bankruptcy court’s findings of facts under a “clearly erroneous” standard and his conclusions of law de novo. See Brunner v. New York State Higher Educ. Services, 831 F.2d 395, 396 (2d Cir.1987); In re Baker, 140 B.R. 88, 89 (D.Vt.1992); IAM v. Eastern Air Lines, Inc., 121 B.R. 428, 432 n. 5 (S.D.N.Y.1990); In re Int’l Distribution Centers, Inc., 103 B.R. 420, 421 (S.D.N.Y.1989); In re Tavern Motor Inn, Inc., 80 B.R. 659, 660 (D.Vt.1987). In proceedings involving non-core but related matters, the bankruptcy court is not empowered to make any final determinations. § 157(c)(1). Rather, it must submit proposed findings of fact and conclusions of law to the district court. In non-core related proceedings, the district court reviews de novo both the factual findings and the legal conclusions of the bankruptcy court. See § 157(e)(1); see also Bankruptcy Rule 9033(d) (governing review of proposed findings of fact and conclusions of law in non-core proceedings); IAM v. Eastern Air Lines, 121 B.R. at 432 n. 5. Because the standard of review of the bankruptcy court’s conclusions of law is de novo regardless of the category in which the proceeding falls, the determination whether the proceedings at issue are" }, { "docid": "10255194", "title": "", "text": "arising under title 11 to the bankruptcy court to the maximum extent permitted by 28 U.S.C. § 157(a). Bankruptcy judges may hear and enter final judgments in all cases arising under title 11 and in all core proceedings. Related, non-core proceedings may also be referred to the bankruptcy judge, but not for final disposition, unless the parties expressly consent. Here, the bankruptcy judge submits proposed findings of fact and conclusions of law to the district court, which may review de novo any matter objected to in a timely fashion. 28 U.S.C. § 157(c)(1) and (2). Section 157 of title 28 does not explicitly define “core proceedings,” but provides a non-exclusive list of matters within its embrace. 28 U.S.C. § 157(b)(2)(aHo). A proceeding is core pursuant to § 157 if it invokes a substantive right provided by title 11 or if it is a proceeding that, by its nature, could arise only in the context of a bankruptcy case. In re Wood, 825 F.2d 90, 97 (5th Cir.1987); see also In re Ben Cooper, Inc., 896 F.2d 1394 (2d Cir.1990). The gravamen of this adversary proceeding is such a core proceeding. This Court is asked by the Debt- or to declare that any claim of MESC has been discharged by the confirmation of the chapter 11 plan herein, and that MESC is enjoined from seeking to collect on any pre-confirmation debt. Although MESC’s tax assessment is based on state law, because the assessments relate to both pre-petition and pre-confirmation tax years, the ability to collect on that debt goes to the validity of the plan’s confirmation, which purports to discharge debts not provided for therein. Therefore, the gravamen of the Debtor’s complaint strikes at the heart of this Court’s power to confirm and discharge under the Code. Pursuant to Bankruptcy Rule 3020, bankruptcy courts retain jurisdiction over the post-confirmation administration of the estate until the entry of a final decree. See In re Almarc Corp., 94 B.R. 361, 364 (Bankr.E.D.Pa.1988); Bankr.Rule 3022. Bankruptcy courts retain jurisdiction over a chapter 11 case after confirmation, “to protect its [confirmation] decree, to prevent interference" }, { "docid": "8691157", "title": "", "text": "U.S.C. § 158. In contrast, in “non-core” proceedings, the bankruptcy court is limited to hearing the matter and submitting proposed findings of fact and conclusions of law to the district court. The district court reviews de novo any finding or conclusion objected to and enters a final order and judgment. See 28 U.S.C. § 157(c)(1). If the parties consent, the district court may expand the bankruptcy court’s power to adjudicate non-core proceedings to include the power to issue final orders and judgments. See 28 U.S.C. § 157(c)(2). The core/non-core distinction segregates those proceedings that an Article I legislative court may hear and decide by a final order from those that an Article III court must subject to non-deferential review as non-final orders. Congress non-exhaustively enumerated what constitutes a “core” proceeding in 28 U.S.C. § 157(b)(2). The proceedings listed include matters affecting the administration of the estate, determinations as to the dischargeability of particular debts, and other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor relationship. 28 U.S.C. § 157(b)(2)(A), (I), (O). That section, however, does not enumerate examples of, or define what constitutes, “non-core” proceedings. We determine Dunmore’s claims to be “non-core” proceedings if they do not depend on the Bankruptcy Code for their existence and they could proceed in another court. Sec. Farms v. Int’l Bhd. of Teamsters, 124 F.3d 999, 1008 (9th Cir.1997). Although the district court had jurisdiction over all the claims asserted in the bankruptcy court, the bankruptcy court’s power to adjudicate the claims varied among Dunmore’s claims. When presented with a mixture of core and non-core claims, we must employ a claim-by-claim analysis to determine whether the bankruptcy court could enter a final order for that claim. Halper v. Halper, 164 F.3d 830, 839 (3d Cir.1999). 1. Violation of discharge injunction Dunmore’s discharge injunction claim constitutes a core proceeding for which the bankruptcy court could enter a final order. The claim that the Govern ment violated the discharge injunction depends on the bankruptcy court’s authority to enforce its own orders under the Bankruptcy Code. 11 U.S.C. §" }, { "docid": "7632141", "title": "", "text": "Id. § 157(c)(1). A non-core proceeding is “related” to a bankruptcy case only when “it affects the amount of property available for distribution or the allocation of property among creditors.” In re Xonics, Inc., 813 F.2d 127, 130 (7th Cir.1987). Counterclaims like that in Stern must under the Constitution be treated as non-core proceedings, 131 S.Ct. at 2620, so they are subject to that consent procedure. Thus, parties may consent to final adjudication by a Bankruptcy Judge of counterclaims not necessarily resolved by a ruling on a creditor’s claim, even though that Judge would not otherwise have that authority. Consent given for final ruling on non-core matters has widespread use and importance in bankruptcy cases in this District, to such an extent that relatively few non-core proceedings go to District Judges for entry of final judgments. The statutory right of parties to agree to final adjudication of non-core proceedings by Bankruptcy Judges is therefore a significant part of the efficiency of the bankruptcy process under which the role of the District Judge is usually that of adjudging appeals from the consented final judgments. . Entry of judgment by consent is a rational decision by the parties: it lowers the workload for the parties and for the District Court. Final judgments entered by a Bankruptcy Judge may be appealed to a District Court, 28 U.S.C. § 158(a), which reviews the Bankruptcy Judge’s legal conclusions de novo and its findings of fact for clear error, Follett Higher Educ. Grp., Inc. v. Berman (In re Berman), 629 F.3d 761, 766 (7th Cir.2011). But if a Bankruptcy Judge only submits proposed findings of fact and conclusions of law to the District Court, that court must review de novo all findings and conclusions that the parties object to. 28 U.S.C. § 157(c)(1). Just as parties in a federal civil case often consent to final adjudication by a Magistrate Judge, see 28 U.S.C. § 636(c), parties may seek final adjudication of non-core proceedings by a Bankruptcy Judge in order to resolve the proceeding faster without having to wait for time on a District Judge’s very busy" }, { "docid": "7281571", "title": "", "text": "§ 157(c)(1). In either case, we have appellate jurisdiction over the district court’s final decision. See 28 U.S.C. §§ 158(d), 1291. The nature of the bankruptcy and the district court’s jurisdictions, however, determines whether we are reviewing the final decision of the bankruptcy court or the district court, i.e., to whose fact-finding we owe clear-error deference. See Hamper, 164 F.3d at 836 (“[A] proceeding’s core or non-core nature is crucial in bankruptcy cases because it defines both the extent of the Bankruptcy Court’s jurisdiction, and the standard by which the District Court reviews its factual findings.”). A core proceeding, “ ‘invokes a substantive right provided by title 11 or ... by its nature, could arise only in the context of a bankruptcy case.’ ” Id. (quoting In re Guild, 72 F.3d at 1178). When reviewing a core proceeding, we accept the Bankruptcy Court’s findings of fact unless clearly erroneous. See id. at 835. In contrast, a non-core proceeding belongs to “the broader universe of all proceedings that are not core proceedings but are nevertheless ‘related to’ a bankruptcy case.”.. Id. at 837. Thus, a “non-core” matter may include a proceeding that is not against the debtor or the debt- or’s property. See id. When reviewing a non-core proceeding, we treat the district court as the trial court, accepting its findings of fact unless clearly erroneous. See 28 U.S.C. § 157. Of course, conclusions of law are reviewed de novo in both core and non-core proceedings. See id. The Bankruptcy Court for the Western District of Pennsylvania opined that Spir-co’s motion to enforce the terms of the Reorganized Plan and enjoin enforcement of the state court judgment against Innovo was a core proceeding because “[s]uch a request would arise only in the context of a bankruptcy case wherein a plan of reorganization was confirmed and debtor had received a discharge.” Spirco, 201 B.R. at 748. Innovo claims that “ ‘[b]ut for’ the filing of the Chapter 11 case by ‘Spirco’ and the terms of its Plan, ‘Copelin’ would have been free to pursue collection from ‘Spirco’ or ‘Innovo’ or both, until" }, { "docid": "10537102", "title": "", "text": "be entered by the district judge after considering the bankruptcy judge’s proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected.” Thus, in conducting review of non-core proceedings, the district court “may consider the evidence de novo, and need give no deference to the findings of the Bankruptcy Judge.” In re G & L Packing Co., Inc., 41 B.R. 903, 913 (N.D.N.Y.1984). The new amendments to the Bankruptcy Code do not provide a standard of appellate review of bankruptcy court adjudications of core proceedings. However, 28 U.S.C. § 158(c) provides that appeals from decisions of bankruptcy judges “shall be taken in the same manner as appeals in civil proceedings generally are taken to the court of appeals from the district courts.... ” As one court has reasoned, “[sjince Rule 52(a), Federal Rules of Civil Procedure, applies the clearly erroneous standard from appeals taken from district courts to courts of appeals, the clear implication of both § 158(c) and the special de novo review procedure of § 157(c)(1) is that Congress intended that the clearly erroneous standard apply in appeals from decisions of bankruptcy judges in ‘core’ proceedings.” In re Osborne, 42 B.R. 988, 993 (W.D.Wis.1984); accord In re X-Cel, Inc., 46 B.R. 202, 203-04 (N.D.Ill.1984); In re G & L Packing Co., Inc., supra, 41 B.R. at 913 n. 2. Accordingly, this court’s determination of the appropriate standard on review depends on whether the bankruptcy court decision involved a core or non-core proceeding. Core proceedings “include most matters which are integral to the adjudication of bankruptcy or were traditionally before the bankruptcy court.” In re X-Cel, supra, 46 B.R. at 204. 28 U.S.C. § 157(b)(2), defines the term core proceeding by example; it provides that “Core proceedings include, but are not limited to — (A) matters concerning the administration of the estate; (B) allowance or disal-lowance of claims against the estate or exemptions from property of the estate, and elimination of claims or interest for the purposes of confirming a plan under chapter 11 ...; (K) determinations of the validity," }, { "docid": "4563922", "title": "", "text": "re Morrissey, 717 F.2d 100, 104 (3d Cir.1983) (internal citations omitted); Hudson’s Coffee, 2009 WL 1795833, at *2 (internal citations omitted). In bankruptcy appellate litigation, the abuse of discretion standard is highly deferential to the judgment of the bankruptcy court, and the reviewing court should not disturb the findings of the bankruptcy court absent a “definite and firm conviction” that the bankruptcy court committed a clear error. Hudson’s Coffee, 2009 WL 1795833, at *2 (quoting In re Nutraquest, Inc., 434 F.3d 639, 645 (3d Cir.2006)) (internal quotations omitted). The Bankruptcy Court’s order approving the Settlement Agreement between Grace and the CNA Companies constitutes a final order, and thus will be reviewed under the abuse of discretion standard. All parties to the Settlement Agreement and those objecting to its entry agree that this is the applicable standard of review here. Accordingly, this Court will review the Bankruptcy Court’s findings and determine whether it abused its discretion based on “a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact.” Id. The Court will examine the Bankruptcy Court’s findings of fact for clear error, and its conclusions of law de novo. B. Standard of Review Regarding Confirmation of the Joint Plan The parties dispute the proper standard of review to be applied by this Court in reviewing the Bankruptcy Court’s confirmation of the Joint Plan. Grace contends that this Court should apply the clear error test to the Bankruptcy Court’s findings of fact, but should review its conclusions of law de novo. Four of the twelve Appellants disagree, claiming that the proper standard of review is de novo review of both the Bankruptcy Court’s findings of fact and conclusions of law because entry of a channeling injunction is a non-core matter under 28 U.S.C. § 157. Section 157 of the United States Code provides that “[bjankruptcy judges may hear and determine ... all core proceedings arising under title 11[.]” 28 U.S.C. § 157(b)(1). The Third Circuit has held that “[i]n core matters, the District Court reviews the Bankruptcy Court’s findings of fact for clear" }, { "docid": "15127780", "title": "", "text": "unlawful detainer judgment against Mann. Before we consider these contentions, we must determine the appropriate standard of review. A. Mann contends that the district court erred in reviewing the bankruptcy court’s findings of fact in the foreclosure action under the clear error standard. According to Mann, the district court should have reviewed the bankruptcy court’s findings of fact de novo, because the foreclosure action was not a “core” proceeding under 28 U.S.C. § 157(b)(2). See Rosner v. Worcester (In re Worcester), 811 F.2d 1224, 1229 n. 5 (9th Cir.1987) (noting in dicta that “proceedings relating to the foreclosure sale’s validity ... are not ‘core’ proceedings”). Likewise, Mann contends that we should give no deference to the bankruptcy court’s findings. We will assume without deciding that this was not a core proceeding. That does not mean, however, that the bankruptcy court’s fact finding is entitled to little or no deference. In a related non-core pro ceeding such as this, the bankruptcy judge generally must prepare proposed findings of fact and conclusions of law for the district court, who must then review the bankruptcy court’s proposals de novo. 28 U.S.C. § 157(c)(1). However, when all parties consent to the bankruptcy court’s jurisdiction in a related non-core proceeding, the district court reviews the bankruptcy court’s findings of fact for clear error. See id. § 157(c)(2); Daniels-Head & Assocs. v. William M. Mercer, Inc. (In re Daniels-Head & Assocs.), 819 F.2d 914, 918 (9th Cir.1987); DuVoisin v. Foster (In re Southern Indus. Banking Corp.), 809 F.2d 329, 331 (6th Cir.1987). Here, Mann chose to file this adversary proceeding in the bankruptcy, court, and he never objected to the court’s jurisdiction prior to the time it rendered judgment against him. Through this conduct, he consented to the court’s jurisdiction. See Daniels-Head, 819 F.2d at 918-19; DuVoisin, 809 F.2d at 331; see generally, White v. McGinnis, 903 F.2d 699 (9th Cir.1990) (en banc). The district court therefore properly reviewed the bankruptcy court’s factual findings for clear error, as will we. B. Under 11 U.S.C. § 363(m), an appeal of a bankruptcy court’s ruling on a foreclosure" }, { "docid": "3333108", "title": "", "text": "validity of the mortgage ultimately affects whether the creditor whose mortgage is invalidated must look to other collateral or compete with general unsecured creditors to satisfy the debt it is owed. B. Core Versus Non-Coré Having found that the district court had jurisdiction over the adversary proceeding, we turn next to the question whether the district court correctly referred to it as a core proceeding under 28 U.S.C. § 157(b). If it was a core proceeding, the district court correctly applied normal, deferential standards of appellate review to the bankruptcy court’s disposition of it. See 28 U.S.C. § 158(a); Fed. R. Bankr.P. 8013. If it was a non-core proceeding, the bankruptcy court could only submit proposed findings of fact and conclusions of law, not a final order or judgment, and the district court was obligated to conduct a de novo review of those matters to which the Bank objected. See 28 U.S.C. § 157(c)(1) (“In [a non-core] proceeding, the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge after considering the bankruptcy judge’s proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected.”); Fed. R. Bankr.P. 9033 (specifying the exact procedures to be followed by the district court in such cases). Congress created the distinction between core and non-core proceedings in the Bankruptcy Amendments and Federal Judgeship Act of 1984 (“1984 Act”), Pub.L. No. 98-353, 98 Stat. 333, in order to avoid the constitutional problems, identified in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), associated with the expansive bankruptcy court jurisdiction permitted under pri- or law. 28 U.S.C. § 157(b)(2) lists fourteen specific types of actions that are considered core proceedings, id. § 157(b)(2)(A)-(N), and provides a fifteenth, catch-all category for “other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security holder relationship,” id. § 157(b)(2)(0). The" }, { "docid": "6567839", "title": "", "text": "held that the referral of the district court’s entire subject matter jurisdiction to non-article III decision makers under 28 U.S.C. § 1471(c) [the predecessor to § 157] was unconstitutional. Section 157 provides in part that “[b]an-kruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a ease under title 11 ... and may enter appropriate orders and judgments....” 28 U.S.C. § 157(b)(1). A bankruptcy judge may also hear “a proceeding that is not a core proceeding but that is otherwise related to a case under title 11.” However, in “related to” proceedings, unless the parties otherwise consent, the bankruptcy court is only empowered to propose findings of fact and conclusions of law that are submitted to the district court for de novo review. Id. at § 157(c)(1), (2). Accordingly, in the absence of any provision expressly excluding federal and state income taxation from the adjudicative power of bankruptcy courts, determination of whether a bankruptcy court can adjudicate tax issues would be evaluated under § 157 standards like any other jurisdiction issue. If the tax dispute involved a core controversy, then a bankruptcy court could enter final enforceable orders. If the tax dispute was only “related to” the case under title 11 the bankruptcy court could submit proposed findings of fact and conclusions of law. If neither of those tests were satisfied, then the bankruptcy court would not have jurisdiction to hear the case at all. The Court concludes that the tax disputes in issue here are core proceedings. The term “core proceeding” is not defined in the Bankruptcy Code, but § 157(b)(2) enumerates a nonexclusive list of examples, including matters concerning the administration of the estate, allowance or dis-allowance of claims against the estate, and confirmation of plans. See 28 U.S.C. § 157(b)(2)(A), (B), (L). The CDA account was created as an integral part of the Debtor’s confirmed plan. Entrustment of the CDA and assignment of the claims review function to the Committee clearly expedited the Debtor’s reorganization and emergence from Chapter 11. The CDA provided a vehicle" } ]

[ { "docid": "2852247", "title": "", "text": "this category who were ultimately released without charges having been filed, 29% or 52 persons were held more than twenty-four (24) hours. Id. at 36. 23. For the remainder of persons in the category of “county and district charges” who were charged with a crime and released on bond, the average time of detention, that being the time from arrival at the station until the posting of the bond, was thirteen and one-half (I3V2) hours. Id. at. 18, 20 and 24. 24. In the City of Houston during 1981, there were over 96,000 prisoners processed through the detention centers. Testimony of Capt. Dennis Schumann. There are approximately one thousand (1000) robberies per month in Houston. Testimony of Lt. Allen Tharling. Additionally, there are up to two hundred fifty (250) burglaries per day in Houston. Testimony of Lt. Tom Adams. Homicides are numerous, and there is a tremendous backlog in outstanding warrants in the Homicide Division. Testimony of Lt. Charles Lofland. 25. In arriving at the above Findings of Fact, the Court has weighed carefully the credibility of the witnesses who have testified and finds that in instances wherein significant factual conflicts exist, the plaintiffs’ witnesses are more persuasive. III. Conclusions of Law 1. This Court has jurisdiction over the constitutional and federal claims pursuant to 28 U.S.C. § 1343(a)(3), (4) (Supp.1982), and over the state claims pursuant to its pendant jurisdiction. Probable Cause Hearing 2. After an arrest based on a policeman’s on-the-scene assessment of probable cause, a suspect may be held in custody for a brief period of detention to take the administrative steps incident to arrest. However, the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest. Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54 (1974). Plaintiffs assert that the “administrative steps” allowed by Gerstein, supra, include only transportation to the station, booking into the jail, and filing charges. In resolving this issue, the Court finds guidance in the cases construing Rule 5(a) of the Federal Rules of Criminal Procedure which requires" } ]

[ { "docid": "23236593", "title": "", "text": "full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. Id. at 482, 96 S.Ct. 3037. Here, however, and primarily because this particular Fourth Amendment claim did not even exist until years after Anderson’s arrest and trials, we conclude that he did not benefit from the “opportunity for full and fair litigation” of it in California’s courts to which he was entitled. See United States ex rel. Bostick v. Peters, 3 F.3d 1023, 1027-29 (7th Cir.1993) (review of Fourth Amendment claim not barred because petitioner did not have an opportunity to establish standing because of an unforeseeable procedural rule preventing the state court from reaching the merits of the claim). The California Supreme Court denied the claim because it could have been, but was not, raised on appeal. We held in Park v. California, 202 F.3d 1146, 1152-53 (9th Cir.2000), of course, that such a denial in 1996 did routinely entail a review by the Supreme Court of California of possible federal claims, but we are persuaded on these facts and circumstances that this kind of review falls short of the quality of litigation opportunity described in Stone. Thus, we proceed to the claim itself. 2. Can Anderson Raise McLaughlin’s 48-Hour Rule as an Issue? In Gerstein v. Pugh, 420 U.S. 103, 125, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the Supreme Court held that the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to extended detention following a warrantless arrest. Subsequently, in McLaughlin, the Court clarified its holding in Gerstein by defining “prompt.” Specifically, the Court held that “judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein.” McLaughlin, 500 U.S. at 56, 111 S.Ct. 1661. The McLaughlin Court emphasized that this 48-Hour Rule is not absolute. As the Court explained: This is not to say that the probable cause determination" }, { "docid": "11177235", "title": "", "text": "of the analysis is “whether the plaintiff offered sufficient evidence to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.” Estate of Carter v. City of Detroit, 408 F.3d 305, 311 n. 2 (6th Cir.2005) (citation omitted). B. Violation of a constitutional right Drogoseh alleges that his detention following a warrantless arrest violated the Fourth Amendment’s prohibition against unlawful seizures. The Supreme Court has held that individuals arrested and detained without a warrant are entitled to a “prompt” judicial determination of probable cause. Gerstein v. Pugh, 420 U.S. 103, 125, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). “The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect’s job, interrupt his source of income, and impair his family relationships.” Id. at 114, 95 S.Ct. 854. Failing to conduct a prompt probable-cause hearing following a warrantless arrest constitutes a violation of the Fourth Amendment’s shield against unreasonable seizures. Powell v. Nev., 511 U.S. 79, 80, 114 S.Ct. 1280, 128 L.Ed.2d 1 (1994). “Prompt” generally means within 48 hours of the warrantless arrest. County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). Here, Drogosch’s 13-day confinement without a hearing after a warrantless arrest plainly constituted a violation of his Fourth Amendment rights. Drogoseh also asserts that his imprisonment without a hearing ran afoul of the Due Process Clause of the Fourteenth Amendment, which protects against improper use of the “formal constraints imposed by the criminal process.” Board of Regents v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). But it is the Fourth, rather than the Fourteenth, Amendment that applies to this case because “the Fourth Amendment governs the period of confinement between arrest without a warrant and the preliminary hearing at which a determination of probable cause is made, while due process regulates the period of confinement after the initial determination of probable cause.” Villanova v. Abrams, 972 F.2d 792, 797 (7th Cir.1992). Because Drogoseh was never provided with an initial" }, { "docid": "19186913", "title": "", "text": "a core Fourth Amendment requirement: “the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following [warrantless] arrest.” Gerstein, 420 U.S. at 114, 95 S.Ct. 854. McLaughlin, in turn, reiterated that “[u]nder Gerstein, warrant-less arrests are permitted[,] but persons arrested without a warrant must promptly be brought before a neutral magistrate for a judicial determination of probable cause.” McLaughlin, 500 U.S. at 53, 111 S.Ct. 1661. Police may postpone a Ger-stein hearing for a reasonable amount of time in order to “cope with the everyday problems of processing suspects through an overly burdened criminal justice system.” Id. at 55, 111 S.Ct. 1661. McLaughlin held that a “judicial determination of probable cause within 48 hours of [warrantless] arrest will, as a general matter, comply with the promptness requirement of Gerstein.” Id. at 56, 111 S.Ct. 1661. A lesser delay might still be unconstitutional “if the arrested individual can prove that his or her probable cause determination was delayed unreasonably.” Id.; see also Willis, 999 F.2d at 287-89. But if the delay extends beyond 48 hours, “the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance” to justify the delay. McLaughlin, 500 U.S. at 57, 111 S.Ct. 1661; see also Haywood, 378 F.3d at 717 (“Haywood was arrested lawfully [with probable cause]. But he could not, consistent with the Fourth Amendment, be continued in custody beyond 48 hours ... unless a judicial officer determined there was probable cause to believe that he had committed a crime.”); Luck, 168 F.3d at 324. Lopez was thus constitutionally entitled to a prompt probable cause determination by a judicial officer. Under McLaughlin, “prompt” in this context usually means “within 48 hours.” Because the detectives held Lopez without a judicial probable cause determination beyond the 48-hour safe harbor of McLaughlin, it was their burden to justify the delay by demonstrating the existence of an emergency or other extraordinary circumstance. They did not do so. The defendants wisely do not defend the rationale supplied by the district court — that Lopez’s" }, { "docid": "17159204", "title": "", "text": "OPINION OF THE COURT EN BANC WELCH, Judge: This guilty plea-unauthorized absence case raises a significant issue concerning pretrial confinement. We must determine whether County of Riverside v. McLaughlin, — U.S. -, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) applies to the U.S. Armed Forces. We conclude it does, based on the following reasoning. I. THE HOLDING IN COUNTY OF RIVERSIDE V. MCLAUGHLIN The case was a class action challenging the manner in which the county provided probable cause hearings for persons arrested without a warrant. Under the county’s procedures, weekends and holidays were not counted when determining whether an arrested person was afforded a probable cause determination without unnecessary delay under the county’s “two-day” arraignment policy. Thus, over the Thanksgiving holiday, it was possible to have a seven day delay between arrest and a determination of probable cause for arrest. The Supreme Court granted certiorari to resolve a conflict among four circuit courts of appeals as to the meaning of a “prompt” probable cause determination under the requirements of Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Gerstein held that the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest. After noting that the vague standard of Gerstein (i.e., “prompt”) simply had not provided sufficient guidance, the Court stated: Our task in this case is to articulate more clearly the boundaries of what is permissible under the Fourth Amendment. Although we hesitate to announce that the Constitution compels a specific time limit, it is important to provide some degree of certainty so that States and counties may establish procedures with confidence that they fall within constitutional bounds. Taking into account the competing interests articulated in Gerstein, we believe that a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein. For this reason, such jurisdictions will be immune from systemic challenges. — U.S. at-, 111 S.Ct. at 1670. The Court then established a “bright line” presumption:" }, { "docid": "20501512", "title": "", "text": "854, 43 L.Ed.2d 54 (1975). In County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), the Supreme Court held that law enforcement may detain an individual after a lawful arrest pending a neutral probable-cause determination up to forty-eight hours without violating the Constitution unless the delay is unreasonable. See 500 U.S. at 56, 111 S.Ct. 1661. The Supreme Court in County of Riverside v. McLaughlin stated: “[A] jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein. For this reason, such jurisdictions will be immune from systemic challenges.” 500 U.S. at 56, 111 S.Ct. 1661. While provision for a determination of probable cause within forty-eight hours will withstand a systematic challenge, in individual cases, a delay of forty hours or less might result in a violation if the delay is unreasonable, see 500 U.S. at 56, 111 S.Ct. 1661, or if “conditions or restrictions of pretrial detention ... amount to punishment of the detainee,” Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). In Gerstein v. Pugh, the plaintiffs challenged Florida’s procedures whereby “a person arrested without a warrant and charged by information may be jailed or subjected to other restraints pending trial without any opportunity for a probable cause determination.” 420 U.S. at 116, 95 S.Ct. 854. The Honorable Lewis Powell, Associate Justice of the Supreme Court, noted that arrest and detention procedures derive from the Fourth Amendment, see 420 U.S. at 111, 95 S.Ct. 854, and explained that, “while the Court has expressed a preference for the use of arrest warrants when feasible, it has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant.” 420 U.S. at 113, 95 S.Ct. 854. Justice Powell stated that a police officer’s “on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest,” but that, after the suspect is" }, { "docid": "17271481", "title": "", "text": "held that “[wjhatever procedure a State may adopt [to satisfy the requirements of the Fourth Amendment], it must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer before or promptly after arrest. We agree with the Court of Appeals that the Fourth Amendment requires a timely judicial determination of probable cause as a prerequisite to detention .... ” Gerstein v. Pugh, 420 U.S. 103, 124-126, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) [citations omitted]. The Supreme Court has explained that this Fourth Amendment right to a prompt probable cause determination has been “incorporated” into the Fourteenth Amendment. See Baker v. McCollan, 443 U.S. 137, 142-143, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). In addition, the Supreme Court has explained that “a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Ger-stein.” County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). In arguing for the dismissal of this claim, Defendant places much reliance on the case of Brown v. City of New York, 98-CV-3844, 2004 WL 2884306 (S.D.N.Y. Dec.10, 2004). However, Brown is distin guishable from our case. In Brown, the Southern District of New York held that a plaintiff did not have a due process claim against the defendants for failing to provide him a prompt probable cause hearing, because plaintiff “sustained no injury as a result of the delay in holding a probable cause hearing.” 2004 WL 2884306 at *17. The reason that the plaintiff in Brown sustained no injury was that, even if the plaintiff had “received a probable cause determination by a judge within forty-eight hours of his arrest, i.e., the presumptively constitutional time period, and the judge [had] found there was no probable cause to detain plaintiff on the drug [charges], plaintiff was still not free to leave police custody” because “he was being held on the indicated sexual assault charges.” Id. Here, it" }, { "docid": "19186902", "title": "", "text": "Sheahan, 396 F.3d 887, 891 (7th Cir.2005) (convicted prisoners’ challenge to conditions of confinement governed by the Eighth Amendment, “which has been interpreted to require proof that the convicts’ custodians were deliberately indifferent to a serious hazard created by those conditions”); Cavalieri v. Shepard, 321 F.3d 616, 620 (7th Cir.2003) (Fourteenth Amendment’s due process standard as applicable to claims of pretrial detainees is the same “deliberate indifference” standard of the Eighth Amendment). The district court’s application of the deliberate indifference standard made things more difficult for Lopez; the Fourth Amendment requires only proof that the defendants’ conduct was objectively unreasonable under the circumstances. Abdullahi v. City of Madison, 423 F.3d 763, 768 (7th Cir.2005). The district court should have analyzed the detectives’ conduct under the Fourth Amendment and its “objectively unreasonable” standard. The Fourth Amendment protects against unreasonable seizures; an arrest is a seizure, and the Fourth Amendment affords persons who are arrested the further, distinct right to a judicial determination of probable cause “as a prerequisite to extended restraint of liberty following arrest.” Gerstein, 420 U.S. at 114, 95 S.Ct. 854. The judicial determination of probable cause may be made before the arrest (in the form of an arrest warrant) or promptly after the arrest, at a probable cause hearing (sometimes called a Gerstein hearing). But whether the arresting officer opts to obtain a warrant in advance or present a person arrested without a warrant for a prompt after-the-fact Gerstein hearing, the Fourth Amendment requires a judicial determination of probable cause. See Haywood v. City of Chi., 378 F.3d 714, 717 (7th Cir.2004) (even though warrantless arrest was “clearly” supported by probable cause, Fourth Amendment required a probable cause hearing before a judicial officer). McLaughlin established a general rule that persons arrested without a warrant must receive a judicial determination of probable cause within 48 hours. McLaughlin, 500 U.S. at 56-57, 111 S.Ct. 1661. (We will have more to say on the McLaughlin issue later.) Because Lopez was arrested without a warrant and had not yet been presented for a probable cause hearing, the Fourth Amendment should have been" }, { "docid": "23236594", "title": "", "text": "a denial in 1996 did routinely entail a review by the Supreme Court of California of possible federal claims, but we are persuaded on these facts and circumstances that this kind of review falls short of the quality of litigation opportunity described in Stone. Thus, we proceed to the claim itself. 2. Can Anderson Raise McLaughlin’s 48-Hour Rule as an Issue? In Gerstein v. Pugh, 420 U.S. 103, 125, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the Supreme Court held that the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to extended detention following a warrantless arrest. Subsequently, in McLaughlin, the Court clarified its holding in Gerstein by defining “prompt.” Specifically, the Court held that “judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein.” McLaughlin, 500 U.S. at 56, 111 S.Ct. 1661. The McLaughlin Court emphasized that this 48-Hour Rule is not absolute. As the Court explained: This is not to say that the probable cause determination in a particular case passes constitutional muster simply because it is provided within 48 hours. Such a hearing may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably. Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay’s sake. Id. If the probable cause determination does not occur within 48 hours, however, “the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance.” Id. at 57, 111 S.Ct. 1661. The Court cautioned that neither intervening weekends, nor the time required to consolidate pretrial proceedings qualifies as an “extraordinary circumstance.” Id. Three year’s later, the Court decided Powell v. Nevada, 511 U.S. 79, 114 S.Ct. 1280, 128 L.Ed.2d 1 (1994), in which it held that McLaughlin applied retroactively to all cases pending on direct review or not yet final when McLaughlin was decided. Powell, 511 U.S. at" }, { "docid": "18233779", "title": "", "text": "court was that her detention violated her Fourth Amendment right to be free from unreasonable seizure. On appeal, Golberg does not challenge the state court judge’s decision to have her booked before her pretrial release on the felony fraud charge, and she concedes that, following discovery of the outstanding warrants, there was probable cause to detain her at ADC until she posted the required bail. Thus, the issue is whether Golberg’s constitutional rights were violated either because she was not allowed to use a phone for seventeen hours to call her parents to arrange for bail, or because she was detained an additional ten hours after ADC accepted the bail her father posted. Golberg’s argument is premised on the proposition that the length of her detention must be analyzed under the Fourth Amendment’s reasonableness standard. We disagree with the premise. To be sure, that standard applies when the question is whether a detainee was provided a prompt probable cause hearing following a warrantless arrest. See County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (forty-eight hours is presumptively reasonable). But the right to a prompt probable cause hearing is one of the “traditional protections against unlawful arrest” encompassed by the Fourth Amendment. 500 U.S. at 60, 111 S.Ct. 1661 (Scalia, J., dissenting). Here, on the other hand, Gel-berg’s seizure was based on her appearance before the court on a felony complaint and on the discovery of outstanding warrants requiring the posting of bail. Seizure on those grounds was reasonable under the Fourth Amendment without the need for further judicial process such as a probable cause hearing. Thus, the question is whether the subsequent delay that occurred, both before and after bail was posted, violated Golberg’s constitutional rights. Claims alleging the excessive detention of one who has established the right to be released are typically analyzed under the Due Process Clause. See Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992); United States v. Salerno, 481 U.S. 739, 746-52, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); Baker v. McCollan," }, { "docid": "19186912", "title": "", "text": "have granted judgment for the defendants on Lopez’s claim for intentional infliction of emotional distress. The claim must be retried, and the retrial is not limited to Lopez’s shackling evidence. C. Unconstitutional Duration of Confinement The district court also granted judgment for the defendants on Lopez’s claim that the detectives unconstitutionally held him in custody for more than 48 hours before taking him before a judge for a probable cause hearing. The defendants do not dispute that Lopez was held for five days following his warrantless arrest before he received his Gerstein hearing, well beyond the 48-hour general limit established in McLaughlin. The defendants argue that this delay is not actionable in damages under § 1983 because the 48-hour rule of McLaughlin is not a core .constitutional right but a procedural safeguard designed to secure the Fourth Amendment right to a prompt judicial determination of probable cause following a warrantless arrest. McLaughlin and Gerstein, read together, foreclose this argument. Gerstein clearly held that a prompt judicial determination of probable cause following a warrantless arrest is a core Fourth Amendment requirement: “the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following [warrantless] arrest.” Gerstein, 420 U.S. at 114, 95 S.Ct. 854. McLaughlin, in turn, reiterated that “[u]nder Gerstein, warrant-less arrests are permitted[,] but persons arrested without a warrant must promptly be brought before a neutral magistrate for a judicial determination of probable cause.” McLaughlin, 500 U.S. at 53, 111 S.Ct. 1661. Police may postpone a Ger-stein hearing for a reasonable amount of time in order to “cope with the everyday problems of processing suspects through an overly burdened criminal justice system.” Id. at 55, 111 S.Ct. 1661. McLaughlin held that a “judicial determination of probable cause within 48 hours of [warrantless] arrest will, as a general matter, comply with the promptness requirement of Gerstein.” Id. at 56, 111 S.Ct. 1661. A lesser delay might still be unconstitutional “if the arrested individual can prove that his or her probable cause determination was delayed unreasonably.” Id.; see also Willis, 999 F.2d at 287-89. But" }, { "docid": "20520004", "title": "", "text": "253, 269-74, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984), and held that restrictions on pretrial release of adult arrestees must be carefully limited to serve a compelling governmental interest, see Salerno, 481 U.S. at 748-51, 107 S.Ct. 2095. In the first of these cases, Stack v. Boyle, the Court observed that the “traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction.” 342 U.S. at 4, 72 S.Ct. 1. The Court noted that, “[u]nless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning,” id., and it held that “[b]ail set at a figure higher than an amount reasonably calculated to fulfill [its] purpose [of assuring the presence of the accused at trial] is ‘excessive’ under the Eighth Amendment,” id. at 5, 72 S.Ct. 1. In Gerstein v. Pugh, the Court recognized that “[p]retrial confinement may imperil the suspect’s job, interrupt his source of income, ... impair his family relationships” and affect his “ability to assist in preparation of his defense.” 420 U.S. at 114, 123, 95 S.Ct. 854. The Court held “that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.” Id. at 114, 95 S.Ct. 854. This probable cause determination is “necessary to effect limited postarrest detention,” Salerno, 481 U.S. at 752, 107 S.Ct. 2095, and ordinarily must occur within 48 hours of arrest, see McLaughlin, 500 U.S. at 56, 111 S.Ct. 1661. A few years later, in Bell v. Wolfish, the Court emphasized that, “under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt.” 441 U.S. at 535, 99 S.Ct. 1861. Accordingly, the Court held that “the Due Process Clause protects a detainee from ... conditions and restrictions of pretrial detainment” that “amount to punishment of the detainee.” Id. at 533, 535, 99 S.Ct. 1861. The Court outlined a two-pronged test for determining when conditions and restrictions of pretrial detention amount to punishment," }, { "docid": "1031550", "title": "", "text": "but that the Constitution does not impose on the States a rigid procedural framework. Rather, individual States may choose to comply in different ways.” McLaughlin, 500 U.S. at 53, 111 S.Ct. 1661. In McLaughlin, the Supreme Court explored what Gerstein meant by “promptly.” Clearly, “prompt” does not mean “immediate.” “Inherent in Gerstein’s invitation to the States to experiment and adapt was the recognition that the Fourth Amendment does not compel an immediate determination of probable cause upon completing the administrative steps incident to arrest.” McLaughlin, 500 U.S. at 53-54, 111 S.Ct. 1661 (emphasis added); see id. at 54, 111 S.Ct. 1661 (“Plainly, if a probable cause hearing is constitutionally compelled the moment a suspect is finished being ‘booked,’ there is no room whatsoever for ‘flexibility and experimentation by the States.’” (quoting Gerstein, 420 U.S. at 123, 95 S.Ct. 854)). “Gerstein held that probable cause determinations must be prompt — not immediate.” McLaughlin, 500 U.S. at 54, 111 S.Ct. 1661. However, the McLaughlin Court noted that “flexibility has its limits; Gerstein is not a blank check.” 500 U.S. at 55, 111 S.Ct. 1661. Attempting to “articulate more clearly the boundaries of what is permissible under the Fourth Amendment” in light of the competing interests at stake, the McLaughlin Court stated that “a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein.” Id. at 56, 111 S.Ct. 1661. Thus, “ ‘prompt’ generally means within 48 hours of the warrantless arrest.” Powell v. Nevada, 511 U.S. at 80, 114 S.Ct. 1280. The McLaughlin Court cautioned, however, that [t]his is not to say that the probable cause determination in a particular case passes constitutional muster simply because it is provided within 48 hours. Such a hearing may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably. Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay’s sake." }, { "docid": "15052317", "title": "", "text": "arrest, we will use a Fourth Amendment analysis. Gerstein v. Pugh, 420 U.S. 103, 111-14, 95 S.Ct. 854, 861-63, 43 L.Ed.2d 54 (1975); Hallstrom, 991 F.2d at 1480, 1484; see also Villanova v. Abrams, 972 F.2d 792, 797 (7th Cir.1992). Defendant Littles asserts that he is entitled to qualified immunity, and the district court so found. California Penal Code § 853.6 outlines the procedures for handling misdemeanor arrestees. It specifies that misdemeanor arrestees should be released without bail upon signing a written promise to appear. One exception to this rule occurs when there is a “reasonable likelihood” that the offense will continue. In a qualified immunity analysis, we must ask whether a reasonable officer in Littles’s circumstances could have believed that it was lawful to deny Mackinney a citation release. California law was clearly established — misdemeanor arres-tees were to be released upon signing a written promise to appear if they posed little risk of continuing their offense. If we accept Mackinney’s version of the facts, as we must when we review a summary judgment order, then a reasonable officer would have released Mackinney because he agreed to not write on the sidewalk. As discussed below, Supreme Court precedent regarding the Fourth Amendment prohibition against unnecessary detention was also clearly established. Lit-tles was not reasonable in thinking his detention of Mackinney until Mackinney’s “attitude” improved was lawful. Therefore, Lit-tles is not entitled to qualified immunity. We apply a Fourth Amendment analysis in determining the validity of a warrantless arrestee’s detention prior to a magistrate’s determination of probable cause to arrest. County of Riverside v. McLaughlin, 500 U.S. 44, 55-56, 111 S.Ct. 1661, 1669-70, 114 L.Ed.2d 49 (1991). In Hallstrom, 991 F.2d at 1479, we analyzed a claim of unreasonable detention. We noted that, under McLaughlin, when a plaintiff contests a detention that lasted under 48 hours, she bears the burden of proving that “her probable cause determination was delayed unreasonably.” Id. (quoting McLaughlin, 500 U.S. at 56, 111 S.Ct. at 1670). We further noted that one example the Supreme Court gave of an “unreasonable delay” is “delay motivated by ill" }, { "docid": "10634380", "title": "", "text": "for a determination that there is not. The magistrate checks one of these boxes and then signs and dates the form. If the judge does not return the probable cause application within 48 hours of the time of arrest, or returns it with a determination that there is no probable cause, the arres-tee is released. We conclude that this procedure on its face does not violate the Fourth or Fourteenth Amendments. When a person is arrested without the benefit of a warrant supported by probable cause, the Fourth Amendment requires a judicial determination of probable cause to occur “promptly” after their arrest. See Gerstein v. Pugh, 420 U.S. 103, 125, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). This judicial determination, however, may be informal and non-adversarial, see id. at 120-21, 95 S.Ct. 854, and the Supreme Court has left to the States wide latitude to fashion probable cause determinations that “accord with a State’s pretrial procedure viewed as a whole.” Id. at 123, 95 S.Ct. 854. Under the Fourth Amendment, a state’s post-arrest probable cause determination is sufficient so long as it “provide[s] a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty ... either before or promptly after arrest.” Id. at 125, 95 S.Ct. 854. The City of Santa Monica’s procedure provides such a prompt, fair, and reliable determination. The City requires a probable cause determination to be made by a magistrate within 48 hours of a suspect’s arrest. This is sufficiently prompt. See County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). The City does not provide for the personal appearance of the suspect at the post-arrest probable cause determination, but the Constitution does not require a personal appearance. See Garcia v. City of Chicago, 24 F.3d 966, 969-70 (7th Cir.1994); King v. Jones, 824 F.2d 324, 327 (4th Cir.1987). Although the Supreme Court in Gerstein stated that States may choose to incorporate a post-arrest probable cause determination into the suspect’s first appearance before a judicial officer or into the procedure for setting" }, { "docid": "20501511", "title": "", "text": "Elec. Coop., 1993-NMSC-015, 115 N.M. 293, 299, 850 P.2d 996, 1002. Even when all the elements of collateral estoppel are present, the trial court must consider whether countervailing equities militate against application of the doctrine. See Hyden v. Law Firm of McCormick, Forbes, Caraway & Tabor, 1993-NMCA-008, 115 N.M. 159, 164, 848 P.2d 1086, 1091. Collateral estoppel should be applied only where the judge determines that its application would not be fundamentally unfair. See Reeves v. Wimberly, 1988-NMCA-038, 107 N.M. 231, 234, 755 P.2d 75, 78. New Mexico courts have held that “[collateral estoppel may bar the relitigation of ultimate facts or issues decided in a prior criminal action.” City of Roswell v. Hancock, 1998-NMCA-130, 126 N.M. 109, 112, 967 P.2d 449, 452. LAW REGARDING POST-ARREST DETENTION In the context of a warrantless arrest, “a policeman’s on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest.” Gerstein v. Pugh, 420 U.S. 103, 113-14, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). In County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), the Supreme Court held that law enforcement may detain an individual after a lawful arrest pending a neutral probable-cause determination up to forty-eight hours without violating the Constitution unless the delay is unreasonable. See 500 U.S. at 56, 111 S.Ct. 1661. The Supreme Court in County of Riverside v. McLaughlin stated: “[A] jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein. For this reason, such jurisdictions will be immune from systemic challenges.” 500 U.S. at 56, 111 S.Ct. 1661. While provision for a determination of probable cause within forty-eight hours will withstand a systematic challenge, in individual cases, a delay of forty hours or less might result in a violation if the delay is unreasonable, see 500 U.S. at 56, 111 S.Ct. 1661, or if “conditions or restrictions of pretrial detention ... amount to punishment of the detainee,”" }, { "docid": "11187717", "title": "", "text": "an absolute minimum time to meet all potential circumstances which might exist.” Id. at 1370. ■ To the extent Brass’s claim rests on the County’s policy or custom of not starting to process a particular day’s releases until it has received all information, including wants and holds, relating to the prisoners scheduled for release, we cannot say the County thereby violated Brass’s constitutional rights. To the contrary, we think that that aspect of the County’s release program was justified and reasonable in light of the County’s problems and responsibilities in processing the large number of prisoner releases it handles. In dismissing this case, the district court relied significantly on the fact that the 39-hour delay here was less than the 48-hour delay that the Supreme Court had sanctioned in County of Riverside v. McLaughlin, 500 U.S. 44, 58-59, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). McLaughlin involved the permissible delay between a warrantless arrest and a probable cause determination. The Court there stated: “In Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), this Court held that the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest. This case requires us to define what is ‘prompt’ under Gerstein.” 500 U.S. at 47, 111 S.Ct. 1661. The Court stated that “some delays are inevitable” where jurisdictions “incorporate probable cause determinations into other pretrial procedures.... [Tjhere will be delays caused by paperwork and logistical problems. Records will have to be reviewed, charging documents drafted, appearance of counsel arranged, and appropriate bail determined. On weekends, when the number of arrests is often higher and available resources tend to be limited, arraignments may get pushed back even further.” Id. at 55, 111 S.Ct. 1661. The Court concluded: a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein. For this reason, such jurisdictions will be immune from systemic challenges. This is not to say that the probable cause determination in a particular" }, { "docid": "9582710", "title": "", "text": "be -unnecessary to proceed to the second step. In County of Riverside v. McLaughlin, 500 U.S. 44, 47, 111 S.Ct. 1661, 1665, 114 L.Ed.2d 49 (1991), the Supreme Court clarified the standard set down earlier in Gerstein v. Pugh, 420 U.S. 103, 125, 95 S.Ct. 854, 868-69, 43 L.Ed.2d 54 (1975), regarding what constitutes a “prompt” judicial determination of probable cause, required by the Fourth Amendment, for purposes of holding a pretrial detainee who has been arrested without a warrant. Gerstein had held that suspects arrested without a warrant could not be held pending trial for indefinite periods of time— sometimes for a month or more — without any judicial determination of probable cause. The Riverside Court found that the “flexible” approach of Gerstein should be retained, but that more concrete guidelines would be necessary to guide lower courts in determining whether a police department’s procedures complied with the Constitution. Riverside, 500 U.S. at 55-56, 111 S.Ct. at 1669-70. The Court observed that “a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein.” Id. at 56, 111 S.Ct. at 1670. It then stated that if a probable cause hearing does occur within this 48-hour period, the burden will be on the plaintiff to show that there was an “unreasonable delay”: Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay’s sake. Id. If an arrestee is not afforded a hearing in 48 hours, on the other hand, the Court noted that the burden would shift to the government “to demonstrate the existence of a bona fide emergency or other extraordinary circumstance.” Id. at 57, 111 S.Ct. at 1670. The Court explicitly rejected the dissent’s suggestion that 24 hours would be “a more appropriate outer boundary” for providing probable cause hearings. Id. at 57-58, 111 S.Ct. at 1670-71. The district court attempted to apply this framework to the 22-hour detention of Brennan, finding that" }, { "docid": "16809659", "title": "", "text": "that they had been discounted to take into account claims upon which\" Mr. Willis had not prevailed, the district court found Mr. Willis’ requested figure to' be reasonable. 784 F.Supp. 1360. On February 10, 1992, the court awarded $139,350.43 in attorneys’ fees to Mr. Willis. The City now appeals both the district court’s finding of unconstitutional detention and the award of attorneys’ fees. This court has consolidated the City’s appeals. II ANALYSIS A. The Constitutionality, of Mr. Willis!. Extended Detention In Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the Supreme Court held that, following a warrantless arrest, the Fourth Amendment requires a prompt judicial determination of probable cause before an arrestee may be subjected to extended pretrial detention. This holding acknowledges that prolonged pretrial detention occasions serious interference with liberty rights. Id. at 114, 95 S.Ct. at 863. A judicial assessment of probable cause is thus necessary to guard against illegitimate interference with those rights. In County of Riverside v. McLaughlin, — U.S.-, -, 111 S.Ct. 1661, 1668, 114 L.Ed.2d 49 (1991), the Court noted that Gerstein sought to balance the law enforcement interest in taking suspected criminals into custody, even when there has been no opportunity for a prior judicial determination of probable cause, against the possibility that detention founded upon an incorrect suspicion of wrongdoing may adversely affect the arrestee’s job, income, and family relationships. Thus, Ger-stein was a “ ‘practical compromise’ between the rights of individuals and the rights of law enforcement.” McLaughlin, — U.S. at -, 111 S.Ct. at 1668. In McLaughlin, the Supreme Court defined the “promptness” requirement of Gerstein. The Court acknowledged that, because Gerstein allows the incorporation of judicial probable cause determinations into other pretrial procedures, some types of delay are simply unavoidable. McLaughlin, — U.S. at -, 111 S.Ct. at 1669. Thus, the regular problems confronting police when processing arrestees through the overcrowded criminal justice- system may give rise to delays that are not deemed to violate the Fourth Amendment; Id. McLaughlin stated that a policy providing for a judicial probable cause determination within 48 hours" }, { "docid": "9582709", "title": "", "text": "of summary judgment on qualified immunity grounds may be reviewed on interlocutory appeal under Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2814-18, 86 L.Ed.2d 411 (1985), and the decision is reviewed de novo. Washington v. Newsom, 977 F.2d 991, 993 (6th Cir.1992), cert. denied, 507 U.S. 1031, 113 S.Ct. 1848, 123 L.Ed.2d 472 (1993). When analyzing a qualified immunity issue, the first step is to determine whether plaintiff has shown a violation of a constitutionally protected right. Megenity v. Stenger, 27 F.3d 1120, 1124 (6th Cir.1994). If the answer is yes, then the second step is to determine whether the right is so “clearly established” that a “reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987); see also Megenity, 27 F.3d at 1124. Our initial inquiry, then, is directed toward whether Brennan’s detention from 6:00 p.m. to the following afternoon violated the Fourth Amendment. Because we answer this question in the negative, it will be -unnecessary to proceed to the second step. In County of Riverside v. McLaughlin, 500 U.S. 44, 47, 111 S.Ct. 1661, 1665, 114 L.Ed.2d 49 (1991), the Supreme Court clarified the standard set down earlier in Gerstein v. Pugh, 420 U.S. 103, 125, 95 S.Ct. 854, 868-69, 43 L.Ed.2d 54 (1975), regarding what constitutes a “prompt” judicial determination of probable cause, required by the Fourth Amendment, for purposes of holding a pretrial detainee who has been arrested without a warrant. Gerstein had held that suspects arrested without a warrant could not be held pending trial for indefinite periods of time— sometimes for a month or more — without any judicial determination of probable cause. The Riverside Court found that the “flexible” approach of Gerstein should be retained, but that more concrete guidelines would be necessary to guide lower courts in determining whether a police department’s procedures complied with the Constitution. Riverside, 500 U.S. at 55-56, 111 S.Ct. at 1669-70. The Court observed that “a jurisdiction that provides judicial determinations of probable cause within 48 hours" }, { "docid": "1188776", "title": "", "text": "charges against PFC Rexroat. In Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the Supreme Court held that the Fourth Amendment requires a person arrested without a warrant to be given a prompt judicial determination of probable cause as a prerequisite to pretrial detention. This “prompt” judicial determination was to be made by a neutral and detached person independent of the police or prosecutor. County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), went one step further to define what is “prompt” under Gerstein. The Court set out a bright-line rule that probable-cause determinations made after 48 hours of arrest are presumptively untimely. The Court stated: Where an arrested individual does not receive a probable cause determination within 48 hours, the calculus changes. In such a case, the arrested individual does not bear the burden of proving unreasonable delay. Rather, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance. 500 U.S. at —, 111 S.Ct. at 1670. In Courtney v. Williams, 1 MJ 267 (CMA 1976), this Court, referring to Ger- stein, held that “those procedures required by the Fourth Amendment in the civilian community must also be required in the military community,” unless military necessity required a different rule. Id. at 270. The Court also held that, since bail does not exist in the military, “a neutral and detached magistrate must decide more than the probable cause question. A magistrate must decide if a person could be detained and if he should be detained.” Id. at 271 (footnotes omitted). Article 9(d), UCMJ, 10 USC § 809(d), provides: “No person may be ordered into arrest or confinement except for probable cause.” In order to comport with the requirements of Gerstein and Courtney, the President promulgated RCM 305, which implements Article 9(d) and contains specific procedures for pretrial-confinement review. RCM 305(c) and (d) provide that a commissioned officer may order confinement only upon probable cause. RCM 305(h) requires a commander to determine within 72 hours whether pretrial confinement will continue." } ]

[ { "docid": "1639861", "title": "", "text": "offense level by five for discharging the firearm, and by four more for causing Simkins serious bodily injury. See U.S.S.G. § 2A2.2(b)(2)(A), (b)(3)(B). Smith objected to the PSR’s use of the cross-referencing provision, and the district court overruled the objection. On appeal, Smith challenges the district court’s cross-reference to section 2X1.1. He argues that the court violated his constitutional rights to due process and to a jury trial by applying the sentencing provisions for aggravated assault—a crime with which he had not been charged. Smith notes that section 2X1.1 was amended on November 1, 1991, before he was sentenced. He argues that the section should not have been applied to him because the amended version contains language which requires a conviction for aggravated assault. This court previously upheld a district court’s cross-reference from section 2K2.1 to the aggravated assault Guideline. United States v. Shinners, 892 F.2d 742, 743 (8th Cir.1989) (per curiam). Smith (unlike Shinners) raises a constitutional question, but we conclude the district court did not violate Smith’s constitutional rights. A district court’s consideration of uncharged conduct in sentencing does not violate a defendant’s constitutional rights if the government proves such conduct by a preponderance of the evidence. United States v. Galloway, 976 F.2d 414, 422-25 (8th Cir.1992) (en banc) (because defendant’s uncharged crimes are treated as sentencing factors, rights to indictment, jury trial, and proof beyond reasonable doubt do not come into play), cert. denied, — U.S. -, 113 S.Ct. 1420, 122 L.Ed.2d 790 (1993). Here, the government proved the aggravated assault by a preponderance of the evidence at trial. Although the specific issue in Galloway was whether the relevant-conduct Guideline (U.S.S.G. § 1B1.3) was constitutional, the same analysis applies to the consideration of the constitutionality of the cross-referencing provision. The relevant-conduct Guideline and the cross-referencing provision similarly allow the district court to consider uncharged conduct in determining the defendant’s offense level. See United States v. Humphries, 961 F.2d 1421, 1422-23 (9th Cir.1992) (per curiam) (upholding as constitutional district court’s cross-reference to sections 2X1.1 and 2A2.2, even though defendant had been charged only with being a felon in" } ]

[ { "docid": "22042105", "title": "", "text": "recent case law is unnecessary. See Jones v. Mabry, 723 F.2d 590 (1983). Even if a liberty-interest analysis had to be undertaken, the same result would follow. Our opinion in United States v. Galloway, 976 F.2d 414, 425 (8th Cir.1992) (en banc), so holds. “ ‘Once convicted, a defendant has a liberty interest in the correct application of the Guidelines within statutory limits....’” Ibid, (quoting United States v. Mobley, 956 F.2d 450, 455 (3d Cir.1992)). The real question is, what process is due? Neither McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), nor Galloway decides the issue with respect to the right of confrontation. McMillan holds that due process does not require the government to prove a sentencing factor by clear and convincing evidence. A preponderance is enough to satisfy due process. And Galloway holds that the use of relevant conduct in sentencing does not trigger the rights to indictment, jury trial, and proof beyond a reasonable doubt. There is a distinction between the rights denied in Galloway and the right at issue here. The Galloway Court held that uncharged conduct is a sentencing factor, not a new element of the offense and not a separate offense. Therefore, it reasoned, indictment and a jury trial are not necessary. Additionally, the standard of proof is elastic and stretches to fit a particular situation depending upon a balancing of the competing interests. Unlike the right to confrontation, the question with standard of proof is not whether one exists, but where on the sliding scale it lies. The Court in Galloway held that a lesser standard of proof was adequate to insure fairness in sentencing. The right of confrontation and cross-examination, on the other hand, has no sliding scale. It is an all-or-nothing proposition. Since Galloway itself says that the defendant has a liberty interest in a correct application of the Guidelines, we should be wary of giving him nothing. The very fact that the burden of proof offers little protection to the defendant is one of the best reasons to allow him to cross-examine the prosecutor’s sources" }, { "docid": "8827803", "title": "", "text": "preponderance standard may not satisfy due process. See United States v. Geralds, 158 F.3d 977, 979 (8th Cir.1998); United States v. Townley, 929 F.2d 365, 369 (8th Cir.1991) (“the preponderance standard the Court approved for garden variety sentencing determinations may fail to comport with due process where, as here, a sentence enhancement factor becomes ‘a tail which wags the dog of substantive offense.’ ” (quoting McMillan v. Pennsylvania, 477 U.S. 79, 88, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)); Wise, 976 F.2d at 401 (8th Cir.1992) (due process concerns must be addressed when the consideration of relevant conduct so greatly increases a defendant’s sentence that the conduct “essentially becomes an element of the offense for which the defendant is being punished”)). Federal case law is unsettled regarding the extent to which a sentence must be enhanced, through relevant conduct evidence, in order to require heightened standards of proof to support that evidence. In United States v. Galloway, 976 F.2d 414 (8th Cir.1992) (en banc) this circuit held that a threefold increase in the defendant’s sentencing range, based on relevant conduct evidence, was not so extreme as to raise due process concerns which would require a heightened standard of proof. The Third Circuit, however, has found that a twelve-fold departure from the median of the initial guideline range, based on sentencing factors, required the application of the clear and convincing standard of proof. Alvarez contends that his applicable sentencing guideline range should be limited to the offense to which he pled guilty, 27-33 months. He argues that the PSR’s and government’s advocation of a 210-262 month sentencing guideline range, an almost eightfold increase at the high end of the ranges, triggers the necessity of the clear and convincing standard to prove relevant conduct factors. Alvarez’s calculation is misleading in that it fails to address the ultimate issue, which is, the actual sentence imposed by the district court. The district court found Alvarez’s final sentencing guideline range to be 121-151 months. He was sentenced to 121 months. This sentence represents a four-fold departure from the median, 30 months, of his initial guideline" }, { "docid": "22042066", "title": "", "text": "or common scheme or plan as the offense of conviction.... U.S.S.G. § lB1.3(a). Just as increasing a defendant’s sentence on the basis of relevant conduct does not constitute a conviction for a separate of fense, so also establishing a defendant’s role in the offense on which he has been convicted does not constitute a criminal prosecution within the meaning of the Confrontation Clause. We conclude that the enactment of the Guidelines has not so transformed the sentencing phase that it constitutes a separate criminal proceeding. The right to confront witnesses, therefore, does not attach. See Specht, supra. This conclusion is in accord with the decisions of other circuits that have addressed the issue. We therefore overrule our holdings to the contrary-in United States v. Fortier and United States v. Streeter. VI. We recognize, however, that in certain instances a sentence may so overwhelm or be so disproportionate to the punishment that would otherwise be imposed absent the sentencing factors mandated by the Guidelines that due process concerns must be addressed. This may occur where a defendant’s sentence is so greatly increased as a result of considering relevant conduct that the conduct essentially becomes an element of the offense for which the defendant is being punished. See McMillan, 477 U.S. at 87-88, 106 S.Ct. at 2416-17 (legislature generally free to create sentencing factors so long as the factors do not become “a tail which wags the dog of the substantive offense”); Galloway, 976 F.2d at 425-26. In the instant case, Wise had a criminal history category of I. On the basis of the challenged hearsay testimony, the district court increased Wise’s offense level by four because of his leadership role and denied him a two level decrease for acceptance of responsibility, resulting in an offense level of nineteen rather than fifteen. These rulings effectively increased his sentencing range from 18-24 months to 37-46 months, an approximate two-fold increase. The maximum sentence prescribed by statute for the crime to which Wise pleaded guilty is fifteen years’ imprisonment and a $5,000.00 fine. See 18 U.S.C. § 471. The enhancement imposed in this case" }, { "docid": "233122", "title": "", "text": "We distinguished the mandatory state sentencing statute in Cunningham from the advisory Sentencing Guidelines in United States v. Marston, 517 F.3d 996, 1006 (8th Cir.2008). As long as the district court applies the Guidelines in an advisory fashion, the Sixth Amendment right to a jury trial is not infringed when the district court finds facts in support of the sentence imposed. Id. Second, Garth contends that the district court violated her due process rights by failing to apply a heightened evidentiary standard of proof to the amount of false claims and to the finding that she was an organizer or leader of five or more people. It is well-understood that generally a district court may rely on facts found by a preponderance of the evidence to aid it at sentencing. See e.g., United States v. Bradford, 499 F.3d 910, 919 (8th Cir.2007), cert. denied, — U.S. -, 128 S.Ct. 1446, 170 L.Ed.2d 278 (2008). We have, however, said that there could be circumstances where due process would require those facts that have an “extremely disproportionate” effect on a defendant’s sentence to be found by a heightened standard, although we have never required such a standard to be applied. United States v. Calva, 979 F.2d 119, 122 (8th Cir.1992); Bradford, 499 F.3d at 919; United States v. Townley, 929 F.2d 365, 369 (8th Cir.1991) (“[T]he preponderance standard the Court approved for garden variety sentencing determinations may fail to comport with due process where, as here, a sentencing enhancement factor becomes ‘a tail which wags the dog of the substantive offense.’ ”) (quoting McMillan v. Pennsylvania, 477 U.S. 79, 88, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)); see also United States v. Galloway, 976 F.2d 414, 425-26 (8th Cir.1992) (en banc) (“It is clear that the Constitution limits a legislature’s ability to designate some factors as elements of the crime and others as sentencing enhancers.”). We have said that in cases where the effect of a sentencing factor on the ultimate sentence may have been extreme, the standard that due process requires would be clear and convincing evidence. United States v. Matthews," }, { "docid": "23082530", "title": "", "text": "dissenting); Mobley, 956 F.2d at 462 (Mansmann, J., dissenting); David N. Adair Jr., House Built on a Weak Foundation — Sentencing Guidelines and the Preponderance Standard of Proof, 4 Fed. Sent.Rep. 292, 292 (1992); Judy Clarke, The Need for a Higher Burden of Proof for Factfinding Under the Guidelines, 4 Fed. SentRep. 300, 301 (1992); Husseini, supra, at 1401-02. Those criticisms apply with even greater force to findings at sentencing regarding uncharged conduct which is separate from the offense of conviction, as is the case here. The majority has failed to consider the argument that a convicted defendant possesses a liberty interest in the precise range of sentence obtained by guideline methodology, which as noted rejects judicial discretion. When the sentence may be increased severalfold, as here, due process considerations suggest that something akin to clear and convincing evidence should apply- The majority expresses some due process concerns by its apparent agreement with the Third, Seventh and Ninth Circuits “that due process may be violated if the punishment meted out following application of the sentencing factors overwhelms or is extremely disproportionate to the punishment that would otherwise be imposed.” Ante, at 426. It cites cases where the uncharged conduct nevertheless constituted part of the offense of conviction and recognized that where the “tail wags the dog,” a higher standard of proof may be required. Ante, at 426. The issue of the degree of proof is not now before us. However, as this case is remanded by the majority, the district court may address that issue and weigh the scope of Galloway’s liberty interest, the risk of error inherent in the preponderance of the evidence standard, and the Government’s interest in a lower burden of proof. See Burns v. United States, — U.S.-, -, 111 S.Ct. 2182, 2193-94, 115 L.Ed.2d 123 (1991) (Souter, J., joined by White and O’Connor, JJ., dissenting). After performing this due process “calculus,” the district court may find that it must require the Government to prove the separate crimes alleged against Galloway by clear and convincing evidence, or a higher standard of proof. IV. CONCLUSION After almost" }, { "docid": "10106837", "title": "", "text": "offense of conviction, but to permit departure for acts that relate in some way to the offense of conviction, even though not technically covered by the definition of relevant conduct.”); United States v. Shields, 939 F.2d 780, 782 (9th Cir.1991) (departure based on relevant conduct not part of counts of conviction). The principles of these cases amply cover and support a departure here on the basis of uncharged, relevant conduct. Defendant argues that sentencing him on the basis, in part, of an uncharged shooting is unconstitutional. He contends he is being punished for the shooting without a jury having determined beyond a reasonable doubt that he shot victim or the other procedural protections which would apply had defendant been indicted and tried for the shooting. We have rejected similar arguments and adhere to that position. United States v. Wright, 873 F.2d 437, 441-42 (1st Cir.1989) (government need not prove facts used in sentencing beyond a reasonable doubt). See also United States v. Galloway, 976 F.2d 414 (8th Cir.1992) (sentencing by considering relevant, uncharged conduct under U.S.S.G. § lB1.3(a)(2) does not violate the constitutional rights to indictment, jury trial, and proof beyond a reasonable doubt); McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (factors used to raise a minimum sentence below the statutory maximum need not be proved beyond a reasonable doubt; preponderance standard satisfies due process and right to jury trial is not implicated). Defendant has not received a sentence beyond the statutory maximum. Last, defendant asserts, without much elaboration, that the degree of departure was unreasonable. The court departed thirty-eight months above the top of the guideline range. The policy statement expressly advised that a “substantial” departure may be warranted for an intentionally inflicted major, permanent disability. Here, the victim is in a permanent vegetative state. A worse disability is difficult to imagine. A thirty-eight month departure for intentionally causing such a grievous injury is not unreasonable. The government’s motion for summary disposition is granted and the judgment is affirmed. . Possession of three or more weapons can raise the offense level of persons" }, { "docid": "23082430", "title": "", "text": "JOHN R. GIBSON, Circuit Judge, with whom FAGG, BOWMAN, WOLLMAN, MAGILL, LOKEN and HANSEN, Circuit Judges, join. This case presents the issues of whether sentencing by considering relevant conduct, which has been called the cornerstone of the United States Sentencing Guidelines, is authorized by statute and permitted by the United States Constitution. The district court sentenced Eddie Lee Galloway to twenty-four months based on a single count of theft from interstate shipment under 18 U.S.C. § 659 (1988) after it held that the Constitution prevented it from considering other uncharged property theft offenses. A panel of this court affirmed the sentence without reaching the constitution al arguments, but held that consideration of the uncharged offenses under the relevant conduct guideline, United States Sentencing Commission, Guidelines Manual, § lB1.3(a)(2) (Nov.1991), exceeded the statutory authority granted to the Sentencing Commission. We have heard the case en banc and hold that section lB1.3(a)(2) is authorized by statute and does not violate the constitutional rights to indictment, jury trial, and proof beyond a reasonable doubt. We recite the facts essentially as recounted by the panel in our earlier decision, United States v. Galloway, 943 F.2d 897 (8th Cir.1991), vacated, Order of November 20, 1991, adding other facts as we deem necessary. Galloway and W.J. Young were charged in a two-count indictment with stealing a truck-load of tires and transporting a stolen vehicle in interstate commerce on March 22,1990. Galloway pled guilty to count one, theft from interstate shipment. The statutory maximum sentence for this offense is ten years. 18 U.S.C. § 659. Count two, charging transportation of a stolen motor vehicle in interstate commerce, in violation of 18 U.S.C. § 2312 (1988), was dismissed pursuant to a plea agreement. The latter charge would have called for a maximum penalty of five years. The presentence report (PSR) valued the stolen goods at $37,000. PSR IMF 20-21. Under the Guidelines, this amount ordinarily would have called for a base offense level of 10 and a sentencing range of 21-27 months for Galloway, based on Criminal History Category V. U.S.S.G. § 2B1.1; U.S.S.G. Ch. 5, Pt. A." }, { "docid": "16990133", "title": "", "text": "March 26,1992). The district court adopted those findings and recommendations. United States v. Fleming, No. 91-224CR(5), Order (E.D.Mo. April 8, 1992). We agree with the district court’s rationale and affirm for the reasons set forth in its well-reasoned opinion. See 8th Cir.R. 47B. Fleming next challenges the district court’s application of the United States Sentencing Guidelines (“Guidelines”). He first asserts that the district court misapplied U.S.S.G. § 2K2.1., which sets the base offense levels for firearms offenses and includes provisions for cross-referencing to other provisions. Fleming bases his vague challenge to the application of section 2K2.1 on assertions that the district court applied the wrong burden of proof. Though his argument is not explicit, we assume that Fleming is making a constitutional challenge to use of the cross-reference provisions. The thrust of his argument seems to be the fundamental unfairness of considering uncharged conduct in sentencing under the Guidelines. Whatever the intuitive appeal of his position, the issue is not “simmer[ing] in confusion” as he contends. A district court’s consideration of uncharged conduct in sentencing does not violate a defendant’s constitutional rights if the government proves such conduct by a preponderance of the evidence. United States v. Galloway, 976 F.2d 414, 422-25 (8th Cir.1992) (en banc) (because defendant’s uncharged crimes are treated as sentencing factors, rights to indictment, jury trial, and proof beyond a reasonable doubt do not come into play), cert. denied, — U.S. —, 113 S.Ct. 1420, 122 L.Ed.2d 790 (1993). Although the specific issue in Galloway was whether the relevant-conduct guideline (U.S.S.G. § 1B1.3) was constitutional, the same analysis applies to the constitutionality of the cross-referencing provision. United States v. Smith, 997 F.2d 396, 400 (8th Cir.1993). The relevant conduct guideline and the cross-referencing provision similarly allow a district court to consider uncharged conduct in determining a defendant’s offense level. Id.; see also United States v. Humphries, 961 F.2d 1421, 1422-23 (9th Cir.1992) (per curiam) (upholding as constitutional district court’s cross-reference to sections 2X1.1 and 2A2.2, even though defendant had been charged only with being a felon in possession of a firearm). Here, we find the government" }, { "docid": "23082476", "title": "", "text": "United States v. Rodriguez-Gonzalez, 899 F.2d 177, 179-82 (2d Cir.), cert. denied, — U.S.-, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990); United States v. Mocciola, 891 F.2d 13, 16-17 (1st Cir.1989); United States v. Isom, 886 F.2d 736, 738-39 (4th Cir. 1989). Contra United States v. Brady, 928 F.2d 844, 851-52 (9th Cir.1991). A sentence that considers charges on which there was acquittal is permissible because of the differing levels of proof needed for conviction and sentencing. Mocciola, 891 F.2d at 16-17. Despite a jury’s decision that the defendant is not guilty beyond a reasonable doubt, the sentencing court may decide that the evidence of guilt is strong enough to meet the preponderance of the evidence standard applied at sentencing. Id. See abo Rodriguez-Gonzalez, 899 F.2d at 182. . The district court also ruled that Galloway had the right to confrontation during sentencing. We need not discuss this issue, however, as the Assistant United States Attorney stated that he was prepared to present the testimony of the FBI agents and other witnesses to prove the uncharged thefts were part of a common scheme. This issue has been considered by the court en banc in United States v. Wise, 976 F.2d 393 decided this day, and our decision in Wise will guide the district court in further proceedings. . The dissent arguing constitutional infirmity asserts Galloway possesses a liberty interest \"in the precise range of sentence obtained by guideline methodology,” and when the sentence may be increased several fold, due process considerations apply and may require a heightened burden of proof. The argument is related to that made by dissents in Mobley, 956 F.2d at 462 (Mansman, J., dissenting), and Restrepo, 946 F.2d at 665 (Norris, J., dissenting). See also Miller, 910 F.2d at 1329-33 (Merritt, C.J., dissenting). The shortcoming of these arguments is that they are based on the presumption that the guideline range for the offense of conviction alone gives rise to the liberty interest and not a guideline determination considering all of the factors, including relevant conduct. This argument was answered most ably by Judge Wiggins in Restrepo:" }, { "docid": "5916514", "title": "", "text": "rob the Radcliffe bank. Thus, we find that the district court did not commit clear error in determining that possession of the shotgun was relevant conduct and in imposing the three level increase. We also reject Regenwether’s assertion that Application Note 8 to § IB 1.3 prohibits the consideration of the shotgun as relevant conduct in this case. Application Note 8 states that “offense conduct associated with a sentence that was imposed prior to the acts or omissions constituting the instant federal offense ... is not considered as part of the same course of conduct ... as the offense of conviction.” Application Note 8 is limited by its terms to offense conduct under § 1B1.3(a)(2), however. In turn, subsection (a)(2) applies only to offenses cross referenced under § 3D1.2(d). Bank robbery is not so cross referenced; thus, Application Note 8 does not apply. The sentence is affirmed. BRIGHT, Circuit Judge, concurring. I have previously written about the upside down world of the Sentencing Guidelines. See United States v. Smiley, 997 F.2d 475, 483 (8th Cir.1993) (Bright, J., dissenting) (suggesting that sentences imposed under the guidelines where no rules of evidence apply and where sentencing judges often summarily approve probation officer recommendations seem to come from an Alice in Wonderland world where up is down and down is up); United States v. Galloway, 976 F.2d 414, 438 (8th Cir.1992) (Bright, J., dissenting) (comparing sentences imposed under the relevant conduct provisions of the guidelines to an Alice in Wonderland world in which words lose their real meaning and down is up and up is down). I am not alone in making such a comparison. United States v. Frias, 39 F.3d 391, 393 (Oakes, J., concurring). Here we have another example of the application of the Sentencing Guidelines to inflate a sentence for reasons that seem nonsensical. Jedediah Regenwether challenges the district court’s application of a three-level sentencing enhancement under U.S.S.G. § 2B3.1(b)(2)(E) based upon Regenwether’s possession of a shotgun, which the district court deemed relevant conduct under U.S.S.G. § 1B1.3. The government argues that the gun possession was relevant conduct connected to" }, { "docid": "23082459", "title": "", "text": "over its presumption that Galloway is being punished for the uncharged conduct, since in reality Galloway is being punished for the one charged theft. The uncharged conduct is used only as a measure of the severity of the crime for which he has been charged and for which he has pleaded guilty. Also like the Pennsylvania statute, the Sentencing Guidelines do not create separate offenses with separate penalties. The Guidelines operate only at the sentencing stage, after the accused has been afforded the full panoply of constitutional protections and found guilty beyond a reasonable doubt. The Guidelines are a direct reflection of the bifurcated nature of our criminal process, which separates trial and conviction from sentencing. Although some may consider it unfair to sentence on the basis of offenses for which a defendant has not been charged or convicted, see Ebbole, 917 F.2d at 1496, the Supreme Court has “long held that this practice does not violate due process.” Id. (citing Williams, 337 U.S. 241, 69 S.Ct. 1079). In Williams, the Court upheld a sentence based in part on evidence not introduced at trial that the defendant had committed thirty burglaries for which he had never been convicted. 337 U.S. at 244, 252, 69 S.Ct. at 1081, 1085. If legislatures may standardize sentencing, as McMillan held, and if courts may impose sentences based partly on conduct for which the defendant has not been convicted, as Williams held, then it logically follows that Congress may authorize establishment of predetermined penalties for certain sentencing factors if the government establishes those factors with sufficiently reliable evidence. See Ebbole, 917 F.2d at 1497. We conclude that section 1B1.3, as applied here, does not transgress the limits of due process. Because a defendant’s uncharged crimes are treated as sentencing factors, the rights to indictment, jury trial, and proof beyond a reasonable doubt simply do not come into play. McMillan explicitly rejected the argument that the sentencing phase requires a more stringent standard of proof than a preponderance of the evidence. “Sentencing courts have traditionally heard evidence and found facts without any prescribed burden of proof" }, { "docid": "10507111", "title": "", "text": "Daviess County jail. Under the Sentencing Guidelines, a district court “may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a), p.s. Pugh’s contention is weakened considerably by the fact that we have affirmed the district court’s denial of his motion to suppress these statements before trial. Furthermore, Pugh does not dispute the fact that Detective Fessler was at the jail on the day of his arrest or the fact that they had a conversation. We believe that these circumstances bear sufficient indicia of the probable accuracy of Detective Fessler’s testimony. Thus, the district court did not err by considering that testimony. Pugh also contends that the district court should have applied a clear-and-convincing standard of proof on the issue of drug quantity. We have held that a preponderance-of-the evidence standard applies at a sentencing hearing. See United States v. Galloway, 976 F.2d 414, 425-26 (8th Cir.1992) (en banc), cert. denied, - U.S. -, 113 S.Ct. 1420, 122 L.Ed.2d 790 (1993). Pugh asks us to require a higher evidentiary standard in this ease because, he argues, the district court’s consideration of the conduct for which he was convicted and his other relevant conduct, see U.S.S.G. § lB1.3(a)(l), subjects him to a potential sentence that is four times the length of the potential sentence that would apply if the district court considered only the conduct for which he was convicted. (See Appellant’s Br. at 29-31 (citing United States v. Kikumura, 918 F.2d 1084 (3d Cir.1990).) Pugh’s argument stumbles on the fact that, in addition to four counts of distribution, he also was convicted of one count of conspiracy, an offense that necessarily includes quantities other than the 2.91 grams attributable to the four distribution counts. See United States v. Behler, 14 F.3d 1264, 1272 (8th Cir.1994) (holding that heightened evidentiary standard may be applied only where increase in sentence is due to uncharged relevant conduct). Pugh’s contention also fails because a four-fold increase in his potential sentence is" }, { "docid": "16990134", "title": "", "text": "does not violate a defendant’s constitutional rights if the government proves such conduct by a preponderance of the evidence. United States v. Galloway, 976 F.2d 414, 422-25 (8th Cir.1992) (en banc) (because defendant’s uncharged crimes are treated as sentencing factors, rights to indictment, jury trial, and proof beyond a reasonable doubt do not come into play), cert. denied, — U.S. —, 113 S.Ct. 1420, 122 L.Ed.2d 790 (1993). Although the specific issue in Galloway was whether the relevant-conduct guideline (U.S.S.G. § 1B1.3) was constitutional, the same analysis applies to the constitutionality of the cross-referencing provision. United States v. Smith, 997 F.2d 396, 400 (8th Cir.1993). The relevant conduct guideline and the cross-referencing provision similarly allow a district court to consider uncharged conduct in determining a defendant’s offense level. Id.; see also United States v. Humphries, 961 F.2d 1421, 1422-23 (9th Cir.1992) (per curiam) (upholding as constitutional district court’s cross-reference to sections 2X1.1 and 2A2.2, even though defendant had been charged only with being a felon in possession of a firearm). Here, we find the government proved the aggravated assault by at least a preponderance of the evidence and the district court therefore properly applied the cross-referencing provision. Fleming also challenges the district court’s calculation of his sentence. At the sentencing hearing, the district court found that Fleming had assaulted a police officer and fired a shot. The district court concluded that a cross-reference to aggravated assault was proper. The district court adopted the recommendations of the Presentence Report (PSR) and sentenced Fleming at the upper end of the guideline range. The dis trict court based its findings on the testimony adduced at trial. We find ample evidence to support the district court’s finding and find no error in its application of the Guidelines. Fleming last contends that the district court erred in making a victim-related adjustment. Section 3A1.2(b) of the Guidelines provides a three-level increase if “during the course of the offense or immediate flight therefrom, the defendant ... knowing or having reasonable cause to believe that a person was a law enforcement or corrections officer, assaulted such officer in" }, { "docid": "22042063", "title": "", "text": "In addition to pointing out the changes discussed above, some have argued that the Guidelines’ use of relevant conduct in fashioning a sentence effectively transforms the sentencing phase into a new guilt phase. We disposed of this argument in United States v. Galloway, 976 F.2d 414 (8th Cir.1992) (en banc). There, we applied the due process analysis of McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), and concluded that the use of relevant conduct at sentencing does not require application of the rights to indictment, jury trial and proof beyond a reasonable doubt because uncharged conduct is treated as a sentencing factor, not a new element of the offense. Galloway, 976 F.2d at 422-25. In McMillan the Court recognized the distinction between the guilt phase and the sentencing phase. While the “beyond a reasonable doubt” standard applies to the proof of facts necessary to conviction, it does not follow that the same standard applies to the proof of facts at sentencing, even though proof of those facts may increase a defendant’s sentence. Likewise, the protections of the right of confrontation apply at the guilt phase, but it does not follow that the same protections apply at sentencing simply because facts proved at sentencing may increase a defendant’s sentence. See Kikumura, 918 F.2d at 1098-1103 (no need for higher standards of proof and admissibility at sentencing proceedings after advent of Guidelines, except in instances of extreme departure). Indeed, we have repeatedly held that the facts relied upon by the district court at sentencing need be proved only by a preponderance of the evidence. See, e.g., Simmons, 964 F.2d at 771; United States v. Johnson, 962 F.2d 1308, 1313 (8th Cir.1992); United States v. Payne, 940 F.2d 286, 292 (8th Cir.), cert. denied, — U.S. -, 112 S.Ct. 616, 116 L.Ed.2d 638 (1991), and cert denied, — U.S.-, 112 S.Ct. 1589, 118 L.Ed.2d 307 (1992). As we concluded in Galloway, the sharp distinction between conviction and sentencing that antedated the Guidelines still exists under the Guidelines regime. The guilt phase remains the stage at which the fact-finder" }, { "docid": "23082477", "title": "", "text": "uncharged thefts were part of a common scheme. This issue has been considered by the court en banc in United States v. Wise, 976 F.2d 393 decided this day, and our decision in Wise will guide the district court in further proceedings. . The dissent arguing constitutional infirmity asserts Galloway possesses a liberty interest \"in the precise range of sentence obtained by guideline methodology,” and when the sentence may be increased several fold, due process considerations apply and may require a heightened burden of proof. The argument is related to that made by dissents in Mobley, 956 F.2d at 462 (Mansman, J., dissenting), and Restrepo, 946 F.2d at 665 (Norris, J., dissenting). See also Miller, 910 F.2d at 1329-33 (Merritt, C.J., dissenting). The shortcoming of these arguments is that they are based on the presumption that the guideline range for the offense of conviction alone gives rise to the liberty interest and not a guideline determination considering all of the factors, including relevant conduct. This argument was answered most ably by Judge Wiggins in Restrepo: However, we emphasize that the convicted defendant’s liberty interest is not an interest in the maximum guideline sentence set by the offense of conviction alone, as the dissent maintains. The Supreme Court has recognized that due process protects a defendant’s interest in fair sentencing, but has emphasized in the same cases that the interest is not defined as a liberty interest in a sentence below the statutory maximum_ The statute for the offense of conviction sets the constitutional parameters of a possible sentence. Once those limits are established by a valid conviction on proof beyond a reasonable doubt, the defendant’s liberty interest has been greatly reduced. However, factfinding is still necessary under some legislative schemes to set the sentence accurately within statutory limits, such as the Pennsylvania statute in McMillan and the Guidelines. The teaching of McMillan is that, as a general matter, due process is satisfied by a preponderance of the evidence standard of proof for that factfinding. 477 U.S. at 92, 106 S.Ct. at 2419. Restrepo, 946 F.2d at 659 (emphasis added). ." }, { "docid": "22042104", "title": "", "text": "2, that the issue might better be analyzed in terms of due process than under the Confrontation Clause. In my view, this case would come out the same way under the Due Process Clause. The right to confront and cross-examine witnesses is part of the process that is due before a defendant may be deprived of his liberty for an additional period of time. First, there is surely no doubt that what the defendant lost in the present case is “liberty” within the meaning of the Due Process Clause of the Fifth Amendment. The Court’s opinion assumes as much, and it would be hard to deny. Wise has spent 12 more months in jail because of the contested facts. He has lost liberty in the most basic sense. He has been in jail instead of free. When this sort of loss occurs as punishment for crime or some other sort of infraction, one has been deprived of the sort of “liberty” that derives its protection directly from the Constitution. The “liberty interest” analysis of more recent case law is unnecessary. See Jones v. Mabry, 723 F.2d 590 (1983). Even if a liberty-interest analysis had to be undertaken, the same result would follow. Our opinion in United States v. Galloway, 976 F.2d 414, 425 (8th Cir.1992) (en banc), so holds. “ ‘Once convicted, a defendant has a liberty interest in the correct application of the Guidelines within statutory limits....’” Ibid, (quoting United States v. Mobley, 956 F.2d 450, 455 (3d Cir.1992)). The real question is, what process is due? Neither McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), nor Galloway decides the issue with respect to the right of confrontation. McMillan holds that due process does not require the government to prove a sentencing factor by clear and convincing evidence. A preponderance is enough to satisfy due process. And Galloway holds that the use of relevant conduct in sentencing does not trigger the rights to indictment, jury trial, and proof beyond a reasonable doubt. There is a distinction between the rights denied in Galloway and the" }, { "docid": "7559597", "title": "", "text": "indictment is because the government had insufficient evidence to sustain a conviction for this conduct. 807 F.Supp. at 191. Because conduct “which the prosecutor can prove in court” is supposed to “impose[ ] a natural limit upon the prosecutor’s ability to increase a defendant’s sentence,” U.S.S.G. Ch. 1, Pt. A, 4(a), p. 5, the court thought that it would be improper for a sentencing court to increase a defendant’s sentence on the basis of uncharged predicate acts. Similar arguments have been rejected by this court and virtually every other circuit court to have addressed the issue. See, e.g., United States v. Mocciola, 891 F.2d 13, 16-17 (1st Cir.1989); United States v. Galloway, 976 F.2d 414, 424 n. 6 (8th Cir.1992) (collecting cases), cert. denied, — U.S. -, 113 S.Ct. 1420, 122 L.Ed.2d 790 (1993). While the district court is correct that “for the most part, the court will determine the applicable guideline by looking to the charge of which the offender was convicted,” United States v. Blanco, 888 F.2d 907, 910 (1st Cir.1989), real offense principles enter into the punishment prescribed in the guidelines through the relevant conduct guideline, § 1B1.3. Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L.Rev. 1,11-12 (1988). Relevant conduct increases a defendant’s sentence, sometimes very significantly, despite the fact that it was not charged in an indictment, e.g., Blanco, 888 F.2d at 910, and even despite the fact that a jury may have acquitted the defendant for that precise conduct. E.g., Mocciola, 891 F.2d at 16-17; United States v. Rumney, 867 F.2d 714, 719 (1st Cir.) (“traditional sentencing factors need not be pleaded and proved at trial”) (quoting United States v. Brewer, 853 F.2d 1319, 1326 (6th Cir.), cert. denied, 488 U.S. 946, 109 S.Ct. 375, 102 L.Ed.2d 364 (1988)), cert. denied, 491 U.S. 908, 109 S.Ct. 3194, 105 L.Ed.2d 702 (1989). This is because sentencing factors, including the applicability of relevant conduct, need only be proven by a preponderance of the evidence, not beyond a reasonable doubt. Mocciola, 891 F.2d at 16-17; Galloway, 976 F.2d at 424" }, { "docid": "7559598", "title": "", "text": "principles enter into the punishment prescribed in the guidelines through the relevant conduct guideline, § 1B1.3. Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L.Rev. 1,11-12 (1988). Relevant conduct increases a defendant’s sentence, sometimes very significantly, despite the fact that it was not charged in an indictment, e.g., Blanco, 888 F.2d at 910, and even despite the fact that a jury may have acquitted the defendant for that precise conduct. E.g., Mocciola, 891 F.2d at 16-17; United States v. Rumney, 867 F.2d 714, 719 (1st Cir.) (“traditional sentencing factors need not be pleaded and proved at trial”) (quoting United States v. Brewer, 853 F.2d 1319, 1326 (6th Cir.), cert. denied, 488 U.S. 946, 109 S.Ct. 375, 102 L.Ed.2d 364 (1988)), cert. denied, 491 U.S. 908, 109 S.Ct. 3194, 105 L.Ed.2d 702 (1989). This is because sentencing factors, including the applicability of relevant conduct, need only be proven by a preponderance of the evidence, not beyond a reasonable doubt. Mocciola, 891 F.2d at 16-17; Galloway, 976 F.2d at 424 n. 6. As noted below, in pre-guideline cases courts likewise took into account untried criminal conduct when exercising sentencing discretion. The fact that the government has not charged and proven beyond a reasonable doubt the conduct now asserted as relevant conduct does not prevent the increase in sentence resulting from the relevant conduct guideline. We see no special reason to devi ate from this principle when dealing with a RICO conviction. Nor are we as convinced as the district court that sentencing Patriarca on the basis of uncharged relevant conduct might be so unfair as to raise due process concerns. The district court assumed that if Patriarca was held responsible for either the Limoli or Berns murder, Patriarca would face a potential life sentence under the guidelines and the RICO penalty provision. We believe that the district court was mistaken in this assumption. The RICO statute sets the maximum prison sentence at 20 years unless “the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment.” 18 U.S.C. 1963(a) (emphasis" }, { "docid": "22042062", "title": "", "text": "upon achieving the goals of honesty, reasonable uniformity, and proportionality in sentencing. See U.S.S.G. Ch. 1, Pt. A3, p.s. Indeed, the Sentencing Reform Act places rehabilitation of the defendant as the last of four goals to be accomplished through a sentence, the first three of which are punishment, deterrence, and incapacitation. 18 U.S.C. § 3553(a)(2). Nonetheless, as set forth above, sentencing judges are encouraged to consider a wide range of information relevant to the nature and severity of the offense. See 18 U.S.C. § 3661; U.S.S.G. §§ 1B1.4, 6Al.3(a), p.s. While the Sentencing Reform Act and the Guidelines have reordered the priorities of the goals to be achieved through sentencing, the sentencing system still places a premium on obtaining all evidence deemed relevant. See Payne v. Tennessee, — U.S. at-, 111 S.Ct. at 2606. This is so because the sentencing judge needs information in order to fashion a sentence appropriate to these reordered goals. It follows that the pre-Guidelines policy of conducting the inquiry free from the strictures of the right of confrontation still obtains. In addition to pointing out the changes discussed above, some have argued that the Guidelines’ use of relevant conduct in fashioning a sentence effectively transforms the sentencing phase into a new guilt phase. We disposed of this argument in United States v. Galloway, 976 F.2d 414 (8th Cir.1992) (en banc). There, we applied the due process analysis of McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), and concluded that the use of relevant conduct at sentencing does not require application of the rights to indictment, jury trial and proof beyond a reasonable doubt because uncharged conduct is treated as a sentencing factor, not a new element of the offense. Galloway, 976 F.2d at 422-25. In McMillan the Court recognized the distinction between the guilt phase and the sentencing phase. While the “beyond a reasonable doubt” standard applies to the proof of facts necessary to conviction, it does not follow that the same standard applies to the proof of facts at sentencing, even though proof of those facts may increase a" }, { "docid": "2321440", "title": "", "text": "based on our recent decision in United States v. Wise, 976 F.2d 393 (8th Cir.1992) (en banc) (six judges concurring, one judge concurring specially, two judges concurring in part and dissenting in part, and two judges dissenting). In Wise, we held that a court may consider hearsay during the sentencing phase of trial because sentencing does not “constitute[ ] a separate criminal proceeding” to which the right of confrontation applies. United States v. Wise, 976 F.2d at 398 (8th Cir.1992) (en banc). We cautioned, however, that “in certain instances a sentence may so overwhelm or be so disproportionate to the punishment that would otherwise be imposed absent the sentencing factors mandated by the Guidelines that due process concerns must be addressed. This may occur where ... a sentence is so greatly increased as a result of considering relevant conduct that the conduct essentially becomes an element of the offense....” Id. at 401. In this case, Pedroli was sentenced to'78 months based on an offense level of'23 and a criminal history category of IV. Assuming, without deciding, that Pedroli would not have received a two-level increase without the use .of hearsay in the PSR, his base offense level would be 21 and his guideline sentencing range would have been between 57 and 71 months. This does not raise due process concerns because the increase in Pedroli’s offense level amounted to less than a two-fold increase in sentencing. See Wise, at 401 (two-fold increase does not raise due process concerns); United States v. Galloway, 976 F.2d 414, 426 (8th Cir.1992) (en banc) (five judges dissenting from a panel of twelve judges) (three-fold increase does not offend due process). The substantial dissenting opinions in the above en banc cases of Wise and Galloway do indicate a considerable area of disagreement on the issue here posited, but as a panel we are bound to follow the majority opinions both in en banc and prior panel opinions. Finally, concerning the reliability of the hearsay in the PSR, we note that the hearsay evidence was corroborated by the testimony of Jeffrey Graham at the aborted trial." } ]

[ { "docid": "4369975", "title": "", "text": "The district court ruled the clock on section 3161(b) was never triggered because Johnson was not “arrested” by the federal government until after the federal indictment was filed. “Regardless of the degree of federal involvement in a state ... investigation and arrest, only a federal arrest will trigger the running of the time period set forth in 18 U.S.C. § 3161(b).” United States v. Manuel, 706 F.2d 908, 915 (9th Cir.1983) (original emphasis). The district court’s finding that no federal arrest occurred before the indictment was filed was not clearly erroneous, see id. at 91 f Although the F.B.I. actively investigated the bank robbery, state police arrested Johnson, took him to the San Diego County Jail, and booked him on state robbery charges. V. Johnson claims the district court improperly failed to find he had accepted responsibility for his criminal conduct under U.S.S.G. § 3E1.1. Johnson’s effort to demonstrate his acceptance of responsibility consisted of a one paragraph letter sent nine days before the sentencing hearing. The district ing. In addition, the court noted Johnson had not merely remained silent when questioned by the F.B.I. after his arrest but had lied about his responsibility for the robbery. The court’s conclusion that Johnson had not manifested “sincere contrition” or “sincere remorse” was not clearly erroneous. See Ramos, 923 F.2d at 1360. VI. Finally, we reject Johnson’s claim that when the district court sentenced him to 240 months, it failed to state its reasons for deciding on that particular point within the applicable range, a claim we review de novo. United States v. Upshaw, 918 F.2d 789, 792 (9th Cir.1990). 18 U.S.C. § 3553(c) provides in pertinent part: The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence— (1) is [within the range applicable under the Sentencing Guidelines] and that range exceeds 24 months, the reason for imposing a sentence at a particular point within the range.... In Upshaw, we held 18 U.S.C. § 3553(c) requires the court to “make an adequate statement of reasons for choosing" } ]

[ { "docid": "17190709", "title": "", "text": "stated to my wife and my family I wish I could just quit this today and go to work and start afresh, start all over. And as reference to what [the probation officer] stated, I did say that, yes, but in the context of — we all have to pay when large corporations get cheated, I also said that, and insurance companies, I said, so we all pay in some way. For that I feel bad. For the mom and pop companies that I would cheat I feel bad. For the individuals — I wouldn’t cheat individuals, I wouldn’t cheat small companies. As I stated when I pled guilty, I am guilty, and more than I can express in words I am sorry for what I have done not only to the merchants, the businessmen, but to the family that I have in this room and elsewhere. Despite this testimony, the district court denied Whitehead the reduction for acceptance of responsibility because the defendant has not made a complete disclosure of all of his activities in reference to the various charges herein and the defendant has specifically stated that he has no sincere contrition or remorse insofar as the bigger companies or corporations that he defrauded are concerned. He’s sorry he defrauded the little man, so to speak, but the big outfits are kind of fair game insofar as his remorse and contrition are concerned. So the Court thinks that it is not proper to deduct two points for acceptance of responsibility. The Guidelines permit a two-level reduction in the defendant’s offense level “if the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct,” whether he is convicted after trial or based on a guilty plea. United States Sentencing Commission, Guidelines Manual, § 3E1.1 (Nov.1989) (hereinafter U.S.S.G.). As we recognized in United States v. Rogers, 899 F.2d 917, 924 (10th Cir.), petition for cert. filed, No. 89-78763 (Jun. 15,1990), the defendant bears the burden of proof of establishing his entitlement to this reduction by a preponderance of the evidence. A guilty plea alone does" }, { "docid": "17190710", "title": "", "text": "in reference to the various charges herein and the defendant has specifically stated that he has no sincere contrition or remorse insofar as the bigger companies or corporations that he defrauded are concerned. He’s sorry he defrauded the little man, so to speak, but the big outfits are kind of fair game insofar as his remorse and contrition are concerned. So the Court thinks that it is not proper to deduct two points for acceptance of responsibility. The Guidelines permit a two-level reduction in the defendant’s offense level “if the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct,” whether he is convicted after trial or based on a guilty plea. United States Sentencing Commission, Guidelines Manual, § 3E1.1 (Nov.1989) (hereinafter U.S.S.G.). As we recognized in United States v. Rogers, 899 F.2d 917, 924 (10th Cir.), petition for cert. filed, No. 89-78763 (Jun. 15,1990), the defendant bears the burden of proof of establishing his entitlement to this reduction by a preponderance of the evidence. A guilty plea alone does not entitle the defendant to the reduction, and the Guidelines list certain non-exclusive circumstances that may justify departure. U.S.S.G. § 3E1.1 comment, n. 1. The Guidelines further counsel that “the sentencing judge is in the unique position to evaluate a defendant’s acceptance of responsibility. For this reason the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation.” Id. n. 5. Because of our deference to the trial court’s assessment of credibility and the clearly erroneous standard we apply, the judgment of the district court on this issue is nearly always sustained. See United States v. Trujillo, 906 F.2d 1456, 1460 (10th Cir.1990). As foreshadowed above, we affirm the district court’s judgment withholding the reduction for acceptance of responsibility. There was evidence before the court that, although Whitehead admitted to the commission of the crimes, he did not accept fully that his actions were morally and legally improper and failed to disclose to authorities the extent of his illegal activities. While we may" }, { "docid": "23262180", "title": "", "text": "finds that the defendant pled guilty and said he was sorry. He has not admitted to the offense conduct. In the transcript of the plea, you will note that he admitted that he came into Guam and that they found the stuff. Quote, “they found the stuff,” unquote. This is not the equivalent of fully admitting the offense conduct; he has not even told this court that he himself imported the ice into Guam. The district court was bound by its finding, in accord with Fed.R.Crim.P. 11(f), that the plea was “supported by an independent basis in fact containing each of the essential elements of the offense.” The prosecutor had provided no evidence of any element not supported already by Vance’s admissions. The finding at the time the plea was accepted therefore compels the inference that Vance had “truthfully admitted] the conduct comprising the offense of conviction,” for purposes of U.S.S.G. § 3E1.1, application note 3. The analysis thus far leaves only lack of “contrition” as a possible ground for denying Vance the three level adjustment for timely acceptance of responsibility. In general usage, the word “contrition” means sincere remorse for wrongdoing, repentance for wrongdoing, penitence, American Heritage Dictionary of the English Language 319 (2d ed. 1985), or consciousness of guilt giving rise to humility and sorrow. Webster’s Third New International Dictionary, Unabridged 496 (1986). The factual inquiry required by the guidelines does not require a penetrating judicial examination of the criminal’s soul. There is no particular social purpose to be served by lenience toward those who cry more easily, or who have sufficient criminal experience to display sentiment at sentencing instead of restraining their emotions in public. The guideline term for the quality worth a two level downward adjustment is “acceptance of responsibility.” Acceptance of Responsibility (a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels. (b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and the defendant has assisted authorities in" }, { "docid": "23277999", "title": "", "text": "concern themselves with a defendant’s appeal beyond informing him of the right. See Fed.R.Crim.P. 32(a)(2). We recognize the district court’s role as factfinder in cases of alleged plea agreement breaches, see Flores-Payon, 942 F.2d at 558, 560, and in appropriate instances it will be necessary to remand a case for a determination by the district court whether the government breached the plea agreement. Cf. Gonzalez, 981 F.2d at 1043 (Kozinski, J., dissenting). In the present case, however, the breach is clear. By opposing the acceptance of responsibility adjustment, the government by its breach of the agreement released Gonzalez from his promise in paragraph 11 not to appeal. Once released from the bar of the appeal waiver, Gonzalez may raise any claim relating to the sentence, except a contention that first should have been presented to the district court. Here, Gonzalez raises a proper claim on appeal, that his showing of contriteness entitles him to the two-point reduction — the same claim made in the district court which the trial judge rejected. We turn now to the merits of Gonzalez’s appeal. III. Gonzalez contends the district court erred in denying him a downward adjustment for acceptance of responsibility under § 3E1.1 because it incorrectly ruled Gonzalez was required to state his reasons for committing the crime. He argues he was required only to show remorse and recognize his role in the commission of the crime, both of which he asserts he did. Gonzalez also argues that application note 3 to § 3E1.1 (1991) creates a presumption in favor of granting the reduction so long as “the defendant pleads guilty before the start of trial and truthfully admits ‘involvement in the offense and related conduct.’” (Appellant’s Br., at 18 n. 4.) The government counters that Gonzalez lied both to the Probation Department and the district court by telling them he committed the crime because Josephine Flores “had repeatedly asked him to assist her and that she would lose her life if he did not.” (Ap-pellee’s Br., at 20.) It asserts Gonzalez’s conduct of lying belies any words of remorse or regret and" }, { "docid": "22445182", "title": "", "text": "B. Acceptance of Responsibility The district court denied Fellows a downward adjustment for acceptance of responsibility under U.S.S.G. § 3El.l(a). The court questioned the sincerity of Fellows’ letter of remorse submitted prior to the sentencing hearing. Fellows argues that he is entitled to the reduction because he presented uncontroverted “significant evidence” that he accepted responsibility. We disagree and affirm the district court’s denial of the downward adjustment. Under U.S.S.G. § 3El.l(a), a defendant is entitled to a two-level downward adjustment if he “clearly demonstrates acceptance of responsibility for his offense.” (emphasis added) The application notes provide for three pieces of evidence which are “significant evidence” to establish “acceptance of responsibility”: (1) plea of guilty before trial; (2) truthful admission of the elements of the offense; (3) truthful admission, or at least no false denial, of “relevant conduct.” U.S.S.G. § 3E1.1, App. Note 3. A defendant who enters a guilty plea, however; is not entitled to such an adjustment as a “matter of right.” Id. Although pleading guilty and truthfully admitting the elements of the offense and other relevant conduct are “significant evidence of acceptance of responsibility,” this evidence may be outweighed by conduct “inconsistent with such acceptance of responsibility.” U.S.S.G. § 3E1.1, App. Note 3.; United States v. Vance, 62 F.3d 1152, 1159 (9th Cir.1995). One example of such inconsistent conduct which weighs against a finding of acceptance of responsibility is a “failure to demonstrate contrition and remorse.” Unit ed States v. Connelly, 156 F.3d 978, 982, slip op. 11107, 11114 (9th Cir.1998). It is undisputed that Fellows established these three pieces of evidence under Application Note 3. Thus, he provided significant evidence to establish acceptance of responsibility. There was, however, significant evidence that he did not clearly demonstrate acceptance of responsibility for his offense. His presentenee report portrayed him as unwilling to accept responsibility for his conduct and he did nothing to show the district court anything to the contrary. United States v. Casterline, 103 F.3d at 79. Judge Zilly also was acutely aware of Fellows’ dubious credibility since Fellows had asked Judge Zilly for leniency in his earlier" }, { "docid": "23278000", "title": "", "text": "the merits of Gonzalez’s appeal. III. Gonzalez contends the district court erred in denying him a downward adjustment for acceptance of responsibility under § 3E1.1 because it incorrectly ruled Gonzalez was required to state his reasons for committing the crime. He argues he was required only to show remorse and recognize his role in the commission of the crime, both of which he asserts he did. Gonzalez also argues that application note 3 to § 3E1.1 (1991) creates a presumption in favor of granting the reduction so long as “the defendant pleads guilty before the start of trial and truthfully admits ‘involvement in the offense and related conduct.’” (Appellant’s Br., at 18 n. 4.) The government counters that Gonzalez lied both to the Probation Department and the district court by telling them he committed the crime because Josephine Flores “had repeatedly asked him to assist her and that she would lose her life if he did not.” (Ap-pellee’s Br., at 20.) It asserts Gonzalez’s conduct of lying belies any words of remorse or regret and otherwise served as the basis of the district court’s ultimate determination that Gonzalez never fully accepted responsibility for his crimes. The government further contends Gonzalez’s reference to application note 3 to § 3E1.1 ignores the final part of the note, stating that evidence of a defendant’s guilty plea before trial and truthful admission of participation in the offense, in effect, may be disregarded if the defendant’s conduct is otherwise inconsistent with his acceptance of responsibility. Whether, for purposes of U.S.S.G. § 3E1.1, a person has accepted responsibility for a crime is a factual determination that this court will not disturb unless the district court’s decision is without foundation. United States v. Rosales, 917 F.2d 1220, 1222 (9th Cir.1990) (quoting United States v. Smith, 905 F.2d 1296, 1301 (9th Cir.1990)). Section 3E1.1(a) of the Guidelines provides: “If the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct, reduce the offense level by 2 levels.” Application notes to this section indicate it is appropriate to consider whether the defendant made a" }, { "docid": "23077514", "title": "", "text": "departure was not warranted. See supra. We also note that the court did sentence Stacy near the bottom of the applicable Guidelines range. See Summers, 893 F.2d at 66 (factor may be of sufficient significance only to affect point within Guidelines range at which defendant is sentenced). B The Sentencing Commission addressed adjustments in sentence to reflect acceptance of responsibility in Guideline § 3E1.1. Section 3E1.1 provides for a two level reduction in base offense level where “the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” U.S.S.G. § 3El.l(a). The reduction of offense level “recognizes legitimate societal interests”; “a defendant who clearly demonstrates a recognition and affirmative acceptance of personal responsibility for the offense by taking, in a timely fashion, one or more of the actions listed [in the commentary] (or some equivalent action) is appropriately given a lesser sentence than a defendant who has not demonstrated sincere remorse.” Id. comment, (backg’d) (emphasis added). The commentary to Guidelines § 3E1.1 includes a nonexclusive list of factors that can be considered in making the determination whether the defendant has accepted responsibility, including “the timeliness of the defendant’s conduct in manifesting the acceptance of responsibility.” Id., comment, (n. 1(g)). A defendant who enters a guilty plea is not entitled to a sentencing reduction as a matter of right, id. § 3El.l(c); a guilty plea may provide some evidence of the defendant’s acceptance of responsibility, but it does not by itself entitle a defendant to the two level reduction. Id., comment, (n. 3). “The determination whether a defendant ‘clearly demonstrates a recognition and affirmative acceptance of personal responsibility’ is a factual issue, and the district court’s decision not to reduce the offense level will not be disturbed unless clearly erroneous.” United States v. Harris, 882 F.2d 902, 905 (4th Cir.1989). The district court’s determination that Stacy did not clearly demonstrate affirmative acceptance of responsibility is not clearly erroneous. The court rightly noted that Stacy’s guilty plea alone did not justify departure. The fact that he did not plead until after his wife was convicted and his" }, { "docid": "23262186", "title": "", "text": "case at bar, the only evidence weighing against acceptance of responsibility was the defendant’s use of the passive voice in describing his crime. He said the methamphetamine was found on him, instead of saying that he smuggled it in. That is something, but not much. If the judge thought that the defendant was using something like the passive exonerative form, “mistakes were made,” to avoid admitting mens rea, then it was incumbent on the court to require that the mens rea element of the crime be established prior to finding that there was a substantial basis in fact containing each of the essential elements of the offense. Fed. R.Crim.P. 11(f). Where the context does not suggest denial of mens rea to the judge at the time the guilty plea is entered, however, it is inconsistent to treat it later at sentencing as though it did. We have required the adjustment to be awarded where the defendant lied about non-relevant conduct and about his motive. United States v. Gonzalez, 16 F.3d 985 (9th Cir.1993). In the case at bar, there was no evidence that Vance lied about anything. Vance pleaded guilty to the charge, with no reduction and no deal, and expressed remorse. A defendant does not need a plea bargain to get the adjustment. Cf. United States v. Rosales, 917 F.2d 1220, 1223 (9th Cir.1990). This was not skimpy evidence of acceptance of responsibility. The pretrial plea of guilty and truthful admission of all elements of the crime were “significant” evidence of acceptance or responsibility. Pleading guilty without a plea bargain was additional evidence of acceptance of responsibility. Because there was no significant evidence the other way, the finding that Vance had not accepted responsibility was clearly erroneous. One purpose of the guidelines was to reduce disparity among sentences on pleas of guilty. William W. Wilkins, Jr., Plea Negotiations, Acceptance of Responsibility, Role of the Offender, and Departures: Policy Decisions in the promulgation of Federal Sentencing Guidelines, 23 Wake Forest L.Rev. 181 (1988). The guidelines recognized that sentences have historically been reduced by fairly predictable percentages upon pretrial pleas of" }, { "docid": "22939057", "title": "", "text": "the Hodgkiss conspiracy. See parts II.B.2 and VI.A.2 supra. Consequently, we will not disturb the district court’s finding that Gregg was not a minimal or minor participant. D Gregg argues he was entitled to a downward adjustment in his offense level because he accepted responsibility for his crimes. Under § 3El.l(a) of the guidelines, “[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct,” a district court may reduce the defendant’s offense level by two points. However, the adjustment “is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1. comment, (n. 2). The district court found that Gregg did not fully accept responsibility for his crimes and refused to reduce the offense level. We review this finding using the clearly erroneous standard. United States v. Hardeman, 933 F.2d 278, 283 (5th Cir.1991). While Gregg accepted responsibility for some acts, he did not demonstrate “sincere contrition” regarding the full extent of his criminal conduct. United States v. Beard, 913 P.2d 193, 199 (5th Cir.1990). Instead, Gregg both minimized his participation in the conspiracy even after he was found guilty and refused to discuss information contained in the drug ledgers seized from his home. See United States v. Windham, 991 F.2d 181, 183 (5th Cir.) (noting that a defendant is required-under the pre-1992 guidelines to accept responsibility for all relevant criminal. conduct to be eligible for a downward departure under § 3E1.1), cert. denied, — U.S. -, 114 S.Ct. 444, 126 L.Ed.2d 377 (1993); United States v. Alfaro, 919 F.2d 962, 968 (5th Cir.1990) (same). Accordingly, the district court’s finding that Gregg did not accept responsibility is not erroneous. E Gregg further contends that the district court miscalculated his criminal history category for sentencing purposes. Gregg contends that the district court improperly considered hearsay evidence, supplied by a government agent, indicating that Gregg was involved in narcotics activity while on probation from a previous conviction." }, { "docid": "23262181", "title": "", "text": "adjustment for timely acceptance of responsibility. In general usage, the word “contrition” means sincere remorse for wrongdoing, repentance for wrongdoing, penitence, American Heritage Dictionary of the English Language 319 (2d ed. 1985), or consciousness of guilt giving rise to humility and sorrow. Webster’s Third New International Dictionary, Unabridged 496 (1986). The factual inquiry required by the guidelines does not require a penetrating judicial examination of the criminal’s soul. There is no particular social purpose to be served by lenience toward those who cry more easily, or who have sufficient criminal experience to display sentiment at sentencing instead of restraining their emotions in public. The guideline term for the quality worth a two level downward adjustment is “acceptance of responsibility.” Acceptance of Responsibility (a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels. (b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and the defendant has assisted authorities in the investigation or prosecution of his own misconduct by taking one or more of the following steps: (1) timely providing complete information to the government concerning his own involvement in the offense; or (2) timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently, decrease the offense level by 1 additional level. U.S.S.G. § 3E1.1. The application notes provide for three pieces of evidence which are “significant evidence” to establish “acceptance of responsibility;” (1) plea of guilty before trial; (2) truthful admission of the elements of the offense; (3) truthful admission, or at least no false denial, of “relevant conduct:” Entry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct comprising the offense of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which he is accountable under § 1B1.3 (Relevant Conduct) (see Application Note 1(a)), will constitute significant evidence of acceptance of" }, { "docid": "23278002", "title": "", "text": "“voluntary and truthful admission to authorities of involvement in the offense,” U.S.S.G. § 3E1.1, comment, (n. 1(e)), and “the timeliness of the defendant’s conduct in manifesting the acceptance of responsibility.” Id., comment, (n. 1(h)). Application note 3 states that an “[ejntry of a plea of guilty prior to the commencement of trial combined with truthful admission of involvement in the offense and related conduct will constitute significant evidence of acceptance of responsibility.” Id., comment, (n. 3). To qualify for this reduction, a defendant must demonstrate “some manifestation of ‘sincere contrition’ ... or ‘sincere remorse.’ ” United States v. Ramos, 923 F.2d 1346, 1360 (9th Cir.1991) (quoting U.S.S.G. § 3E1.1, comment, (n. 2), (backg’d.)). The sentencing judge’s decision to deny Gonzalez the reduction is set forth below: THE COURT: The prosecutor points out a very good point, he is not willing to accept full responsibility, he is now saying something, apparently, that he never said in the beginning the reason he did it. MR. CHAVEZ (Gonzalez’s attorney): My belief is that the acceptance of responsibility is he admits he did it at an early stage of the criminal proceedings. He is accepting full fairness of the crime that he is charged with. THE COURT: I am afraid, Mr. Chavez, I am going to deny him both of those. I won’t deduct two points for acceptance of responsibility. (Sent. tr. of Gonzalez, at 17-18) (emphasis added). The “now saying something, apparently, that he never said” to which the district court refers relates to Gonzalez’s statement to the probation officer that the reason he committed the crimes was to help Josephine Flores, who had told him that she would otherwise lose her life. The government argued, and the district court in effect agreed, that because he had never said this before, he was lying and thus not fully accepting responsibility for his crimes. In our opinion, the district court erred in denying Gonzalez the adjustment. Under § 3E1.1, Gonzalez was required to recognize and affirmatively accept personal responsibility for his criminal conduct. The record shows he did. He fully admitted his involvement in" }, { "docid": "7927564", "title": "", "text": "Menichino, 989 F.2d 438, 441 (11th Cir.1993) (“[I]n a loan application case involving misrepresentation of assets, the loss is the amount of the loan not repaid at the time the offense is discovered, reduced by the amount the lender could recover from collateral.”). B. Downward Adjustment for Acceptance of Responsibility The Government contends that the district court erred in granting Bennett a two-level downward adjustment in his offense level pursuant to U.S.S.G. § 3E1.1 because there is nothing in the record to support its conclusion that Bennett accepted responsibility for his criminal conduct. It insists that, from the time Bennett’s crime was discovered and through his sentencing hearing, Bennett never conceded that he had engaged in bank fraud or expressed any remorse or contrition for his conduct. Furthermore, the Government submits that Bennett’s settlement with Plymouth Federal and Daniel Webster was not a “voluntary payment of restitution,” U.S.S.G. § 3E1.1, comment, (n. 1(c)) (Nov. 1, 1993) (emphasis added), that would entitle Bennett to a downward adjustment in his offense level. Bennett responds that the district court’s decision was justified by his settlement offer and eventual settlement with Plymouth Federal and Daniel Webster prior to conviction, and by his demonstration of contrition and remorse at the sentencing hearing. We cannot agree. Although a district court’s conclusion that a defendant has accepted responsibility “is entitled to great deference on review[,]” U.S.S.G. § 3E1.1, comment, (n. 5) (Nov. 1, 1993); e.g., United States v. Royer, 895 F.2d 28, 29 (1st Cir.1990) (describing “clearly erroneous” standard of review), there must be some articulable basis or foundation for it, e.g., United States v. Amos, 952 F.2d 992, 995 (8th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1774, 118 L.Ed.2d 432 (1992). We find no such basis for the district court’s decision. To begin with, U.S.S.G. § 3E1.1 “is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1, comment, (n. 2) (Nov. 1, 1993) (footnote" }, { "docid": "10546746", "title": "", "text": "arguments regarding the factors to be taken into account in sentencing. United States v. Argentine, 814 F.2d 783, 790-91 (1st Cir.1987). The transcript of the sentencing hearing reveals that Uricoechea was offered ample opportunity to challenge the computation of his offense level and failed to raise any question regarding his alleged role as a “minor participant.” Uricoechea’s failure to assert this claim at his sentencing hearing forecloses him from raising it here. Our inquiry into whether Uricoechea was entitled to a two-level reduction for “acceptance of responsibility” must begin with an examination of U.S.S.G. § 3El.l(a) which provides for such a reduction “[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct....” The burden is on the defendant to demonstrate that he or she should have received the reduction. United States v. Bradley, 917 F.2d 601, 606 (1st Cir.1990). The entry of a guilty plea is not, by itself, sufficient to establish acceptance of responsibility. U.S.S.G. § 3El.l(c), comment, (n. 3). By the same token, although failure to plead does not automatically bar a reduction for acceptance of responsibility, generally speaking “[t]his adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1, comment, (n.2). The ultimate question is whether the defendant has accepted responsibility for his or her conduct “with candor and authentic remorse.” United States v. Wheelwright, 918 F.2d 226, 229 (1st Cir.1990) (quoting U.S. v. Royer, 895 F.2d 28, 30 (1st Cir.1990)). “Acceptance of responsibility, in the final analysis, ‘necessitates candor and authentic remorse — not merely a pat recital of the vocabulary of contrition.’ ” Bradley, 917 F.2d at 606 (quoting Royer, 895 F.2d at 30). In this case, the District Court found that Uricoechea failed to accept responsibility with candor and authentic remorse. In determining whether that finding was erroneous, we must bear in mind that because “[t]he sentencing judge is in a unique position to evaluate a" }, { "docid": "23278001", "title": "", "text": "otherwise served as the basis of the district court’s ultimate determination that Gonzalez never fully accepted responsibility for his crimes. The government further contends Gonzalez’s reference to application note 3 to § 3E1.1 ignores the final part of the note, stating that evidence of a defendant’s guilty plea before trial and truthful admission of participation in the offense, in effect, may be disregarded if the defendant’s conduct is otherwise inconsistent with his acceptance of responsibility. Whether, for purposes of U.S.S.G. § 3E1.1, a person has accepted responsibility for a crime is a factual determination that this court will not disturb unless the district court’s decision is without foundation. United States v. Rosales, 917 F.2d 1220, 1222 (9th Cir.1990) (quoting United States v. Smith, 905 F.2d 1296, 1301 (9th Cir.1990)). Section 3E1.1(a) of the Guidelines provides: “If the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct, reduce the offense level by 2 levels.” Application notes to this section indicate it is appropriate to consider whether the defendant made a “voluntary and truthful admission to authorities of involvement in the offense,” U.S.S.G. § 3E1.1, comment, (n. 1(e)), and “the timeliness of the defendant’s conduct in manifesting the acceptance of responsibility.” Id., comment, (n. 1(h)). Application note 3 states that an “[ejntry of a plea of guilty prior to the commencement of trial combined with truthful admission of involvement in the offense and related conduct will constitute significant evidence of acceptance of responsibility.” Id., comment, (n. 3). To qualify for this reduction, a defendant must demonstrate “some manifestation of ‘sincere contrition’ ... or ‘sincere remorse.’ ” United States v. Ramos, 923 F.2d 1346, 1360 (9th Cir.1991) (quoting U.S.S.G. § 3E1.1, comment, (n. 2), (backg’d.)). The sentencing judge’s decision to deny Gonzalez the reduction is set forth below: THE COURT: The prosecutor points out a very good point, he is not willing to accept full responsibility, he is now saying something, apparently, that he never said in the beginning the reason he did it. MR. CHAVEZ (Gonzalez’s attorney): My belief is that the acceptance of responsibility is" }, { "docid": "23349366", "title": "", "text": "officials after arrest); United States v. Jones, 983 F.2d 1425, 1434 (7th Cir.1993) (hypothesizing that reduction would be appropriate “where the defendant challenges the constitutionality of the statute underlying the charge”). Ewing’s suggestion in his letter that Couch testify that he had no knowledge of the crime until the date of arrest is an attempt to affirmatively shift his own criminal liability elsewhere. The letter is inconsistent with any purported acceptance of responsibility. Instead of contesting this interpretation of the letter,' Ewing contends that he satisfied § 3E1.1 through his guilty plea which was sufficiently timely to spare the government the time and expense of a trial and through his letter to Judge Crabb and allocution which showed true remorse for his action. “A defendant who enters a guilty plea is not entitled to an adjustment ... as a matter of right.” U.S.S.G. § 3E1.1, comment, (n.3). The “timeliness of the defendant’s conduct in manifesting the acceptance of responsibility” is a factor in determining whether a defendant qualifies for a § 3E1.1 reduction. Id., comment, (n.1(h)). Ewing pled guilty on the last business day before the trial’s scheduled start. The district court rejected Ewing’s guilty plea as evidence of his accepting responsibility, noting that Ewing had “contested the government’s case ... up until the last possible moment.” Sentencing Hr’g Tr. at 11. We agree. A last minute guilty plea is not usually evidence of a heart full of remorse. Rather, it is “more indicative of a defendant’s wish to escape greater punishment than ... a genuine expression of contrition.” Akindele, 84 F.3d at 957. “‘[I]n the absence of evidence of sincere remorse or contrition for one’s crimes, a guilty plea entered for the apparent purpose of obtaining a lighter sentence does not entitle a defendant to a reduction for acceptance of responsibility.’” United States v. Purchess, 107 F.3d 1261, 1269 (7th Cir.1997) (quoting United States v. Hammick, 36 F.3d 594, 600 (7th Cir.1994)). In his allocution, Ewing tried to convince the court that he engaged in the charged crimes only to earn enough money to enable him to return home" }, { "docid": "6585883", "title": "", "text": "defendant a reduction for acceptance of responsibility. If the defendant does understand and agree with the argument, then the factual challenges can be and should be attributed to him. If the defendant rejects the attorney’s argument, the court can simply disregard it. Such a procedure would insure that a defendant would be unable to reap the benefit of his attorney’s factual challenges without risking the acceptance of responsibility reduction. Finally, the court offered a third reason for denying the acceptance of responsibility reduction here. The court found that Purchess was motivated by a desire to “receive a lower level of sentencing without actually accepting responsibility for his actions.” Transcript of Sentencing at 49-50. The court was not persuaded by Purchess’ one sentence apology, nor by his timely admissions of all the conduct involved in the offense of conviction. A fundamental principle underlying the acceptance of responsibility reduction is “that in the absence of evidence of sincere remorse or contrition for one’s crimes, a guilty plea entered for the apparent purpose of obtaining a lighter sentence does not entitle a defendant to a reduction for acceptance of responsibility.” Hammick, 36 F.3d at 600. Indeed, the application notes to section 3E1.1 state that a defendant who enters a guilty plea is not entitled to this reduction as a matter of right. U.S.S.G. § 3E1.1, comment, (n.3). Rather, the court is “required to look beyond formalistic expressions of culpability and to determine whether the defendant has manifested an acceptance of responsibility for his offense in a moral sense.” Hammick, 36 F.3d at 600. Thus, a determination of a failure to accept responsibility is one of those findings uniquely suited to the intuition and experience of the district judge, and that is why we reverse such a finding only for clear error. In addition to the other reasons it provided, the district court apparently believed that Pur-chess was insincere in his apology to the court, and that he did not actually accept responsibility for his offense. Purchess offers no reason for us to believe that such a finding was clearly erroneous. Normally, we would" }, { "docid": "8184973", "title": "", "text": "of, and a genuine acceptance of responsibility for, all of the circumstances surrounding the defendants’ firearm possession offense.” Id. The court further concluded that the defendants’ reliance on the Fifth Amendment was misplaced, because the district judge had not required them to admit to crimes other than those that were the subjects of their guilty pleas, but had only insisted that they give a “credible and complete explanation, evincing remorse or contrition, for the conduct surrounding the ... offense of conviction.” Id. at 681. Because the defendants had refused to do so, they were not entitled to the reduction. Id. The courts’ decisions in Reyes and Taylor also serve to illustrate a fundamental principle underlying the acceptance of responsibility reduction, namely, that in the absence of evidence of sincere remorse or contrition for one’s crimes, a guilty plea entered for the apparent purpose of obtaining a fighter sentence does not entitle a defendant to a reduction for acceptance of responsibility. See United States v. Panadero, 7 F.3d 691, 694 (7th Cir.1993); White, 993 F.2d at 151; United States v. Franklin, 902 F.2d 501, 505-06 (7th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 274, 112 L.Ed.2d 229 (1990). Indeed, it is well established that pleading guilty does not entitle a defendant to the reduction as a matter of right. U.S.S.G. § 3E1.1, comment, (n. 3); see Panadero, 7 F.3d at 694; United States v. Beserra, 967 F.2d 254, 255 (7th Cir.), cert. denied, — U.S. —, 113 S.Ct. 419, 121 L.Ed.2d 341 (1992). Rather than relying solely on the defendant’s guilty plea to award the reduction, the sentencing judge is required to look beyond formalistic expressions of culpability and to determine whether the defendant has manifested an acceptance of personal responsibility for his offense in a moral sense. Panadero, 7 F.3d at 694; see also Beserra, 967 F.2d at 256 (“Judicial inquiry into acceptance of responsibility is a search for expiatory deeds and, failing those, ... for conscience.”). We do not believe that the amended version of the guideline, which allows a defendant to remain silent concerning relevant conduct that" }, { "docid": "17467351", "title": "", "text": "(9th Cir.1990). The district court’s determination will not be disturbed “unless it is without foundation.” United States v. Smith, 905 F.2d 1296, 1301 (9th Cir.1990) (emphasis in original) (quoting U.S.S.G. § 3E1.1, Application Note 5). A defendant is entitled to an offense-level reduction “[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct____” U.S.S.G. § 3E1.1. The defendant has the burden of showing acceptance of responsibility. United States v. Howard, 894 F.2d 1085, 1090 n. 4 (9th Cir.1990). Rosales argues that he is entitled to the offense level reduction for acceptance of responsibility because he pleaded guilty immediately upon the filing of the information charging him with misprision of a felony. While “[a] guilty plea may provide some evidence of the defendant’s acceptance of responsibility, ... it does not, by itself, entitle a defendant to a reduced sen tence____” U.S.S.G. § 3E1.1, Application Note 3. Here, Rosales pleaded guilty only after the original charges against him were reduced to misprision. Pleading to a reduced charge does not necessarily demonstrate an acceptance of responsibility. It is at least equally possible that the defendant has made a clever bargain. At no time did Rosales express remorse for his conduct. Accordingly, the district court properly denied Rosales an offense level reduction for acceptance of responsibility. 2. Amount of Heroin Used to Calculate Base Offense Level Rosales contends that the district court misapplied the guidelines in calculating his base offense level on the basis of the entire amount of heroin (230 grams) in the bag that he transferred to Mendez. He does not deny that he knew the bag contained drugs or that the bag contained 230 grams of heroin; he denies only that he did not know the amount of heroin in the bag and thus should not have been sentenced for misprision of the felony of possession with intent to distribute heroin on the basis of the entire amount. The exact number of grams was irrelevant to his intent. U.S.S.G. § 1B1.3, Application Note 1, which details the relevant conduct to be considered in determining" }, { "docid": "15131025", "title": "", "text": "court determine his acceptance of responsibility at sentencing. During sentencing, the district court noted the late date of Wach’s expressed acceptance of responsibility, but nevertheless heard Wach and his counsel on the question. The court then determined that Wach had not accepted responsibility and consequently declined to adjust his offense level computation. The Sentencing Guidelines provide for a two point reduction in offense level “[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for the offense of conviction[.]” United States Sentencing Comm’n, Guidelines Manual, § 3El.l(a) (Nov. 1989). The reduction of offense level provided in [§ 3E1.1] recognizes legitimate societal interests ... [A] defendant who clearly demonstrates a recognition and affirmative acceptance of personal responsibility for the offense ... in a timely fashion ... is appropriately given a lesser sentence than a defendant who has not demonstrated sincere remorse. U.S.S.G. § 3E1.1, comment, (backg’d.) (emphasis supplied). The defendant bears the burden of establishing by a preponderance of the evidence his entitlement to a reduction of the offense level based on acceptance of responsibility. United States v. Rogers, 899 F.2d 917, 924 (10th Cir.1990). The Guidelines explain that appellate review of a district court’s finding on acceptance of responsibility must be highly deferential: “The sentencing judge is in a unique position to evaluate a defendant’s acceptance or responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation.” U.S.S.G. § 3E1.1, comment, (n.5). Here, the probation office informed the court that Wach had not recognized and accepted personal responsibility for the crime. When a defendant fails to acknowledge personal responsibility during the pre-sentence investigation, such failure cannot be overcome merely by a perfunctory expression of regret before the district court at sentencing. Although the final determination of whether Wach had accepted responsibility rested with the district court, the court could consider the timing of Wach’s statement in determining if his acceptance was genuine. Wach’s eleventh hour expression of remorse brought into question whether he manifested \"sincere contrition” over his criminal conduct." }, { "docid": "11417007", "title": "", "text": "one that we do not find to be clearly erroneous. Both Mr. Rosa-lez’ statements and the facts in the record indicate that Mr. Rosalez did not truthfully admit being involved in the offense and did not express remorse concerning his conduct. See U.S.S.G. § 3E1.1, comment, (h. 1(a)) (“[A] defendant who falsely denies ... relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility”); United States v. Donovan, 996 F.2d 1343, 1344-45 (1st Cir.1993) (listing cases). The commentary to § 3E1.1 does not limit the acceptance of responsibility reduction solely to pre-trial admissions of guilt; nor does it completely rule out the possibility that a reduction could be granted after a finding of guilt. However, the decision to grant or to deny the reduction “will be based primarily upon pretrial statements and conduct.” U.S.S.G. § 3E1.1, comment, (n. 2); see also United States v. Harrington, 947 F.2d 956, 962-63 (D.C.Cir.1991) (stating that § 3E1.1 allows an acceptance of responsibility adjustment whether the conviction is based upon a guilty plea or a finding of guilt at trial, but Note 2 “clarifies that a defendant’s pretrial behavior, not his post-trial confession or conversion, is the prime indicator of his acceptance of responsibility for criminal conduct”). In this case, the decision not to grant a reduction was based entirely upon the lack of any pre-trial remorse and upon a lack of contrition in Mr. Rosalez’ solicited post-trial statements. See United States v. Speck, 992 F.2d 860, 863 (8th Cir.1993) (holding that defendant who continued to deny involvement in crimes of which he was convicted has not demonstrated an acceptance of personal responsibility). A judge may determine that a defendant has failed to accept responsibility by finding that he failed to demonstrate truthfulness and remorse prior to “the final hour.” United States v. Osborne, 931 F.2d 1139, 1155 (7th Cir.1991); see also United States v. McQuay, 7 F.3d 800, 802 (8th Cir.1993) (denying reduction for defendant who fails to disclose information concerning his criminal involvement until day before second trial); Tolson, 988 F.2d at 1499" } ]

[ { "docid": "22404980", "title": "", "text": "such motives, and the impossibility of penetrating into the hearts of men and ascertaining the truth, precludes all such inquiries as impracticable and futile.” Soon Ring v. Crowley, 113 U. S. 703, 710. “We must assume that the legislature acts according to its judgment for the best interests of the State. A wrong intent cannot be imputed to it.” Florida Central &c. R. R. v. Reynolds, 183 U. S. 471, 480. The act must be taken as an attempt of the legislature •to enact a statute which it deemed necessary to the good order and security of society. It imposes a penalty for “coercing or influencing or making demands upon or requirements of employés, servants, laborers, and persons seeking employment.” It was in the light of this avowed purpose that the act was interpreted by the Supreme Court of Kansas, the ultimate authority upon the meaning of the terms of the law. Of course, if the act is necessarily arbitrary and therefore unconstitutional, mere declarations of good intent cannot save it, but it must be presumed to have been passed by the legislative branch of the state government in good faith, and for the purpose of reaching the desired end. The legislature may have believed, acting upon conditions known to it, that the public welfare would be promoted by the enactment of a statute which should prevent the compulsory exaction of written agreements to forego the acknowledged legal right here involved, as a condition of employment in one’s trade or occupation. It would be impossible to maintain that because one is free to accept or refuse a given -employment, or because one may at will employ or refuse to employ another, it follows that the parties have a constitutional right to insert in an agreement of employment any stipulation they choose. They cannot put in terms that are against public policy either as it is deemed by the courts to exist at common law or as it may be declared by the legislature as the arbiter within the limits of reason of the public policy of the State.. It is" } ]

[ { "docid": "22402821", "title": "", "text": "enjoy the equal protection of the laws of the state in which he abided; that this privilege to enter in and abide in any state carried with it the “right to work for a living in the common occupations of the community,” a denial of which right would make of the Amendment “a barren form of words.” In answer to a contention that Arizona’s restriction upon the employment of aliens was “reasonable” and therefore permissible, this Court declared: “It must also be said that reasonable classification implies action consistent with the legitimate interests of the State, and it will not be disputed that these cannot be so broadly conceived as to bring them into hostility to exclusive Federal power. The authority to control immigration — to admit or exclude aliens- — -is vested solely in the Federal Government. Fong Yue Ting v. United States, 149 U. S. 698, 713. The assertion of .an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the State would be tantamount to the assertion of the right to deny them entrance and abode, for in ordinary cases they cannot live where they cannot work. And, if such a policy were permissible, the practical result would be that those lawfully admitted to the country under the authority of the acts of Congress, instead of enjoying in a substantial sense and in their full scope the privileges conferred by the admission, would be segregated in such of the States as chose to offer hospitality.” Truax v. Raich, supra at 42. Had the Truax decision said nothing further than what is quoted above, its reasoning, if followed, would seem to require invalidation of this California code provision barring aliens from the occupation of fishing as inconsistent with federal law, which is constitutionally declared to be “the supreme Law of the Land.” However, the Court there went on to note that it had on occasion sustained state legislation that did not apply alike to citizens and non-citizens, the ground for the distinction being that such laws were necessary to protect special interests" }, { "docid": "22681377", "title": "", "text": "employment as a cook in a restaurant, simply because he is an alien. It is sought to justify this act as an exercise of the power of the State to make reasonable classifications in legislating to promote the health, safety, morals and welfare of those within its jurisdiction. But this admitted authority, with the broad range of legislative discretion that it implies, does not go so far as to make it possible for the State to deny to lawful inhabitants, because of their race or nationality, the ordinary means of earning a livelihood. It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the Amendment to secure. Butchers’ Union Co. v. Crescent City Co., 111 U. S. 746, 762; Barbier v. Connolly, 113 U. S. 27, 31; Yick Wo v. Hopkins, supra; Allgeyer v. Louisiana, 166 U. S. 578, 589, 590; Coppage v. Kansas, 236 U. S. 1, 14. If this could be refused solely upon the ground of race or nationality, the prohibition of the denial to any person of the equal protection of the laws would be a barren form of words. It is no answer to say, as it is argued, that the act proceeds upon the assumption that ‘the employment of aliens unless restrained was a peril to the public welfare.’ - The discrimination against aliens in the wide range of employments to which'the act relates is made an end in itself and thus the authority to deny to aliens, upon the mere fact of their alienage, the right to obtain support in the ordinary fields of labor is necessarily involved. It must also be said that reasonable classification implies action consistent with the legitimate interests of the State, and it will not be disputed that these cannot be so broadly conceived as to. bring them into hostility to exclusive . Federal power. The authority to control immigration— to admit or exclude aliens — is vested solely in" }, { "docid": "22329012", "title": "", "text": "in Mugler v. Kansas, 123 U. S. 623. It is immaterial to inquire whether the acts with which the defendant is charged were authorized by the statute of May 22, 1878, or by that of May 24, 1883. The, present prosecution is founded upon the statute of May 21, 1885 ; and if that statute be not in conflict with the Constitution of the United States, the judgment of the Supreme Court of Pennsylvania must be affirmed. It is contended that the last statute is void in that it deprives all coming within its provisions of rights of liberty and property without due process of law, and denies to them the equal protection of the laws; rights which are secured by the Fourteenth Amendment to the Constitution of the United States. It is scarcely necessary to say that if this statute is a legitimate exercise of the police power of the State for the protection of the health of the people, and for the prevention of fraud, it is not inconsistent with that Amendment; for it is, the settled doctrine of this court that, as government is organized for the purpose, among others, of preserving the public health and the public morals, it cannot divest itself of the power to provide for those objects; and that the Fourteenth Amendment was not designed to interfere with the exercise of that power by the States. Mugler v. Kansas, 123 U. S. 663; Butchers’ Union Co. v. Crescent City Co., 111 U. S. 746, 751; Barbier v. Connolly, 113 U. S. 27 ; Yick Wo v. Hopkins, 118 U. S. 356. The question, therefore, is whether the prohibition of the manufacture out of oleaginous substances, or out of any compound thereof other than that produced from unadulterated milk or cream from unadulterated milk, of an article designed to take the place of .butter or cheese produced from pure un adulterated milk or cream from unadulterated milk, or the prohibition upon the manufacture of any imitation or adulterated butter or cheese, or upon the selling or offering for sale, or having in possession with" }, { "docid": "22681376", "title": "", "text": "a restaurant the business of which requires nine employés. The purpose of an act must be found in its natural operation and effect (Henderson v. Mayor, 92 U. S. 259, 268; Bailey v. Alabama, 219 U. S. 219, 244), and the purpose of this act is not only plainly shown by its provisions, but it is frankly revealed in its title. It is there described as ‘An act. to protect the citizens of the United States in their employment against non-citizens of the United States, in Arizona.’ As the appellants rightly say, there has been no subterfuge. It is an act aimed at the employment of aliens, as such, in the businesses described'. Literally, its terms might be taken to include with aliens those naturalized citizens who by reason of change of residence might not be at the time qualified electors in any subdivision of the United States, but we are dealing with the main purpose of the statute, definitely stated, in the execution of which the complainant is to be forced out of his employment as a cook in a restaurant, simply because he is an alien. It is sought to justify this act as an exercise of the power of the State to make reasonable classifications in legislating to promote the health, safety, morals and welfare of those within its jurisdiction. But this admitted authority, with the broad range of legislative discretion that it implies, does not go so far as to make it possible for the State to deny to lawful inhabitants, because of their race or nationality, the ordinary means of earning a livelihood. It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the Amendment to secure. Butchers’ Union Co. v. Crescent City Co., 111 U. S. 746, 762; Barbier v. Connolly, 113 U. S. 27, 31; Yick Wo v. Hopkins, supra; Allgeyer v. Louisiana, 166 U. S. 578, 589, 590; Coppage v. Kansas, 236 U. S." }, { "docid": "22366906", "title": "", "text": "to take the risk of prosecution, finés and imprisonment and loss of property in order to secure an adjudication of their rights. , The complaint, presents a case in which equitable relief may be had, if the law complained of is shown to be in contravention of the Federal Constitution. 2. Is the act repugnant to the due process clause or the equal protection clause of the Fourteenth Amendment? Appellants contend that the act contravenes the due process clause in that it prohibits the owners from making lawful disposition or use of their land, and makes it a criminal offense for them to lease it to the alien, and prohibits him from following the occupation of farmer; and they contend that it is repugnant to the equal protection clause in that aliens are divided into two classes, — those who may and those who may not become citizens, one class being permitted, while the other is forbidden, to own land as defined. Alien inhabitants of a State, as well as all other persons within its jurisdiction, may invoke the protection of these clauses. Yick Wo v. Hopkins, 118 U. S. 356, 369; Truax v. Raich, supra, 39. The Fourteenth Amendment, as against the arbitrary and capricious or unjustly discriminatory action of the State, protects the owners in their right to lease and dispose of their land for lawful purposes and the alien resident in his right to earn a living by following ordinary occupations of the community, but it does not take away from the State those powers of police that were reserved at the time of the adoption of. the Constitution. Barbier v. Connolly, 113 U. S. 27, 31; Mugler v. Kansas, 123 U. S. 623, 663; Powell v. Pennsylvania, 127 U. S. 678, 683; In re Kemmler, 136 U. S. 436, 449; Lawton v. Steel, 152 U. S. 133, 136; Phillips v. Mobile, 208 U. S. 472, 479; Hendrick v. Maryland, 235 U. S. 610, 622, 623. And in the exercise of such powers the State has wide discretion in determining its own public policy and what measures" }, { "docid": "22366907", "title": "", "text": "jurisdiction, may invoke the protection of these clauses. Yick Wo v. Hopkins, 118 U. S. 356, 369; Truax v. Raich, supra, 39. The Fourteenth Amendment, as against the arbitrary and capricious or unjustly discriminatory action of the State, protects the owners in their right to lease and dispose of their land for lawful purposes and the alien resident in his right to earn a living by following ordinary occupations of the community, but it does not take away from the State those powers of police that were reserved at the time of the adoption of. the Constitution. Barbier v. Connolly, 113 U. S. 27, 31; Mugler v. Kansas, 123 U. S. 623, 663; Powell v. Pennsylvania, 127 U. S. 678, 683; In re Kemmler, 136 U. S. 436, 449; Lawton v. Steel, 152 U. S. 133, 136; Phillips v. Mobile, 208 U. S. 472, 479; Hendrick v. Maryland, 235 U. S. 610, 622, 623. And in the exercise of such powers the State has wide discretion in determining its own public policy and what measures are necessary for its own protection and properly to promote the safety, peace and good order of its people. And, while Congress has exclusive jurisdiction over immigration, naturalization and the disposal of the public domain, each State, in the absence of any treaty provision to the contrary, has power to deny to aliens the right to own land within its borders. Hauenstein v. Lynham, 100 U. S. 483, 484, 488; Blythe v. Hinckley, 180 U. S. 333, 340. Mr. Justice Field, speaking for this Court (Phillips v. Moore, 100 U. S. 208) said (p. 212): “ By the common law, an alien cannot acquire real property by operation of law, but may take it by act of the grantor, and hold it until office found; that is, until the fact of alienage is authoritatively established by a public officer, upon an inquest held at the instance of the government.” State' legislation applying alike and equally to i '.1 aliens, withholding from them the right to own land, cannot be said to be capricious or to" }, { "docid": "22204310", "title": "", "text": "living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure. If this could be refused solely upon the ground of race or nationality, the prohibition of the denial to any person of the equal protection of the laws would be a barren form of words.” Truax v. Raich, 239 U. S., at 41 (citations omitted). It is true that in Truax the Court drew a distinction between discrimination against aliens in private lawful occupations and discrimination against them where, it might be said, the State has a special interest in affording protection to its own citizens. Id., at 39^40. That distinction, however, is no longer so sharp as it then was. Recently the Court has taken a more restrictive view of the powers of a State to discriminate against non-citizens with respect to public employment, compare Crane v. New York, 239 U. S. 195 (1915), aff’g People v. Crane, 214 N. Y. 154, 108 N. E. 427, and Heim v. McCall, 239 U. S. 175 (1915), with Sugarman v. Dougall, supra; and with respect to the distribution of public funds and the allocation of public resources, compare McCready v. Virginia, 94 U. S. 391 (1877), and Patsone v. Pennsylvania, 232 U. S. 138 (1914), with Graham v. Richardson, supra, and Takahashi v. Fish & Game Comm’n, supra. We do not suggest, however, that a State, Territory, or local government, or certainly the Federal Government, may not be permitted some discretion in determining the circumstances under which it will employ aliens or whether aliens may receive public benefits or partake of public resources on the same basis as citizens. In each case, the governmental interest claimed to justify the discrimination is to be carefully examined in order to determine whether that interest is legitimate and substantial, and inquiry must be made whether the means adopted to achieve the goal are necessary and precisely drawn. In the present case the appellants have offered three justifications for Puerto Rico's almost total ban on" }, { "docid": "22753173", "title": "", "text": "not be insisted on by local public opinion. They therefore embodied that spirit in a specific guaranty. The guaranty was aimed at undue favor and individual or class privilege, on the one hand, and at hostile dis crimination or the oppression of inequality, on the- other. It sought an equality of treatment of all persons, even though all enjoyed the protection of due process. Mr. Justice Field, delivering the opinion, of this court in Barbier v. Connolly, 113 U. S. 27, 32, of the equality clause, said — “ Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment.” In Hayes v. Missouri, 120 U. S. 68, the court speaking through the same Justice said the Fourteenth Amendment “ does not prohibit legislation which is limited either in the objects to which it is directed, or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike, under, like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.” Thus the guaranty was intended to secure equality of protection not only for all but against all similarly situated. Indeed, protection is not protection unless it does so. Immunity granted to a class, however limited, having the effect to deprive another class, however limited, of a personal or property right, is just as clearly a denial of equal protection of the laws to the latter class as if the immunity were in favor of, or the deprivation of right permitted worked against, a'larger class. Mr. Justice Matthews,, in Yick Wo v. Hopkins, 118 U. S. 356, 369, speaking for the court of both the due process and the equality clause of the Fourteenth Amendment, said: “ These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any .differences of race,' of color, or- of nationality; and" }, { "docid": "22695043", "title": "", "text": "in Barbier v. Connolly, 113 U. S. 27: “But neither the [14th] Amendment — broad and comprehensive as it is— nor any other Amendment was.designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people.” Speaking generally, the State in the exercise of its powers may not unduly interfere with the right of the citizen to enter into contracts that may be necessary and essential in the enjoyment of the inherent rights belonging to every one, among which rights is the right “ to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation,” This was de dared in Allgeyer v. Louisiana, 165 U. S. 578, 589. But in the same case it was conceded that the right to contract in relation to persons and property or to do business, within a State, may be “regulated and sometimes prohibited, when the contracts or business conflict with the policy of the State as contained in its statutes ” (p. 591). So, as said in Holden v. Hardy, 169 U. S. 366, 391: “This right of contract, however, is itself subject to certain limitations which the State may lawfully impose in the exercise of its police powers. While this power is inherent in all governments, it has doubtless been greatly expanded in its application during the past century, owing to an enormous increase in the number ,of occupations which are dangerous, or so far. detrimental to the health of the employes as to demand special precautions for their well-being and protection, or the safety of adjacent property. While this court has held, notably in the cases of Davidson v. New Orleans, 96 U. S. 97, and Yick Wo v. Hopkins, 118 U. S. 356, that the police power Cannot be put forward as an excuse for oppressive and unjust .legislation, it may be" }, { "docid": "22828135", "title": "", "text": "was they, the “yellow horde,” who were the object of the legislation. That fact has been further demonstrated by the subsequent enforcement of the Alien Land Law. At least 79 escheat actions have been instituted by the state since the statute became effective. Of these 79 proceedings, 4 involved Hindus, 2 involved Chinese and the remaining 73 involved Japanese. Curiously enough, 59 of the 73 Japanese cases were begun by the state subsequent to Pearl Harbor, during the period when the hysteria generated by World War II magnified the opportunities for effective anti-Japanese propaganda. Vigorous enforcement of the Alien Land Law has been but one of the cruel discriminatory actions which have marked this nation’s treatment since 1941 of those residents who chanced to be of Japanese origin. The Alien Land Law, in short, was designed to effectuate a purely racial discrimination, to prohibit a Japanese alien from owning or using agricultural land solely because he is a Japanese alien. It is rooted deeply in racial, economic and social antagonisms. The question confronting us is whether such a statute, viewed against the background of racism, can mount the hurdle of the equal protection clause of the Fourteenth Amendment. Can a state disregard in this manner the historic ideal that those within the borders of this nation are not to be denied rights and privileges because they are of a particular race? I say that it cannot. The equal protection clause is too clear to admit of any other conclusion. It provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The words “any person” have sufficient scope to include resident aliens, whether eligible for citizenship or not. Yick Wo v. Hopkins, 118 U. S. 356; Truax v. Raich, 239 U. S. 33. Hence Japanese aliens ineligible for citizenship must be accorded equal protection. And the laws as to which equal protection must be given certainly include those protecting the right to engage in common occupations like farming, Yick Wo v. Hopkins, supra, and those pertaining to the use and ownership of agricultural" }, { "docid": "22329013", "title": "", "text": "it is, the settled doctrine of this court that, as government is organized for the purpose, among others, of preserving the public health and the public morals, it cannot divest itself of the power to provide for those objects; and that the Fourteenth Amendment was not designed to interfere with the exercise of that power by the States. Mugler v. Kansas, 123 U. S. 663; Butchers’ Union Co. v. Crescent City Co., 111 U. S. 746, 751; Barbier v. Connolly, 113 U. S. 27 ; Yick Wo v. Hopkins, 118 U. S. 356. The question, therefore, is whether the prohibition of the manufacture out of oleaginous substances, or out of any compound thereof other than that produced from unadulterated milk or cream from unadulterated milk, of an article designed to take the place of .butter or cheese produced from pure un adulterated milk or cream from unadulterated milk, or the prohibition upon the manufacture of any imitation or adulterated butter or cheese, or upon the selling or offering for sale, or having in possession with intent to sell, the same, as an article of food, is a lawful exercise by the State of the power to protect, by police regulations, the public health. The main proposition advanced by the defendant is that his enjoyment upon terms of equality with all others in similar circumstances of. the privilege of pursuing an ordinary calling or trade, and of acquiring, holding, and selling - property, is an essential part of. his rights of liberty and property, as guaranteed by the Fourteenth Amendment. The court assents to this general proposition as embodying a sound principle of constitutional law. But it cannot adjudge that the defendant’s rights of liberty and property, as thus defined, have been infringed by the statute of Pennsylvania, without holding that, although it may have been enacted in good faith for the objects expressed in its title, namely, to protect the public health and to prevent the adulteration of dairy products and fraud in the sale thereof, it has, in fact, no real or substantial relation to those objects. Mugler v." }, { "docid": "22046344", "title": "", "text": "Justice Gray, writing for the Court, stated: “The power to exclude or to expel aliens, being a power affecting international relations, is vested in the political departments of the government, and is to be regulated by treaty or by act of Congress, and to be executed by the executive authority according to the regulations so established, except so far as the judicial department has been authorized by treaty or by statute, or is required by the paramount law of the Constitution, to intervene.” Some of these disadvantages stem directly from the Constitution itself, see Sugarman v. Dougall, 413 U. S., at 651-653 (RehN-quist, J., dissenting). The legitimacy of the delineation of the affected class buttresses the conclusion that it is “a 'discrete and insular’ minority,” see In re Griffiths, 413 U. S., at 721 and, of course, is consistent with the premise that the class is one whose members suffer special disabilities. See Board of Regents v. Roth, 408 U. S. 564, 573-574, and cases cited. See also the statement for the Court by Mr. Justice Hughes in Truax v. Raich, supra, a case dealing with the employment opportunities of aliens: “It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the Amendment to secure. ... If this could be refused solely upon the ground of race or nationality, the prohibition of the denial to any person of the equal protection of the laws would be a barren-form of words.” 239 U. S., at 41. We note, however, that the petitioners do not rely on the District Court’s reasoning that the regulation might be justified as serving the economic security of United States citizens. Our discussion of the \"special public interest” doctrine in Sugarman v. Dougall, supra, at 643-645, no doubt explains the petitioners’ failure to press this argument in this case. We have no occasion, therefore, to decide when, if ever, that doctrine might justify federal legislation. 22 Stat. 403. See" }, { "docid": "22046345", "title": "", "text": "Justice Hughes in Truax v. Raich, supra, a case dealing with the employment opportunities of aliens: “It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the Amendment to secure. ... If this could be refused solely upon the ground of race or nationality, the prohibition of the denial to any person of the equal protection of the laws would be a barren-form of words.” 239 U. S., at 41. We note, however, that the petitioners do not rely on the District Court’s reasoning that the regulation might be justified as serving the economic security of United States citizens. Our discussion of the \"special public interest” doctrine in Sugarman v. Dougall, supra, at 643-645, no doubt explains the petitioners’ failure to press this argument in this case. We have no occasion, therefore, to decide when, if ever, that doctrine might justify federal legislation. 22 Stat. 403. See Arnett v. Kennedy, 416 U. S. 134, 149; H. Kaplan, The Law of Civil Service 1-11 (1958). A companion bill introduced by Senator Dawes (S. 939) would have expressly provided that “appointments are open to competition to any citizen of the United States, male or female. . . . [V]aeancies shall be filled by competitive examination open to all citizens, in conformity with the provisions of this act . . . .” Appendix to S. Rep. No. 576, 47th Cong., 1st Sess., 4 (1882). The Senate Committee also eliminated, apparently as unnecessary, a preamble that referred to the desirability of allowing “so far as practicable all citizens” equal employment opportunities. See S. Rep. No. 576, supra, at XII; see also 14 Cong. Rec. 661 (1882). See, e. g., the remarks of Senator Hawley: “Of course it will not do to admit to examination everybody that applies for it. There will be requirements — anybody can think of a few in a moment — the applicant must be a citizen of the United States, he must" }, { "docid": "22204309", "title": "", "text": "course, falls into the last category. It is with respect to this kind of discrimination that the States have had the greatest difficulty in persuading this Court that their interests are substantial and constitutionally permissible, and that the discrimination is necessary for the safeguarding of those interests. Thus, in Yick Wo v. Hopkins the Court struck down an ordinance that was administered so as to exclude aliens from pursuing the lawful occupation of a laundry. In Truax v. Raich the Court invalidated a state statute that required a private employer, having five or more workers, to employ at least 80% qualified electors or native-born citizens. And in In re Griffiths a state statutory requirement prescribing United States citizenship as a condition for engaging in the practice of law was held unconstitutional. But see Ohio ex rel. Clarke v. Deckebach, 274 U. S. 392 (1927). The reason for this solicitude with respect to an alien’s engaging in an otherwise lawful occupation is apparent: “It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure. If this could be refused solely upon the ground of race or nationality, the prohibition of the denial to any person of the equal protection of the laws would be a barren form of words.” Truax v. Raich, 239 U. S., at 41 (citations omitted). It is true that in Truax the Court drew a distinction between discrimination against aliens in private lawful occupations and discrimination against them where, it might be said, the State has a special interest in affording protection to its own citizens. Id., at 39^40. That distinction, however, is no longer so sharp as it then was. Recently the Court has taken a more restrictive view of the powers of a State to discriminate against non-citizens with respect to public employment, compare Crane v. New York, 239 U. S. 195 (1915), aff’g People v. Crane, 214 N. Y. 154, 108 N." }, { "docid": "22681378", "title": "", "text": "1, 14. If this could be refused solely upon the ground of race or nationality, the prohibition of the denial to any person of the equal protection of the laws would be a barren form of words. It is no answer to say, as it is argued, that the act proceeds upon the assumption that ‘the employment of aliens unless restrained was a peril to the public welfare.’ - The discrimination against aliens in the wide range of employments to which'the act relates is made an end in itself and thus the authority to deny to aliens, upon the mere fact of their alienage, the right to obtain support in the ordinary fields of labor is necessarily involved. It must also be said that reasonable classification implies action consistent with the legitimate interests of the State, and it will not be disputed that these cannot be so broadly conceived as to. bring them into hostility to exclusive . Federal power. The authority to control immigration— to admit or exclude aliens — is vested solely in the Federal Government. Fong Yue Ting v. United States, 149 U. S. 698, 713. The assertion of an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the State would be tantamount to the assertion of the right to deny them entrance and abode, for in ordinary cases they cannot live where they cannot work. And, if such a policy were permissible, the practical result would be that those lawfully admitted to the country under the authority of the acts of Congress, instead of enjoying in a substantial sense and in their full scope the privileges conferred by the admission, would be segre-' gated in such of the States as chose to offer hospitality. It is insisted that the act should be supported because it is not 'a total deprivation of the right of the alien to labor’; that is, the restriction is limited to those businesses in which more than five workers are employed, and to the ratio fixed. It is emphasized that the employer in any line" }, { "docid": "22333750", "title": "", "text": "262 U. S. 390, 399. “The right to follow any of the common .occupations of life is an inalienable right. It was formulated as such under the phrase ‘pursuit of happiness’ in the Declaration of Independence, which commenced with the fundamental proposition that ‘all men are created equal, that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.’ ... I hold that the liberty of pursuit — the right to follow any of the ordinary callings of life — is one of the privileges of a citizen of the United States.” Concurring opinion of Mr. Justice Bradley in Butchers’ Union Co. v. Crescent City Co., 111 U. S. 746, 762, approvingly quoted in Allgeyer v. Louisiana, 165 U. S. 578, 589. “Included in the right of personal liberty and the right of private property — partaking of the nature of each— is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment by which labor and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established constitutional sense. The right is as essential to the laborer as to the capitalist, to the poor as to the rich; for the vast majority of persons have no other honest way to begin to acquire property, save by working for money.” Coppage v. Kansas, 236 U. S. 1, 14. “It requires no argument to show that the right to work for a living in the common occupations of the com munity is of the very essence of the personal freedom and opportunity that it was the purpose of the amendments to secure.” Truax v. Raich, 239 U. S. 33, 41. “Under that amendment, nothing is more clearly settled than that it is beyond the power of a state, ‘under the guise of protecting the public, arbitrarily [to] interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions" }, { "docid": "22681373", "title": "", "text": "whether the act assailed is repugnant to the Fourteenth Amendment. Upon the allegations of the bill, it must be assumed that the complainant, a native of Austria, has been admitted to the United States under the Federal law. He was thus admitted with the privilege of entering and abiding in the United States, and hence of entering and abiding in any State in the Union. (See Gegiow v. Uhl, Commissioner, decided October 25, 1915, ante, p. 3.) Being lawfully an inhabitant of Arizona, the complainant is entitled under the Fourteenth Amendment to the equal protection of its laws. The description — ‘any person within its jurisdiction’ — as it has frequently been held, includes aliens; ‘These provisions,’ said the court in Yick Wo v. Hopkins, 118 U. S. 356, 369 (referring to the due process and equal protection clauses of the Amendment), ‘are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.’ See also Wong Wing v. United States; 163 U. S. 228, 242; United States v. Wong Kim Ark, 169 U. S. 649, 695. The discrimination defined by the act does not pertain to the regulation or distribution of the public domain, or of the common property or resources of the people of the State, the enjoyment of which may be limited to its citizens as against both aliens and the citizens of other States. Thus in McCready v. Virginia, 94 U. S. 391, 396, the restriction to the citizens of Virginia of the right to plant oysters in one of its rivers was sustained upon the ground that the regulation related to the common property of the citizens of the State, and an analogous principle was involved in Patsone v. Pennsylvania, 232 U. S. 138, 145; 146, where the discrimination against aliens upheld by the court had for its object the protection of wild game within the States with respect to which it was said that the State" }, { "docid": "22799145", "title": "", "text": "to employ at least 80% “qualified electors or native-born citizens of the United States or some subdivision thereof.” Truax v. Raich, 239 U. S. 33, 35 (1915). As stated for the Court by Mr. Justice Hughes: “It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure. [Citations omitted.] If this could be refused solely upon the ground of race or nationality, the prohibition of the denial to any person of the equal protection of the laws would be a barren form of words.” Id., at 41. To be sure, the course of decisions protecting the employment rights of resident aliens has not been an unswerving one. In Clarke v. Deckebach, 274 U. S. 392 (1927), the Court was faced with a challenge to a city ordinance prohibiting the issuance to aliens of licenses to operate pool and billiard rooms. Characterizing the business as one having “harmful and vicious tendencies,” the Court found no constitutional infirmity in the ordinance: “It was competent for the city to make such a choice, not shown to be irrational, by excluding from the conduct of a dubious business an entire class rather than its objectionable members selected by-more empirical methods.” Id., at 397. This easily expandable proposition supported discrimination against resident aliens in a wide range of occupations. But the doctrinal foundations of Clarke were undermined in Takahashi v. Fish & Game Comm’n, 334 U. S. 410 (1948), where, in ruling unconstitutional a California statute barring issuance of fishing licenses to persons “ineligible to citizenship,” the Court stated that “the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.” Id., at 420. Indeed, with the issue squarely before it in Graham v. Richardson, 403 U. S. 365 (1971), the Court concluded: “ [Classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close" }, { "docid": "22799144", "title": "", "text": "Federal courts, who were not citizens of the United States or of any State.” Bradwell v. State, 16 Wall. 130, 139. But shortly thereafter, in 1879, Connecticut established the predecessor to its present rule totally excluding aliens from the practice of law. 162 Conn., at 253, 294 A. 2d, at 283. In subsequent decades, wide-ranging restrictions for the first time began to impair significantly the efforts of aliens to earn a livelihood in their chosen occupations. In the face of this trend, the Court nonetheless held in 1886 that a lawfully admitted resident alien is a “person” within the meaning of the Fourteenth Amendment’s directive that a State must not “deny to any person within its jurisdiction the equal protection of the laws.” Yick Wo v. Hopkins, 118 U. S. 356, 369. The decision in Yick Wo invalidated a municipal ordinance regulating the operation of laundries on the ground that the ordinance was discriminatorily enforced against Chinese operators. Some years later, the Court struck down an Arizona statute requiring employers of more than five persons to employ at least 80% “qualified electors or native-born citizens of the United States or some subdivision thereof.” Truax v. Raich, 239 U. S. 33, 35 (1915). As stated for the Court by Mr. Justice Hughes: “It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure. [Citations omitted.] If this could be refused solely upon the ground of race or nationality, the prohibition of the denial to any person of the equal protection of the laws would be a barren form of words.” Id., at 41. To be sure, the course of decisions protecting the employment rights of resident aliens has not been an unswerving one. In Clarke v. Deckebach, 274 U. S. 392 (1927), the Court was faced with a challenge to a city ordinance prohibiting the issuance to aliens of licenses to operate pool and billiard rooms. Characterizing the business" }, { "docid": "22402820", "title": "", "text": "we granted certiorari. We may well begin our consideration of the principles to be applied in this case by a summary of this Court’s holding in Truax v. Raich, 239 U. S. 33, not deemed controlling by the majority of the California Supreme Court, but regarded by the dissenters as requiring the invalidation of the California law. That case involved an attack upon an Arizona law which required all Arizona employers of more than five workers to hire not less than eighty (80) per cent qualified electors or native-born citizens of the United States. Raich, an alien who worked as a cook in a restaurant which had more than five employees, was about to lose his job solely because of the state law’s coercive effect on the restaurant owner. This Court, in upholding Raich’s contention that the Arizona law was invalid, declared that Raich, having been lawfully admitted into the country under federal law, had a federal privilege to enter and abide in “any State in the Union” and thereafter under the Fourteenth Amendment to enjoy the equal protection of the laws of the state in which he abided; that this privilege to enter in and abide in any state carried with it the “right to work for a living in the common occupations of the community,” a denial of which right would make of the Amendment “a barren form of words.” In answer to a contention that Arizona’s restriction upon the employment of aliens was “reasonable” and therefore permissible, this Court declared: “It must also be said that reasonable classification implies action consistent with the legitimate interests of the State, and it will not be disputed that these cannot be so broadly conceived as to bring them into hostility to exclusive Federal power. The authority to control immigration — to admit or exclude aliens- — -is vested solely in the Federal Government. Fong Yue Ting v. United States, 149 U. S. 698, 713. The assertion of .an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the State would be tantamount to the" } ]

[ { "docid": "22561123", "title": "", "text": "Mejia conceded deportability and renewed his application for asylum. The IJ denied this second asylum application one year later in an oral decision, but granted Mejia’s alternative request for voluntary departure. Although the IJ, as noted above, fully credited Mejia’s testimony, she ruled that Mejia failed to demonstrate eligibility for asylum. Nearly six years after Mejia filed his appeal from the IJ decision, a divided BIA panel denied it on May 30, 2000. In dissent, chairman Schmidt stated that Mejia had demonstrated that he feared persecution on account of imputed political opinion and thus merited asylum relief. Following this denial, Mejia filed a motion to reopen with the BIA, seeking to present new evidence. A divided BIA panel, chairman Schmidt again dissenting, denied this motion on November 15, 2000. Mejia petitions for review of this denial. JURISDICTION The INS argues that this court lacks jurisdiction to consider Mejia’s petition for review. If the INS was correct that Mejia was attempting to petition for review from the BIA’s May 30, 2000, denial of his appeal, its jurisdictional argument would have merit, as the petition to this court would be much too late. But Mejia instead seeks review of the BIA’s November 15, 2000, order denying his motion to reopen. The opening page of Mejia’s opening brief states that Mejia seeks review of the BIA order issued on November 15, 2000, and this statement is followed by a citation to the part of the record that contains the November 15 order. Mejia petitioned for review of the November 15 order denying his motion to reopen on December 14, 2000. According to the applicable transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRI-RA”) and our case law, the petition was timely and this court has jurisdiction to review it. IIRIRA § 309(a), (c)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1183 (9th Cir.2001) (en banc). ANALYSIS I. STANDARD OF REVIEW Denials of motions to reopen are reviewed for an abuse of discretion, although de novo review applies to the BIA’s determination of purely legal questions. See Rodriguez-Lariz v. INS," } ]

[ { "docid": "22079988", "title": "", "text": "denied Singh’s asylum application, finding his testimony internally inconsistent and inconsistent with his application. Singh timely appealed the IJ’s decision to the BIA. He had recently moved to a new address and, following the form’s instructions, he provided his new mailing address on the Notice of Appeal. Accordingly, the BIA sent the receipt for the filling of the appeal to that mailing address. However, on April 24, 2001, nearly a year and a half after Singh filed his appeal, the BIA sent the briefing schedule and transcript of his deportation hearings to his former address. On July 16, 2001, seven weeks after the deadline contained in the misaddressed briefing schedule had passed, Singh learned of the error and filed an unopposed motion for an extension of time to a file a brief. On April 8, 2002, the BIA denied Singh’s motion as untimely, so he was unable to file a brief. Six weeks later, over a dissent by Board Member Rosenberg, the BIA dismissed the appeal, stating that Singh failed to provide “any specific and detailed arguments about the contents of his testimony and why he should be deemed a credible witness.” Singh timely petitioned for review. III We have jurisdiction over a final removal order pursuant to 8 U.S.C. § 1252(a)(1). We review for substantial evidence the decision that an alien has not established eligibility for asylum. Cardenas v. INS, 294 F.3d 1062, 1065 (9th Cir.2002) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). Adverse credibility findings are also reviewed for substantial evidence. Valderrama v. INS, 260 F.3d 1083, 1085(9th Cir.2001) (per curiam). We reverse the BIA’s decision only if the evidence that the petitioner presented was “so compelling that no reasonable factfin-der could find that he was not credible.” Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003) (internal quotation marks omitted). IV This is not the typical case in which a petitioner does not receive notice, is deported in absentia, and is before us attempting to explain his (or, as is more usually the case, his attorney’s) failure to appear" }, { "docid": "22386716", "title": "", "text": "by the Indian security forces for his alleged association with the Sikh separatist movement.” That an alien has been subject to detention and beatings because of an imputed political opinion makes out a plausible claim for eligibility for asylum and withholding of removal. See, e.g., Salaam v. INS, 229 F.3d 1234, 1240 (9th Cir.2000) (arrest and torture may amount to persecution); Prasad v. INS, 101 F.3d 614, 617 (9th Cir.1996) (repeated beatings when jailed may amount to persecution); Canas-Segovia v. INS, 970 F.2d 599, 601 (9th Cir.1992) (imputed political opinion is valid basis for eligibility for asylum). In finding a plausible ground for relief in Singh’s case, we, of course, express no opinion as to whether the BIA should ultimately reverse the IJ’s denial of Singh’s application. We merely hold that Singh has presented a claim that could plausibly succeed on the merits. The presumption of prejudice arising from Singh’s former attorney’s failure to file an appellate brief has not therefore been rebutted. In holding that Singh had not shown prejudice arising from his counsel’s failure to file an appellate brief, the BIA thus abused its discretion. Conclusion We hold that Singh filed a motion to reopen rather than a motion to reconsider, and that the time limit for filing that motion was equitably tolled because of the ineffective assistance of his former counsel. We further hold that in its denial of Singh’s motion to reopen, the BIA improperly relied on its previous statement purporting to affirm the dismissal of Singh’s appeal on the merits, and because the correctness of its earlier decision on the merits was not before it, the BIA improperly required Singh to submit a brief on the merits as part of his motion to reopen. Finally, we hold that in his motion to reopen Singh has shown prejudice resulting from his former counsel’s failure to file a brief. We therefore conclude that the BIA abused its discretion in denying Singh’s motion to reopen. We GRANT Singh’s petition for review and REMAND to the BIA with instructions to grant Singh’s motion to reopen. . The government does" }, { "docid": "22892722", "title": "", "text": "Apt. # 101, Los Angeles, CA 90057, dated August 17, 2005. We note from the record of proceeding, that there is no evidence to corroborate this claim. Moreover, our prior decision was not returned to the Board undeliverable. As there is no error attributable to the Board in the service of its decision, we decline to accept the motion sua sponte. 8 C.F.R. § 1003.2(a). Accordingly, the motion is denied. II. ANALYSIS In the instant petition, Hernandez appeals only the BIA’s order denying her motion to reopen and reissue. Our review is, therefore, limited to consideration of that order, rather than the merits of Hernandez’s underlying claim for cancellation of removal. See INA § 242(b)(4), 8 U.S.C. § 1252(b)(4). We review questions of law, including constitutional claims, de novo. Masnauskas v. Gonzales, 432 F.3d 1067, 1069 (9th Cir.2005). We review the BIA’s denial of motions to reopen for abuse of discretion. Lainez-Ortiz v. INS, 96 F.3d 393, 395 (9th Cir.1996). The BIA abuses its discretion when it acts “arbitrarily], irrationally], or contrary to law.” Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir.2000). An error of law is an abuse of discretion. See Mejia v. Ashcroft, 298 F.3d 873, 878 (9th Cir.2002). Here, the BIA’s decision is “contrary to law,” because it conflicts with our prior holding in Singh v. Gonzales, 494 F.3d 1170 (9th Cir.2007). In Singh we held that when a petitioner offers evidence, in the form of an affidavit, tending to show that the BIA failed to comply with its notice obligations, the BIA must consider the “weight and consequences” of that affidavit before denying the petitioner’s motion to reopen and must “specifically address what procedures or processes exist to assure that petitioners are notified of the BIA’s decisions.” Id. at 1173. We held that the BIA decision denying Singh’s motion to reopen and reinstate/reissue was insufficient because it failed to provide any explanation of how the BIA reached its conclusion that its prior decision had been properly mailed to Singh, and because it failed to consider properly the affidavits submitted by Singh and his attorney stating" }, { "docid": "19914870", "title": "", "text": "1003.2(a), or on the basis of equitable tolling. The BIA denied the motion to reopen as untimely. The petitioners again filed a petition for review with this court, which we consolidated with the pending petition on the merits. On November 15, 2006, we denied in part, dismissed in part, and granted in part the consolidated petition for review. In relevant part, we held that the BIA did not abuse its discretion by denying the motion to reopen as untimely, but that it erred by improperly reducing the voluntary departure period from 60 to 30 days. We remanded to the BIA for further proceedings with respect to voluntary departure. Following remand, the BIA on May 3, 2007, issued an order vacating the November 3, 2004 decision insofar as it granted 30 days of voluntary departure and ordered that the petitioners depart within 60 days. The petitioners filed a second motion to reopen with the BIA on June 20, 2007, again urging it to consider the new evidence regarding their youngest son’s disability. In connection with the motion, they requested a stay of their voluntary departure period. The BIA denied the motion to reopen on the basis that it was number-barred. It also concluded that it would not exercise its sua sponte authority to reopen the case, and, finally, that the voluntary departure period would not be stayed. The petition for review of the BIA order is now before us. II. ANALYSIS The denial of a motion to reopen is a final administrative decision subject to review by this court. See Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir.2004). We review questions of law presented by a denial of a motion to reopen de novo. See Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000). We do not have jurisdiction to review the BIA’s decision not to exercise its sua sponte authority to reopen the case. See Toufighi v. Mukasey, 538 F.3d 988, 993 n. 8 (9th Cir.2008). A. The BIA should adequately consider whether petitioner’s motion is number-barred A motion to reopen “is a form of procedural relief that asks" }, { "docid": "22144519", "title": "", "text": "provided by the INS. Aithough Singh may have received poor advice, this does not alter the fact that he failed to appear at his hearing, not because of illness, a death in the family, or some similarly severe impediment, but because he took the word of the consultant over that of the INS. Singh \"cannot complain of an order entered in absentia, ... if [he] `voluntarily choose[s] not to attend a deportation hearing which may affect [him] adversely.\" Sharma v. INS, 89 F.3d 545, 548 (9th Cir.1996) (quoting United States v. Dekerimenjian, 508 F.2d 812, 814 (9th Cir.1974)). V Singh contends that section 1252b does not preclude an untimely reopening where the petitioner seeks asylum. Though a BIA dissenter discussed this very issue in detail, Singh himself raises this claim for the first time on appeal, which constitutes \"a failure to exhaust remedies with respect to that question and deprives this court of jurisdiction to hear the matter.\" Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir.1994) (quoting Vargas v. U.S. Dep't of Immigration & Naturalization, 831 F.2d 906, 907-08 (9th Cir.1987)) (internal quotation marks omitted). Similarly, Singh's res judicata and public policy claims were not raised before the BIA in any fashion and, therefore, may not be reviewed by this court. PETITION DENIED. . Part 242's regulations are no longer in effect, but governed immigration judges' authority to reconsider cases at the time the Seattle IJ reconsidered the Phoenix IJ’s order reopening Singh’s case. . 8 U.S.C. § 1252b was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), § 308(b)(6), Pub.L. No. 104-208, 110 Stat. 3009-546, 3009-615, whose new rules do not apply to aliens such as Singh who were in exclusion or deportation proceedings as of April 1, 1997, see id. § 309(c)(1), 110 Stat. at 3009-625. KOZINSKI, Circuit Judge, dissenting in part: The majority declines to review Singh's claim that 18 U.S.C. § 1252b does not bar asylum petitioners who seek to have their cases reopened, even though a member of the BIA made this very argument in dissent. Maj. op. at" }, { "docid": "22669183", "title": "", "text": "the IJ arguing that his client never intended to give up his right to present his asylum claim, but only withdrew his application because he believed the IJ did not intend to grant asylum. The IJ found Cano had failed to demonstrate prima facie eligibility for the relief sought and denied his motion to reopen. On December 22, 1997, Cano filed before the IJ a motion to reconsider denial of his motion to reopen. Cano’s attorney reported that Cano “withdrew the asylum claim only because he understood that the [IJ] would not grant it,” and was relying on the IJ as “a person of authority ... to help him assess [his] asylum claim.” Cano alleged the IJ denied him due process, contested that he was not allowed to “explain or rebut” material contained in the Guatemala report, and asserted that he could have demonstrated a well-founded fear of persecution. The IJ denied Cano’s motion to reconsider. Cano appealed this decision to the BIA and filed also a motion to reopen with the BIA to seek relief under the Conven tion Against Torture. The BIA affirmed the IJ’s decision, dismissed Cano’s appeal, and denied his motion to reopen. This petition followed. STANDARD OF REVIEW We review the BIA’s denial of motions to reopen or to reconsider for abuse of discretion, “although[de novo] review applies to the BIA’s determination of purely legal questions.” Mejia v. Ashcroft, 298 F.3d 873, 876 (9th Cir.2002); see also Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000) (motion to reopen); Padilla-Agustin v. INS, 21 F.3d 970, 973 (9th Cir.1994), overruled on other grounds by Stone v. INS, 514 U.S. 386, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (motion to reconsider). “We review de novo claims of due process violations in deportation proceedings.” Perez-Lastor v. INS, 208 F.3d 773, 777 (9th Cir.2000) (citation omitted). Review is limited to the BIA’s decision because the BIA reviewed the IJ’s decision de novo. Agyeman v. INS, 296 F.3d 871, 876 (9th Cir.2002). DISCUSSION I Due Process Cano argues that the BIA abused its discretion by failing to address his claim" }, { "docid": "22074506", "title": "", "text": "Opinion by Judge FISHER; Concurrence by Judge BLOCK. ORDER Singh’s petition for rehearing and for rehearing en banc, filed January 12, 2007, is granted in part. The opinion filed November 28, 2006, see Singh v. Gonzales, 469 F.3d 863 (9th Cir.2006), is hereby withdrawn. A superseding opinion and concurrence will be filed concurrently with this order. Further petitions for rehearing or rehearing en banc may be filed. OPINION FISHER, Circuit Judge: Petitioner Dalip Singh is a 42-year-old native and citizen of India. After an Immigration Judge (IJ) denied Singh’s asylum claim, Singh timely appealed the IJ’s adverse decision to the Board of Immigration Appeals (BIA). On October 7, 2003, the BIA issued its decision denying Singh’s appeal in an order affirming the IJ without an opinion. Singh and his attorney of record, Kuldip Dhariwal, swear they did not receive notice of the decision. The BIA contends, however, that it sent the decision by regular mail to Singh’s counsel, whose correct address appears on the decision’s transmittal cover sheet; the BIA acknowledges that the decision was not sent to Singh himself. Singh contends that neither he nor his attorney learned of the BIA’s October 2003 decision until February 2004, well after the time for Singh to file an appeal with this court had lapsed. See 8 U.S.C. § 1252(b)(1) (30-day time limit for filing petitions for judicial review); Caruncho v. INS, 68 F.3d 356, 359 (9th Cir.1995) (statutory time limit is mandatory and jurisdictional); see also Stone v. INS, 514 U.S. 386, 394-95, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (statutory time limit is not tolled by the filing of a motion to reopen or reconsider). On February 23, Dhariwal received a “bag and baggage order” from the Immigration and Naturalization Service, directing Singh to appear for removal on March 2, 2004. After Dhariwal phoned the BIA and was informed about its October 2003 denial of Singh’s appeal, he promptly filed a motion to reopen with the BIA, requesting that it reissue its decision so Singh could timely appeal to this court. Both Dhariwal and Singh attached affidavits to the motion" }, { "docid": "22197099", "title": "", "text": "September 7, 2001. On November 8, 1999, the IJ denied Prado’s application for suspension of deportation on the ground that she had not shown the requisite level of hardship to herself or her U.S. citizen children. Prado filed a pro se appeal, allegedly prepared by Ms. Rodriguez. On January 8, 2003, the BIA affirmed the denial of suspension of deportation without an opinion. The BIA. denied Prado’s subsequent pro se motion to reconsider on the merits on July 16, 2003. On October 14, 2003, almost four years after Hernandez’s appeal was dismissed and ten months after Prado’s appeal was dismissed, petitioners, now represented by current counsel, filed a motion to reopen. They argued that they were denied due process and are entitled to have their de portation proceedings reopened because of the deficient assistance they received from Ms. Rodriguez. On April 28, 2004, the BIA denied their motion, and petitioners timely filed this petition for review. II. STANDARD OF REVIEW This court reviews the BIA’s ruling on a motion to reopen for abuse of discretion. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.2008). Questions of law, as well as claims of due process violations, are reviewed de novo. Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir.2000). III. ANALYSIS Petitioners claim their deportation proceedings warrant reopening because their due process rights were violated by the deficient assistance of an immigration consultant. They assert an ineffective assistance of counsel claim even though they concede they did not retain counsel. The BIA found that petitioners could not base such a claim on the deficient advice of a non-attorney, relying on our decision in Singh-Bhathal v. INS 170 F.3d 943 (9th Cir.1999). In Singh-Bhathal, we held that reliance on the mistaken advice of a non-attorney immigration consultant was insufficient to demonstrate the “exceptional circumstances” necessary for reopening an in absentia deportation order. Id. at 946-47. “Ineffective assistance of counsel in a deportation proceeding is a denial of due process under the Fifth Amendment if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Lopez v." }, { "docid": "22760423", "title": "", "text": "hearing....” 8 C.F.R. § 1003.2(c)(1). The BIA did not abuse its discretion when it declined to reopen proceedings because Membreno presented no new facts in her motion to reopen. DISMISSED in part and DENIED in part. . We adopt much of our factual statement and procedural history from the summary set forth in the earlier three-judge panel opinion at Membreno v. Ashcroft, 385 F.3d 1245, 1246-47 (9th Cir.) (per curiam), withdrawn by 388 F.3d 738 (9th Cir.2004). . The Department of Justice transferred the functions of the Immigration and Naturalization Service to the Department of Homeland Security in March 2003. See Homeland Security Act of 2002, Pub.L. No. 107-296, § 471, 116 Stat. 2135, 2205 (codified at 6 U.S.C. § 291) (2002). For convenience, we refer to the INS throughout rather than the Department of Homeland Security. . Because the BIA summarily affirmed the IJ’s decision we review the IJ's decision as if it were the BIA's decision. Thomas v. Gonzales, 409 F.3d 1177, 1182 (9th Cir.2005) (en banc). . Our case law recognizes two exceptions to this rule, but Membreno does not claim, and cannot claim, that either exception applies here. See Singh, 315 F.3d at 1188 (noting that court of appeals can assert jurisdiction over untimely petitions for review where alien was officially misled as to time in which to file notice of appeal or where BIA failed to comply with certain federal regulations requiring the mailing of its decision to the petitioner's (or his counsel’s) address of record). . We cannot here grant relief on the petition for review by construing Membreno's motion to reopen instead as a motion to reconsider. See Mohammed v. Gonzales, 400 F.3d 785, 792 (9th Cir.2005) (affirming the BIA’s decision to construe a motion to reconsider as a motion to reopen when the motion alleged new facts rather than legal error). A motion to reconsider must be filed \"within 30 days after the mailing of the Board decision,” 8 C.F.R. § 1003.2(b)(2), and Membreno's motion was filed nearly 90 days after the initial decision. Furthermore, a motion to reconsider \"shall state the" }, { "docid": "22652007", "title": "", "text": "OPINION SCHROEDER, Chief Judge. This is a highly unusual case. The appellant, Ranjit Singh, a native and citizen of India, unlawfully entered the United States in July 1990. He has diligently pursued his efforts to obtain lawful permanent residence status on the basis of his marriage. He appeared for five deportation hearings between October 1995 and October 1997, which were all continued. Several other hearings were continued upon his request until his wife could obtain citizenship. Finally, after his wife had become a naturalized United States citizen, and he became facially eligible for the status adjustment, he drove several hours with his wife and newborn baby to attend a deportation hearing on January 21, 1998 at 1:00 p.m., only to discover that the hearing had been scheduled for 11:00 a.m. and that he had been ordered deported in absentia. On the record before us, it appears Singh is eligible for adjustment of status as the spouse of a U.S. citizen and the beneficiary of an immediate relative immigrant petition approved by the INS. 8 U.S.C. § 1255(a) (2002). Indeed, the INS commendably conceded at oral argument that apart from a few formalities that needed to be carried out, if the hearing had been held, Singh would not have been ordered deported. The IJ, however, denied Singh’s motion to reopen and rescind the deportation order. The BIA denied his appeal with a conclusory statement that there were not exceptional circumstances as required by 8 U.S.C. § 1252b(c)(3)(A) (1994). He appeals the BIA’s decision claiming that his is the exceptional case, and we agree. We review the BIA’s decision for abuse of discretion. Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996). We will reverse the BIA’s denial of a motion to reopen if it is “arbitrary, irrational, or contrary to law.” Ahwazi v. INS, 751 F.2d 1120, 1122 (9th Cir.1985). A petitioner is entitled to reeission of a deportation order issued in absentia by filing a motion to reopen within 180 days of the date of the order of removal and by demonstrating that “exceptional circumstances” were the cause of the" }, { "docid": "22144520", "title": "", "text": "Naturalization, 831 F.2d 906, 907-08 (9th Cir.1987)) (internal quotation marks omitted). Similarly, Singh's res judicata and public policy claims were not raised before the BIA in any fashion and, therefore, may not be reviewed by this court. PETITION DENIED. . Part 242's regulations are no longer in effect, but governed immigration judges' authority to reconsider cases at the time the Seattle IJ reconsidered the Phoenix IJ’s order reopening Singh’s case. . 8 U.S.C. § 1252b was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), § 308(b)(6), Pub.L. No. 104-208, 110 Stat. 3009-546, 3009-615, whose new rules do not apply to aliens such as Singh who were in exclusion or deportation proceedings as of April 1, 1997, see id. § 309(c)(1), 110 Stat. at 3009-625. KOZINSKI, Circuit Judge, dissenting in part: The majority declines to review Singh's claim that 18 U.S.C. § 1252b does not bar asylum petitioners who seek to have their cases reopened, even though a member of the BIA made this very argument in dissent. Maj. op. at 946-947. In so doing, my colleagues take the requirement of administrative exhaustion beyond all reasonable bounds and foreclose judicial review of issues the agency had an opportunity to consider. The majority relies on Rashtabadi v. INS, 23 F.3d 1562 (9th Cir.1994), a case that is easily distinguishable. In Rashtabadi, neither the petitioner nor anyone else raised certain arguments before the BIA. In holding that we lacked jurisdiction to consider those arguments, we explained our rationale as follows: Rashtabadi's allegations of due process violations are exactly the sorts of procedural errors which require exhaustion. Given the opportunity, the BIA could have corrected any of the alleged procedural errors. Thus, since Rashtabadi did not present his arguments to the BIA, we have no jurisdiction to resolve them. Id. at 1567 (emphasis added) (citations omitted). Here, the BIA could well have \"corrected any of the alleged procedural errors\" simply by adopting the views expressed by the dissent. Rashtabacli reflects the standard rationale for requiring exhaustion, which is to ensure that agencies are given first opportunity to rule on" }, { "docid": "22669184", "title": "", "text": "relief under the Conven tion Against Torture. The BIA affirmed the IJ’s decision, dismissed Cano’s appeal, and denied his motion to reopen. This petition followed. STANDARD OF REVIEW We review the BIA’s denial of motions to reopen or to reconsider for abuse of discretion, “although[de novo] review applies to the BIA’s determination of purely legal questions.” Mejia v. Ashcroft, 298 F.3d 873, 876 (9th Cir.2002); see also Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000) (motion to reopen); Padilla-Agustin v. INS, 21 F.3d 970, 973 (9th Cir.1994), overruled on other grounds by Stone v. INS, 514 U.S. 386, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (motion to reconsider). “We review de novo claims of due process violations in deportation proceedings.” Perez-Lastor v. INS, 208 F.3d 773, 777 (9th Cir.2000) (citation omitted). Review is limited to the BIA’s decision because the BIA reviewed the IJ’s decision de novo. Agyeman v. INS, 296 F.3d 871, 876 (9th Cir.2002). DISCUSSION I Due Process Cano argues that the BIA abused its discretion by failing to address his claim that the IJ denied him a meaningful opportunity to present his ease. The BIA concluded the IJ did not err in denying Cano’s motion to reconsider because Cano chose to proceed without an attorney, was presented with options regarding whether to present his asylum application, and voluntarily elected to withdraw his application. We will not disturb the BIA’s decision unless it acted “arbitrarily, irrationally, or contrary to law.” Singh, 213 F.3d at 1052. Here, the IJ did not provide Cano “a full and fair hearing of his claims and a reasonable opportunity to present evidence on his behalf,” as required by the Fifth Amendment’s guarantee of due process in deportation proceedings. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). Complicating review in this case is the IJ’s decision to go off the record to tell Cano before he had the opportunity to present oral testimony or documents in support of his application that he had no basis for an asylum claim. We know only that at some time during the recess the IJ explained" }, { "docid": "22696616", "title": "", "text": "of removal” may be transferred to this Court. As Singh stated in his motion to reopen, the basis of his motion was the ineffective assistance of counsel that occurred during the administrative proceedings. It is thus clear that Singh’s motion to reopen is a challenge to the final order of removal. Accordingly, Singh’s habeas petition falls within the scope of RIDA’s transfer provision, and we construe the habeas petition as a timely filed petition for review. See Alvarez-Barajas, 418 F.3d at 1053. This changes the decision we review, and we now review the BIA’s decision, not the district court order. Id. In Fernandez v. Gonzales, we explained that this Court lacks jurisdiction over the BIA’s “denial of a motion to reopen that pertains only to the merits basis for a previously-made discretionary determination under [8 U.S.C. § 1252(a)(2)(B)®].” 439 F.3d 592, 603 (9th Cir.2006). Here, we have jurisdiction over the BIA’s denial of Singh’s motion to reopen because the proceedings below did not involve any of the enumerated provisions in § 1252(a)(2)(B)(I). See Ray v. Gonzales, 439 F.3d 582, 588-90 (9th Cir.2006) (exercising jurisdiction and finding that the petitioner was entitled to equitable tolling of the deadlines and numerical restrictions for the motion to reopen because he acted with appropriate diligence in discovering the deficient representation); Iturribarria v. INS, 321 F.3d 889, 897-99 (9th Cir.2003) (exercising jurisdiction over a claim of entitlement to equitable tolling and the particular issue of due diligence). We therefore conclude that we have jurisdiction over Singh’s habeas petition because it was a challenge to an order of removal “pending” in the district court at the time of enactment of the REAL ID Act and therefore falls within the scope of RIDA’s transfer provision. III. STANDARD OF REVIEW We review the BIA’s ruling on a motion to reopen for abuse of discretion. Nath v. Gonzales, 467 F.3d 1185, 1187 (9th Cir.2006). We review purely legal questions, such as due process claims, de novo. Itiurribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). IV. DISCUSSION Singh contends that the BIA erred in denying his motion to reopen" }, { "docid": "22074507", "title": "", "text": "not sent to Singh himself. Singh contends that neither he nor his attorney learned of the BIA’s October 2003 decision until February 2004, well after the time for Singh to file an appeal with this court had lapsed. See 8 U.S.C. § 1252(b)(1) (30-day time limit for filing petitions for judicial review); Caruncho v. INS, 68 F.3d 356, 359 (9th Cir.1995) (statutory time limit is mandatory and jurisdictional); see also Stone v. INS, 514 U.S. 386, 394-95, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (statutory time limit is not tolled by the filing of a motion to reopen or reconsider). On February 23, Dhariwal received a “bag and baggage order” from the Immigration and Naturalization Service, directing Singh to appear for removal on March 2, 2004. After Dhariwal phoned the BIA and was informed about its October 2003 denial of Singh’s appeal, he promptly filed a motion to reopen with the BIA, requesting that it reissue its decision so Singh could timely appeal to this court. Both Dhariwal and Singh attached affidavits to the motion to reopen, swearing under penalty of perjury that neither had received the Board’s earlier decision. The BIA denied Singh’s motion on April 28, 2004, stating, in full: “The respondent has filed a motion to reissue the Board’s October 7, 2003, decision. The motion is denied, as the record reflects that the respondent’s decision was correctly mailed to the respondent’s attorney of record.” Singh now petitions for review of the Board’s denial of his motion to reopen. Singh’s affidavits of nonreceipt suggest that the decision may never have been mailed. If true, that would violate 8 C.F.R. § 1003.1(f), which requires that the BIA serve a copy of its decision on the affected alien. The BIA stated that the decision “was correctly mailed” to Singh’s attorney, but provided no explanation of how it reached this conclusion. “[T]he BIA is obligated to consider and address in its entirety the evidence submitted by a petitioner,” and where its failure to do so could have affected its decision, remand is appropriate. Mohammed v. Gonzales, 400 F.3d 785, 793 (9th" }, { "docid": "22642783", "title": "", "text": "supported her application with a counterfeit United Kingdom passport number and another individual’s valid nonimmigration visa. After providing information to immigration authorities about the individuals from whom Mrs. He received the fraudulent documents, Mrs. He was released. Eventually, however, she was served with a Notice to Appear on March 4,1999. An immigration judge then consolidated the Hes’ separate requests for asylum and withholding of removal and designated Mr. He as the principal asylum applicant. The merits of the Hes’ immigration proceedings were given priority because Mrs. He was pregnant with her second child. The immigration judge found that the Hes had not established a well-founded fear of future persecution and denied the Hes’ applications for asylum and withholding of removal. The BIA dismissed the Hes’ separate appeals in a consolidated decision on August 23, 2001, and we denied their petition for review on May 29, 2002. While their initial petition for review was pending on appeal to our court, the Hes filed their first motion to reopen with the BIA on January 16, 2002, seeking protection from removal pursuant to the Convention Against Torture. The BIA denied the motion as untimely on February 13, 2002. On June 30, 2005, the Hes filed a second motion to reopen with the BIA, alleging that they would be subject to forced sterilization if returned to the PRC following the birth of their second U.S.born child in December 2004. The BIA denied the motion as time and number barred, and the Hes filed another timely petition for review challenging this last denial. II A We review for abuse of discretion the BIA’s denial of a motion to reopen. See Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir.2004). The decision of the BIA should be left undisturbed unless it is “arbitrary, irrational, or contrary to law.” Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (internal quotation marks omitted). B Typically, petitioners are limited to filing one motion to reopen within ninety days of the date of a final order of removal. See 8 C.F.R. § 1003.2(c)(2). The Hes do not dispute that they" }, { "docid": "10203972", "title": "", "text": "March 1996 hearing. The immigration judge denied that motion in November 2006. The Board of Immigration Appeals (“BIA”) affirmed that denial in January 2007. Singh timely filed a petition for review and a motion to stay .deportation in the Ninth Circuit. The Ninth Circuit immediately granted Singh a stay of deportation. Nevertheless, the government deported Singh to India several hours later. The government conceded that Singh’s removal was improper given the Ninth Circuit’s stay. Consequently, in May 2007, Singh was temporarily paroled back into the United States by the Attorney General, who exercised his discretion to grant temporary-parole to certain aliens. See 8 U.S.C. § 1182(d)(5)(A). ' After Singh’s return, Kaur filed another Form 1-130 Petition, this time with the USCIS, on Singh’s behalf. The USCIS eventually approved Kaur’s petition on May 6, 2009. Accompanying Kaur’s 1-130 filing was Singh’s petition to the USCIS for adjustment of his status. This petition raised legal issues at the heart of this case. As discussed infra', if Singh’s depor tation proceedings remained ongoing, then the immigration court—the BIA—had exclusive jurisdiction over his petition and the USCIS had no power to act on it. On April 6,2009, the USCIS dismissed Singh’s application for lack of jurisdiction stating that “jurisdiction of [his] application and case in general[] still remains with the Immigration Court” and, therefore, that the USCIS did not have authority to grant the relief Singh requested. Singh filed a motion for reconsideration, arguing that the USCIS had jurisdiction over-his application for adjustment of status because his deportation proceedings had terminated when he was removed from the country in February 2007. ; While Singh’s motion for reconsideration was pending with 'the USCIS, the Ninth Circuit denied Singh’s petition' for review of the January 2007 BIA decision affirming the immigration judge’s denial of'Singh’s motion to reopen his deportation proceedings. Singh v. Holder, 483 Fed.Appx. 350 (9th Cir. 2012). The Ninth Circuit rejected Singh’s argument that his 2007 removal terminated his deportation proceedings. On August 8, 2013, the USCIS’s Acting District Director for New York denied Singh’s motion to reconsider the USCIS’s April 6, 2009 decision" }, { "docid": "23248720", "title": "", "text": "asylum and for withholding of removal. Singh’s first claim is that the “legal representative” of Lawyer 1 made material changes to Singh’s asylum application without his consent in order to present a stronger claim for relief. B. Lawyer 2: Removal Proceeding, Motion to Reopen, and First Petition for Review Singh retained a different lawyer (“Lawyer 2”) to represent him at the removal proceeding. The IJ denied Singh asylum and withholding of removal, but granted voluntary departure. Singh, through Law yer 2, filed a timely appeal of the IJ’s decision with the BIA, which affirmed the IJ’s decision and issued a final order of removal on October 3, 2001. On December 13, 2001, after missing the 30-day deadline for filing a petition for review with this court, Lawyer 2 filed a timely motion to reopen with the BIA, stating that neither he nor Singh had received the BIA’s decision. Singh’s motion to reopen requested that the BIA reissue its decision with a later date so that Singh could file a timely petition for review. On the same day, Lawyer 2 also filed a late petition for review with this court. We denied Singh’s petition for review on the basis that the court lacked jurisdiction due to the untimeliness of the petition. Singh v. INS, No. 01-71878 (9th Cir., Feb. 15, 2002). Singh’s second claim is that Lawyer 2 was incompetent in failing to file a timely petition for review with this court. C. Lawyer 3: Second and Third Petitions for Review and Untimely Motion to Reopen/Reconsider with the BIA On April 22, 2002, the BIA concluded that there was no evidence of mailing error and denied the motion to reopen filed by Lawyer 2. Singh’s new lawyer (“Lawyer 3”) appealed the BIA’s denial of the motion to reopen in a second petition for review. In this petition, Lawyer 3 argued that Lawyer 2 provided Singh ineffective assistance by failing to file a timely petition for review of the final order of removal. We denied the petition for review, holding that the BIA did not abuse its discretion in denying the motion" }, { "docid": "23358625", "title": "", "text": "On January 29, 1997, the BIA affirmed an immigration judge’s denial of Petitioner Arman Singh’s asylum application. Mr. Singh, a citizen and native of India, then filed a petition for review with this court but withdrew it on May 9, 1997 after we refused to grant a stay of deportation while his appeal was pending. In April 1997, while his case was still pending, Mr. Singh married Petitioner Skye Singh, a U.S. citizen. A few months later, Mrs. Singh filed an 1-30 visa petition for her husband. On September 29, 1997, after the INS approved the petition, Mr. Singh requested the INS join in his motion to reopen his deportation proceedings to apply for adjustment of status. The following year, in November 1998, the INS declined to jointly file his motion to reopen, arresting Mr. Singh two days later but releasing him on his own recognizance. Subsequently, the INS placed Mr. Singh on supervised release and ordered that he deport himself by January 25,1999. 3. Petitioners Lucia Fierro and Richard Schull After being denied asylum by INS asylum officers, Petitioner Lucia Fierro, a citizen and native of Mexico, was placed in deportation proceedings. On November 15, 1996, because Ms. Fierro failed to appear for her deportation hearing, an immigration judge entered an in absentia deportation order. After Ms. Fierro failed to appeal the order, it became final, and on November 23, 1996, the INS issued a warrant of deportation. Subsequently, in October 1997, she married Petitioner Richard Schull, a U.S. citizen, who filed an 1-30 visa petition for her. In November 1998, the INS approved the petition. Around that time, the couple also had their first child. The following February, Ms. Fierro filed a motion to reopen with the immigration court, requesting the INS join in her motion. The INS declined to do so. 15. Legal and Procedural Background Under 8 C.F.R. § 3.2(c)(2), an alien may file a motion to reopen before either the BIA or the immigration judge on or before September 30, 1996, or no later than ninety days after entry of the final administrative decision, whichever" }, { "docid": "22394839", "title": "", "text": "Torrez. According to Andia’s testimony, she did not discover the deportation orders until August, 1996, when she contacted her “immigration consultant” regarding the status of her asylum application. On March 5, 1997, Andia filed a motion to reopen her and her son’s cases, seeking recision of the deportation orders and relief in the form of suspension of deportation and adjustment of status. Petitioners argued that they had not received notice of the hearing, and that the immigration court should therefore reopen their case pursuant to Section 242B(c)(3)(B) of the Immigration and Naturalization Act (the “Act” or “INA”), 8 U.S.C. § 1252b(c)(3)(B). The Immigration Judge (IJ) denied this motion, in part because petitioners had not explained the seven-month delay between discovering the deportation order and filing the motion to reopen. Petitioners appealed this decision to the BIA, which held that the Immigration Judge acted within his discretion by denying the motion to reopen because petitioners did not file that motion for seven months. Petitioners now appeal the BIA’s decision. II We review a denial of a motion to reopen under an abuse of discretion standard, Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000), and can overturn the BIA’s ruling if the BIA acted “arbitrarily, irrationally, or contrary to law.” Id. The BIA acts “arbitrarily” and “contrary to law” if it fails to apply and follow its own prior decisions. Pazcoguin v. Radcliffe, 292 F.3d 1209, 1215 (9th Cir.2002). In reviewing the decision of the BIA, we consider only the grounds relied upon by that agency. If we conclude that the BIA’s decision cannot be sustained upon its reasoning, we must remand to allow the agency to decide any issues remaining in the case. INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002). The statutory and regulatory provisions governing notice of deportation proceedings applicable to this case are those in effect in 1995, when the INS served the OSCs on petitioners. See Lahmidi v. INS, 149 F.3d 1011, 1014 (9th Cir.1998) (holding that both the order to show cause and the notice of hearing must have" }, { "docid": "10203973", "title": "", "text": "exclusive jurisdiction over his petition and the USCIS had no power to act on it. On April 6,2009, the USCIS dismissed Singh’s application for lack of jurisdiction stating that “jurisdiction of [his] application and case in general[] still remains with the Immigration Court” and, therefore, that the USCIS did not have authority to grant the relief Singh requested. Singh filed a motion for reconsideration, arguing that the USCIS had jurisdiction over-his application for adjustment of status because his deportation proceedings had terminated when he was removed from the country in February 2007. ; While Singh’s motion for reconsideration was pending with 'the USCIS, the Ninth Circuit denied Singh’s petition' for review of the January 2007 BIA decision affirming the immigration judge’s denial of'Singh’s motion to reopen his deportation proceedings. Singh v. Holder, 483 Fed.Appx. 350 (9th Cir. 2012). The Ninth Circuit rejected Singh’s argument that his 2007 removal terminated his deportation proceedings. On August 8, 2013, the USCIS’s Acting District Director for New York denied Singh’s motion to reconsider the USCIS’s April 6, 2009 decision dismissing Singh’s application for adjustment of status. The August 8 decision noted the Ninth Circuit’s dismissal of Singh’s petition for review and found that the “USCÍS still does not have jurisdiction over [Singh’s] application” because he was “under an order of deportation.” After that denial, Singh moved the BIA to reopen the deportation proceedings to allow adjustment of his status to that of a lawful permanent resident based on his marriage, to Kaur.-Singh argued that he. was entitled to this adjustment following the USCIS’s May 6, 2009 approval of the Form 1-130 that Kaur filed on his behalf. The BIA denied Singh’s motion to reopen on December 3,2013. On December 26, 2013, Singh filed another petition for review in the Ninth Circuit, ‘ challenging the BIA’s 2013 denial of the motion to reopen. He also moved for a stay of removal pending disposition of the petition, which was granted. See Singh v. Holder, No. 13-74456 (9th Cir. Mar. 21, 2014). On June 3, 2015, the government requested that the Ninth Circuit summarily reject Singh’s petition." } ]

[ { "docid": "22617252", "title": "", "text": "procedural regulations, and that it was a denial of equal protection of the laws and cruel and unusual punishment to impose a more severe sentence on him than on the other two inmates involved in the incident, since he had confessed to drinking and they had not. As the Court of Appeals noted: “The Supreme Court has delineated the standard to be applied in determining whether a prisoner has been afforded his minimum due process rights. Wolff v. McDonnell, 418 U. S. 539 . . . (1974). The prisoner is entitled to (1) advance written notice of the charges against him or her; (2) an opportunity to call witnesses and present documentary evidence, provided that to do so will not jeopardize institutional safety or correctional goals, before a sufficiently impartial hearing board; (3) a written statement by the fact finder of ‘the evidence relied upon and reasons for the disciplinary action taken.’ ” The Court reaffirmed the principles of Haines in Estelle v. Gamble, 429 U. S. 97, 106 (1976): “As the Court unanimously held in Haines v. Kerner, 404 U. S. 519 (1972), a pro se complaint, ‘however inartfully pleaded/ must be held to ‘less stringent standards than formal pleadings drafted by lawyers’ and can only be dismissed for failure to state a claim if it appears ‘“beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” ’ Id., at 520-521, quoting Conley v. Gibson, 355 U. S. 41, 45-46 (1957).” In a document entitled, “Response to: Motion to Dismiss or For Sum mary Judgment/& Memorandum in Support of Motion to Dismiss or For Summary Judgment,” petitioner alleged: “Placement in Segregation: Plaintiff was placed in Segregation on September 20, 1977, with no hearing what-so-ever. No reasons provided him as to why it was necessary to place him in segregation. No Resident Information Report issued him, stating he was being placed in segregation, under investigation status.” Response, at 2 (emphasis in original). Petitioner thereafter asserted that “[classification to segregation must comply with procedural due process.” Id., at 4," } ]

[ { "docid": "12133539", "title": "", "text": "a prison in Kansas; (2) appellant lacked standing to assert claims for relief on behalf of other prisoners; (3) prison officials could open and inspect non-privileged prisoner mail for contraband; (4) because delivery of appellant’s mail had been delayed for only two days, the delay was not unreasonable; and (5) prison officials lawfully confiscated the Temple memorandum because it contained inflammatory material that threatened institutional security and the safety of employees and prisoners. This pro se appeal followed. In evaluating á motion to dismiss for failure to state a claim upon which relief could be granted under Fed.R.Civ.P. 12(b)(6), a pro se complaint must be liberally construed and a court should not dismiss the complaint “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his [or her] claim which would entitle him [or her] to relief.” Holloway v. Lockhart, 792 F.2d 760, 761-62 (8th Cir.1986), citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); see, e.g., Moore v. Clarke, 821 F.2d 518, 519 (8th Cir.1987), citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972) (per curiam). The court must presume that the factual allegations in the complaint are true and accord all reasonable inferences from those facts to the party opposing the motion to dismiss. Holloway v. Lockhart, 792 F.2d at 762. Although courts are reluctant to interfere with prison administration, allegations of deprivation of first amendment rights must be scrutinized carefully, and even conclusory allegations of constitutional violations may be held sufficient as a matter of pleading to call for the offering of supporting evidence. See Carpenter v. South Dakota, 536 F.2d 759, 763 (8th Cir.1976), cert, denied, 431 U.S. 931, 97 S.Ct. 2636, 53 L;Ed.2d 246 (1977); see also Moore v. Clarke, 821 F.2d at 519 (racial discrimination). Censorship of prisoner mail is constitutionally justified if (1) the regulation or practice furthers “an important or substantial governmental interest unrelated to the suppression of expression,” such as institutional security, and (2) “the limitation of First Amendment freedoms" }, { "docid": "11285124", "title": "", "text": "complaint, arguing that this court lacks subject matter jurisdiction under Rule 12(b)(1) and that plaintiffs complaint fails to state a claim upon which relief can be granted under Rule 12(b)(6). On this motion to dismiss, the court accepts the allegations in the plaintiffs pro se complaint as true for purposes of this motion. Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964). The pro se complaint is to be “liberally construed”, Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), held to “less stringent standards than formal pleadings drafted by lawyers”, and can only be dismissed for failure to state a claim if it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. at 520-521, 92 S.Ct. at 595-596, quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). Even taking all of the plaintiffs allegations as true and liberally construing his complaint, the plaintiff has failed to state a claim for violations of 42 U.S.C. §§ 1983, 1985(3) and 1986. Accordingly, the plaintiffs complaint must be dismissed. The allegations in the complaint are as follows: the plaintiff was scheduled for a dental appointment on June 13, 1994 with the Woodbourne Dental Clinic. On June 13, his appointment was cancelled and rescheduled for July 6, 1994. When the plaintiff inquired as to why his appointment was rescheduled, he was informed by defendant Corrections Officer Austin that it was rescheduled because he was currently in “keeploek.” The plaintiff was not satisfied with the response to his inquiry and filed a grievance against defendant Austin with the Woodbourne Grievance Office. Defendant Dr. Green, the director of the dental clinic at Woodbourne, responded to plaintiffs grievance by submitting a memorandum to the Woodbourne Grievance Office explaining that, on June 13, 1994, plaintiffs appointment, which was a routine follow-up to his regular dental care, was rescheduled due to several dental emergencies which required immediate emergency attention. On June 29, 1994, a hearing was held in" }, { "docid": "22326672", "title": "", "text": "Cir.1982); cf. 28 U.S.C. § 1915(d) (1982) (when a plaintiff has moved to proceed in forma pauperis, the court may sua sponte dismiss the action if it is “satisfied that the action is frivolous”). The court must bear in mind, however, the well established rules that the complaint of a pro se litigant should be liberally construed in his favor, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972) (per curiam), that his allegations must be taken as true in considering whether a claim is stated, Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964) (per curiam), and that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Dioguardi v. Durning, 139 F.2d 774 (2d Cir.1944). In light of these principles, this Court has repeatedly cautioned against sua sponte dismissals of pro se civil rights complaints prior to requiring the defendants to answer. See, e.g., Bayron v. Trudeau, 702 F.2d 43, 45 (2d Cir.1983); Fries v. Barnes, 618 F.2d 988, 989 (2d Cir.1980) (citing cases). In the present case, there is no doubt that Salahuddin’s complaint fails to comply with Rule 8’s “short and plain statement” requirement. It spans 15 single-spaced pages and contains explicit descriptions of 20-odd defendants, their official positions, and their roles in the alleged denials of Salahuddin’s rights; it contains a surfeit of detail. In light of the length and detail, the district court was within the bounds of discretion to strike or dismiss the complaint for noncompliance with Rule 8. Despite its length, however, Salahuddin’s complaint is neither vague nor incomprehensible, and it clearly pleads at least some claims that cannot be termed frivolous on their face. For example, he asserts that certain of the defendants combined and conspired to deprive him of due process at certain prison disciplinary hearings by, inter" }, { "docid": "6767772", "title": "", "text": "OPINION ROBERT HOLMES BELL, District Judge. This is a civil rights action brought by three state prisoners pursuant to 42 U.S.C. § 1983. Plaintiffs' pro se complaint arises out of an incident that transpired at the Ionia Maximum Correctional Facility (IMCF). Defendants are three officials of IMCF, the Warden of IMCF, and the Director of the Department of Corrections. Plaintiffs allege that defendants violated plaintiffs’ constitutional rights by intercepting, censoring, and confiscating legal materials sent by two of the plaintiffs to the third. Prison officials confiscated the materials because plaintiffs had no “jailhouse lawyer” agreement. Plaintiffs desire $100,000 in damages for the mental anguish and emotional distress they have experienced. Defendants have filed a motion to dismiss the complaint, Fed.R.Civ.P. 12(b)(6), and plaintiffs have filed a response. Motions to dismiss pro se civil rights complaints must be scrutinized with special care. The role of the federal courts is to protect and vindicate constitutional rights, not to impose stringent pleading requirements on pro se litigants. The Sixth Circuit has summarized the standards this court must apply in ruling upon defendants’ motion to dismiss. [The] court must construe the complaint liberally in plaintiff’s favor and accept as true all factual allegations and permissible inferences therein. Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). Dismissals of complaints filed under the civil rights statutes are scrutinized with special care, Brooks v. Seiter, 779 F.2d 1177, 1180 (6th Cir.1985), and pro se complaints are held to even “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 [92 S.Ct. 594, 596, 30 L.Ed.2d 652] (1972). In the final analysis, a Rule 12(b)(6) motion should not be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 [78 S.Ct. 99, 101-02, 2 L.Ed.2d 80] (1957). Kent v. Johnson, 821 F.2d 1220, 1223-24 (6th Cir.1987). Even applying this liberal standard, the court determines that defendants’ motion to dismiss should be granted. FACTS For purposes of the motion," }, { "docid": "749430", "title": "", "text": "MEMORANDUM OPINION MOTLEY, District Judge. Plaintiff pro se, Eva Chodos, brought this action pursuant to 42 U.S.C. § 1983 to recover monetary damages for alleged violations of her constitutional rights by defendants, the United States of America (the F.B.I.) and the New York City Police Department. Plaintiff filed an initial complaint on February 3, 1981. In lieu of an answer, defendants moved to dismiss the complaint on the grounds that it failed to comply with Fed.R.Civ.P. 8(a), which requires that the complaint contain “a short and plain statement of the claim” and that the court lacked subject matter jurisdiction. Plaintiff responded to the motions by filing an amended complaint. In it, plaintiff alleges that she has been deprived of her constitutional rights as a result of a conspiracy by defendants. Both defendants have moved to dismiss the amended complaint for failure to state a claim and lack of subject matter jurisdiction as well as being barred by the statute of limitations. For the reasons discussed below, defendants’ motions are granted and plaintiff’s complaint is dismissed without leave to amend. FACTS It is well settled that a pro se complaint must be construed liberally and dismissed only if “beyond doubt ... the plaintiff can prove no set of facts which would entitle him to relief.” Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (per curiam), rehearing denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Moreover, on a motion to dismiss for failure to state a claim upon which relief can be granted, the factual allegations of the plaintiff’s complaint must be taken as true. Blassingame v. United States Attorney General, 387 F.Supp. 418 (S.D.N.Y.1975). Plaintiff has filed papers requesting the court append the amended complaint to the original complaint and thus consider both when ruling on defendants’ motions. In an effort to grant plaintiff, who appears pro se, every possible leniency, we have granted her request. As far as can be determined from an examination of both the original" }, { "docid": "937313", "title": "", "text": "the magistrate’s recommendations, and entered judgment following Milhouse’s failure to amend his complaint with respect to defendants Hudson, Jacobson, Divers and Cain. This appeal followed. II. Our review of the sufficiency of appellant’s pro se complaint, “however inartfully pleaded,” is less stringent than that of pleadings prepared by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972). A pro se complaint may be dismissed for failure to state a claim only if it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. at 520-21, 92 S.Ct. at 595-96, quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). See also Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Applying this standard of liberal construction to Milhouse’s pro se complaint, it becomes apparent that the district court erred by dismissing it for failure to state a claim upon which relief can be granted. We read appellant’s complaint as alleging that he was subjected to a conspiratorially planned series of disciplinary actions as retaliation for initiating a civil rights suit against prison officials. Such allegations, if proven at trial, would establish an infringement of Milhouse’s first amendment right of access to the courts. “[Pjersons in prison, like other individuals, have the right to petition the Government for redress of grievances which, of course, includes ‘access of prisoners to the courts for the purpose of presenting their complaints.’ ” Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972), quoting Johnson v. Avery, 393 U.S. 483, 485, 89 S.Ct. 747, 748, 21 L.Ed.2d 718 (1969). See also Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977) (“It is now established beyond doubt that prisoners have a constitutional right of access to the courts.”). The right of access to the courts must be" }, { "docid": "10892164", "title": "", "text": "rules governing pro se complaints, see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972) (pro se complaint held “to less stringent standards than formal pleadings drafted by lawyers”); Williams v. Ward, 556 F.2d 1143, 1151 (2d Cir.) (pro se complaint held to “less stringent standards of pleading”), cert. dismissed, 434 U.S. 944, 98 S.Ct. 469, 54 L.Ed.2d 323 (1977), but it has only been in the past year that courts have extended this principle to form a general standard. Once a pro se litigant has done everything possible to bring his action, he should not be penalized by strict rules which might otherwise apply if he were represented by counsel. See Houston v. Lack, — U.S. -, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (incarcerated pro se petitioner’s notice of appeal considered “filed” at moment of delivery to prison authorities because at that point, petitioner has done all within his power to abide by filing requirements); Toliver v. Sullivan County, 841 F.2d 41 (2d Cir.1988) (if in forma pauperis relief is subsequently granted, pro se complaint deemed “filed” when received by pro se office). We commend the magistrate for recognizing these principles in determining that, because there were conflicting versions as to when the pro se office received the complaint, a summary dismissal without further investigation was inappropriate. Hishon v. Kino & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (a complaint should be summarily dismissed under rule 12(b)(6) “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations”); see Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). This left her with two choices: either (1) she could recommend that the motion be denied because some doubt still existed as to when the complaint actually arrived in the pro se office, see Abdul-Alim Amin v. Universal Life Insurance Co., 706 F.2d 638, 640 (5th Cir.1983) (“[w]hile a statute-of-limitations defense may be raised in a motion to dismiss" }, { "docid": "11285123", "title": "", "text": "OPINION AND ORDER KOELTL, District Judge: Plaintiff Luxley George Malsh, an inmate currently incarcerated at the Woodbourne Correctional Facility (hereinafter Wood-bourne), brought this action against defendants Thomas A. Coughlin III, former Com missioner of the New York State Department of Correctional Services, Robert Han-slmaier, Acting Superintendent of the Wood-bourne Correctional Facility, Sergeant Daniel Reed, Dr. James Green, D.D.S., Dental Director of the dental clinic at Woodbourne, and Corrections Officer Austin. The plaintiff claims that a dental appointment was rescheduled in violation of his federal constitutional rights under the Eighth and Fourteenth Amendments to the United States Constitution and contrary to Directives of the New York State Department of Correctional Services and Woodbourne and that those violations in turn were unlawful under 42 U.S.C. §§ 1983, 1985(3) and 1986. The plaintiff seeks exemplary damages, a declaratory judgement that defendants violated his rights, and injunctive relief barring future postponement of his dental care and retaliation against him. The defendants have moved pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint, arguing that this court lacks subject matter jurisdiction under Rule 12(b)(1) and that plaintiffs complaint fails to state a claim upon which relief can be granted under Rule 12(b)(6). On this motion to dismiss, the court accepts the allegations in the plaintiffs pro se complaint as true for purposes of this motion. Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964). The pro se complaint is to be “liberally construed”, Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), held to “less stringent standards than formal pleadings drafted by lawyers”, and can only be dismissed for failure to state a claim if it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. at 520-521, 92 S.Ct. at 595-596, quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). Even taking all of the plaintiffs allegations as true and liberally construing his complaint, the plaintiff has" }, { "docid": "22840508", "title": "", "text": "supra, 398 U.S. at 152, 90 S.Ct. at 1605. Moreover, a cause of action can be stated under 42 U.S.C. § 1985(3) (1976), even in the absence of state action, if it is alleged that the defendants conspired for the purpose of violating plaintiff’s right to equal protection of the laws. Griffin v. Breckenridge, 403 U.S. 88, 103-04, 91 S.Ct. 1790, 1798-1799, 29 L.Ed.2d 338 (1971). Of course, Talley’s pro se complaint is to be liberally construed, and should be dismissed for failure to state a claim only if it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-596, 30 L.Ed.2d 652 (1972) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)). But even under the generous standard of Haines, conclusory allegations unsupported by any factual assertions will not withstand a motion to dismiss. Here, Talley’s sole allegation of conspiracy against the 15 named defendants is contained in the following omnibus paragraph: That all defendants mentioned above and there [sic] agents, acted under color of state law and their private capacity, knowingly and wilfully, conspired together, with the malicious intent and purpose of depriving convicted accused and or Negro citizen and or convicted felon and or incarcerated client of Due process, Effective Assistance of councel [sic], and Equal Protection of the Laws and Privileges of United States, to-wit without plaintiff’s consent or knowledge. This recitation of legal conclusions is wholly devoid of facts upon which a claim for relief can be based. Since Talley’s complaint does not set forth any facts suggesting a conspiracy between state officials and the private defendants, it fails to state a § 1983 claim. And since there are no allegations of specific facts suggesting a racial or other invidiously discriminatory animus behind the private defendants’ alleged conspiracy, the complaint similarly fails to state a claim under § 1985(3). Our conclusion goes not to artlessness which, of course, may be forgiven in such pro" }, { "docid": "13187265", "title": "", "text": "right to service of the complaint and will not defend this appeal.” We are again constrained to repeat that we strongly disfavor sua sponte dismissals of pro se prisoner petitions before service of process and the filing of a response by the state. E.g., Bayron v. Trudeau, 702 F.2d 43, 45 (2d Cir.1983). A prisoner’s pro se complaint may be dismissed only if it appears that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Id.; Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). Accepting as true the allegations in the complaint, as we must at this stage, Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964), and affording the complaint the required liberal construction, Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), Massop’s claim is that a prison guard, DeLisle, deliberately inflicted injury upon him. It is well-settled in this Circuit that such a claim may state a cause of action under 42 U.S.C. § 1983, depending upon the “need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). Liberally construed, Massop’s complaint alleges that the force was deliberate, gratuitous, and excessive. These allegations are certainly sufficient to withstand dismissal as to defendant DeLisle. Hodges v. Stanley, 712 F.2d 34, 36 (2d Cir.1983). We take no position as to defendants Coughlin and LeFevre, believing it wiser to leave determination of the validity of Massop’s claim against them to the district court, upon answer by the state. We do point out that in appropriate circumstances even a merely negligent act may give rise to a cause of action under section 1983. See Parratt" }, { "docid": "8722307", "title": "", "text": "pauperis be granted and that his complaint be summarily dismissed as frivolous for attempting to retry the state court malpractice litigation under the auspices of section 1983. The district court dismissed the action without prejudice and denied leave to appeal in forma pauperis. This court granted the motion to appeal in forma pauperis. II. 28 U.S.C. § 1915(a) (1982) allows a person, unable to afford the cost of litigation, to commence an action in federal court without the prepayment of fees. The court, however, has a special measure of control to ensure this privilege is not abused; 28 U.S.C. § 1915(d) provides that in forma pauperis proceedings may be dismissed sua sponte by the court “if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” Dismissal of a pro se complaint by a prisoner pursuant to section 1915(d) involves competing policy considerations. On the one hand, access to the federal courts is necessary to protect the prisoner’s constitutional rights. See Harmon v. Berry, 728 F.2d 1407, 1409 (11th Cir.1984). To protect such access, pro se complaints are liberally construed, and the lay pleader is not held to the more rigorous standard for formal pleadings prepared by attorneys. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972); Harmon, 728 F.2d at 1409. This circuit has adopted the standard in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), to determine the sufficiency of a complaint for purposes of section 1915(d), i.e., that “ ‘a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Pace v. Evans, 709 F.2d 1428, 1429 (11th Cir.1983) (quoting Conley v. Gibson, supra). The trial court must develop the facts of the pro se case until satisfied about its lack of merit before dismissal under section 1915(d). Jones v. Bales, 58 F.R.D. 453, 464 (N.D.Ga.1972) aff'd, 480 F.2d 805 (5th" }, { "docid": "22852667", "title": "", "text": "administration of that statute. In the course of discussing an important standing issue Justice Marshall stated that: For the purposes of a motion to dismiss, the material allegations of the complaint are taken as admitted. See, e. g., Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 174-75 [86 S.Ct. 347, 348, 15 L.Ed.2d 247, 249] (1965). And, the complaint is to be liberally construed in favor of plaintiff. See Fed.Rules Civ.Proc. 8(f); Conley v. Gibson, 355 U.S. 41 [78 S.Ct. 99, 2 L.Ed.2d 80] (1957). The complaint should not be dismissed unless it appears that appellant could “prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, supra, at 45-46 [78 S.Ct. at 102, 2 L.Ed.2d at 84] 395 U.S. at 421-22, 89 S.Ct. at 1849, 23 L.Ed.2d at 416. Subsequently, in Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam), the Court in the context of a prisoner’s pro se civil rights complaint adopted the same standard: Whatever may be the limits on the scope of inquiry of courts into the inter nal administration of prisons, allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957). 404 U.S. at 520-21, 92 S.Ct. at 595, 30 L.Ed.2d at 654. In view of these Supreme Court and Third Circuit precedents Negrich v. Hohn cannot, even if it was so intended, be relied on as authority for the proposition that complaints in civil rights actions require fact pleading rather than notice pleading in order to avoid a motion to dismiss. The majority, however, attempts" }, { "docid": "4184227", "title": "", "text": "they were in fact notarized. The Attorney General of Pennsylvania moved to dismiss on the ground that Tyrrell had failed to state a cause of action upon which relief could be granted. The trial court granted the motion and dismissed the complaint. The appeal at bar followed. Tyrrell’s complaint is conclusory in many of its allegations. But “a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could he proved in support of the claim.” 2A Moore’s Federal Practice, ¶ 12.08 at 2271-74 (1968). (Emphasis in original). In the recent case of Gray v. Creamer, 465 F.2d 179 (3 Cir. 1972), this court noted that a motion to dismiss a prisoner’s civil rights complaint for failure to state a claim upon which relief can be granted is subject to a very strict standard. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), was cited, in which the Supreme Court reversed a district court grant of such a motion, which grant had been affirmed by the Court of Appeals on the ground that prison officials are vested with wide discretion in disciplinary matters. The Court said: “Whatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ Conley v. Gibson, 355 U.S. 41, 45-46 [,78 S.Ct. 99, 2 L.Ed.2d 80] (1957).” Haines v. Kerner, supra at 520-521, 92 S.Ct. at 595. In the case at bar we cannot find that all of Tyrrell’s allegations fail to meet the standard enunciated in Haines v. Kerner, supra. It is true that “[l] awful" }, { "docid": "18735248", "title": "", "text": "gallstones too large to treat. Dixon filed an answer denying the allegations of Toombs’ complaint. Bell, asserting lack of jurisdiction, filed a motion to dismiss, which the district court granted. Toombs brought this appeal pro se, and counsel was appointed for him. II. DISCUSSION. The district court stated that it lacked jurisdiction over Toombs’ complaint because there was no diversity and because the claim alleged malpractice actionable under state law. Toombs, however, sought to assert a complaint under section 1983, and thus the district court had jurisdiction under 28 U.S.C. § 1331. The district court’s ruling was, in effect, an order of dismissal under Fed.R.Civ.P. 12(b)(6) for “failure to state a claim upon which relief can be granted.” The issue before the district court was not whether Toombs’ claim should ultimately prevail, but whether he should have the chance to prove his case. The question before us is thus whether Toombs states a claim under section 1983. In reviewing a dismissal for failure to state a claim, we follow the accepted rule that a complaint should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). We also note that this action was filed pro se, and we hold such complaints “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972); see also Toombs v. Hicks, 773 F.2d 995, 997 (8th Cir.1985). In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), which is dispositive, a prisoner alleged a section 1983 violation in mistreatment of a back injury. The Estelle Court traced the evolution of the Eighth Amendment from its early goal of protecting prisoners from torture or a lingering death to the more recent “standards of decency that mark the progress of a maturing society.” Id. at 102, 97 S.Ct. at 290. The Supreme Court stated that" }, { "docid": "18658176", "title": "", "text": "MEMORANDUM AND ORDER ROBSON, Senior District Judge. Plaintiff John L. Reese, an inmate at the Pontiac Correctional Center, brings this pro se complaint seeking declaratory and injunctive relief and damages for the alleged violation of his federal constitutional rights in connection with his conviction for armed robbery, pursuant to 42 U.S.C. § 1983. The defendants named in this action are the Chicago Police Department, the City of Chicago, the former Superintendent of Police, the watch commander of Chicago Police Area 2, four Chicago Police officers (all of the above hereinafter City defendants); the County of Cook (hereinafter County defendant); and the Cook County State’s Attorney’s Office, the present and former State’s Attorney of Cook County, the Chief of the Criminal Division and the head of Felony Review of the State’s Attorney’s Office, and two Assistant State’s Attorneys (all of the above hereinafter Prosecutor defendants). This cause is before the court on the City defendants, County defendant, and Prosecutor defendants’ motions to dismiss the complaint for failure to state a claim upon which relief can be granted. For the reasons stated below, the motions of the County and the Prosecutor defendants will be granted and the motion of the City defendants will be granted in part and denied in part. In ruling on a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, it is well settled that the court must “take [the plaintiff’s] allegations to be true, and view them, together with reasonable inferences to be drawn therefrom, in the light most favorable to the plaintiff.” Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir.1981). The motion should not be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-6, 78 S.Ct. 99, 101-2, 2 L.Ed.2d 80 (1957). It is equally well settled that pro se complaints, such as those of indigent prisoners like Reese, are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30" }, { "docid": "23120216", "title": "", "text": "reasons to be stated, we reverse and remand to the district court 'for further proceedings consistent withrthis opinion. I. We note at the outset that a motion to dismiss a complaint, including a prisoner’s civil rights complaint, for failure to state a claim upon which relief can be granted is subject to a very strict standard. In Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), the Court reviewed a district court grant of such a motion, which grant had been affirmed by the Court of Appeals on the ground that prison officials are vested with “wide discretion” in disciplinary matters. The Court reversed: “Whatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).” 404 U.S. at 520, 92 S.Ct. at 595. See 2A Moore’s Federal Practice ft 12.08 at 2271-74 (1968): “[A] complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.” (Emphasis in original.) Thus, the district court’s grant of defendants’ motion to dismiss the complaint for failure to state a claim upon which relief can be granted was proper only if, taking as true all the allegations in the complaint and drawing the inferences most favorable to the plaintiffs, it appeared beyond doubt that plaintiffs were entitled to no relief. See, e. g., Haines v. Kerner, supra; Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964); United States ex rel. Jones" }, { "docid": "23393271", "title": "", "text": "PER CURIAM: Henry Platsky appeals from the judgment and order of the United States District Court for the Eastern District of New York, I. Leo Glasser, District Judge, dismissing his pro se complaints for lack of standing, as barred by the doctrine of sovereign immunity, and for failure to state a claim upon which relief could be granted. Platsky brings these actions for injunctive relief and damages against the Central Intelligence Agency, the Federal Bureau of Investigation and the Defence Intelligence Agency based upon the defendants’ alleged surveillance and counter espionage activities which Platsky claims interfered with his constitutional right of free association. More specifically, Platsky alleged that the defendants’ activities deprived him of his “right to join a political organization of his choice,” and resulted in his suffering “harassment in application for government services, on jobs, and in everyday life.” Pro se plaintiffs are often unfamiliar with the formalities of pleading requirements. Recognizing this, the Supreme Court has instructed the district courts to construe pro se complaints liberally and to apply a more flexible standard in determining the sufficiency of a pro se complaint than they would in reviewing a pleading submitted by counsel. See e.g., Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S.Ct. 173, 175-76, 66 L.Ed.2d 163 (1980) (per curiam); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972) (per curiam); see also Elliott v. Bronson, 872 F.2d 20, 21 (2d Cir.1989) (per curiam). In order to justify the dismissal of a pro se complaint, it must be “ ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Haines v. Kerner, 404 U.S. at 521, 92 S.Ct. at 594 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). In light of these principles, we think that the district court should not have dismissed Platsky’s complaints without affording him leave to replead. Generally, “[i]n a suit against the United States, there cannot be a right to money damages without a" }, { "docid": "22852654", "title": "", "text": "defendants, the district court found both complaints lacking: [T]he allegations are purely conclusory and fail to adumbrate any specific facts sufficient to state a cause of action or claim upon which relief can be granted In this circuit, plaintiffs in civil rights cases are required to plead facts with specificity. Kauffman v. Moss, 420 F.2d 1270, 1275-76 (3d Cir.), cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970); Negrich v. Hohn, 379 F.2d 213 (3d Cir. 1967). The rationale of the Negrich requirement that facts be specifically averred was outlined in Valley v. Maule, 297 F.Supp. 958 (D.Conn.1968), and was quoted approvingly in Kauffman v. Moss, supra, at 1276 n. 15: In recent years there has been an increasingly large volume of cases brought under the Civil Rights Act. A substantial number of these cases are frivolous or should be litigated in the State courts; they all cause defendants—public officials, policemen and citizens alike, considerable expense, vexation and perhaps unfounded notoriety. It is an important public policy to weed out the frivolous and insubstantial cases at an early stage in the litigation, and still keep the doors of the federal courts open to legitimate claims. Subsequent to Negrich, the United States Supreme Court in Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam) adopted a strict standard for motions to dismiss prisoners’ pro se civil rights complaints: We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101, 2 L.Ed.2d 80, 84 (1957). Id. at 520, 92 S.Ct. at 596, 30 L.Ed.2d at 654. Haines was harmonized with Negrich by this court in Gray v. Creamer, 465 F.2d 179, 182 n.2 (3d Cir. 1972). It suggested that the Haines standard would be applied to complaints in which “specific allegations of" }, { "docid": "12304644", "title": "", "text": "condoned. Thirdly, the objection was, in fact, filed only one day late. Under the circumstances, defendants-appellees do not take a position on the waiver issue but leave it to the discretion of the court. Finally, this case presents questions of considerable import concerning the conflict between the constitutional rights of prisoners and the Title VII rights of prison guards of the opposite sex. For the foregoing reasons, and in the interests of justice, this court will exercise its jurisdiction over the instant appeal without creating any specific exception to the Walters rule. II. The second aspect of this appeal deals with the merits of the district court’s dismissal of the pro se complaint for failure to state a claim upon which relief can be granted. In reviewing the dismissal of a complaint under Fed.R.Civ.P. 12(b)(6), this court must construe the complaint liberally in plaintiff’s favor and accept as true all factual allegations and permissible inferences therein. Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). Dismissals of complaints filed under the civil rights statutes are scrutinized with special care, Brooks v. Seiter, 779 F.2d 1177, 1180 (6th Cir.1985), and pro se complaints are held to even “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972). In the final analysis, a Rule 12(b)(6) motion should not be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The instant complaint sets forth three constitutional bases for the section 1983 action. Plaintiff claimed that the prison authorities’ practice of allowing female prison guards unrestricted access to the male housing unit at the prison violated plaintiff’s rights under the first, fourth and eighth amendments, as incorporated by the fourteenth amendment. Although these three claims are discussed in more detail below, it is first necessary to explore the legal basis for the magistrate’s R & R and the" }, { "docid": "6767773", "title": "", "text": "in ruling upon defendants’ motion to dismiss. [The] court must construe the complaint liberally in plaintiff’s favor and accept as true all factual allegations and permissible inferences therein. Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). Dismissals of complaints filed under the civil rights statutes are scrutinized with special care, Brooks v. Seiter, 779 F.2d 1177, 1180 (6th Cir.1985), and pro se complaints are held to even “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 [92 S.Ct. 594, 596, 30 L.Ed.2d 652] (1972). In the final analysis, a Rule 12(b)(6) motion should not be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 [78 S.Ct. 99, 101-02, 2 L.Ed.2d 80] (1957). Kent v. Johnson, 821 F.2d 1220, 1223-24 (6th Cir.1987). Even applying this liberal standard, the court determines that defendants’ motion to dismiss should be granted. FACTS For purposes of the motion, the court liberally construes the facts in plaintiffs’ favor. On November 8, 1988, plaintiffs Weaver and McKaye sent, via first-class mail, legal materials to plaintiff Martin. All three plaintiffs were inmates in the custody of the Department of Corrections. According to plaintiffs, these materials “had already been screened by the mail-room prior to distribution to the blocks for inmates” (Grievance attached to Complaint). Two opened envelopes, marked with plaintiff Martin’s name, were given to defendant Strassburg for distribution. Defendant Strassburg searched the envelopes for contraband and discovered the legal materials of plaintiffs Weaver and McKaye inside. Plaintiff Martin was sum moned to the resident unit manager’s office where he met defendants Strassburg, Mason, and Mulvaney. These defendants informed plaintiff Martin that he was in violation of departmental rules for having legal documents of other prisoners without authorization. These defendants also told Martin that he could not “provide legal service to Mr. McKaye and Mr. Weaver at this facility without the proper authorization ” (Martin Aff., ¶!¶ 4-5; docket # 18) (emphasis added). Allegedly, none of" } ]

[ { "docid": "5340233", "title": "", "text": "Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). Similarly, the court concludes that plaintiffs state law claims are barred by the one-year statute of limitations set forth in Tennessee Code Annotated § 28-3-104. It is well settled that claims of age discrimination brought pursuant to the THRCA must be filed within the time period provided for in T.C.A. § 28-3-104. Hoge v. Roy H. Park Broadcasting of Tennessee, Inc., 673 S.W.2d 157 (Tenn.Ct.App.1984). T.C.A. § 28-3-104 requires the action to be filed within one year after the cause of action accrued. In Puckett v. Tennessee Eastman Company, 889 F.2d 1481 (6th Cir.1989), the court held that an action brought under the THRCA is not tolled while plaintiffs charge of discrimination is pending with the THRCA: Because the appropriate limitations period is one year, under the circumstances of this case, where [the plaintiff] chose the administrative route and followed it through to the conciliation stage, a direct action in chancery court is barred. It is now established by Hoge that Tenn.Code Ann. § 28-3-104, the general statute for limitations for claims asserting a violation of federal civil rights, is applicable in actions under Tenn.Code Ann. § 4-21-311. Further, the Tennessee courts have read the Act to force an election between the administrative remedy and the judicial remedy, at least where an aggrieved individual has initiated the administrative process and pursued it to an administrative conclusion. ... However, once the administrative process had been pursued past the initial administrative conclusion that no actionable violation exists, Tennessee courts have made clear that the only way to get to court is through an administrative appeal. 889 F.2d at 1485-86. Therefore, once a plaintiff pursues a THRCA claim with the THRC beyond the time for filing a direct action in Chancery Court, plaintiffs only remaining course of action, if the administrative decision is unfavorable, is to file a petition for review within 30 days of the order in Chancery Court. T.C.A. § 4-21-307(f)(l). In the instant case, plaintiff asserted discrimination with the EEOC on December 2, 1988. Plaintiffs" } ]

[ { "docid": "23267493", "title": "", "text": "Title VII prerequisite of receiving a right-to-sue letter; (3) she failed to state a claim under 42 U.S.C. § 1985 because a corporation cannot conspire with itself or its employees to deprive a person of civil rights; (4) Puckett’s tort claims are precluded by the exclusive remedies provision of the state’s workers’ compensation law and is time-barred by the applicable one-year statute of limitations; and (5) the claim of a violation of RICO must be dismissed since Puckett failed to identify separate entities serving as the “enterprise” and the “person,” and obstruction of a state administrative proceeding is an insufficient predicate act. This appeal followed. II. The district court determined that Puckett’s claim under the Tennessee Anti-Discrimination Act (“the Act”), Tenn.Code Ann. § 4-21-101 et seq., is precluded by a judicially imposed one-year limitations period on claims brought pursuant to Tenn. Code Ann. § 4-21-311. See Hoge v. Roy H. Park Broadcasting of Tennessee, Inc., 673 S.W.2d 157 (Tenn.App.1984). It was noted that Puckett’s complaint alleges discriminatory acts that occurred in 1981-82, but that her suit was not commenced until 1986. Puckett contends that, although a one-year limitations period has been applied to civil actions under the Act, Tennessee law is unsettled concerning whether this limitations period is subject to equitable tolling. As the district court correctly noted, the Act provides two avenues of redress for employment discrimination. First, under Tenn.Code Ann. § 4-21-302 , an individual claiming to be aggrieved by a discriminatory practice may file an administrative complaint with the THRC within 180 days after the commission of the alleged discriminatory practice. The THRC is then given sixty days in which to determine whether there is reasonable cause to believe that the employer was engaged in a discriminatory practice. If the administrative determination is unfavorable to the aggrieved individual, he or she may file a petition in chancery court to obtain judicial review pursuant to § 4-21-307, but the petition must be filed within thirty days after the THRC issues its order. Second, an aggrieved individual, without exhausting the administrative remedies, may file a direct action in chancery" }, { "docid": "23267495", "title": "", "text": "court pursuant to Tenn.Code Ann. § 4-21-311, which reads: Additional remedies preserved. — Any person deeming himself or herself injured by any act in violation of the provisions of this chapter shall have a civil cause of action in chancery court to enjoin further violations, and to recover the actual damages sustained by him or her, together with the costs of the lawsuit, including a reasonable fee for his or her attorney of record, all of which shall be in addition to any other remedies contained in this chapter. Although the limitations period for the filing of an administrative complaint, as well as the timing for other steps of the administrative process, is set forth in the statute, it is apparent that there is no statute of limitations set forth for direct actions in chancery court in § 4-21-311. The question of an appropriate statute of limitations for actions under § 4-21-311 was thus a matter left for judicial determination. A federal court first addressed the issue of the appropriate limitations period for actions under § 4-21-311. In Roland v. Kroger Co., No. CIV-1-82-394 (E.D.Tenn. May 13, 1983), the United States District Court for the Eastern District of Tennessee, basing jurisdiction over a claim under § 4-21-311 on diversity of citizenship, held that the 180-day limitations period in § 4-21-302 for filing an administrative action with the THRC applied to direct actions in chancery court as well. In addition, the district court decided that this 180-day limitations period would be tolled by the filing of an administrative charge with the EEOC or THRC, and extended by at least ninety days after exhaustion of the administrative remedies. The district court reasoned that an employer would be prejudiced by the loss of evidence if a limitations period greater than 180 days was chosen, but that, if an administrative charge was filed, notice to preserve evidence would be given to the employer and the limitations period could therefore be tolled. In Hoge v. Roy H. Park Broadcasting of Tennessee, Inc., a panel of the Court of Appeals of Tennessee developed a different limitations" }, { "docid": "19845226", "title": "", "text": "a victim of discriminatory practices under § 4r-21-311, but such damages are limited to cases of discriminatory housing practices. Tenn.Code Ann. § 4-21-311. B. Availability of Punitive Damages under the THRA One issue presented before the court is whether a victim of employment discrimination may recover punitive damages under Tenn.Code Ann. § 4-21-311, which incorporates § 4-21-306 by reference. The court has found only a handful of cases and an Attorney General opinion that address this precise issue. Taff v. Media General Broadcast Services, Inc., No. 32, 1986 WL 12240 (Tenn.App. November 3, 1986); Gifford v. Premier Manufacturing Corporation, No. 18, 1989 WL 85752 (Tenn.App. August 1, 1989); Greer v. Sears, Roebuck & Co., No. 92:2490, slip opinion, 1992 WL 695822 (W.D.Tenn.1992); Tenn.Atty.Gen.Op. 88-12 (Jan. 12, 1988). In Taff, the Tennessee Court of Appeals held that the term “actual damages” in § 4-21-311 excludes punitive damages. 1986 WL 12240 at *5. The eourt noted that “it seems clear ... that if the General Assembly intended to provide for some form of punishment the act would have done so specifically.” Id. The holding and reasoning in Taff were reaffirmed by the Court of Appeals in Gifford. 1989 WL 85752, at *5 (“given the usual and ordinary meaning to the words used in Tenn.Code Ann. § 4-21-311, we could find no intent on the part of the General Assembly to include recovery for punitive damages.”). The Attorney General of the State of Tennessee also recognized Taff when it stated that punitive damages are not recoverable for violations of the THRA. Tenn. Atty.Gen.Op. 88-12 (January 12, 1988). These three opinions discussed § 4-21-311 as it was originally enacted and before the statute was amended to incorporate the § 4-21-306 remedies explicitly. In a more recent U.S. district eourt decision, the court refused to strike the plaintiffs demand for punitive damages. Greer v. Sears, Roebuck & Co., No. 2:92-2490, slip opinion, 1992 WL 695822 (W.D.Tenn.1992). Greer was decided after § 4-21-311 had been amended to afford victims of discrimination who chose to file an action in chancery court all the remedies listed in §" }, { "docid": "23267502", "title": "", "text": "of raises and denial of transfers were caused by her rejecting the sexual advances of her supervisor. The THRC ordered the parties to engage in conciliation efforts, but, when this method did not produce the desired results, Puckett withdrew her complaint and filed the chancery court action. In effect, Puckett attempted a “second bite at the apple,” having been left unsatiated by the administrative process. However, once the administrative process had been pursued past the initial administrative conclusion that no actionable violation exists, Tennessee courts have made clear that the only way to get to court is through an administrative appeal. In sum, we find that any direct action in court was barred under Tennessee law under the circumstances of this case. III. The district court dismissed Puckett’s claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., on the ground that nothing in the record indicated that she had requested or received a right-to-sue letter from the EEOC. Puckett argues that a right-to-sue letter is not a jurisdictional prerequisite to a Title VII action but rather a condition precedent, and thus the requirement may be waived on equitable grounds. The Title VII plaintiff satisfies the prerequisites to a federal action (1) by filing timely charges of employment discrimination with the EEOC, and (2) receiving and acting upon the EEOC’s statutory notice of the right to sue. 42 U.S.C. § 2000e — 5(f)(1); McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973). The question presented in this appeal concerns whether these preconditions to a Title VII suit are jurisdictional prerequisites which, if not met, operate to divest a federal court of jurisdiction or, instead, are conditions precedent similar to a statute of limitations, which are subject to waiver, estoppel, and equitable tolling. It is now established that the precondition of filing charges with the EEOC within the statutory time limit is not a jursidictional prerequisite; this dispute raises the same issue with respect to the requirement that the plaintiff obtain from the EEOC a notice of" }, { "docid": "22837048", "title": "", "text": "to ascertain status of case. This motion set forth plaintiff’s failure to respond to the motion to dismiss and requested that such motion be granted. On May 17, 1985, plaintiff finally responded by filing a simple affidavit. On May 24, 1985, the district court entered an order granting Stratton’s motion to dismiss, which order stated that “[plaintiff’s failure to file a response indicates that there is no opposition to the motion.” Within ten days of this order being entered, Rogers filed a motion to reconsider the dismissal. The motion to reconsider stated nothing other than the fact that plaintiff had filed an affidavit prior to the June 6, 1985 date set for oral argument, and plaintiff attached to the motion the same affidavit filed on May 17, 1985. The district court denied the motion to reconsider on June 13, 1985 without opinion. On appeal, Rogers makes three arguments: (1) the district court had subject matter jurisdiction; (2) Rogers’ affidavit gave notice to the court that he opposed Stratton’s motion to dismiss; and (3) if jurisdiction was not present, the case should have been remanded to state court. Since all of these arguments revolve around the procedural history of this litigation and are interrelated, we will discuss them together rather than seriatim. Under Tennessee law, a victim of alleged employment discrimination may proceed either administratively through the Tennessee Human Rights Commission followed by judicial review, or he may file a direct action in chancery court. Hoge v. Roy H. Park Broadcasting of Tenn., Inc., 673 S.W.2d 157 (Tenn.Ct.App.1984); Tenn.Code Ann. § 4-21-311 (1985). Plaintiff here chose to bring a direct action in chancery court. It is axiomatic that a federal court sitting in a case removed under diversity jurisdiction can exercise no more or no less jurisdiction than the court from which the case was removed. Thus, the initial question raised by plaintiff translates into the question of whether the Davidson County, Tennessee, Chancery Court would have had subject matter jurisdiction over plaintiff’s claim. Although deceptively easy to frame, the resolution of this issue is far from problem free. There is" }, { "docid": "19845220", "title": "", "text": "by the commission and inclusion of such notices in advertising material; (7) Payment to the complainant of damages for an injury, including humiliation and embarrassment, caused by the discriminatory practice, and cost, including a reasonable attorney’s fee; and (8) Such other remedies as shall be necessary and proper to eliminate all the discrimination identified by the evidence submitted at the hearing or in the record. (b) The commission may publish, or cause to be published, the names of persons who have been determined to have engaged in a discriminatory practice. Tenn.Code Ann. § 4-21-306. A second way a victim of discrimination can proceed under the THRA is by bringing a civil cause of action in chancery court. Tenn.Code Ann. § 4-21-311. Claimants choosing the judicial route as opposed to administrative remedies are governed by section 311 of the THRA, which originally provided: 4-21-311. Additional Remedies Preserved. — Any person deeming himself or herself injured by any act in violation of the provisions of this chapter shall have a civil cause of action in chancery court to further enjoin violations, and to recover the actual damages sustained by him or her, together with the cost of the lawsuit, including a reasonable fee for his or her attorney of record, all of which shall be in addition to any other remedies contained in this chapter. TenmCode Ann. § 4-21-311 (emphasis added). Tennessee courts have interpreted the term “actual damages” in section 311 in different ways. In Belcher v. Sears, Roebuck & Co., 686 F.Supp. 671 (M.D.Tenn.1988), for example, Judge Higgins held that “actual damages” did not include compensatory damages for emotional injuries such as serious embarrassment and humiliation. 686 F.Supp. at 673. Relying on Shirley v. Brown and Williamson Tobacco Co., 608 F.Supp. 78 (E.D.Tenn.1984) and Graham v. Holiday Inns, Inc., No. 85-2431, 1986 WL 15783 (W.D.Tenn.1986), Judge Higgins concluded that the Tennessee Legislature did not intend to afford claimants who pursued the judicial route the “full array” of damages available to those who pursued the administrative route. 686 F.Supp. at 674. Other courts, however, have held that “actual damages” is synonymous" }, { "docid": "23267500", "title": "", "text": "courts,” and that the combination of Hoge and McClure forecloses any doubt that the one-year limitations period is not tolled by the filing of an administrative charge — indeed, the administrative filing bars any direct action in chancery court. Further, Eastman argues that it is apparent from the statute that the direct action is a distinct right and, thus, there is no basis for tolling the period during the pendency of administrative proceedings. Where a state’s highest court has not spoken on a precise issue, a federal court may not disregard a decision of the state appellate court on point, unless it is convinced by other persuasive data that the highest court of the state would decide otherwise. Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1140 (6th Cir.1986). This rule applies regardless of whether the appellate court decision is published or unpublished. Id. Thus, in this case, this court may not disregard the decisions in Hoge, McClure, and McClements, which postdated the district court’s opinion in Roland. Puckett’s arguments premised on the limitations scheme described in Roland are therefore unavailing. Because the appropriate limitations period is one year, under the circumstances of this case, where Puckett chose the administrative route and followed it through to the conciliation stage, a direct action in chancery court is barred. It is now established by Hoge that Tenn.Code Ann. § 28-3-104, the general statute of limitations for claims asserting a violation of federal civil rights, is applicable in actions under Tenn.Code Ann. § 4-21-311. Further, the Tennessee courts have read the Act to force an election between the administrative remedy and the judicial remedy, at least where an aggrieved individual has initiated the administrative process and pursued it to an administrative conclusion. With this much, both McClure and McClements are in agreement. In this case, it is apparent that the administrative wheels started and continued turning. An administrative investigation of the charges was undertaken, and the process proceeded to a conclusion that there was reasonable cause to believe that sexual harassment had occurred, but that there was no evidence that Puckett’s poor evaluations, lack" }, { "docid": "23267494", "title": "", "text": "suit was not commenced until 1986. Puckett contends that, although a one-year limitations period has been applied to civil actions under the Act, Tennessee law is unsettled concerning whether this limitations period is subject to equitable tolling. As the district court correctly noted, the Act provides two avenues of redress for employment discrimination. First, under Tenn.Code Ann. § 4-21-302 , an individual claiming to be aggrieved by a discriminatory practice may file an administrative complaint with the THRC within 180 days after the commission of the alleged discriminatory practice. The THRC is then given sixty days in which to determine whether there is reasonable cause to believe that the employer was engaged in a discriminatory practice. If the administrative determination is unfavorable to the aggrieved individual, he or she may file a petition in chancery court to obtain judicial review pursuant to § 4-21-307, but the petition must be filed within thirty days after the THRC issues its order. Second, an aggrieved individual, without exhausting the administrative remedies, may file a direct action in chancery court pursuant to Tenn.Code Ann. § 4-21-311, which reads: Additional remedies preserved. — Any person deeming himself or herself injured by any act in violation of the provisions of this chapter shall have a civil cause of action in chancery court to enjoin further violations, and to recover the actual damages sustained by him or her, together with the costs of the lawsuit, including a reasonable fee for his or her attorney of record, all of which shall be in addition to any other remedies contained in this chapter. Although the limitations period for the filing of an administrative complaint, as well as the timing for other steps of the administrative process, is set forth in the statute, it is apparent that there is no statute of limitations set forth for direct actions in chancery court in § 4-21-311. The question of an appropriate statute of limitations for actions under § 4-21-311 was thus a matter left for judicial determination. A federal court first addressed the issue of the appropriate limitations period for actions under" }, { "docid": "19845225", "title": "", "text": "relief specified in this section and this chapter. In addition to the remedies set forth in this section, all remedies described in § 4-21-306, except the civil penalty described in § 4-21-306(a)(9), shall be available in any lawsuit filed pursuant to this section. A civil cause of action under this section shall be filed in chancery court within one (1) year after the alleged discriminatory practice ceases, and any such action shall supersede any complaint or hearing before the commission concerning the same alleged violations, and any such administrative action shall be closed upon such filing. Tenn.Code Ann. § 4-21-311 (1994) (emphasis added). The most noteworthy aspect of the 1992 amendment to § 4-21-311 is its allowance of punitive damages in cases involving discriminatory housing practices. Tenn.Code Ann. § 4-21-311 (1994). A literal reading of the THRA reveals that “punitive damages” are expressly mentioned in only two places. First, punitive damages are mentioned as an express remedy in a civil action for malicious harassment. Tenn. Code Ann. § 4-21-701(b). Second, punitive damages are available to a victim of discriminatory practices under § 4r-21-311, but such damages are limited to cases of discriminatory housing practices. Tenn.Code Ann. § 4-21-311. B. Availability of Punitive Damages under the THRA One issue presented before the court is whether a victim of employment discrimination may recover punitive damages under Tenn.Code Ann. § 4-21-311, which incorporates § 4-21-306 by reference. The court has found only a handful of cases and an Attorney General opinion that address this precise issue. Taff v. Media General Broadcast Services, Inc., No. 32, 1986 WL 12240 (Tenn.App. November 3, 1986); Gifford v. Premier Manufacturing Corporation, No. 18, 1989 WL 85752 (Tenn.App. August 1, 1989); Greer v. Sears, Roebuck & Co., No. 92:2490, slip opinion, 1992 WL 695822 (W.D.Tenn.1992); Tenn.Atty.Gen.Op. 88-12 (Jan. 12, 1988). In Taff, the Tennessee Court of Appeals held that the term “actual damages” in § 4-21-311 excludes punitive damages. 1986 WL 12240 at *5. The eourt noted that “it seems clear ... that if the General Assembly intended to provide for some form of punishment the act would" }, { "docid": "22837049", "title": "", "text": "was not present, the case should have been remanded to state court. Since all of these arguments revolve around the procedural history of this litigation and are interrelated, we will discuss them together rather than seriatim. Under Tennessee law, a victim of alleged employment discrimination may proceed either administratively through the Tennessee Human Rights Commission followed by judicial review, or he may file a direct action in chancery court. Hoge v. Roy H. Park Broadcasting of Tenn., Inc., 673 S.W.2d 157 (Tenn.Ct.App.1984); Tenn.Code Ann. § 4-21-311 (1985). Plaintiff here chose to bring a direct action in chancery court. It is axiomatic that a federal court sitting in a case removed under diversity jurisdiction can exercise no more or no less jurisdiction than the court from which the case was removed. Thus, the initial question raised by plaintiff translates into the question of whether the Davidson County, Tennessee, Chancery Court would have had subject matter jurisdiction over plaintiff’s claim. Although deceptively easy to frame, the resolution of this issue is far from problem free. There is no doubt that the Tennessee chancery courts generally have subject matter jurisdiction over claims of age discrimination brought pursuant to the applicable Tennessee statute. Plaintiff would argue no further than this. Inherent in plaintiff’s argument is that if a motion under Ped.R.Civ.P. 12(b) was appropriate at all, it should have been one brought under Rule 12(b)(6) for failure to state a claim on which relief can be granted. Defendants, however, would argue that Tennessee chancery courts are limited in age discrimination in employment cases to those brought against employers who employ “eight (8) or more persons within the state.” Tenn.Code Ann. § 4-21-102. Defendants’ argument is that having eight or more employees is the jurisdictional threshold in this type of case and since they did not have eight employees within the State of Tennessee, the court had no subject matter jurisdiction. The disagreement between the parties has ramifications which extend beyond this dispute being a mere “battle of labels.” For example, in a Rule 12(b)(6) motion in which matters outside the record are relied upon" }, { "docid": "23267490", "title": "", "text": "ALAN E. NORRIS, Circuit Judge. Plaintiff, Sharon Puckett, appeals from the district court’s grant of summary judgment to defendant, Tennessee Eastman Company, in this action involving allegations of sexual harassment. Puckett asserted several different claims in her complaint, including claims under the Tennessee Anti-Discrimination Act, Tenn.Code Ann. § 4-21-101 et seq., Title VII of the Civil Rights Act of 1964, and the Organized Crime Control Act of 1970. On appeal, Puckett argues that the district court erred in determining that (1) her claim under the state act is barred as untimely; (2) receipt of a right-to-sue letter is a jurisdictional prerequisite to a Title VII action; and (3) her civil RICO claim should be dismissed since separate and distinct entities serving as the “person” and the “enterprise” had not been identified, and obstruction of a state administrative proceeding will not suffice to establish a “pattern of racketeering activity.” We reject Puckett’s arguments and affirm the district court’s decision. I. On February 24, 1982, Sharon Puckett filed a charge of discrimination with the Tennessee Human Rights Commission (“THRC”) and the Equal Employment Opportunity Commission (“EEOC\"), alleging that she was sexually harassed durkg 1981 and 1982. Specifically, she alleged that she was subjected to sexual harassment by her supervisor at Tennessee Eastman Company (“Eastman”), and that, because she rejected his advances, she was given poor evaluations, fewer raises, and was denied transfers. Puckett filed another charge of discrimination with the EEOC and the THRC in 1982, alleging retaliation by Eastman in March and April 1982 for her having filed the first discrimination charge. The THRC investigated the charges and, on May 28, 1985, issued a determination finding reasonable cause to believe sexual harassment had occurred. However, it was also determined that there was no reasonable cause to believe that her poor evaluations, slow advancement, or denial of transfers were related to the sexual harassment, or that she was retaliated against. The THRC called upon the parties to make an effort to conciliate the matter. After conciliation attempts proved unsuccessful, Puckett requested the withdrawal of her charges on February 13, 1986. On May" }, { "docid": "23267497", "title": "", "text": "scheme. The state court held that the appropriate limitations period is a one-year statute of limitations drawn by reference to Tennessee’s general statute of limitations for actions alleging a violation of the federal civil rights statutes, Tenn. Code Ann. § 28-3-104. The Hoge court reasoned that, because a direct chancery court action is clearly foreign to the conventional administrative scheme for addressing discriminatory conduct, administrative time limits should not be adopted by analogy. Rather, the applicable statute of limitations should be determined by the substance of the complaint, which is a violation of the federal civil rights statutes. In a footnote, the court took note of the split of authority in the federal courts as to whether the limitations periods for federal civil rights actions are subject to equitable tolling. 673 S.W.2d at 160 n. 2. This issue, however, was not before the court in Hoge. Following Hoge, another panel of the Court of Appeals of Tennessee, in an unpublished decision, interpreted the Act to force the aggrieved individual to make an election between the administrative remedy, with judicial review, and a direct action in chancery court. In McClure v. Bush Bros. & Co., No. 53, 1987 WL 18906 (Tenn. App. Oct. 27, 1987), the court stated: “It seems to us, that once having pursued his claim to an administrative conclusion, whether favorable or adverse, an employee would not be entitled to avail himself of the other option.” The McClure court thus read the Act to impose an election of remedies requirement on an aggrieved individual. However, a somewhat different conclusion has been reached in a recent decision of another panel of the Tennessee Court of Appeals. In McClements v. North American Phillips Consumer Electronics Corp., No. 1273, 1989 WL 61274 (Tenn.App. June 9, 1989), the court stated that “the mere filing of an administrative complaint, without more, ought not to be destructive of his direct Chancery action.” Slip op. at 4-5. The court “emphasize[d] that the Commission simply abandoned the complaint,” and indicated that an election would be appropriately found at least where the THRC had proceeded to a" }, { "docid": "23267492", "title": "", "text": "1, 1986, the THRC closed its file on Puckett’s complaint. The EEOC also accepted Puckett’s request and closed its file. Puckett initiated this action on May 12, 1986, by filing a complaint in the Circuit Court of the Second Judicial District of the State of Tennessee. The complaint alleged discrimination in violation of Title VII and the Tennessee Anti-Discrimination Act, Tenn.Code Ann. § 4-21-101 et seq. Eastman removed the action to the United States District Court for the Eastern District of Tennessee on June 11, 1986. On May 18, 1987, Puckett filed an amended complaint, adding claims alleging violation of civil RICO, conspiracy under 42 U.S.C. § 1985, and the torts of outrageous conduct and intentional infliction of emotional distress. On January 26, 1988, Eastman filed a motion to dismiss and for summary judgment. The court granted Eastman’s motion on March 11, 1988. In dismissing all of Puckett’s claims, the district court held: (1) Puckett’s claim under the Tennessee Anti-Discrimination Act is barred by the applicable one-year limitations period; (2) she did not meet the Title VII prerequisite of receiving a right-to-sue letter; (3) she failed to state a claim under 42 U.S.C. § 1985 because a corporation cannot conspire with itself or its employees to deprive a person of civil rights; (4) Puckett’s tort claims are precluded by the exclusive remedies provision of the state’s workers’ compensation law and is time-barred by the applicable one-year statute of limitations; and (5) the claim of a violation of RICO must be dismissed since Puckett failed to identify separate entities serving as the “enterprise” and the “person,” and obstruction of a state administrative proceeding is an insufficient predicate act. This appeal followed. II. The district court determined that Puckett’s claim under the Tennessee Anti-Discrimination Act (“the Act”), Tenn.Code Ann. § 4-21-101 et seq., is precluded by a judicially imposed one-year limitations period on claims brought pursuant to Tenn. Code Ann. § 4-21-311. See Hoge v. Roy H. Park Broadcasting of Tennessee, Inc., 673 S.W.2d 157 (Tenn.App.1984). It was noted that Puckett’s complaint alleges discriminatory acts that occurred in 1981-82, but that her" }, { "docid": "23267501", "title": "", "text": "in Roland are therefore unavailing. Because the appropriate limitations period is one year, under the circumstances of this case, where Puckett chose the administrative route and followed it through to the conciliation stage, a direct action in chancery court is barred. It is now established by Hoge that Tenn.Code Ann. § 28-3-104, the general statute of limitations for claims asserting a violation of federal civil rights, is applicable in actions under Tenn.Code Ann. § 4-21-311. Further, the Tennessee courts have read the Act to force an election between the administrative remedy and the judicial remedy, at least where an aggrieved individual has initiated the administrative process and pursued it to an administrative conclusion. With this much, both McClure and McClements are in agreement. In this case, it is apparent that the administrative wheels started and continued turning. An administrative investigation of the charges was undertaken, and the process proceeded to a conclusion that there was reasonable cause to believe that sexual harassment had occurred, but that there was no evidence that Puckett’s poor evaluations, lack of raises and denial of transfers were caused by her rejecting the sexual advances of her supervisor. The THRC ordered the parties to engage in conciliation efforts, but, when this method did not produce the desired results, Puckett withdrew her complaint and filed the chancery court action. In effect, Puckett attempted a “second bite at the apple,” having been left unsatiated by the administrative process. However, once the administrative process had been pursued past the initial administrative conclusion that no actionable violation exists, Tennessee courts have made clear that the only way to get to court is through an administrative appeal. In sum, we find that any direct action in court was barred under Tennessee law under the circumstances of this case. III. The district court dismissed Puckett’s claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., on the ground that nothing in the record indicated that she had requested or received a right-to-sue letter from the EEOC. Puckett argues that a right-to-sue letter is not a" }, { "docid": "19845224", "title": "", "text": "claimants who pursued a judicial action, like those who chose to pursue an administrative complaint, enjoyed the remedies enumerated in § 4-21-306. The amendment “essentially abrogated the rationale of the Belcher court.” Harman v. Moore’s Quality Snack Foods, 815 S.W.2d 519, 522 (Tenn.App.1991). 3. The 1991 amendment In 1992, the Tennessee General Assembly revamped § 4-21-311 a second time. It now reads: 4-21-311. Additional remedies preserved. — Any person injured by any act in violation of the provisions of this chapter shall have a civil cause of action in chancery court. In such an action the court may issue any permanent or temporary injunction, temporary restraining order, or any other order and may award to the plaintiff actual damages sustained by such plaintiff, together with the costs of the lawsuit, including a reasonable fee for the plaintiffs attorney of record, all of which shall be in addition to any other remedies contained in this chapter. In cases involving discriminatory housing practices, the court may award punitive damages to the plaintiff, in addition to the other relief specified in this section and this chapter. In addition to the remedies set forth in this section, all remedies described in § 4-21-306, except the civil penalty described in § 4-21-306(a)(9), shall be available in any lawsuit filed pursuant to this section. A civil cause of action under this section shall be filed in chancery court within one (1) year after the alleged discriminatory practice ceases, and any such action shall supersede any complaint or hearing before the commission concerning the same alleged violations, and any such administrative action shall be closed upon such filing. Tenn.Code Ann. § 4-21-311 (1994) (emphasis added). The most noteworthy aspect of the 1992 amendment to § 4-21-311 is its allowance of punitive damages in cases involving discriminatory housing practices. Tenn.Code Ann. § 4-21-311 (1994). A literal reading of the THRA reveals that “punitive damages” are expressly mentioned in only two places. First, punitive damages are mentioned as an express remedy in a civil action for malicious harassment. Tenn. Code Ann. § 4-21-701(b). Second, punitive damages are available to" }, { "docid": "21971490", "title": "", "text": "will not adjudicate ADEA claims. Parker, 677 S.W.2d at 456-57. Since the Tennessee courts provide a full and fair opportunity for plaintiffs to litigate ADEA claims in conjunction with state claims arising under Tenn.Code Ann. § 4-21-124, an ADEA claim can be barred, if the circumstances warrant, where a state discrimination claim was adjudicated in the Tennessee courts and where the federal claim was not presented. The Tennessee courts have held that if a second lawsuit involves the same parties acting in the same capacities and touches the same subject matter as the first lawsuit, then the principles of res judicata apply. National Cordova Corp. v. City of Memyhis, 214 Tenn. 371, 380 S.W.2d 793, 798 (1964); Grange Mutual Casualty Co. v. Walker, 652 S.W.2d 908, 909-10 (Tenn.App.1983). These requirements clearly have been satisfied here. Thus, the doctrine of res judicata bars consideration of all claims that were or reasonably could have been litigated by Goin in the state court action. American National Bank & Trust Co. v. Clark, 586 S.W.2d 825, 826 (Tenn.1979); National Cordova Corp., 380 S.W.2d at 798; Gibson Lumber Co. v. Neely Coble Co., Inc., 651 S.W.2d 232, 234 (Tenn.App.1983). In order to determine whether Goin could have raised the federal claim in the Knox County Chancery Court action, we first examine the language of ADEA. Title 29 U.S.C. § 626(d) provides that a private plaintiff such as Goin may not commence a § 626 age discrimination action until sixty days after the plaintiff has filed a charge with the EEOC. Moreover, where a state agency exists that may grant or seek relief from discriminatory practices, a private plaintiff may not commence a § 626 age discrimination action until sixty days after state administrative proceedings have commenced. 29 U.S.C. § 633(b); Oscar Mayer & Co. v. Evans, 441 U.S. 750, 753-58, 99 S.Ct. 2066, 2070-72, 60 L.Ed.2d 609 (1979). Tennessee has created such an agency. See Tenn.Code Ann. §§ 4-21-103 & 4-21-104. Although a plaintiff need not wait longer than sixty days for a state agency to act, Evans, 441 U.S. at 761, a plaintiff must" }, { "docid": "23267491", "title": "", "text": "Commission (“THRC”) and the Equal Employment Opportunity Commission (“EEOC\"), alleging that she was sexually harassed durkg 1981 and 1982. Specifically, she alleged that she was subjected to sexual harassment by her supervisor at Tennessee Eastman Company (“Eastman”), and that, because she rejected his advances, she was given poor evaluations, fewer raises, and was denied transfers. Puckett filed another charge of discrimination with the EEOC and the THRC in 1982, alleging retaliation by Eastman in March and April 1982 for her having filed the first discrimination charge. The THRC investigated the charges and, on May 28, 1985, issued a determination finding reasonable cause to believe sexual harassment had occurred. However, it was also determined that there was no reasonable cause to believe that her poor evaluations, slow advancement, or denial of transfers were related to the sexual harassment, or that she was retaliated against. The THRC called upon the parties to make an effort to conciliate the matter. After conciliation attempts proved unsuccessful, Puckett requested the withdrawal of her charges on February 13, 1986. On May 1, 1986, the THRC closed its file on Puckett’s complaint. The EEOC also accepted Puckett’s request and closed its file. Puckett initiated this action on May 12, 1986, by filing a complaint in the Circuit Court of the Second Judicial District of the State of Tennessee. The complaint alleged discrimination in violation of Title VII and the Tennessee Anti-Discrimination Act, Tenn.Code Ann. § 4-21-101 et seq. Eastman removed the action to the United States District Court for the Eastern District of Tennessee on June 11, 1986. On May 18, 1987, Puckett filed an amended complaint, adding claims alleging violation of civil RICO, conspiracy under 42 U.S.C. § 1985, and the torts of outrageous conduct and intentional infliction of emotional distress. On January 26, 1988, Eastman filed a motion to dismiss and for summary judgment. The court granted Eastman’s motion on March 11, 1988. In dismissing all of Puckett’s claims, the district court held: (1) Puckett’s claim under the Tennessee Anti-Discrimination Act is barred by the applicable one-year limitations period; (2) she did not meet the" }, { "docid": "23267498", "title": "", "text": "administrative remedy, with judicial review, and a direct action in chancery court. In McClure v. Bush Bros. & Co., No. 53, 1987 WL 18906 (Tenn. App. Oct. 27, 1987), the court stated: “It seems to us, that once having pursued his claim to an administrative conclusion, whether favorable or adverse, an employee would not be entitled to avail himself of the other option.” The McClure court thus read the Act to impose an election of remedies requirement on an aggrieved individual. However, a somewhat different conclusion has been reached in a recent decision of another panel of the Tennessee Court of Appeals. In McClements v. North American Phillips Consumer Electronics Corp., No. 1273, 1989 WL 61274 (Tenn.App. June 9, 1989), the court stated that “the mere filing of an administrative complaint, without more, ought not to be destructive of his direct Chancery action.” Slip op. at 4-5. The court “emphasize[d] that the Commission simply abandoned the complaint,” and indicated that an election would be appropriately found at least where the THRC had proceeded to a determination of reasonable cause/no reasonable cause, as in McClure. In the court’s view, the nature of the chancery court action as a discrete and additional remedy compelled a conclusion that the legislature did not intend the commencement of administrative proceedings to operate as an election and foreclose a judicial remedy. Puckett argues, disregarding to a large extent the decisions of the Tennessee Court of Appeals and relying upon Roland, that the limitations period is subject to equitable tolling by the filing of an administrative claim. Further, Puckett contends that her claim was timely filed in chancery court, as her complaint was brought seven days after she received notice from the Commission of the closing of her file. Puckett states that the district court’s approach penalizes the employee for pursuing administrative channels, including conciliation, which is a remedy favored by Congress. Eastman responds that Roland predated Hoge and applied a completely different limitations scheme. Eastman states that a federal court is “bound to apply the definitive statements of Tennessee state law as pronounced by the Tennessee" }, { "docid": "23267496", "title": "", "text": "§ 4-21-311. In Roland v. Kroger Co., No. CIV-1-82-394 (E.D.Tenn. May 13, 1983), the United States District Court for the Eastern District of Tennessee, basing jurisdiction over a claim under § 4-21-311 on diversity of citizenship, held that the 180-day limitations period in § 4-21-302 for filing an administrative action with the THRC applied to direct actions in chancery court as well. In addition, the district court decided that this 180-day limitations period would be tolled by the filing of an administrative charge with the EEOC or THRC, and extended by at least ninety days after exhaustion of the administrative remedies. The district court reasoned that an employer would be prejudiced by the loss of evidence if a limitations period greater than 180 days was chosen, but that, if an administrative charge was filed, notice to preserve evidence would be given to the employer and the limitations period could therefore be tolled. In Hoge v. Roy H. Park Broadcasting of Tennessee, Inc., a panel of the Court of Appeals of Tennessee developed a different limitations scheme. The state court held that the appropriate limitations period is a one-year statute of limitations drawn by reference to Tennessee’s general statute of limitations for actions alleging a violation of the federal civil rights statutes, Tenn. Code Ann. § 28-3-104. The Hoge court reasoned that, because a direct chancery court action is clearly foreign to the conventional administrative scheme for addressing discriminatory conduct, administrative time limits should not be adopted by analogy. Rather, the applicable statute of limitations should be determined by the substance of the complaint, which is a violation of the federal civil rights statutes. In a footnote, the court took note of the split of authority in the federal courts as to whether the limitations periods for federal civil rights actions are subject to equitable tolling. 673 S.W.2d at 160 n. 2. This issue, however, was not before the court in Hoge. Following Hoge, another panel of the Court of Appeals of Tennessee, in an unpublished decision, interpreted the Act to force the aggrieved individual to make an election between the" }, { "docid": "5340234", "title": "", "text": "that Tenn.Code Ann. § 28-3-104, the general statute for limitations for claims asserting a violation of federal civil rights, is applicable in actions under Tenn.Code Ann. § 4-21-311. Further, the Tennessee courts have read the Act to force an election between the administrative remedy and the judicial remedy, at least where an aggrieved individual has initiated the administrative process and pursued it to an administrative conclusion. ... However, once the administrative process had been pursued past the initial administrative conclusion that no actionable violation exists, Tennessee courts have made clear that the only way to get to court is through an administrative appeal. 889 F.2d at 1485-86. Therefore, once a plaintiff pursues a THRCA claim with the THRC beyond the time for filing a direct action in Chancery Court, plaintiffs only remaining course of action, if the administrative decision is unfavorable, is to file a petition for review within 30 days of the order in Chancery Court. T.C.A. § 4-21-307(f)(l). In the instant case, plaintiff asserted discrimination with the EEOC on December 2, 1988. Plaintiffs complaint, filed on August 6, 1990 is therefore untimely. Thus, plaintiffs claims pursuant to the THRCA must be dismissed for this reason alone. Order accordingly. ORDER For the reasons set forth in the Memorandum Opinion this day passed to the Clerk for filing, it is hereby ORDERED that defendant’s motion for summary judgment [Doc. 10] be, and the same hereby is, GRANTED whereby summary judgment is ENTERED in favor of defendant and plaintiff’s case is DISMISSED. Rule 56, Federal Rules of Civil Procedure. . Specifically, defendant filed the affidavit of Patricia L. McNutt [Doc. 30] and the supplemental affidavit of Charles R. Kirkpatrick [Doc. 31]. . Defendant manages and operates five facilities located in three states, under contract with the United States Department of Energy, including ORNL [see Doc. 16, ¶ 1]. ORNL’s plant and equipment division manages the everyday operation of ORNL, from building maintenance to fabrication of equipment used in scientific experiments [see id., ¶ 2]. Pipefitters are employed at ORNL in a number of diverse capacities [see Doc. 15, ¶ 3]. .Mr." } ]

[ { "docid": "15194295", "title": "", "text": "if disagreement persists to limit the litigation to the matters which have been so re-examined and in reference to which the tax officers are fully prepared to defend the issue. They may decline to waive and may insist on a proper claim for refund as a prerequisite to' suit. Tucker v. Alexander, Collector, supra; United States v. Felt & Tarrant Co., 283 U. S. 269, 51 S. Ct. 376, 75 L. Ed. 1025. This does not mean that the claim for refund must have contained all the evidence or argument that is offered in the suit, but it must have indicated not only the amount claimed but the substantial grounds on which illegality is asserted and the general facts supporting the grounds, so that they may be fully investigated. A special ground of illegality duly stated does not justify suit though for the same tax upon a wholly different ground and resting on different facts, nor does a general reservation of rights and claim of illegality in the application for refund afford any help to the tax officer or any benefit to the suing taxpayer. United States v. Felt & Tarrant, supra, 283 U. S. at page-272, 51 S. Ct. 376, 75 L. Ed. 1025. The claim for refund here involved was definite in amount and in pointing out the item attacked and it stated separately three distinct grounds with the facts supporting them for annulling the tax. But the contention that the item was inaccurate in amount because the corporation’s books were wrong was never suggested and no inquiry into the actual value of the corporate assets or the actual cost to the taxpayer of the corporate stock was ever invited. Without a waiver from the officer this new ground could not be brought into the suit. Upon proof that the claim for refund had contained no such contention, the evidence supporting it should have been stricken. Other cases confining the scope of the suit to the scope of the claim for refund are J. P. Stevens Engraving Co. v. United States (C. C. A.) 53 F.(2d) 1; H." } ]

[ { "docid": "4337776", "title": "", "text": "Government’s contentions that the royalty income was taxable to the Thompsons and that the claims were insufficient and thus rendered judgment for them for the years 1952 and 1954. The Court dismissed the refund suit for the years 1953, 1955, and 1956, however, holding that the Thompsons had not filed refund claims for those years. The sole question here presented is the correctness of this dismissal. Clearly the Code and the Regulations require the filing of a refund claim prior to the institution of a civil suit for refund. Neither the Thompsons nor Selected dispute this controlling principle of law; the difference— and therein the difficulty of this case— lies in its proper application. The position of the Government may be simply stated. It is that, assuming that the “claims” in all other respects complied with the Code and Regulations, those for the years here in question are fatally defective because on the line captioned “Name of taxpayer or purchaser of stamps” on Form 843 there appeared “Selected Minority Fund” rather than “I. W. Thompson and wife, Charlie Thompson.” The Government also urges that the statement of the ground upon which the refund was claimed was insufficient. We reject both contentions and reverse. I. The filing of a claim or demand as a prerequisite to a suit to recover taxes paid is a familiar provision of the revenue laws, compliance with which may be insisted upon by the Government. United States v. Felt & Tarrant Mfg. Co., 1931, 283 U.S. 269, 51 S.Ct. 376, 75 L.Ed. 1025. The Supreme Court has said that “[o]ne object of such requirements is to advise the appropriate officials of the demands or claims intended to be asserted, so as to insure an orderly administration of the revenue * * * ” Id. at 283 U.S. 272, 51 S.Ct. 377. We have said more specifically that the purpose of the rule is to permit the Commissioner to correct claimed errors in the first instance and, if disagreement persists, to limit the litigation to the issues which have been reexamined by the Commissioner and which he" }, { "docid": "4337778", "title": "", "text": "is prepared to defend. Car-mack v. Scofield, 5 Cir., 1953, 201 F.2d 360, 362; Snead v. Elmore, 5 Cir., 1932, 59 F.2d 312, 314. A brief consideration of the peculiar facts of this case demonstrates that these important policies are not undermined by our decision for the Thompsons. The 5 claims in issue in the Court below were transmitted in one bundle to the proper district director. Each claim showed the year for which it was made, the amount claimed as a refund, and the date the amount claimed as a refund was paid. The claims for the years 1952 and 1954 showed “I. W. and/or Charlie Thompson” as taxpayer and were signed by I. W. Thompson and Charlie Thompson. The claims for the years 1953, 1955, and 1956 showed “Selected Minority Fund” as taxpayer and were signed “Selected Minority Fund by I. W. Thompson, Trustee.” But with the receipt on March 27, 1959 of this bundle of refund claims, the district director had full and complete information. The bundle of claims themselves presented a full picture of the events which had transpired with relation to the Thompsons for the years 1952-1956. It is clear from the claims that each of the 5 consecutive years involves a dispute with I. W. Thompson. The amount shown on each claim as having been assessed is the amount shown on the notice of levy and receipt for payment of taxes for the corresponding year. Likewise the date of payment shown on each claim is the date on which the bank issued its cashier’s check in payment of the levy for the corresponding year. The same ground was set forth in the claims for the years 1952 and 1954, and it closely corresponded to the ground set forth in the claims for the years 1953, 1955, and 1956. More than that, the Director had with these claims his own files which included them. Included were the Director’s file of the Thompsons’ tax returns for the years 1952-1956. That also included the Internal Revenue Agent’s report covering his examination and investigation of those returns, and" }, { "docid": "4337784", "title": "", "text": "the claims filed in the name of Selected under the circumstances of this case were sufficient claims to meet the condition precedent laid down by the Code and regulations for the filing of this refund suit. III. Having established that a claim was filed for the years 1953, 1955, and 1956, we now face the remaining question of the sufficiency of the claims insofar as they — in the words of the regulations — “[are required to] set forth in detail each ground upon which a-credit or refund is claimed and facts-sufficient to apprise the Commissioner of the exact basis thereof.” The text of the ground in the claims for these years does not differ significantly from the-text of the ground held sufficient by the District Court for the years 1952 and-1954, and the Government does not appeal from that determination. However, the District Court did not address itself to the sufficiency of the ground stated in the 1953/1955/1956 claims because of its ruling that no claims had' been filed at all by the proper person for those years. As we pointed out in Carmack v. Scofield, 5 Cir., 1953, 201 F.2d 360,. 361-362 and reiterated in United States v. Henderson Clay Prod., 5 Cir., 1963,. 324 F.2d 7, 17, “the principal requirement of the statute * * * and regulations supplementary thereto, is that, the Commissioner be apprised by the-timely filing of a claim of the exact, basis upon which the claim for a refund is predicated.” Perhaps the statement of the ground — if viewed as an isolated paper — would not be very informative. But in the full context in which it appears it clearly expresses the-legal theory on which Thompsons excluded from their income the royalty-payments made to Selected in the first, place; namely, that the income was attributable to the mineral interest which they had conveyed to Selected,. an educational or charitable trust. This theory was clearly recognized in the preliminary statements prepared by the Service after the audit of the returns, and the rejection of the theory formed the basis for the deficiencies determined" }, { "docid": "4337781", "title": "", "text": "sent back to I. W. Thompson in one envelope, under one cover letter. It is true, of course, that the Director returned the claims with the request that they be filed in the exact name shown on the original return. But to lump 1952 and 1954 with these other years (1953, 1955, 1956) was an error. That error is graphically demonstrated by the District Court’s determination adverse to the Government but from which it did not appeal. This holding in no way brings into question the Supreme Court’s rejection in Angelus Milling Co. v. Commissioner, 1945, 325 U.S. 293, 299, 65 S.Ct. 1162, 89 L.Ed. 1619, of the taxpayer’s contention that the Commissioner is charged with knowledge of all he might learn from his vast files. Here the Director treated all together. All of the information was physically together and substantively related. He did not have to look elsewhere “somewhere under the Commissioner’s roof * * * ” for “information which might enable him to pass on [the] claim for refund.” 325 U.S. 293, 299, 65 S.Ct. 1162, 1165. It was all there. The Director did not have to look for. All he had to do was look at. Under the circumstances of this case we hold that claims were filed for the years 1953, 1955, and 1956. II. Whatever doubt there might be in the unitary treatment of the refund claims for the 5 years as a sufficient basis for upholding the validity of the claims discussed in Part I, we would nevertheless be forced to hold with the Thompsons for another reason. The notice of levy served on the bank for the years 1953, 1955, and 1956 was on the usual Form 668-A. In the blank space following the printed statement, “You are hereby notified that there is now due, owing, and unpaid from NAME AND ADDRESS OF TAXPAYER,” there was inserted the following: “Selected Minority Trust by I. W. Thompson, Route 3, Grand Saline, Texas.” The account of Selected was levied upon to satisfy the tax stated to be due by Selected for each of these years." }, { "docid": "4337780", "title": "", "text": "a copy of the essential excerpts from the trust instrument by which Selected was created. From these documents the Director knew the essential provisions of the trust, that the Thompsons had not included in their returns for those years the royalty income paid to Selected on the theory that it was tax-exempt income of Selected rather than income to them, and that the deficiencies assessed for each of those years came about from the determination of the Service that the income was taxable to the Thompsons rather than to Selected on the theory that Selected was not a valid educational trust. Thus the record reflects that in the light of the facts before and then known to the Director at the time the claims were received, he was sufficiently advised as to the identity of the taxpayer seeking refund for taxes wrongfully assessed and collected for the years 1953, 1955, and 1956. In returning them the District Director’s action was similarly without any discriminating distinction. The claims for all 5 years were bundled up and sent back to I. W. Thompson in one envelope, under one cover letter. It is true, of course, that the Director returned the claims with the request that they be filed in the exact name shown on the original return. But to lump 1952 and 1954 with these other years (1953, 1955, 1956) was an error. That error is graphically demonstrated by the District Court’s determination adverse to the Government but from which it did not appeal. This holding in no way brings into question the Supreme Court’s rejection in Angelus Milling Co. v. Commissioner, 1945, 325 U.S. 293, 299, 65 S.Ct. 1162, 89 L.Ed. 1619, of the taxpayer’s contention that the Commissioner is charged with knowledge of all he might learn from his vast files. Here the Director treated all together. All of the information was physically together and substantively related. He did not have to look elsewhere “somewhere under the Commissioner’s roof * * * ” for “information which might enable him to pass on [the] claim for refund.” 325 U.S. 293, 299," }, { "docid": "4337774", "title": "", "text": "JOHN R. BROWN, Circuit Judge. I. W. Thompson, his wife Charlie Thompson, and I. W. Thompson, as Trustee for Selected Minority Funds sued in the District Court to recover income taxes, penalties, and interest in the aggregate amount of $171,665.65, assessed against the Thompsons for the years 1952-1956 and collected by levy on the bank accounts of the Thompsons and Selected. On September 19, 1949, I. W. Thompson, referring to himself as Donor and naming himself as Trustee, executed an instrument establishing Selected. Subsequently the Thompsons executed a deed conveying to I. W. Thompson, Trustee, 9/10ths of all of the oil, gas and other minerals in and under approximately 86 acres of land in the Van Field in Van Zandt County, Texas. After June 1, 1951, the effective date of that deed, the oil and gas royalties attributable to the mineral interest conveyed were paid to Selected. Because the Thompsons did not consider the royalty income paid to Selected to be income accruing to them, they did not include this income in the returns filed by them for the years 1952-1956. The deficiencies assessed resulted from the determination by the Internal Revenue Service that the royalty amounts paid to Selected were taxable to the Thompsons. The Government challenged the jurisdiction of the District Court to entertain the refund suit involving the years 1953, 1955, and 1956 on the ground that the Thompsons had filed no claims for refund for those years. Acknowledging that claims had been filed for the years 1952 and 1954, the Government nevertheless, but unsuccessfully, challenged the jurisdiction of the District Court to entertain the refund suit for these years on the theory that the claims failed adequately to set forth the grounds relied on for relief. The Government further urged various substantive theories under which the income paid to Selected was taxable to the Thompsons. The District Court decided that Selected is a trust organized and operated exclusively for charitable or educational purposes and thus exempt from the payment of income taxes under Int.Rev. Code of 1954, § 501, 26 U.S.C.A. § 501. It rejected the" }, { "docid": "4337786", "title": "", "text": "for all 5 years. This precise theory was asserted by the Thompsons in the refund suit. Under the circumstances of this case, including the handling of the claims in one bundle as previously indicated, we hold that the refund claim for the years 1953, 1955, and 1956 was sufficient to support the complaint within the principles announced by this Court in United States v. Henderson Clay Prod., 5 Cir., 1963, 324 F.2d 7; Hartley v. United States, 5 Cir., 1958, 252 F.2d 262; Burrell v. Fahs, 5 Cir., 1956, 232 F.2d 163. For the foregoing reasons, the judgment of the District Court insofar as it dismissed the complaint related to the years 1953, 1955, and 1956 is reversed, and the case remanded for further and not inconsistent proceedings. Reversed and remanded. . Hereinafter referred to as Selected. . Collected by Levy on Account of Tear Thompson Selected 1952 $42,806.48 ? 1953 49,153.40 1954 30,863.50 1955 24,843.07 1956 23,999.20 $73,669.98 $97,995.67 Note: The only items now in dispute. . The Internal Revenue Service determined a deficiency based on additional interest income of $1,740.50 for 1954 which the Thompsons agreed to and paid. The Service also disallowed a deduction of $1,209.71 in 1954 for a contribution to Selected. The District Court decided this issue in favor of Thompsons, and the Government has not appealed from this decision. . The Government has not appealed from these determinations. . Int.Rev.Code of 1954, § 7422(a) provides : “(a) No suit prior to filing claim for refund. — -No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary or his delegate, according to the provisions of law in that regard, and the regulations of the Secretary or his delegate established in pursuance thereof.” The 1939 Code, Int.Rev.Code of" }, { "docid": "4019806", "title": "", "text": "of the levy were not matters to be considered by the jury on the narrow fact issue involved. We conclude that the issue raised by appellant’s claims for refund was properly tried and that no basis for a reversal is shown. Affirmed. . Before trial Mrs. Herrington withdrew the claim for 1953, reducing the amount requested to $60,526.64. . Due to the determination that appellant was a party to the joint returns she is liable for the tax, interest and penalties. O’Dell v. United States, 326 F.2d 451 (10th Cir. 1964). . Except for the designation of the year, and the different amounts, filing stamps and the like, all of the claims are in all material respects similar to the claim for 1950. The essential portions of the 1950 claim read as follows: . United States v. Felt & Tarrant Co., 283 U.S. 269, 51 S.Ct. 376, 75 L.Ed. 1025 (1931); United States v. Andrews, 302 U.S. 517, 58 S.Ct. 315, 82 L.Ed. 398 (1938); Real Estate—Land Title & Trust Co. v. United States, 309 U.S. 13, 60 S.Ct. 371, 84 L.Ed. 542 (1940); Angelus Milling Co. v. Commissioner, 325 U.S. 293, 65 S.Ct. 1162, 89 L.Ed. 1619 (1945). . Treasury Regulations, Procedure and Administration, § 301.642-2 requires that the “ * * * claim must set forth in detail each ground upon which a credit or refund is claimed and facts sufficient to apprise the Commissioner of the exact basis thereof.” The regulation was within the power granted by J 7422 to the Commissioner to promulgate appropriate regulations. And such regulations were applied in Nemours Corp. v. United States, 188 F.2d 745 (3d Cir. 1951), cert. denied, 342 U.S. 834, 72 S.Ct. 50, 96 L.Ed. 631 (1951). . United States v. Ideal Basic Industries, Inc., 404 F.2d 122 (10th Cir. 1968), cert. denied, 395 U.S. 936, 89 S.Ct. 1997, 23 L.Ed.2d 451 (1969); Carmack v. Scofield, 201 F.2d 360 (5th Cir. 1953); Thompson v. United States, 332 F.2d 657 (5th Cir. 1964); United States v. Hancock Bank, 400 F.2d 975 (5th Cir. 1968); and 10 Mertens, Law of Federal" }, { "docid": "4337790", "title": "", "text": "question within the applicable period of limitation in the office of the district director for the internal revenue district in which the tax was paid, setting forth in each a verified statement of the ground upon which the refund was claimed, all as required by the Regulations. See note 6, supra. . The following information was obtainable by reference to the claims alone: . The statement of the 1952/1954 ground was as follows: “The claim indicated herein is without cause. All royalty payments for the year indicated were paid directly to Selected Minority Funds authorized by Deed of Record. Payments directly to these trust accounts automatically became $1,000 trusts untaxable. This levy was unjustified in two ways.” Essentially the same legal theory was asserted in a slightly different language in the 1953/1955/1956 claim: “The claim above indicated herein against the Selected Minority Trust is unjustified in one all-sufficient way. By authority of the trust and deeds creating them, all royalty checks automatically became $1,000 untaxable trusts, not a part of one trust, and without income and only one purpose to serve. They have persistently tried to serve that purpose.” . Whether the claims sufficiently stated the reason, for the requested refund is another question resolved in Part III. . Form 66S-A is the official form of the U. S. Treasury Department — Internal Revenue Service entitled “NOTICE OF LEVY” . The word “taxpayer” is defined in Int. Rev.Code of 1954, § 7701(a) (14) : “Taxpayer. — The term ‘taxpayer’ means any person subject to any internal revenue tax.” The Thompsons make a strong argument that Selected was certainly “subject to” a tax, either directly or as a transferee of identifiable income. Status as one subject to a tax need not necessarily require unquestioned liability for it. That might turn on intricate legal-factual questions, e. g., status as a charitable trust, etc. . The relevant provisions of the Code and regulations are set forth in notes 5 and 6, supra. . The text of the ground for each group of years is sot out in note 9, supra. . “The claim" }, { "docid": "17763071", "title": "", "text": "be allowed. It is therefore proposed to disallow your claim in full.” In May, 1975, the appellant, now with the assistance of counsel, filed an action in district court for refund of the tax, and alleged that a timely claim had been filed and disallowed, referring to the March 20, 1974, letter. The government’s motion to dismiss the action was granted. The district court pointed to plaintiff’s failure to comply with 26 U.S.C. § 7422(a) and Treas. Reg. 301.-6402-2(b)(l): Section 7422(a) states: “(a) No suit prior to filing claim for refund. — No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary or his delegate, according to the provisions of law in that regard, and the regulations of the Secretary or his delegate established in pursuance thereof.” Treas. Reg. 301.6402-2(b)(l) states: “No refund or credit will be allowed after the expiration of the statutory period of limitation applicable to the filing of a claim therefor except upon one or more of the grounds set forth in a claim filed before the expiration of such period. The claim must set forth in detail each ground upon which a credit or refund is claimed and facts sufficient to apprise the Commissioner of the exact basis thereof . . ” Compliance with 26 U.S.C. § 7422(a) and Treas. Reg. 301.6402-2(b)(l), by specifying in detail all grounds and supporting facts upon which a claim for refund is based, is a jurisdictional prerequisite to a suit for refund of taxes, United States v. Felt & Tarrant Co., 283 U.S. 269, 272, 51 S.Ct. 376, 75 L.Ed.2d 1025 (1931); Omnibus Financial Corp. v. United States, 566 F.2d 1097, 1101 (9th Cir. 1977), and unless waived by the government, the taxpayer cannot proceed with his suit for refund. Angelus" }, { "docid": "22431838", "title": "", "text": "on these items. Defendant’s motion is based on its conclusion that the timely-filed' claims for refund fail to state the grounds upon which plaintiff now seeks to recover. The taxpayer did not apprise the Commissioner of the grounds now asserted, either in a formal or an informal claim for refund, and, therefore, defendant reasons, taxpayer is barred from recovery. It is an undisputed general rule that a ground for refund neither specifically raised by, nor comprised within the general language of, a timely formal or informal application for refund to the Internal Revenue Service cannot be considered by a court in which a suit for refund is subsequently initiated. United States v. Felt & Tarrant Mfg. Co., 283 U.S. 269 (1931); Real Estate-Land Title & Trust Co. v. United States, 309 U.S. 13, 17-18 (1940); International Curtis Marine Turbine Co. v. United States, 74 Ct. Cl. 132, 56 F.2d 708 (1932); The Midvale Co. v. United States, 133 Ct. Cl. 881, 138 F. Supp. 269 (1956); Williamson v. United States, 155 Ct. Cl. 279, 292 F.2d 524 (1961). The rule that a taxpayer cannot present one ground for refund in its claim and a different ground in its petition is designed both to prevent surprise and to give adequate notice to the Service of the nature of the claim and the specific facts upon which it is predicated, thereby permitting an administrative investigation and determination. United States v. Memphis Ootton Oil Co., 288 U.S. 62 (1983). In addition, the Commissioner is provided with an opportunity to correct any errors, and if disagreement remains, to limit the scope of any ensuing litigation to those issues which have been examined and which he is willing to defend. Carmack v. Scofield, 201 F.2d 360, 362 (5th Cir. 1953); Thompson v. United States, 332 F.2d 657, 660 (5th Cir. 1964); Tucker v. Alexander, 15 F.2d 356 (8th Cir. 1926), reversed on other grounds, 275 U.S. 228 (1927). If the claim for refund states only general grounds for relief, an item raised in litigation but not specifically adverted to in the claim might be permitted" }, { "docid": "4337789", "title": "", "text": "expiration of such period. The claim must set forth in detail each ground upon which a credit or refund is claimed and facts sufficient to apprise the Commissioner of the exact basis thereof. The statement of the grounds and facts must be verified by a written declaration that it is made under the penalties of perjury. A claim which does not comply with this paragraph will not be considered for any purpose as a claim for refund or credit. *( sj: tj: “(c) Form for filing claim. Claims by the taxpayer for the refunding of overpayment of taxes, interest, penalties, and additions to tax shall be made on Form 843. * * *. “(d) Separate claims for separate taxable periods. In the case of income, gift, and Federal unemployment taxes, a separate claim shall be made for each type of tax for each taxable year or period.” Substantially identical provisions appeared in the Regulations under the 1939 Code. Treas.Reg. § 39.322-3. . The Thompsons filed a separate claim on Form 843 for each year in question within the applicable period of limitation in the office of the district director for the internal revenue district in which the tax was paid, setting forth in each a verified statement of the ground upon which the refund was claimed, all as required by the Regulations. See note 6, supra. . The following information was obtainable by reference to the claims alone: . The statement of the 1952/1954 ground was as follows: “The claim indicated herein is without cause. All royalty payments for the year indicated were paid directly to Selected Minority Funds authorized by Deed of Record. Payments directly to these trust accounts automatically became $1,000 trusts untaxable. This levy was unjustified in two ways.” Essentially the same legal theory was asserted in a slightly different language in the 1953/1955/1956 claim: “The claim above indicated herein against the Selected Minority Trust is unjustified in one all-sufficient way. By authority of the trust and deeds creating them, all royalty checks automatically became $1,000 untaxable trusts, not a part of one trust, and without income" }, { "docid": "4337777", "title": "", "text": "and wife, Charlie Thompson.” The Government also urges that the statement of the ground upon which the refund was claimed was insufficient. We reject both contentions and reverse. I. The filing of a claim or demand as a prerequisite to a suit to recover taxes paid is a familiar provision of the revenue laws, compliance with which may be insisted upon by the Government. United States v. Felt & Tarrant Mfg. Co., 1931, 283 U.S. 269, 51 S.Ct. 376, 75 L.Ed. 1025. The Supreme Court has said that “[o]ne object of such requirements is to advise the appropriate officials of the demands or claims intended to be asserted, so as to insure an orderly administration of the revenue * * * ” Id. at 283 U.S. 272, 51 S.Ct. 377. We have said more specifically that the purpose of the rule is to permit the Commissioner to correct claimed errors in the first instance and, if disagreement persists, to limit the litigation to the issues which have been reexamined by the Commissioner and which he is prepared to defend. Car-mack v. Scofield, 5 Cir., 1953, 201 F.2d 360, 362; Snead v. Elmore, 5 Cir., 1932, 59 F.2d 312, 314. A brief consideration of the peculiar facts of this case demonstrates that these important policies are not undermined by our decision for the Thompsons. The 5 claims in issue in the Court below were transmitted in one bundle to the proper district director. Each claim showed the year for which it was made, the amount claimed as a refund, and the date the amount claimed as a refund was paid. The claims for the years 1952 and 1954 showed “I. W. and/or Charlie Thompson” as taxpayer and were signed by I. W. Thompson and Charlie Thompson. The claims for the years 1953, 1955, and 1956 showed “Selected Minority Fund” as taxpayer and were signed “Selected Minority Fund by I. W. Thompson, Trustee.” But with the receipt on March 27, 1959 of this bundle of refund claims, the district director had full and complete information. The bundle of claims themselves presented a" }, { "docid": "4337783", "title": "", "text": "Mr. Thompson, with his rural upbringing and 82 years, apparently thought that he could follow the Government’s lead. He did it precisely, deliberately, and with discrimination. Thus, for the years 1952 and 1954 he filed claims in the name of I. W. and Charlie Thompson. He did this because on the Notice of Levy for those years they were shown as Taxpayer and the levy was satisfied out of their personal funds. (See Note 2, supra.) On the other hand, for the years 1953, 1955, and 1956, he filed claims in the name of Selected because Selected, not the individual Thompsons, was shown as Taxpayer. The Government for the purposes of levy and collection of the taxes here in question denominated Selected as taxpayer. The money representing the taxes was collected from Selected and no one else. We think Selected, and the Thompsons for it, was entitled to accept this designation of it as the taxpayer whatever might be its technical position as the one from whom a tax is owing. We hold merely that the claims filed in the name of Selected under the circumstances of this case were sufficient claims to meet the condition precedent laid down by the Code and regulations for the filing of this refund suit. III. Having established that a claim was filed for the years 1953, 1955, and 1956, we now face the remaining question of the sufficiency of the claims insofar as they — in the words of the regulations — “[are required to] set forth in detail each ground upon which a-credit or refund is claimed and facts-sufficient to apprise the Commissioner of the exact basis thereof.” The text of the ground in the claims for these years does not differ significantly from the-text of the ground held sufficient by the District Court for the years 1952 and-1954, and the Government does not appeal from that determination. However, the District Court did not address itself to the sufficiency of the ground stated in the 1953/1955/1956 claims because of its ruling that no claims had' been filed at all by the proper" }, { "docid": "4337782", "title": "", "text": "65 S.Ct. 1162, 1165. It was all there. The Director did not have to look for. All he had to do was look at. Under the circumstances of this case we hold that claims were filed for the years 1953, 1955, and 1956. II. Whatever doubt there might be in the unitary treatment of the refund claims for the 5 years as a sufficient basis for upholding the validity of the claims discussed in Part I, we would nevertheless be forced to hold with the Thompsons for another reason. The notice of levy served on the bank for the years 1953, 1955, and 1956 was on the usual Form 668-A. In the blank space following the printed statement, “You are hereby notified that there is now due, owing, and unpaid from NAME AND ADDRESS OF TAXPAYER,” there was inserted the following: “Selected Minority Trust by I. W. Thompson, Route 3, Grand Saline, Texas.” The account of Selected was levied upon to satisfy the tax stated to be due by Selected for each of these years. Mr. Thompson, with his rural upbringing and 82 years, apparently thought that he could follow the Government’s lead. He did it precisely, deliberately, and with discrimination. Thus, for the years 1952 and 1954 he filed claims in the name of I. W. and Charlie Thompson. He did this because on the Notice of Levy for those years they were shown as Taxpayer and the levy was satisfied out of their personal funds. (See Note 2, supra.) On the other hand, for the years 1953, 1955, and 1956, he filed claims in the name of Selected because Selected, not the individual Thompsons, was shown as Taxpayer. The Government for the purposes of levy and collection of the taxes here in question denominated Selected as taxpayer. The money representing the taxes was collected from Selected and no one else. We think Selected, and the Thompsons for it, was entitled to accept this designation of it as the taxpayer whatever might be its technical position as the one from whom a tax is owing. We hold merely that" }, { "docid": "4337785", "title": "", "text": "person for those years. As we pointed out in Carmack v. Scofield, 5 Cir., 1953, 201 F.2d 360,. 361-362 and reiterated in United States v. Henderson Clay Prod., 5 Cir., 1963,. 324 F.2d 7, 17, “the principal requirement of the statute * * * and regulations supplementary thereto, is that, the Commissioner be apprised by the-timely filing of a claim of the exact, basis upon which the claim for a refund is predicated.” Perhaps the statement of the ground — if viewed as an isolated paper — would not be very informative. But in the full context in which it appears it clearly expresses the-legal theory on which Thompsons excluded from their income the royalty-payments made to Selected in the first, place; namely, that the income was attributable to the mineral interest which they had conveyed to Selected,. an educational or charitable trust. This theory was clearly recognized in the preliminary statements prepared by the Service after the audit of the returns, and the rejection of the theory formed the basis for the deficiencies determined for all 5 years. This precise theory was asserted by the Thompsons in the refund suit. Under the circumstances of this case, including the handling of the claims in one bundle as previously indicated, we hold that the refund claim for the years 1953, 1955, and 1956 was sufficient to support the complaint within the principles announced by this Court in United States v. Henderson Clay Prod., 5 Cir., 1963, 324 F.2d 7; Hartley v. United States, 5 Cir., 1958, 252 F.2d 262; Burrell v. Fahs, 5 Cir., 1956, 232 F.2d 163. For the foregoing reasons, the judgment of the District Court insofar as it dismissed the complaint related to the years 1953, 1955, and 1956 is reversed, and the case remanded for further and not inconsistent proceedings. Reversed and remanded. . Hereinafter referred to as Selected. . Collected by Levy on Account of Tear Thompson Selected 1952 $42,806.48 ? 1953 49,153.40 1954 30,863.50 1955 24,843.07 1956 23,999.20 $73,669.98 $97,995.67 Note: The only items now in dispute. . The Internal Revenue Service determined a deficiency" }, { "docid": "11114033", "title": "", "text": "internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof. 26 U.S.C. § 7422(a). Consistent with this provision, section 6532 of the Code further provides that no suit or proceeding for refund under section 7422(a) may be initiated until the Secretary renders a decision on the taxpayer’s claim or until six months have passed since the claim was filed. 26 U.S.C. § 6532(a)(1); see 26 C.F.R. § 301.6402-2(a). In view of the plain language of these provisions, it is'settled that unless the taxpayer has first filed a proper claim with the Internal Revenue Service, a court lacks subject matter jurisdiction over a suit for refund. United States v. Felt & Tarrant Mfg. Co., 283 U.S. 269, 272, 51 S.Ct. 376, 377, 75 L.Ed. 1025 (1931); see also, e.g., Hefti v. IRS, 8 F.3d 1169, 1173 (7th Cir.1993) (citing Goulding v. United States, 929 F.2d 329, 331 (7th Cir.1991), cert. denied, 506 U.S. 865, 113 S.Ct. 188, 121 L.Ed.2d 132 (1992)); Martin v. United States, 833 F.2d 655, 658-59 (7th Cir.1987). Although on April 14, 1995, Ms. Bartley sent the Internal Revenue Service a letter requesting a refund on behalf of herself and the other members of the class she purports to represent, for several reasons it does not open the door to this suit. First, Bartley did not make her claim either on Form 1040X (the appropriate form for a refund of income taxes) or Form 843 (for other types of taxes). See 26 C.F.R. §§ 301.6402-3(a)(2), 301.6402-2(e). Second, the letter did not comply with Treasury Regulation § 301.6402-2(d), which requires a taxpayer in pursuit of a refund to make a separate claim for each taxable period. Instead, the letter simply sought a refund of an uncertain amount" }, { "docid": "5496934", "title": "", "text": "Inc. and their respective spouses may be members of the same class, before any taxpayer may maintain any action to recover any internal revenue tax alleged to have been erroneously or illegally assessed or collected, it is an absolute and indispensible prerequisite that such taxpayer shall have filed a claim for refund or credit with the Secretary of the Treasury or his delegate, according to the provisions of law in that regard, and the regulations of the Secretary or his delegate established in pursuance thereof. 26 U.S. C. § 7422(a). This serves to advise the appropriate internal revenue officials of the claims intended to be asserted by the taxpayer, so as to insure an orderly administration of the revenue. United States v. Felt & Tarrant Mfg. Co. (1930), 283 U.S. 269, 272, 51 S.Ct. 376, 75 L.Ed. 1025, 1027 [1]. “* * * It is vital to the functions of government that taxes be collected promptly and if errors are made, that they be expeditiously corrected. To this end the statute requires the taxpayer to make a timely charge of overpayment with grounds therefor, that the government may make investigation and refund the amount due, if any, without being subjected to the delay and expense of litigation * * Kales v. United States, C.C.A.6th (1940), 115 F.2d 497, 500, [3], [4], affirmed (1941), 314 U.S. 186, 193, 62 S.Ct. 214, 86 L.Ed. 132, 138. Accordingly, it is the order of this Court that this action not be maintained as a class action, but only as the action of the named plaintiffs to recover taxes." }, { "docid": "4337775", "title": "", "text": "by them for the years 1952-1956. The deficiencies assessed resulted from the determination by the Internal Revenue Service that the royalty amounts paid to Selected were taxable to the Thompsons. The Government challenged the jurisdiction of the District Court to entertain the refund suit involving the years 1953, 1955, and 1956 on the ground that the Thompsons had filed no claims for refund for those years. Acknowledging that claims had been filed for the years 1952 and 1954, the Government nevertheless, but unsuccessfully, challenged the jurisdiction of the District Court to entertain the refund suit for these years on the theory that the claims failed adequately to set forth the grounds relied on for relief. The Government further urged various substantive theories under which the income paid to Selected was taxable to the Thompsons. The District Court decided that Selected is a trust organized and operated exclusively for charitable or educational purposes and thus exempt from the payment of income taxes under Int.Rev. Code of 1954, § 501, 26 U.S.C.A. § 501. It rejected the Government’s contentions that the royalty income was taxable to the Thompsons and that the claims were insufficient and thus rendered judgment for them for the years 1952 and 1954. The Court dismissed the refund suit for the years 1953, 1955, and 1956, however, holding that the Thompsons had not filed refund claims for those years. The sole question here presented is the correctness of this dismissal. Clearly the Code and the Regulations require the filing of a refund claim prior to the institution of a civil suit for refund. Neither the Thompsons nor Selected dispute this controlling principle of law; the difference— and therein the difficulty of this case— lies in its proper application. The position of the Government may be simply stated. It is that, assuming that the “claims” in all other respects complied with the Code and Regulations, those for the years here in question are fatally defective because on the line captioned “Name of taxpayer or purchaser of stamps” on Form 843 there appeared “Selected Minority Fund” rather than “I. W. Thompson" }, { "docid": "4337779", "title": "", "text": "full picture of the events which had transpired with relation to the Thompsons for the years 1952-1956. It is clear from the claims that each of the 5 consecutive years involves a dispute with I. W. Thompson. The amount shown on each claim as having been assessed is the amount shown on the notice of levy and receipt for payment of taxes for the corresponding year. Likewise the date of payment shown on each claim is the date on which the bank issued its cashier’s check in payment of the levy for the corresponding year. The same ground was set forth in the claims for the years 1952 and 1954, and it closely corresponded to the ground set forth in the claims for the years 1953, 1955, and 1956. More than that, the Director had with these claims his own files which included them. Included were the Director’s file of the Thompsons’ tax returns for the years 1952-1956. That also included the Internal Revenue Agent’s report covering his examination and investigation of those returns, and a copy of the essential excerpts from the trust instrument by which Selected was created. From these documents the Director knew the essential provisions of the trust, that the Thompsons had not included in their returns for those years the royalty income paid to Selected on the theory that it was tax-exempt income of Selected rather than income to them, and that the deficiencies assessed for each of those years came about from the determination of the Service that the income was taxable to the Thompsons rather than to Selected on the theory that Selected was not a valid educational trust. Thus the record reflects that in the light of the facts before and then known to the Director at the time the claims were received, he was sufficiently advised as to the identity of the taxpayer seeking refund for taxes wrongfully assessed and collected for the years 1953, 1955, and 1956. In returning them the District Director’s action was similarly without any discriminating distinction. The claims for all 5 years were bundled up and" } ]

[ { "docid": "613186", "title": "", "text": "1979, a total abdominal hysterectomy was performed upon Beyette during which her entire uterus, fallopian tubes and ovaries were removed through her abdominal wall. An incidental appendectomy was performed in conjunction with the surgery. On May 7, 1982, Beyette and her husband initiated this action against Ortho in federal district court, alleging (1) that Or-tho failed to warn Beyette of the risk of PID associated with use of the Lippes Loop, and (2) that Ortho had breached the express warranties of product safety contained in its product information sheet and patient information leaflet; and (3) that Ortho was also liable to her husband for loss of consortium. The matter was tried to a jury which returned a verdict of $500,-000 in favor of Beyette and $63,000 in favor of her husband. Ortho filed a motion for judgment notwithstanding the verdict which was denied by the trial court. This timely appeal followed. On appeal, Ortho argued that there was insufficient evidence to support a verdict on Beyette’s cause of action charging a failure to warn her of the potential hazards associated with use of the Lippes Loop. To recover for failure to warn under Michigan law, a plaintiff must prove each of four elements of negligence: (1) that the defendant owed a duty to the plaintiff; (2) that the defendant violated the duty; (3) that the defendant’s breach of duty was the proximate cause of the injury to the plaintiff; and (4) that plaintiff suffered damages. Pettis v. Nalco Chemical Co., 150 Mich.App. 294, 388 N.W.2d 343, 346-47 (1986) citing Warner v. General Motors Corp., 137 Mich.App. 340, 357 N.W.2d 689 (1984). A manufacturer of a pharmaceutical product has a duty to warn the medical profession, not the patient, of any risks inherent in the use of the product which the manufacturer knows or should know to exist. Smith v. E.R. Squibb & Sons, Inc., 405 Mich. 79, 273 N.W.2d 476, 479 (1979). A manufacturer has a continuing duty to inspect and test its product during the course of manufacture and to warn the medical profession of any side effects associated" } ]

[ { "docid": "18913396", "title": "", "text": "[W]e would hold that a manufacturer of a prescription drug has a duty to warn the prescribing physician of known hazards associated with the use of the drug. We would also hold that a manufacturer of oral contraceptives has a duty to provide such a warning directly to the user of the drug. However, a manufacturer of a therapeutic, diagnostic or curative prescription drug, including oral contraceptives prescribed for such purposes, has no duty to warn the user directly, and need only warn the prescribing physician. The rationale of the learned intermediary doctrine supplies valid and important reasons in support of this rule. Id. at 718, 358 N.W.2d 873. The fact that a majority of the Supreme Court of Michigan declined to decide this question does not prevent this Court from fulfilling its responsibility to rule on the issue. It would have been much better if a majority of the Supreme Court had answered what is essentially a common law question. Such questions are universally addressed to courts. However, its failure to do so makes it necessary for this Court to expound Michigan law. Therefore, this Court is free to adopt the language of the minority opinion in deciding the issue. The Court does so, but only insofar as it applies to the issue in this case: whether the manufacturer of a prescription oral contraceptive has a duty under Michigan law to warn users directly of the risks and potential side effects of the drug when used for contraceptive purposes. Since the broader question of the duty of a manufacturer of any prescription drug directly to warn users of the risks of such drug was expressly left unresolved by a majority of the Supreme Court of Michigan, this Court need not address that issue. In this case, there is no question that the plaintiff sought and received her prescription for contraceptive purposes. Therefore, the motion for summary judgment on this issue is denied, and this Court holds that the manufacturer of prescription drugs is under a duty to warn the patient directly of the risks and side effects of oral" }, { "docid": "5909396", "title": "", "text": "established rules when it is appropriate. I find, as did my colleague in Stephens, that the reasons advanced in dissent in In re Certified Questions for rejecting the learned intermediary rule are persuasive, and I am satisfied that the position I take now will command a majority of the Michigan Supreme Court at some future date. No more is needed for me to establish as the rule of law in this case that a manufacturer of oral contraceptives has a duty to warn users of its product for birth control purposes directly of any risks inherent in their use. VI. A. Defendant has also moved for summary judgment on the grounds that the record establishes that Dr. Wake, the prescribing physician, would have done nothing different in terms of prescribing Ortho-Novum and warning plaintiff had she received the warnings plaintiff alleges were necessary. If I had concluded that the learned intermediary rule was applicable in this case, success in this argument would entitle defend ant to summary judgment and dismissal of the case. Having concluded that the learned intermediary rule is not applicable, I may not do all that. Proof of no cause in fact between defendant’s failure to warn Dr. Wake and plaintiff’s injury entitles defendant to summary judgment on plaintiff’s claim that Dr. Wake had been inadequately warned but leaves standing plaintiff’s claim that she herself had been inadequately apprised of the risks involved in use of Ortho-Novum. B. In Dr. Wake’s first affidavit, dated September, 1982, she stated: “6. In 1975-1976, pre-screening or follow-up tests for antithrombin III levels and thrombin generation index were not routinely performed on patients for whom oral contraceptives were prescribed. Such tests are not routinely performed today. It was not generally accepted medical practice in 1975-1976, nor is it today, to conduct such blood tests on patients for whom oral contraceptives were prescribed. Had Ortho Pharmaceuticals stated in its package inserts or other prescribing materials in 1975-1976 that such tests were available, I would not have performed them routinely on patients for whom I prescribed oral contraceptives, because such tests were not" }, { "docid": "5909378", "title": "", "text": "question. IV. A. Having determined that it is properly my role to answer the question, it then becomes my responsibility to determine whether the Michigan Supreme Court would impose a duty on the manufacturer of an oral contraceptive to warn consumers directly of the possible side effects associated with their use when required to decide the issue. If I were to make this determination on the basis of weight of authority alone, the outcome would be clear; the jurisdictions that have considered the question have been virtually unanimous in holding that the manufacturer must warn only the prescribing physician, not the patient. However, I must determine particularly the rule that the Michigan Supreme Court would follow and it is not proper to simply assume that the Michigan Supreme Court would unthinkingly go along with the rule that has been most often applied by other jurisdictions, without engaging in a reasoned analysis of the rule and without closely scrutinizing the reasons for the rule to determine whether its application is warranted here. As a general rule, the manufacturer of a product has a duty to warn the user of known dangers inherent in the use of that product. Courts have treated prescription drugs as an exception to this rule on the assumption that it is reasonable for the manufacturer to rely on the prescribing physician to forward to the patient who is the ultimate user of the drugs any warnings regarding their possible side effects. Thus, as previously mentioned, the majority of jurisdictions have held that a manufacturer of prescription drugs discharges its duty to warn the user of dangers inherent in the use of its product by warning the prescribing physician. This has- come to be known as the “learned intermediary” rule since presumably the' expertise of the prescribing physician causes the patient to rely on the physician rather than the manufacturer for any warnings. In substance the learned intermediary rule is not new; however, it was not until the relatively recent decision in Sterling Drug, Inc. v. Cornish, 370 F.2d 82 (8th Cir.1966), that the term “learned intermediary” was" }, { "docid": "18913393", "title": "", "text": "of law, holding that allocation of a duty to warn is a question of public policy involving the marketing system and economics of a major industry, and that the Legislature is in a better position to address the question than the Court. In re Certified Questions, Odgers v. Ortho Pharmaceutical Corp., Grainger v. Sandoz Pharmaceuticals, 419 Mich. 686, 358 N.W.2d 873 (1984). A vigorous and intelligent dissent was filed by Justice Boyle, who was joined by Chief Justice Williams and Justice Brickley. In this dissent, Justice Boyle argued that the certified question should be answered, and answered in the following way: We would hold that in addition to its duty to warn the prescribing physician, the manufacturer of an oral contraceptive has a duty to warn the user directly of known hazards, but the manufacturer of a therapeutic, diagnostic or curative drug does not have this additional duty. Id. at 699, 358 N.W.2d 873. The minority opinion carefully analyzed the so-called “learned intermediary doctrine,” which creates an exception to the usual duty to warn for the prescription drug situation on the rationale that the patient relies almost entirely on the expertise of the physician, who thus acts as a “learned intermediary” between the patient and the drug manufacturer. The dissent concluded that it did not apply to warnings in cases involving oral contraceptives: [T]he compelling reasons that persuaded us to limit the manufacturer’s duty to a physician warning in connection with therapeutic, diagnostic and curative drugs do not apply in the case of oral contraceptives____the patient seeking a contraceptive does not rely completely on the physician’s selection of an appropriate method or drug. The focus with oral contraceptives is on patient choice. When used for contraceptive purposes, the drug has no therapeutic or healing properties. Consumer demand for oral contraceptives has prompted their use more often than has the doctor’s advice____ The physician makes no assessment of medical need. Rather, the threshold question or need for contraception has already been decided by the patient when she visits the physician. Patient choice plays a much more prominent role than in the" }, { "docid": "5909388", "title": "", "text": "dissent in In re Certified Questions referring to marketing techniques would be in effect indirect reliance on the Note, I have also disregarded that part of the dissent. It should be noted that the Massachusetts court in MacDonald did not find it necessary to make any findings with regard to the marketing of oral contraceptives in coming to the same conclusion as the dissent in In re Certified Questions. Defendant next argues that the distinction made by the dissent in In re Certified Questions, between therapeutic drugs or “ordinary” prescription drugs and oral contraceptives is both unsound and unworkable. The crux of defendant’s argument is that oral contraceptives are often used for “therapeutic” as well as contraceptive purposes. Applying this fact to a duty to directly warn the consumer of oral contraceptives defendant reasons that “(a) the manufacturer must warn patients who receive the drug for non-therapeutic reasons, (b) the manufacturer has no way of knowing the purpose for which the drug is prescribed, therefore (c) the manufacturer must provide warnings to all users, irrespective of the reasons for the prescription.” Defendant’s Reply Brief in Support of Motion for Summary Judgment filed February 26, 1985 at 9. Defendant concludes that since a rule of notice to the consumer inevitably will require a manufacturer to warn those who are not using “the pill” for contraceptive purposes, such a rule does more than merely create an exception to the “learned intermediary” rule when oral contraceptives are involved — it also impinges on the learned intermediary rule in the noncontraceptive area by interfering with the physician-patient relationship when an oral contraceptive is prescribed for noncontraceptive purposes. Defendant’s statement that it is not possible to refer to “ordinary” prescription drugs on the one hand and oral contraceptives on the other ignores the fact that there are many differences in the way oral contraceptives and other prescription drugs are treated by both patients and physicians, not to mention the FDA. The law is accustomed to making distinctions based on such factual differences; it should not be that difficult to determine how an oral contraceptive was" }, { "docid": "5909366", "title": "", "text": "OPINION AND ORDER COHN, District Judge. I. This is a products liability case. Plaintiff Susan Odgers (Odgers) alleges that her use of Ortho-Novum, an oral contraceptive manufactured by defendant Ortho Pharmaceutical Corp. (Ortho); caused a blood clot resulting in her partial paralysis. Odgers claims that Ortho’s failure to adequately warn her directly and failure to adequately warn her physician, Dr. Joan Wake (Dr. Wake), of the possibility of blood clotting makes it liable to her for the damages she has suffered. The case was initially tried in June 1980 on an instruction that Ortho owed Odgers a duty to directly warn her of the risks and potential side effects of Ortho-Novum. The jury found for Odgers. Thereafter I granted Ortho a new trial on the grounds that my instruction was erroneous under Michigan law. On Odgers! motion, I subsequently certified the following question to the Michigan Supreme Court under Michigan General Court Rules of 1963, 797.2: “Does the manufacturer of an oral contraceptive which is a prescription drug, in addition to its duty under the common law of Michigan to warn physicians of any risks inherent in the use of the oral contraceptive which it knows or should know to exist, Smith v. E.R. Squibb & Sons, 405 Mich. 79, 273 N.W.2d 476 (1979), have a duty under the common law of Michigan to provide adequate warnings directly to persons using the oral contraceptives where (1) relevant federal regulations require that the manufacturer provide adequate warnings directly to such persons on the label of the package and certain other warnings in a brochure made available to physicians for discretionary distribution to persons prescribed oral contraceptives and (2) issuance of the prescription is based on informed choice rather than solely physician decision?” The Michigan Supreme Court, some 18 months after accepting the certified question for review, responded first, that there is no rule of law in Michigan that answers the question and second, declined to state a rule of law which would answer the question. A minority of three justices agreed with the majority of four justices that there was no" }, { "docid": "5909382", "title": "", "text": "Odgers, a stroke which allegedly resulted from her use of defendant’s oral contraceptive. The case was submitted to a jury on the theory that defendant was negligent if it had either failed to warn the physician or failed to warn plaintiff directly. The jury returned a verdict for plaintiff, finding that the physician had been adequately warned but that the manufacturer had breached its duty to warn the plaintiff. On appeal the Supreme Judicial Court of Massachusetts upheld the trial court’s instruction that the manufacturer had a duty to warn plaintiff directly; the learned intermediary rule was held to be inapplicable where oral contraceptives were involved. The court reasoned that “[o]ral contraceptives ... bear peculiar characteristics which warrant the imposition of a common law duty on the manufacturer.” Id. 475 N.E.2d at 69. The Supreme Judicial Court of Massachusetts forwarded three reasons for distinguishing between oral contraceptives and other prescription drugs. First, the court found that patients play a very different role in a physician’s decision to prescribe the pill: “Whereas a patient’s involvement in decisionmaking concerning use of a prescription drug necessary to treat a malady is typically minimal or nonexistent, the healthy, young consumer of oral contraceptives is usually actively involved in the decision to use ‘the pill,’ as opposed to other available birth control products, and the prescribing physician is relegated to a relatively passive role.” Id. Not only did the court conclude that the physician is relegated to a supporting role in the initial decision, it also found that “the physician prescribing ‘the pill,’ as a matter of course, examines the patient once before prescribing an oral contraceptive and only annually thereafter. J. Willson, E. Carrington, & W. Ledger, Obstetrics and Gynecology 184 (7th ed. 1983). D. Danforth, Obstetrics and Gynecology 267 (4th ed. 1982). T. Green, Gynecology: Essentials of Clinical Practice 593 (3rd ed. 1977). At her annual checkup, the patient receives a renewal prescription for a full year’s supply of the pill. Thus, the patient may only seldom have the opportunity to explore her questions and concerns about the medication with the prescribing physician.”" }, { "docid": "3953332", "title": "", "text": "characterized as causation or expert-related testimony. Statements of this ilk from these individuals will not be tolerated as these lay witnesses are not qualified to provide these opinions. 2. Exclude evidence on incorrect legal standards (DN 107) NPC moves to preclude Plaintiff from presenting evidence or arguments that imply it had a duty to warn anyone but Kyle’s treating physician (Dr. Steven Smith) about the alleged risks of Zometa. It cites the Kentucky Supreme Court decision of Larkin v. Pfizer, Inc., 153 S.W.3d 758 (Ky.2004), for the proposition that pharmaceutical companies are relieved from liability where they have provided an adequate warning to the prescribing physician. NPC thereby concludes it is contrary to the applicable law for Plaintiff to argue NPC is liable for failing to warn Kyle’s dentist, oral surgeon, periodontist, or her other health care providers. In Larkin v. Pfizer, Inc., the Sixth Circuit Court of Appeals reviewed a products liability action under Kentucky law where the plaintiff had suffered an adverse reaction to two medications prescribed by his physician. The record in the lower court established the plaintiffs physician was warned by Pfizer’s literature that the adverse reaction was a possible side effect. Id. at 760. On appeal, the Sixth Circuit certified the following question to Kentucky’s highest court: Whether the learned intermediary doctrine should apply in Kentucky to a case involving an allegation that a manufacturer of a prescription drug failed to warn the ultimate consumer of risks associated with that drug, even though the manufacturer informed the prescribing physician of those risks? Id. at 761. The court answered in the affirmative, describing the newly adopted rule as follows: A prescription drug or medical device is not reasonably safe due to inadequate instructions or warnings if reasonable instructions or warnings regarding foreseeable risks of harm are not provided to: (1) prescribing and other health-care providers who are in a position to reduce the risks of harm in accordance with the instructions or warnings; or (2) the patient when the manufacturer knows or has reason to know that health-care providers will not be in a position to" }, { "docid": "5909383", "title": "", "text": "decisionmaking concerning use of a prescription drug necessary to treat a malady is typically minimal or nonexistent, the healthy, young consumer of oral contraceptives is usually actively involved in the decision to use ‘the pill,’ as opposed to other available birth control products, and the prescribing physician is relegated to a relatively passive role.” Id. Not only did the court conclude that the physician is relegated to a supporting role in the initial decision, it also found that “the physician prescribing ‘the pill,’ as a matter of course, examines the patient once before prescribing an oral contraceptive and only annually thereafter. J. Willson, E. Carrington, & W. Ledger, Obstetrics and Gynecology 184 (7th ed. 1983). D. Danforth, Obstetrics and Gynecology 267 (4th ed. 1982). T. Green, Gynecology: Essentials of Clinical Practice 593 (3rd ed. 1977). At her annual checkup, the patient receives a renewal prescription for a full year’s supply of the pill. Thus, the patient may only seldom have the opportunity to explore her questions and concerns about the medication with the prescribing physician.” Id. (footnote omitted). Finally, the court considered the fact that oral contraceptives are “specifically subject to extensive Federal regulation ... designed to ensure that the choice of ‘the pill’ as a contraceptive method is informed by comprehensible warnings of potential side effects”, Id., to weigh in favor of imposing a common law duty to warn on the manufacturer. In Stephens v. G.D. Searle & Co., supra, the court was presented with the same problem with which I am faced, i.e., determining the position likely to be taken by the Michigan Supreme Court on this issue. The court adopted the rule of the dissenting opinion in In re Certified Questions for the reasons there stated and held that the learned intermediary doctrine is inapplicable in cases involving oral contraceptives. Aside from describing the dissent as “vigorous and intelligent”, the court, however, failed to clearly articulate its reasons for concluding that should the Michigan Supreme Court be faced again with the question the majority would adopt the dissent’s position. Consequently, while the decision of another federal court" }, { "docid": "13393243", "title": "", "text": "states that adequate warnings to prescribing physicians obviate the need for manufacturers of prescription products to warn ultimate consumers directly. The doctrine is based on the principle that prescribing physicians act as “learned intermediaries” between a manufacturer and consumer and, therefore, stand in the best position to evaluate a patient’s needs and assess risks and benefits of a particular course of treatment. The learned intermediary doctrine has been adopted in most jurisdictions, including Connecticut. See Basko v. Sterling Drug, Inc., 416 F.2d 417, 426 (2d Cir.1969). Defendant cites some dicta in Basko for the proposition that its duty under the doctrine is simply to warn the medical profession as a whole, rather than the particular treating physician. “[T]he manufacturer [of prescription products] can fulfill its duty to warn by warning the medical profession of the side effects of the [product].” Id. This statement from Basko is supported by a quote from Davis v. Wyeth Laboratories, Inc., 399 F.2d 121, 130 (9th Cir.1968), which opinion formed the basis for the holding in Basko. Although Davis did not deal with the particular issue of warnings on individually prescribed medications, it made clear that the warnings to the medical profession it spoke of meant warnings to individual prescribing physicians. The Basko court, in quoting Davis, omitted the prefacing statement that “[o]rdinarily in the case of prescription drugs warning to the prescribing physician is sufficient.” Id. “[T]he legal duty of the defendant drug manufacturer [is] to warn the prescribing physician rather than the patient of the risks inherent in the use of its product.” Goodson v. Searle Laboratories, 471 F.Supp. 546, 549 (D.Conn.1978) (emphasis added). Warnings to the medical profession generally rather than to individual prescribing physicians would be illogical and contrary to the very policy and purpose underlying the learned intermediary doctrine and the duty to warn. Unless the individual prescribing physician receives specific, relevant warnings, she cannot make a careful, balanced assessment of the risks and benefits to her patient, nor can the patient herself be adequately informed. Thus, the learned intermediary doctrine does not alter the duty of a manufacturer to" }, { "docid": "5909367", "title": "", "text": "common law of Michigan to warn physicians of any risks inherent in the use of the oral contraceptive which it knows or should know to exist, Smith v. E.R. Squibb & Sons, 405 Mich. 79, 273 N.W.2d 476 (1979), have a duty under the common law of Michigan to provide adequate warnings directly to persons using the oral contraceptives where (1) relevant federal regulations require that the manufacturer provide adequate warnings directly to such persons on the label of the package and certain other warnings in a brochure made available to physicians for discretionary distribution to persons prescribed oral contraceptives and (2) issuance of the prescription is based on informed choice rather than solely physician decision?” The Michigan Supreme Court, some 18 months after accepting the certified question for review, responded first, that there is no rule of law in Michigan that answers the question and second, declined to state a rule of law which would answer the question. A minority of three justices agreed with the majority of four justices that there was no rule of law on the question but dissented, taking the position that the question should be answered. The dissent then went on to impose a duty on the manufacturer of oral contraceptives to warn a user directly of known hazards associated with the use of the drug. See In re Certified Questions, 419 Mich. 686, 358 N.W.2d 873 (1984), reh’g denied, 421 Mich. 1202 (1985). Now before me is Ortho’s motion for summary judgment. Ortho urges that, in the absence of any Michigan rule of law on the question, I should adopt the rule that the manufacturer’s duty to warn runs only to the prescribing physician, not to the patient. Ortho also argues that, should I find that Ortho’s duty was only to warn Dr. Wake, there was no cause in fact between Ortho’s alleged failure to warn and Odgers’ injury in light of affidavits and deposition testimony by Dr. Wake to the effect that had she been warned of all of the risks involved in the use of Ortho-Novum, she would have prescribed it" }, { "docid": "5909368", "title": "", "text": "rule of law on the question but dissented, taking the position that the question should be answered. The dissent then went on to impose a duty on the manufacturer of oral contraceptives to warn a user directly of known hazards associated with the use of the drug. See In re Certified Questions, 419 Mich. 686, 358 N.W.2d 873 (1984), reh’g denied, 421 Mich. 1202 (1985). Now before me is Ortho’s motion for summary judgment. Ortho urges that, in the absence of any Michigan rule of law on the question, I should adopt the rule that the manufacturer’s duty to warn runs only to the prescribing physician, not to the patient. Ortho also argues that, should I find that Ortho’s duty was only to warn Dr. Wake, there was no cause in fact between Ortho’s alleged failure to warn and Odgers’ injury in light of affidavits and deposition testimony by Dr. Wake to the effect that had she been warned of all of the risks involved in the use of Ortho-Novum, she would have prescribed it to Odgers regardless. For the reasons which follow I disagree with Ortho on the scope of its duty to warn. II. The failure of the Michigan Supreme Court to state a rule of law on the question of a manufacturer’s duty to warn a user of oral contraceptives does not relieve me of my duty to answer the question. “[A] federal court cannot decline jurisdiction of a case simply because it is difficult to ascertain what the state courts thereafter may determine the state law to be.” 19 Wright, Miller & Cooper, Federal Practice & Procedure, § 4507 at 99; Meredith v. City of Winter Haven, 320 U.S. 228, 234-35, 64 S.Ct. 7, 10-11, 88 L.Ed. 9 (1943). “In the absence of a state court ruling our duty is tolerably clear. It is to decide, not avoid, the question.” Dailey v. Parker, 152 F.2d 174, 177 (7th Cir.1945). See also Ann Arbor Trust Co. v. North American Co. for Life and Health Insurance, 527 F.2d 526, 527 (6th Cir.1975), cert, denied, 452 U.S. 993, 96" }, { "docid": "18913392", "title": "", "text": "OPINION GILMORE, District Judge. This is a drug products liability ease in which plaintiff alleges that her use of Ovulen 21 birth control pills manufactured by the defendant caused her a stroke on November 2, 1981. The complaint charges defendant with liability on six counts: negligence, negligence per se, breach of express warranty, breach of implied warranty, fraud and deceit, and strict liability. In its motion for summary judgment, defendant raises six arguments, but the principal one relates to whether a manufacturer of prescription drugs is under any duty under Michigan law to put warnings on oral contraceptives to warn the patient directly of the risks and potential side effects associated with their use. This issue was certified to the Supreme Court of Michigan by Judge Cohn of this court, and argued in the Supreme Court of Michigan on May 5, 1983. On December 10, 1984, a divided Supreme Court stated that there was no rule of law in Michigan that would answer the question, and declined to decide the question or state a rule of law, holding that allocation of a duty to warn is a question of public policy involving the marketing system and economics of a major industry, and that the Legislature is in a better position to address the question than the Court. In re Certified Questions, Odgers v. Ortho Pharmaceutical Corp., Grainger v. Sandoz Pharmaceuticals, 419 Mich. 686, 358 N.W.2d 873 (1984). A vigorous and intelligent dissent was filed by Justice Boyle, who was joined by Chief Justice Williams and Justice Brickley. In this dissent, Justice Boyle argued that the certified question should be answered, and answered in the following way: We would hold that in addition to its duty to warn the prescribing physician, the manufacturer of an oral contraceptive has a duty to warn the user directly of known hazards, but the manufacturer of a therapeutic, diagnostic or curative drug does not have this additional duty. Id. at 699, 358 N.W.2d 873. The minority opinion carefully analyzed the so-called “learned intermediary doctrine,” which creates an exception to the usual duty to warn for" }, { "docid": "5909395", "title": "", "text": "the way of warnings may be required as a matter of state law. This objection, however, goes to the question of adequacy of the warning, not the existence of the duty to warn. Not only is the rule establishing a duty to warn the user of oral contraceptives directly the more reasoned rule of law, I am satisfied that it is the rule of law that the Michigan Supreme Court would most likely adopt. At the time the Michigan Supreme Court answered the certified question in In re Certified Questions, the MacDonald decision was yet to be announced. The resistance to change has been broken. In addition, the fact that a majority of the Michigan Supreme Court did not follow the rule of law that up to now has been fairly universally followed indicates a willingness on its part to at least question the rule when it comes to an oral contraceptive. As discussed in section III, supra, the Michigan Supreme Court has not been reluctant to progress the law of torts and has rejected established rules when it is appropriate. I find, as did my colleague in Stephens, that the reasons advanced in dissent in In re Certified Questions for rejecting the learned intermediary rule are persuasive, and I am satisfied that the position I take now will command a majority of the Michigan Supreme Court at some future date. No more is needed for me to establish as the rule of law in this case that a manufacturer of oral contraceptives has a duty to warn users of its product for birth control purposes directly of any risks inherent in their use. VI. A. Defendant has also moved for summary judgment on the grounds that the record establishes that Dr. Wake, the prescribing physician, would have done nothing different in terms of prescribing Ortho-Novum and warning plaintiff had she received the warnings plaintiff alleges were necessary. If I had concluded that the learned intermediary rule was applicable in this case, success in this argument would entitle defend ant to summary judgment and dismissal of the case. Having concluded" }, { "docid": "5909381", "title": "", "text": "Ethical Drug Manufacturer’s Liability, 18 Rutgers L.Rev. 947, 987 (1964) (footnotes omitted). B. Plaintiff argues that while the learned intermediary rule might make sense where prescription, or “ethical”, drugs other than contraceptives, sometimes referred to as “therapeutic” drugs, are involved, the reasons that have been advanced in support of the rule do not support its application in the context of oral contraceptives. Although it is true that most of the cases applying the learned intermediary rule have involved therapeutic drugs, the rule has also been applied in a number of cases involving oral contraceptives. In fact, at the time I certified this question to the Michigan Supreme Court there were no cases which supported plaintiffs argument that there was a duty to directly warn a user of oral contraceptives of dangers involved in their use. Now, quite apart from the dissenting opinion in In re Certified Questions, two very recent cases have held that such a duty exists. In MacDonald v. Ortho Pharmaceutical Corp., 394 Mass. 131, 475 N.E.2d 65 (Mass. 1985), plaintiff suffered, like Odgers, a stroke which allegedly resulted from her use of defendant’s oral contraceptive. The case was submitted to a jury on the theory that defendant was negligent if it had either failed to warn the physician or failed to warn plaintiff directly. The jury returned a verdict for plaintiff, finding that the physician had been adequately warned but that the manufacturer had breached its duty to warn the plaintiff. On appeal the Supreme Judicial Court of Massachusetts upheld the trial court’s instruction that the manufacturer had a duty to warn plaintiff directly; the learned intermediary rule was held to be inapplicable where oral contraceptives were involved. The court reasoned that “[o]ral contraceptives ... bear peculiar characteristics which warrant the imposition of a common law duty on the manufacturer.” Id. 475 N.E.2d at 69. The Supreme Judicial Court of Massachusetts forwarded three reasons for distinguishing between oral contraceptives and other prescription drugs. First, the court found that patients play a very different role in a physician’s decision to prescribe the pill: “Whereas a patient’s involvement in" }, { "docid": "5909384", "title": "", "text": "Id. (footnote omitted). Finally, the court considered the fact that oral contraceptives are “specifically subject to extensive Federal regulation ... designed to ensure that the choice of ‘the pill’ as a contraceptive method is informed by comprehensible warnings of potential side effects”, Id., to weigh in favor of imposing a common law duty to warn on the manufacturer. In Stephens v. G.D. Searle & Co., supra, the court was presented with the same problem with which I am faced, i.e., determining the position likely to be taken by the Michigan Supreme Court on this issue. The court adopted the rule of the dissenting opinion in In re Certified Questions for the reasons there stated and held that the learned intermediary doctrine is inapplicable in cases involving oral contraceptives. Aside from describing the dissent as “vigorous and intelligent”, the court, however, failed to clearly articulate its reasons for concluding that should the Michigan Supreme Court be faced again with the question the majority would adopt the dissent’s position. Consequently, while the decision of another federal court predicting state law may be helpful in making an “Erie guess”, see Lesnefsky v. Fischer & Porter Co., Inc., 527 F.Supp. 951 (E.D.Pa.1981); Factors Etc., Inc. v. Pro Arts, Inc., 652 F.2d 278 (2d Cir.1981), cert, denied, 456 U.S. 927, 102 S.Ct. 1973, 72 L.Ed.2d 442 (1982), the decision in Stephens is not really helpful. As previously mentioned, the Stephens opinion basically adopts the reasons advanced by the dissent in In re Certified Questions for rejecting the learned intermediary rule. For the most part those reasons are the same as those given in MacDonald: use attributed to consumer demand rather than physician’s advice, use for extended periods without medical assessment, and FDA regulations requiring direct warnings to patients. In addition, the dissent and the court in Stephens found that consumers of oral contraceptives are subjected to much laudatory publicity attributable to the manufacturers and aimed directly at consumers. This, they concluded, distinguishes oral contraceptives from other ethical drugs and is another factor which justifies imposition of a duty to warn. See Stephens at 380-81; In" }, { "docid": "3953333", "title": "", "text": "the lower court established the plaintiffs physician was warned by Pfizer’s literature that the adverse reaction was a possible side effect. Id. at 760. On appeal, the Sixth Circuit certified the following question to Kentucky’s highest court: Whether the learned intermediary doctrine should apply in Kentucky to a case involving an allegation that a manufacturer of a prescription drug failed to warn the ultimate consumer of risks associated with that drug, even though the manufacturer informed the prescribing physician of those risks? Id. at 761. The court answered in the affirmative, describing the newly adopted rule as follows: A prescription drug or medical device is not reasonably safe due to inadequate instructions or warnings if reasonable instructions or warnings regarding foreseeable risks of harm are not provided to: (1) prescribing and other health-care providers who are in a position to reduce the risks of harm in accordance with the instructions or warnings; or (2) the patient when the manufacturer knows or has reason to know that health-care providers will not be in a position to reduce the risks of harm in accordance with the instructions or warnings. Id. at 762 (quoting Restatement (Third) of Torts: Prods. Liab. § 6(d) (1998)) (formatting altered). Courts within Kentucky’s borders have relied on Larkin to immunize drug manufacturers from liability when physicians were adequately warned about potential side effects. E.g., Smith v. Smithkline Beecham Corp., No. 10-CV-73-ART, 2010 WL 3432594, at *3 (E.D.Ky. Aug. 30, 2010); Gibson v. Sanofi-Aventis U.S., LLC, No. 3:07-CV-192-S, 2009 WL 3490454, at *4 (W.D.Ky. Oct. 27, 2009). Underlining certain passages, NPC says Larkin opted for the restrictive view of the learned intermediary rule that states pharmaceutical companies are only required to warn a patient’s prescribing physician. While this argument is not completely disjointed from the opinion’s language, the Kentucky Supreme Court’s holding was unambiguous: “we now adopt Restatement (Third) of Torts: Products Liability § 6(d) (duty to warn of possible side effects satisfied if adequate warning given to patient’s health care provider, subject to exceptions).” Larkin, 153 S.W.3d at 770. Thus, the restatement’s requirements should guide this opinion rather" }, { "docid": "21221329", "title": "", "text": "295 F.Supp.2d 693, 706 (E.D.Ky.2003) (finding that the learned intermediary doctrine severs the liability of a pharmaceutical company where the prescribing doctor has been adequately warned of risks). One writer has noted: It is sometimes said that the physician should disclose the diagnosis, the general nature of the contemplated procedure, the material risks involved in the procedure, the probability of success associated with the procedure, the prognosis if the procedure is not carried out, and the existence and risks of any alternatives to the procedure. Dan B. Dobbs, The Law of Torts, 659 (2001). The list is not exclusive. Under Florida law, the manufacturer of a product has a general duty to warn users of any dangers inherent in or associated with its use. See Zanzuri v. G.D. Searle & Co., 748 F.Supp. 1511, 1514 (S.D.Fla.1990) (applying Florida tort law to suit brought against manufacturer of an intrauterine copper contraceptive). “One exception to this rule, however, is the ‘learned intermediary’ doctrine, whereby the manufacturer of a prescription drug discharges its duty to warn by providing an adequate warning to the prescribing physician.” Zanzuri, 748 F.Supp. at 1514; see also Upjohn Co. v. MacMurdo, 562 So.2d 680, 683 (Fla.1990) (“The manufacturer’s duty to warn of the drug’s dangerous side effects is directed to the physician rather than the patient.”); Buckner v. Allergan Pharms., Inc., 400 So.2d 820, 822 (Fla.App.1981) (“A manufacturer of a dangerous commodity, such as a drug, does have a duty to warn but when the commodity is a prescription drug we hold that this duty to warn is fulfilled by an adequate warning given to those members of the medical community lawfully authorized to prescribe, dispense and administer prescription drugs.”). A prescribing physician who has been adequately warned about the drugs’ risks breaks “the causal link between the manufacturer and the plaintiff, thereby insulating the manufacturer from tort liability for harm caused by the drug.” Zanzuri, 748 F.Supp. at 1515. Florida courts base this rule on the following rationale: “the prescribing physician, acting as a ‘learned intermediary’ between the manufacturer and the consumer, weighs the potential benefits against" }, { "docid": "18913395", "title": "", "text": "case of drugs prescribed for the treatment of illness or injury. The role of patient choice in this process supports the need for a direct patient warning. Id. at 711-12, 358 N.W.2d 873. Justice Boyle also noted that oral contraceptives are distinguished from other prescription drugs by the zealous marketing practices used by the manufacturers, who aimed laudatory publicity directly at consumers. “As a result of this publicity, patients eager to take the pill have specifically requested it as the most effective means of preventing unwanted pregnancies, and doctors have responded to these requests by prescribing it.” Id. at 712, 358 N.W.2d 873. The dissent noted as well that the nature of the physician-patient relationship may be different in the case of oral contraceptives than with other prescription drugs since a “woman does not necessarily consult her physician every time she decides to refill her prescription,” and because “a woman may take oral contraceptives for extended periods without any medical assessment of side effects.” Id. at 713-14, 358 N.W.2d 873. The dissent stated in conclusion: [W]e would hold that a manufacturer of a prescription drug has a duty to warn the prescribing physician of known hazards associated with the use of the drug. We would also hold that a manufacturer of oral contraceptives has a duty to provide such a warning directly to the user of the drug. However, a manufacturer of a therapeutic, diagnostic or curative prescription drug, including oral contraceptives prescribed for such purposes, has no duty to warn the user directly, and need only warn the prescribing physician. The rationale of the learned intermediary doctrine supplies valid and important reasons in support of this rule. Id. at 718, 358 N.W.2d 873. The fact that a majority of the Supreme Court of Michigan declined to decide this question does not prevent this Court from fulfilling its responsibility to rule on the issue. It would have been much better if a majority of the Supreme Court had answered what is essentially a common law question. Such questions are universally addressed to courts. However, its failure to do so makes" }, { "docid": "18913397", "title": "", "text": "it necessary for this Court to expound Michigan law. Therefore, this Court is free to adopt the language of the minority opinion in deciding the issue. The Court does so, but only insofar as it applies to the issue in this case: whether the manufacturer of a prescription oral contraceptive has a duty under Michigan law to warn users directly of the risks and potential side effects of the drug when used for contraceptive purposes. Since the broader question of the duty of a manufacturer of any prescription drug directly to warn users of the risks of such drug was expressly left unresolved by a majority of the Supreme Court of Michigan, this Court need not address that issue. In this case, there is no question that the plaintiff sought and received her prescription for contraceptive purposes. Therefore, the motion for summary judgment on this issue is denied, and this Court holds that the manufacturer of prescription drugs is under a duty to warn the patient directly of the risks and side effects of oral contraceptives when prescribed for contraceptive purposes. Another claim in the motion for summary judgment is that the warning provided by the defendant to the medical profession was adequate, as a matter of law. It is clear to this Court that the adequacy of a warning in a products liability case is a question for the jury. Stapleton v. Kawasaki Heavy Industries, Ltd., 608 F.2d 571 (5th Cir.1978); Dougherty v. Hooker Chemical Corp., 540 F.2d 174 (3d Cir.1976). Therefore, this claim must be tried. The next claim by defendant is that Michigan does not recognize a separate cause of action for breach of implied warranty in cases alleging failure to warn of the dangers of prescription drugs, citing Smith v. E.R. Squibb & Co., 405 Mich. 79, 273 N.W.2d 476 (1979). Plaintiff correctly points out that what Smith held was only that in such cases negligence and breach of implied warranty involve identical evidence and require proof of the same elements. Defendant argues that the evidence here shows that it is not liable under the negligence" } ]

[ { "docid": "1332022", "title": "", "text": "records, the Court makes the following: MEMORANDUM ORDER Pursuant to 11 U.S.C. § 1107, a debtor in possession has all the rights and must perform all the functions and duties of a trustee. To assist the trustee or debtor in possession in carrying out his responsibilities described in § 1106 of the Code, Congress enacted 11 U.S.C. § 327 authorizing the employment of professional persons. Insofar as employment of professionals to represent the debtor in possession, § 327(a) sets forth criteria for evaluation of the professional. These standards, directed at avoiding conflicts of interest, require that the professional person not hold or represent an interest adverse to the estate AND be a “disinterested person” as defined in 11 U.S.C. § 101(13). This particular section states: “disinterested person” means person that (A) is not a creditor, an equity security holder, or an insider... (D) is not and was not, within two years before the date of the filing of the petition, a director, officer, or employer of the debtor... (E) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest on, the debtor.. . The application for approval of Gray, Plant raises several issues: whether the positions held by two of Gray, Plant’s attorneys with the debtor render them not “disinterested persons”; whether the disqualification of two Gray, Plant attorneys is imputable to the entire firm; and whether Gray, Plant is excepted from the “disinterested person” standard by application of 11 U.S.C. § 1107(b). 11 U.S.C. § 101(13)(D) clearly indicates that individuals who are or have been directors or officers within two years before the filing of the petition are not “disinterested persons.” Russell Bennett, who is a member of Gray, Plant, has served on the debtor's board of directors since 1969. Richard Flint, who is also a member of Gray Plant, has been secretary of the Debt- or since 1969. In addition, both Bennett and Flint are equity security holders of the debtor. Clearly" } ]

[ { "docid": "17980587", "title": "", "text": "all common law lien rights. Village of New Brighton v. Jamison, 278 N.W.2d 321 (Minn.1979). Accordingly, attorneys’ liens arising in Minnesota pursuant to § 481 constitute statutory liens. An attorney’s lien attaches to the proceeds of a cause of action upon commencement of the action. Blazek v. North Am. Life & Cas. Co., 265 Minn. 236, 121 N.W.2d 339 (1963). The mere attachment, however, cannot defeat a bona fide purchaser in good faith. See MINN.STAT. § 481.-13(6) it 5. See also Kohrt v. Mercer, 203 Minn. 494, 282 N.W. 129 (1938). The attorney in whose favor the lien attaches must perfect the lien as provided in § 481.13 in order to protect it from such purchasers. Mr. McEwen failed to perfect his lien and the trustee, in his status as a bona fide purchaser in good faith, can avoid it pursuant to 11 U.S.C. § 545. Bankruptcy Related Fees Mr. McEwen requests $33,352.00 for attorney’s fees in connection with the bankruptcy cases. As stated above, Mr. McEwen was a prepetition creditor of this estate. 11 U.S.C. § 327(a) permits the trustee’s employment of professional persons to represent or assist an estate on the following conditions: (a) Except as otherwise provided in this section, the trustee, with the court’s approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee’s duties under this title. 11 U.S.C. § 327(a) (1979 and supp. 1985) (emphasis added) A disinterested person is defined in § 101, Subd. 13(A) and (E) of the Bankruptcy Code as: (13) ‘disinterested person’ means person that— (A) is not a creditor, an equity security holder, or an insider; ... (E) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor or an investment banker specified in subparagraph (B) or (C)" }, { "docid": "17928020", "title": "", "text": "bankruptcy court resolved all outstanding issues”). . 11 U.S.C. § 101(14) provides in full as follows: (14) \"disinterested person” means person that— (A) is not a creditor, an equity security holder, or an insider; (B) is not and was not an investment banker for any outstanding security of the debtor; (C) has not been, within three years before the date of the filing of the petition, an investment banker for a security of the debtor, or an attorney for such investment banker in connection with the offer, sale, or issuance of a security of the debtor; (D) is not and was not, within two years before the date of the filing of the petition, a director, officer, or employee of the debtor or of an investment banker specified in subpara-graph (B) or (C) of this paragraph; and (E) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor or an investment banker specified in subparagraph (B) or (C) of this paragraph, or for any other reason[.] . In re Enercons Virginia, Inc., 812 F.2d 1469, 1472 (4th Cir.1987), upon which the bankruptcy court relied, does not dictate a different conclusion. In Enercons, the Court of Appeals for the Fourth Circuit considered whether the trustee of a foreign bankrupt creditor could pursue that creditor’s claim against the debtor. The court held that the trustee was authorized by 11 U.S.C. § 101(9) to file a proof of claim as a \"creditor.” This conclusion does not, however, compel a finding that a trustee, asserting a claim in a representative capacity, becomes a \"creditor” for purposes of section 101(14)(A). . This reading of section 101(14)(E) is supported by section 327(a). Section 327(a) authorizes the trustee to employ professionals “that do not hold or represent an interest adverse to the estate and that are disinterested persons. ...” Where section 327 explicitly applies to persons who hold or represent adverse interests, disqualifying both, section 101(14)(E) refers only" }, { "docid": "85315", "title": "", "text": "F.3d at 57. The Bankruptcy Code allows debtors to employ only those attorneys who meet strict conflict standards. It states: Except as otherwise provided in this section, the trustee, with the court’s approval, may employ one or more attorneys ... that do not hold or represent an interest adverse to the estate, and that are disinterested persons to repre sent or assist the trustee in carrying out the trustee’s duties under this title. 11 U.S.C. § 327(a). The court “may deny allowance of compensation ... if, at any time during such ... employment ..., such professional person is not a disinterested person, or represents or holds an interest adverse to the interest of the estate ...” 11 U.S.C. § 828(c). Section 327 establishes a two-part test which must be satisfied if a lawyer is to be authorized to act as counsel for a debtor. First, the lawyer must be “disinterested.” See Smith v. Marshall (In re Hot Tin Roof, Inc.), 205 B.R. 1000, 1002 (1st Cir. BAP 1997). An attorney is disinterested as long as he “is not a creditor, an equity security holder, or an insider” and “does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor ... or for any other reason.” 11 U.S.C. § 101(14)(A), (E). The purpose of the disinterest requirement of 11 U.S.C. § 327 is to “prevent even the appearance of a conflict irrespective of the integrity of the person or firm under consideration ... which might be reflected in [the attorney’s] decision[s] concerning estate matters.” In re Martin, 817 F.2d at 181 (citation omitted, emphasis added). Accordingly, an inquiry does not have to ask “whether a conflict exists — although an actual conflict of any degree of seriousness will obviously present a towering obstacle — but whether a potential conflict, or the perception of one renders the lawyer’s interest materially adverse to the estate or the creditors.” Id. at 182 (emphasis added). These disinterestedness" }, { "docid": "14781100", "title": "", "text": "will the trustee [or debtor in possession] be deprived of the privilege of selecting qualified counsel since the relationship between them is highly confidential, demanding personal faith and confidence in order that they may work together harmoniously). Trustees do not, however, have unfettered discretion in their choice of counsel — the Code expressly subjects the selection to court approval. Section 327(a) of the Bankruptcy Code specifies the conditions upon which professional persons may be employed by the trustee: ... [T]he trustee, with the court’s approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons, ... Although § 327(a), by its terms, refers to “the trustee,” 11 U.S.C. § 1107(a) makes' § 327(a) applicable to attorneys appointed to assist in possession. See Matter of Triangle Chemicals, Inc., 697 F.2d 1280 (5th Cir.1983). A debtor in possession stands in the shoes of a trustee in every way. S.Rep. No. 989, 95th Cong., 2d Sess. 116, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5902, Triangle Chemicals, 697 F.2d at 1284. Thus, the attorney for the debtor in possession must meet the requirements of § 327(a) in obtaining counsel. Matter of Seatrain Lines, Inc., 13 B.R. 980, 981 (Bankr.S.D.N.Y.1981). Section 327(a) imposes a two-part test upon attorneys — and other professionals— seeking appointment. The attorney must be a disinterested person and cannot hold or represent an interest adverse to the estate. While the Code has left undefined the contours of the phrase “interest adverse to the estate,” a disinterested person is defined in the Code as one who: (A) is not a creditor, an equity security holder, or an insider; ... (E) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor ... or for any other reason, 11 U.S.C. § 101(13). Because a “creditor” is defined at § 101(9)(A) as “an entity" }, { "docid": "10247162", "title": "", "text": "the 2016 Statement was, in fact, a $50,000.00 demand note executed on August 27, 1987, one day before the petition was filed. The note was secured by the Debtor’s real property and a perfected security interest in Debtor’s accounts receivable. In order to further protect Debtor’s attorney’s fees, by further perfecting the lien thereon, Debt- or’s attorneys required Debtor to segregate its accounts receivable. Debtor did so. Following the December 16 hearing, Debtor’s attorneys filed an application for interim compensation requesting nunc pro tunc approval of the $5,000.00 payment already made to its attorneys, hearing on which is set for April 19, 1988. CONCLUSIONS OF LAW The issue raised by the U.S. Trustee is whether an attorney or law firm with a security interest in property of the estate is disinterested within the meaning of 11 U.S. C. § 327(a) and 11 U.S.C. § 101(13). Section 327(a) states: ... [T]he Trustee [or debtor in possession], with the Court’s approval, may employ one or more attorneys ... [who] do not hold or represent an interest adverse to the estate, and [who] are disinterested persons.... Section 101(13) states: “disinterested person” means person who: (A) is not a creditor ... [and] (E) does not have an interest materially adverse to the interests of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor ..., or for any other reason[.] Therefore, by virtue of the security interest obtained by the attorneys prepetition, the attorneys are strictly speaking, creditors of the estate. Section 101(13)(A) states unconditionally that a creditor cannot be a disinterested person. As discussed below, however, many courts recognize that this seemingly unequivocal disqualification of creditors cannot be rigidly enforced. The more important consideration is the nature of the interest taken with respect to § 101(13)(E). This Court is persuaded by the reasoning of the First Circuit Court of Appeals in In re Martin, 817 F.2d 175 (1st Cir.1987). This Court agrees that use of a per se rule excluding attorneys who are creditors of" }, { "docid": "3712494", "title": "", "text": "not to totally deny McEwen’s fees and expenses, but rather, to relegate his status in claiming those fees to that of the other general, unsecured creditors. In summary, we hold that the bankruptcy court did not err in allowing the trustee to avoid McEwen’s lien. Because McEwen failed to file notice of his lien under Minn. Stat. § 481.13, the lien was either unperfected, or not established and therefore unenforceable. Thus, the trustee could avoid the lien under 11 U.S.C. § 545(2). B. Bankruptcy-Related Fees. McEwen argues that, under the facts of this case, his prepetition mortgage did not disqualify him from employment as a disinterested person. Additionally, McEwen argues that he should be awarded his fees nunc pro tunc prior to his order of appointment because he was under the mistaken impression that an order had been filed, and because he worked for the debtors during this period without objection from any of the parties involved. Because of our conclusions as to the first claim, however, it will become evident that the second claim is essentially moot. The bankruptcy court, with the district court affirming, held that McEwen was not entitled to compensation for his post-petition work because he was not a disinterested person. Under 11 U.S.C. § 327(a), the trustee could employ, with the court’s approval, an attorney who did “not hold or represent an interest adverse to the estate, and [was a] disinterested person * * 11 U.S.C. § 327(a). Although framed conjunctively, the conditions are applied disjunctively; failure to meet either will result in disqualification. See In re Leisure Dynamics, Inc., 32 B.R. 753, 754 (Bankr.D.Minn.) (supplemental opinion to 32 B.R. 751), aff'd, 33 B.R. 121 (D.Minn.1983). The bankruptcy court found that McEwen failed to meet two parts of the definition of a disinterested person: (13) “disinterested person” means person that— (A) is not a creditor, an equity security holder, or an insider; * * * * * * (E) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of" }, { "docid": "17980589", "title": "", "text": "of this paragraph, or for any other reason; 11 U.S.C. § 101(13)(A) and (E). Unfortunately, Mr. McEwen does not qualify as a “disinterested person”. He was a prepetition creditor of these estates, and he held a mortgage on the Debtors’ real property to secure payment of prepetition and post-petition services. This placed him in an untenable position adverse to both the Debtors and the other interests in the cases. When an attorney representing a bankruptcy estate does not qualify as a disinterested person, he is not ordinarily entitled to be employed by the estate or receive any compensation. See In re Leisure Dynam ics, Inc., 38 B.R. 121 (D.Minn.1983). The Court must, therefore, disallow Mr. McEwen any compensation for his post-petition work. Mr. McEwen did, however, do some work prior to the filing of the petition in preparing the petitions and schedules in each case. These were reasonable and necessary services provided for these estates. Mr. McEwen is not disqualified to receive compensation for these services since they were rendered prior to the time the petition was filed and before the requirements of § 327 became applicable. See Kotts v. Westphal, 746 F.2d 1329 (8th Cir.1984). The reasonable value for these services is $2,000.00 in each case. The services benefited both the Chapter 11 and Chapter 7 estates. Therefore, the Court will allow $2,000.00 as an administrative expense against each Chapter 7 estate. IT IS ORDERED as follows: 1. All attorney’s fees and costs claimed for prepetition work in prosecuting the state court action on behalf of the Pierce family are disallowed as an administrative expense, and the claim shall be treated as an unsecured claim. 2. All fees and costs claimed for post-petition work are denied. 3. Neil McEwen is hereby awarded $2,000.00 in each of these bankruptcy cases as and for reasonable and necessary charges against the Chapter 7 estates. 4. The attorney’s lien claimed by Neil McEwen in the estates’ proceeds of the state court action against National Farmers Union Property and Casualty Insurance Company is hereby avoided and is of no force or effect. . Mr." }, { "docid": "3712497", "title": "", "text": "See In re O’Connor, 52 B.R. 892, 899 (Bankr.W.D.Okla.1985). Although McEwen’s argument is not without merit, the intent of the statute is clear; if a professional is a creditor, then that person is not disinterested under 11 U.S.C. § 101(13) and is subject to disqualification under Section 327(a). As this court recent ly noted, the professional’s complaint in this area lies with Congress, not the courts. In re Daig Corp., 799 F.2d 1251, 1253 n. 5 (8th Cir.1986), aff'g, 48 B.R. 121 (Bankr.D.Minn.1985). Moreover, there are two other grounds upon which the court could have denied McEwen’s fees. First, under Section 327(a), an attorney may be disqualified not only because he or she is not disinterested, but also because the attorney holds an “interest adverse to the estate.” 11 U.S.C. § 327(a). At least one court has held that an attorney’s pre-petition mortgage on the debtor’s real estate constitutes an “adverse interest” under Section 327(a). In re Martin, 59 B.R. 140,143 (Bankr.D.Maine 1986); see also In re Roberts, 46 B.R. 815, 849 (Bankr.D.Utah 1985) (attorney’s pre-petition debt for legal fees for services not rendered in connection with bankruptcy case would constitute an adverse interest). Thus, the court could have denied compensation on this ground. Second, by failing to disclose the secured mortgage in either the statement of attorney or in the application for employment filed on October 11, 1984, McEwen committed a classic violation of the disclosure requirements embodied in 11 U.S.C. § 328(a) and Bankruptcy Rule 2014(a). Many courts have denied compensation to professionals where, in addition to other factors, they failed to previously disclose a relationship with the debtor that could have presented a potential area of conflict. See, e.g., In re Gray, 64 B.R. 505, 508 (Bankr.E.D.Mich.1986); In re Roberts, 46 B.R. at 850; In re Patterson, 53 B.R. 366, 373, 374 (Bankr.D.Neb.1985); In re Guy Apple Masonry Contractor, Inc., 45 B.R. 160, 162-63, 168 (Bankr.D.Ariz.1984). In summary, we find that the bankruptcy court could have denied McEwen his fees on any of the three aforementioned grounds. The court, however, determined that because McEwen was not disinterested," }, { "docid": "17980588", "title": "", "text": "U.S.C. § 327(a) permits the trustee’s employment of professional persons to represent or assist an estate on the following conditions: (a) Except as otherwise provided in this section, the trustee, with the court’s approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee’s duties under this title. 11 U.S.C. § 327(a) (1979 and supp. 1985) (emphasis added) A disinterested person is defined in § 101, Subd. 13(A) and (E) of the Bankruptcy Code as: (13) ‘disinterested person’ means person that— (A) is not a creditor, an equity security holder, or an insider; ... (E) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor or an investment banker specified in subparagraph (B) or (C) of this paragraph, or for any other reason; 11 U.S.C. § 101(13)(A) and (E). Unfortunately, Mr. McEwen does not qualify as a “disinterested person”. He was a prepetition creditor of these estates, and he held a mortgage on the Debtors’ real property to secure payment of prepetition and post-petition services. This placed him in an untenable position adverse to both the Debtors and the other interests in the cases. When an attorney representing a bankruptcy estate does not qualify as a disinterested person, he is not ordinarily entitled to be employed by the estate or receive any compensation. See In re Leisure Dynam ics, Inc., 38 B.R. 121 (D.Minn.1983). The Court must, therefore, disallow Mr. McEwen any compensation for his post-petition work. Mr. McEwen did, however, do some work prior to the filing of the petition in preparing the petitions and schedules in each case. These were reasonable and necessary services provided for these estates. Mr. McEwen is not disqualified to receive compensation for these services since they were rendered prior to the time the" }, { "docid": "18530055", "title": "", "text": "funds from the pre- and post-petition retainer without a fee application, provided he complies with the Fee Guide procedures for pre-petition retainers promulgated by the U.S. Trustee? IV. DISCUSSION A. Payment of the pre-petition retainer and ongoing counsel fees by the general partner of the Debtor does not constitute a per se impermissible conflict of interest. This Court is given authority to review and approve the Employment Application by virtue of 11 U.S.C. §§ 327, 328, 329(b), 330 and 331 of the Bankruptcy Code. Section 328(a) provides that any agreement or arrangement concerning the employment or compensation of a professional by a debt- or-in-possession is subject to court review and approval and that such arrangement or agreement must be reasonable. This requirement is further supported by Bankruptcy Rule 2014 which mandates that professionals seeking approval of their employment by the bankruptcy estate must disclose “... any proposed arrangement for compensation ...” and “... all of the person’s connections with the debtor, creditors, any other party in interest, their respective attorneys and accountants, [and] the United States trustee....” Title 11 U.S.C. §§ 327(a) and 1107(a) present certain limitations on authorizing a debtor-in-possession to employ an attorney or other professional. That professional must be considered a “disinterested person” and must not hold an interest adverse to the interest of the estate with respect to the matter on which such professional person is employed. “Disinterested person” is defined in 11 U.S.C. 101(14), in pertinent part as follows: “disinterested person” means person that— (A) is not a creditor, an equity security holder, or an insider; ... (E) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor or an investment banker specified in subparagraph (B) or (C) of this paragraph, or for any other reason; All facts pertinent to a court’s determination of whether an attorney is disinterested or holds an adverse interest to the estate must be disclosed. The disclosure must be made in" }, { "docid": "18517750", "title": "", "text": "also paid or advanced funds to Frank and his wife for personal expenses. Some of these funds were reimbursed and the balance was treated as a gift. Additionally, Berkshire Factoring, Inc., another entity owned directly or indirectly by Joseph, paid $45,542 to KGW on September 8, 1993, for legal services provided to Frank. II. DISCUSSION Chapter 11 A Chapter 11 debtor-in-possession (DIP) stands in the shoes of a trustee and acquires the same rights, duties and responsibilities, except as otherwise provided by the Bankruptcy Code (Code). 11 U.S.C. § 1107(a). Section 327(a) of the Code, allows a DIP to employ an attorney, accountant, or other professional person to represent the DIP. A professional will not be disqualified for employment by the DIP “solely because of such person’s employment by or representation of the debtor before the commencement of the case.” 11 U.S.C. § 1107(b) (emphasis added). However, professional employment under § 327(a) hinges on two requirements: disinterestedness and not holding or representing an interest adverse to the estate. Section 101(14) of the Code defines a “disinterested person.” Subsections (A) and (E) of the section read as follows: “disinterested person” means person that— (A) is not a creditor, an equity security holder, or an insider; * * * * * :H (E) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor ... or for any other reason. 11 U.S.C. § 101(14). Subsection (E) has been referred to as a catchall clause, expansive enough to encompass anyone who may have an interest in or relationship with the debtor, tending to color the objective and impartial perspective required of attorneys and other professionals by the Code. 2 Collier on Bankruptcy ¶ 327.03[3][f]; In re Global Marine, Inc., 108 B.R. 998, 1005 (Bankr.S.D.Tex.1987). “[A] ‘disinterested person should be divested of any scintilla of personal interest which might be reflected in his decision concerning estate matters.’ ” In re Kendavis Indus. Int'l 91 B.R. 742," }, { "docid": "4725498", "title": "", "text": "the application for appointment is filed, the Court will be unable to determine whether an adverse interest exists. Hadleman Pipe & Supply Company at 1304. An adverse interest exists if the applicant is not a disinterested person. The term disinterested person is defined under 11 U.S.C. § 101(13) in pertinent part as follows: In this title— (13) “distinterested person” means person that— (A) is not a creditor, an equity security holder, or an insider; ... (D) is not and was not, within two years before the date of the filing of the petition, a director, officer, or employee of the debtor ... (E) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity ecurity holders, by reason of any direct or indirect relationship to, connection with, or itnerest in, the debtor ... Bankruptcy Rule 2014 implements 11 U.S.C.-§ 327(c), and states that: An order approving the employment of attorneys, accountants, appraisers, auctioneers, agents, or other professionals pursuant to § 327 or § 1103 of the Code shall be made only on application of the trustee or committee, stating the specific facts showing the necessity for the employment, the name of the person to be employed, the reasons for the selection, the professional services to be rendered, any proposed arrangement for compensation, and, to the best of the applicant’s knowledge, all of the persons’s connections with the debtor, creditors, or any other party in interest, their respective attorneys and accountants. The application shall be accompanied by a verified statement of the person to be employed setting forth the person’s connections with the debtor, creditors, or any other party in interest, their respective attorneys and accountants. [Emphasis added.] Bankruptcy Rule 2014 requires the professional seeking appointment to disclose in his application to the Court all actual or potential conflicts which may bear upon his eligibility to serve as counsel for the debt- or. In re Roberts, 75 B.R. 402, 410 (Bankr. D.Utah 1987); In re Thompson, 54 B.R. 311, 315 (Bankr.N.D.Ohio 1985), affirmed, 77 B.R. 113 (N.D.Ohio 1987). This requirement of" }, { "docid": "23614138", "title": "", "text": "disclosed when they were. The facts disclosed in the Rheuban Declaration and not disclosed in the First Application or the Revised Application are pertinent to my determination of whether L & E’s employment by Hathaway can be approved. L & E argued at the Revised Application hearing that its failure to disclose was inadvertent.' It is hard to believe that L & E, a firm comprised of experienced and skillful bankruptcy practitioners, did not recognize that the facts described in § I, C above should have been disclosed to me in the First Application or the Revised Application. Hathaway and L & E’s attempt to meet the disclosure requirements of Bankruptcy Rule 2014(a) was inadequate. I now turn to the issue whether L & E holds or represents an interest adverse to Hathaway’s bankruptcy estate sufficient to disqualify it from representing Hathaway. V. CONFLICTS OF INTEREST 11 U.S.C. § 327(a) and § 1107(a) authorizes a debtor in possession to employ an attorney that is disinterested and does not hold or represent an interest adverse to the bankruptcy estate. “Disinterested person” is defined in 11 U.S.C. § 101(13). That statute provides in pertinent part as follows: “disinterested person” means a person that— “(E) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor or an investment banker specified in subparagraph (B) or (C) of this paragraph, or for any other reasons;” (Emphasis added.) This aspect of disinterestedness is essentially identical to the requirement set forth in § 327(a) that an attorney seeking employment by a debtor in possession must not hold or represent an interest adverse to the estate. In re Peck, 112 B.R. 485, 491 (Bankr.D.Conn.1990). I find that L & E represents and holds an interest that is materially adverse to the interest of Hathaway’s bankruptcy estate. This is because Rheuban, pursuant to the advice of L & E, transferred the Rheuban House to L & E and then, with" }, { "docid": "6817956", "title": "", "text": "101(13)(A). A warrant holder thus is not a disinterested person. Moreover, 11 U.S.C. § 328(c) states that the bankruptcy court “may” deny allowance of compensation for a professional who is not a disinterested person at any time during the employment by the debtor. Under this simple formula, Merri-mac’s status as a warrant holder in substance makes Merrimac nondisinterested and within the ambit of § 328(c). Nullification of the stock purchase warrant was an appropriate sanction in light of the potential conflict of interest engendered by the putative warrant. We further find the bankruptcy court did not abuse its statutory discretion to deny Merrimac compensation beyond the $12,898.84 already paid by Daig. Judgment affirmed. . The Honorable Robert G. Renner, United States District Court for the District of Minnesota, presiding. . The Honorable Margaret A. Mahoney, Bankruptcy Judge for the Bankruptcy Court of the District of Minnesota, presiding. The Honorable Kenneth Owens presided over some earlier portions of the Daig bankruptcy case. . The relevant Code provisions are: 11 U.S.C. § 328(c): Except as provided in section 327(c), 327(e), or 1107(b) of this title, the court may deny allowance of compensation for services and reimbursement of expenses of a professional person employed under section 327 or 1103 of this title if, at any time during such professional person’s employment under section 327 or 1103 of this title, such professional person is not a disinterested person, or represents or holds an interest adverse to the interest of the estate with respect to the matter on which such professional person is employed. 11 U.S.C. § 101: (13) \"disinterested person” means person that— (A) is not a creditor, an equity security holder, or an insider; * * * * * * (E) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor or an investment banker specified in subparagraph (B) or (C) of this paragraph, or for any other reason; ****** (15) \"equity security\" means—" }, { "docid": "3712496", "title": "", "text": "any direct or indirect relationship to, connection with, or interest in, the debtor * * *[.] 11 U.S.C. §§ 101(13)(A), (E) (emphasis added). Specifically, the court held that McEwen was not disinterested because “[h]e was a prepetition creditor of these estates, and he held a mortgage on the Debtors’ real property to secure payment of prepetition and post-petition services.” In re Pierce, 53 B.R. at 828. The court also stated that this placed McEwen “in an untenable position adverse to both the Debtors and other interests in the cases.” Id. Because McEwen failed to meet the definition of a disinterested person, and thus failed to qualify for employment under Section 327(a), the court denied McEwen’s post-petition fees. Id. at 828-29 (citing In re Leisure Dynamics, Inc., 33 B.R. 121 (D.Minn.1983)). Despite the express statutory language disqualifying an attorney who is a creditor, McEwen argues that these rules should not be applied blindly, and that the test for disinterestedness should be whether the attorney possesses an interest that would color his independent judgment and impartial attitude. See In re O’Connor, 52 B.R. 892, 899 (Bankr.W.D.Okla.1985). Although McEwen’s argument is not without merit, the intent of the statute is clear; if a professional is a creditor, then that person is not disinterested under 11 U.S.C. § 101(13) and is subject to disqualification under Section 327(a). As this court recent ly noted, the professional’s complaint in this area lies with Congress, not the courts. In re Daig Corp., 799 F.2d 1251, 1253 n. 5 (8th Cir.1986), aff'g, 48 B.R. 121 (Bankr.D.Minn.1985). Moreover, there are two other grounds upon which the court could have denied McEwen’s fees. First, under Section 327(a), an attorney may be disqualified not only because he or she is not disinterested, but also because the attorney holds an “interest adverse to the estate.” 11 U.S.C. § 327(a). At least one court has held that an attorney’s pre-petition mortgage on the debtor’s real estate constitutes an “adverse interest” under Section 327(a). In re Martin, 59 B.R. 140,143 (Bankr.D.Maine 1986); see also In re Roberts, 46 B.R. 815, 849 (Bankr.D.Utah 1985) (attorney’s" }, { "docid": "22374069", "title": "", "text": "stated: We interpret that part of § 327(a) which reads that attorneys for the trustee may “not hold or represent an interest adverse to the estate” to mean that the attorney must not represent an adverse interest relating to the services which are to be performed by that attorney. With this qualifying language, this Court concurs. A “conflict of interests,” as usually applied to an attorney, refers to the representation by a given attorney or law firm of two or more entities holding or claiming adverse interests or of an entity holding an interest adverse to that of its attorney, its attorney’s firm or the firm’s associates. Definition of “Disinterested Person:” Section 101(13) The phrase “disinterested person,” is defined in Section 101(13) of the Code: (13) “disinterested person” means person that— (A) is not a creditor, an equity security holder, or an insider; (B) is not and was not an investment banker for any outstanding security of the debtor; (C) has not been, within three years before the date of the filing of the petition, an investment banker for a security of the debtor, or an attorney for such an investment banker in connection with the offer, sale or issuance of a security of the debtor; (D) is not and was not, within two years before the date of the filing of the petition, a director, officer, or employee of the debtor or of an investment banker specified in subparagraph (B) or (C) of this paragraph; and (E) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor or an investment banker specified in subparagraph (B) or (C) of this paragraph, or for any other reason; ... In the case of In re O.P.M. Leasing Services, Inc. the court explained: The definition of “disinterested person” is adapted from Section 158 of Chapter X of the Bankruptcy Act of 1898, 11 U.S.C. § 558 (1976 ed.). H.R.Rep. No. 595, 95th Cong., 1st" }, { "docid": "15863481", "title": "", "text": "further analysis be made in order to determine whether All-man Spry may continue as attorneys for the Debtor. 3. Section 327(a) of the Bankruptcy Code permits trustees in bankruptcy and Chapter 11 debtors, with court approval, to employ attorneys. In order to be eligible for employment under this provision, an attorney must not hold an interest adverse to the estate and must be a disinterested person. In the present case there is no assertion that Allman Spry holds an interest adverse to the estate. Rather, the assertion is that the firm is not disinterested for purposes of § 327. 4. The term “disinterested person” is defined in § 101(14) of the Bankruptcy Code. Under this definition, in order to qualify as “disinterested” an attorney must “not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor ... or for any other reason.” § 101(14)(E). This definition imposes a flat, unconditional mandate that the attorney “not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders.” The source or cause of any materially adverse interest is immaterial—if, for any rear son, the attorney has an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders he or she may not serve as attorney for the Chapter 11 debtor. 5. The grounds for the assertion in the present case that Allman Spry is not disinterested for purposes of § 327(a) is the receipt of the two retainer payments from Amuru Japan, an entity that is a creditor, a signatory on the involuntary petition and a party to an ongoing dispute regarding the ownership of stock of the Debtor. The issue thus raised is whether Allman Spry has an “interest materially adverse” to the interest of the estate or the interest of any class of creditors or equity security holders as a result of having received" }, { "docid": "3583606", "title": "", "text": "are disinterested persons, to represent or assist the trustee in carrying out the trustee’s duties under this title. (c) In a case under Chapter 7, 12, or 11 of this title, a person is not disqualified for employment under this section solely because of such person’s employment by or representation of a creditor, unless there is objection by another creditor or the United States trustee, in which case the court shall disapprove such employment if there is an actual conflict of interest. (e) The trustee, with the court’s approval, may employ, for a specified special purpose, other than to represent the trustee in conducting the case, an attorney that has represented the debtor, if in the best interest of the estate, and if such attorney does not represent or hold any interest adverse to the debtor or to the estate with respect to the matter on which such attorney is to be employed. Id. Section 327(a)’s use of the term “disinterested person” is defined by 11 U.S.C. § 101(13) which provides in pertinent part: (13) “disinterested person” means person that— (E) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor ... or for any other reason. 11 U.S.C. § 101(13)(E). An “interest adverse” is not defined in the Bankruptcy Code. 11 U.S.C. § 328(c), Limitation on compensation of professional persons, provides: (c) Except as provided in section 327(c), 327(e), or 1107(b) of this title, the court may deny allowance of compensation for services and reimbursement of expenses of a professional person employed under section 327 or 1103 of this title if, at any time during such professional person’s employment under section 327 or 1103 of this title, such professional person is not a disinterested person, or represents or holds an interest adverse to the interest of the estate with respect to the matter on which such professional person is employed. 11 U.S.C. § 330(a), Compensation of officers, provides: (a) After" }, { "docid": "3712495", "title": "", "text": "is essentially moot. The bankruptcy court, with the district court affirming, held that McEwen was not entitled to compensation for his post-petition work because he was not a disinterested person. Under 11 U.S.C. § 327(a), the trustee could employ, with the court’s approval, an attorney who did “not hold or represent an interest adverse to the estate, and [was a] disinterested person * * 11 U.S.C. § 327(a). Although framed conjunctively, the conditions are applied disjunctively; failure to meet either will result in disqualification. See In re Leisure Dynamics, Inc., 32 B.R. 753, 754 (Bankr.D.Minn.) (supplemental opinion to 32 B.R. 751), aff'd, 33 B.R. 121 (D.Minn.1983). The bankruptcy court found that McEwen failed to meet two parts of the definition of a disinterested person: (13) “disinterested person” means person that— (A) is not a creditor, an equity security holder, or an insider; * * * * * * (E) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor * * *[.] 11 U.S.C. §§ 101(13)(A), (E) (emphasis added). Specifically, the court held that McEwen was not disinterested because “[h]e was a prepetition creditor of these estates, and he held a mortgage on the Debtors’ real property to secure payment of prepetition and post-petition services.” In re Pierce, 53 B.R. at 828. The court also stated that this placed McEwen “in an untenable position adverse to both the Debtors and other interests in the cases.” Id. Because McEwen failed to meet the definition of a disinterested person, and thus failed to qualify for employment under Section 327(a), the court denied McEwen’s post-petition fees. Id. at 828-29 (citing In re Leisure Dynamics, Inc., 33 B.R. 121 (D.Minn.1983)). Despite the express statutory language disqualifying an attorney who is a creditor, McEwen argues that these rules should not be applied blindly, and that the test for disinterestedness should be whether the attorney possesses an interest that would color his independent judgment and impartial attitude." }, { "docid": "14781101", "title": "", "text": "in 1978 U.S.Code Cong. & Admin.News 5787, 5902, Triangle Chemicals, 697 F.2d at 1284. Thus, the attorney for the debtor in possession must meet the requirements of § 327(a) in obtaining counsel. Matter of Seatrain Lines, Inc., 13 B.R. 980, 981 (Bankr.S.D.N.Y.1981). Section 327(a) imposes a two-part test upon attorneys — and other professionals— seeking appointment. The attorney must be a disinterested person and cannot hold or represent an interest adverse to the estate. While the Code has left undefined the contours of the phrase “interest adverse to the estate,” a disinterested person is defined in the Code as one who: (A) is not a creditor, an equity security holder, or an insider; ... (E) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor ... or for any other reason, 11 U.S.C. § 101(13). Because a “creditor” is defined at § 101(9)(A) as “an entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor; ...” a strict interpretation of § 327(a) would bar any counsel from appointment who asserted a claim for any services provided to the debtor prior to the filing of the petition. Under such a reading of § 327(a), an attorney who merely assisted the debtor in preparing its bankruptcy petition and accompanying papers would be a “creditor” and therefore barred from appointment because of a lack of disinterestedness. In an effort to avoid such an obviously ludicrous result, most courts have concluded that performance of customary prepetition bankruptcy services, i.e., preliminary work routinely undertaken to facilitate an upcoming bankruptcy filing, does not make the attorney a creditor under § 101(13) and will not serve to disqualify an otherwise eligible attorney from appointment under § 327(a) absent the presence of other disqualifying factors. See, In re Roberts, 46 B.R. 815, 849 (Bankr.D. Utah 1985). The bankruptcy court’s reasoning in Roberts reflects a realistic interpretation" } ]

[ { "docid": "22656179", "title": "", "text": "said. Mr. Justice White, with whom Mr. Justice Clark and Mr. Justice Stewart join, dissenting. In Massiah v. United States, 377 U. S. 201, the Court held that as of the date of the indictment the prosecution is disentitled to secure admissions from the accused. The Court now moves that date back to the time when the prosecution begins to “focus” on the accused. Although the opinion purports to be limited to the facts of this case, it would be naive to think that the new constitutional right announced will depend upon whether the accused has retained his own counsel, cf. Gideon v. Wainright, 372 U. S. 335; Griffin v. Illinois, 351 U. S. 12; Douglas v. California, 372 U. S. 353, or has asked to consult with counsel in the course of interrogation. Cf. Carnley v. Cochran, 369 U. S. 506. At the very least the Court holds that once the accused becomes a suspect and, presumably, is arrested, any admission made to the police thereafter is inadmissible in evidence unless the accused has waived his right to counsel. The decision is thus another major step in the direction of the goal which the Court seemingly has in mind — to bar from evidence all admissions obtained from an individual suspected of crime, whether involuntarily made or not. It does of course put us one step “ahead” of the English judges who have had the good sense to leave the matter a discretionary one with the trial court. I reject this step and the invitation to go farther which the Court has now issued. By abandoning the voluntary-involuntary test for admissibility of confessions, the Court seems driven by the notion that it is uncivilized law enforcement to use an accused’s own admissions against him at his trial. It attempts to find a home for this new and nebulous rule of due process by attaching it to the right to counsel guaranteed in the federal system by the Sixth Amendment and binding upon the States by virtue of the due process guarantee of the Fourteenth Amendment. Gideon v. Wainwright, supra." } ]

[ { "docid": "23046059", "title": "", "text": "could not have reasonably understood to be criminal, the Supreme Court has consistently held that a penal statute cannot be so vague as to fail to apprise one of normal intelligence that contemplated conduct is violative of statute. United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954); Lan-zetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939). In Harriss, supra, 347 U.S. at 617, 74 S.Ct. at 812, the Court said: “The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.” Similarly, in Lanzetta, supra, 306 U.S. at 453, 59 S.Ct. at 619, the Court declared : “ * * * [A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Nor can a statute be so overly broad as to improperly prohibit the enjoyment of constitutional rights. Thus, as was held by the Supreme Court in Winters v. New York, 333 U.S. 507, 509, 68 S.Ct. 665, 667, 92 L.Ed. 840 (1948): “It is settled that a statute so vague and indefinite, in form and as interpreted, as to permit within the scope of its language the punishment of incidents fairly within the protection of the guarantee of free speech is void, on its face, as contrary to the Fourteenth Amendment.” In N. A. A. C. P. v. Button, 371 U.S. 415, 432-433, 83 S.Ct. 328, 338, 9 L.Ed. 2d 405 (1963), the Court declared: “The objectionable quality of vagueness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon an unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.” Some cases have held disorderly conduct statutes constitutionally defective even" }, { "docid": "22577363", "title": "", "text": "the convenience of the Solicitor in an endeavor to strengthen the State’s case, when the defendant had done nothing either to bring about trial errors or to inveigle or entrap the Solicitor to proceed to the first trial. While this case is not controlled by Palko, I am comforted by language found in it which, in my view, envisions this case as one which might well be within the protective embrace of the Due Process Clause of the Fourteenth Amendment. Speaking for the Court, Mr. Justice Cardozo said: “What the answer would have to be if the state were permitted after a trial free from error to try the accused over again or to bring another case against him, we have no occasion to consider. We deal with the statute before us and no other. The state is not attempting to wear the accused out by a multitude of cases with accumulated trials. It asks no more than this, that the case against him shall go on until there shall be a trial free from the corrosion of substantial legal error.” I also receive comfort from the language contained in Mr. Justice Frankfurter's concurring opinion in this case. He says that a state falls short of its obligation “when it callously subjects an individual to successive retrials on a charge on which he has been acquitted or prevents a trial from proceeding to a termination in favor of the accused merely in order to allow a prosecutor who has been incompetent or casual or even ineffective to see if he cannot do better a second time.” In my view, this case is snugly embraced in his very clear statement of the law as I have always understood it until today. Wade v. Hunter, 336 U. S. 684 (1949), is cited in support of the discretion of a trial judge “to declare a mistrial and to require another panel to try the defendant if the ends of justice will be best served.” Thompson v. United States, 155 U. S. 271, 273-274 (1894), is likewise referred to in the majority opinion. I" }, { "docid": "13010015", "title": "", "text": "the free speech guarantees of the First Amendment, has been recognized both by this court [citing cases] and by the United States Supreme Court [citing cases].” Among cases from New York which he cites is People v. Doubleday & Co., 297 N.Y. 687, 77 N.E.2d. 6, affirmed by an equally divided court, 335 U.S. 848, 69 S.Ct. 79, 93 L.Ed. 398, while among the cases in the United States Supreme Court upon which he relies are United States v. Alpers, 338 U.S. 680, 70 S.Ct. 352, 94 L.Ed. 457; Winters v. People of State of New York, 333 U.S. 507, 510, 518, 520, 68 S.Ct. 665, 92 L.Ed. 840; and United States v. Limehouse, 285 U.S. 424, 52 S.Ct. 412, 76 L.Ed. 843. He goes on to say: “Imprecise though it be — its ‘vague subject-matter’ being largely ‘left to the gradual development of general notions about what is decent’ (per L. Hand, J., United States v. Kennerley, D.C., 209 F. 119, 121) — the concept of obscenity has heretofore been accepted as an adequate standard.” In the case last cited, Judge Hand asked [209 F. 121], “ * * * should not the word ‘obscene’ be allowed to indicate the present critical point in the compromise between candor and shame at which the community may have arrived here and now?” and continued : “If letters must, like other kinds of conduct, be subject to the social sense of what is right, it would seem that a jury should in each case establish the standard much as they do in cases of negligence.” In quoting this with approval, the Ninth Circuit has recently said: “We think Judge Learned Hand was in the best of his famous form in his happy use of words.” Besig v. United States, 9 Cir., 208 F.2d 142, 147. So this important social problem, which has come down to us from English law and which has led to statutes of á generally similar nature in almost all of the other jurisdictions in this country, see Brown v. Kingsley Books, Inc., supra, 1 N.Y.2d 177, 151 N.Y.S.2d" }, { "docid": "3188049", "title": "", "text": "comport with due process, the criminal obscenity statute here must give fair notice of what conduct is ci’iminally proscribed, United States v. Harriss, supra, and the Supreme Court in Miller, by outlining its criteria for “obscenity”, has authoritatively indicated what a statute, in its language or its judicial construction, must have to be constitutional. Enskat and the cases cited therein have not supplied a description of specific sexual conduct “as definitely as if it had been so amended by the legislature”, Winters v. New York, 333 U.S. 507, 514, 68 S.Ct. 665, 669, 92 L.Ed. 840 (1948). Cf. Beauharnais v. Illinois, 343 U.S. 250, 254, 72 S.Ct. 725, 96 L.Ed. 919 (1952). In addition to those cases cited by the Court of Appeal in Enskat, People v. Sarong Gals, 27 Cal.App.3d 46, 103 Cal.Rptr. 414 (1972); People v. Adler, 25 Cal.App.3d Supp. 24, 101 Cal.Rptr. 726 (1972) and Dixon v. Municipal Court, 267 Cal.App.2d 789, 73 Cal.Rptr. 587 (1968) have been brought to the court’s attention as bearing on the construction of § 311. Sarong Gals involved a civil suit, an in rem action brought under the Red Light Abatement Act, California Penal Code §§ 11225-11235, and the construction of the statutory term “lewdness”, that case is inapplicable to the issues here. Dixon involved the lifting of a writ of prohibition and a remand to the municipal court, holding that the fact that there may have been “simulation” of sexual acts did not bar a finding of obscenity as a matter of law. As the Court there noted, however: “. . . [i]n the case before us, we do not have testimony of what was actually done, because prosecution was barred by the writ.” 267 Cal.App.2d at 793, 73 Cal.Rptr. at 589. Adler, like some of the cases cited in Enskat, makes a passing and somewhat vague reference to sexual acts described in the book that was the subject of the action. As with all the cases referred to, however, there is no attempt by the courts of the State of California to formulate a standard of obscenity or a" }, { "docid": "9744975", "title": "", "text": "support a requested instruction, there is no constitutional error in failure to give it. See United States v. Brown, 540 F.2d 364, 380 (8th Cir. 1976); See also Kregger v. Barman, 273 F.2d 813 (6th Cir. 1960) (holding that mere assertion of insanity defense, without presentation of any evidence supporting it at trial, does not make failure to give instruction on insanity a ground for federal habeas corpus relief). This Court feels that the instructions, taken as a whole, adequately advised the jury of the essential elements of the offenses charged. The jury was instructed that the state must prove beyond a reasonable doubt that: 1) the defendant at the time and place alleged in the information accomplished an act of sexual penetration. 2) the act of sexual penetration was accomplished through the use of force, coercion or threats of immediate and great bodily harm against (the prosecutrix) accompanied by apparent power of execution. Such an instruction follows the law of South Dakota as determined by the state supreme court. Given the caveat in Zemina that the South Dakota court is the best interpreter of its own substantive law, the alleged errors in instructions give petitioner no grounds for federal habeas corpus relief. THE CONSTITUTIONALITY OF S.D.C.L. 22-22-1 Petitioner finally contends that S.D. C.L. 22-22-1 is unconstitutional since it is vague and uncertain so as to violate due process. The state supreme court, analyzing the application of the statute to this case stated that “it would seem that a person of ordinary intelligence would be given fair notice that his contemplated conduct of threatening a girl and then physically forcing her to have sexual intercourse is forbidden by the statute.” 264 N.W.2d at 921. While petitioner urges this Court that the standard adopted in Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948), is applicable, I observe that the Winters case dealt with an obscenity law seen violative of first amendment freedoms. The Supreme Court has drawn a distinction for vagueness analysis between first amendment freedoms and other constitutional rights. See Rose v. Locke, 423" }, { "docid": "10671544", "title": "", "text": "States v. Raines, supra, 362 U.S. at 23, 80 S.Ct. at 523. Furthermore, the statute continues to give adequate notice of its prohibitions after its unconstitutional applications are severed from it. It does not become so vague or ambiguous as to be violative of the due process clause of the fourteenth amendment. See Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948). The Court must conclude, therefore, that this is a case falling within the usual rule that a party attacking a statute must demonstrate that his own, rather than another’s rights are adversely affected by the statute. Accordingly, the Lovisis do not have standing to attack the constitutionality of the statute under which they were convicted. An order in accordance with this memorandum will issue. . Carolyn Aeree was aged 11 at the time of the sexual acts in question, and Eugenia was aged 13. . “Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.” 394 U.S. at 565, 89 S.Ct. at 1248. . As noted previously, the Aeree girls testified that they had been present throughout the sexual acts and had actually taken the photographs in question. They testified further that their stepfather, Aldo Lovisi, had ordered them to take the pictures. This testimony was directly contradicted by Aldo Lovisi at the hearing of July 27, 1973, and by Dunn and Margaret Lovisi in another trial. The girls’ testimony was further impeached by the admission of' Carolyn Aeree that she would like to see the relationship of her mother and her stepfather broken apart (Tr. p. 80, Commonwealth v. Margaret Lovisi) and that she would like for her mother and stepfather to go to prison so that she, Carolyn, and her sister might be returned to their natural father (Tr., p. 58, Commonwealth v. Aldo" }, { "docid": "22577362", "title": "", "text": "by the trial court, and reversed the judgment and ordered a new trial. The second trial then followed. In the case before the Court, no error of law tainted the first trial. It is apparent that in the Palko case, the Legislature of Connecticut had provided for a review of the trial by appeal. We often have said that the considered action by a state legislature or the Congress of the United States places the issue of constitutionality in a different posture in respect of due process of law. We agree that Palko decided that this Court could consider a particular case of double jeopardy of a defendant as not being within the protective limits of due process of the Fourteenth Amendment to the Constitution. Certainly, Palko did not decide the issue in this case. In that case, under a state statute, the State was asking for a second trial to obtain a trial-free from error by the court prejudicial to the State. Here, the State asks for its second trial in order to suit the convenience of the Solicitor in an endeavor to strengthen the State’s case, when the defendant had done nothing either to bring about trial errors or to inveigle or entrap the Solicitor to proceed to the first trial. While this case is not controlled by Palko, I am comforted by language found in it which, in my view, envisions this case as one which might well be within the protective embrace of the Due Process Clause of the Fourteenth Amendment. Speaking for the Court, Mr. Justice Cardozo said: “What the answer would have to be if the state were permitted after a trial free from error to try the accused over again or to bring another case against him, we have no occasion to consider. We deal with the statute before us and no other. The state is not attempting to wear the accused out by a multitude of cases with accumulated trials. It asks no more than this, that the case against him shall go on until there shall be a trial free from" }, { "docid": "845478", "title": "", "text": "of itself, “obscene to juveniles”, and subject to elimination because of so-called “freedom” of speech. Many recent films distributed by plaintiffs seem regrettably to go out of their way to insert such language even in ‘PG’ rated films. This section, however, is overbroad and could be aided by guidelines set out in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and its progeny. Certainly, language itself may be a factor in determining whether a film, or a part thereof, is obscene to minors. Note also the dissent in Lewis v. City of New Orleans, 415 U.S. 136, 142, 94 S.Ct. 970, 976, 39 L.Ed.2d 214, 224 (1974) wherein the expression may bring about an imminent breach of the peace. EXCESS VIOLENCE SECTION Section 22-23.1 defines “obscene to juveniles” as “excess violence”, which is defined in § 22-23.1(g), set out in footnote No. 1. Plaintiffs attack this section as unconstitutionally vague. The “vagueness” doctrine proscribes criminal statutes which lack clear definition and import so that no fair warning or notice is provided. It is impermissible to set out a law violation where the offense is too subjective, involving a risk of discriminatory enforcement of the law, again inhibitory to First Amendment freedoms. See Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222, 227-228 (1972). Under the holdings of Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948), and Interstate Circuit, Inc. v. Dallas, supra, considering the statutes and ordinances there considered, section 22-23.1(g) is impermissibly vague. As necessarily applied by Board members, the section constituted an excessively subjective judgment as to what might be deemed “obscene to juveniles”. Again, society and parents are to be commended for current concern about the extraordinary portrayals of violent conduct on movie (as well as television) screens. If carefully drawn, under obscenity standards, such portrayals might be subject to permissible criminal standards. The Court reaches this conclusion with particular regret as to excision of two sections of the ordinance, recognizing the difficulty confronting legislatures and councils under Supreme" }, { "docid": "14457387", "title": "", "text": "crime therein, and further -providing that there must be a “breaking” and entry in any other type of building or a part thereof. Here, the appellant was. charged with the unlawful entry of a dwelling house. We are not concerned with the language of the statute touching upon other buildings. Manifestly, the information charged the appellant with the crime in the exact language of the statute. This being so, the information clearly states a crime. State v. Forler, 38 Wash.2d 39, 227 P.2d 727 (1951); State v. Johnson, 56 Wash.2d 700, 355. P.2d 13 (1960); State v. Bowman, 57 Wash.2d 266, 356 P.2d 999 (1960). Aside from our conclusions, it appears that the Washington Supreme Court has decided adversely to appellant’s contentions on the exact issues here before us. Such being the case, we will not quarrel with the state Court’s construction of its own statutes and Con stitution. Hebert v. Louisiana, 272 U.S. 312, 47 S.Ct. 103, 71 L.Ed. 270; Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840. Nothing in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 requires a different result. II. On this contention, the appellant charges that he was deprived of due process under the 14th Amendment to the Federal Constitution and Article I, Sections 3 and 7 of the Washington State Constitution, by the denial of his motion to suppress certain evidence gained by an alleged illegal search and seizure. The trial Court very wisely framed the issues under a Pre-Trial Order and thereafter held a hearing, at which the appellant was present and testified. The trial Judge’s findings, as shown in the margin demonstrated beyond question that he did not believe the appellant’s story. These findings, of course, are binding on appellant and he does not argue that point. He would, however, avoid the effect of the findings by urging the invalidity of the search, even conceding the truth of the facts to which the officers testified. Appellant argues that the facts in this case are on all fours with the" }, { "docid": "2636520", "title": "", "text": "words of the Supreme Court of Wisconsin in Givens are as much a part of the statute as if the legislature had put them there. Winters v. People of State of New York, 333 U.S. 507, 514, 68 S.Ct. 665, 92 L.Ed. 840 (1948); Albertson v. Millard, 345 U.S. 242, 244, 73 S.Ct. 600, 97 L.Ed. 983 (1953). These plaintiffs are not required to show that their conduct, which is the subject of-the criminal actions pending against them in the state courts, could not be made punishable by a properly drawn statute. It is enough that Sec. 947.01(1), as construed in Givens, may be applied to conduct protected by the First Amendment. “For in appraising a statute’s inhibitory effect upon such rights, this Court has not hesitated to take into account possible applications of the statute in other factual contexts beyond that at bar. Thornhill v. State of Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-742, 84 L.Ed. 1093; Winters v. New York, supra, at 518-520, 68 S. Ct. 665, 671-672, 92 L.Ed. 840. Cf. Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302.’’ N.A.A.C.P. v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 337, 9 L.Ed.2d 405 (1963). See Aptheker v. Secretary of State, 378 U.S. 500, 516-517, 84 S.Ct. 1659, 12 L. Ed.2d 992 (1964). Thus, we need accept neither the allegations of the complaint in this court with respect to what the plaintiffs were actually doing at the times and places in question, nor the allegations of the answer in this court on that subject, nor the allegations contained in the criminal complaints or amended criminal complaints against these plaintiffs now pending in the state court. Judge Gordon’s description of the alleged conduct of these plaintiffs seems to me irrelevant, as does his comparison of the conduct of the petitioners in Brown v. State of Louisiana, 383 U.S. 131, 86 S.Ct. 719,15 L.Ed.2d 637 (1966), with the alleged conduct of the plaintiffs here. As N.A.A.C.P. v. Button instructs us, we are to take into account “possible applications of [Sec. 947.01(1)] in" }, { "docid": "9744976", "title": "", "text": "that the South Dakota court is the best interpreter of its own substantive law, the alleged errors in instructions give petitioner no grounds for federal habeas corpus relief. THE CONSTITUTIONALITY OF S.D.C.L. 22-22-1 Petitioner finally contends that S.D. C.L. 22-22-1 is unconstitutional since it is vague and uncertain so as to violate due process. The state supreme court, analyzing the application of the statute to this case stated that “it would seem that a person of ordinary intelligence would be given fair notice that his contemplated conduct of threatening a girl and then physically forcing her to have sexual intercourse is forbidden by the statute.” 264 N.W.2d at 921. While petitioner urges this Court that the standard adopted in Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948), is applicable, I observe that the Winters case dealt with an obscenity law seen violative of first amendment freedoms. The Supreme Court has drawn a distinction for vagueness analysis between first amendment freedoms and other constitutional rights. See Rose v. Locke, 423 U.S. 48, 50 n. 3, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975). In Rose, a petition for habeas corpus challenged a Tennessee statute proscribing “crimes against nature” as unconstitutionally vague. In holding that the statute was not violative of the constitution as applied to cunnilingus, the Court stated in a per curiam opinion, “all the due process clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.” 423 U.S. at 50, 96 S.Ct. at 244. Applying this standard, this Court is of the opinion that S.D.C.L. 22-22-1 is not unconstitutionally vague. CONCLUSION Accordingly, it is the opinion of this Court that petitioner’s claims give no basis for federal habeas corpus relief. The above shall constitute the Court’s findings of fact and conclusions of law. The petition for a writ of habeas corpus is denied, and counsel for the respondent is directed to prepare an appropriate order. . S.D.C.L. 22-22-1(1) provides: Rape defined. — Rape is an act of sexual penetration accomplished with any" }, { "docid": "8557300", "title": "", "text": "L.Ed. 1284; United States v. L. Cohen Grocery Co., 1921, 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516; Nash v. United States, 1913, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232; and Miller v. Strahl, 1915, 239 U.S. 426, 36 S.Ct. 147, 60 L.Ed. 364. These decisions involved challenges to economic regulatory legislation. In a line of decisions starting perhaps with Stromberg v. People of State of California, 1931, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, through Winters v. People of State of New York, 1948, 333 U.S. 507, 509-510, 517-518, 68 S.Ct. 665, 92 L.Ed. 840; Smith v. People of State of California, 1959, 361 U.S. 147, 151, 80 S.Ct. 215, 4 L.Ed.2d 205, and United States v. National Dairy Products Co., 1963, 372 U.S. 29, 36, 83 S.Ct. 594, 9 L.Ed.2d 561, to Cox v. State of Louisiana, 1965, 379 U.S. 536, 551-552, 85 S.Ct. 453, 13 L.Ed.2d 471, the Supreme Court has developed a standard of impermissible vagueness in First-Fourteenth Amendment cases far different from that employed in economic regulation cases. This development was explicitly recognized in Dombrowski v. Pfister: Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expression — of transcendent value to all society, and not merely to those exercising their rights — might be the loser. Cf. Garrison v. State of Louisiana, 379 U.S. 64, 74-75 [85 S.Ct. 209, 215, 216, 13 L.Ed.2d 125]. For example, we have consistently allowed attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. Thornhill v. State of Alabama, 310 U.S. 88, 97-98 [60 S.Ct. 736, 741-742, 84 L.Ed. 1093]; NAACP v. Button [371 U.S. 415] at 432-433 [83 S.Ct., at 337-338]; cf. Aptheker v. Secretary of State, 378 U.S. 500, 515-517 [84 S.Ct. 1659, 1668-1669, 12 L.Ed.2d 992]; United States v. Raines, 362 U.S. 17, 21-22 [80 S.Ct. 519, 522-523," }, { "docid": "13010097", "title": "", "text": "U.S. 174, 73 S.Ct. 189, 97 L.Ed. 200. If we accept as correct the generally current judicial standard of obscenity— the “average conscience of the time”— that standard still remains markedly uncertain as a guide to judges or jurors— and therefore to a citizen who contemplates mailing a book or picture. To be sure, we trust juries to use their common sense in applying the “reasonable man” standard in prosecutions for criminal negligence (or the like); a man has to take his chances on a jury verdict in such a case, with no certainty that a jury will not convict him although another jury may acquit another map on the same evidence. But that standard has nothing remotely resembling the’looseness of the “obscenity” standard. There is a stronger argument against the analogy of the “reasonable man” test: Even if the obscenity standard would have sufficient definiteness were freedom of expression not involved, it would seem far too vague to justify as a basis for an exception to the First Amendment. See Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117; Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066; Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280; Burstyn, Inc., v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098; Callings, Constitutional Uncertainty, 40 Cornell L.Q. (1955) 194, 214-218. In United States v. Rebhuhn, 2 Cir., 109 F.2d 512, 514, the court tersely rejected the contention that the obscenity statute is too vague, citing and relying on Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 480, 40 L.Ed. 606. However the Rosen case did not deal with that subject but merely with the sufficiency of the wording of an indictment under that statute. . lie said: “The test is not whether it would arouse sexual desires or sexually impure thoughts in those compi-ising a particular segment of the community, the young, the" }, { "docid": "5372735", "title": "", "text": "point made reference to “the entire record,” it took special note of certain testimony bearing upon the point. The district court is under no obligation to review the entire record in dealing with this question. The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion. Should the orders entered after further proceedings lead to new appeals, they may be heard upon the present record and briefs, appropriately supplemented. . In this court appellants filed separate opening briefs but joined in a reply brief. Appellee filed one brief dealing with both appeals. . An examination of the record of the oral argument before the district court indicates that no such request was made. . Federal courts are bound by the interpretation placed upon the statute of a state by its highest court. State of Minnesota ex rel. Pearson v. Probate Court of Ramsey County, 309 U.S. 270, 273, 60 S.Ct. 523, 84 L.Ed. 744; Daloia v. Rhay, 9 Cir., 252 F.2d 768, 771; Duffy v. Wells, 9 Cir., 201 F.2d 503, 505. . As before noted, the California Supreme Court as early as 1947 had construed the word “arson” as used in § 189 as including the crime defined in § 448a. Ex parte Bramble, supra. It is true that Bramble was not a felony-murder case. But in reviewing the sufficiency of indictments charging the crime of “arson,” some of which made reference to fires in storebuildings rather than dwellings, the evolution of the word “arson” as used in California Statutes was reviewed in detail. It was specifically held in this connection that the crime defined in § 448a was appropriately designated in the indictments as “arson.” . There was no evidence warranting a conviction under § 447a, since the Mecca bar was not a dwelling house or any “kitchen, shop, barn, stable or other outhouse that is a parcel thereof, or belonging to or adjoining thereto * * . See Winters v. People of State of New York, 333 U.S. 507, 510, 68 S.Ct. 665, 92 L.Ed. 840; Chaplinsky v. State of New Hampshire," }, { "docid": "23483083", "title": "", "text": "common law and that it does not have reference to the phrase “offenses in violation of the laws of the State in which they are committed or of the United States” leads to an absurd result, especially in the light of the statute’s legislative history. The statute meets the standard of certainty required by the Constitution. The case of Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948) and similar cases relied on by appellants are inapposite. By appellants’ second Specification it is claimed that Title 18 U.S.C. § 1952 is unconstitutional because it denies equal protection of the laws on the theory that, if read to apply only in states where gambling is illegal, residents of such states are discriminated against and hence denied equality under the law guaranteed by the due process clause of the Fifth Amendment. Legislation which constitutes an exercise by Congress of its plenary power over commerce is not repugnant to the due process clause of the Fifth Amendment merely because of variation in State laws. Clark Distilling Company v. Western Maryland Railway Company, 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326 (1916). Cf. United States v. Ryan, 213 F.Supp. 763, 766 (D.C.Colo., 1963). Specification No. 3 attacks Counts V, VII, IX, and XI, the counts on which appellants were convicted, as being obscure and vague in violation of Rule 7(c) Federal Rules of Criminal Procedure. It will be noted that each of these counts is substantially in the words of Section 1952, the statute in question. Appellants argue that the precise nature of the gambling offenses should have been set forth in detail in order to be properly apprised of the offense charged. The violation of the State statutes was an element of the offense and not the gravamen of the charge. An indictment is sufficient if it contains the elements of the offense contended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet. Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861 (1932) ;" }, { "docid": "12933230", "title": "", "text": "practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.” Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330, 331, 96 L.Ed. 367 (1952). (Footnotes omitted.) With regard to non-criminal provisions, the Court has said, “The standards of certainty in statutes punishing for offenses is higher than in those depending primarily upon civil sanctions for enforcement.” Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840 (1948). In examining a statutory provision challenged as vague and indefinite, the federal courts must determine whether the provision contains sufficient standards to identify the conduct to which the penalty applies, and in so doing the court is guided by the provision itself as read in the context of the entire statute, and by the nature of the subjects with which the statute is concerned. Connally v. General Construction Co., 269 U.S. 385, 391-392, 46 S.Ct. 126, 70 L.Ed. 322 (1926). Moreover, the court, in maintaining a proper perspective of its role in the review of legislation challenged as unconstitutional, must appreciate that the drafting of legislation calls for a type of judgment “peculiarly within the responsibility and the competence of legislatures.” Winters v. New York, 333 U.S. 507, 526, 68 S.Ct. 665, 675, 92 L.Ed. 840 (1948) (Frankfurter, J., dissenting). Accordingly, the language of Congress is not easily held “indefinite.” It is appropriate to consider what problem Congress was dealing with, in enacting the provision in question, and why Congress chose the language enacted. Cf., Boyce Motor Lines v. United States, 342 U.S. 337, 341-342, 72 S.Ct. 329, 96 L.Ed. 367 (1952). Section 1084(d) gives fair notice of the type of conduct which will- give rise to the discontinuation of telephone service. It contains sufficient standards to show what type of criminal" }, { "docid": "402082", "title": "", "text": "be crafted with sufficient clarity to “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited,” and to “provide explicit standards for those who apply them.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). The degree of linguistic precision that will satisfy these requirements, however, .varies with the nature — and in particular, with the consequences of enforcement — of the statutory provision. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982). For example, as the Supreme Court noted in a criminal obscenity case, “[t]he standards of certainty in statutes punishing for offenses is higher than in those depending primarily upon civil sanction for enforcement.\" Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840 (1948); see also Village of Hoffman Estates, 455 U.S. at 498-99, 102 S.Ct. at 1193-94. At the same time, statutes that implicate constitutionally protected rights, including the freedoms protected by the First Amendment, are subject to “more stringent” vagueness analysis. Village of Hoffman Estates, 455 U.S. at 499, 102 S.Ct. at 1193-94. These generally applicable standards, however, are modified in the military setting. We have recently reiterated the longstanding principle that “the [constitutional] tests and limitations to be applied may differ because of the military context,” Able, 88 F.3d at 1294, and the Supreme Court has instructed us that substantial judicial deference is required in the military setting, see, e.g., Goldberg, 453 U.S. at 70, 101 S.Ct. at 2654-55. Specifically, the Court has stated that “[f]or the reasons which differentiate military society from civilian society ... Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which the former shall be governed than it is when prescribing rules for the latter.” Parker, 417 U.S. at 756, 94 S.Ct. at 2561-62. Applying these principles to the Act before us, it is clear the statute may fall short of absolute linguistic precision and yet still comply with the" }, { "docid": "1482475", "title": "", "text": "not to be held to answer for certain crimes except upon a presentment or indictment returned by a grand jury. There is no question that the Fourteenth Amendment encompasses the right to fair notice of criminal charges. The Supreme Court in In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682 (1948), in dealing with the Due Process Clause of the Fourteenth Amendment, stated that: A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense — a right to his day in court — are basic in our system of jurisprudence. . Likewise, in Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948), the Supreme Court declared that: No principle of procedural due process is more clearly established than that of notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal. See United States v. Maselli, supra, 534 F.2d 1197, 1201; United States v. Beard, 436 F.2d 1084, 1086-88 (5th Cir. 1971); Salinas v. United States, 277 F.2d 914, 916 (9th Cir. 1960). Also, under the Fourteenth Amendment, states are obliged to observe the prohibition against double jeopardy, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), and allow counsel sufficient time to prepare a defense. Powell v. Alabama, 287 U.S. 45, 59, 53 S.Ct. 55, 77 L.Ed. 158 (1932). To allow the prosecution to amend the indictment at trial so as to enable the prosecution to seek a conviction on a charge not brought by the grand jury unquestionably constituted a denial of due process by not giving appellant fair notice of criminal charges to be brought against him. See DeJonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 81 L.Ed. 278 (1937). As a matter of law, appellant was prejudiced by the constructive amendment. See Stirone v. United States, supra, 361 U.S. 212," }, { "docid": "23046060", "title": "", "text": "a statute be so overly broad as to improperly prohibit the enjoyment of constitutional rights. Thus, as was held by the Supreme Court in Winters v. New York, 333 U.S. 507, 509, 68 S.Ct. 665, 667, 92 L.Ed. 840 (1948): “It is settled that a statute so vague and indefinite, in form and as interpreted, as to permit within the scope of its language the punishment of incidents fairly within the protection of the guarantee of free speech is void, on its face, as contrary to the Fourteenth Amendment.” In N. A. A. C. P. v. Button, 371 U.S. 415, 432-433, 83 S.Ct. 328, 338, 9 L.Ed. 2d 405 (1963), the Court declared: “The objectionable quality of vagueness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon an unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.” Some cases have held disorderly conduct statutes constitutionally defective even though their breadth had been narrowed by construction on the part of the state court. Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); Landry v. Daley, 280 F. Supp. 968 (N.D.Ill.1968); Baker v. Bindner, 274 F.Supp. 658, 663 (W.D.Ky. 1967). Similarly, generalized loitering statutes, although limited by state court construction, have been stricken down as void for vagueness. Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S. Ct. 211, 15 L.Ed.2d 176 (1965); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); Baker v. Bindner, 274 F.Supp. 658, 663-664 (W.D. Ky.1967). Thus, the language used in the regulation, “unseemly or disorderly conduct” and “unwarranted loitering * * and assembly,” on its face without limiting construction might appear to raise constitutional issues. However, while courts have a duty to interpret legislation in a manner not inconsistent with the demands of the Constitution, they are also to avoid a holding of unconstitutionality if a fair construction of the legislation will so allow. United States v." }, { "docid": "2636519", "title": "", "text": "which are protected by the First and Fourteenth Amendments to the Constitution of the United States. In Givens it was contended that on its face Sec. 947.01(1) was fatally vague because it condemns “otherwise disorderly conduct.” To meet this challenge, the Court gave content to “otherwise disorderly conduct” by construing it to mean conduct “having a tendency to disrupt good order and to provoke a disturbance.” 28 Wis.2d, at 115, 135 N.W.2d, at 784. To be prohibited, the conduct need not be violent, abusive, indecent, profane, boisterous, or unreasonably loud; it need only have a tendency to disrupt good order and to provoke a disturbance. Givens has been so read by the Wisconsin Board of Criminal Court Judges in its model instruction for disorderly conduct cases. Model instruction 1900 (Wisconsin Jury Instructions — Criminal, volume 2, 1966), citing Givens, includes this sentence: “Conduct is disorderly although it may not be violent, abusive, indecent, profane, boisterous or unreasonably loud; if it is of a type which tends to disrupt good order and provoke a disturbance.” The words of the Supreme Court of Wisconsin in Givens are as much a part of the statute as if the legislature had put them there. Winters v. People of State of New York, 333 U.S. 507, 514, 68 S.Ct. 665, 92 L.Ed. 840 (1948); Albertson v. Millard, 345 U.S. 242, 244, 73 S.Ct. 600, 97 L.Ed. 983 (1953). These plaintiffs are not required to show that their conduct, which is the subject of-the criminal actions pending against them in the state courts, could not be made punishable by a properly drawn statute. It is enough that Sec. 947.01(1), as construed in Givens, may be applied to conduct protected by the First Amendment. “For in appraising a statute’s inhibitory effect upon such rights, this Court has not hesitated to take into account possible applications of the statute in other factual contexts beyond that at bar. Thornhill v. State of Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-742, 84 L.Ed. 1093; Winters v. New York, supra, at 518-520, 68 S. Ct. 665, 671-672, 92 L.Ed. 840." } ]

[ { "docid": "22877430", "title": "", "text": "discharge from service and in Los Angeles, California, in either late 1969 or early 1970. R. at 118, 120, 122. The RO denied the reopened claim on December 23, 1988, and on October 10, 1989, the BVA affirmed the RO’s denial. A timely appeal to this Court followed. Jurisdiction here is founded on 38 U.S.C. § 4052 (1988). II. ANALYSIS A. Reopening a Claim 38 U.S.C. § 4004(b) (1988) provides: Except as provided in section 3008 of this title, when a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. (Emphasis added.) 38 U.S.C. § 3008 (1988) provides: If new and material evidence is presented or secured with respect to a claim which has been disallowed, the [Secretary] shall reopen the claim and review the former disposition of the claim. Under section 3008, when a claimant seeks a reopening of his or her claim by submitting what is asserted to be “new and material” evidence, a “two-step analysis” must be performed: if the evidence is determined by the regional office or the BVA to be “new and material”, the claim is to be reopened; then a review is made to determine whether the former disposition of the claim should be altered. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). As to the first step, the parties agree that new and material evidence was submitted by the claimant. At oral argument, counsel for the Secretary acknowledged that the evidence submitted was considered by the BVA to be new and material. In its decision, the BVA did seem to concede that new and material evidence had been submitted. As was suggested in Manio, at 145, and later held in Colvin v. Derwinski, 1 Vet.App. 171, 173 (1991), the question of whether newly submitted evidence is “new and material” under section 3008 is a question of law. Accord Smith v. Derwinski, 1 Vet.App. 178, 179 (1991). In the instant case we hold that the evidence submitted by the appellant was, in law, “new and" } ]

[ { "docid": "21495462", "title": "", "text": "Injury, Including Lung Disease The appellant’s claim for a chest injury was previously and finally denied in October 1946. R. at 74. Pursuant to 38 U.S.C. § 5108, the Secretary must reopen a previously and finally disallowed claim when “new and material evidence” is presented or secured with respect to that claim. On claims to reopen previously and finally disallowed claims, the BVA must conduct a two-part analysis. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material.” Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991). “New evidence” is evidence that is not “merely cumulative” of other evidence on the record. Id. at 174. Evidence is “material” where it is “relevant to and probative of the issue at hand” and where it creates “a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Sklar v. Brown, 5 Vet.App. 140, 145 (1993); Cox v. Brown, 5 Vet.App. 95, 98 (1993); Colvin, 1 Vet.App. at 174. Second, if the BVA determines that the evidence is new and material, it must reopen the claim and “evaluate the merits of the veteran’s claim in light of all the evidence, both new and old.” Majors v. Derwinski, 2 Vet.App. 181, 185 (1992). Whether evidence is “new and material” is a conclusion of law which this Court reviews de novo under 38 U.S.C. § 7261(a)(1). Ibid. In this case, the record includes a July 1991 interpretation from Dr. Gordan, a VA physician, who stated: “Trauma to the chest can cause restrictive lung disease. Lung volume study is indicated for the diagnosis of this condition if this is deemed necessary.” R. at 138. Although this letter is new evidence, it is not material evidence based upon the standard established in the Sklar decision. Supra at 145. The statement by Dr. Gordan does not link chest trauma specifically to the appellant’s current condition. Rather, the letter contains only a generic statement about the possibility" }, { "docid": "10155077", "title": "", "text": "MEMORANDUM DECISION STEINBERG, Associate Judge: The veteran, Agustín S. Landicho, appealed from an August 27,1990, decision of the Board of Veterans’ Appeals (BVA or Board) denying entitlement to service connection for hypertensive heart disease, hy-pertrophic degenerative disease, hemorrhoids, beriberi, and a goiter, and for entitlement to an increased rating for peptic ulcer disease (currently rated as 10% disabling). Agustín S. Landicho, BVA 90-29202 (Aug. 27, 1990). The veteran died on December 31, 1991. By order dated June 11, 1992, the Court substituted the veteran’s widow in these proceedings pursuant to Rule 43(a)(2) of the Court’s Rules of Practice and Procedure. The Secretary of Veterans Affairs (Secretary) has filed a motion for summary affirmance. Summary disposition is appropriate in this case because it is one “of relative simplicity” and the outcome is controlled by the Court’s precedents and is “not reasonably debatable”. Frankel v. Derwinski, 1 Vet. App. 23, 25-26 (1990). The veteran’s claims for service connection for goiter and hemorrhoids were denied by a prior final decision of a Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) in January 1972, R. at 49-50, and claims for hypertensive heart disease and beriberi were denied by a prior final BVA decision in July 1985, R. at 121. Pursuant to 38 U.S.C. § 5108 (formerly § 3008), a previously and finally disallowed claim must be reopened by the Secretary when “new and material evidence” is presented or secured with respect to that claim. See 38 U.S.C. § 7104(b) (formerly § 4004). On claims to reopen previously and finally disallowed claims, the BVA must conduct a two-part analysis. See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material”. See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). “New evidence” is evidence that is not “merely cumulative” of other evidence on the record. Ibid. Evidence is “material” where it is “relevant and probative” and where there is “a reasonable possibility that the new evidence, when viewed in the context of all" }, { "docid": "21542206", "title": "", "text": "See Stanton v. Brown, 5 Vet.App. 563, 566 (1993). On claims to reopen previously and finally disallowed claims, the BVA must conduct a two-part analysis. See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material.” See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). “New evidence” is evidence that is not “merely cumulative” of other evidence on the record. Ibid. Evidence is “material” where it is relevant to and probative of the issue at hand and where there is a reasonable possibility that, when viewed in the context of all the evidence, both new and old, it would change the outcome. See Blackburn v. Brown, 8 Vet.App. 97, 102 (1995); Sklar v. Brown, 5 Vet.App. 140, 145 (1993); Cox v. Brown, 5 Vet.App. 95, 98 (1993); Colvin, 1 Vet.App. at 174. Second, if the BVA determines that the evidence is “new and material,” it must reopen the claim and “evaluate the merits of the veteran’s claim in light of all the evidence, both new and old.” Masors v. Derwinski, 2 Vet.App. 181, 185 (1992). Whether evidence is “new and material” is a conclusion of law which this Court reviews de novo under 38 U.S.C. § 7261(a)(1). See Masors, 2 Vet.App. at 185. The Court reviews the evidence in light of the relevant authorizing statutes and regulations. See Chavarria v. Brown, 5 Vet.App. 468, 471 (1993) (Court examined evidence in light of statutes and regulations to determine whether appellant’s new evidence was material). A veteran is entitled to service connection for a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304 (1994). Regarding aggravation of a preexisting injury or disease, title 38 of the United States Code provides as follows: A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is" }, { "docid": "1104140", "title": "", "text": "ears should be service connected because both had shown the same pattern of in-service hearing loss followed by continued post-service hearing loss due to in-service noise trauma. R. at 122; see also 124-25. In the June 16, 1993, BVA decision here on appeal, the Board determined that the evidence presented by the veteran was new but was not material because the 1971 and 1979 audiograms did not provide the required nexus between right-ear hearing loss and a disease or injury incurred in service, and denied reopening of the claim. R. at 5-6. II. Analysis A. Applicable Law The Secretary must reopen a previously and finally disallowed claim when “new and material evidence” is presented or secured with respect to that claim. See 38 U.S.C. §§ 5108, 7104(b). On a claim to reopen a previously and finally disallowed claim, the BVA must conduct a “two-step analysis” under section 5108. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is new and material “when viewed in the context of all the evidence, both new and old”, Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991), and presuming “the credibility of the [new] evidence”, Justus v. Principi, 3 Vet.App. 510, 513 (1992). If the evidence is new and material, the Board must then review it on the merits “in the context of the other evidence of record” to determine whether the prior disposition of the claim should be altered. Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). The Court has synthesized the applicable law as follows: “New” evidence is that which is not merely cumulative of other evidence of record. “Material” evidence is that which is relevant to and probative of the issue at hand and which, as this Court stated in Colvin, supra ... must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Cox (Billy) v. Brown," }, { "docid": "22025637", "title": "", "text": "Analysis The appellant, through counsel, maintains that the Board’s decision denying the claims should be reversed because the Board failed to consider the benefit-of-the-doubt rule, made improper findings in discrediting the medical opinions of Dr. Shaw and Dr. Coleman, and failed to give sufficient reasons or bases for discounting those opinions. Brief (Br.) at 4-6. A. New and Material Evidence Under the applicable law, the Secretary must reopen a prior final disallowance of a claim when “new and material evidence” is presented or secured with respect to the basis for the disallowance of that claim. See 38 U.S.C. §§ 5108, 7104(b). On a claim to reopen, a “two-step analysis” must be conducted under section 5108. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must be determined whether the evidence presented or secured since the last final dis-allowance of the claim is new and material. See Blackburn v. Brown, 8 Vet.App. 97, 102 (1995); Cox v. Brown, 5 Vet.App. 95, 98 (1993); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Second, if the evidence is new and material, the Board must then reopen the claim and “review the former disposition of the claim”, 38 U.S.C. § 5108 — that is, review all the evidence of record to determine the outcome of the claim on the merits. See Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). A Board determination as to whether evidence is. “new and material” for purposes of reopening is a question of law subject to de novo review by this Court under 38 U.S.C. § 7261(a)(1). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin, supra. The Court has recently held: The first step of the Manio two-step process as to a claim to reopen involves three questions: Question 1: Is the newly presented evidence “new” (that is, not of record at the time of the last final dis-allowance of the claim and not merely cumulative of other evidence that was then of record, see Struck v. Brown, 9 Vet.App. 145, 151 (1996); Blackburn, Cox, and Colvin, all supra)? Question" }, { "docid": "1103735", "title": "", "text": "on that disorder. 4. New and Material Evidence. Where new and material evidence is required before a claim may be fully adjudicated, the Board must conduct a “two-step” analysis. Manio, 1 Vet.App. at 145. First, it must determine whether the evidence presented or secured since the pertinent prior final disallowance is “new and material”. If it is, the Board must then adjudicate the claim on the basis of all the evidence, both new and old. See Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). The determination as to whether evidence is “new and material” is a question of law subject to de novo review by this Court under 38 U.S.C. § 7261(a)(1). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The Court recently synthesized the applicable law as follows: “New” evidence is that which is not merely cumulative of other evidence of record. “Material” evidence is that which is relevant to and probative of the issue at hand and which, as this Court stated in Colvin, supra, ... must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95, 98 (1993). In addition, when the reopening is sought as part of an accrued-benefits claim under 38 U.S.C. § 5121(a), the new and material evidence must have been in the veteran’s file at time of death or be deemed to have been so under Hayes, supra. In the instant case, the Court concludes that there was no such new and material evidence since the time of the BVA’s prior final disallowance in April 1985 of the veteran’s kidney-disorder claim, and that, therefore, the Board was correct in not proceeding to the section 5108 step-two full adjudication of the accrued-benefits claim derived from the veteran’s claim. The evidence of record since the 1985 BVA denial consists of the following: (1) reports of the veteran’s medical" }, { "docid": "18538750", "title": "", "text": "service connection for bilateral hearing loss and tinnitus. The appellant’s claims were previously denied by a final BVA decision in August 1988. R. at 293. Pursuant to 38 U.S.C. § 5108, the Secretary must reopen a previously and finally disallowed claim when “new and material evidence” is presented or secured with respect to that claim. See 38 U.S.C. § 7104(b); Stanton v. Brown, 5 Vet.App. 563, 566-67 (1993). On claims to reopen previously and finally disallowed claims, the BVA must conduct a two-part analysis. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material.” See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); see also Person v. Brown, 5 Vet.App. 449, 451 (1993) (Court’s review for new and material evidence “is limited by statute to those items added to the record after the previous final disallowance of appellant’s claim”). “New evidence” is evidence that is not “merely cumulative” of other evidence on the record. Ibid. Evidence is “material” where it is relevant to and probative of the issue at hand and where there is a reasonable possibility that, when viewed in the context of all the evidence, both new and old, it would change the outcome. See Sklar v. Brown, 5 Vet.App. 140, 145 (1993); Cox v. Brown, 5 Vet.App. 95, 98 (1993); Colvin, 1 Vet.App. at 174. Second, if the BVA determines that the evidence is “new and material,” it must reopen the claim and “evaluate the merits of the veteran’s claim in light of all the evidence, both new and old.” Masors v. Derwinski, 2 Vet.App. 181, 185 (1992). Whether evidence is “new and material” is a conclusion of law which this Court reviews de novo under 38 U.S.C. § 7261(a)(1). Ibid. In connection with the resubmitted claims, the appellant testified at a July 1990 personal hearing. R. at 338-39. At this hearing, he discussed his hearing loss and tinnitus. His testimony is cumulative of statements submitted in connection with the August 1988 BVA decision and is thus" }, { "docid": "1111269", "title": "", "text": "If the claim now on appeal is a resubmitted claim, it is subject to 38 U.S.C. § 5108, which requires the Secretary to reopen a previously and finally disallowed claim when “new and material evidence” is presented or secured with respect to that claim. On claims to reopen previously and finally disallowed claims, the BVA must conduct a two-part analysis. See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material.” See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). “New evidence” is evidence that is not “merely cumulative” of other evidence on the record. Ibid. Evidence is “material” where it is “relevant to and probative of the issue at hand” and where it is of “sufficient weight or significance that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Sklar v. Brown, 5 Vet.App. 140, 145 (1993); Cox v. Brown, 5 Vet.App. 95, 98 (1993); Colvin, 1 Vet.App. at 174. Second, if the BVA determines that the evidence is new and material, it must reopen the claim and “evaluate the merits of the veteran’s claim in light of all the evidence, both new and old.” Masors v. Derwinski, 2 Vet.App. 181, 185 (1992). Whether evidence is “new and material” is a conclusion of law which this Court reviews de novo under 38 U.S.C. § 7261(a)(1). See Masors, 2 Vet.App. at 185. We hold that the recently submitted psychiatric evaluations are new and material. Once a claim is reopened, the Court reviews the Board’s factual findings under the “clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); Stanton v. Brown, 5 Vet.App. 563, 567 (1993); Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). Under the “clearly erroneous” standard of review, “if there is a ‘plausible’ basis in the record for the factual determinations of the BVA, even if this Court might not have reached the same factual determinations, [the Court] cannot overturn them.”" }, { "docid": "10214842", "title": "", "text": "thereafter. R. At 85-89. Pursuant to 38 U.S.C. § 5108, a previously and finally disallowed claim must be reopened by the Secretary when “new and material evidence” is presented or secured with respect to that claim. See 38 U.S.C. § 7104(b) (formerly § 4004). On claims to reopen previously and finally disallowed claims, the BVA must conduct a “two-step” analysis. Manió v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material”. If it is, the Board must then review the new evidence “in the context of” the old to determine whether the prior disposition of the claim should be altered. Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). “New” evidence is evidence which is not “merely cumulative” of other evidence in the record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). For evidence to be “material”, it must be “relevant and probative” and “there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Ibid; see Jones, supra. For purposes of determining whether evidence is “new and material”, “the credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet.App. 510, 513, No. 91-1596, slip op. at 4 (1992). The determination as to whether evidence is “new and material” is a conclusion of law which this Court reviews de novo under 38 U.S.C. § 7261(a)(1) (formerly § 4061). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin, supra. On the facts of this case, the Court holds that the three lay statements and the veteran’s testimony, assuming their credibility for purposes of determining whether they were “new and material”, were probative and, when considered in the context of all the evidence, new and old, created a reasonable possibility of changing the outcome. Hence, there was new and material evidence to justify reopening the claim on August 17,1989, if it is determined that the August 3,1989, NOD" }, { "docid": "10214841", "title": "", "text": "basis for concluding that the veteran’s present claim is a reopened claim filed on March 20, 1990, and, indeed, the BVA never suggested that the veteran’s claim was reopened as of March 1990. D. New and Material Evidence to Reopen However, should the Board determine that the NOD was not postmarked on or before August 3, 1989, and should this Court sustain such a determination as not “clearly erroneous” under 38 U.S.C. § 7261(a)(4) (formerly .§ 4061), then the claim here on appeal must be considered a reopened claim filed as of the date that the August 3,1989, NOD was received (August 7, 1989). At that time, the veteran submitted three lay statements attesting to his ear problems shortly after service and that he had not had such problems prior to service. R. at 62-64. The veteran also testified under oath before the RO on June 5, 1990, to the effect that he had received treatment for a hearing loss right up to his discharge from service and within one week after discharge and regularly thereafter. R. At 85-89. Pursuant to 38 U.S.C. § 5108, a previously and finally disallowed claim must be reopened by the Secretary when “new and material evidence” is presented or secured with respect to that claim. See 38 U.S.C. § 7104(b) (formerly § 4004). On claims to reopen previously and finally disallowed claims, the BVA must conduct a “two-step” analysis. Manió v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material”. If it is, the Board must then review the new evidence “in the context of” the old to determine whether the prior disposition of the claim should be altered. Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). “New” evidence is evidence which is not “merely cumulative” of other evidence in the record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). For evidence to be “material”, it must be “relevant and probative” and “there must be a reasonable possibility that the new evidence, when viewed" }, { "docid": "10150477", "title": "", "text": "213 (1991); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). In so concluding, the Court rejects as not “material” a medical opinion by a treating physician that his patient currently suffers from a psychiatric problem that, based (as the majority concludes) on what the patient recounted to him about in-service treatment and symptoms, is connected to his service 20 years before. For the reasons that follow, I believe that the majority’s analysis is inconsistent with both the record on appeal and this Court’s precedents, and will sow great confusion in the adjudication process throughout the Department of Veterans Affairs (VA). I. Law on Reopening Under 38 U.S.C.A. § 7104(b) (West 1991), a claim previously and finally denied by the Board of Veterans’ Appeals (BVA or Board) may not be reopened except in accordance with section 5108. On claims to reopen previously and finally denied claims, the Board must conduct a “two-step analysis” under section 5108. Manio, supra. First, it must determine whether the evidence presented or secured since the pertinent prior final disallowance is “new and material”. Ibid. If it is, the Board must then adjudicate the claim on the basis of all the evidence, both new and old. See Jones, supra. The determination as to whether evidence is “new and material” is a question of law, which this Court reviews de novo under 38 U.S.C.A. § 7261(a)(1) (West 1991). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin, supra. The Court recently synthesized the applicable law as follows: “New” evidence is that which is not merely cumulative of other evidence of record. “Material” evidence is that which is relevant to and probative of the issue at hand and which, as this Court stated in Colvin, supra, ... must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95, 98 (1993). See also Justus" }, { "docid": "10146067", "title": "", "text": "of the progressive disease, being as it was secondary to the left knee disability, would have had to have commenced in some degree during that latter period of the [ajppellant’s military service after he incurred the service-connected left knee disability. Br. at 10-11. The Board addressed the issue whether appellant had presented new and material evidence to reopen his claim. Consequently, we address this issue as well. Appellant’s claim for direct service connection for the right knee disorder was denied by a final decision of the BVA in October 1955. Pursuant to 38 U.S.C.A. § 5108 (West 1991), the Secretary of Veterans Affairs must reopen a previously and finally disallowed claim when “new and material evidence” is presented or secured with respect to that claim. See 38 U.S.C.A. § 7104(b) (West 1991). On claims to reopen previously and finally disallowed claims, the BVA must conduct a two-part analysis. See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material.” See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). “New evidence” is evidence that is not “merely cumulative” of other evidence on the record. Ibid. Evidence is “material” where it is “relevant and probative” and where there is “a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Ibid. Whether evidence is “new and material” is a conclusion of law which this Court reviews de novo under 38 U.S.C.A. § 7261(a)(1) (West 1991). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992). The Court holds that appellant did not present new and material evidence to reopen his claim for direct service connection. Appellant’s and Dr. Bonnabeau’s statements all relate to diagnoses in 1988 and after, and are certainly “new.” However, the evidence is not “material.” Although many of these statements concern the causal effect of the left knee condition on the right knee condition, they do not demonstrate that the right knee condition was incurred in or" }, { "docid": "22184080", "title": "", "text": "to 38 U.S.C. § 5108, the Secretary must reopen a previously and finally disallowed claim when “new and material evidence” is presented or secured with respect to the basis for the denial of that claim. See also 38 U.S.C. § 7104(b). On claims to reopen previously and finally disallowed claims, the BVA must conduct a “two-step” analysis. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). The Board must first determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material” when viewed in the context of all the evidence, see Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991), and when “the credibility of the [new] evidence” is presumed, Justus v. Principi, 3 Vet.App. 510, 513 (1992). If the evidence is new and material, the Board must then review the new evidence “in the context of’ the old to determine whether the prior disposition of the claim should be altered. Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). A Board determination as to whether evidence is “new and material” is a conclusion of law subject to de novo review in this Court under 38 U.S.C. § 7261(a)(1). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin, supra. The Court has synthesized the applicable law as follows: “New” evidence is that which is not merely cumulative of other evidence of record. “Material” evidence is that which is relevant to and probative of the issue at hand and which, as this Court stated in Colvin, supra, ... must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Cox (Billy) v. Brown, 5 Vet.App. 95, 98 (1993). Lay assertions of medical causation cannot suffice to reopen a claim under 38 U.S.C. § 5108. See Moray v. Brown, 5 Vet.App. 211, 214 (1993). Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the" }, { "docid": "21495226", "title": "", "text": "1992 letter from Dr. McSwain that stated: We still feel [that the veteran’s] service time in 1953 worsened his problem and contributed to the uncontrolled hypertension we have today 200/110. It stands to reason that this young man should never [have] been in service in the first place, but his 3 years 15 day stay certainly didn’t help his interatrial septal defect, which is now causing serious complications. R. at 240, 264. In the July 12, 1993, BVA decision here on appeal, the Board found that the newly submitted evidence was cumulative and insufficient to reopen the claim for service connection for a heart condition. R. at 8. II. Analysis A. Generally Applicable Law The Secretary must reopen a previously and finally disallowed claim when “new and material evidence” is presented or secured with respect to the basis for the denial of that claim. See 38 U.S.C. §§ 5108, 7104(b). On a claim to reopen a previously and finally disallowed claim, the BVA must conduct a “two-step analysis” under section 5108. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is new and material “when viewed in the context of all the evidence, both new and old”, Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991), and when “the credibility of the [new] evidence” is presumed, Justus v. Principi, 3 Vet.App. 510, 513 (1992). Second, if the evidence is new and material, the Board must then review it on the merits “in the context of the other evidence of record” to determine whether the prior disposition of the claim should be altered. Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). The Court has synthesized the applicable law as follows: “New evidence” is evidence which is not “merely cumulative” of other evidence of record. Colvin, supra. “Evidence is ‘material’ where [assuming its credibility] it is relevant to and probative of the issue at hand and where there is a reasonable possibility that, when viewed in the context of all the evidence, both new and" }, { "docid": "10150756", "title": "", "text": "new and material. R. at 127. He apparently did not appeal this determination. On October 6, 1988, he sought to reopen his claim again. R. at 152-55. In connection with this claim, he submitted an October 11, 1989, letter from a long-time friend, David Garner. R. at 161-62. On August 2,1990, the RO notified appellant that Mr. Garner’s letter was new and material but that “when put in context with the other evidence of record, it does not provide a new factual basis on which to allow your claim.” R. at 165. On April 11, 1991, the BVA denied service connection because it found Mr. Garner’s letter to be “cumulative.” Lewis, BVA 91-11574, at 5. ANALYSIS Appellant’s claim for direct service connection for an acquired psychiatric disorder was previously denied by final BVA decisions on May 10, 1983, R. at 57, and on July 9, 1986, R. at 112, and by a January 14, 1987, rating decision, R. at 126, which he did not appeal. Pursuant to 38 U.S.C.A. § 5108 (West 1991), the Secretary of Veterans Affairs (Secretary) must reopen a previously and finally disallowed claim when “new and material evidence” is presented or secured with respect to that claim. See 38 U.S.C.A. § 7104(b) (West 1991). On claims to reopen previously and finally disallowed claims, the BVA must conduct a two-part analysis. See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior' final disallowance of the claim is “new and material.” See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). “New evidence” is evidence that is not “merely cumulative” of other evidence in the record. Ibid. Evidence is “material” where it is “relevant and probative” and where there is “a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Ibid. Whether evidence is “new and material” is a conclusion of law which this Court reviews de novo under 38 U.S.C.A. § 7261(a)(1) (West 1991). See Masors v. Derwinski, 2 Vet.App. 181, 185" }, { "docid": "20919108", "title": "", "text": "prior Board decision.” Id. II. Under 38 U.S.C. § 7104(b) (1991) (formerly § 4004(b)), a final decision by the BVA on a given claim “may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered.” The exception to this rule is 38 U.S.C. § 5108 (1991) (formerly § 3008) which states that “[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.” See Thompson v. Derwinski, 1 Vet.App. 251, 252-253 (1991). In Manio v. Derwinski, 1 Vet.App. 140 (1991), this Court established that the BVA must perform a two-step analysis when the veteran seeks to reopen a claim based upon new evidence. First, the BVA must determine whether the evidence is “new and material”. 38 U.S.C. § [5108]. Second, if the BVA determines that the claimant has produced new and material evidence, the case is reopened and the BVA must evaluate the merits of the veteran’s claim in light of all the evidence, both new and old. Id. at 145 (citation omitted). The determination whether evidence submitted to reopen a previously disallowed claim is new and material under 38 U.S.C. § 5108 is a question of law which this Court reviews de novo. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). “New and material” evidence is evidence which is “not ... merely cumulative of other evidence on the record” and “is relevant and probative of the issue at hand.” Id. Pursuant to 38 C.F.R. § 3.156(a) (1991), New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. Here, Dr. Stephens was in a unique position since he was both a personal observer of appellant’s condition immediately subsequent to separation from service" }, { "docid": "10155078", "title": "", "text": "Affairs) (VA) regional office (RO) in January 1972, R. at 49-50, and claims for hypertensive heart disease and beriberi were denied by a prior final BVA decision in July 1985, R. at 121. Pursuant to 38 U.S.C. § 5108 (formerly § 3008), a previously and finally disallowed claim must be reopened by the Secretary when “new and material evidence” is presented or secured with respect to that claim. See 38 U.S.C. § 7104(b) (formerly § 4004). On claims to reopen previously and finally disallowed claims, the BVA must conduct a two-part analysis. See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material”. See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). “New evidence” is evidence that is not “merely cumulative” of other evidence on the record. Ibid. Evidence is “material” where it is “relevant and probative” and where there is “a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Ibid. If the evidence is new and material, the Board must then review the new evidence “in the context of” the old to determine whether the prior disposition of the claim should be altered. See Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). Whether evidence is “new and material” is a conclusion of law which this Court reviews de novo under 38 U.S.C. § 7261(a)(1) (formerly § 4061). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992). It is unclear whether the Board found the evidence not new and material or whether it reopened the goiter, hemorrhoid, hypertensive heart disease, and beriberi claims and denied them on the merits. In any event, the Court holds that the appellant has not submitted new and material evidence since the prior final denials of those claims. None of the newly submitted evidence relates the onset of those disabilities to the veteran’s service, and thus the evidence is not material. Since there was no new and material evidence," }, { "docid": "10150757", "title": "", "text": "of Veterans Affairs (Secretary) must reopen a previously and finally disallowed claim when “new and material evidence” is presented or secured with respect to that claim. See 38 U.S.C.A. § 7104(b) (West 1991). On claims to reopen previously and finally disallowed claims, the BVA must conduct a two-part analysis. See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior' final disallowance of the claim is “new and material.” See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). “New evidence” is evidence that is not “merely cumulative” of other evidence in the record. Ibid. Evidence is “material” where it is “relevant and probative” and where there is “a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Ibid. Whether evidence is “new and material” is a conclusion of law which this Court reviews de novo under 38 U.S.C.A. § 7261(a)(1) (West 1991). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992). The Court holds that appellant did not present new and material evidence to reopen his claim for service connection. In his October 11, 1989, letter, David Garner wrote: “I have read the findings of examining psychiatrists and do agree with their evaluations.” R. at 162. This statement only expresses agreement with diagnoses that had been considered prior to the final BVA decisions of May 1983 and July 1986 and the January 1987 rating decision. In his letter, Mr. Garner also wrote that appellant “was not an insane person, or a person with mental problems, or severely adverse psychological conditions before his entry into the United States Air Force.” R. at 161. Appellant had previously submitted statements from friends and associates who considered him to be conscientious, intelligent, reliable, and honest prior to service, but who found him to be frustrated and changed during and after service. R. at 34, 38, 40, 59, 61; see also Mason v. Derwinski, 2 Vet.App. 526, 527 (1992) (lay statements from acquaintances were cumulative of earlier letters and, therefore," }, { "docid": "18546853", "title": "", "text": "5108. Manio, 1 Vet.App. at 145. First, it must be determined whether the evidence presented or secured since the prior final disallowance of the claim is new and material “when viewed in the context of all the evidence, both new and old”, Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991), and when “the credibility of the [new] evidence” is presumed, Justus v. Principi, 3 Vet.App. 510, 513 (1992). Second, if the evidence is new and material, then the claim must be reopened and all the evidence of record reviewed to determine the outcome of the claim on the merits. See Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). As to step one, the determination whether to reopen a previously and finally disallowed claim, the Court has synthesized the applicable law as follows: “New evidence” is that which is not merely cumulative of other evidence of record. [See Colvin, supra.] Evidence, is “material” where it is relevant to and probative of the issue at hand and where there is a reasonable possibility that, when viewed in the context of all the evidence, both new and old, it would change the outcome. Blackburn v. Brown, 8 Vet.App. 97, 102 (1995); Cox (Billy) v. Brown, 5 Vet.App. 95, 98 (1993). The evidence required to reopen must be newly presented or secured evidence that is not cumulative of evidence presented before the last prior disallowance and that is material as to the “issue at hand” (Cox and Colvin, both supra) — that is, it must be probative of the disputed issue which is the basis for the previous final VA adjudication of the claim; if it is, then, when all the evidence (new and old) is viewed, there must be a reasonable possibility that the outcome could be changed. See Blackburn, Cox, and Colvin, all supra. A Board determination as to whether evidence is “new and material” is a question of law subject to de novo review by this Court under 38 U.S.C. § 7261(a)(1). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin, supra. 1." }, { "docid": "10210613", "title": "", "text": "Secretary must reopen a previously and finally disallowed claim when “new and material evidence” is presented or secured with respect to that claim. On claims to reopen previously and finally disallowed claims, the BVA must conduct a “two-step analysis”. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material”. Ibid. If the evidence is new and material, the Board must then review the new evidence “in the context of” the old to determine whether the prior disposition of the claim should be altered. See Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). “New” evidence is evidence which is not “merely cumulative” of other evidence in the record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Evidence is “material” when it is “relevant [to] and probative of the issue at hand” and there is “a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Colvin, supra. In determining whether evidence is new and material, “the credibility of the evidence must be presumed.” Justus v. Principi, 3 Vet.App. 510, 513 (1992). The determination whether evidence is “new and material” is a conclusion of law which the Court reviews de novo under 38 U.S.C.A. § 7261(a)(1) (West 1991). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin, supra. The BVA decision is ambiguous as to whether the Board denied the claim on the basis that there was no new and material evidence to reopen or whether it reopened the claim and denied benefits based on review of all the evidence. For the reasons stated below, the Court holds that there was new and material evidence requiring the Board to reopen and readjudicate the claim. Service connection for the PTB may be established by showing that it was initially manifest during the veteran’s active service or that active PTB was manifest to a degree of 10% or more within the three-year presumption period" } ]

[ { "docid": "22601120", "title": "", "text": "Employers’ Liability Act. It is a novel one for this Court. But w.e think silicosis is within the statute’s coverage when it results from the employer’s negligence. Considerations arising from the breadth of the statutory language, the Act’s humanitarian purposes, its accepted standard of liberal construction in order to accomplish those objects, the absence of anything in the legislative history indicating a congressional intent to require a restricted interpretation or expressly to exclude such occupational disease, and the trend of existing authorities dealing with the question, combine to support this conclusion.' We recognize of course that, when the statute was enacted, Congress’ attention was focused primarily upon injuries and death resulting from accidents on interstate railroads. Obviously these were the major causes of-injury and death resulting from railroad operations. But accidental' injuries were not the only ones likely to occur. And nothing in either the language or the legislative history discloses .expressly any intent to exclude from the Act’s coverage any injury resulting .“in whole or in part from the negligence” of the carrier. If such an intent can be found, it must be read into the Act by . sheer inference. The language is as broad as could be framed: “any person suffering injury while he is employed”; “such injury or death resulting in whole or in part from the negligence of any. of the officers, agents, .or employees of such carrier”; “by reason of any defect or insufficiency, due to its negligence, in its cars, engines, áppliancés,” etc. On its face, every injury suffered by any employee while employed by reason of the carrier’s negligence was made compensable. The wording was not restrictive'as' to the employees covered; the cause of injury, except that it. must constitute negligence attributable to the carrier;, or the particular, kind of injury resulting. To read into this all-inclusive wording a restriction as to the kinds of employees covered, the degree of negligence required, or the particular sorts of harms inflicted, would be contradictory to the wording, the remedial and humanitarian purpose, and the constant and established course of liberal construction of the Act" } ]

[ { "docid": "11377699", "title": "", "text": "view the issue as one of law and review the instruction de novo. Caballero v. City of Concord, 956 F.2d 204, 208 (9th Cir.1992). the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. Id. A party is entitled to an instruction concerning his or her theory of the case if it is supported by law and has some foundation in the evidence. Del Madera Properties v. Rhodes and Gardner, Inc., 820 F.2d 973, 978 (9th Cir.1987). But an error in the jury instructions does not require reversal if it is more probable than not that the error was harmless. Id. at 979. A This appeal concerns the distinction between assumption of risk and contributory negligence under FELA. The doctrine of contributory negligence, also known as comparative fault or comparative negligence, is codified in FELA. The Act provides that 45 U.S.C. § 53. FELA does not, however, permit an employer to raise the defense of assumption of risk. Tiller v. Atlantic Coast Line R.R., 318 U.S. 54, 67, 63 S.Ct. 444, 451, 87 L.Ed. 610 (1943). An injured employee shall not be held to have assumed the risk of his employment in any case where such injury or death resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.... 45 U.S.C. § 54. In Taylor v. Burlington N. R.R. Co., 787 F.2d 1309, 1316 (9th Cir.1986), we addressed the distinction between assumption of risk and contributory negligence. In that case, an employee sought damages under FELA based on harassment by a foreman. The district court barred testimony related to Taylor’s ability to “bid off’ his assigned section gang and work for another gang, on the basis that the railroad was attempting to circumvent the statutory bar to an assumption-of-risk defense by characterizing the defense as one of contributory negligence. We affirmed, explaining that [although there is some overlap between assumption of risk and" }, { "docid": "21633783", "title": "", "text": "of thousands of workers every year,” Consolidated Rail Corporation v. Gottshall, 512 U. S. 532, 542 (1994), including 281,645 casualties in the year 1908 alone, S. Rep. No. 432, 61st Cong., 2d Sess., 2 (1910). Enacted that same year in an effort to “shif[t] part of the human overhead of doing business from employees to their employers,” Gottshall, 512 U. S., at 542 (internal quotation marks omitted), FELA prescribes: “Every common carrier by railroad . . . shall be liable in damages to any person suffering injury while he is employed by such carrier ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier ....” 45 U. S. C. § 51 (emphasis added). Liability under FELA is limited in these key respects: Railroads are hable only to their employees, and only for injuries sustained in the course of employment. FELA’s language on causation, however, “is as broad as could be framed.” Urie v. Thompson, 337 U. S. 163, 181 (1949). Given the breadth of the phrase “resulting in whole or in part from the [railroad’s] negligence,” and Congress’ “humanitarian” and “remedial goal[s],” we have recognized that, in comparison to tort litigation at common law, “a relaxed standard of causation applies under FELA.” Gottshall, 512 U. S., at 542-543. In our 1957 decision in Rogers, we described that relaxed standard as follows: “Under [FELA] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” 352 U. S., at 506. As the Seventh Circuit emphasized, the instruction the District Court gave in this case, permitting a verdict for McBride if “[railroad] negligence played a part — no matter how small — in bringing about the injury,” App. 31a, tracked the language of Rogers. If Rogers prescribes the definition of causation applicable under FELA, that instruction was plainly proper. See Patterson v. McLean Credit Union, 49.1 U. S. 164, 172 (1989)" }, { "docid": "23518349", "title": "", "text": "line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb, and unless said locomotive, its boiler, tender, and all parts and appurtenances thereof have been inspected from time to time in accordance with provisions of sections 28 to 30 and 32 of this title and are able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for. The liability imposed by the Locomotive Boiler Inspection Act is absolute upon proof of an unsafe part and proximate cause. Urie, 337 U.S. at 188, 69 S.Ct. at 1033; Southern Railway Co. v. Lunsford, 297 U.S. 398, 401, 56 S.Ct. 504, 506, 80 L.Ed. 740 (1936); Baltimore & Ohio Railroad Co. v. Groeger, 266 U.S. 521, 528-29, 45 S.Ct. 169, 172-73, 69 L.Ed. 419 (1925); Holfester v. Long Island Railroad Co., 360 F.2d 369, 372 (2d Cir.1966); Gowins, 299 F.2d at 433; Fritts, 293 F.2d at 363; Chesapeake & Ohio Railway Co. v. Wells, 49 F.2d 251, 252 (6th Cir.), cert. denied, 284 U.S. 641, 52 S.Ct. 22, 76 L.Ed. 545 (1931); Simpkins v. Baltimore & Ohio Railroad Co., 449 F.Supp. 613, 615 (S.D.Ohio 1976). An action for violation of the BIA is prosecuted as an action under the FELA, Urie, 337 U.S. at 189 n. 30, 69 S.Ct. at 1034 n. 30; Lilly v. Grand Trunk Western Railroad Co., 317 U.S. 481, 485, 63 S.Ct. 347, 350, 87 L.Ed. 411 (1943), and the FELA causation standard applies, Carter v. Atlanta & St. Andrews Bay Railway Co., 338 U.S. 430, 434, 70 S.Ct. 226, 229, 94 L.Ed. 236 (1949). A plaintiff need not establish that the defect — the inoperative radio in this case — was the sole cause of injury. Carter, 338 U.S. at 435, 70 S.Ct. at 229 (contributory proximate cause is sufficient); Coray v. Southern Pacific Co., 335 U.S. 520," }, { "docid": "17039577", "title": "", "text": "must prove that their injury resulted in whole or in part from the defendant’s violation of the [BIA].” Appellants’ App. at 181 (emphasis added). Plaintiffs objected to this instruction, suggesting in its place language stating they were entitled to recover if the violation “played any part, no matter how small” in causing the injury. Id. at 383-84. On appeal, plaintiffs argue that the district court’s failure to include the proposed language constitutes reversible error. We disagree. Actions alleging a violation of the BIA are brought under the FELA. See Urie v. Thompson, 337 U.S. 163, 188 n. 30, 69 S.Ct. 1018, 1034 n. 30, 93 L.Ed. 1282 (1949). The standard of causation required in a BIA ease is the same as the standard of causation required in a FELA negligence case. See, e.g., Oglesby v. Southern Pacific Transp. Co., 6 F.3d 603, 606 (9th Cir.1993); Green v. River Terminal Ry. Co., 763 F.2d 805, 810 (6th Cir.1985). Therefore, we are required to analyze the statutory language of the FELA and the case law interpreting it in order to determine whether the jury instruction- given by the district court was correct as a matter of law. See Oglesby, 6 F.3d at 606. The FELA provides: “Every common carrier by railroad ... shall be liable in damages to any person suffering injury while he is employed by such carrier ... for such injury ... resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, ... or other equipment.” 45 U.S.C. § 51 (emphasis added). During the first half of this century, it was customary for courts to analyze liability under the FELA in terms of proximate causation. See Page v. St. Louis Southwestern Ry. Co., 312 F.2d 84, 88 & n. 2 (5th Cir.1963) (citing cases). However, the Supreme Court definitively abandoned this approach in Rogers v. Missouri Pacific R.R., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), stating, Under this statute" }, { "docid": "7811790", "title": "", "text": "warrant sending a case to a jury in a FELA action. The LIRR is correct, and the District Court noted, that FELA is not a strict liability statute, see Sinclair v. Long Island R.R., 985 F.2d 74, 77 (2d Cir.1993), and the fact that an employee is injured is not proof of negligence. See Eaton v. Long Island R.R Co., 398 F.2d 738, 741 (2d Cir.1968). However, it is also true that a relaxed standard of negligence applies in FELA cases in this Circuit. See Syverson v. Consol. Rail Corp., 19 F.3d 824, 826 (2d Cir.1994) (reversing a district court’s judgment as a matter of law in a FELA case). The Supreme Court has said, based on the explicit language of the statute, that with respect to causation, a relaxed standard applies in FELA cases so that an employer is liable for injuries caused “in whole or in part” by the employer’s negligence. Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 506-07, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957) (quoting 45 U.S.C. § 51, which states in relevant part: “Every common carrier by railroad while engaging in commerce between any of the several States ... shall be liable in damages to any person suffering injury ... or ... death ... resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.... ”). While some circuits have limited the application of the “in whole or in part” language to the element of causation and apply traditional standards to the duty of care owed, see, e.g., Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335 (5th Cir.1997) (en banc), this Circuit has explicitly stated that it construes “the statute, in light of its broad remedial nature, as creating a relaxed standard for negligence as well as causation,” Ulfik v. Metro-North Commuter R.R., 77 F.3d 54, 58 & n. 1 (2d Cir.1996) (noting that the Supreme Court has not expressly held that a relaxed standard for negligence, as opposed to causation, applies under FELA) (citing Syverson, 19 F.3d at 825); see also Eaton," }, { "docid": "21633782", "title": "", "text": "and affirmed the judgment entered on the jury’s verdict. Rogers had “relaxed the proximate cause requirement” in FELA cases, the Seventh Circuit concluded, a view of Rogers “echoed by every other court of appeals.” 598 F. 3d, at 399. While acknowledging that a handful of state courts “still applied] traditional formulations of proximate cause in FELA cases,” id., at 404, n. 7, the Seventh Circuit said it could hardly declare erroneous an instruction that “simply paraphrased] the Supreme Court's own words in Rogers,” id., at 406. We granted certiorari to decide whether the causation instruction endorsed by the Seventh Circuit is proper in FELA cases. 562 U. S. 1060 (2010). That instruction does not include the term “proximate cause,” but does tell the jury defendant’s negligence must “pla[y] a part — no matter how small — in bringing about the [plaintiff’s] injury.” App. 31a. II A The railroad business was exceptionally hazardous at the dawn of the 20th eentury. As we have recounted, “the physical dangers of railroading ... resulted in the death or maiming of thousands of workers every year,” Consolidated Rail Corporation v. Gottshall, 512 U. S. 532, 542 (1994), including 281,645 casualties in the year 1908 alone, S. Rep. No. 432, 61st Cong., 2d Sess., 2 (1910). Enacted that same year in an effort to “shif[t] part of the human overhead of doing business from employees to their employers,” Gottshall, 512 U. S., at 542 (internal quotation marks omitted), FELA prescribes: “Every common carrier by railroad . . . shall be liable in damages to any person suffering injury while he is employed by such carrier ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier ....” 45 U. S. C. § 51 (emphasis added). Liability under FELA is limited in these key respects: Railroads are hable only to their employees, and only for injuries sustained in the course of employment. FELA’s language on causation, however, “is as broad as could be framed.” Urie v. Thompson, 337 U. S. 163, 181" }, { "docid": "21633791", "title": "", "text": "division of responsibility among multiple actors, and not causation more generally, misses the thrust of our decision in that case. Tellingly, in announcing the “any part... in producing the injury” test, Rogers cited Coray v. Southern Pacific Co., 335 U. S. 520 (1949), a decision emphasizing that FELA had parted from traditional common-law formulations of causation. What qualified as a “proximate” or legally sufficient cause in FELA cases, Coray had explained, was determined by the statutory phrase “resulting in whole or in part,” which Congress “selected ... to fix liability” in language that was “simple and direct.” Id., at 524. That straightforward phrase, Coray observed, was incompatible with “dialectical subtleties” that common-law courts employed to determine whether a particular cause was sufficiently “substantial” to constitute a proximate cause. Id., at 523-524. Our subsequent decisions have confirmed that Rogers announced a general standard for causation in FELA cases, not one addressed exclusively to injuries involving multiple potentially cognizable causes. The very day Rogers was announeed, we applied its “any part” instruction in a case in which the sole causation issue was the directness or foreseeability of the connection between the carrier’s negligence and the plaintiff’s injury. See Ferguson v. Moore-McCormack Lines, Inc., 352 U. S. 521, 523-524 (1957) (plurality opinion). A few years later, in Gallick v. Baltimore & Ohio R. Co., 372 U. S. 108 (1963), we held jury findings for the plaintiff proper in a case presenting the following facts: For years, the railroad had allowed a fetid pool, containing “dead and decayed rats and pigeons,” to accumulate near its right-of-way; while standing near the pool, the plaintiff-employee suffered an insect bite that became infected and required amputation of his legs. Id., at 109. The appellate court had concluded there was insufficient evidence of causation to warrant submission of the ease to the jury. Id., at 112. We reversed, reciting the causation standard Rogers announced. 372 U. S., at 116-117, 120-121. See also Crane v. Cedar Rapids & Iowa City R. Co., 395 U. S. 164, 166-167 (1969) (contrasting suit by railroad employee, who “is not required to prove" }, { "docid": "16910342", "title": "", "text": "for causation in cases under the FELA. The court rejected CSX’s proffered instruction. Instead, the court used Mr. McBride’s causation instruction, and the jury returned a verdict in Mr. McBride’s favor. After unsuccessfully challenging the jury’s verdict before the district court, CSX appealed. II ANALYSIS The central issue in this case is the proper standard for causation under the FELA. Stated another way, the question we must resolve is whether Section 1 of the FELA, 45 U.S.C. § 51, abrogates the common-law rule of proximate cause. We begin with the applicable statutory command. Section 51 of Title 45 provides in relevant part: Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. 45 U.S.C. § 51 (emphasis added). The question of causation centers on the meaning of “resulting in whole or in part from the negligence ... of such carrier.” Id. CSX submits that this language does not establish a causation standard. Instead, according to CSX, common-law proximate causation is — and always has been — the proper causation standard under the FELA. Relying heavily on Justice Souter’s concurring opinion in Norfolk" }, { "docid": "11544394", "title": "", "text": "the following instruction: “ * * * The term ‘proximate cause’ means that cause which in a direct, unbroken sequence produces the injury complained of and without which such injury would not have happened. * * *” (Clerk’s Tr. p. 107, lines 1-3) Plaintiff-appellant, contending that the District Court committed prejudicial error in giving this instruction, mainly relies on Coray v. Southern Pacific Co., 335 U.S. 520, 69 S.Ct. 275, 93 L.Ed. 208 (1948); Rogers v. Missouri Pacific Ry. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957) and Page v. St. Louis Southwestern Ry. Co., 312 F.2d 84, 98 A.L.R.2d 639 (5th Cir. 1963). Defendant-appellee, contending that the instructions on the subject of causation must be considered as a whole, argues that the particular instruction complained of is neither erroneous nor inconsistent with the accompanying other instructions which express the liberal rúle of causation indicated by the Supreme Court in the Rogers case, supra. The instruction in question was given by the trial court in context with other instructions on the subject of causation. The whole instruction on the subject was as follows: “A party is not entitled to recover solely because there has been an accident. Any party claiming negligence or contributory negligence has the burden of proving by a preponderance of the evidence that the other party was negligent in some of the particulars claimed and that such negligence was a proximate cause of the injury and damage to plaintiff claimed. “The term, ‘proximate cause’ means that cause which in a direct, unbroken sequence produces the injury and without which such injury would not have happened. * * * (emphasis ours) “The Federal Employees Liability Act, § 51 provides in part, ‘Every common carrier by railroad while engaging in commerce between any of the several states shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce for such injury or death resulting in whole or in part from the negligence of any of the officers. * * * ’ (Clerk’s Tr. p. 109) “An injury" }, { "docid": "23432683", "title": "", "text": "principles of liability as a “response to the special needs of railroad workers who are daily exposed to the risks inherent in railroad work and are helpless to provide adequately for their own safety.” Aparicio v. Norfolk & W. Ry. Co., 84 F.3d 803, 807 (6th Cir.1996) (quoting Sinkler v. Missouri Pac. R.R. Co., 356 U.S. 326, 329, 78 S.Ct. 758, 2 L.Ed.2d 799 (1958)). FELA provides: Every common carrier by railroad while engaging in commerce between any of the several states ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury ... resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.... 45 U.S.C. § 51 (1994). This Court has held that a FELA plaintiff asserting a cause of negligence against its employer “must prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation.” Adams v. CSX Transp., 899 F.2d 536, 539 (6th Cir.1990) (quoting Robert v. Consolidated Rail Corp., 832 F.2d 3, 6 (1st Cir.1987)). [The] plaintiff must present more than a scintilla of evidence to prove that (1) an injury occurred while the plaintiff was working within the scope of his or her employment with the railroad, (2) the employment was in the furtherance of the railroad’s interstate transportation business, (3) the employer railroad was negligent, and (4) the employer’s negligence played some part in causing the injury for which compensation is sought under the Act. Aparicio, 84 F.3d at 810 (citing Green v. River Terminal Ry. Co., 763 F.2d 805, 808 (6th Cir.1985)). In Aparicio, we addressed a claim of negligence under FELA where the district court had granted defendant’s motion for judgment as a matter of law at the close of plaintiffs case. We held that in FELA cases, a jury question is created if: the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that," }, { "docid": "11544393", "title": "", "text": "SWEIGERT, District Judge: This is an action for damages, brought under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq., by appellant, a railroad brakeman-conductor, against his employer, Great Northern Railway Company, for on-duty injuries sustained by appellant. Plaintiff and appellant appeals from the judgment entered against plaintiff upon a jury verdict in favor of defendant íailroad. The F.E.L.A. 45 U.S.C. § 51, provides: “Every common carrier by railroad while engaging in commerce * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of süch carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” (emphasis ours) The main question presented on this appeal is whether the District Court committed prejudicial error in giving to the jury the following instruction: “ * * * The term ‘proximate cause’ means that cause which in a direct, unbroken sequence produces the injury complained of and without which such injury would not have happened. * * *” (Clerk’s Tr. p. 107, lines 1-3) Plaintiff-appellant, contending that the District Court committed prejudicial error in giving this instruction, mainly relies on Coray v. Southern Pacific Co., 335 U.S. 520, 69 S.Ct. 275, 93 L.Ed. 208 (1948); Rogers v. Missouri Pacific Ry. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957) and Page v. St. Louis Southwestern Ry. Co., 312 F.2d 84, 98 A.L.R.2d 639 (5th Cir. 1963). Defendant-appellee, contending that the instructions on the subject of causation must be considered as a whole, argues that the particular instruction complained of is neither erroneous nor inconsistent with the accompanying other instructions which express the liberal rúle of causation indicated by the Supreme Court in the Rogers case, supra. The instruction in question was given by the trial court in context with other instructions on the subject" }, { "docid": "21242442", "title": "", "text": "shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. 45 U.S.C. § 51. The statute contains a negligence standard. Consequently, to survive Grand Trunk’s motion for summary judgment, Van Gorder needed to present evidence sufficient to raise a genuine issue of material fact as to every element of his negligence claim. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. In order to present a prima facie case under FELA, Van Gorder must prove that: (1) he was injured within the scope of his employment; (2) his employment was in furtherance of Grand Trunk’s interstate transportation business; (3) that Grand Trunk was negligent; and (4) that Grand Trunk’s negligence played some part in causing the injury for which he seeks compensation under FELA. Green v. River Terminal Ry. Co., 763 F.2d 805, 808 (6th Cir.1985) (internal citations omitted); see also Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326, 330, 78 S.Ct. 758, 2 L.Ed.2d 799 (1958). We will view the evidence in the light most favorable to Van Gorder, the non-moving party. It is undisputed that Van Gorder injured his shoulder during the course of his employment, and he was furthering Grand Trunk’s interstate transportation business in preparing the rail-cars for loading and transport. Therefore, Van Gorder has satisfied the first two of the required FELA elements. The fatal flaw in Van Gorder’s complaint, however, is that he cannot show that Grand Trunk was negligent. To succeed on his FELA claim, Van Gorder must “prove the traditional common law elements of negligence; duty, breach, foreseeability, and causation.” Adams v. CSX Transportation, Inc., 899 F.2d 536, 539 (6th Cir.1990) (quoting Robert v. Consolidated Rail Corp., 832 F.2d 3, 6 (1st Cir.1987)); Hardyman v. Norfolk & W. Ry. Co.," }, { "docid": "23518350", "title": "", "text": "Island Railroad Co., 360 F.2d 369, 372 (2d Cir.1966); Gowins, 299 F.2d at 433; Fritts, 293 F.2d at 363; Chesapeake & Ohio Railway Co. v. Wells, 49 F.2d 251, 252 (6th Cir.), cert. denied, 284 U.S. 641, 52 S.Ct. 22, 76 L.Ed. 545 (1931); Simpkins v. Baltimore & Ohio Railroad Co., 449 F.Supp. 613, 615 (S.D.Ohio 1976). An action for violation of the BIA is prosecuted as an action under the FELA, Urie, 337 U.S. at 189 n. 30, 69 S.Ct. at 1034 n. 30; Lilly v. Grand Trunk Western Railroad Co., 317 U.S. 481, 485, 63 S.Ct. 347, 350, 87 L.Ed. 411 (1943), and the FELA causation standard applies, Carter v. Atlanta & St. Andrews Bay Railway Co., 338 U.S. 430, 434, 70 S.Ct. 226, 229, 94 L.Ed. 236 (1949). A plaintiff need not establish that the defect — the inoperative radio in this case — was the sole cause of injury. Carter, 338 U.S. at 435, 70 S.Ct. at 229 (contributory proximate cause is sufficient); Coray v. Southern Pacific Co., 335 U.S. 520, 523-24, 69 S.Ct. 275, 276-77, 93 L.Ed. 208 (1949); Peymann v. Perini Corp., 507 F.2d 1318, 1324 (1st Cir.1974), cert. denied, 421 U.S. 914, 95 S.Ct. 1572, 43 L.Ed.2d 780 (1975) (Jones Act); Hausrath v. New York Central Railroad Co., 401 F.2d 634, 637 (6th Cir.1968); Givens v. Missouri-Kansas-Texas R. Co. of Texas, 195 F.2d 225, 230 (5th Cir.1952). Causation is not established if the defect or unsafe condition “merely creates an incidental condition or situation in which the accident, otherwise caused, results in such injury.” Davis v. Wolfe, 263 U.S. 239, 243, 44 S.Ct. 64, 66, 68 L.Ed. 284 (1923). “Where there has been a failure of a required appliance, there is liability only where the failure of the appliance not only creates a condition under which, or an incidental situation in which the employee is injured, but where the defective appliance is itself an efficient cause of or the instrumentality through which the injury is directly brought about.” Reetz v. Chicago & Erie Railroad Co., 46 F.2d 50, 52 (6th Cir.1931); Anderson v." }, { "docid": "17039576", "title": "", "text": "Sutherland Paper Co. v. Grant Paper Box Co., 183 F.2d 926, 931 (3rd Cir.1950).' The plaintiffs acted expeditiously in filing the motion for a new scheduling order and obtaining alternative medical testimony. Under these circumstances, the district court’s decision to deny plaintiffs’ motion without affording plaintiffs an opportunity to develop the testimony and subject it to further Daubert analysis was improvident. We reverse on that basis. IV We review the district court’s decision to give a particular jury instruction for abuse of discretion. Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1442 (10th Cir.1997). The instructions given are reviewed de novo to determine whether, in their entirety, they correctly state the governing law. Id. “An erroneous jury instruction requires reversal only if we have substantial doubt whether the instructions, taken together, properly guided the jury in its deliberations.” Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1424 (10th Cir.1993) (quotations omitted). The district court informed the jury that “for the plaintiffs to recover any damages under the Boiler Inspection Act [ (“BIA”) ], they must prove that their injury resulted in whole or in part from the defendant’s violation of the [BIA].” Appellants’ App. at 181 (emphasis added). Plaintiffs objected to this instruction, suggesting in its place language stating they were entitled to recover if the violation “played any part, no matter how small” in causing the injury. Id. at 383-84. On appeal, plaintiffs argue that the district court’s failure to include the proposed language constitutes reversible error. We disagree. Actions alleging a violation of the BIA are brought under the FELA. See Urie v. Thompson, 337 U.S. 163, 188 n. 30, 69 S.Ct. 1018, 1034 n. 30, 93 L.Ed. 1282 (1949). The standard of causation required in a BIA ease is the same as the standard of causation required in a FELA negligence case. See, e.g., Oglesby v. Southern Pacific Transp. Co., 6 F.3d 603, 606 (9th Cir.1993); Green v. River Terminal Ry. Co., 763 F.2d 805, 810 (6th Cir.1985). Therefore, we are required to analyze the statutory language of the FELA and the case law interpreting it" }, { "docid": "16910341", "title": "", "text": "Seventh Cir. 9.02, cmt.a. CSX countered with its own causation instruction: In order to establish that an injury was caused by the defendant’s negligence, the plaintiff must show that (i) the injury resulted “in whole or in part” from the defendant’s negligence, and (ii) the defendant’s negligence was a proximate cause of the injury. R.44 at 17. CSX also proffered the following instruction defining “proximate cause”: When I use the expression “proximate cause,” I mean any cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it causes the iiyury. Id. at 14. In support of its proffered instructions, CSX maintained that, in Norfolk Southern Railway Co. v. Sorrell, 549 U.S. 158, 127 S.Ct. 799, 166 L.Ed.2d 638 (2007), the Supreme Court had clarified that Rogers had not abandoned common-law proximate cause, and, in fact, proximate cause was the proper standard for causation in cases under the FELA. The court rejected CSX’s proffered instruction. Instead, the court used Mr. McBride’s causation instruction, and the jury returned a verdict in Mr. McBride’s favor. After unsuccessfully challenging the jury’s verdict before the district court, CSX appealed. II ANALYSIS The central issue in this case is the proper standard for causation under the FELA. Stated another way, the question we must resolve is whether Section 1 of the FELA, 45 U.S.C. § 51, abrogates the common-law rule of proximate cause. We begin with the applicable statutory command. Section 51 of Title 45 provides in relevant part: Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such" }, { "docid": "17039578", "title": "", "text": "in order to determine whether the jury instruction- given by the district court was correct as a matter of law. See Oglesby, 6 F.3d at 606. The FELA provides: “Every common carrier by railroad ... shall be liable in damages to any person suffering injury while he is employed by such carrier ... for such injury ... resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, ... or other equipment.” 45 U.S.C. § 51 (emphasis added). During the first half of this century, it was customary for courts to analyze liability under the FELA in terms of proximate causation. See Page v. St. Louis Southwestern Ry. Co., 312 F.2d 84, 88 & n. 2 (5th Cir.1963) (citing cases). However, the Supreme Court definitively abandoned this approach in Rogers v. Missouri Pacific R.R., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), stating, Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities. The statute expressly im poses liability upon the employer to pay damages for injury or death due “in whole or in part ” to" }, { "docid": "11377698", "title": "", "text": "the part of the plaintiff, however, simply because he acceded to the request or direction of responsible representative of his employer that he work at a dangerous The jury returned a verdict finding that both Union Pacific and Jenkins were negligent. The jury found that Jenkins was 65% responsible for his own injuries due to his contributory negligence. The jury found damages in the amount of $800,000. The district court reduced Jenkins’ damage award by 65% to $280,000. II The standard of review for an alleged error in jury instructions depends on the nature of the claimed error. Oglesby v. Southern Pac. Transp. Co., 6 F.3d 603, 606 (9th Cir.1993). When an appellant alleges an error in the formulation of the jury instructions, the instructions are considered as a whole and an abuse of discretion standard is applied to determine if they are misleading or inadequate. Oviatt v. Pearce, 954 F.2d 1470,1481 (9th Cir.1992). However, where an appellant claims the trial court misstated the elements that must be proved at trial, the reviewing court must view the issue as one of law and review the instruction de novo. Caballero v. City of Concord, 956 F.2d 204, 208 (9th Cir.1992). the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. Id. A party is entitled to an instruction concerning his or her theory of the case if it is supported by law and has some foundation in the evidence. Del Madera Properties v. Rhodes and Gardner, Inc., 820 F.2d 973, 978 (9th Cir.1987). But an error in the jury instructions does not require reversal if it is more probable than not that the error was harmless. Id. at 979. A This appeal concerns the distinction between assumption of risk and contributory negligence under FELA. The doctrine of contributory negligence, also known as comparative fault or comparative negligence, is codified in FELA. The Act provides that 45 U.S.C. § 53. FELA does not, however, permit" }, { "docid": "21633821", "title": "", "text": "jury: “What we also have to show is defendant’s negligence caused or contributed to [McBride’s] injury. It never would have happened but for [CSX] giving him that train.” App. to Pet. for Cert. 67a (emphasis added). At certain points in its opinion, the Court acknowledges that “[injuries have countless causes,” not all of which “should give rise to legal liability.” Ante, at 692. But the causation test the Court embraces contains no limit on causation at all. II This Court, from the time of FELA’s enactment, understood FELA to require plaintiffs to prove that an employer’s negligence “is a proximate cause of the accident,” Davis v. Wolfe, 263 U. S. 239, 243 (1923). See, e. g., ibid. (“The rule clearly deducible from [prior] cases is that ... an employee cannot recover ... if the [employer’s] failure ... is not a proximate cause of the accident . . . but merely creates an incidental condition or situation in which the accident, otherwise caused, results in such injury”); Carter v. Atlanta & St. Andrews Bay R. Co., 338 U. S. 430, 435 (1949) (“if the jury determines that the defendant’s breach is a contributory proximate cause of injury, it may find for the plaintiff” (internal quotation marks omitted)); O'Donnell v. Elgin, J & E. R. Co., 338 U. S. 384, 394 (1949) (“plaintiff was entitled to a[n]... instruction . . . which rendered defendant liable for injuries proximately resulting therefrom”). A comprehensive treatise written shortly after Congress enacted FELA confirmed that “the plaintiff must . . . show that the alleged negligence was the proximate cause of the damage” in order to recover. 1 M. Roberts, Federal Liabilities of Carriers §538, p. 942 (1918). As Justice Souter has explained, for the half century after the enactment of FELA, the Court “consistently recognized and applied proximate cause as the proper standard in FELA suits.” Sorrell, supra, at 174 (concurring opinion). No matter. For the Court, time begins in 1957, with our opinion in Rogers v. Missouri Pacific R. Co., supra. That opinion, however, “left this law where it was.” Sorrell, supra, at 174" }, { "docid": "16479095", "title": "", "text": "must go to a jury where “the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” Ibid. But that statement did not address and should not be read as affecting the necessary directness of cognizable causation, as distinct from the occasional multiplicity of causations. It spoke to apportioning liability among parties, each of whom was understood to have had some hand in causing damage directly enough to be what the law traditionally called a proximate cause. The absence of any intent to water down the common law requirement of proximate cause is evident from the prior eases on which Rogers relied. To begin with, the “any part, even the slightest,” excerpt of the opinion (cited by respondent in arguing that Rogers created a more “relaxed” standard of causation than proximate cause) itself cited Coray v. Southern Pacific Co., 335 U. S. 520 (1949). See Rogers, supra, at 506, n. 11. There, just eight years before Rogers, Justice Black unambiguously recognized proximate cause as the standard applicable in FELA suits. 335 U. S., at 523 (“ [Petitioner was entitled to recover if this defective equipment was the sole or a contributory proximate cause of the decedent employee’s death”). Second, the Rogers Court’s discussion of causation under “safety-appliance statutes” contained a cross-reference to Coray and a citation to Carter v. Atlanta & St. Andrews Bay R. Co., 338 U. S. 430 (1949), a case which likewise held there was liability only if “the jury determines that the defendant’s breach is a ‘contributory proximate cause’ of injury,” id., at 435. Rogers, swpra, at 507, n. 13. If more were needed to confirm the limited scope of what Rogers held, the Court’s quotation of the Missouri trial court’s jury charge in that case would supply it, for the instructions covered the requirement to show proximate cause connecting negligence and harm, a point free of controversy: “ ‘[I]f you further find that the plaintiff... did not exercise ordinary care for his own safety and was guilty of negligence" }, { "docid": "16910343", "title": "", "text": "carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. 45 U.S.C. § 51 (emphasis added). The question of causation centers on the meaning of “resulting in whole or in part from the negligence ... of such carrier.” Id. CSX submits that this language does not establish a causation standard. Instead, according to CSX, common-law proximate causation is — and always has been — the proper causation standard under the FELA. Relying heavily on Justice Souter’s concurring opinion in Norfolk Southern Railway v. Sorrell, 549 U.S. 158, 127 S.Ct. 799, 166 L.Ed.2d 638 (2007), CSX maintains that the Supreme Court never has abandoned the holdings of its early FELA cases in which it explicitly held that a plaintiff must establish proximate causation in order to recover under the Act. CSX further claims, also in reliance on Justice Souter’s concurrence, that the Supreme Court’s decision in Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), does not hold to the contrary; according to CSX, Rogers did not purport to speak to the question of proximate causation, but only to the question of when a case with multiple causes must be submitted to the jury. CSX acknowledges that other Supreme Court cases, as well as cases in the courts of appeals, have suggested, if not held, that Rogers established a relaxed causation standard for FELA cases. It argues, however, that many of these statements are only dicta, but, even if not, they are at odds with both the FELA itself" } ]

[ { "docid": "22751570", "title": "", "text": "of Appeals stated: “Beyond this, there are a number of factors unique to this case that militate in favor of Judge Gesell’s decision. First, the conversations at issue relate to the conduct of the Presidency and thus they are both impressed with the ‘public trust,’ and of prime national interest. Second, the fact that the transcripts of the conversations already have received wide circulation makes this unlike a hypothetical case in which evidence previously accessible only to a few spectators will suddenly become available to the entire public. Finally, it seems likely that as a result of the Presidential [Recordings and Materials] Preservation Act, the words and sounds at issue here will find a further entry way into the public domain. For all these reasons we are unable to conclude that Judge Gesell abused his discretion in rejecting the claim of privacy. “In any event, in light of the strong interests underlying the common law right to inspect judicial records — interests especially important here given the national concern over Watergate — we cannot say that Judge Gesell abused his discretion in refusing to permit considerations of deference to impede the public’s exercise of their common law rights.” United States v. Mitchell, 179 U. S. App. D. C. 293, 305-306, 551 F. 2d 1252, 1264-1265 (1976) (footnotes omitted). It is true that Judge Sirica refused to order release of the tapes before the appeals were concluded, but he expressed no disagreement with any aspect of Judge Gesell’s opinion. It should also be noted that although Circuit Judge MacKinnon dissented from the Court of Appeals decision that the tapes should be released forthwith, he also expressed no disagreement with Judge Gesell’s views. Id., at 306-307, 551 F. 2d, at 1265-1266. It is, of course, true that the Act’s effect on this litigation “was neither advanced by the parties nor given appropriate consideration by the courts below.” Ante, at 603. But this is a reason for rejecting, not embracing, petitioner’s claim. S. Rep. No. 94-368, p. 13 (1975); H. R. Rep. No. 94^560, p. 16 (1975). The Administrator of General Services first" } ]

[ { "docid": "22751571", "title": "", "text": "that Judge Gesell abused his discretion in refusing to permit considerations of deference to impede the public’s exercise of their common law rights.” United States v. Mitchell, 179 U. S. App. D. C. 293, 305-306, 551 F. 2d 1252, 1264-1265 (1976) (footnotes omitted). It is true that Judge Sirica refused to order release of the tapes before the appeals were concluded, but he expressed no disagreement with any aspect of Judge Gesell’s opinion. It should also be noted that although Circuit Judge MacKinnon dissented from the Court of Appeals decision that the tapes should be released forthwith, he also expressed no disagreement with Judge Gesell’s views. Id., at 306-307, 551 F. 2d, at 1265-1266. It is, of course, true that the Act’s effect on this litigation “was neither advanced by the parties nor given appropriate consideration by the courts below.” Ante, at 603. But this is a reason for rejecting, not embracing, petitioner’s claim. S. Rep. No. 94-368, p. 13 (1975); H. R. Rep. No. 94^560, p. 16 (1975). The Administrator of General Services first planned to forbid private copying of the tapes in his control, but the Senate emphatically rejected this initial proposal. S. Res. 244, 94th Cong., 1st Sess. (1975), 121 Cong. Rec. 28609-28614 (1975). The Senate’s Committee Report condemned the Administrator’s proposed regulation as “at best, unnecessary, and at worst, inconsistent with the spirit if not the letter of the act.” S. Rep. No. 94-368,, supra, at 13. The Report elaborated: “In evaluating this regulation, it is also necessary to consider the basic intent of the Act. This legislation was designed, within certain limitations, to provide as much public access to the materials as is physically possible as quickly as possible. To that end, GSA recognizes that legitimate research requires the reproduction of printed materials; reproduction is no less necessary when the material is a tape recording.” Ibid. A House Report also disapproved the proposal, rejecting the Administrator’s fears of undue commercialization: “There is of course a risk that some people will reproduce the recordings and exploit them for commercial purposes. That is the risk of a" }, { "docid": "310026", "title": "", "text": "to ... [the] production [of the materials],” id. at 603, 98 S.Ct. at 1315, but at the same time acknowledged that there is a “presumption — however gauged — in favor of public access to judicial records,” id. at 602, 98 S.Ct. at 1314. The Supreme Court deemed it unnecessary to decide how the balance would be struck based on the above considerations, for it found that “[a]n additional, unique element” controlled disposition of the case. Id. at 603, 98 S.Ct. at 1315. Congress, through the Presidential Recordings Act, had statutorily modified the common law right by specifically restricting public access to the Watergate tapes, and thus decisively tipped the scale against court authorized release. B. Subsequent court of appeals decisions have addressed the critical question left unresolved by Warner Communications, namely the strength of the presumption in favor of public access. Three circuits — the Second, the Third, and the District of Columbia — have held that the presumption is strong and entitled to significant weight in the decisionmaking process. See Myers, supra, 635 F.2d at 952 (“only the most compelling circumstances should prevent contemporaneous public access”); In re Application of National Broadcasting Co. (United States v. Criden), 648 F.2d 814, 823 (3rd Cir. 1981) (hereafter “Criden”) (“strong presumption that material introduced into evidence at trial should be made reasonably accessible in a manner suitable for copying and broader dissemination”); In re Application of National Broadcasting Co. (United States v. Jenrette), 653 F.2d 609, 613 (D.C.Cir.1981) (hereafter “Jenrette”) (“access may be denied only if ... ‘justice so requires’ ”); United States v. Hubbard, 650 F.2d 293, 317 (D.C.Cir.1980) (“strong presumption in fa vor of public access”); see also United States v. Mitchell, 551 F.2d 1252, 1261 (D.C.Cir.1976), rev’d on other grounds sub nom. Nixon v. Warner Communications, supra, 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (party seeking “to interfere with a fundamental common law right ... [must sustain] burden of demonstrating that justice require[s] denying access to court records”). In contrast, the Fifth Circuit has expressly declined to find an “overpowering presumption in favor of access,” and" }, { "docid": "23316525", "title": "", "text": "copying and rebroadcasting. III. The Common Law Right of Access. There is a right of access to these courtroom exhibits derived not from the Constitution: a common law right of access “that predates the Constitution itself.” United States v. Mitchell, 551 F.2d 1252, 1260 (D.C.Cir. 1976), rev’d sub nom. Nixon v. Warner Communications, 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). As with the constitutional claim, the Court’s opinion in Warner Communications provides the measure by which we review the trial court decision on the right of physical access to these tapes. “It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” 435 U.S. at 597, 98 S.Ct. at 1312 (footnote omitted). While the question was not certainly answered by the Court’s opinion in Warner Communications, we assume for purposes of this discussion that the right of access extends beyond scroll and paper to tape recordings. Finding no need on the facts of the Watergate Tapes case “to delineate precisely the contours of the common-law right,” id. at 599, 98 S.Ct. at 1313, the Court found it “uncontested” that the right to inspect and copy judicial records is not absolute. Id. at 598, 98 S.Ct. at 1312. The question becomes, then, under what circumstances access may be denied, and to whose judgment that decision is substantially committed. The Supreme Court’s answer to the second question suggests the impossibility of definitively answering the first: “The few cases that have recognized such a right do agree that the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” Id. at 599, 98 S.Ct. at 1312-13. The District of Columbia Circuit, whose decision was reversed in Warner Communications, acknowledged the same answers to the prefatory questions: “Because no clear rules can be articulated as to when judicial records should be closed to the public, the decision to do so necessarily rests within" }, { "docid": "22881939", "title": "", "text": "for inspection and copying, a privilege which the Court explicitly recognized in Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-99, 98 S.Ct. 1306, 1311-13, 55 L.Ed.2d 570 (1978). The right to inspect and copy, part of a more general citizens’ right to review public records, United States v. Mitchell, 551 F.2d 1252, 1257-58 (D.C.Cir.1976), rev’d on other grounds sub nom. Nixon v. Warner Communications, Inc., is the more relevant to our determination of the issues in this case. However, because the Third Circuit has concluded that identical interests support both the public’s right to inspect and copy and the public’s right of access to criminal trials, see United States v. Criden, supra, 648 F.2d at 820, we will also canvass the trial access cases. The right to inspect and copy has been discussed in recent years by the Supreme Court and several courts of appeals, including the Third Circuit, though its precise contours have not been determined.' In Nixon v. Warner Communications, Inc., which was decided on statutory grounds, the Supreme Court did not explore in depth the underlying bases of the right. The District of Columbia Circuit declared in that case, however, that “this common law right is not some arcane relic of ancient English law. To the contrary, the right is fundamental to a democratic state.” United States v. Mitchell, supra, 551 F.2d at 1258. The court explained that the right of inspection, like the First Amendment, assures a well-informed public opinion, permits public monitoring of the courts, and promotes confidence in the fairness and justice of the court system. In United States v. Criden, the Third Circuit noted that this right has been “justified on the ground of the public’s right to know, .which encompasses public documents generally, and the public’s right to open courts, which has a particular applicability to judicial records.” 648 F.2d at 819. The most recent Supreme Court decision to consider the public’s right of access is Richmond Newspapers, Inc. v. Virginia, which held that under the First Amendment the public has access rights to criminal trials that are independent of the" }, { "docid": "22869568", "title": "", "text": "due process challenges to the indictments. The broadcasters renewed their application for the tapes on October 16, 1980, citing several changes in circumstances. First, a unanimous panel of the Second Circuit had affirmed the district court’s release of the tapes in the New York Abscam trial, In re Application of National Broadcasting Co. (Myers), 635 F.2d 945 (2d Cir. 1980), and the Supreme Court refused to stay that order, - U.S. --, 101 S.Ct. 261, 66 L.Ed.2d 125 (1980). Consequently, the tapes introduced at that trial were in fact broadcast to the public. In addition, the Schwartz-Jannotti trial had concluded with guilty verdicts against both defendants although the indictments of Criden and Johanson were still outstanding in this district. After reconsideration of its decision in light of these intervening developments, the district court again denied the broadcasters’ application. United States v. Criden, 501 F.Supp. 854 (E.D.Pa.1980). This expedited appeal followed. The district court, stating that the only issues implicated were those relating to the common law right of access to judicial records, stressed that “the decision as to access to trial evidence is committed to the discretion of the trial court.” Id. at 857, citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). The court found itself in “total disagreement” with the decisions of the courts of appeals for the District of Columbia and Second Circuit which espoused an “expansive view of the common law right of access.” 501 F.Supp. at 857, 859. Compare In re Application of National Broadcasting Co. (Myers), supra; United States v. Mitchell, 551 F.2d 1252, 1258 (D.C.Cir. 1976), rev’d on other grounds sub nom. Nixon v. Warner Communications, 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). The district court found no support for that view in the Supreme Court’s decision in Warner Communications. The district court concluded, however, that “whatever the force of the presumption [in favor of disclosure], I am ... convinced that the circumstances of the present case are indeed sufficiently extraordinary to require denial of the broadcasters’ application.” 501 F.Supp. at 859. The" }, { "docid": "310027", "title": "", "text": "F.2d at 952 (“only the most compelling circumstances should prevent contemporaneous public access”); In re Application of National Broadcasting Co. (United States v. Criden), 648 F.2d 814, 823 (3rd Cir. 1981) (hereafter “Criden”) (“strong presumption that material introduced into evidence at trial should be made reasonably accessible in a manner suitable for copying and broader dissemination”); In re Application of National Broadcasting Co. (United States v. Jenrette), 653 F.2d 609, 613 (D.C.Cir.1981) (hereafter “Jenrette”) (“access may be denied only if ... ‘justice so requires’ ”); United States v. Hubbard, 650 F.2d 293, 317 (D.C.Cir.1980) (“strong presumption in fa vor of public access”); see also United States v. Mitchell, 551 F.2d 1252, 1261 (D.C.Cir.1976), rev’d on other grounds sub nom. Nixon v. Warner Communications, supra, 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (party seeking “to interfere with a fundamental common law right ... [must sustain] burden of demonstrating that justice require[s] denying access to court records”). In contrast, the Fifth Circuit has expressly declined to find an “overpowering presumption in favor of access,” and stated that the presumption is merely “one of the interests to be weighed” in passing upon an application. Belo Broadcasting, supra, 654 F.2d at 434 (emphasis in original). We recognize, as does the Fifth Circuit, that the right here in question is of non-constitutional origin and that in a given case “a number of factors may militate against public access.” Id. at 434. Yet we are equally aware that this common law right supports and furthers many of the same interests which underlie those freedoms protected by the Constitution. As Chief Judge Bazelon wrote in Mitchell: “This common law right is not some arcane relic of ancient English law. To the contrary, the right is fundamental to a democratic state.... Like the First Amendment, ... the right of inspection serves to produce ‘an informed and enlightened public opinion.’ Like the public trial guarantee of the Sixth Amendment, the right serves to ‘safeguard against any attempt to employ our courts as instruments of persecution,’ to promote the search for truth, and to assure ‘confidence in ." }, { "docid": "22274289", "title": "", "text": "65 L.Ed.2d 973 (1980). Having considered these lines of authority and the important values they reenforce, we find ourselves in agreement with the District of Columbia Circuit when it observed in United States v. Mitchell, supra, that there is a presumption in favor of public inspection and copying of any item entered into evidence at a public session of a trial. Once the evidence has become known to the members of the public, including representatives of the press, through their attendance at a public session of court, it would take the most extraordinary circumstances to justify restrictions on the opportunity of those not physically in attendance at the courtroom to see and hear the evidence, when it is in a form that readily permits sight and sound reproduction. The presumption is especially strong in a case like this where the evidence shows the actions of public officials, both the defendants and law enforcement personnel. Though the transcripts of the videotapes have already provided the public with an opportunity to know what words were spoken, there remains a legitimate and important interest in affording members of the public their own opportunity to see and hear evidence that records the activities of a Member of Congress and local elected officials, as well as agents of the Federal Bureau of Investigation. And there is a significant public interest in affording that opportunity contemporaneously with the introduction of the tapes into evidence in the courtroom, when public attention is alerted to the ongoing trial. Cf. Richmond Newspapers, Inc. v. Virginia, supra (closed courtroom not justified despite prompt release of “tapes” of the trial after its conclusion,U.S.-at-, 100 S.Ct. 2814, at 2820 n.3); Nebraska Press Assn. v. Stuart, supra, 427 U.S. at 560-61, 96 S.Ct. at 2803. When physical evidence is in a form that permits inspection and copying without any significant risk of impairing the integrity of the evidence or interfering with the orderly conduct of the trial, only the most compelling circumstances should prevent contemporaneous public access to it. We do not think this strong presumption is rendered inapplicable to this case because" }, { "docid": "22873217", "title": "", "text": "Cir.1963). While we recognize the persuasiveness of Judge Friendly’s view, we fail to see its relevance to publicizing information voluntarily offered into evidence by a party whose possession of the information in no way depended on use of court process. We do not think that United States v. Myers, 635 F.2d at 952 n. 4, requires a contrary conclusion. In Myers, journalists sought to copy videotapes which had been played in open court. The journalists had already been given transcripts of the audio portion of the tapes. The Second Circuit, while granting access to the tapes, noted that the presumption of access would not apply to evidence entered under seal because, “with respect to that item of evidence, the session of court was not public.” Id. Aside from the fact that these comments are pure dicta, there being no seal in Myers, it strains credulity to contend that the session of court in this case was not public with respect to the Report. The courtroom was open to the public, the witnesses repeatedly referred to the contents of the Report and excerpts from the Report were quoted by counsel in open court. The Second Circuit’s further observation in Myers is therefore germane to the ease at hand. Once the evidence has become known to the members of the public, including representatives of the press, through their attendance at a public session of court, it would take the most extraordinary circumstance to justify restrictions on the opportunity of those not physically in attendance at the courtroom to see and hear the evidence, when it is in a form that readily permits sight and sound reproduction. Id. at 952 (footnote reference omitted). Of course, the entire Report as a coherent whole was not publicly disclosed at the hearing here, but enough of it was disclosed to make the Second Circuit’s comments relevant. Further, we recognize that Continental may have been under the impression that the protective order and its other efforts to keep the contents of the Report secret would shield the Report from the presumption of access, even when it was" }, { "docid": "13229946", "title": "", "text": "Abscam case that many prospective jurors do not follow news of highly publicized prosecutions closely); United States v. Mitchell, 551 F.2d 1252, 1262 n. 46 (D.C. Cir.1976), (noting in John Mitchell case that ten of twelve jurors selected in Watergate trial “claimed to have followed Watergate casually, if at all”) rev’d on other grounds sub nom., Nixon v. Warner Communications, 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). Increasingly the courts are expressing confidence that voir dire can serve in almost all cases as a reliable protection against juror bias however induced. See, e.g., Press-Enterprise II, 478 U.S. at 15, 106 S.Ct. at 2743; Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 563-64, 96 S.Ct. 2791, 2804-05, 49 L.Ed.2d 683 (1976); Seattle Times Co. v. United States District Court, 845 F.2d 1513, 1517—18 (9th Cir.1988); United States v. Peters, 754 F.2d 753, 762 (7th Cir.1985); In re National Broadcasting Co., 635 F.2d at 953. With all deference to the magistrate’s undoubtedly better vantage point for assessing the local situation, we are satisfied that he seriously undervalued the efficacy of jury voir dire as an alternative to the protections that closure might provide here. Finally, and perhaps most fundamentally, we perceive in the magistrate’s assessment a basic misapprehension and undervaluation of the core first amendment value at stake. This is most directly reflected in his perception that public disclosure, immediately after a jury is selected, of the basis for his earlier change of venue ruling and of the proceedings themselves necessarily would protect the right of access asserted by representatives of the press and public. In the magistrate’s expressed view, the only effect of his closure order, as so shaped, was a “minimal delay” in access to the materials upon which a judicial decision was made and to the judicial reasoning behind the decision. This unduly minimizes, if it does not entirely overlook, the value of “openness” itself, a value which is threatened whenever immediate access to ongoing proceedings is denied, whatever provision is made for later public disclosure. As the Supreme Court has put it: The value of" }, { "docid": "22751519", "title": "", "text": "Mr. Justice Powell delivered the opinion of the Court. This case presents the question whether the District Court for the District of Columbia should release to respondents certain tapes admitted into evidence at the trial of petitioner’s former advisers. Respondents wish to copy the tapes for broadcasting and sale to the public. The Court of Appeals for the District of Columbia Circuit held that the District Court’s refusal to permit immediate copying of the tapes was an abuse of discretion. United States v. Mitchell, 179 U. S. App. D. C. 293, 551 P. 2d 1252 (1976). We granted certiorari, 430 U. S. 944 (1977), and for the reasons that follow, we reverse. I On July 16, 1973, testimony before the Senate Select Committee on Presidential Campaign Activities revealed that petitioner, then President of the United States, had maintained a system for tape recording conversations in the White House Oval Office and in his private office in the Executive Office Building. Hearings on Watergate and Related Activities Before the Senate Select Committee on Presidential Campaign Activities, 93d Cong., 1st Sess., 2074-2076 (1973). A week later, the Watergate Special Prosecutor issued a subpoena duces tecum directing petitioner to produce before a federal grand jury tape recordings of eight meetings and one telephone conversation recorded in petitioner’s offices. When petitioner refused to comply with the subpoena, the District Court for the District of Columbia ordered production of the recordings. In re Subpoena to Nixon, 360 P. Supp. 1, aff’d sub nom. Nixon v. Sirica, 159 U. S. App. D. C. 58, 487 P. 2d 700 (1973). In November 1973, petitioner submitted seven of the nine subpoenaed recordings and informed the Office of the Special Prosecutor that the other two were missing. On March 1,1974, the grand jury indicted seven individuals for, among other things, conspiring to obstruct justice in connection with the investigation of the 1972 burglary of the Democratic National Committee headquarters. In preparation for this trial, styled United States v. Mitchell, the Special Prosecutor, on April 18, 1974, issued a second subpoena duces tecum, directing petitioner to produce tape recordings and" }, { "docid": "22869579", "title": "", "text": "A.2d 376, 379-80 (D.C.App.1972). See Comment, All Courts Shall Be Open: The Public’s Right to View Judicial Proceedings and Records, 52 Temp.L.Q. 311, 337-40 (1979). The Second Circuit, in discussing the nature of the interest which favored disclosure of the Abscam videotapes, stated: Though the transcripts of the videotapes have already provided the public with an opportunity to know what words were spoken, there remains a legitimate and important interest in affording members of the public their own opportunity to see and hear evidence that records the activities of a Member of Congress and local elected officials, as well as agents of the Federal Bureau of Investigation. And there is a significant public interest in affording that opportunity contemporaneously with the introduction of the tapes into evidence in the courtroom, when public attention is alerted to the ongoing trial. Cf. Richmond Newspapers, Inc. v. Virginia, supra closed courtroom not justified despite prompt release of “tapes” of the trial after its conclusion, 448 U.S. 555 at 562 n.3, 100 S.Ct. 2814, at 2820 n.3, 65 L.Ed.2d 973; Nebraska Press Assn. v. Stuart, supra, 427 U.S. [539] at 560-61, [96 S.Ct. 2791 at 2803-04, 49 L.Ed.2d 683]. In Re Application of National Broadcasting Co. (Myers), 635 F.2d at 952. In Warner Communications, the Supreme Court considered an appeal from the decision of the Court of Appeals for the District of Columbia ordering the release to the media of audiotapes of conversations of President Nixon which had been subpoenaed in connection with the Watergate proceedings. In reaffirming the existence of the right to inspect and copy judicial records, the Court did not attempt to rationalize its underlying basis. However, in contrasting the English decisions which require showing of a particular interest with the American decisions which “generally do not condition enforcement of this right on a proprietary interest in the document or upon a need for it as evidence in a lawsuit,” the Court stated: The interest necessary to support the issuance of a writ compelling access has been found, for example, in the citizen’s desire to keep a watchful eye on the" }, { "docid": "23316524", "title": "", "text": "coextensive with that of the public) cannot adequately petition the federal government with respect to the alleged improprieties in establishment or maintenance of the “Brilab” investigation, nor can they effectively petition government with respect to the qualifications of Speaker Clayton without access to these tapes. Appellant points to no authority suggesting that any treatment extended press or public in the court below has affected the right to petition for redress of grievances. The cited cases, chiefly on inmates’ rights of access to legal materials, are inapposite. Appellant’s position is simply its “freedom of the press” argument cast in a slightly different mold. There is no doubt that, to whatever extent, if any, the petition clause would enter in here, its values are fully served by the opportunity allowed press and public alike to view the proceedings and the proviSion of transcripts of the tapes for republication or broadcast. The government is not required under the first amendment— through the petition clause or otherwise — to provide representatives of the news media with the tapes for copying and rebroadcasting. III. The Common Law Right of Access. There is a right of access to these courtroom exhibits derived not from the Constitution: a common law right of access “that predates the Constitution itself.” United States v. Mitchell, 551 F.2d 1252, 1260 (D.C.Cir. 1976), rev’d sub nom. Nixon v. Warner Communications, 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). As with the constitutional claim, the Court’s opinion in Warner Communications provides the measure by which we review the trial court decision on the right of physical access to these tapes. “It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” 435 U.S. at 597, 98 S.Ct. at 1312 (footnote omitted). While the question was not certainly answered by the Court’s opinion in Warner Communications, we assume for purposes of this discussion that the right of access extends beyond scroll and paper to tape recordings. Finding no need on the facts of the Watergate Tapes case" }, { "docid": "1551106", "title": "", "text": "him: No. 83-228 CR Cl, charging Webbe with harboring a fugitive, and No. SI-84-207 CR Cl, charging Webbe and five others with conspiracy and mail fraud relating to the awarding of a cable television franchise in St. Louis. The cable television case is still pending against four remaining defendants. II. DISCUSSION On appeal CBS argues that the district court erred in denying its application to copy the audiotapes in question because it has a constitutional and common law right to copy the tapes. CBS contends that its constitutional right of access emanates from the First Amendment right of the public and the press to observe the judicial process. In arguing that its common law right to inspect and copy judicial records mandates access here, CBS cites Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 1311, 55 L.Ed.2d 570 (1978), as well as several federal appellate decisions recognizing a strong presumption in favor of the common law right. See United States v. Guzzino, 766 F.2d 302, 304 (7th Cir.1985); United States v. Criden, 648 F.2d 814, 823 (3rd Cir.1981); In re National Broadcasting Co. (United States v. Jenrette), 653 F.2d 609, 613 (D.C.Cir.1981) (“[A]ccess maybe denied only if the district court, after considering ‘the relevant facts and circumstances of the particular case,’ and after ‘weighing the interests advanced by the parties in light of the public interest and the duty of the courts,’ concludes that ‘justice so requires’ ”); In re National Broadcasting Co. (United States v. Myers), 635 F.2d 945, 952 (2d Cir.1980) (“once the evidence has become known to the public, including * * representatives of the press, through their attendance at a public session of court, it would take the most extraordinary circumstances to justify restrictions on the opportunity of those not physically in attendance at the courtroom to see and hear the evidence, when it is in a form that readily permits sight and sound reproduction”). CBS urges this court to follow those circuits that have recognized a strong presumption in favor of access, in order to promote the public interest in overseeing" }, { "docid": "1551107", "title": "", "text": "Criden, 648 F.2d 814, 823 (3rd Cir.1981); In re National Broadcasting Co. (United States v. Jenrette), 653 F.2d 609, 613 (D.C.Cir.1981) (“[A]ccess maybe denied only if the district court, after considering ‘the relevant facts and circumstances of the particular case,’ and after ‘weighing the interests advanced by the parties in light of the public interest and the duty of the courts,’ concludes that ‘justice so requires’ ”); In re National Broadcasting Co. (United States v. Myers), 635 F.2d 945, 952 (2d Cir.1980) (“once the evidence has become known to the public, including * * representatives of the press, through their attendance at a public session of court, it would take the most extraordinary circumstances to justify restrictions on the opportunity of those not physically in attendance at the courtroom to see and hear the evidence, when it is in a form that readily permits sight and sound reproduction”). CBS urges this court to follow those circuits that have recognized a strong presumption in favor of access, in order to promote the public interest in overseeing the integrity of its political institutions, and to enhance the public’s opportunity to judge both the case on trial and the judicial process. Further, CBS contends that the district court impermissibly based its denial of CBS’ application on the possibility of harm to Webbe’s fair trial rights, rather than on actual prejudice. Finally, CBS states that the transcripts of the tapes distributed by the court do not satisfy the right of access, particularly because at least one line of the transcript is disputed by the parties. We affirm the district court’s denial of CBS’ application. CBS’ argument that its right of access to the tapes is guaranteed by the First Amendment was rejected by the Supreme Court in Nixon, 435 U.S. at 608-09, 98 S.Ct. at 1317-18. In Nixon, the Court held that neither the First Amendment guarantee of freedom of the press nor the Sixth Amendment guarantee of a public trial supported the respondents’ claim to access to audiotapes, when the press had enjoyed unrestricted access to all of the information in the public" }, { "docid": "22869569", "title": "", "text": "decision as to access to trial evidence is committed to the discretion of the trial court.” Id. at 857, citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). The court found itself in “total disagreement” with the decisions of the courts of appeals for the District of Columbia and Second Circuit which espoused an “expansive view of the common law right of access.” 501 F.Supp. at 857, 859. Compare In re Application of National Broadcasting Co. (Myers), supra; United States v. Mitchell, 551 F.2d 1252, 1258 (D.C.Cir. 1976), rev’d on other grounds sub nom. Nixon v. Warner Communications, 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). The district court found no support for that view in the Supreme Court’s decision in Warner Communications. The district court concluded, however, that “whatever the force of the presumption [in favor of disclosure], I am ... convinced that the circumstances of the present case are indeed sufficiently extraordinary to require denial of the broadcasters’ application.” 501 F.Supp. at 859. The factors referred to by the court in support of denial of the application were “the very great difference between videotape evidence and other forms of evidence,” id.; the “penalties not prescribed by the law [which] will be visited upon the accused and, more importantly, upon innocent relatives and friends” by more widespread publicity, id. at 860; and the difficulty which the broadcasting would create in selecting a jury for the then still pending trial of Criden and Johanson and in the event of a retrial of Schwartz and Jannotti. Id. at 861. The court referred to several additional reasons, which were the possibility that its ruling admitting the tapes into evidence was incorrect, the showing in the SchwartzJannotti trial of videotapes which would be prejudicial and inadmissible as to Criden, the inclusion of “scurrilous and libelous statements about third parties,” and the prohibition imposed on televising courtroom proceedings by resolution of the Judicial Conference of the United States, which the district court analogized to release of videotapes. Id. at 862-64. On appeal the broadcasters contend" }, { "docid": "22274284", "title": "", "text": "82 N.M. 445, 483 P.2d 500 (1971) (same); contra, Guarriello v. Benson, 90 N.J.Super. 233, 217 A.2d 22 (1966) (audio tapes). The most pertinent precedent considering the common law right in the context of evidence sought for public broadcasting is the decision of the Court of Appeals for the District of Columbia Circuit in the Watergate tapes litigation, a decision based on common law standards without regard to the statute deemed controlling by the Supreme Court. United States v. Mitchell, supra. The Court of Appeals stressed that the common law right to inspect and copy judicial records is fundamental in a democracy. Id. at 1258. The District Court had denied release of the tapes because of the risk of impact upon the fair trial rights of the defendants who might face a retrial in the event their convictions, then on appeal, were reversed. The Court of Appeals considered the possibility of prejudice at a “hypothetical second trial” too speculative to justify impairment of the public’s right of access. Id. at 1261 (emphasis in the original). In the view of the D. C. Circuit, the District Court had assigned the burden of proof to the wrong party by requiring the networks to show some “compelling reason,” id. at 1261, for access to the tapes. The Court of Appeals’ decision, despite its reversal on statutory grounds, remains strong authority for the networks’ common law right to copy and telecast tapes in evidence, at least those tapes portraying activities of defendants not facing a likelihood of subsequent trials. We have found only one decision considering a request to inspect and copy evidence portraying individuals facing criminal trials, Hearst Corp. v. Vogt, 62 App.Div.2d 840, 406 N.Y.S.2d 567 (3d Dept. 1978). Vogt involved a newspaper’s application to inspect and copy for publication thirty-one photographs admitted into evidence in the trial of a defendant charged with maintaining a house of prostitution. The prosecution arose as a result of a state investigation into prostitution and police corruption in the City of Albany. The photographs showed 19 individuals entering or leaving the defendant’s premises on various occasions." }, { "docid": "22274282", "title": "", "text": "documents from public view, for example, to avoid using court records to “ ‘gratify private spite or promote public scandal,’ ” (quoting In re Caswell, 18 R.I. 835, 29 A. 259 (1893)) or “harm a litigant’s competitive standing” or serve “improper purposes.” Warner Communications, supra, 435 U.S. at 598, 98 S.Ct. at 1312. These circumstances, it should be noted, warranted preventing all public scrutiny; they did not prevent copying and enhanced dissemination of items already publicly disclosed by admission into evidence at a public session of court. In the absence of statute, the Court recognized a “presumption-however gauged-in favor of public access to judicial records,” id. at 602, 98 S.Ct. at 1314, with the disclosure in a particular case normally left to the “informed discretion” of the courts, id. at 603, 98 S.Ct. at 1304, after “weighing the interests advanced by the parties in light of the public interest and the duty of the courts.” Id. at 602, 98 S.Ct. at 1314 (footnote omitted). The common law right to inspect and copy public records originally permitted copying the content of written documents. With the advent of modern means of document reproduction, such as photography and xerography, the right was applied to copying the physical embodiment of the document. See People v. Peller, 34 Ill. App.2d 372, 181 N.E.2d 376, 378 (1962); Moore v. Bd. of Freeholders of Mercer County, 76 N.J.Super. 396, 184 A.2d 748, 754 (1962). In Warner Communications the Court assumed, without deciding, that the common law right also applied to tape recordings, as well as documents. 435 U.S. at 599 n.11, 98 S.Ct. at 1312 n.11. We agree with the District of Columbia Circuit and other courts that have faced the issue that the nondocumentary nature of the evidence sought to be copied does not remove the common law right. United States v. Mitchell, 551 F.2d 1252, 1258 n.21 (D.C.Cir.1976) (audio tapes), rev’d on other grounds sub nom. Nixon v. Warner Communications, 435 U.S. 589, 98 S.Ct. 1306, (1978); Menge v. City of Manchester, 113 N.H. 533, 311 A.2d 116 (1973) (magnetic computer tapes); Ortiz v. Jaramillo," }, { "docid": "22869618", "title": "", "text": "relying instead on “the federal common law implied from the first amendment.” Id. at 862. Shortly thereafter the Supreme Court decided in Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), that the Sixth Amendment which guarantees the accused the right to a public trial does not confer upon representatives of the press or members of the general public any right of access to pretrial suppression hearings. The Court left open the question whether the First and Fourteenth Amendments afford such a right. Id. at 391-93, 99 S.Ct. at 2911-12. . Arguably, the Richmond Newspapers case could be viewed as supporting a right of the public to access to the tapes through the medium of the broadcasters. The only First Amendment right rejected in Warner Communications was that possessed by the press. The Court stated that “[t]he First Amendment generally grants the press no right to information about a trial superior to that of the general public,” 435 U.S. at 609, 98 S.Ct. at 1318, but did not discuss the nature of the right, if any, of the general public under the First Amendment. In view of our disposition of this case on nonconstitutional grounds, we need not decide whether there remains any room for a constitutional right based on the First Amendment as construed in Richmond Newspapers. . The broadcasters argue that the district court erroneously refused to follow “controlling court of appeals decisions.” In a recent decision, we commented on the precedential force of decisions of other circuits. In Heverly v. C.I.R., 621 F.2d 1227, 1236 (3d Cir. 1980), Judge Aldisert, speaking for the court, stated, “other decisions relevant to this issue are not controlling precedents in this circuit, but are influential to the extent that their reasoning is persuasive.” We believe the district court articulated the proper standard when it stated, “[t]he decision of a circuit court of appeals which is squarely apposite is entitled to the utmost respect, notwithstanding the fact that it emanates from another circuit and is therefore not totally binding upon this Court.” 501 F.Supp. at 856. ." }, { "docid": "22881945", "title": "", "text": "copy public records. Bearing in mind that access rights exist to promote knowledge of and attention to the performance of the courts, for the benefit of society as a whole, we turn to that task. 2. Discovery Materials Writing for the court in Wilk v. American Medical Ass’n, 635 F.2d 1295, 1299 n.7 (7th Cir. 1980), Judge Wisdom observed that: [U]nless and until introduced into evidence, the raw fruits of discovery are not in the possession of a court. If the purpose of the common law right of access is to check judicial abuses, see United States v. Mitchell, 551 F.2d 1252, 1257 — 58 (D.C.Cir.1976), rev’d sub nom. Nixon v. Warner Communications, Inc., 435 U.S. 589 [98 S.Ct. 1306, 55 L.Ed.2d 570] (1978), then that right should only extend to materials upon which a judicial decision is based. We agree with Judge Wisdom that the public has no common law right to inspect materials that are produced in discovery but are not placed in the custody of the court. We have found no decisions that reach a contrary conclusion under the common law. 3. Material that is the Subject of an Evidentiary Ruling We have mentioned previously that trial exhibits are part of the judicial record to which access rights attach. In this section, we consider the status of materials that are proffered to the court in an open hearing but are ruled inadmissible. In United States v. Gurney, 558 F.2d 1202, 1210 (5th Cir. 1977), cert. denied sub nom. Miami Herald Publishing Co. v. Krentzman, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978), the Fifth Circuit Court of Appeals concluded that various documents and exhibits presented in a criminal trial for identification but “not yet admitted into evidence” had not become part of the public record. In a decision that may be reconciled with Gurney because of its different emphasis, the District of Columbia Circuit Court of Appeals suggested that when documents are produced to the court with a request for a ruling, they become part of the record whether they are or are not technically" }, { "docid": "22274283", "title": "", "text": "permitted copying the content of written documents. With the advent of modern means of document reproduction, such as photography and xerography, the right was applied to copying the physical embodiment of the document. See People v. Peller, 34 Ill. App.2d 372, 181 N.E.2d 376, 378 (1962); Moore v. Bd. of Freeholders of Mercer County, 76 N.J.Super. 396, 184 A.2d 748, 754 (1962). In Warner Communications the Court assumed, without deciding, that the common law right also applied to tape recordings, as well as documents. 435 U.S. at 599 n.11, 98 S.Ct. at 1312 n.11. We agree with the District of Columbia Circuit and other courts that have faced the issue that the nondocumentary nature of the evidence sought to be copied does not remove the common law right. United States v. Mitchell, 551 F.2d 1252, 1258 n.21 (D.C.Cir.1976) (audio tapes), rev’d on other grounds sub nom. Nixon v. Warner Communications, 435 U.S. 589, 98 S.Ct. 1306, (1978); Menge v. City of Manchester, 113 N.H. 533, 311 A.2d 116 (1973) (magnetic computer tapes); Ortiz v. Jaramillo, 82 N.M. 445, 483 P.2d 500 (1971) (same); contra, Guarriello v. Benson, 90 N.J.Super. 233, 217 A.2d 22 (1966) (audio tapes). The most pertinent precedent considering the common law right in the context of evidence sought for public broadcasting is the decision of the Court of Appeals for the District of Columbia Circuit in the Watergate tapes litigation, a decision based on common law standards without regard to the statute deemed controlling by the Supreme Court. United States v. Mitchell, supra. The Court of Appeals stressed that the common law right to inspect and copy judicial records is fundamental in a democracy. Id. at 1258. The District Court had denied release of the tapes because of the risk of impact upon the fair trial rights of the defendants who might face a retrial in the event their convictions, then on appeal, were reversed. The Court of Appeals considered the possibility of prejudice at a “hypothetical second trial” too speculative to justify impairment of the public’s right of access. Id. at 1261 (emphasis in the original)." } ]

[ { "docid": "17821824", "title": "", "text": "distribution box claimed in the present application, as stated in the first portion of (7) in the quoted passage of the affidavit, supra. That Engalitcheff’s water distribution box was known to appellant prior to Engalitcheff’s filing date does not establish appellant’s inventorship thereof. Although appellant may have done some “design” work, he has not seen fit to characterize it as “his invention”; hence, we are not inclined to do so. Thus, we feel that appellant has not met the burden of proving facts sufficient to overcome the prima facie available reference. Accordingly, the board’s decision is affirmed. Judge Smith participated in the hearing of this case but died before a decision was reached. Serial No. 425,783, filed January 15, 1965, for “Water Supply System.” U.S. Patent 3,146,609, issued September 1, 1964, on an application filed April 27, 1964. U.S. Patent 1,676,943, issued July 10, 1928. Although it seems clear that appellant’s characterization of the affidavits as “Affidavits under Rule 131” was a misnomer, we said in In re Land, 54 CCPA 806, 825, 368 F. 2d 866, 879-80, 151 USPQ 621, 633 (1966) : “[T]he proper subject of inquiry [is] not compliance with Rule 131 but what the evidence [shows] as to who invented the subject matter disclosed by [the reference] which was relied on to support the rejection” and “[e]vidence of such a state of facts, whatever its form, must be considered.” [Emphasis supplied.] Even though the affidavits fail to satisfy the requirements of Rule 181, they are “affidavits traversing grounds of rejection,” which are permitted under Rule 132, and may be considered as evidence. That is, Engalitcheff has no claim directed to the sub-combination of the means to flow water into the troughs (e.g., the water distribution box). The only recitation, broad or narrow, of such means in the claims is in combination with the troughs; however, the water flow means is recited in varying scope within the seven combination claims. And, all of the claims are for the combination; that is, no claim is directed to the sub-combination of the trough, per se. united States Patent Office" } ]

[ { "docid": "13830497", "title": "", "text": "Feb. 15,1972 Hart et al. U.S. Pat. 4,056,810 Nov. 1,1977 (Parent filed May 15,1972) Agraz-Guerena et al. U.S. Pat. 4,076,555 Feb. 28,1978 (Parent filed Sept. 3,1974) de Troye, Digest of Technical Papers, 1974 IEEE International Solid State Circuits Conference, Feb. 13, 1974 pages 12,13, and 214. The real party in interest here is the assignee of appellants, U.S. Philips Corporation, which is affiliated with N.Y. Philips Gloeilampenfabrieken of the Netherlands, where the applicants are located. The U.S. patent application was prepared in the Netherlands and sent to the patent department of U.S. Philips Corporation in Briar-cliff Manor, N.Y., where it was received on July 15, 1974. A corresponding Netherlands patent application was filed on October 9, 1974. The U.S. application was filed within a year under the International Convention on August 6, 1975, claiming the benefit of the Netherlands filing date under 35 U.S.C. § 119. The PTO has accorded applicants that date. There is no question that applicants complied with all of the formalities required by § 119 and related PTO rules. Confronted with rejections of claims based in part, if not primarily, on Rodgers, appellants attempted to antedate, and thus remove, that reference as prior art, by filing declarations under 37 CFR 1.131 (Rule 131). In pertinent part, the rule reads (emphasis ours): § 1.131 Affidavit or declaration of prior invention to overcome cited patent or publication. (a) When any claim of an application is rejected on reference to a * * * printed publication, and the applicant shall make oath or declaration as to facts showing a completion of the invention in this country * * * before the date of the printed publication, then the * * * publication cited shall not bar the grant of a patent to the applicant, unless the date of such * * * printed publication be more than one year prior to the date on which the application was filed in this country. (b) The showing of facts shall be such, in character and weight, as to establish reduction to practice prior to the effective date of the reference, or" }, { "docid": "21545876", "title": "", "text": "son who is a professor of civil engineering. One juror had a masters degree, and another a two-year technical degree, and one had various training in electronics. All had at least a high school education.\" . \"Secret prior art\" is so called because although it is effective as a reference as of its filing date, see generally Hazeltine Research v. Brenner, 382 U.S. 252, 86 S.Ct. 335, 15 L.Ed.2d 304, 147 USPQ 429 (1965), Alexander Milburn Co. v. Davis-Bournonville Co., 270 U.S. 390, 401, 46 S.Ct. 324, 325, 70 L.Ed. 651 (1926), its existence does not become known until the issuance of the United States patent. . 37 C.F.R. § 1.131 (1988) Affidavit or declaration of prior invention to overcome cited patent or publication. (a) When any claim of an application or a patent under reexamination is rejected on reference to a domestic patent which substantially shows or describes but does not claim the rejected invention, ... and the inventor ... shall make oath or declaration as to facts showing a completion of the invention in this country before the filing date of the application on which the domestic patent issued,.... (b) The showing of facts shall be such, in character and weight, as to establish reduction to practice prior to the effective date of the reference, or conception of the invention prior to the effective date of the reference coupled with due diligence from said date to a subsequent reduction to practice or to the filing of the application.... . Applied Theory states in its brief that these mills are not fully representative, appearing to contradict the stipulation. This dispute, relating to taper rates and the center cant routine, was noted in the district court’s instructions to the jury, and partly resolved in special verdicts. This point does not merit a new trial." }, { "docid": "855272", "title": "", "text": "112, first paragraph. The examiner found insufficient disclosure in the earlier applications to support the claims or to teach the anticipatory subject matter in the references. The Board Finding no basis in appellant’s earlier applications for the beta angle now claimed, the board denied appellant his earlier filing date. The board refused to review the examiner’s position on the relationship between the earlier applications and the references, because it considered that relationship “not germane.” Issue The issue is whether Scheiber’s present claims are entitled to the benefit of his earlier application’s filing date. OPINION 35 U.S.C. § 120/Rule 131 “Invention,” as used in 35 U.S.C. § 120, refers to the claimed invention in a continuing application. In re Lukach, 442 F.2d 967, 968, 58 CCPA 1233, 1235, 169 USPQ 795, 796 (1971); In re Brower, 433 F.2d 813, 817, 58 CCPA 724, 728, 167 USPQ 684, 687 (1970). The operation of § 120 differs from the operation of Patent and Trademark Office Rule 131 (37 CFR 1.131). The latter provides an applicant a mechanism for overcoming specific prior art references predating his effective filing date. The applicant need show priority with respect to only so much of the claimed invention as the references disclose, In re Stempel, 241 F.2d 755, 760, 44 CCPA 820, 826, 113 USPQ 77, 81 (1957), or only so much as to render the claimed invention obvious. In re Spiller, 500 F.2d 1170, 1177, 182 USPQ 614, 619 (Cust. & Pat.App.1974). Section 120, on the other hand, concerns only an applicant’s effective filing date. Unlike Rule 131, § 120 operates independently of the prior art, of which it makes no mention, and it expressly requires an earlier application to disclose the claimed subject matter in compliance with 35 U.S.C. § 112, first paragraph. Thus it is entirely appropriate that the showing required under § 120 differs from that required under Rule 131. The Present Case Scheiber admits that his claims are directed to general three-dimensional systems and are not supported by his earlier applications. That admission would normally end the inquiry under § 120. In the" }, { "docid": "855276", "title": "", "text": "identical disclosures in the references and in the earlier applications. Thus the claims are being given not inconsistent interpretations, but a single interpretation encompassing a class and subclass. If Scheiber’s position were to prevail, the claims under consideration would be granted one filing date when viewed as encompassing general three-dimensional systems, and a different, earlier date under § 120 when viewed as encompassing certain specific systems. The filing date made available under § 120, however, is limited to claimed subject matter disclosed in an earlier application in the manner required by § 112. Hence the board correctly, and necessarily, determined that the relationship of the claims to certain references, and of the references to Scheiber’s earlier applications, were not germane. Accordingly, the decision of the board is affirmed. AFFIRMED. . Application serial No. 888,440, filed December 29, 1969 (grandparent), now U.S. patent No. 3,632,886. Application serial No. 46,345, filed June 15, 1970 (parent), now U.S. patent No. 3,746,792. . Takahashi and Bauer were filed on July 3, 1972, and March 15, 1971, respectively, and issued after Scheiber filed his present application. . Appellant’s argument that claims 11, 17, and 22 are not anticipated by Bauer and Takahashi was not raised below and will not now be entertained. In re Touvay, 435 F.2d 1342, 1344, 58 CCPA 809, 811-12, 168 USPQ 357, 359 (1971). . 35 U.S.C. § 120, insofar as applicable here, reads: An application for patent for an invention disclosed in the manner provided by the first paragraph of section 112 of this title in an application previously filed in the United States by the same inventor shall have the same effect, as to such invention, as though filed on the date of the prior application, if filed before the patenting or abandonment of or termination of proceedings on the first application or on an application similarly entitled to the benefit of the filing date of the first application * * *. [Emphasis ours.] . Rule 131 states, in relevant part: (a) When any claim of an application is rejected on reference to a domestic patent which substantially shows" }, { "docid": "19706415", "title": "", "text": "(C.C.P.A. 1974). Accordingly, as a matter of law, Dr. Tronzo is estopped now from arguing an that the ’589 in any way contains an express disclosure of the claims of the ’262. Whether In re Spiller, though, is the proper case for determining an “inherent” disclosure of the ’262 claims, as § 112 also allows, is a separate question. E. The Applicability of In re Spiller to the Written Description Requirement In re Spiller involved a single patent application without any continuation-in-parts. In re Spiller, 500 F.2d at 1171. The ease presented the question of whether evidence of a patentee’s reduction of his invention to practice antedated a reference so as to avoid invalidity under 35 U.S.C. § 102. Id. at 1172. The legal theory which governed the ease was regulation 131, which provided, both then and now: (a)(1) When any claim of an application or a patent under reexamination is rejected ... on reference to a foreign patent or to a printed publication, the inventor of the subject matter of the rejected claim ... may submit an appropriate oath or declaration to overcome the patent or publication---- When an appropriate oath or declaration is made, the patent or publication cited shall not bar the grant of a patent to the inventor or the confirmation of the patentability of the claims of the patent, unless the date of such patent or printed publication is more than one year prior to the date on which the inventor’s or patent owner’s application was filed in this country. 37 C.F.R. § 1.131; See 50 F.R. 9368 (Mar. 7, 1985) (Notice of final rulemaking). The particular application of this rule that troubled the Court of Claims and Patent Appeals was whether the reduction of an invention to practice was sufficient to claim an invention which was not the same but which was shown to be “obvious” in light of the knowledge of one skilled in the art. Id. at 1176-77. In concluding that an “obviousness” analysis was proper under Rule 131, the court ruled that “[cjertainly appellants should not be required to submit facts" }, { "docid": "855285", "title": "", "text": "in this court. In sum, even though appellant’s appeal, as viewed by the majority opinion, is one that must be rejected under law; under the rationale suggested here, the appeal may be deficient only in the presentation of the evidence. In any event, the decision of the board is properly affirmed. . Rainer is oft cited to show “that an anticipatory disclosure, not a statutory bar, may be removed as a reference against a generic claim by a Rule 131 affidavit showing prior reduction to practice of as much of the claimed invention as the reference shows.” Id. 390 F.2d at 773, 55 CCPA at 855, 156 USPQ at 336. . A Rule 131 affidavit was submitted to successfully overcome a patent to Cooper (U.S. 3,856,992). . In re Land dismissed the then-prevalent notion that a Rule 131 affidavit was required to antedate a prior art reference. . Initial recognition is made that neither Bauer nor Takahashi is a bar under 35 U.S.C. § 102(b) since both issued after the filing date of appellant’s application. No apparent problems are seen with regard to 35 U.S.C. § 102(g). . 35 U.S.C. § 102(e) reads: (e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, or . This scope of proof has been countenanced in in re Stempel, 241 F.2d 755, 44 CCPA 820, 113 USPQ 77 (1957), and its progeny. . Pursuant to 37 C.F.R. 1.65. . For instance, here the appellant could have no interest in the outcome of this question prior to the time this case was filed. . Appellant apparently considers the content of ’792 to correspond only to Takahashi and ’886 only to Bauer." }, { "docid": "855277", "title": "", "text": "after Scheiber filed his present application. . Appellant’s argument that claims 11, 17, and 22 are not anticipated by Bauer and Takahashi was not raised below and will not now be entertained. In re Touvay, 435 F.2d 1342, 1344, 58 CCPA 809, 811-12, 168 USPQ 357, 359 (1971). . 35 U.S.C. § 120, insofar as applicable here, reads: An application for patent for an invention disclosed in the manner provided by the first paragraph of section 112 of this title in an application previously filed in the United States by the same inventor shall have the same effect, as to such invention, as though filed on the date of the prior application, if filed before the patenting or abandonment of or termination of proceedings on the first application or on an application similarly entitled to the benefit of the filing date of the first application * * *. [Emphasis ours.] . Rule 131 states, in relevant part: (a) When any claim of an application is rejected on reference to a domestic patent which substantially shows or describes but does not claim the rejected invention, * * * and the applicant shall make oath or declaration as to facts showing a completion of the invention in this country before the filing date of the application on which the domestic patent issued * * * then the patent * * * shall not bar the grant of a patent to the applicant * * *. [Emphasis ours.] . We express no views respecting applicability of a remedy under Rule 131, or the availability of interference proceedings on the subject matter claimed by the references. BALDWIN, Judge, concurring. I completely agree both with the approach taken by the majority on the § 120 question and the resulting decision. I would, however, consider another question not reached by the majority. I have carefully considered appellant’s brief, reply brief, and the extensive prosecution history of this application in the PTO and yet I find no cogent statement of the theory upon which appellant seeks relief. The theme recurring throughout the brief is that appellant wishes" }, { "docid": "12822864", "title": "", "text": "disapprove of such oblique treatment of important claims; the court should have spelled out its findings and rationale as to this issue with more care. . The problems anticipated by Greig related to solubility, resistance to heat and to oxidization, and shelf life. . When asked how one would determine which dyes would work, the expert from Ohio State replied, “By trial and error”. Elaborating, he testified that one could narrow the field of available dyes by considering the experience in silver halide photography and the experiments of Putseiko and Terenin. . 37 C.F.R. § 1.131 provides, in relevant part: “Affidavit of prior invention to overcome cited patent or publication. (a) AA’hen any claim of an application is rejected on reference to a domestic patent which substantially shows or describes but does not claim the rejected invention, * * * and the applicant shall make oath to facts showing a completion of the invention in this country before the filing date of the application on which the domestic patent issued, * * * then the patent or publication cited shall not bar the grant of a patent to the applicant, 3: 3: . Nashua’s appellate brief confuses the issue by intermittently claiming that Greig’s affidavit also concealed the fact that Greig in fact knew of Thomsen’s invention before he invented ’540. Were the Thomsen invention (as opposed to information disclosed in his application) relevant prior art for Greig’s ’540 invention, Nashua’s argument might have some merit. However, neither Nashua nor the district court — nor, for that matter, have we — relied on the Thomsen invention to show that Greig’s ’540 invention was obvious. Thus, there was no material misrepresentation in this regard. . Since one’s copending application is not prior art for his later copending application — see, e. g., Application of Land, 54 C.C.Pa. 806, 368 F.2d 866, 874-877 (1966); compare Hazeltine Research, Inc. v. Brenner, 382 U.S. 252, 86 S.Ct. 335, 15 L.Ed.2d 304 (1965) — the later application’s description of the invention set forth in the earlier application does not establish the former invention as prior" }, { "docid": "13830498", "title": "", "text": "rejections of claims based in part, if not primarily, on Rodgers, appellants attempted to antedate, and thus remove, that reference as prior art, by filing declarations under 37 CFR 1.131 (Rule 131). In pertinent part, the rule reads (emphasis ours): § 1.131 Affidavit or declaration of prior invention to overcome cited patent or publication. (a) When any claim of an application is rejected on reference to a * * * printed publication, and the applicant shall make oath or declaration as to facts showing a completion of the invention in this country * * * before the date of the printed publication, then the * * * publication cited shall not bar the grant of a patent to the applicant, unless the date of such * * * printed publication be more than one year prior to the date on which the application was filed in this country. (b) The showing of facts shall be such, in character and weight, as to establish reduction to practice prior to the effective date of the reference, or conception of the invention prior to the effective date of the reference coupled with due diligence from said date to a subsequent reduction to practice or to the filing of the application. Original exhibits of drawings or records, or photocopies thereof, must accompany and form part of the affidavit or declaration or their absence satisfactorily explained. Applicants proved to the satisfaction of the PTO the receipt in this country of the draft patent application which was accepted as a fact showing conception of the invention prior to Rodgers’ publication date, which date is taken by the PTO to be the receipt of the IEEE Journal containing the Rodgers article by the PTO on October 7, 1974. Appellants make a half-hearted attempt to question the October 7 date by pointing out that the examiner did not receive his copy until October 10, but the copy relied on bears a PTO receipt stamp of October 7, amounting to an official record which appellants have not disproved. The foregoing facts can be better visualized from the following chart," }, { "docid": "3851722", "title": "", "text": "claim and the express prohibition in Rule 131 against attempting to antedate what is claimed. It is our conclusion that the board was correct in ruling that the limited proofs have not overcome the references with respect to broad claims 20 and 21. Claims already allowed appellants, restricted to what they have shown they did prior to Rubens’ effective date, are commensurate with their evidence. They have not shown that their prior invention is commensurate with claims 20 and 21 and inclusive of all the references show. See Ex parte McMaster, 131 USPQ, 415, 113 O.G. 323, 1961 C.D. 64 (P.Q. Bd. App.). The decision of the board is affirmed. Smith, J., concurs in the result. Consisting of Federico and Rosa, Examiners-in-Chief and Stone, Acting Examiner-in-⅞. Chief. Examiner-in-Chief Rosa wrote the opinion. Affidavits of the inventors were filed under Rule 131 of the Patent Office Rules of Practice. A “supplemental” affidavit by their attorney was also filed. Rule 131 (a) reads: il31. Affidavit of prior invention to overcome cited patent or publication, (a) When any claim of an application is rejected on reference to a domestic patent which substantially shows or describes but does not claim the rejected invention, or on reference to a foreign patent or to a printed publication, and the applicant shall make oath to facts showing a completion of the invention in this country before the filing date of the application on which the domestic patent issued, or before the date of the foreign patent, or before the date of the printed publication, then the patent or publication cited shall not bar the grant of a patent to the applicant, unless the date of such patent or printed publication be more than one year prior to the date on which the application was filed in this country. They find it unnecessary, therefore, to introduce evidence of the interchangeability of free radical engendering agents in work of this sort. Claims 22 and 28 depend from claim 21 on appeal and specify azo-bis- (isobntyronitrile) and “an azo compound,” respectively as the foaming agent, thus narrowing the parent process" }, { "docid": "2519917", "title": "", "text": "(1982) is warranted. IV. VALIDITY Freeman’s patent is presumed valid, and 3M has the burden of establishing invalidity. 35 U.S.C. § 282 (1982). This presumption can be rebutted only by facts constituting clear and convincing evidence. Loctite, 781 F.2d at 861; American Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1360 (Fed.Cir.), cert. denied, 469 U.S. 821, 105 S.Ct. 95, 83 L.Ed.2d 41 (1984). A. Anticipation 1. Effective Date Freeman asserts that he invented the subject matter of the patent in March of 1975. He did not file an application with the PTO until March 15, 1976. The examiner rejected Freeman’s original application in light of the Neefe patent, which was filed October 1, 1975. In order to overcome this rejection, Freeman filed a Rule 131 Affidavit, 37 C.F.R. § 1.131 (1987), stating that his date of invention was prior to October 1, 1975. Declaration Under Rule 131, PTX-4 at 45. The examiner removed Neefe from the prior art under consideration as a result of the affidavit. The examiner’s acceptance of Freeman’s Rule 131 Affidavit is not binding on this Court. Laminex v. Fritz, 389 F.Supp. 369, 383 (N.D.Ill.1974). A patentee has the burden of proving, by clear and unequivocal evidence, that the invention was both conceived and reduced to practice before the application date. Polaroid Corp. v. East man Kodak Co., 641 F.Supp. 828, 862 (D.Mass.), aff'd, 789 F.2d 1556 (Fed.Cir.), cert. denied, 479 U.S. 850, 107 S.Ct. 178, 93 L.Ed.2d 114 (1986); Mathis v. Hydro Air Indus., Inc., 1 U.S.P.Q.2d 1513, 1524 (C.D.Cal.1986). Thus, the Court must review Freeman’s declaration and any evidence presented to support it. Rule 131 states that Freeman can remove Neefe as a reference by filing an “oath or declaration as to facts showing a completion of the invention in this country before the filing date of the application on which the [Neefe] patent issued.” 37 C.F. R. § 1.131(a) (1987). The facts in the affidavit must “establish reduction to practice prior to the effective date of the reference, or conception of the invention prior to the effective date of" }, { "docid": "6905626", "title": "", "text": "35 may support the patentability of an invention different from that of the lost count; but they do not support the patentability of claims 13 and 14 when these claims are given the scope that Zletz states he intends them to have. Zletz has not shown that he made an invention generic to both the copolymers of his early experiments and the subject matter of the lost count. On this basis, the Board’s decision is AFFIRMED. . Phillips Petroleum Company has filed a brief as amicus curiae, supporting the Board's decision herein. . 35 U.S.C. § 102: A person shall be entitled to a patent unless— ****** (e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, ... or ****** (g) before the applicant's invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it. . 35 U.S.C. § 112 ¶ 2: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. . 37 C.F.R. 1.131. Affidavit or declaration of prior invention to overcome cited patent or publication. (a) When any claim ... is rejected on reference to a domestic patent which substantially shows or describes but does not claim the rejected invention ... the inventor ... shall make oath or declaration as to facts showing a completion of the invention in this country before the filing date of the application on which the domestic patent issued.... (b) The showing of facts shall be such ... as to establish reduction to practice ... or conception ... coupled with due diligence from [the effective date of the reference] to a subsequent reduction to practice or to the filing of the application. Original exhibits of drawings or records, or photocopies thereof, must accompany and form part of the affidavit or declaration or their absence satisfactorily explained. . The Commissioner correctly points out that claims 13 and 14 as they" }, { "docid": "21545875", "title": "", "text": "to the issue of laches with respect to saw mills, and remand for a new trial on this issue. . Sun Studs, Inc. v. ATA Equipment Leasing, Inc., Applied Theory, Inc., and U.S. Natural Resources, Inc., Civil No. 78-714-RE (D.Or. July 17, 1987), vacating partial judgment, 655 F.Supp. 1013 (1987). Related case Sun Studs, Inc. v. Applied Theory Associates, Inc. and Applied Theory, Inc., 772 F.2d 1557, 227 USPQ 81 (Fed.Cir.1985). . Sun Studs described the jury as follows: “Among the jurors were two electronics technicians and a radiographer. Both of the electronics technicians had training and experience with digital computers. One had twenty years’ experience as a technician for Tektronix, Inc. and had also worked three years in a sawmill. One juror was a librarian for a local college. Another was the administrative assistant for the executive director of a county transportation depart ment. One had worked twenty years for a telephone company. Two actually used computers in their work. One woman had a husband and a son in the lumber business and another son who is a professor of civil engineering. One juror had a masters degree, and another a two-year technical degree, and one had various training in electronics. All had at least a high school education.\" . \"Secret prior art\" is so called because although it is effective as a reference as of its filing date, see generally Hazeltine Research v. Brenner, 382 U.S. 252, 86 S.Ct. 335, 15 L.Ed.2d 304, 147 USPQ 429 (1965), Alexander Milburn Co. v. Davis-Bournonville Co., 270 U.S. 390, 401, 46 S.Ct. 324, 325, 70 L.Ed. 651 (1926), its existence does not become known until the issuance of the United States patent. . 37 C.F.R. § 1.131 (1988) Affidavit or declaration of prior invention to overcome cited patent or publication. (a) When any claim of an application or a patent under reexamination is rejected on reference to a domestic patent which substantially shows or describes but does not claim the rejected invention, ... and the inventor ... shall make oath or declaration as to facts showing a completion of the invention" }, { "docid": "3089611", "title": "", "text": "the board was correct in ruling that the limited proofs have not overcome the references with respect to broad claims 20 and 21. Claims already allowed appellants, restricted to what they have shown they did prior to Rubens’ effective date, are commensurate with their evidence. They have not shown that their prior invention is commensurate with claims 20 and 21 and inclusive of all the references show. See Ex parte McMaster, 131 USPQ 475, 773 O.G. 323, 1961 C.D. 64 (P.O.Bd.App.). The decision of the board is affirmed. Affirmed. SMITH, J., concurs in the result. . Consisting of Federico and Rosa, Examiners-in-Chief and Stone, Acting Examiner-in-Chief. Examiner-in-Chief Rosa wrote the opinion. . Affidavits of the inventors were filed under Rule 131 of the Patent Office Rules of Practice. A “supplemental” affidavit by their attorney was also filed. . Rule 131(a) reads: 131. Affidavit of prior invention to overcome cited patent or publication. (a) When any claim of an application is rejected on reference to a domestic patent which substantially shows or describes but does not claim the rejected invention, or on reference to a foreign patent or to a printed publication, and the applicant shall make oath to facts showing a completion of the invention in this country before the filing date of the application on which the domestic ■patent issued, or before the date of the foreign patent, or before the date of the printed publication, then the patent or publication cited shall not bar the grant of a patent to the applicant, unless the date of such patent or printed publication be more than one year prior to the date on which the application was filed in this country. . They find it unnecessary, therefore, to introduce evidence of the interchangeability of free radical engendering agents in work of this sort. . Claims 22 and 28 depend from claim 21 on appeal and specify azo-bis- (isobuty-ronitrile) and “an azo compound,” respectively as the foaming agent, thus narrowing the parent process claim to include such agent." }, { "docid": "23313311", "title": "", "text": "the heat at the base of the wearer’s toes, a pair of conducting wires secured to the ends of the ribbon and means for connecting the wires to a low voltage source of electrical energy. “2. The invention as defined in claim 1 in which the covering is of textile, fibrous material. “3. The invention as defined in claim 1 in which the source of electrical energy is a low voltage battery, there is provided a pouch for containing the battery and securing means for securing the pouch to the stocking. “4. The invention as defined in claim 1 in which adhesive means secures the covering material on said heating element and in which the said covering material is made of textile fibres.” . As of the time of Arron’s affidavit, Rule 131 of the Rules of Practice of the Patent Office read as follows: “131. Affidavit of prior invention to overcome cited patent or publication, (a) When any claim on an application is rejected on reference to a domestic patent which substantially shows or describes but does not claim the rejected invention, * * * and the applicant shall make oath as to facts showing a completion of the invention in this country before the filing date of the application on which the domestic patent issued * * * then the patent * * * cited shall not bar the grant of a patent to the applicant * * *. “(b) The showing of facts shall be such, in character and weight, as to establish reduction to practice prior to the effective date of the reference, or conception of the invention prior to the effective date of the reference coupled with due diligence from said date to a subsequent reduction to practice or to the filing of the application. Original exhibits of drawings or records, or photocopies thereof, must accompany and form part of the affidavit or their absence satisfactorily explained.” . After the original draft of this opinion was written, the opinion of Judge Wright in In re Multidistrict Litigation Involving Frost Patent, 398 F.Supp. 1353 (D.Del.1975), was" }, { "docid": "6905627", "title": "", "text": "one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. . 37 C.F.R. 1.131. Affidavit or declaration of prior invention to overcome cited patent or publication. (a) When any claim ... is rejected on reference to a domestic patent which substantially shows or describes but does not claim the rejected invention ... the inventor ... shall make oath or declaration as to facts showing a completion of the invention in this country before the filing date of the application on which the domestic patent issued.... (b) The showing of facts shall be such ... as to establish reduction to practice ... or conception ... coupled with due diligence from [the effective date of the reference] to a subsequent reduction to practice or to the filing of the application. Original exhibits of drawings or records, or photocopies thereof, must accompany and form part of the affidavit or declaration or their absence satisfactorily explained. . The Commissioner correctly points out that claims 13 and 14 as they are written do not clearly define the generic invention that Zletz states he intends these claims to cover. During the interference the examiner ruled that \"polypropylene” means a homopolymer; that is, consisting essentially of recurring propylene units; and included this definition in the interference count. ZIetz’s asserted meaning of \"polypropylene” to include homopolymers and copolymers containing significant methylene sequences is contrary to the interference definition. Although Zletz refers to the district court’s usage as supporting his own, we do not discern such looseness of usage in the district court’s opinion as could extend \"polypropylene” to encompass ZIetz’s copolymers." }, { "docid": "19706416", "title": "", "text": "may submit an appropriate oath or declaration to overcome the patent or publication---- When an appropriate oath or declaration is made, the patent or publication cited shall not bar the grant of a patent to the inventor or the confirmation of the patentability of the claims of the patent, unless the date of such patent or printed publication is more than one year prior to the date on which the inventor’s or patent owner’s application was filed in this country. 37 C.F.R. § 1.131; See 50 F.R. 9368 (Mar. 7, 1985) (Notice of final rulemaking). The particular application of this rule that troubled the Court of Claims and Patent Appeals was whether the reduction of an invention to practice was sufficient to claim an invention which was not the same but which was shown to be “obvious” in light of the knowledge of one skilled in the art. Id. at 1176-77. In concluding that an “obviousness” analysis was proper under Rule 131, the court ruled that “[cjertainly appellants should not be required to submit facts under Rule 131 showing that they reduced to practice thát which is obvious ... for the purpose of antedating a reference.” Id. at 1177. The court looked to evidence of what a skilled artisan would have known at the time, and ultimately, the court concluded that the inventor had reduced to practice a variant of the claimed invention that was sufficiently obvious under Rule 131 to antedate any prior art. Thus, the court held the patent valid. Id. (reversing on other grounds). In the present case, the patent examiner apparently extrapolated from the analysis in In re Spiller for obviousness under Rule 131 to the analysis for “inherency” under § 112. (A1034). This extrapolation, however, is weak. For one, In re Spiller is limited to its facts: the use of Rule 131 to overcome references which antedate the filing of a single application. For another, In re Ruscetta holds specifically that a Rule 131 analysis and an anticipation analysis are “not____ comparable.” In re Ruscetta, 255 F.2d 687, 690 (C.C.P.A.1958). In re Spiller simply does" }, { "docid": "855279", "title": "", "text": "to “rely on the filing dates of his ’886 and ’792 patents to overcome Bauer and Takahashi to the extent those patents contain the same disclosures as the references.” How he wishes to “rely” on those dates is not certain. Ordinarily, failure of an appellant to present a clear question for the court to decide with attendant legal theories to support the desired answer to that question would be fatal to the appeal. However, since the arguments and facts herein could support different pathways of legal reasoning, and, more importantly, possibly different results, it would seem to be worthwhile to explore one apparent alternative rationale. There are at least two ways that this ease may be treated. First, the court may find that appellant is asking it to make the decision that various bits of his claimed invention are supported in the parent applications (now patents ’886 and ’792 — both filed before Bauer and Takahashi) and thereby provide a § 120 immunity to the claimed invention. The majority opinion properly rejects this approach. Alternatively, appellant may be asking the court to treat his prior patents as some type of pro forma Rule 131 affidavit. The argument is made here (as it was before the board) that the principles discussed in In re Rainer, 390 F.2d 771, 55 CCPA 853, 156 USPQ 334 (1968) should apply in a similar manner in this case since, appellant argues, “the essential issue * * * is the question of priority [of invention] and nothing else.” Obviously, appellant has not submitted a Rule 131 affidavit to overcome Bauer and Tak-ahashi. But through the years this court has taken a “rule-of-reason” approach in permitting an appellant to antedate a reference whenever proffered extrinsic evidence fairly indicates that the appellant is the first inventor. In one such situation, in which an appellant’s evidence did not conform to the then-existing norm of presentation, the court cut through the formalities and faced the issue squarely: The real issue is whether all the evidence, including the references, truly shows knowledge by another prior to the time appellants made their" }, { "docid": "2519918", "title": "", "text": "Freeman’s Rule 131 Affidavit is not binding on this Court. Laminex v. Fritz, 389 F.Supp. 369, 383 (N.D.Ill.1974). A patentee has the burden of proving, by clear and unequivocal evidence, that the invention was both conceived and reduced to practice before the application date. Polaroid Corp. v. East man Kodak Co., 641 F.Supp. 828, 862 (D.Mass.), aff'd, 789 F.2d 1556 (Fed.Cir.), cert. denied, 479 U.S. 850, 107 S.Ct. 178, 93 L.Ed.2d 114 (1986); Mathis v. Hydro Air Indus., Inc., 1 U.S.P.Q.2d 1513, 1524 (C.D.Cal.1986). Thus, the Court must review Freeman’s declaration and any evidence presented to support it. Rule 131 states that Freeman can remove Neefe as a reference by filing an “oath or declaration as to facts showing a completion of the invention in this country before the filing date of the application on which the [Neefe] patent issued.” 37 C.F. R. § 1.131(a) (1987). The facts in the affidavit must “establish reduction to practice prior to the effective date of the reference, or conception of the invention prior to the effective date of the reference coupled with due diligence from said date to a subsequent reduction to practice or to the filing of the application.” 37 C.F.R. § 1.131(b) (1987). Freeman filed his Rule 131 affidavit on August 19, 1977, basing it on a page of his calendar. Declaration Under Rule 131, PTX-4 at 45. Freeman claimed that he described his invention in the calendar, PTX-2, prior to October 1, 1975, and his secretary typed the notes. He then discussed his invention with his colleagues and eventually filed a disclosure document with the PTO on October 10, 1975. He contacted his patent attorney in January of 1976, and the patent application was delayed by his attorney’s vacation. The application was finally filed March 15, 1976, one full year after Freeman claims that he conceived the invention. Freeman never reduced his invention to practice prior to filing his original application. Tr. at 106. Therefore, Freeman must prove by clear and convincing evidence conception prior to October 1, 1975, and due diligence from then until March 15, 1976. Freeman offered" }, { "docid": "855284", "title": "", "text": "originally filed claims of ’792 are applicable against Tak-ahashi. The allowed claims in neither of appellant’s patents are ostensibly of interest because of the respectively later issue dates. The appellant has made comparisons between the decoder matrix of Bauer and that of ’886 as well as the matrix of Tak-ahashi and that of ’792. These comparisons were presented to the examiner (who responded in his Answer to the board and found them to be non-persuasive), to the board (which considered the comparisons not to be germane to the § 120 basis on which it decided the case), and to this court. However, the comparisons were based on the specifications of ’886 and ’792 rather than on the pertinent sets of claims. As to ’886, the originally filed claims appear to be close enough in content to the argued portion of the specification to allow the arguments to be considered. However, in ’792, the argued matrix constants are not clearly found in the original claims. Derivation of the matrix is clearly beyond the scope of review in this court. In sum, even though appellant’s appeal, as viewed by the majority opinion, is one that must be rejected under law; under the rationale suggested here, the appeal may be deficient only in the presentation of the evidence. In any event, the decision of the board is properly affirmed. . Rainer is oft cited to show “that an anticipatory disclosure, not a statutory bar, may be removed as a reference against a generic claim by a Rule 131 affidavit showing prior reduction to practice of as much of the claimed invention as the reference shows.” Id. 390 F.2d at 773, 55 CCPA at 855, 156 USPQ at 336. . A Rule 131 affidavit was submitted to successfully overcome a patent to Cooper (U.S. 3,856,992). . In re Land dismissed the then-prevalent notion that a Rule 131 affidavit was required to antedate a prior art reference. . Initial recognition is made that neither Bauer nor Takahashi is a bar under 35 U.S.C. § 102(b) since both issued after the filing date of appellant’s application." } ]

[ { "docid": "9804543", "title": "", "text": "the improper use of “other-crimes” evidence. I have in mind the following situa tion. An individual presently charged with interstate gambling has previously suffered a conviction prior to the Court’s decision in Marchetti for failure to register and pay the tax. Would the Government be able to introduce this previous conviction in the accused’s post-Marchetti trial although the Court has determined that the statutory scheme under which this conviction was procured is unconstitutional? It appears that by joining the gambling offenses with the registration and tax offenses the Government has been able to utilize just such a procedure. I would grant certiorari to resolve these issues. Petitioner received the maximum sentence on each count, the sentences to run consecutively. Petitioner’s trial began in August 1966 and was thus after the applicable date of Miranda. See Johnson v. New Jersey, 384 U. S. 719 (1966). The essential element is that the accused be a professional gambler. Section 1084 applies to individuals “engaged in the business of betting or wagering”; § 1952 refers to the use of interstate facilities to carry on “any business enterprise involving gambling”; and §§ 4411 and 4412 impose a tax and registration requirement upon those “engaged in the business of accepting wagers” as defined in §4401. The Court of Appeals intimated that petitioner did not properly preserve his present claim as he failed to move to sever the gambling counts from the registration and tax counts. 395 F. 2d, at 729. However, prior to trial petitioner moved to dismiss the indictment on the theory that he could not be constitutionally convicted for violations of §§ 4401 and 4411-4412 on grounds subsequently adopted in Marchetti; petitioner added that combining charges of failing to register and pay the tax with the substantive gambling charges constituted a comment upon his failure to incriminate himself and therefore asked that the entire indictment be dismissed. On the day of trial this request was renewed. Certainly, these steps were adequate to preserve petitioner’s claim. The Government chose to place venue in the Southern District of New York, the situs of the bettors’ telephone" } ]

[ { "docid": "23255473", "title": "", "text": "700, 703 (1st Cir. 1966). This view, which started with McElroy v. United States, 164 U.S. 76, 17 S.Ct. 31, 41 L.Ed. 355 (1896), is followed in a number of circuits. See, e.g., United States v. Nettles, 570 F.2d 547 (5th Cir. 1978); United States v. Whitehead, 539 F.2d 1023 (4th Cir. 1976); Metheany v. United States, 365 F.2d 90 (9th Cir. 1966); Cupo v. United States, 359 F.2d 990 (D.C.Cir. 1966), cert. denied, 385 U.S. 1013, 87 S.Ct. 723, 17 L.Ed.2d 549 (1967). Because we affirm the finding of the district court, there is no need to decide whether the harmless error rule should be adopted in this circuit. . The proof required for a conviction of aiding and abetting a violation of section 1084(a) is discussed in the Ferris case. . Section 1084(a) provides in pertinent part: Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest..... . The district court held that the statute did not prohibit the activities of “mere bettors.” We take no position on this ruling except to point out that the legislative history is ambiguous on this point at best. . For a discussion of the sufficiency of the evidence establishing Ferris’ aiding and abetting conviction, refer to the portion of this opinion dealing specifically with Ferris. . Defendant does not attack the jury charge on this ground, perhaps realizing the barrier imposed by Fed.R.Crim.P. 30. . Because there is no essential difference between the positions of Southard and Martin on alleged misjoinder and severance, we find against Southard on the basis of our holding on this issue in Martin’s case. . Banker expressly requested that the court not ask the jury to return separate verdicts on each charge. . The other issues raised by Banker are discussed in other parts of the opinion: the Franks hearing issue; the claim that the indictment was defective because it charged both" }, { "docid": "18345746", "title": "", "text": "States, 358 F.2d 195, 200 (1st Cir.), cert. denied, 385 U.S. 816, 87 S.Ct. 36, 17 L.Ed.2d 55 (1966), for the proposition that section 1084 applies to a “bettor who is a professional gambler.” This statement is circular; neither does it not tell us when a bettor is a professional gambler, nor does it define “professional gambler.” Moreover, the government fails to note that, in Sagan-sky, the defendants were bookmakers, that is, they accepted bets and were clearly “engaged in the business.” As the court said, § 1084(a) does not punish the mere transmission of bets or wagers, but rather the “use” of interstate wire communication facilities for their transmission. When a person holds himself out as being willing to make bets or wagers over interstate telephone facilities, and does in fact accept offers of bets or wagers over the telephone as part of his business, we think it is consistent with both the language and the purpose of the statute that he has “used” the facility for the transmission of bets or wagers. Id. at 200. (emphasis added). Finally, the remainder of the opinion does not clarify the problem at stake in this case. The Court hypothesized: Suppose a professional gambler used interstate wires on ten different days, but never to place more than one bet on a single day. Would he have never violated the statute? ... If a defendant is professionally engaged in making bets and wagers, one single use of interstate facilities is an offense. Id. at 201. (emphasis added). In this last passage the meaning of the phrase “professionally engaged” is not discussed. It is not at all clear from this case whether a mere bettor is or is not excluded under section 1084(a). Another decision in this area, United States v. Anderson, 542 F.2d 428 (7th Cir. 1976), describes certain betting activities as follows: Their conversations involved in depth discussions of the merits of betting one side of a particular game or the other and the comparison of line information. Crews placed substantial bets with Anderson when these discussions ended. Also, Crews had on" }, { "docid": "18051254", "title": "", "text": "was to be considered separately against each defendant. Precise instructions, such as were given here, see note 14 infra, are the best safeguard against the danger that the jury might cumulate the evidence, United States v. Morrow, 537 F.2d at 136-37, and appellants have failed to establish prejudice that is beyond the curative powers of these instructions. . The jury was instructed in pertinent part: A bookmaker may take wagers on both teams in a sporting event. When a bookmaker gets too much action on one side of a sporting event, in an effort to balance his books he may “lay-off’ the excess action by betting on the team favored by his customers. A bookmaker may direct his customers’ bets to a bookmaker who can use the action on that side of the line by making a bet with him, or may direct his customers’ bets to any other gamblers interested in taking the good side of the prevailing odds associated with the bet. A “lay-off’ bet, thus, should be defined solely in relation to the occupation of and the purpose of the person making the bet — the occupation and motives of the person accepting the bet are irrelevant to the definition. I have said that a mere customer or bettor cannot be said to conduct or finance a gambling business which he patronized. If, however, you find beyond a reasonable doubt that a defendant is a bookmaker and that he regularly places with or accepts lay-off bets from another bookmaker, you may consider that defendant and the other bookmaker as being members of the same gambling business. Line information may also be exchanged between bookmakers and the exchange of line information may well be reasonably necessary to a gambling business and the well-being of all bookmakers in a locality. Not everyone who receives from or transmits to a bookmaker line information can be said to conduct the business of the bookmaker. A bettor might casually report to one bookmaker what line is being offered by another; and, a bettor might receive a line from a bookmaker before placing" }, { "docid": "18345752", "title": "", "text": "not distinguish between persons engaged in such business on their own behalf and those engaged in the business on behalf of others. See Truchinski v. United States, 393 F.2d 627, 630 (8th Cir.), cert. denied, 393 U.S. 831, 89 S.Ct. 104, 21 L.Ed.2d 103 (1968). In Scavo, among the factors the court found pertinent to its conclusion that Scavo was engaged in the business of betting were the facts that Scavo furnished the bookmaker with line information on a regular basis; that such information was critical to the bookmaker’s operation; and that there was a financial arrangement between the two. Id. at 842. Such facts are absent in the Baborian-Lauro relationship. (While Baborian discussed line information with Lauro, there was no evidence presented that showed Lauro ever relied upon Baborian to supply it.) Baborian was not a part of Lauro’s business; rather, he was in the posture of a customer. Finally, I also note that the Scavo court, in its instructions to the jury defining the “business” of betting or wagering, pointed out that “a mere bettor or customer” cannot be said to be engaged in the business of betting or wagering. Id. at 842-843. The government finds no greater support in the other cases it cites. Katz v. United States, 369 F.2d 130, 132 (9th Cir. 1966), rev’d on other grounds, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), involved a defendant who placed bets on behalf of other bettors and who was a handicapper as well. United States v. Swank, 441 F.2d 264, 265 (9th Cir. 1971), involved a defendant who worked closely with the bookmakers in “laying off” bets to avoid an adverse effect on the horse track odds. Nothing in that opinion addresses the issue in this case. In short, § 1084 does not sweep within its prohibition a mere bettor. Congress never intended that the federal government should thus invade the criminal jurisdiction that properly belongs to the states. I adopt defense counsels’ argument that the interpretation of § 1084(a) proferred by the government would upset this balance between state and federal law" }, { "docid": "23591295", "title": "", "text": "United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). The Court decided that case ort May 13, 1974. On September 3 of that year, because certain counts in the indictment were based on information from telephone interceptions which were unlawful in light of Giordano, the district court dismissed the indictment against all the defendants without prejudice. A subsequent indictment against all the appellants in the present case was returned on August 22, 1974. . We treat most of the issues on this appeal as if raised by all the appellants, since in large part they have adopted one another’s arguments by reference. Where certain issues are relevant only to particular appellants we so indicate. . This issue dominated the initial portion of the trial. On the fifth day the trial court ruled as follows: I am going to inake it a rule of the case, the government’s burden of proof is not to prove a single gafnbling business. “. . . The question is not how many different businesses there are, as long as a defendant is in business with the people on trial, he is in trouble.” The court alsd refused appellants’ requests for jury instructions to the effect that the government had to prove the existence of a single gambling business beyond a reasonable doubt. . Special Agent Whitcomb, Chief of the FBI Gambling Unit Laboratory headquarters, described the “layoff” process in bookmaking op- . erations as follows: “It is a method by which a bookmaker will wager similár to the way of the bettor. If he has heavy action Ón one side, it gives him an imbalanced book, should his bettors’ selection win, he would have a big pay out. If he cannot by changing the line of the odds thus attract attention tó the other side, to even his action, his wagering on both sides of the events, he can resort to a lay off. It is nothing more than for him to go and bet with another bookmaking operation, in the same way he is being bet into. [This way]" }, { "docid": "23255474", "title": "", "text": "or wagers on any sporting event or contest..... . The district court held that the statute did not prohibit the activities of “mere bettors.” We take no position on this ruling except to point out that the legislative history is ambiguous on this point at best. . For a discussion of the sufficiency of the evidence establishing Ferris’ aiding and abetting conviction, refer to the portion of this opinion dealing specifically with Ferris. . Defendant does not attack the jury charge on this ground, perhaps realizing the barrier imposed by Fed.R.Crim.P. 30. . Because there is no essential difference between the positions of Southard and Martin on alleged misjoinder and severance, we find against Southard on the basis of our holding on this issue in Martin’s case. . Banker expressly requested that the court not ask the jury to return separate verdicts on each charge. . The other issues raised by Banker are discussed in other parts of the opinion: the Franks hearing issue; the claim that the indictment was defective because it charged both a substantive violation of 18 U.S.C. § 1084(a) and a violation of 18 U.S.C. § 2; and the admission of the Brian-Kachougian conversations and records. . We hold, contrary to the government’s contention, that knowledge of the interstate nature of the telephone calls is an element of the crime defined in 18 U.S.C. § 1084(a). There is a full discussion of this holding in that part of the opinion devoted to appellant Lauro. . It was stipulated that the calls were made from Providence, Rhode Island. The stipulation, however, was not evidence that defendant knew that the calls were made from Providence. Defendant did not testify. . 18 U.S.C. § 111 provides as follows: Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both. Whoever, in the commission of any such acts uses a deadly or dangerous" }, { "docid": "23255430", "title": "", "text": "United States Code 1084.” This request was refused; instead, the court instructed the jury as follows: Now, an individual engages in the business of betting or wagering if he regularly performs a function which is an integral part of such business. The individual need not be exclusively engaged in the business, nor must he share in the profits or losses of the business. He may be an agent or employee for another person’s business, but the function he performs must provide a regular and essential contribution to that business. If an individual performs only an occasional or nonessential service or is a mere bettor, regardless of the amount wagered, or customer, he cannot properly be said to engage in the business. The instruction on this point was clear and adequate; it covered the essentials of the requested instruction. The conviction is affirmed. FALK Falk stipulated to the same facts as did Martin. He was found guilty of violating 18 U.S.C. § 1084(a). He was given permission to rely on the pertinent portions of the briefs of all other appellants and to file no brief. For the reasons stated in other portions of this opinion, his conviction is affirmed. BANKER Banker was convicted by a jury of violating 18 U.S.C. § 1084(a) and aiding and abetting its violation. Only two of the issues he raises are discussed here: the exclusion of certain evidence and the refusal of the district court to give a requested instruction. I. The Exclusion of Evidence An important part of the government’s case was a tape recording of five intercepted phone calls from Brian in Providence, Rhode Island, to defendant in Las Vegas, Nevada. The parties stipulated that the calls were dialed directly by Brian to defendant without operator assistance from a nonpay telephone. These calls were strong evidence that defendant had participated in the gambling business carried on by Brian. The government also had to prove that defendant knew that the calls were interstate. As part of his case, defendant offered in evidence a Nevada driver’s license in the name of John Brian, issued in 1974" }, { "docid": "23255428", "title": "", "text": "not the case of a trial judge peremptorily shutting off argument on an objection. Finally, our review of the evidence convinces us that, even if the court erred by failing to give a limiting instruction, such error was harmless beyond a reasonable doubt. The jury heard a number of telephone conversations between Southard and Brian, from which it reasonably could have found that Southard, as well as Brian, was in the business of betting or wagering. We hold for these reasons and those explicated in Ferris’ case that no reversible error was committed by allowing the betting slips in evidence. III. The Exclusion of Evidence The court excluded taped conversations between Brian and his son, Robert Baborian, offered by Southard to prove that Brian was just a bettor, not a bookmaker. The offer of proof was that Brian relied on his son’s advice “in determining what games to bet, and when his son told him what games to bet, John Brian called Jackie [Southard] and other individuals and bet those games.” This evidence was improperly excluded as hearsay. The taped conversations were not offered to prove the truth of the sports information conveyed from Baborian to Brian. They were offered to show that Brian relied on Baborian for betting information, which is evidenced by the “verbal acts” of the conversations. It was not asserted in the excluded conversations that Brian relied on Baborian. Although the excluded conversations were evidence from which the jury might find that Brian relied on someone else for sports information, they were irrelevant to the question of whether he was engaged in betting as a business. In any event, we think that, given the extensive proof that Brian was engaged in the business of gambling, it was harmless error to exclude the conversations. IV. The Failure of the District Court to Instruct the Jury on the Theory of Southard’s Defense The defendant requested the following instruction: “Unless a person is engaged in the business of gambling or wagering the fact that he makes substantial bets on a regular basis does not constitute a violation of 18" }, { "docid": "18051220", "title": "", "text": "GEE, Circuit Judge: Pursuant to a court order, the FBI began intercepting telephone conversations of appellant Jerry Wood, a Dallas bookmaker. The interception, which continued from November 27, 1975, to December 9, 1975, and which produced recordings of more 1,100 calls, resulted in indictments against Wood, Virginia Avanell Smith, Bobby Joe Chapman, Thomas Anthony Avarello, James Eugene Avery, and Carmel Cosmo Bowers for conducting an illegal gambling business, in violation of 18 U.S.C. §§ 1955 and 2. Following a jury trial, all defendants were convicted. We affirm the convictions. The major question at trial and on appeal is whether there was one gambling business, involving five or more persons, as required by section 1955. Before addressing this issue, however, we shall discuss the numerous other alleged errors raised by appellants. The Facts Appellant Wood was an admitted bookmaker who operated in Dallas. At the same time, appellant Chapman was engaged in a bookmaking operation in Dallas, and appellant Avery was running a similar operation in Amarillo. The operations were conducted primarily over the telephone, and the recorded conversations revealed wagers on various sporting events, mainly college and professional football games. The government presented the bulk of its case by playing the tape-recorded conversations, identifying the voices involved, and then having an FBI expert explain both the gamblers’ jargon and the significance of the conversations in the context of gambling. Also produced at trial were individuals who had placed bets with Avery, Chapman, and Wood. The government’s evidence tended to show that appellant Wood, in addition to taking bets directly from bettors over the phone, used appellants Avarello and Bowers to disseminate gambling information to bettors and to relay bets to him. The wiretaps revealed that Virginia Smith, who worked as a bartender for Wood, relayed bets to him and settled up with gambling customers on his behalf. Government evidence tended to show that Wood conveyed line information to appellant Avery and accepted bets from him, which were characterized by the FBI expert witness as layoff bets. The tapes also tended to show that Wood and Chapman regularly discussed the halftime" }, { "docid": "23255425", "title": "", "text": "the substantive crime, not aiding and abetting. The flaw in this argument is that it assumes that the other participant is only a bettor who does nothing to assist the principal in carrying on his gambling activities. The question, as the district court recognized, is not whether a mere bettor can be prosecuted as an aider and abettor, but whether a person not “in the business of betting or wagering” can be found guilty of assisting one who is. We think it clear that he can. We have been unable to find any cases that discuss directly the propriety of an aiding and abetting prosecution in conjunction with a section 1084(a) offense. The cases we have found, however, indicate that indictment or conviction under both sections 1084(a) and 2 was not considered a problem. See United States v. Kail, 612 F.2d 443, 445 (9th Cir.1979) (defendant’s conviction under § 1084 and § 2 affirmed), cert. denied, 446 U.S. 912, 100 S.Ct. 1842, 64 L.Ed.2d 266 (1980); United States v. Anderson, 542 F.2d 428, 436 (7th Cir.1976) (evidence insufficient to show either that defendant was “in the business” of gambling or that he was an aider and abettor); United States v. Kelley, 395 F.2d 727, 729 (2d Cir.) (defendant’s conviction under § 1084(a) and § 2 affirmed), cert. denied, 393 U.S. 963, 89 S.Ct. 391, 21 L.Ed.2d 376 (1968). The evidence, viewed in the light most favorable to the government, establishes clearly that none of the appellants raising this issue was a “mere bettor.” The jury could reasonably have found, based on the telephone intercepts, that Banker and Southard were “engaged in the business of betting or wagering,” that they exchanged line information with Brian and that they placed bets for him with other bookmakers. Ferris, whose involvement in this prosecution was the most tenuous of all the appellants, placed at least one bet for Brian with another bookmaker. Because the actions of these three appellants exceeded those of mere bettors, we have no difficulty finding they were properly indicted. We rule that the indictment was not defective. II. The Failure" }, { "docid": "5777516", "title": "", "text": "GEE, Circuit Judge: This is another in an ever-growing number of gambling cases in this circuit, prosecuted pursuant to 18 U.S.C. § 1955. Here, as in the other cases, a court-ordered telephone wiretap and testimony of FBI expert witnesses, who analyzed and interpreted the intercepted calls, formed the bulk of the government’s case. Pursuant to a court order, the FBI began monitoring and tape recording the telephone conversations of Allen “Pookie” Bourg, which were conducted over two telephones subscribed to by him. The wiretap, in effect from November 19, 1976, to December 2, 1976, intercepted 2,095 conversations and resulted in indictments against the appellants in this case — Bourg, Harry Duvigneaud, Anthony P. Glorioso, Alphonse F. Iachino, and Hillary Thibodeaux — and twelve others. The indictments charged conspiracy to violate 18 U.S.C. § 1955 and substantive gambling offenses. After a jury trial, the government obtained convictions against nine defendants. As we shall discuss below, we find that appellants’ convictions must be reversed. This disposition makes unnecessary discussion of many alleged errors raised by appellants. The Facts “Pookie” Bourg was an admitted bookmaker who operated out of a small attic room in his Harvey, Louisiana, residence. Government evidence established that the tapped telephones were installed in this room and were used by Bourg to conduct his bookmaking operation. Selected recorded conversations were played at trial, and FBI experts explained the significance of each call in the context of illegal gambling. This evidence tended to show that Duvigneaud, Iachino, and Glorioso were bookmakers who placed layoff bets with Bourg, often after receiving line information from him. The tapes also tended to show that Thibodeaux was one of a network of “writers” employed by Bourg to accept and relay wagers from bettors to him and to collect from and pay off Bourg’s customers. Various other defendants not involved in this appeal performed other functions for Bourg’s business, and it was the government’s theory that Duvigneaud, Iachino, and Glorioso could be linked to the Bourg operation as well. The Jurisdictional Five The initial challenge to the convictions at issue is raised by appellants Bourg" }, { "docid": "18051238", "title": "", "text": "two, United States v. Milton, 555 F.2d 1198 (5th Cir. 1977). We have refused to include a person who was an occasional layoff bettor because that evidence was not inconsistent with the hypothesis that he was a mere bettor. United States v. Box, 530 F.2d 1258 (5th Cir. 1976). But a regular exchange of layoff bets between bookmakers enables us to treat the two as one section 1955 gambling business. United States v. Milton, supra; United States v. Alfonso, 552 F.2d 605 (5th Cir.), cert. denied, 434 U.S. 922, 98 S.Ct. 398, 54 L.Ed.2d 279 (1977). Finally, the “exchange” our cases discuss does not have to be a technical one; it is sufficient that two bookmakers may be linked even though one only gives line information but does not receive it, and the other only places layoff bets but does not accept them. United States v. Clements, supra. With these principles in mind, we turn to the evidence against these appellants. Wood was an admitted bookmaker. The intercepted calls to which Avarello was a party established that he was more than a mere bettor. Avarello asked for instructions from Wood about setting the halftime line and called in a number of wagers to the Wood book; some were clearly for other persons. On one occasion Avarello relayed to Wood a customer’s desire to place a $10,000 halftime bet. Wood initially told Avarello to accept only a $5,000 bet but later, acting on instructions from Wood, Avarello contacted the customer and relayed an additional bet to Wood. On another occasion Wood told Avarello to generate some business, saying, “Tell them to hit it a [expletive deleted] lick. I’m hot. I want to play.” A few minutes later, Avarello phoned in a $3,000 bet. On yet another occasion, Wood gave Avarello the halftime line and said, “Tell them [happily, unintelligible] let’s play.” Shortly thereafter, Avarello called in a bet at the line previously quoted to him. Finally, Avarello, in still another call, relayed two bets to Wood and assured him that there would be more. The FBI expert testified that the relationship" }, { "docid": "23255426", "title": "", "text": "Cir.1976) (evidence insufficient to show either that defendant was “in the business” of gambling or that he was an aider and abettor); United States v. Kelley, 395 F.2d 727, 729 (2d Cir.) (defendant’s conviction under § 1084(a) and § 2 affirmed), cert. denied, 393 U.S. 963, 89 S.Ct. 391, 21 L.Ed.2d 376 (1968). The evidence, viewed in the light most favorable to the government, establishes clearly that none of the appellants raising this issue was a “mere bettor.” The jury could reasonably have found, based on the telephone intercepts, that Banker and Southard were “engaged in the business of betting or wagering,” that they exchanged line information with Brian and that they placed bets for him with other bookmakers. Ferris, whose involvement in this prosecution was the most tenuous of all the appellants, placed at least one bet for Brian with another bookmaker. Because the actions of these three appellants exceeded those of mere bettors, we have no difficulty finding they were properly indicted. We rule that the indictment was not defective. II. The Failure to Give Limiting Instructions Before the Introduction of Evidence on the Scope of Brian’s Gambling Activities In Ferris’ case the court instructed the jury that tapes of telephone calls between Brian and other persons and betting slips seized at Brian’s house were limited to show only that Brian was in the business of betting and wagering. Because these limiting instructions were given, we held that such evidence was admissible. In Southard’s case there were no limiting instructions and he argues that their absence was prejudicial error. We think not. We first point out that, unlike the Ferris case, the only evidence admitted against Southard was the betting slips seized at Brian’s home. Second, there was no request for a limiting instruction, either at the time the evidence was admitted or prior to the jury charge. Before the evidence was introduced, the court gave defense counsel an opportunity to argue against its admission. At no time did defense counsel request or even suggest a limiting instruction though he had ample opportunity to do so. This was" }, { "docid": "23255421", "title": "", "text": "SOUTHARD Southard was tried by a jury with two codefendants for violating 18 U.S.C. § 1084(a) and aiding and abetting its violation. The jury convicted him and acquitted the codefendant. One of the issues raised is also common to Ferris and Banker: whether the indictment was defective because it charged both a substantive violation and aiding and abetting. The other assigned errors are limited to this appellant: the failure to give limiting instructions before the introduction of evidence on the scope of Brian’s gambling activities; the exclusion of certain tapes from evidence; and the alleged failure of the district court to instruct the jury on defendant’s theory of defense. I. The Indictment Appellant claims that the indictment was defective because it charged both a substantive violation of 18 U.S.C. § 1084(a) and aiding and abetting. 18 U.S.C. § 2 is a general provision applicable to most substantive criminal offenses. It provides: “Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” Section 2 does not define a crime; it imposes liability on a principal or those who aid and abet the commission of a crime. An indictment as an aider and abettor must always be accompanied by an indictment for a substantive offense. United States v. Erb, 543 F.2d 438, 446 (2d Cir.), cert.denied, 429 U.S. 981, 97 S.Ct. 493, 50 L.Ed.2d 590 (1976). But not every substantive crime is susceptible to an aiding and abetting charge. The question is whether section 1084(a) falls within one of the exceptions to the general rule that aiding and abetting goes hand-in-glove with the commission of a substantive crime. The first exception is that the victim of a crime may not be indicted as an aider or abettor even if his conduct significantly assisted in the commission of the crime. Examples are persons who pay extortion, blackmail, or ransom monies. It is obvious that section 1084(a) does not involve victims; even a compulsive gambler cannot be described as a “victim” of the bookmakers with whom he bets. The next exception" }, { "docid": "23255468", "title": "", "text": "inquiry,’ the Court will do all in its power to accommodate the legitimate concerns for safeguarding the informant process. However, it cannot and will not permit the plea of “confidentiality” to assume such disproportionate significance that it insulates government conduct from all scrutiny. Cf. United States v. Nixon, 418 U.S. 683, 707-13, 94 S.Ct. 3090, 3107-3110, 41 L.Ed.2d 1039 (1974). . The propriety of an indictment for both a section 1084(a) violation and aiding and abetting its violation is discussed in Southard’s case. . 18 U.S.C. § 1084(a) provides in pertinent part: (a) Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, .... . These calls were between Providence, Rhode Island, where Brian carried on his activities, and Somerset, Massachusetts, where defendant operated a restaurant. . “You see, someone has to be engaged in the business of betting or wagering in order to consider aiding and abetting, so you look to Mr. Brian, and the Government’s position is Mr. Brian was in the business of betting and wagering, and in considering that you apply the definition I have just given to you as to what constitutes being in the business of betting or wagering, and if within the context of that definition you find that Mr. Brian was in the business of betting or wagering, then you consider whether or not he indeed was aiding or abetting Mr. Brian.” . “In order to aid and abet another to commit a crime, it is necessary that the accused willfully associate himself in some way with the criminal venture, and in this case it’s necessary that you find Mr. Ferris willfully assisted himself with the criminal venture, that is, the criminal venture of Mr. Brian in the business of betting and wagering, and that he willfully participated, participates in it, and he does it as though it was something he wished to bring about, that is to" }, { "docid": "15732369", "title": "", "text": ". . . 555 F.2d at 1201. Similarly, the court held that: bets between bookmakers may be personal wagers that are not lay off bets. On the other hand, evidence of a consistent pattern of lay off betting or exchanging line information between two bookmakers may establish the essential link between them for purposes of § 1955. Id. In United States v. Box, 530 F.2d 1258, 1266 (5th Cir. 1976), this court was also confronted with the issue of whether independent gambling businesses could be linked for the jurisdictional requirement of § 1955. The court stated: . the regular direct exchange of lay off bets and line information can connect otherwise independent gambling operations, which alone would be illegal under state law but not federal law (because less than five participants were involved) into one business. The law is equally clear that all those who participate in a gambling business, whether as telephone clerks, collection agents, or runners are includable in satisfying the five person requirement. The only persons not included within the ambit of § 1955 are the individual bettors who place bets with the bookmaker. United States v. Joseph, 519 F.2d 1068, 1071 (5th Cir. 1975), cert. denied, 424 U.S. 909, 96 S.Ct. 1103, 47 L.Ed.2d 312 (1976). With these principles in mind, we turn to the question of whether the evidence, viewed most favorably to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), was sufficient to support the jury’s conclusion that beyond a reasonable doubt Boyd was involved with at least four other persons in the operation of a gambling business. The defendant Boyd testified that during the period covered by the indictment, an individual named Dan McKinley disseminated line information for him and collected bets from some of his bettors. Boyd’s testimony reveals that he regularly conveyed line information to one James Carl Wright, accepted lay off bets from Wright on approximately eight or ten occasions, loaned money to Wright, and turned some of his bettors over to Wright. In fact, Boyd testified that he had an agreement" }, { "docid": "23255384", "title": "", "text": "not granting an adversarial hearing under the doctrine of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), on the challenge to the truthfulness of the affidavit given in support of the application for the wiretaps. This issue is raised by all appellants and is discussed first. 2. Whether the indictment was defective because it charged both a substantive violation of 18 U.S.C. § 1084(a) and a violation of the aiding and abetting statute, 18 U.S.C. § 2. This issue is raised by Banker, Ferris, and Southard and is discussed as part of our review of Southard’s case. 3. Whether the admission of evidence to show the scope of Brian’s gambling activities was error. Southard, Ferris, and Banker raised this issue; it is discussed in our review of Ferris’ case. 4. Whether there was a misjoinder of certain defendants. Martin and Southard raised this issue; it is discussed in our review of Martin’s case. Our findings and rulings on these issues apply to all appellants. Issues raised by only one appellant will be examined in our review of that appellant’s case. THE FRANKS HEARING ISSUE All defendants challenged the affidavit submitted by F.B.I. Agent Conley and relied on by the magistrate in authorizing the electronic surveillance of the telephone of Brian and Kachougian. This affidavit summarized the information supplied to Conley and other law enforcement officials by five unnamed informants. In addition to the information provided by the confidential informants, the affidavit contained certain documentary evidence: the telephone company billing records of the three phone numbers allegedly used in Brian’s and Kachougian’s gambling business, and the criminal records of certain of the suspected gamblers, including Brian. The affidavit also stated that local police surveillance verified that on twenty-three days Brian was present at the location of one of the phone numbers allegedly used to place and accept bets. On its face, the affidavit submitted by Conley was sufficient to establish probable cause to believe that various individuals were conducting a gambling business in violation of federal gambling statutes. According to the affidavit, certain of the informants" }, { "docid": "23255424", "title": "", "text": "U.S.Code Cong. & Ad.News 2631. The final exception to accomplice liability upon which appellant relies occurs when the crime is so defined that participation by another is necessary to its commission. The rationale is that the legislature, by specifying the kind of individual who is to be found guilty when participating in a transaction necessarily involving one or more other persons, must not have intended to include the participation by others in the offense as a crime. This exception applies even though the statute was not intended to protect the other participants. Thus, one having intercourse with a prostitute is not liable for aiding and abetting prostitution, and a purchaser is not an accomplice to an illegal sale. See generally W. LaFave and A. Scott, Criminal Law, § 65, at 521-22 (1977). Appellant argues that here the legislature has made criminally liable only those “engaged in the business of betting or wagering” and that the other participants are not within the compass of the statute. Therefore, appellant contends, he should only have been charged with the substantive crime, not aiding and abetting. The flaw in this argument is that it assumes that the other participant is only a bettor who does nothing to assist the principal in carrying on his gambling activities. The question, as the district court recognized, is not whether a mere bettor can be prosecuted as an aider and abettor, but whether a person not “in the business of betting or wagering” can be found guilty of assisting one who is. We think it clear that he can. We have been unable to find any cases that discuss directly the propriety of an aiding and abetting prosecution in conjunction with a section 1084(a) offense. The cases we have found, however, indicate that indictment or conviction under both sections 1084(a) and 2 was not considered a problem. See United States v. Kail, 612 F.2d 443, 445 (9th Cir.1979) (defendant’s conviction under § 1084 and § 2 affirmed), cert. denied, 446 U.S. 912, 100 S.Ct. 1842, 64 L.Ed.2d 266 (1980); United States v. Anderson, 542 F.2d 428, 436 (7th" }, { "docid": "23255427", "title": "", "text": "to Give Limiting Instructions Before the Introduction of Evidence on the Scope of Brian’s Gambling Activities In Ferris’ case the court instructed the jury that tapes of telephone calls between Brian and other persons and betting slips seized at Brian’s house were limited to show only that Brian was in the business of betting and wagering. Because these limiting instructions were given, we held that such evidence was admissible. In Southard’s case there were no limiting instructions and he argues that their absence was prejudicial error. We think not. We first point out that, unlike the Ferris case, the only evidence admitted against Southard was the betting slips seized at Brian’s home. Second, there was no request for a limiting instruction, either at the time the evidence was admitted or prior to the jury charge. Before the evidence was introduced, the court gave defense counsel an opportunity to argue against its admission. At no time did defense counsel request or even suggest a limiting instruction though he had ample opportunity to do so. This was not the case of a trial judge peremptorily shutting off argument on an objection. Finally, our review of the evidence convinces us that, even if the court erred by failing to give a limiting instruction, such error was harmless beyond a reasonable doubt. The jury heard a number of telephone conversations between Southard and Brian, from which it reasonably could have found that Southard, as well as Brian, was in the business of betting or wagering. We hold for these reasons and those explicated in Ferris’ case that no reversible error was committed by allowing the betting slips in evidence. III. The Exclusion of Evidence The court excluded taped conversations between Brian and his son, Robert Baborian, offered by Southard to prove that Brian was just a bettor, not a bookmaker. The offer of proof was that Brian relied on his son’s advice “in determining what games to bet, and when his son told him what games to bet, John Brian called Jackie [Southard] and other individuals and bet those games.” This evidence was improperly" }, { "docid": "23255422", "title": "", "text": "2 does not define a crime; it imposes liability on a principal or those who aid and abet the commission of a crime. An indictment as an aider and abettor must always be accompanied by an indictment for a substantive offense. United States v. Erb, 543 F.2d 438, 446 (2d Cir.), cert.denied, 429 U.S. 981, 97 S.Ct. 493, 50 L.Ed.2d 590 (1976). But not every substantive crime is susceptible to an aiding and abetting charge. The question is whether section 1084(a) falls within one of the exceptions to the general rule that aiding and abetting goes hand-in-glove with the commission of a substantive crime. The first exception is that the victim of a crime may not be indicted as an aider or abettor even if his conduct significantly assisted in the commission of the crime. Examples are persons who pay extortion, blackmail, or ransom monies. It is obvious that section 1084(a) does not involve victims; even a compulsive gambler cannot be described as a “victim” of the bookmakers with whom he bets. The next exception embraces criminal statutes enacted to protect a certain group of persons thought to be in need of special protection. Accomplice liability will not be imposed upon the protected group absent an affirmative legislative policy to include them as aiders and abettors. For example, a woman who is transported willingly across state lines for the purpose of engaging in illicit sexual intercourse is not an accomplice to the male transporter’s Mann Act violation. Gebardi v. United States, 287 U.S. 112, 119 (1932). Appellant claims that he was a mere bettor, not one “engaged in the business of betting or wagering,” and therefore falls within the same category as the woman transported across state lines. This, of course, is primarily a question of proof. But even if we assume that defendant was only a bettor, he is not helped any. Section 1084(a) was not passed to protect bettors from their gambling proclivities. Its stated purpose was to assist the states in enforcing their own laws against gambling. H.Rep. No. 967, 87th Cong., 1st Sess., reprinted in 1961" } ]

[ { "docid": "1069423", "title": "", "text": "default? The relevant facts may be summarized as follows: On April 24, 1973, plaintiff Kormes filed his complaint, with jury trial demand, naming as defendants Miss Alexander and her former employer, Weis, Voisin & Co., Inc. The process record of the U. S. Marshall shows personal service on defendant Alexander, and service on Bernard Keller for the corporation, both dated April 26, 1973. Thereafter, on May 30, 1973, the United States District Court for the Southern District of New York, in the case of Securities and Exchange Commission v. Weis Securities, Inc., Civil Action No. 72 Civ. 2332, appointed a trustee for the liquidation of Weis, pursuant to provisions of the Securities Investor Protection Act of 1970. That order, inter alia, enjoined all persons from “commencing, prosecuting, continuing or enforcing any suit or action or proceeding of any kind” against Weis. An order of this Court, dated August 28, 1973, stayed proceedings in the instant case as to defendant Weis. Plaintiff, however, continued to press his suit against individual defendant Alexander, and applied to the Clerk for the entry of default against her on August 15, 1973. Miss Alexander did not retain counsel until sometime after November 1, 1973, and thereafter was represented at hearings held by this Court on November 16, 1973, and December 21, 1973. At the conclusion of the latter hearing, we denied her motion to set aside the entry of default, and ordered the cause to proceed to a determination of damages, pursuant to the provisions of Rule 55(b)(2). Miss Alexander thereafter moved for a jury trial on this sole remaining issue. Plaintiff has moved to strike this demand and to have the matter transferred to the nonjury calendar. Rule 55(b)(2) requires the Court in fixing damages after the entry of default to “accord a right of trial by jury to the parties when and as required by any statute of the United States.” It is conceded that no statute of the United States accords a right of trial by jury to any party in this case. Although there is no decision of the United States" } ]

[ { "docid": "16621170", "title": "", "text": "before the bench. Defendants assert they were entitled to a jury pursuant to Fed.R.Civ.P. 55(b)(2) and the Seventh Amendment of the Constitution. Following the entry of default, Fed R. Civ. P. 55(b)(2) authorizes the district court to conduct an evidentiary hearing to determine the amount of damages. The Rule does not contain an inherent jury requirement, but preserves the right to a jury “when and as required by any statute of the United States.” Defendants assert the Seventh Amendment provides the right to a jury because Plaintiffs complaint sought money damages. Defendants would have been entitled to a jury at a trial on the merits of Plaintiffs legal claims. But the set-off hearing was not a trial on the merits of these claims. Instead the district court held the hearing following its entry of default for Defendants’ willful discovery violations. See Fed.R.Civ.P. 37(b)(2). Defendants do not have a constitutional right to a jury trial following entry of default. See Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit Int’l., Inc., 982 F.2d 686, 692 (1st Cir.1993) (“Following the entry of default under Fed.R.Civ.P. 37(b)(2), a party does not have a right to a jury trial under either Fed.R.Civ.P. 55(b)(2) or the Seventh Amendment.”) (quoting Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1414 (9th Cir.1990)); Dierschke v. O’Cheskey, 975 F.2d 181, 185 (5th Cir.1992) (“in a default case neither the plaintiff nor the defendant has a constitutional right to a jury trial on the issue of damages”); Adriana Int’l Corp., 913 F.2d at 1414 (citing Henry v. Sneiders, 490 F.2d 315, 318 (9th Cir.1974)). See also Sells v. Berry, 24 FedAppx. 568, 571 (7th Cir.2001). Accordingly, the district court did not err in conducting the set-off hearing without a jury. IV. Defendants also raise two merit-based challenges to the district court’s final default judgment order. “Decisions to enter judgment by default are committed to the district court’s sound discretion, and our review is for an abuse of discretion.” Dennis Garberg & Assocs. v. Pack-Tech Int’l Corp., 115 F.3d 767, 771 (10th Cir. 1997). We will not disturb the court’s decision without" }, { "docid": "23360191", "title": "", "text": "U.S. 1018, 106 S.Ct. 1204, 89 L.Ed.2d 317 (1986); see also United States v. DiMucci, 879 F.2d 1488, 1497 (7th Cir.1989) (“As a general rule, a default judgment establishes, as a matter of law, that defendants are liable to plaintiff as to each cause of action alleged in the complaint.”); Eisler v. Stritzler, 535 F.2d 148, 153 (1st Cir.1976) (noting that “[t]he default judgment on the well-pleaded allegations in plaintiff’s complaint established ... defendant’s liability.”). Thus, the district court’s entry of default established Rodriguez’s liability for the legal fees due. III. CONCLUSION For the foregoing reasons, the challenged district court orders are affirmed. Affirmed. Double costs to appellee. . GAFAH was the original plaintiff in this case. However, plaintiff-appellee Goldman, Antonetti, Ferraiuoli & Axtmayer (\"GAFA” or \"plaintiff') was substituted for GAFAH after Hertell left the partnership in September of 1990. . Default was subsequently entered against Smith and Medfit for failure to answer the complaint. The action against George and Lorin Croce was dismissed with prejudice, pursuant to Fed.R.Civ.P. 41(a)(1), after they agreed to pay plaintiff $10,000.00 towards the legal fees due. None of these defendants is a party to this appeal. . More specifically, plaintiff claims that it agreed to render professional services on an hourly fee basis, and that its fees would be payable by Rodriguez and Smith personally “until such time as financing was obtained” for their latex glove manufacturing project. Rodriguez, on the other hand, contends to have entered into an oral fee agreement with plaintiff on behalf of Medfit Products Puerto Rico, Inc. (“MPPR”). Rodriguez also claims that the agreement set forth a contingent fee arrangement, “said contingency being the successful financing and closing of the proposed latex glove project[,]“ and denies that he is or ever was personally responsible for payment of the legal fees owed to plaintiff. . The district court later continued the December 16, 1991, trial date until January 21, 1992. . In so doing, the district court also took note of Rodriguez’s failure to prepare a pretrial order and his failure otherwise to comply with its orders. . Rodriguez also" }, { "docid": "3530727", "title": "", "text": "perceived Plaintiff as an alcoholic and perceived that alcoholism precluded him from competently performing his job. Based on this perception, Defendant regarded Plaintiff as disabled and used subsequently discovered evidence of Plaintiffs deficiencies to justify her unlawful basis for his discharge. After a subsequent hearing on damages, the court ordered a back pay award of $425,553.61, plus $16,787.86 in pre-judgment interest on the back pay. The court also awarded $250,000 in compensatory damages for Moorer’s emotional distress, plus $17,732.72 in prejudgment interest. The court cited to evidence of Moorer’s sleep deprivation, anxiety, and the fact that the reason for his termination, alleged alcoholism, became public knowledge in his small community. The court also awarded $124,260.45 in front pay because reinstatement was not an option. The court declined to award punitive damages. Separately, the court awarded Moorer’s counsel $212,060.34 in attorneys’ fees and costs. Judgment was entered on June 3, 2003, and Baptist filed its notice of appeal on June 27, 2003. Moorer filed a notice of appeal of the order granting summary judgment in favor of Baptist on his FMLA claim and the judgment in favor of Baptist on his ADEA claim. On appeal, Moorer has not raised any argument concerning his ADEA claim, so he has waived this issue on appeal. II. ADA Claim A. Standard of Review On the appeal of the bench trial of an ADA claim, we review the district court’s findings of fact for clear error. MX Group, Inc. v. City of Covington, 293 F.3d 326, 331 (6th Cir.2002) (citing Burzynski v. Cohen, 264 F.3d 611, 616 (6th Cir.2001); AM Intern., Inc. v. Int’l Forging Equip. Corp., 982 F.2d 989, 998 (6th Cir.1993); Fed. R. Civ. P. 52(a)). “ ‘This standard does not entitle a reviewing court to reverse a district court’s findings of fact because the reviewing court is convinced it would have decided the case differently.’ ” Id. (quoting Equal Employment Opportunity Comm’n v. Yenkin-Majestic Paint Corp., 112 F.3d 831, 833 (6th Cir.1996)). “[Wjhere there are two permissible ways to view the evidence, the district court’s decision to view the evidence in one" }, { "docid": "9496826", "title": "", "text": "MEMORANDUM AND ORDER FRANCIS, United States Magistrate Judge. The plaintiff in this case, Irma Rivera, sued her former employer, Baccarat, Inc. (“Baccarat”), alleging that it had terminated her from her job as a salesperson on the basis of her age and national origin. After trial, a jury rejected Ms. Rivera’s age discrimination claim but awarded her compensatory and punitive damages on the ground that she had been discharged because she is Hispanic in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. In a previous opinion, Rivera v. Baccarat, Inc., 10 F.Supp.2d 318 (S.D.N.Y.1998), I denied Baccarat’s motion for judgment as a matter of law or for a new trial, but I reduced the damage award to the statutory maximum of $50,000 as required by 42 U.S.C. § 1981a. The plaintiff now moves for an award of back pay and related benefits as well as front pay, issues that the parties had agreed would be reserved for decision by the Court. I suggested that the parties conduct an eviden-tiary hearing on these matters, but they demurred, preferring to submit a set of stipulated facts and to rely on the trial transcript. Background Ms. Rivera was terminated by Baccarat on July 29, 1995. (Stipulation dated Nov. 30, 1998 (“Stip.”) ¶ 1(a)). She then went on a previously planned vacation before beginning to search for new employment during the first week of September 1995. (Tr. 372-73; Stip. ¶ 1(b)). On October 10, 1995, she was hired as a salesperson by Bernardaud, which, like Baccarat, sells fine tableware. (Stip-¶ 1(c)). Ms. Rivera was terminated by Bernardaud on July 15, 1996. (Stip-¶ 1(c)). She then resumed her job search and was hired in the bridal registry department at Bloomingdale’s on December 10,1996. (Stip.l 1(d)). The plaintiff now seeks compensation for lost wages, vacation pay, and sick pay; for the costs she incurred in continuing her health insurance coverage; and for the employer’s contribution to a 401(k) retirement program. She also seeks an award of front pay and future benefits. Discussion A. Back Wages It" }, { "docid": "16621169", "title": "", "text": "judgment order quantifying Plaintiffs damage award following the set-off hearing. The February 4, 1998 order, which Defendants allege dismissed Plaintiffs remaining substantive claims, expressly contemplates further proceedings before the district court. Accordingly, the order did not constitute a final decision and did not divest the district court of jurisdiction to enforce the sanction. In sum, the record does not support Defendants’ argument that the district court dismissed all of Plaintiffs substantive claims. But even assuming the district court inadvertently dismissed all substantive claims after entering default, the court expressly retained jurisdiction to enforce the sanction. The district court pro ceedings were not final, and the court had jurisdiction to enforce its prior sanction. III. Defendants next assert the district court violated their constitutional right to a jury trial. The district court determined that the set-off hearing, limited to ascertaining Defendants’ compliance with court discovery orders, required resolution of equitable rather than legal issues. Accordingly, the court concluded Defendants did not have a right to a jury and ruled that the set-off hearing would be tried before the bench. Defendants assert they were entitled to a jury pursuant to Fed.R.Civ.P. 55(b)(2) and the Seventh Amendment of the Constitution. Following the entry of default, Fed R. Civ. P. 55(b)(2) authorizes the district court to conduct an evidentiary hearing to determine the amount of damages. The Rule does not contain an inherent jury requirement, but preserves the right to a jury “when and as required by any statute of the United States.” Defendants assert the Seventh Amendment provides the right to a jury because Plaintiffs complaint sought money damages. Defendants would have been entitled to a jury at a trial on the merits of Plaintiffs legal claims. But the set-off hearing was not a trial on the merits of these claims. Instead the district court held the hearing following its entry of default for Defendants’ willful discovery violations. See Fed.R.Civ.P. 37(b)(2). Defendants do not have a constitutional right to a jury trial following entry of default. See Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit Int’l., Inc., 982 F.2d 686, 692 (1st Cir.1993)" }, { "docid": "23360197", "title": "", "text": "that defendant’s motion was not actually received and filed by the district court until November 15, 1991, at 3:14 p.m., after the scheduled 2:30 p.m. conference had already taken place. Rodriguez also claims that at the same time he transmitted his motion, he notified the court that he would not be attending the conference scheduled for the following day. However, even were we to credit this assertion, it would not provide us with a sufficient basis for determining that the district court’s actions were an abuse of discretion. . Rodriguez also objects to the holding of a bench trial despite the fact that he had properly requested a jury trial in his answer. However, “after a default judgment has been entered under Fed.R.Civ.P. 37(b)(2), a party has no right to jury trial under either Fed.R.Civ.P. 55(b)(2), ... or the Seventh Amendment.” Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1414 (9th Cir. 1990), cert. denied, — U.S. —, 111 S.Ct. 1019, 112 L.Ed.2d 1100 (1991); see also Eisler v. Stritzler, 535 F.2d 148, 153 (1st Cir.1976) (holding that after entry of a default judgment, a hearing, but not a jury trial, is required to assess damages). . Our refusal to apply the notice requirement of Rule 55(b)(2) to this case can hardly be viewed as unfair to Rodriguez. Clearly, the purpose of Rule 55(b)(2) is to make certain that a defaulted party is on notice of the possibility that a default judgment might be entered against him/her. Here, Rodriguez admitted in an affidavit to his awareness \"that the court had positioned itself to hold [Rodriguez] liable by default or otherwise’’ at the time he failed to appear for trial. Thus, the situation against which Rule 55(b)(2) guards was not present in this instance. . We award double costs in response to appellee's well-grounded request for sanctions under Fed.R.App.P. 38." }, { "docid": "14373113", "title": "", "text": "the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of 52 week United States Treasury bills settled immediately prior to the date of judgment.” That rate currently is 7.83%, and we will use this rate to calculate the plaintiffs’ total awards for back pay, including prejudgment interest compounded per annum. Reeder-Baker, 649 F.Supp. at 662. Accordingly, Weiss’s total award for back pay is $61,644.91, and Engel’s total award for back pay is $30,385.50. In addition, the plaintiffs also seek an award for front pay from the date of the entry of judgment. Front pay may be awarded as an equitable remedy in lieu of reinstatement when plaintiff’s return to the work place would cause disharmony and acrimony. Goss v. Exxon Office Systems Co., 747 F.2d 885, 890 (3d Cir.1984). However, front pay may only be awarded for a reasonable period required for the victim to reestablish his rightful place in the job market. Green v. USX Corp., 843 F.2d at 1531; Maxfield v. Sinclair Int'l, 766 F.2d 788, 795 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). Neither plaintiff seeks reinstatement of his old job with the defendant. The evidence clearly shows that both Weiss and Engel have been employed since their terminations by Parker Hannifan. Based on the evidence, we conclude that each of them has obtained a position in the job market roughly equal to where they would be if they had stayed with Parker Hannifan. Accordingly, we will not order an award of front pay for either Weiss or Engel. Finally, the plaintiffs each seek an award of punitive damages equal to one percent of Parker Hannifan’s net sales profit for 1985, the year of the discriminatory acts involved. The plaintiffs base their claims for punitive damages on the NJLAD, not Title VII. See DeGrace v. Rumsfeld, 614 F.2d 796, 808 (1st Cir.1980) (punitive damages not authorized under Title VII); Richerson v. Jones, 551 F.2d 918, 926 (3d Cir.1977) (same); Jackson v. Consolidated Rail Corp., 223 N.J.Super." }, { "docid": "8999995", "title": "", "text": "as an equitable remedy incidental to the injunction”); see generally Jaspan v. Glover Bottled Gas Corp., 80 F.3d 38 (2d Cir.1996) (while not expressing a view as to whether an award of 50% of contributions or other liquidated damages comes within ERISA’s provision for other equitable relief, the Court cited eases authorizing back pay as a form of restitution). Finally, although not dispositive on the issue, the conclusion that back pay is a remedy typically viewed as equitable finds support in a number of pre-Mertens cases. Pickering, 1995 WL 584372 at *35; see, e.g., Bowen v. Massachusetts, 487 U.S. 879, 893, 108 S.Ct. 2722, 2732, 101 L.Ed.2d 749 (1988) (declaring that equitable action for specific relief may include order providing for reinstatement of employee with back pay); Fleming v. Ayers & Associates, 948 F.2d 993, 998 (6th Cir. 1991); Kross v. Western Electric Co. Inc., 701 F.2d 1238, 1244 n. 7 (7th Cir.1983). Therefore, because the lost wages sought would restore plaintiff to the financial position he would have been in had he not been illegally discharged, and because they also are intertwined with the injunctive relief of reinstatement sought by plaintiff, the damages are properly recoverable as equitable relief under ERISA § 502(a)(3). CONCLUSION In accordance with the foregoing, defendant’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted is DENIED. Additionally, defendant’s motion to strike plaintiffs demand for lost wages from the date of termination to the date of entry of judgment is DENIED. SO ORDERED: . These facts are construed in the light most favorable to plaintiff, as is required on a motion to dismiss. . Notably, if Terry had characterized the back pay in Mitchell as equitable solely because it was within the power of a court sitting in equity to award, and had not also characterized it as restitutionary, Mertens would preclude a determination- that back pay is equitable in nature and • available under ERISA § 502(a)(3). Schwartz, 45 F.3d at 1022 n. 4." }, { "docid": "14792376", "title": "", "text": "phase of the bifurcated trial and again during the damages phase, defendant sought to introduce evidence that availability assurance (“AA”) engineers had been laid off soon after plaintiffs were laid off. N.T. Day 2:114-118 (liability); Day 8:151-157 (damages). Both times, I sustained plaintiffs’ objection on the ground that what happened to the AA engineers was irrelevant. That remains my view with respect to the liability phase of the trial. I now conclude, however, that I should have permitted defendant to introduce its evidence during the damages phase of the trial. The AA engineers were, as a group, younger than plaintiffs, who were called negotiation engineers. The duties of AA engineers were, according to plaintiffs’ testimony, similar to those which plaintiffs performed. Plaintiffs' theory of liability was that defendant could have laid off the younger AA engineers and allowed plaintiffs to perform their duties. Defendant chose to retain the AA engineers because the negotiation engineers were older, plaintiffs claimed. That defendant later laid off the AA engineers was irrelevant to the liability issue. Plaintiffs admitted that defendant’s business had declined generally, requiring layoffs. Plaintiffs’ contention was that the negotiation engineers were laid off sooner than others because plaintiffs were older. Defendant never offered evidence that AA engineers were laid off before or simultaneously with the negotiation engineers. Evidence that defendant laid off AA engineers after plaintiffs were laid off was relevant, however, to damages. If plaintiffs would have been laid off for permissible reasons sometime after December 1982, then plaintiffs’ damages should have been limited accordingly. Any subsequent loss of pay simply was not caused by defendant’s discrimination. Helbling v. Unclaimed Salvage & Freight Co., Inc., 489 F.Supp. 956, 963 (E.D.Pa.1980) (back pay cut off at the time when the store in which plaintiff had worked as manager, was closed); Welch v. University of Texas, 659 F.2d 531, 535 (5th Cir.1981) (back pay cut off at time when the grant which had funded plaintiff's position ended); cf. Dillon v. Coles, 746 F.2d 998, 1006 (3d Cir.1984) (suggesting front pay should be of limited duration when plaintiff probably would have been fired" }, { "docid": "21035120", "title": "", "text": "be computed de novo. The district court may factor into its award an increase for delay in payment. Remanded for further proceedings consistent herewith. Each party shall bear its own costs on appeal. . Fed.R.Civ.P. 59(e) states: “A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.” . The letter referred to in the order was from defense counsel to plaintiffs’ counsel dated January 18, 1990. It stated in pertinent part: C. Compensatory damages awarded in the April 14, 1989 judgment. The sum of $307,239.31 as compensatory damages is correct. Likewise the T-Bill interest rate of 9.51% to compute pre and post judgment interest. .“The general rule is that a judgment becomes final and appealable when the court enters a decision resolving the contested matter, leaving nothing to be done except execution of the judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978); Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945).” United States v. Metropolitan Dist. Comm’n, 847 F.2d 12, 14 (1st Cir.1988). . After the first trial, the jury awarded compensatory and punitive damages to the individual plaintiffs. The district court then ordered that the plaintiffs be reinstated to their positions with back pay. We found that the award of back pay was erroneous for two reasons: One, the jury should have been instructed that back pay was a factor to be taken into consideration in determining compensatory damages. Two, because the jury was not instructed to disregard the extensive evidence of the plaintiffs’ salaries and pay scales which had been admitted at trial, it may well have used this evidence in computing compensatory damages, resulting in duplicative damages. ... This omission was compounded by an instruction ... that, in considering compensatory damages, the jury was not limited to those items of damages enumerated by the court but that it should consider \"all matters in evidence.\" The jury, therefore, could have construed this as a command to consider the evidence of" }, { "docid": "13231801", "title": "", "text": "de P.R., 900 F.2d 4, 7 (1st Cir.1990). Here, moreover, the plaintiffs were twice explicitly warned that if they neglected to comply by a specified date, their case would be dismissed. The plaintiffs turned a deaf ear to those warnings. They did so at their peril and they cannot now be heard to say that they were somehow blindsided because the district court said what it meant and meant what it said. At any rate, the plaintiffs’ entreaty that they had good reasons for missing the court-imposed deadlines is unpersuasive. They claim that Mulero was too tired after her emotionally draining deposition to provide responses and that their attorney was too busy to help. Neither claim offers them much shelter. Mulero’s deposition was taken on February 28 and the plaintiffs have not explained how that could have affected Mulero’s ability to comply in January (when the responses were originally due). Nor have they explained (say, by proffering a physician’s report) how Mulero’s alleged incapacity could have lasted for two full weeks after the deposition (when the final deadline expired). Finally, they have not explained why they missed the last deadline — a deadline that they had pronounced themselves able to meet. The demands of the attorney’s other clients do not improve the picture. It is settled beyond hope of contradiction that “[t]he fact that an attorney has other fish to fry is not an acceptable reason for disregarding a court order.” Chamorro v. Puerto Rican Cars, Inc., 304 F.3d 1, 5 (1st Cir.2002). The plaintiffs fall back on the hoary principle that “[dismissal with prejudice is a harsh sanction which runs counter to our strong policy favoring the disposition of cases on the merits.” Figueroa Ruiz v. Alegria, 896 F.2d 645, 647 (1st Cir.1990) (citations and internal quotation marks omitted). But even though the sanction of dismissal is reserved for a limited number of cases, it must be available so the trial courts may punish and deter egregious misconduct. See Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell, a P’ship v. Medfit Int’l, Inc., 982 F.2d 686, 692 (1st Cir.1993). “[Disobedience of" }, { "docid": "23360196", "title": "", "text": "or party’s attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party’s attorney is substantially unprepared to participate in the conference, or if a party or party's attorney fails to participate in good faith, the judge, upon motion or the judge’s own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D).... The orders provided for in Fed.R.Civ.P. 37(b)(2) include orders “striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.” Fed.R.Civ.P. 37(b)(2)(C) (emphasis added). . We do note that on November 14, 1991, at 3:22 p.m., Rodriguez attempted, via telecopier, to file with the district court a motion for an extension of time in which to compromise the controversy. However, the record indicates that defendant’s motion was not actually received and filed by the district court until November 15, 1991, at 3:14 p.m., after the scheduled 2:30 p.m. conference had already taken place. Rodriguez also claims that at the same time he transmitted his motion, he notified the court that he would not be attending the conference scheduled for the following day. However, even were we to credit this assertion, it would not provide us with a sufficient basis for determining that the district court’s actions were an abuse of discretion. . Rodriguez also objects to the holding of a bench trial despite the fact that he had properly requested a jury trial in his answer. However, “after a default judgment has been entered under Fed.R.Civ.P. 37(b)(2), a party has no right to jury trial under either Fed.R.Civ.P. 55(b)(2), ... or the Seventh Amendment.” Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1414 (9th Cir. 1990), cert. denied, — U.S. —, 111 S.Ct. 1019, 112 L.Ed.2d 1100 (1991); see also Eisler v. Stritzler, 535 F.2d 148, 153 (1st" }, { "docid": "14792377", "title": "", "text": "defendant’s business had declined generally, requiring layoffs. Plaintiffs’ contention was that the negotiation engineers were laid off sooner than others because plaintiffs were older. Defendant never offered evidence that AA engineers were laid off before or simultaneously with the negotiation engineers. Evidence that defendant laid off AA engineers after plaintiffs were laid off was relevant, however, to damages. If plaintiffs would have been laid off for permissible reasons sometime after December 1982, then plaintiffs’ damages should have been limited accordingly. Any subsequent loss of pay simply was not caused by defendant’s discrimination. Helbling v. Unclaimed Salvage & Freight Co., Inc., 489 F.Supp. 956, 963 (E.D.Pa.1980) (back pay cut off at the time when the store in which plaintiff had worked as manager, was closed); Welch v. University of Texas, 659 F.2d 531, 535 (5th Cir.1981) (back pay cut off at time when the grant which had funded plaintiff's position ended); cf. Dillon v. Coles, 746 F.2d 998, 1006 (3d Cir.1984) (suggesting front pay should be of limited duration when plaintiff probably would have been fired for permissible reasons). The remaining question is whether this erroneous exclusion of evidence warrants a new trial as to damages. In McQueeney v. Wilmington Trust, the Third Circuit held that a new trial was necessary where the erroneously excluded evidence “might have persuaded the jury to award significantly less damages in lost earnings than it in fact did.” 779 F.2d at 930. I am persuaded that a similar situation exists here. Therefore, a new trial is required. IV. Conclusion For the reasons I have stated, I will grant defendant’s motion for a new trial. . Indeed, the declaration could not have been offered for its truth since the question of the legality of the layoffs is a legal one, not a factual one. . The attorneys for both parties probably added to the jury’s confusion. In a question put later to Kinlin, defendant’s attorney described Parzick’s testimony as follows: \"Mr. Parzick testified that you told him that you were at an executive meeting and someone said that maybe we shouldn't be eliminating the negotiation engineers," }, { "docid": "9539920", "title": "", "text": "to force an employee to resign. See Muller v. United States Steel Corp., 509 F.2d 923 (10th Cir. 1975). Whatley was terminated-fired-on September 17, 1971 as lobby manager. The testimony of Arnold Ford, the Skaggs employee who terminated Whatley, establishes this. The only reason Whatley continued in Skaggs’ employ was his request for some sort of job in the Skaggs organization. He was merely making a diligent attempt to mitigate his damages by seeking reemployment in a lesser capacity. In these circumstances, Whatley’s tenure in the Skaggs warehouse has the same legal effect as if he had perma nently left Skaggs’ employ on September 17, 1971, and had found employment elsewhere, later that same day. Whatley is entitled to reasonable attorney’s fees as a prevailing party in a civil action to enforce the provisions of Title VII. See 42 U.S.C. § 2000e-5(k). He is also entitled to reasonable attorney’s fees as the prevailing party in a civil action to enforce the provisions of Section 1981. See 42 U.S.C. § 1988. He is not, however, entitled to a double recovery of attorney’s fees. As the prevailing party, Whatley is also entitled to recover his costs. Accordingly, it is ORDERED that the Clerk enter judgment for the plaintiff on his claims under Title VII, 42 U.S.C. § 2000e-5, and the Civil Rights Act of 1870, 42 U.S.C. § 1981. The plaintiff must file his claim for attorney’s fees within twenty days from the entry of this Order. The defendant may file its objections within ten days after this claim is filed. A hearing will be set upon request of counsel. FURTHER ORDERED that the parties confer within twenty days following the date of this Order in an attempt to reach an agreement on the proper amount of the back pay award. If no agreement can be reached, the Court will consider appropriate motions as soon as they can be heard on a short notice, priority basis. The Clerk shall withhold entry of final judgment until after the awards of attorney’s fees and back pay are determined. . Whatley is a native-born American" }, { "docid": "16621171", "title": "", "text": "(“Following the entry of default under Fed.R.Civ.P. 37(b)(2), a party does not have a right to a jury trial under either Fed.R.Civ.P. 55(b)(2) or the Seventh Amendment.”) (quoting Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1414 (9th Cir.1990)); Dierschke v. O’Cheskey, 975 F.2d 181, 185 (5th Cir.1992) (“in a default case neither the plaintiff nor the defendant has a constitutional right to a jury trial on the issue of damages”); Adriana Int’l Corp., 913 F.2d at 1414 (citing Henry v. Sneiders, 490 F.2d 315, 318 (9th Cir.1974)). See also Sells v. Berry, 24 FedAppx. 568, 571 (7th Cir.2001). Accordingly, the district court did not err in conducting the set-off hearing without a jury. IV. Defendants also raise two merit-based challenges to the district court’s final default judgment order. “Decisions to enter judgment by default are committed to the district court’s sound discretion, and our review is for an abuse of discretion.” Dennis Garberg & Assocs. v. Pack-Tech Int’l Corp., 115 F.3d 767, 771 (10th Cir. 1997). We will not disturb the court’s decision without a clear showing that the decision was based on a clearly erroneous factual finding or that it manifests a clear error of judgment. See Cartier v. Jackson, 59 F.3d 1046, 1048 (10th Cir.1995). First, Defendants assert that the evidence introduced at the set-off hearing does not support the court’s final judgment. The court’s February 8, 1990 order entering default stated that Plaintiff was entitled to reimbursement of the $1.9 million he invested in the partnership interests, but that the damage award would be reduced to the extent Defendants could establish “to the satisfaction of the fact finder that any portion of Plaintiffs contribution was utilized for legitimate business purposes.” The court later clarified that evidence in support of any claimed off-set was limited to “direct proof’ in the form of an accounting directly tracing Defendants’ use of Plaintiffs funds. Defendants failed to introduce any evidence in the form required. Nonetheless, Defendants claim the evidence introduced at the set-off hearing established that Plaintiffs entire contribution was utilized for legitimate business purposes under the terms of the" }, { "docid": "19023273", "title": "", "text": "caselaw support this reading of Rule 55(b)(2). See 10 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2688 (1983); 5 James W. Moore, et al., Moore’s Federal Practice ¶ 38.19[3] (1992) (“The only statute according a right of jury trial in a default case is 28 U.S.C. § 1874,....”). See also Shepherd v. American Broadcasting Cos., Inc., 862 F.Supp. 486, 491 n. 4 (D.D.C.1994), vacated on other grounds, 62 F.3d 1469 (D.C.Cir. 1995) (“The parties are clearly not entitled to a jury trial on the damages question. The sole federal statute that entitles defaulted parties to a jury damages trial is 28 U.S.C. § 1874____”) (citing Wright, Miller & Kane); Gill v. Stolow, 18 F.R.D. 508, 510 (S.D.N.Y.1955), rev’d on other grounds, 240 F.2d 669 (2nd Cir.1957). The plaintiff claims in the alternative that she has a constitutional right to a jury trial under the Seventh Amendment. Case-law dating back to the eighteenth century, however, makes clear that the constitutional right to jury trial does not survive the entry of default. See Raymond v. Danbury & Norwalk Railroad Co., 20 F.Cas. 332, 333 (C.C.D.Conn.1877) (“the assessment of damages by a jury, upon a default, is [sic] matter of practice not of right”) (citing Brown v. Van Bramm, 3 Dall. [U.S.] 344, 355, 1 L.Ed. 629 (1797) (assessment of damages after a default by the court, instead of a jury, under the practice and laws of the state, was correct; with Chase, J., concurring upon common law principles)). See also Johnson v. Bridgeport Deoxidized Bronze & Metal Co., 125 F. 631, 631 (C.C.D.Conn.1903); Henry v. Sneiders, 490 F.2d 315, 318 (9th Cir.1974), cert. denied, 419 U.S. 832, 95 S.Ct. 55, 42 L.Ed.2d 57 (1974), cited in Eisler v. Stritzler, 535 F.2d 148, 153 (1st Cir.1976); In re Dierschke, 975 F.2d 181, 185 (5th Cir.1992); Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1414 (9th Cir.1990), cert. denied, 498 U.S. 1109, 111 S.Ct. 1019, 112 L.Ed.2d 1100 (1991); Hutton v. Fisher, 359 F.2d 913, 919 (3d Cir.1965); Gill v. Stolow, 18 F.R.D. 508, 510 (S.D.N.Y.1955)," }, { "docid": "23424398", "title": "", "text": "the plaintiffs’ Title VII claims against the individual defendants named in the suit. The defendants asserted that the court lacked jurisdiction to hear the matter because the plaintiffs faded to include the named defendants in the charges they had filed with the MHRC and EEOC. The court denied the motion, holding that Title VII’s charging requirements were nonjurisdictional. The court found that the defendants waived their right to raise the charging issue by their default. The district court held a hearing without a jury to determine damages, and awarded $13,094.84 to McKinnon, and $13,189.45 to Poulin, plus attorneys’ fees. The award included 135 weeks of back pay (adjusted for mitigation) and $2,500 per plaintiff in compensatory damages. The court declined to award front pay, punitive damages, or prejudgment interest. II. The defendants claim that the district court erred in denying their motion to lift default judgment and file late answer. We must review the court’s denial of the motion for an abuse of discretion. See The General Contracting & Trading Co. v. Interpole, 899 F.2d 109, 112 (1st Cir.1990) (motions to set aside default judgments are left to “the sound discretion of the district court”). This court may not reverse unless the district court’s decision is clearly wrong. Id. at 112. Fed.R.Civ.P. 55(c) provides: (c) Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b). The parties in the instant case offer differing accounts of the events leading up to the default judgment. The plaintiffs filed their amended complaint in July 1994. They contend that the defendants ignored the first due date for their answer, requested and were granted a thirty day extension, and then ignored the second due date. The plaintiffs further contend that the defendants ignored the court’s rejection of their request for a second extension; ignored the plaintiffs’ motion for default judgment; ignored the entry of default judgment; and waited until November 25,1994 to file a motion to lift the default judgment." }, { "docid": "23155443", "title": "", "text": "termination. If Miller would have been entitled to the identical pension benefit (adjusted to present value) had he retired normally, no deduction is appropriate. G. Finally, Miller makes a series of objections to the front pay award which deserve only brief mention. First, he argues that the front pay award should have been doubled. However, ADEA’s liquidated damages provision provides that only “amounts owing” as a result of a willful violation may be doubled. 29 U.S.C. § 626(b). Since front pay is a prospective remedy, an award of front pay damages is not an “amount owing” for purposes of section 626(b). Dominic v. Consolidated Edison Co., 822 F.2d 1249, 1258-59 (2d Cir.1987); Bhaya v. Westinghouse Elec. Corp., 624 F.Supp. 921, 924 (E.D.Pa.1985). Miller contends, in the alternative, that if the front pay award is not doubled, prejudgment interest should be granted. However, this court has held that prejudgment interest is not an appropriate remedy where the plaintiff has been awarded liquidated damages, since both remedies seek to compensate a wrongfully discharged plaintiff for those nonpecuniary losses which cannot be calculated accurately. EEOC v. O’Grady, 857 F.2d at 391 n. 13; Coston v. Plitt Theatres, 831 F.2d at 1335-37; Kossman v. Calumet County, 800 F.2d 697, 702-03 (7th Cir.1986), cert. denied, 479 U.S. 1088, 107 S.Ct. 1294, 94 L.Ed.2d 151 (1987). As a final matter, Miller asks this court to set the dates from which post-judgment interest should run on the awards both of back and of front pay. Miller moved the district court under Fed.R.Civ.P. 60(a) and (b) to enter an order specifying these dates after the present appeal had been taken. The district court refused relief, finding that leave of the court of appeals was required in order to amend a judgment after the docketing of an appeal. Mem. op. at 2 (E.D.Wis. Mar. 4, 1988). The district court also noted, with respect to Miller’s request for post-judgment interest on the back-pay award, that it was the court of appeals that ordered the original trial verdict reinstated. Therefore, under Fed.R. App.P. 37, this court should have instructed the district" }, { "docid": "19023274", "title": "", "text": "entry of default. See Raymond v. Danbury & Norwalk Railroad Co., 20 F.Cas. 332, 333 (C.C.D.Conn.1877) (“the assessment of damages by a jury, upon a default, is [sic] matter of practice not of right”) (citing Brown v. Van Bramm, 3 Dall. [U.S.] 344, 355, 1 L.Ed. 629 (1797) (assessment of damages after a default by the court, instead of a jury, under the practice and laws of the state, was correct; with Chase, J., concurring upon common law principles)). See also Johnson v. Bridgeport Deoxidized Bronze & Metal Co., 125 F. 631, 631 (C.C.D.Conn.1903); Henry v. Sneiders, 490 F.2d 315, 318 (9th Cir.1974), cert. denied, 419 U.S. 832, 95 S.Ct. 55, 42 L.Ed.2d 57 (1974), cited in Eisler v. Stritzler, 535 F.2d 148, 153 (1st Cir.1976); In re Dierschke, 975 F.2d 181, 185 (5th Cir.1992); Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1414 (9th Cir.1990), cert. denied, 498 U.S. 1109, 111 S.Ct. 1019, 112 L.Ed.2d 1100 (1991); Hutton v. Fisher, 359 F.2d 913, 919 (3d Cir.1965); Gill v. Stolow, 18 F.R.D. 508, 510 (S.D.N.Y.1955), rev’d on other grounds, 240 F.2d 669 (2d Cir.1957); Barber v. Turberville, 218 F.2d 34, 37 (D.C.Cir.1954); Frankart Distributors, Inc. v. Levitz, 796 F.Supp. 75, 76 (E.D.N.Y.1992); Kormes v. Weis, Voisin & Co., Inc., 61 F.R.D. 608, 610 & n. 3 (E.D.Pa.1074). Once again, the most authoritative treatises stand in accord. 5 Moore, et al., ¶ 38.19[3]; 10 Wright, Miller & Kane § 2688 at n. 24 (citing Henry, 490 F.2d 315). Finally, nothing on this record warrants exercise\" of the court’s discretion to provide a post-default jury trial on damages. The plaintiff is entitled, however, to a court hearing on damages. Such a hearing shall be scheduled before the magistrate judge after the plaintiff is satisfied that the requirements for notice to the defendants have been met under Fed.R.Civ.P. 55(b)(2). So Ordered. . A typographical punctuation error in the second sentence of the Note to Subdivision (b) in certain editions of the Federal Rules may lead the reader to assume that the state laws cited therein are to be counted among the statutes \"similar”" }, { "docid": "3532609", "title": "", "text": "be to violate the rule of Dairy Queen, Inc. v. Wood, 369 U.S. at 470, 82 S.Ct. 894, as just mentioned. As to the second and third phases of the Ross test, we believe that a monetary award for back wages is a traditional legal remedy and that the computation of such an award would not be beyond the practical capabilities of a jury. Cleverly v. Western Electric Co., 69 F.R.D. at 351. Consequently, all of the prerequisites to a trial by jury under the Age Act are satisfied. Hence we hold the jury demand should not have been denied. That order is now vacated and the claim for back pay is remanded for trial by a jury. Vacated and remanded. . Plaintiff at the age of 48 years was discharged on January 31, 1975; she alleges it was pursuant to a policy of employing younger persons. Lorillard is a foreign corporation doing business in North Carolina. . On October 18, 1976 Pons moved this court to allow amendment of her complaint to include a prayer for punitive damages. . This appeal involves only the right to a jury trial on the claim of lost wages. The District Judge’s opinion notes that the plaintiff “conceded that the liquidated damages issue would not be triable to a jury”. Nor are costs, attorney’s fees nor, as explained infra, punitive damages before the court. Of course no injunctive relief is now considered. . The question has been discussed and resolved in favor of trial by a jury: Chilton v. National Cash Register Co., 370 F.Supp. 660 (S.D.Ohio 1974); Cleverly v. Western Electric Co., 69 F.R.D. 348 (W.D.Mo.1975), and Murphy v. American Motors Sales Corp., 410 F.Supp. 1403 (N.D.Ga.1976). A list of cases implicitly settling the point is to be found in Murphy v. American Motors Sales Corp., supra, at 1402. . See Curtis v. Loether, 415 U.S. at 196-97 n. 13, 94 S.Ct. 1005, citing Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (5 Cir. 1969); Robinson v. Lorillard Corp., 444 F.2d 791, 802 (4 Cir.), cert. dismissed under Rule 60," } ]

[ { "docid": "22727524", "title": "", "text": "they were wrongfully discharged from their jobs. The District Court granted summary judgment for respondents, finding that the issues had been finally decided as to respondent Anchor Motor by the arbitration committee and that petitioners had failed “to show facts comprising bad faith, arbitrariness or perfunctoriness on the part of the Unions.” The Court of Appeals reversed the summary judgment as to the local Union, holding that the issue of bad faith should not have been summarily decided. However, as to respondent Anchor Motor the Court of Appeals affirmed, holding that where, as here, the collective-bargaining agreement provided that arbitra tion would be final and binding, the decision of the arbitrator would not be upset, “absent a showing of fraud, misrepresentation, bad faith, dishonesty of purpose, or such gross mistake or inaction as to imply bad faith on the part of the Union or the employer.” 506 F. 2d 1153, 1157 (1974). This Court, assuming arguendo that the Union breached its duty of fair representation for the reasons set forth in the opinion, reverses as to Anchor Motor, holding that the Union’s breach of its duty to its members voided an otherwise valid arbitration decision in favor of the company. I find this result to be anomalous and contrary to the longstanding policy of this Court favoring the finality of arbitration awards. In Vaca v. Sipes, 386 U. S. 171 (1967), this Court held that, where the union has prevented the employee from taking his grievance to arbitration, as provided in the collective-bargaining agreement, he may then turn to the courts for relief. This decision bolstered the consistent policy of this Court of encouraging the parties to settle their differences according to the terms of their collective-bargaining agreement. Steelworkers v. American Mfg. Co., 363 U. S. 564, 566 (1960). By subjecting the employer to a damages suit due to the union’s failure to utilize the arbitration process on behalf of the employees, the Vaca decision put pressure on both employers and unions to make full use of the contractual provisions for settling disputes by arbitration. The decision in this case" } ]

[ { "docid": "15655890", "title": "", "text": "of fair representation to the employees, and granted the international’s motion for summary judgment. We reverse that portion of the district court’s holding. In return for the broad authority granted a union as the members’ exclusive collective bargaining agent, the union must “serve the interests of all members without hostility or discrimination toward any, . exercise its discretion with complete good faith and honesty, and . . . avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967) (citing Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 367, 11 L.Ed.2d 370 (1964)). The union’s duty is violated “only when [its] conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. at 190, 87 S.Ct. at 916. See also Freeman v. O’Neal Steel, Inc., 609 F.2d 1123, 1125 (5th Cir. 1980); Cox v. C. H. Masland & Sons, Inc., 607 F.2d 138, 142 (5th Cir. 1979). After concluding that the local had breached its duty of fair representation to plaintiffs (a finding the local has not appealed), the district court considered the international’s liability: Although defendant International would appear to be equally at fault — having exceeded its own authority in ordering the signing of the contract — plaintiff has not asserted and the Court is unable to find any federally cognizable cause of action. Not being an exclusive bargaining agent, the International owes no duty of fair representation. . (citations omitted). Even though the international was not the employees’ exclusive bargaining agent, the question is whether the international nevertheless owed a duty to the local’s membership not to cause the local to breach its duty of fair representation. With respect to the local, the district court noted, “The facts of this ease present a paradigm breach of this duty” of fair representation. While the international was not formally designated the employees’ bargaining agent, the international president’s directive had the effect of supplanting the authority vested in the local’s business manager to assent to agreements on the membership’s behalf. In" }, { "docid": "15655889", "title": "", "text": "the local breached its duty of fair representation under these facts. We affirm the award of nominal damages and costs against the local. The district court also held that plaintiffs were not entitled to punitive damages under the local’s breach of its duty of fair representation. After the district court rendered its decision, but before oral argument in this case, the Supreme Court held improper an award of punitive damages for a union’s breach of duty of fair representation in processing an employee’s grievance. IBEW v. Foust, 442 U.S. 42, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979). Although Foust involved a claim under the Railway Labor Act, the decision is equally applicable to a case like the present one arising under the National Labor Relations Act. See 442 U.S. at 46 n.8, 99 S.Ct. at 2125 n.8; Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953). Accordingly, the district court’s denial of punitive damages is affirmed. Fair Representation: International The district court held that the international owed no duty of fair representation to the employees, and granted the international’s motion for summary judgment. We reverse that portion of the district court’s holding. In return for the broad authority granted a union as the members’ exclusive collective bargaining agent, the union must “serve the interests of all members without hostility or discrimination toward any, . exercise its discretion with complete good faith and honesty, and . . . avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967) (citing Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 367, 11 L.Ed.2d 370 (1964)). The union’s duty is violated “only when [its] conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. at 190, 87 S.Ct. at 916. See also Freeman v. O’Neal Steel, Inc., 609 F.2d 1123, 1125 (5th Cir. 1980); Cox v. C. H. Masland & Sons, Inc., 607 F.2d 138, 142 (5th Cir. 1979). After concluding that the local had breached its duty" }, { "docid": "11676745", "title": "", "text": "(u) Throughout the pendency of plaintiff’s grievance, both before the grievance was dropped and after, plaintiff never supplied Daigle with the names of witnesses or any other evidence which might have substantiated plaintiff’s contention that his suspension and discharge were unjust (Plaintiff’s Deposition, p. 37, p. 22 to p. 38, 1. 1, p. 144,1. 6-9, p. 162,1. 14-16, o. 197, 1. 10-17). (v) Although plaintiff had previously considered seeking the position of union steward he never discussed this possibility with Daigle (Plaintiff’s Deposition, p. 117,1. 8-16; Daigle Deposition, p. 39, 1. 3-5). Plaintiff did not know when the union steward’s term expired (Plaintiff’s Deposition, p. 117, 1. 17-18). The crux of plaintiff’s claim of unfair representation is that the Union abandoned his grievance prior to the resolution of the criminal charges which served as the basis of his termination. Plaintiff also complains the Union failed to fully investigate whether or not he was at fault in the December 7th accident. Plaintiff’s claims that he had not violated company rules and regulations or that extenuating circumstances justified his violation(s), are immaterial to the issue of whether the Union breached its duty of fair representation. The duty of fair representation does not require unions to pursue grievance procedures in every case where an employee has a complaint against the employer. Seymour v. Olin Corp., 666 F.2d 202, 208 (5th Cir. 1982). It is well settled that the duty of fair representation “does not confer an absolute right on an employee to have his complaint carried through all stages of the grievance procedure.” Turner v. Air Transport Dispatchers’ Association, 468 F.2d at 299; Vaca v. Sipes, 386 U.S. at 191, 87 S.Ct. at 917. Unions have considerable discretion in dealing with grievance matters, provided the treatment of an employee’s complaint is neither arbitrary, discrimi natory, or in bad faith. Vaca v. Sipes, 386 U.S. at 191, 87 S.Ct. at 917. A union may not discharge its representation duties in a perfunctory manner. Vaca v. Sipes; Hart v. National Homes Corp., 668 F.2d 791, 794 (5th Cir. 1982). Subject to the duty of fair" }, { "docid": "784254", "title": "", "text": "motion. Extensive briefs and supporting affidavits and exhibits were received from both parties and oral argument was heard by the court on May 22, 1979. After careful consideration of the issues presented by defendant’s motion, the court has determined that the motion will be granted with respect to both counts of the complaint. (I) Count 1 — 29 U.S.C. § 185 We begin with the rule that summary judgment can be granted only where there is no genuine issue as to any material fact. Further, all inferences and doubts must be resolved against the moving party. Ely v. Hall’s Motor Transit Co., 590 F.2d 62 (3rd Cir. 1978). Ordinarily, where a collective bargaining agreement provides for the arbitration of grievances, the arbitrator’s decision is final and binding on the parties and not subject to review by the courts. Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964). In cases in which the union breaches its duty of fair representation in handling the employee’s grievance, however, this finality rule is inapplicable. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). The Supreme' Court in Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976), held that a plaintiff must prove (1) “an erroneous discharge” and (2) “the Union’s breach of duty [of fair representation]” which (3) “taintfs] the decision of the [arbitrator],” Id, at 572, 96 S.Ct. at 1060, in order to come within this exception to the finality rule. Thus, in order to prove his § 301 claim, plaintiff must establish that defendant breached the collective bargaining agreement by discharging him, that the union breached its duty of fair representation in its conduct of the arbitration, and that this breach by the union contributed to the arbitrator’s erroneous decision. (A) Propriety of Plaintiff’s Discharge The collective bargaining agreement in effect at the time of plaintiff’s discharge provides: ARTICLE VII Section 8. . (c) In the event of any violation of the provisions of subparagraph (b) above [forbidding work stoppages], the Union shall make immediate, sincere and" }, { "docid": "7313027", "title": "", "text": "and private employer involves no state or federal action, therefore neither the Fourteenth or Fifth Amendments would be applicable. See, e. g., United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966); and Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). “[TJhere is no requirement of formal procedures. The fiduciary principle precludes arbitrary conduct, but it must not be stretched so as to ‘judicialize’ the conduct of the affairs of the Union, and to cut athwart a common sense and practical approach toward resolution of problems and disputes that is fair in its essence without being rigid in its procedures.” Waiters Union, Local 781 v. Hotel Ass’n, 498 F.2d 998, 1000 (D.C.Cir. 1974). “[A] breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967) . “A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.” Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 686, 97 L.Ed. 1048 (1953). This rule of allowing unions discretion in the adoption and application of grievance procedures has been adhered to by this circuit in prior decisions. E. g., Turner v. Air Transport Dispatchers’ Ass’n, 468 F.2d 297 (5th Cir. 1972) (Unions have considera ble discretion to control the grievance and arbitration procedure.); and Stewart v. Day & Zimmerman, Inc., 294 F.2d 7 (5th Cir. 1961) (Union officials are given wide discretion and latitude in representing employee grievances.). • The district judge concluded that the Players Committee failed in its duty to appellee by agreeing to deny his appeal after only a perfunctory investigation in exchange for the conductor’s guaranty that another musician would be hired to replace the appellee. However, the record reveals only that the replacement guaranty was a condition precedent to" }, { "docid": "11608949", "title": "", "text": "MEMORANDUM and ORDER ELFVIN, District Judge. Plaintiff commenced this action pursuant to Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, alleging that he was wrongfully discharged and that a subsequent decision rendered by a joint arbitration committee upholding such discharge was improper and should be vacated. Defendant has moved to dismiss on the grounds that plaintiff’s complaint is time-barred by CPLR § 7511(a) and that it does not state a claim upon which relief can be granted because it fails to allege breach of the duty of fair representation. Plaintiff submits that CPLR § 213(2) is the appropriate statute of limitations and moves for leave to amend his complaint. A union has a duty to represent employees fairly, honestly and in good faith throughout the grievance and arbitration process. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). It is well settled that in a Section 301 action seeking to vacate a joint arbitration committee’s decision, the employee must allege and prove not only that his discharge was contrary to the contract but also that the union breached its duty of fair representation. Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). Failure to allege a breach of such duty — i. e., that the union’s actions were arbitrary, discriminatory or in bad faith — is fatal to an employee’s suit under Section 301 seeking damages against his former employer for his allegedly wrongful discharge. Hubicki v. ACF Industries, Inc., 484 F.2d 519 (3d Cir. 1973); Lomax v. Armstrong Cork Company, 433 F.2d 1277 (5th Cir. 1970). Where a complaint fails to allege that the union has engaged in any wrongdoing or has failed properly to represent the employee, the claim must be dismissed. Alfieri v. General Motors Corp., 367 F.Supp. 1393 (W.D.N.Y.1973), aff’d, 489 F.2d 731 (2d Cir. 1973). In the instant case, plaintiff’s original complaint does not allege that he was inadequately represented by the union during the grievance and arbitration process. It merely alleges that the defendant employer joined in an arbitration proceeding" }, { "docid": "616771", "title": "", "text": "and company could not agree on arbitrators to comprise the arbitration panel, they requested a panel from the Federal Mediation and Conciliation Service. After a list of potential arbitrators was received, the union committee responsible for processing grievances met and decided to withdraw the grievance from arbitration based on the consensus that the grievance could not be won in arbitration. The meeting was attended by the union staff representative Caldwell and all but one of the members of the union committee, but not by plaintiff. The union also consulted with the union’s director and the union’s attorney. Freeman then filed suit against the company and the union seeking injunctive relief and damages. Following a bench trial, the trial judge found that the union did breach its duty of fair representation and that the discharge was wrongful. The issue before us is whether the union’s failure to pursue arbitration in this case was a breach of its duty of fair representation. As exclusive collective bargaining agent for Freeman, the union had a statutory duty to fairly and without hostility or discrimination represent his grievance. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). However, as we recently indicated in Cox v. C. H. Masland & Sons, Inc., 607 F.2d 138 (5th Cir. 1979), the duty to fairly represent all of the employees in the bargaining unit is not a ministerial one of satisfying each employee’s demand at all costs: [T]he union is the representative but not the servant of the employees. It not only may, but should, exercise judgment and discretion in its representative capacity. Its duty is violated “only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Id. at 142 (quoting from Vaca v. Sipes, 386 U.S. at 190, 87 S.Ct. 903). The key question then, is whether the union in this case abused its discretion and acted in an arbitrary or discriminatory manner or in bad faith when it decided not to proceed with arbitration of the plaintiff’s grievance. The trial court determined that" }, { "docid": "5151126", "title": "", "text": "disciplinary layoffs and his record was cleared of discipline. The one grievance for which he did not receive back pay was compromised in settlement. Plaintiff’s opposition to GMC’s motion for summary judgment contains a general statement that there “are material issues of fact in dispute,” accompanied by a list of such fact issues which appears to be nothing more than a rehash of the complaint. He has not, however, supported his opposition with affidavits, or as otherwise allowed by the Federal Rules of Civil Procedure. He has, therefore, failed to set forth specific facts showing that there are genuine issues for trial. If defendant GMC has successfully carried its burden of demonstrating the absence of any genuine fact issues, summary judgment is appropriate. It is well settled that in order for an individual employee to prevail in an action brought under § 301, 29 U.S.G. § 185, against his employer for breach of contract, he must first demonstrate that the union breached its duty of fair representation in processing or failing to process his contractual grievance. Vaca v. Sipes, 386 U.S. 171, 185-86, 87 S.Ct. 903, 914-15, 17 L.Ed.2d 842 (1967); Soto Segarra v. Sea-Land Service, Inc., 581 F.2d 291, 294-95 (1st Cir. 1978). “That duty of fair representation is breached if the union treats the grievance in an arbitrary, discriminatory or bad faith manner. For example, the union ‘may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion.’ ” Soto Segarra, supra, at 295 (citing Vaca, supra, 386 U.S. at 191, 87 S.Ct. at 917). The plaintiff here is not relieved from his obligations under Rule 56(e) by the mere fact that he must demonstrate the union’s bad faith or arbitrary conduct. Although “great circumspection is required where summary judgment is sought on an issue involving state of mind . . . , that does not mean that a party against whom summary judgment is sought is entitled to a trial simply because he has asserted a cause of action to which state of mind is a material element.” Hahn v. Sargent, 523 F.2d 461, 468" }, { "docid": "11676730", "title": "", "text": "breached its duty of fair representation. The Union contends it did not breach its duty of fair representation to plaintiff. It asserts that after a thorough review of the objective evidence and meetings with plaintiff and representatives of National, the Union determined insufficient evidence existed to warrant taking plaintiff’s grievance to arbitration. Consequently, the decision was made to withdraw the grievance for lack of merit. National contends there was just cause for plaintiff’s termination since the overwhelming, credible evidence showed plaintiff was found to have violated a well established rule of the Company regarding the carrying of weapons on Company property. After considering the record, the relevant law, and the arguments of the parties in memoranda and at oral hearing, the Court concludes defendants’ Motion for Summary Judgment must be granted in part. A litigant is entitled to summary judgment when, on viewing the case in a light most favorable to the opposing party, no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. U. S. v. R&D One Stop Records, Inc., 661 F.2d 433, 435-36 (5th Cir. 1981). On a summary judgment motion, the inferences to be drawn from the evidence must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Thus, when conflicting inferences can be drawn from the underlying facts contained in the record, summary judgment is inappropriate. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Accord, O-Boyle Tank Lines, Inc. v. Bechkam, 616 F.2d 207, 209 (5th Cir. 1980); Marshall v. Victoria Transportation Co., Inc., 603 F.2d 1122 (5th Cir. 1979). However, “when a movant makes out a convincing showing that genuine issues of fact are lacking, ... the [non-moving party must] adequately demonstrate by receivable facts that a real, not formal, controversy exists, ...” Bruce Construction Corp. v. United States, 242 F.2d 873, 875 (5th Cir. 1957). Plaintiff may pursue his claim of unlawful discharge" }, { "docid": "6856439", "title": "", "text": "letter to Labor Secretary). B. Fair Representation The district court properly granted summary judgment in favor of the union defendants upon plaintiffs’ fair representation claim. Federal Rule of Civil Procedure 56(c) mandates the entry of summary judgment whenever “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” No genuine issue of material fact exists “unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). A mere scintilla of evidence is not enough: “If the evidence is merely color-able ... or is not significantly probative ... summary judgment may be granted.” Id. at 249-50, 106 S.Ct. at 2510-11. And we review the district court’s entry of summary judgment de novo. Plaintiffs maintain that the union defendants breached their duty of fair representation by refusing to pursue U 64(e) grievances. Yet a union is not obliged to pursue all grievances to arbitration: it may withdraw or settle a grievance based upon its good faith evaluation of the merits. See Vaca v. Sipes, 386 U.S. 171, 191, 87 S.Ct. 903, 917, 17 L.Ed.2d 842 (1967) (union breaches duty of fair representation only by engaging in arbitrary, discriminatory or bad faith conduct). For unions are traditionally accorded broad discretion in determining whether and to what extent an employee’s grievance should be prosecuted. See Dahnke v. Teamsters Local 695, 906 F.2d 1192 (7th Cir.1990). A union may act upon its reasonable interpretation of a labor contract; it need not prosecute a grievance that it honestly believes lacks merit. See Adams v. Budd Co., 846 F.2d 428 (7th Cir.1988) (refusal to file grievances not a breach of duty of fair representation where union differed with plaintiffs as to merits of grievances and no evidence of hostility); Bache v. American Telephone & Telegraph, 840 F.2d 283, 290 (5th Cir.1988) (union can act upon its own reasonable interpretation of labor contract). In this case, the union defendants" }, { "docid": "23313243", "title": "", "text": "jurors would never have been given the opportunity to assay his case. For Cox to succeed in his action against Masland, he must first establish that the union wrongfully refused to demand arbitration. Because the collective bargaining agreement provided a remedy, Masland, as the employer, can successfully defend an action for its alleged breach by urging that the party who contends the contract has been violated has failed to exhaust the contractual remedies. These are available only to the union, not to its members, and, therefore, the only excuse for non-recourse to these remedies would be the union’s wrongful failure to pursue them. See Vaca v. Sipes, 386 U.S. at 186, 87 S.Ct. at 914, 17 L.Ed.2d at 855. Vaca provides the test to determine when a union’s failure to request arbitration is a breach of its duty. The Court rejected both extremes; that an individual employee has an absolute right to have his grievance taken to arbitration, or that a union has unfettered discretion. If the contractual settlement machinery is not to be wrecked, a union must be given some discretion in executing its duty. The protesting employee must prove not only that his grievance was meritorious; he must also demonstrate that the union’s failure to process his grievance was “arbitrary” or in “bad faith”. 386 U.S. at 193, 87 S.Ct. at 918, 17 L.Ed.2d at 859. Explaining the limits of this discretion in Turner v. Air Transport Dispatchers’ Assoc., 5 Cir. 1972, 468 F.2d 297, we held that a union’s discretion is confined by the duty to investigate the grievance and determine its merit. Id. at 299. Accord Steinman v. Spector Freight System, Inc., 2 Cir. 1971, 441 F.2d 599; St. Clair v. Local 515, International Brotherhood of Teamsters, 6 Cir. 1969, 422 F.2d 128. After doing so, the union is entitled to weigh the costs and benefits of going to arbitration, including the chances of success and the monetary cost. See Encina v. Tony Lama Boot Co., 5 Cir. 1971, 448 F.2d 1264, 1265 (per curiam). It is undisputed that the union investigated Cox’s discharge, that it" }, { "docid": "18443547", "title": "", "text": "Encina v. Tony Lama Boot Co., Inc., 448 F.2d 1264, 1265 (5th Cir. 1971); Lomax v. Armstrong Cork Company, 433 F.2d 1277 (5th Cir.1970). In Encina, as .in this case, the essential facts — those concerning the role of the Union in handling the grievance proceeding — were not in dispute. The issue then becomes one of law — did the conduct of the Union amount to a breach of the Union’s duty of fair representation? As exclusive bargaining agent for domestic Braniff flight dispatchers, ATDA had a statutory duty to represent fairly all these employees in disputes arising from the collective bargaining agreement. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1965); Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed.2d 1048 (1953). Vaca stated: . . . the exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct. ... A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith. 386 U.S. at 177 and 190, 87 S.Ct. at 910 and 916. However, this duty of representation does not confer an absolute right on an employee to have his complaint carried through all stages of the grievance procedure. As Vaca makes clear, unions should have considerable discretion to control the grievance and arbitration procedure, subject only to a duty of fair representation, 386 U.S. at 191, 87 S.Ct. 903, and an employee is subject to the union’s nonarbitrary discretionary power to settle or even abandon a grievance, even if it can be later demonstrated that the employee’s claim was meritorious. Id. at 192-193, 87 S.Ct. 903; see Bazarte v. United Transportation Union, 429 F.2d 868 (3rd Cir. 1970). Turner argues that ATDA treated his" }, { "docid": "12160382", "title": "", "text": "workers at Olin’s St. Marks facility, the Union was empowered to act as the exclusive representative of the employees working there under 29 U.S.C.A. § 159(a) (West 1973). In order to ensure that this power is not abused, an exclusive bargaining agent is under a duty to represent fairly all the employees within the appropriate bargaining unit with respect to matters arising out of the collective bargaining agreement with the company. Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842 (1967); Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 367, 11 L.Ed.2d 370 (1964). In the context of employee grievances, the duty of fair representation is not a straitjacket which forces unions to pursue grievance remedies under the collective bargaining agreement in every case where an employee has a complaint against the company. Individual employees do not have an absolute right to have their grievances taken through the arbitration process. Vaca v. Sipes, 386 U.S. at 191, 87 S.Ct. at 917. A union is accorded considerable discretion in dealing with grievance matters, and it may consider the interests of all its members when deciding whether or not to press the claims of an individual employee. Thus, the failure of a union to process an employee’s grievance, even if it is possible to demonstrate that the grievance is meritorious, does not necessarily give rise to a breach of the duty of fair representation. Id. at 192-3, 87 S.Ct. at 917-18; Turner v. Air Transport Dispatchers' Association, 468 F.2d 297, 299 (5th Cir. 1972). The duty of fair representation is breached only when a union’s treatment of an employee’s complaint is arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, 386 U.S. at 190, 87 S.Ct. at 916; Christopher v. Safeway Stores, Inc., 644 F.2d 467, 472 (5th Cir. 1981). Seymour contends that the statements which the Union officials made to him and the related failure of the Union to pursue a grievance on his behalf were arbitrary actions and therefore constitute a violation of the Union’s duty of fair representation. The standard for determining" }, { "docid": "11676731", "title": "", "text": "S. v. R&D One Stop Records, Inc., 661 F.2d 433, 435-36 (5th Cir. 1981). On a summary judgment motion, the inferences to be drawn from the evidence must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Thus, when conflicting inferences can be drawn from the underlying facts contained in the record, summary judgment is inappropriate. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Accord, O-Boyle Tank Lines, Inc. v. Bechkam, 616 F.2d 207, 209 (5th Cir. 1980); Marshall v. Victoria Transportation Co., Inc., 603 F.2d 1122 (5th Cir. 1979). However, “when a movant makes out a convincing showing that genuine issues of fact are lacking, ... the [non-moving party must] adequately demonstrate by receivable facts that a real, not formal, controversy exists, ...” Bruce Construction Corp. v. United States, 242 F.2d 873, 875 (5th Cir. 1957). Plaintiff may pursue his claim of unlawful discharge against National only if he establishes that the Union violated its duty of fair representation in the processing of his grievance. Only by alleging and proving such a breach of duty by the Union can plaintiff avoid the bar which the contractual grievance procedure otherwise presents to his suit against National. Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1975); Cox v. C. H. Masland & Sons, Inc., 607 F.2d 138, 144 (5th Cir. 1979). In order to demonstrate a breach of the duty of fair representation, the plaintiff must establish that the Union’s refusal to prosecute his grievance through arbitration was “arbitrary, discriminatory or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 193, 87 S.Ct. 903, 918, 17 L.Ed.2d 842 (1967). The Fifth Circuit has recognized “that summary judgment can be a proper method for disposing of fair representation cases where material issues of fact have been settled by depositions and affidavits [citations omitted].” Turner v. Air Transport Dispatchers Association, 468 F.2d 297, 299 (5th Cir. 1972)." }, { "docid": "18878229", "title": "", "text": "duty of representation. DISCUSSION Federal Claims Ordinarily a binding arbitration clause guarantees the finality of arbitration decisions and protects the employer against subsequent suits for breach of contract under LMRA § 301. However, where the discharged employee can show that his union breached its duty of representation, and that such breach undermined the integrity of the arbitral process itself, then the union’s breach removes the bar of the finality provision of the collective bargaining contract. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567-68, 96 S.Ct. 1048, 1057-1058, 47 L.Ed.2d 231 (1976). As the Court noted in Hines, “enforcement of the finality provision where the arbitrator has erred is conditioned upon the union’s having satisfied its statutory duty fairly to represent the employee in connection with the arbitration proceedings.” Id. at 571, 96 S.Ct. at 1059. To make out a claim that the union breached its duty of representation, the plaintiff must establish that the union’s actions were “arbitrary, discriminatory, or in bad faith,” that the grievance was processed in a “perfunctory fashion,” or that the union conduct was “intentional, severe, and unrelated to legitimate union objectives.” Amalgamated Association of Street, Electric Railway & Motor Coach Employees v. Lockridge, 403 U.S. 274, 299-301, 91 S.Ct. 1909, 1924-1925, 29 L.Ed.2d 473 (1971); Vaca v. Sipes, 386 U.S. 171, 190-91, 87 S.Ct. 903, 916-917, 17 L.Ed.2d 842 (1967); Jensen v. Farrell Lines, Inc., 658 F.2d 27 (2d Cir. 1981). Where the union has pursued the available grievance or arbitration procedure to a conclusion, as Local 445 has done in this case, the plaintiff must also establish that the union’s breach caused the arbitrator to reach an erroneous conclusion. That is, the plaintiff must show that there is “substantial reason to believe that [the union’s breach] contributed to the erroneous outcome of the contractual proceedings.” Hines v. Anchor Motor Freight, supra, 424 U.S. at 568, 96 S.Ct. at 1058. Because plaintiff has alleged that the Union breached its duty of fair representation and that the arbitrator reached an erroneous conclusion, the mere fact that there has been an arbitration award does not" }, { "docid": "5151127", "title": "", "text": "grievance. Vaca v. Sipes, 386 U.S. 171, 185-86, 87 S.Ct. 903, 914-15, 17 L.Ed.2d 842 (1967); Soto Segarra v. Sea-Land Service, Inc., 581 F.2d 291, 294-95 (1st Cir. 1978). “That duty of fair representation is breached if the union treats the grievance in an arbitrary, discriminatory or bad faith manner. For example, the union ‘may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion.’ ” Soto Segarra, supra, at 295 (citing Vaca, supra, 386 U.S. at 191, 87 S.Ct. at 917). The plaintiff here is not relieved from his obligations under Rule 56(e) by the mere fact that he must demonstrate the union’s bad faith or arbitrary conduct. Although “great circumspection is required where summary judgment is sought on an issue involving state of mind . . . , that does not mean that a party against whom summary judgment is sought is entitled to a trial simply because he has asserted a cause of action to which state of mind is a material element.” Hahn v. Sargent, 523 F.2d 461, 468 (1st Cir. 1975). In view of the Board’s finding that the union did not breach its duty of fair representation toward plaintiff and in view of the plaintiff’s own testimony at deposition that the union did process his grievances that he received back pay on all but one of the grievances regarding his disciplinary layoffs, and that he was merely unsatisfied with regard to the union’s resolution of the grievances regarding GMC’s use of management personnel, I rule that defendant GMC has demonstrated the absence of any genuine fact issue as to the union’s breach of its fair representation duty. Since plaintiff has failed to respond with affidavits or otherwise, I rule that the plaintiff has failed to raise a genuine issue on the fair representation issue and that GMC is therefore entitled to summary judgment on plaintiff’s contract claims. There is another basis on which to grant summary judgment on plaintiff’s claims regarding the company’s alleged improper use of management personnel. Plaintiff does not allege in his complaint that he himself has suffered any" }, { "docid": "616772", "title": "", "text": "and without hostility or discrimination represent his grievance. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). However, as we recently indicated in Cox v. C. H. Masland & Sons, Inc., 607 F.2d 138 (5th Cir. 1979), the duty to fairly represent all of the employees in the bargaining unit is not a ministerial one of satisfying each employee’s demand at all costs: [T]he union is the representative but not the servant of the employees. It not only may, but should, exercise judgment and discretion in its representative capacity. Its duty is violated “only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Id. at 142 (quoting from Vaca v. Sipes, 386 U.S. at 190, 87 S.Ct. 903). The key question then, is whether the union in this case abused its discretion and acted in an arbitrary or discriminatory manner or in bad faith when it decided not to proceed with arbitration of the plaintiff’s grievance. The trial court determined that the circumstances surrounding the withdrawal of plaintiff’s grievance from arbitration by the union committee supported a finding of bad faith by the union and arbitrary and discriminatory conduct on its part. This con- elusion was based upon the following findings: (1) Plaintiff had an excellent chance of winning the arbitration. (2) It was arbitrary for the union not to proceed at least to the point of selecting an arbitrator. (3) The union, particularly the union representative, displayed a hostile attitude toward plaintiff. It is settled law that a breach of the fair representation duty cannot be based on the trial court’s view regarding the probability of success on the merits of a grievance. We expressed this principle in Turner v. Air Transport Dispatchers’ Ass’n, 468 F.2d 297, 299 (5th Cir. 1972): As Vaca makes clear, unions should have considerable discretion to control the grievance and arbitration procedure, subject only to a duty of fair representation . and an employee is subject to the union’s nonarbitrary discretionary power to settle or even abandon a grievance, even" }, { "docid": "18443546", "title": "", "text": "the exclusive representative for domestic flight dispatcher employees of Braniff under the provisions of the Railroad Labor Act, 45 U.S.C. § 151 et seq. He was told that the Union concurred in Bran iff’s interpretation of the collective bargaining agreement and declined to file a grievance or complaint with Braniff in his behalf. Turner thereupon filéd a complaint directly with Braniff, and renewed his request that ATDA represent him with the employer. After consulting with officials of ATDA, Braniff formally denied Turner’s seniority credit request. Simultaneously, ATDA again informed Turner that it would not present his grievance through the Association’s grievance representative. Unable to proceed further with his complaint without union representation, Turner brought this action against ATDA alleging that its refusal to represent him in this dispute was “arbitrary, without good cause, and in bad faith” and furthermore amounted to “hostile discrimination” against him. This circuit has recognized that summary judgment can be a proper method for disposing of fair representation cases where material issues of fact have been settled by depositions and affidavits. Encina v. Tony Lama Boot Co., Inc., 448 F.2d 1264, 1265 (5th Cir. 1971); Lomax v. Armstrong Cork Company, 433 F.2d 1277 (5th Cir.1970). In Encina, as .in this case, the essential facts — those concerning the role of the Union in handling the grievance proceeding — were not in dispute. The issue then becomes one of law — did the conduct of the Union amount to a breach of the Union’s duty of fair representation? As exclusive bargaining agent for domestic Braniff flight dispatchers, ATDA had a statutory duty to represent fairly all these employees in disputes arising from the collective bargaining agreement. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1965); Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed.2d 1048 (1953). Vaca stated: . . . the exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without" }, { "docid": "11676746", "title": "", "text": "justified his violation(s), are immaterial to the issue of whether the Union breached its duty of fair representation. The duty of fair representation does not require unions to pursue grievance procedures in every case where an employee has a complaint against the employer. Seymour v. Olin Corp., 666 F.2d 202, 208 (5th Cir. 1982). It is well settled that the duty of fair representation “does not confer an absolute right on an employee to have his complaint carried through all stages of the grievance procedure.” Turner v. Air Transport Dispatchers’ Association, 468 F.2d at 299; Vaca v. Sipes, 386 U.S. at 191, 87 S.Ct. at 917. Unions have considerable discretion in dealing with grievance matters, provided the treatment of an employee’s complaint is neither arbitrary, discrimi natory, or in bad faith. Vaca v. Sipes, 386 U.S. at 191, 87 S.Ct. at 917. A union may not discharge its representation duties in a perfunctory manner. Vaca v. Sipes; Hart v. National Homes Corp., 668 F.2d 791, 794 (5th Cir. 1982). Subject to the duty of fair representation, a union is entitled to exercise its discretionary power to settle, abandon or even refuse to institute a grievance it believes to be without merit. Vaca v. Sipes, 386 U.S. at 191-192, 87 S.Ct. at 917-18; Freeman v. O’Neal Steel, Inc., 609 F.2d 1123, 1126 (5th Cir. 1980); Turner, 468 F.2d at 300; Harris v. Chemical Leaman Tank Lines, Inc., 437 F.2d 167, 171 (5th Cir. 1971). The depositions and exhibits on file with this Court support the finding that the Union did not breach its duty of fair representation with regard to the processing of plaintiff’s grievance. Plaintiff asserts John Daigle failed to investigate the validity of plaintiff’s contention that he was not at fault in the December 7th accident. It is well established that the duty of fair representation includes the obligation to investigate the merits of an employee’s grievance. Freeman v. O’Neal Steel, Inc., 609 F.2d at 1128; Turner, 468 F.2d 297. Here, John Daigle met with plaintiff after the accident and discussed the various charges filed against him. At the" }, { "docid": "11676732", "title": "", "text": "against National only if he establishes that the Union violated its duty of fair representation in the processing of his grievance. Only by alleging and proving such a breach of duty by the Union can plaintiff avoid the bar which the contractual grievance procedure otherwise presents to his suit against National. Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1975); Cox v. C. H. Masland & Sons, Inc., 607 F.2d 138, 144 (5th Cir. 1979). In order to demonstrate a breach of the duty of fair representation, the plaintiff must establish that the Union’s refusal to prosecute his grievance through arbitration was “arbitrary, discriminatory or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 193, 87 S.Ct. 903, 918, 17 L.Ed.2d 842 (1967). The Fifth Circuit has recognized “that summary judgment can be a proper method for disposing of fair representation cases where material issues of fact have been settled by depositions and affidavits [citations omitted].” Turner v. Air Transport Dispatchers Association, 468 F.2d 297, 299 (5th Cir. 1972). The inquiry before this Court, therefore, is whether the evidence when considered within the framework of the applicable law, creates a genuine material fact issue regarding the Union’s fulfillment of its duty of fair representation. In order to resist defendants’ summary judgment motion, plaintiff must produce evidence from which one might reasonably infer that the Union processed plaintiff’s grievance against National in a “perfunctory fashion” or acted in a manner which might be characterized as “arbitrary, discriminatory or in bad faith.” Vaca v. Sipes, supra 386 U.S. at 193, 87 S.Ct. at 918; cf. id. at 191, 87 S.Ct. at 917; Lomax v. Armstrong Cork Company, 433 F.2d 1277, 1281 (5th Cir. 1970). The pleadings, affidavits, depositions and exhibits on file with the Court show the following, essentially undisputed, facts: (a) Defendant National and the Union entered into a collective bargaining agreement (“contract”) effective from July 17, 1977 to July 13, 1980, which defined the wages, hours, and terms and conditions of employment of National’s employees (Exhibit No. I). (b) Article III of said contract" } ]

[ { "docid": "8712839", "title": "", "text": "been a rather weak inference. In no sense, therefore, can this particular phase of the evidence be considered cumulative of other equally strong and reliable evidence. Indeed, it was the strongest and most damaging element in the government’s case to connect Reina with the whole conspiracy. Courts justifiably look, upon after-discovered evidence or recantations with skepticism and suspicion and do not generally grant new trials based on such grounds. Nevertheless, when such an important factor in the government’s case depends upon perjured testimony, the interests of justice mandate a new trial. Generally, five essential requisites for ordering a new trial on the basis of “newly discovered” evidence have been set out: 1. The evidence must have been discovered after the trial; 2. The failure to learn of the evidence must not have been caused by defendant’s lack of diligence; 3. The new evidence must not be merely cumulative or impeaching; 4. It must be material to the principal issues involved; and 5. It must be of such a nature that in a new trial it would probably produce an acquittal. This has been referred to as the “Berry” test and was adopted by this Court in United States v. Bertone, 249 F.2d 156, 160 (3rd Cir. 1957); United States v. Nigro, 253 F.2d 587 (3rd Cir. 1958). In this case, however, the motion with respect to the Rodriguez testimony is not really based on “newly discovered” evidence but, rather, on the assertion that the evidence at the trial was perjured. As is pointed out in 2 Wright, Federal Practice & Procedure, § 557, a different test is applied in the latter situation and what is termed the “Larrison rule” is used. Professor Moore in 8A Moore’s Federal Practice, f 33.06 [1], says, “If the trial court finds that a material witness did commit perjury, and without his testimony the jury might not have convicted, a new trial is necessary.” Larrison v. United States, 24 F. 2d 82, 87 (7th Cir. 1928), holds that when a contention has been made that a government witness testified falsely at trial, the test should" } ]

[ { "docid": "22272140", "title": "", "text": "the images from the Wood computer, which confirms that some of these- images did depict individuals under the age of sixteen, is “newly-discovered evidence” that he was unable to obtain prior to trial due to the Government’s pre-trial suppression of the computer. Even assuming, arguendo, that the Government withheld the Wood computer pri- or to trial and that the results of the defense’s post-trial analysis can thus appropriately be deemed “newly-discovered evidence,” -a new trial is .not warranted. The defense’s post-trial analysis of the images from the Wood computer fails to satisfy Brady’s materiality requirement. This court reviews a district court’s denial of a motion for new trial for abuse of discretion. United States v. Jaramillo, 42 F.3d 920, 924 (5th Cir.1995). However, when the newly-discovered evidence is alleged to be exculpatory evidence that the Government withheld in violation of Brady, we review any Brady determinations de novo. United States v. Gonzales, 121 F.3d 928, 946 (5th Cir.1997). As a general rule, to obtain a new trial based on newly-discovered evidence, a defendant must demonstrate that: (1) the evidence was discovered after trial; (2) the failure to discover the evidence was not due to the defendant’s lack of diligence; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) a new trial would probably produce a new result. United States v. Williams, 985 F.2d 749, 757 (5th Cir.1993). However, when a motion for new trial based on newly-discovered evidence raises a Brady claim, this court instead applies the three-prong Brady test to determine whether a new trial is appropriate. See, e.g., Gonzales, 121 F.3d at 946 (applying the three-prong Brady test in assessing a motion for new trial based on an alleged Brady violation); accord United States v. Conley, 249 F.3d 38, 45 (1st Cir.2001) (noting that the three-part Brady test — rather than the five-part test governing motions for new trial- — -is applicable “where a defendant claims that the newly-discovered evidence should have been produced under Brady\"); United States v. Quintanilla, 193 F.3d 1139, 1149 n. 10 (10th Cir.1999) (“Evaluation of a" }, { "docid": "22783789", "title": "", "text": "creates a new and separate claim of prosecutorial misconduct. To the extent Lynn raises a new claim of prosecutorial misconduct, we conclude that the district court properly denied this claim as well. As outlined above, Eyster and Marshall raised a similar witness sequestration claim in their direct appeals that asserted that witnesses Sheehy and Purvis discussed their testimony with other witnesses and -tailored their testimony to conform with each other’s. Eyster and Marshall’s claim, in effect, was that Sheehy and Purvis perjured themselves by testifying to events not within their personal knowledge but learned from other prosecution witnesses. In his 1999 motion to amend his § 2255 motion, Lynn claims that Sheehy and Pur-vis not only learned information from other witnesses but that the two men were fed information from government agents. Lynn claimed that he was able to learn of the government’s involvement in this per-jurious testimony only after additional interviews with Sheehy and Purvis. Lynn asserts that this “newly discovered” evidence of the government’s involvement in the perjurious testimony constitutes a new claim of prosecutorial misconduct that was not available on direct appeal. As discussed above, there are five requirements that Lynn must satisfy in order to obtain a new trial based on newly discovered evidence: (1) the evidence must be discovered after trial; (2) the failure of the defendant to discover the evidence must not be due to a lack of diligence; (3) the evidence must not be merely cumulative or impeaching; (4) the evidence must be material to issues before the court; and (5) the evidence must be such that a new trial would probably produce a different result. Id. The government contends that Lynn has not satisfied the five requirements and that Lynn has not shown cause for failing to raise this prosecutorial misconduct claim on direct appeal. For example, the government challenges Lynn’s due diligence, the second requirement, and asserts that Lynn has not explained: (1) “why the information was not tendered until ten years after trial”; (2) whether he took steps “to investigate that matter during the ten-year period between trial and the" }, { "docid": "5051461", "title": "", "text": "for a New Trial on Basis of Newly Discovered Evidence). d) Finally, Theodore Raynes states that Gary Crompton told him he had been involved in some bank robberies with Michael McNamee and two men from New York; Crompton stated to Raynes that McNamee had told the F.B.I. that the Sneads were involved instead of the two men from New York and had arranged immunity in exchange for his testimony (Exhibit “C” to Defendants’ Motion for a New Trial on Basis of Newly Discovered Evidence). Motions under F.R.Crim.P. 33 are addressed to the sound discretion of the trial court and are granted sparingly. United States v. Iannelli, 528 F.2d 1290, 1292 (3d Cir. 1976); United States v. Odom, 348 F.Supp. 889, 893 (M.D.Pa.1972), aff’d, 475 F.2d 1397 (3d Cir.), cert, denied, 414 U.S. 836, 94 S.Ct. 182, 38 L.Ed.2d 72 (1973). In order for a trial court to grant a new trial on the basis of newly discovered evidence, five criteria must be met: (a) the evidence must be in fact, newly discovered, i.e., discovered since the trial; ■ (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on, must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal. (Emphasis added) Iannelli, supra at 1292. Even assuming for the purpose of these motions that the evidence contained in the affidavits is newly discovered, not due to a lack of diligence on the part of defendants, and material to the issues involved, it does not warrant the grant of a new trial. It is fatally deficient in failing to meet two of the criteria set forth in Iannelli: 1) the evidence, if believed, is merely cumulative and directed to the credibility of Michael McNamee and/or Crompton; and 2) it would probably not lead to an acquittal. It is well settled that newly discovered evi dence which is merely" }, { "docid": "11581089", "title": "", "text": "Control Inspection. Ill, Taohim also contends that the district court erred in denying his motion for a new trial. “Upon the defendant’s motion, the court may vacate' any judgment and grant a new trial if the interest of justice so requires.” Fed.R.CrimuP. 33(a). We review for abuse of discretion the district court’s denial of a motion for a new trial. United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir.2003). A. Taohim contends that he is entitled to a new trial based on newly discovered evidence. He notes that after his conviction, he learned-that four of the crewmem-bers who testified at his trial received monetary awards for providing information to the Coast Guard that led to the successful prosecution of Target -Ship Management. Taohim argues that the awards are evidence of the witnesses’ motives and that he was not able to cross-examine those witnesses about the awards during his trial. He does not, however, contend that the payments were promised or made before the end of his trial. A new trial based on newly discovered evidence is warranted if the defendant satisfies a five-part test: (1) the evidence must be discovered following- the trial; (2) the movant must show due diligence to discover the evidence; (3) the evidence must not be merely- cumulative or impeaching; (4) the evidence must be material to issues before the court; and (5) the evidence must be of such a nature that a new trial would probably produce a new result. United States v. DiBernardo, 880 F.2d 1216, 1224 (11th Cir.1989). Failure to satisfy any one of those elements is fatal to a motion for a new trial. United States v. Lee, 68 F.3d 1267, 1274 (11th Cir.1995). The district court concluded that the first two elements were satisfied, but that the newly discovered evidence was merely impeaching, not material, and not likely to have changed the result of the trial. Taohim concedes in his reply brief that “evidence of a witness’s bias or motive is considered impeachment- evidence,” but also argues that the evidence is not “merely” impeaching because it “highlights the Sixth Amendment" }, { "docid": "22783790", "title": "", "text": "of prosecutorial misconduct that was not available on direct appeal. As discussed above, there are five requirements that Lynn must satisfy in order to obtain a new trial based on newly discovered evidence: (1) the evidence must be discovered after trial; (2) the failure of the defendant to discover the evidence must not be due to a lack of diligence; (3) the evidence must not be merely cumulative or impeaching; (4) the evidence must be material to issues before the court; and (5) the evidence must be such that a new trial would probably produce a different result. Id. The government contends that Lynn has not satisfied the five requirements and that Lynn has not shown cause for failing to raise this prosecutorial misconduct claim on direct appeal. For example, the government challenges Lynn’s due diligence, the second requirement, and asserts that Lynn has not explained: (1) “why the information was not tendered until ten years after trial”; (2) whether he took steps “to investigate that matter during the ten-year period between trial and the tendering of the new affidavits”; (3) “how the government prevented the information from being available on direct appeal”; and (4) “the discrepancy ... between the first and second set of [Purvis and Sheehy] affidavits.... ” There is also a substantial question whether Lynn has satisfied the fifth requirement that his new evidence is such that a new trial would probably produce a different result. Even assuming arguendo that Lynn’s newly discovered evidence satisfied all five requirements and that Lynn has established cause for his procedural default, Lynn’s new claim of prosecutorial misconduct still fails on the merits because the 1999 affidavits contain nothing more than conclusory allegations. In articulating its concerns with the 1999 affidavits, the district court correctly pointed out that the affidavits do not name any government agents or investigators and do not give details or a single example of what testimony or statements were tailored or conformed to be consistent or were based on information fed from government agents. Furthermore, neither 1999 affidavit identified any statement that was made without the witnesses’" }, { "docid": "3993209", "title": "", "text": "in denying his motion for a new trial. According to Miliet, newly discovered evidence obtained from Vivian Sylvestri, Mark Ostarly and Dennis Martinez indicates that Martinez, not Miliet, was present during the August 1,1985, transaction. Miliet argues that this newly discovered evidence undermines the validity of his convictions. A motion for a new trial based on newly discovered evidence is addressed to the sound discretion of the trial court. A district court decision denying such a motion is reversible only if defendant establishes “that the ruling is so clearly erroneous as to amount to an abuse of that discretion.” United States v. Mesa, 660 F.2d 1070, 1077 (5th Cir.1981). Five elements must be present to justify such extraordinary relief: (1) The evidence must be discovered following trial, (2) The movant must show due diligence to discover the evidence, (3) The evidence must not be merely cumulative or impeaching, (4) The evidence must be material to the issues before the court, and (5) The evidence must be of such a nature that a new trial would probably produce a new result. United States v. Fowler, 735 F.2d 823, 830 (5th Cir.1984). The district court in the instant case could properly conclude that Miliet had failed to show due diligence in discovering the evidence. Miliet suggested at trial that it was actually Dennis Martinez who was involved in the August 1, 1985, transaction. Miliet knew that Sylvestri and Ostarly were both present at the August 1 sale and that either might corroborate his story. Miliet also knew about Martinez. He nevertheless failed to call any of these three witnesses at trial or adequately explain his failure to do so. We conclude therefore that the district court did not abuse its discretion in denying Miliet’s motion for a new trial. VI. For the foregoing reasons, the judgment of the district court is AFFIRMED. . This rule provides that a statement is not hearsay if “offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.\" Fed.R.Evid. 801(d)(2)(E). . On appropriate" }, { "docid": "23342204", "title": "", "text": "of law or an improper application of law to fact.” Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir.2002) (internal quotation marks and citation omitted). Federal Rule of Criminal Procedure 33 provides that “[ujpon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Our precedents instruct that five requirements must be met before a district court may grant a new trial on the basis of newly discovered evidence: (a) the evidence must be in fact, newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on, must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal. United States, v. Cimera, 459 F.3d 452, 458 (3d Cir.2006) (quoting United States v. Iannelli 528 F.2d 1290, 1292 (3d Cir.1976)). A movant seeking a new trial on the basis of newly discovered evidence bears a “heavy burden” in proving each of these requirements. Id. (citing Saada, 212 F.3d at 216). We find no basis to conclude that the District Court abused its discretion in denying Brown’s Rule 33 motion. Even if we assume for the sake of argument that Brown through his epic efforts after the trial satisfied the first four Iannelli factors listed above, in light of the Court’s properly found facts, Brown failed to prove that his newly discovered evidence probably would result in his acquittal at a new trial. After considering voluminous amounts of briefing, expert reports, and live testimony, the District Court made a factual finding that the various tapes of the Noonan conversations had not been “edited, altered, digitized, or manipulated by the government at any time,” and that, accordingly, “[t]hey [were] authentic recordings.” Brown, 2008 WL 510126, at *25. Brown claims that this finding of authenticity was clearly erroneous because (1) the Court based the" }, { "docid": "22448718", "title": "", "text": "new trial based on newly discovered evidence for an abuse of discretion. United States v. Lopez, 803 F.2d 969, 977 (9th Cir.1986), cert. denied, 481 U.S. 1030, 107 S.Ct. 1959, 95 L.Ed.2d 530 (1987). As the district judge noted, to prevail on a Rule 33 motion for a new trial, the movant must satisfy a five-part test: (1) the evidence must be newly discovered; (2) the failure to discover the evidence sooner must not be the result of a lack of diligence on the defendant’s part; (3) the evidence must be material to the issues at trial; (4) the evidence must be neither cumulative nor merely impeaching; and (5) the evidence must indicate that a new trial would probably result in acquittal. Id. Applying this test, the district judge’s denial of the motion was well within his discretion. The appellant’s failure to inform the judge before or at least during the trial that he was unable to locate two witnesses indicates a lack of due diligence. As to the tapes, the appellant argues that evidence that the government altered the tapes would “seriously impeach” Williams’ testimony. Under the test, however, evidence that would merely impeach a witness cannot support a motion for a new trial. Furthermore, accepting the appellant’s representations as true, neither piece of evidence would likely result in an acquittal. The district judge did not abuse his discretion in denying the motion for a new trial. We reverse the convictions on Counts 13 and 15, affirm the conviction on Count 17, affirm the order denying the motion for a new trial, and remand for resentencing consistent with this opinion. . The government voluntarily dismissed one witness tampering charge (Count 16) before trial, the conspiracy count was dismissed during trial, and the jury found Kulczyk not guilty on another tampering charge (Count 14). .As we discuss below, § 1512 was amended in 1988 to remedy the problem raised by this appeal. During the period relevant to this case, however, that section provided in part: \"§ 1512. Tampering with a witness, victim, or an informant— (a) Whoever knowingly uses intimidation" }, { "docid": "23569310", "title": "", "text": "a witness at trial. After Mr. Schultz was sentenced to 41 months’ imprisonment in November 2003, however, he employed a private investigator to locate Mr. Castillo; the investigator found Mr. Castillo within six weeks. After findT ing him, the investigator showed Mr. Castillo a photo of Mr. Schultz and asked whether Mr. Schultz ever beat him. Mr. Castillo responded that Mr. Schultz had not done so and that, in fact, Mr. Schultz had treated him with dignity and respect. Mr. Schultz filed a motion for a new trial, which the District Court denied. Federal Rule of Criminal Procedure 33 authorizes a district court to grant a new trial if the interests of justice require one. United States v. Quintanilla, 193 F.3d 1139, 1146 (10th Cir.1999). We review rulings on a motion under Rule 33 for an abuse of discretion. Id. We apply a five-part test to determine whether newly discovered evidence warrants a new trial. Id. at 1147. The defendant must show: (1) the evidence was discovered after trial, (2) the failure to learn of the evidence was not caused by [his] own lack of diligence, (3) the new evidence is not merely impeaching, (4) the new evidence is material to the principal issues involved, and (5) the new evidence is of such a nature that in a new trial it would probably produce an acquittal. Id. The District Court denied Mr. Schultz’s. motion for several reasons. First, the court found that Mr. Schultz did not use due diligence in attempting to locate Mr. Castillo before trial. Second, the court determined that Mr. Castillo’s statements constituted only impeachment evidence because previous statements he had made to the FBI were inconsistent with his current statements. Last, the District Court concluded that there was not a reasonable probability that the evidence would result in an acquittal if Mr. Schultz was to be given a new trial. Because we agree that Mr. Schultz failed to exercise due diligence in discovering the evidence before trial, we need not address whether Mr. Castillo’s testimony is merely impeaching or whether there is a reasonable probability that" }, { "docid": "18742562", "title": "", "text": "with drugs, that she attempted to conceal her drug use from appellant, and that she paid Langely to purchase drugs for her. The trial court denied appellant’s motion for new trial. The grant or denial of a motion for new trial based on newly discovered evidence is within the broad discretion of the trial court and the trial court’s decision will not be reversed absent a clear abuse of discretion. United States v. Lisko, 747 F.2d 1234, 1238 (8th Cir.1984); United States v. Wallace, 578 F.2d 735, 742 (8th Cir.), cert. denied, 439 U.S. 898, 99 S.Ct. 263, 58 L.Ed.2d 246 (1978). This court has set forth five standards to be met before granting a motion for new trial based on newly discovered evidence: (1) the evidence must be in fact newly discovered, that is, discovered since the trial; (2) facts must be alleged from which the court may infer diligence on the part of the movant; (3) the evidence relied upon must not be merely cumulative or impeaching; (4) it must be material to the issues involved, and (5) it must be of such nature that, on a new trial, the newly discovered evidence would probably produce an acquittal. Lisko, supra, 747 F.2d at 1238; Wallace, supra, 578 F.2d at 742. The trial court denied appellant’s motion for new trial based on newly discovered evidence because Langley’s testimony (1) was not in fact newly discovered since appellant knew Langely was a potential witness and merely claimed that he did not have sufficient time to locate her prior to trial; (2) would serve only to impeach the testimony of Marilyn Martin; and (3) would probably not produce an acquittal because there was ample evidence before the jury upon which to base the conviction. We have reviewed the district court’s order and do not find an “abuse of discretion” in denying appellant’s motion for new trial. Affirmed. . The Honorable William R. Overton, Jr., United States District Judge for the Eastern District of Arkansas. . 21 U.S.C. § 843(a)(4)(A) provides: (a) It shall be unlawful for any person knowingly or intentionally—" }, { "docid": "6556922", "title": "", "text": "Mesa, 660 F.2d 1070, 1077 (5th Cir.1981); United States v. Williams, 613 F.2d 573, 575 (5th Cir.), cert. denied, 449 U.S. 849, 101 S.Ct. 137, 66 L.Ed.2d 60 (1980); United States v. Antone, 603 F.2d 566, 568 (5th Cir.1979). These motions are not favored and must be viewed with great caution. Bentley v. United States, 701 F.2d 897, 898 (11th Cir.1983); United States v. Riley, 544 F.2d 237, 240 (5th Cir.1976), cert. denied, 430 U.S. 932, 97 S.Ct. 1554, 51 L.Ed.2d 777 (1977). In addition, where the credibility of the after discovered evidence is suspect, the role of the trial judge is that of the fact finder. United States v. Bujese, 371 F.2d 120, 125 (3d Cir.1967); Jones v. United States, 279 F.2d 433, 436 (4th Cir.), cert. denied, 364 U.S. 893, 81 S.Ct. 226, 5 L.Ed.2d 190 (1960). Finally, the offered evidence must satisfy four requirements order to justify this extraordinary relief: (1) The evidence must be newly discovered and have been unknown to the defendant at the time of trial; (2) The evidence must be material, and not merely cumulative or impeaching; (3) The evidence must be such that it will probably produce an acquittal; and (4) The failure to learn of such evidence must be due to no lack of diligence on the part of the defendant. Bentley, 701 F.2d at 898. In this case, this court finds that Carlin has failed to satisfy the first three requirements; accordingly, his motion lacks merit. A. The Existence of Newly Discovered Evidence This court disagrees with Carlin’s claim that Vinez’s onee-unavailable testimony constitutes “newly discovered” evidence within the meaning of Rule 33 of the Federal Rules of Criminal Procedure. Courts have repeatedly addressed this issue and uniformly concluded that this testimony is neither “newly discovered” nor sufficient to warrant a new trial. United States v. LaDuca, 447 F.Supp. at 781, illustrates how this issue ordinarily arises. Defendant LaDuca and his co-defendant Neiman were charged with embezzlement. Neiman pled guilty and was awaiting sentence at the time of LaDuca’s trial. LaDuca called Neiman to the stand in an apparent attempt" }, { "docid": "20460491", "title": "", "text": "jury must determine credibility, it is not misconduct to refer to the defendant’s statements as lies. United States v. Hernandez-Muniz, 170 F.3d 1007, 1012 (10th Cir.1999). The charges against Orr required the prosecution to prove Orr deliberately misrepresented material facts. In other words, Orr lied to his investors and EPA’s representatives. The prosecutor’s reference to those misrepresentations as lies is not prosecutorial misconduct. C. Denial of Orr’s Request for a New Trial Based on Newly Discovered Evidence Orr claims the district court erred in denying his motions for a new trial based on newly discovered evidence. See Fed.R.Crim.P. 33. We review the court’s denial of this motion for an abuse of discretion. United States v. Combs, 267 F.3d 1167, 1176 (10th Cir.2001). To show an abuse of discretion, Orr must establish: (1) the evidence was discovered after trial; (2) the failure to learn of the evidence was not caused by lack of diligence; (3) the new evidence is not merely impeaching or cumulative; (4) the new evidence is material to the principal issues involved; and (5) the new evidence would probably produce an acquittal if a new trial were granted. United States v. La Vallee, 439 F.3d 670, 700 (10th Cir.2006). “A motion for a new trial based on newly discovered evidence is not favorably regarded and should be granted only with great caution.” United States v. McCullough, 457 F.3d 1150, 1167 (10th Cir.2006). 1. Tony O’Riordan Orr’s first motion claimed newly discovered evidence in the testimony of Tony O’Riordan. It stated “[he] and his counsel were aware of Mr. O’Riordan’s existence at the time of trial and that he might have important testimony. Orr and his counsel had difficulty locating him until near the time of trial, when it was learned he was in Zimbabwe.... Counsel’s efforts to get Mr. O’Riordan to come to trial proved to be unsuccessful.” (Vol. 4, Part 1 at 57.) According to Orr, defense counsel did not learn until April 6, 2009, that O’Riordan was back from Zimbabwe. O’Riordan, a respected professional investment advisor, would have credibly supported Orr’s recollections of his meetings and," }, { "docid": "12165345", "title": "", "text": "on the basis of newly discovered evidence: (a) the evidence must be in fact, newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the [defendant]; (c) the evidence relied on, must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal. Iannelli, 528 F.2d at 1292. “Although the decision to grant or deny a motion for a new trial lies within the discretion of the district court, the movant has a ‘heavy burden’ of proving each of these requirements.” United States v. Cimera, 459 F.3d 452, 458 (3d Cir.2006). If just one of the requirements is not satisfied, a defendant’s Rule 33 motion must fail. United States v. Jasin, 280 F.3d 355, 365 (3d Cir.2002). Courts should “exercise great caution in setting aside a verdict reached after fully-conducted proceedings,” and particularly so where “the action has been tried before a jury.” United States v. Kamel, 965 F.2d 484, 493 (7th Cir.1992) (internal quotation marks omitted). In this case, the District Court concluded that Kelly had met his burden of establishing each of the Iannelli requirements. On appeal, the Government challenges the District Court’s disposition as to two of the requirements: diligence and probability of acquittal. We address each of the challenged requirements in turn. I. Diligence The Government contends that the District Court applied the incorrect legal standard in concluding that Kelly had satisfied the diligence prong of the Iannelli analysis. Specifically, the Government argues that the District Court erred in focusing its diligence inquiry on Kelly’s post-trial efforts to bring Jones’s testimony to the attention of the Court once the potential testimony was discovered, as opposed to focusing on Kelly’s pre-trial efforts to discover Jones’s testimony in the first place. We agree. As recognized above, the second prong of the Iannelli analysis requires a defendant to allege facts “from which the court may infer diligence.”" }, { "docid": "22783786", "title": "", "text": "witness sequestration violations was unavailable at all on direct appeal. Further, Lynn has not shown that any “objective factor external to the defense” prevented him from raising his witness sequestration claim on direct appeal. Jones, 256 F.3d at 1145; Johnson, 256 F.3d at 1171; McCoy, 953 F.2d at 1258. Rather, the factor preventing Lynn from raising his witness sequestration and improper vouching claims on direct appeal was his unlawful escape from custody. If Lynn had not escaped, this Court would have addressed not only his improper vouching claim but also his witness sequestration claim in his direct appeal. Second, to the extent Lynn raises a pure, but stronger, witness sequestration claim, Lynn has not shown cause because he has not satisfied the standards for a new trial based on newly discovered evidence. This Court has concluded that § 2255 motions based on new evidence are subject to the standards generally applicable to motions for a new trial based on new evidence. Greene, 880 F.2d at 1306-07; Bentley v. United States, 701 F.2d 897, 898 (11th Cir.1983); Everitt v. United States, 353 F.2d 532, 532 (5th Cir.1965). There are now five requirements that a movant must satisfy before a new trial will be granted based on newly discovered evidence. United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir.2003). The five requirements are as follows: (1) the evidence was discovered after trial, (2) the failure of the defendant to discover the evidence was not due to a lack of diligence, (3) the evidence is not merely cumulative or impeaching, (4) the evidence is material to issues before the court, and (5) the evidence is such that a new trial would probably produce a different result. Id. (citations omitted). Furthermore, “we have held that motions for a new trial are highly disfavored, and that district courts should use great caution in granting a new trial motion based on newly discovered evidence.” Id. (internal quotation marks and citation omitted). Lynn would have to satisfy these five requirements to obtain a new trial based on new evidence if the issue was raised on direct" }, { "docid": "22448717", "title": "", "text": "§ 2106 and remand the case to the district court for resentencing. See United States v. Hagler, 709 F.2d 578, 579 (9th Cir.), cert. denied, 464 U.S. 917, 104 S.Ct. 282, 78 L.Ed.2d 260 (1983); United States v. Jordan, 895 F.2d 512, 515-16 (9th Cir.1989).” B. MOTION FOR A NEW TRIAL The appellant moved for a new trial on the grounds of newly discovered evidence. He argued that he discovered after the verdict that a tape recording relied upon by the government at trial had been altered, and that he located two potential witnesses who were unavailable at the time of trial. The district court denied the motion on the grounds that the appellant had not exercised due diligence in either discovering the evidence sooner, or informing the judge of its unavailability so that appropriate action (e.g. a continuance or, in the case of the witnesses, a subpoena) could be taken. Furthermore, the judge found that the evidence would not probably result in an acquittal. This Court reviews a decision denying a motion for a new trial based on newly discovered evidence for an abuse of discretion. United States v. Lopez, 803 F.2d 969, 977 (9th Cir.1986), cert. denied, 481 U.S. 1030, 107 S.Ct. 1959, 95 L.Ed.2d 530 (1987). As the district judge noted, to prevail on a Rule 33 motion for a new trial, the movant must satisfy a five-part test: (1) the evidence must be newly discovered; (2) the failure to discover the evidence sooner must not be the result of a lack of diligence on the defendant’s part; (3) the evidence must be material to the issues at trial; (4) the evidence must be neither cumulative nor merely impeaching; and (5) the evidence must indicate that a new trial would probably result in acquittal. Id. Applying this test, the district judge’s denial of the motion was well within his discretion. The appellant’s failure to inform the judge before or at least during the trial that he was unable to locate two witnesses indicates a lack of due diligence. As to the tapes, the appellant argues that evidence" }, { "docid": "8149176", "title": "", "text": "he fired no shots during the arrest and further that he was not armed with his nine-millimeter pistol that day. Agent Gonzalez also reported that neither he nor Poncedeleon fired a weapon. Lopez-Escobar argues that the ballistic test demonstrates that Agent Poncedeleon fired his nine-millimeter pistol, and therefore both agents, committed perjury. The agents and Lopez-Esco-bar offered completely contradictory accounts of the events leading to Lopez-Es-cobar’s arrest; thus, reasons Lopez-Esco-bar, any evidence that undermines the agents’ version of the facts and supports his own could affect the outcome of the case. Lopez-Escobar concludes that the district court should have granted his motion for a new trial because the false testimony of the two agents likely affected the jury’s verdict. The district court did not hold a hearing on or determine whether Agents Ponced e-leon and Gonzalez committed perjury. The court tacitly assumed for purpose of its analysis, however, that the agents did commit perjury. The court concluded, nevertheless, that the newly discovered evidence would probably not produce an acquittal. A defendant who moves for a new trial based on newly discovered evidence must usually show: 1) That the evidence was newly discovered and was unknown to the defendants at the time of the trial; 2) That the evidence was material, not merely cumulative or impeaching; 3) That it would probably produce an acquittal; and 4) That failure to learn of the evidence was due to no lack of diligence on the part of defendant ]. United States v. Williams, 613 F.2d 573, 575 (5th Cir.), cert. denied, 449 U.S. 849, 101 S.Ct. 137, 66 L.Ed.2d 60 (1980) (emphasis added) (interpreting Fed.R.Crim.P. 33); see also United States v. Snoddy, 862 F.2d 1154, 1156 (5th Cir.1989). In his motion for a new trial, Lopez-Escobar urged the court to grant him a new trial because the newly discovered evidence “would probably cause a different result in the trial of this cause.” The district court used this standard of materiality in its analysis. Lopez-Escobar now argues on appeal that the district court applied the wrong materiality standard. He contends that courts employ a more" }, { "docid": "23454536", "title": "", "text": "According to McCullough, a “jury should have heard” the evidence presented at the evidentiary hearing “and should have made th[e] credibility judgement [sic]; not the judge.” McCullough Br. at 31. “A motion for a new trial based on newly discovered evidence is not favorably regarded and should be granted only with great caution.” United States v. Combs, 267 F.3d 1167, 1176 (10th Cir.2001) (internal quotation marks omitted). To prevail on such a motion, a defendant must prove: “(1) the evidence was discovered after trial, (2) the failure to learn of the evidence was not caused by [his] own lack of diligence, (3) the new evidence is not merely impeaching, (4) the new evidence is material to the principal issues involved, and (5) the new evidence is of such a nature that in a new trial it would probably produce an acquittal.” United States v. LaVallee, 439 F.3d 670, 700 (10th Cir.2006) (quoting United States v. Quintanilla, 193 F.3d 1139, 1147 (10th Cir.1999)). The denial of a motion for new trial based on newly discovered evidence is reviewed for abuse of discretion. Combs, 267 F.3d at 1176. A district court abuses its discretion when its decision is “arbitrary, capricious, whimsical, or manifestly unreasonable.” Id. (internal quotation marks omitted). In ruling on McCullough’s motion, the district court in this case concluded that McCullough had satisfied the first four of the five prongs necessary for obtaining a new trial (i.e., that the evidence was discovered after trial, McCullough’s failure to learn of the evidence was not caused by his own lack of diligence, the new evidence was not merely impeaching, and the new evidence was material to the principal issues involved in the case). Importantly, however, the district court also concluded that McCullough had failed to satisfy the fifth prong of the test, i.e., establishing that the new evidence was of such a nature that in a new trial it would probably produce an acquittal. Although the district court agreed that the new evidence, “if believed, would probably produce an acquittal,” McCullough App., Vol. 1 at 129, it expressly found, based on the" }, { "docid": "20711858", "title": "", "text": "dispute in Scrushy’s favor — and Siegelman I accepted that resolution in affirming his denial of Scrushy’s motion for reconsideration — the authenticity of the emails was no longer at issue, and Judge Fuller was not likely to be a material witness in any proceeding. Having found no abuse of discretion in Judge Hinkle’s denial of Scrushy’s motion to recuse, we turn to Judge Fuller’s denial of Scrushy’s motion for a new trial. B. Rule 33 provides that motions for a new trial based on newly discovered evidence must be filed within three years of the verdict. Fed.R.Crim.P. 33(b)(1). “Motions for a new trial ... are highly disfavored in the Eleventh Circuit and should be granted only with great caution.” United States v. Campa, 459 F.3d 1121, 1151 (11th Cir.2006). “Newly discovered evidence need not relate directly to the issue of guilt or innocence to justify a new trial, but may be probative of another issue of law.” Id. (internal quotation marks and citations omitted). Questions regarding the “fairness or impartiality of a jury” may be grounds for a new trial based on newly discovered evidence, id., as may evidence that would “afford reasonable grounds to question ... the integrity of the verdict.” United States v. Williams, 613 F.2d 573, 575 (5th Cir.1980). To obtain a new trial under Rule 33(b)(1), “a movant must satisfy four elements: (1) the evidence must be newly discovered and have been unknown to the defendant at the time of trial; (2) the evidence must be material, and not merely cumulative or impeaching; (3) the evidence must be such that it would probably produce an acquittal; and (4) the failure to learn of such evidence must be due to no lack of due diligence on the part of the defendant.” United States v. Espinosa-Hernandez, 918 F.2d 911, 913 n. 5 (11th Cir.1990). As indicated, supra, five of the six grounds Scrushy relied on in seeking a new trial are before us in this appeal. We review them in order, starting with his claim that he was subjected to selective prosecution in violation of his Fifth" }, { "docid": "23636791", "title": "", "text": "argues that the district court erred in denying his motion for a new trial on the basis of newly discovered evidence which would have further impugned the credibility of Bennie Champion’s testimony. At trial, Bennie testified that he and Stan decided to assist Delarm by securing bond and an attorney when Delarm was arrested after the August 1980 load. Bennie went to Earl Hauk, “the bail bondsman,” to get Hauk to post bond for Delarm. After the trial was over, Stan’s counsel learned that Hauk’s license as a registered bondsman in Florida had been revoked prior to August 1980. In arguing that the evidence requires a new trial, appellant now suggests that the government may have wilfully suppressed this evidence. Because a motion for new trial is addressed to the sound discretion of the trial court, the court’s decision to deny a new trial motion will not be reversed absent an abuse of discretion. United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir.1985); United States v. Russo, 717 F.2d 545, 550 (11th Cir.1983). In the case of a motion for new trial based upon newly discovered evidence, five elements must be present to justify a new trial: (1) the evidence must be discovered following trial; (2) the movant must show due diligence to discover the evidence; (3) the evidence must not be merely cumulative or impeaching; (4) the evidence must be material to issues before the court; and (5) the evidence must be of such a nature that a new trial would probably produce a new result. United States v. Bollinger, 796 F.2d 1394, 1401 (11th Cir.1986). The newly discovered evidence urged by appellant as a basis for granting his motion for a new trial fails to satisfy at least three of the elements necessary to justify a new trial. First, the evidence would, at most, tend to impeach Bennie Champion’s credibility. Newly discovered impeaching evidence is insufficient to warrant a new trial. United States v. Vitrano, 746 F.2d 766, 770 (11th Cir.1984). The evidence is also cumulative in that the defense impeached Bennie at trial by producing proof" }, { "docid": "20711859", "title": "", "text": "be grounds for a new trial based on newly discovered evidence, id., as may evidence that would “afford reasonable grounds to question ... the integrity of the verdict.” United States v. Williams, 613 F.2d 573, 575 (5th Cir.1980). To obtain a new trial under Rule 33(b)(1), “a movant must satisfy four elements: (1) the evidence must be newly discovered and have been unknown to the defendant at the time of trial; (2) the evidence must be material, and not merely cumulative or impeaching; (3) the evidence must be such that it would probably produce an acquittal; and (4) the failure to learn of such evidence must be due to no lack of due diligence on the part of the defendant.” United States v. Espinosa-Hernandez, 918 F.2d 911, 913 n. 5 (11th Cir.1990). As indicated, supra, five of the six grounds Scrushy relied on in seeking a new trial are before us in this appeal. We review them in order, starting with his claim that he was subjected to selective prosecution in violation of his Fifth Amendment right to the equal protection of the law. 1. The Fifth Amendment’s Due Process Clause has an equal protection component akin to the Equal Protection Clause of the Fourteenth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct. 693, 694-95, 98 L.Ed. 884 (1954). It prohibits the federal government from denying to any person in the United States the equal protection of the laws. Scrushy seeks the vacation of his convictions, and perhaps a judgment of acquittal, on the ground that the Government denied him equal protection in prosecuting him for the crimes contained in the second superseding indictment. Scrushy was indicted because he contributed $500,000 to an issue-advocacy campaign supported by then-Governor Sie-gelman and, in return, received an appointment to Alabama’s Certificate of Need Review Board. His prosecution was selective, he says, because other similarly situated people made campaign donations and received gubernatorial appointments but were not prosecuted. Scrushy’s selective prosecution claim fails for two reasons. First, a claim of selective prosecution is not the proper subject of a Rule 33(b)(1)" } ]

[ { "docid": "22708925", "title": "", "text": "same invention, would involve the drawing of distinctions too refined for the practical administration of the patent law. ■ But aside from- this 1879 patent, we think that the .broad claim of-the 1881 patent is clearly anticipated by the patent of W. P. Brown, No. 190,816, dated May 15, 1877, for an improved coupling for cultivators-. The specification, fórming-a part of this patent, states that to “ render the manipulation of the plows or cultivator easy, I provide an arrangement whereby either springs, weights, or the- draff- bar may be. utilized for sustaining a,part of the weight of the. said cultivators, when they are lifted from the ground to be hung up or shifted late rally. In accomplishing this I construct the pipe box with a hooked arm m to lock the pipe box; and as the cultivator beam in the rear is rigidly attached to the pipe box, by the stirrup or sleeve, the spring has a tendency to rock the pipe box and assist the driver in lifting the cultivators.”- The flat curved spring device shown in this patent, with the link or arm connecting its free end with the plow beam, exerts little or no force when the drag-bars, canning the plows, are in an operative position ; but when the latter are raised above their normal position, and, ás they are lifted, the spring exerts an increased lifting effect, sufficient to suspend the.drag-bars and attached shovels in the air. While differing in form and mode of attachment, this Brown device clearly anticipates the first broad claim of the patent of 1881. It admits of little or no question that if this Brown patent was one of later date than the Wright patent of 1881, it would be held to be an infringement thereof, and, under the authorities, “that which infringes if later,..anticipates if earlier.” Peters v. Active Mfg. Co., 129 U. S. 530; Thatcher Heating Co. v. Burtis, 121 U. S. 286, 295; Grant v. Walter, 148 U. S. 547, 554; Gordon v. Warder, 150 U. S. 47; Knapp v. Morss, 150 U. S. 221. In" } ]

[ { "docid": "23083885", "title": "", "text": "in the production of zero water for the first time. Its commercial success has been great. It is a new and useful result obtained by the use of a new apparatus, although in the construction old elements have been used. This entitles the inventor to the protection of a patent. Loom Co. v. Higgins, 105 U. S. 580, 26 L. Ed. 1177. A disclaimer was filed as to claim 1. The petitioner disclaimed, from the scope of claim 1 of the patent in suit, any water-softening apparatus including a layer of zeolite or hydrated alumino-silicates disposed on a layer of sand or quartz in which the water to be softened is so introduced into the casing that it passes upwardly through said layer of zeolite. It was intended by this to exclude from the scope of claim 1 the apparatus in which the water to be softened passes upwardly through the layer of zeolite. By this nothing was injected into the patent as argued by the appellants. This action was taken for the purpose of limiting its effect. The power to disclaim is a beneficial one, and should not be denied, except where a fraudulent and deceptive purpose is apparent. Sessions v. Romadka, 145 U. S. 29, 12 Sup. Ct. 799, 36 L. Ed. 609. We find no evidence of such purpose here. As we have pointed out, from a somewhat exhaustive examination of what was submitted below on the question of anticipation, it was apparent that appellants’ apparatus was not constructed from either the description set forth in the various publications or from that which is indicated by the prior art. The appellants’ construction has a bed of zeolite resting on a layer of gravel, and this in turn rests on a concrete filling. There is a free space above the zeolite, which permits water to be introduced and the zeolites to arrange themselves with a layer of fine zeolite at the top, thus providing an even distribution of water throughout the bed. The water is first filtered by a filter located outside the casing, instead of within it," }, { "docid": "5250963", "title": "", "text": "Q. Then you have not seen in operation stemming saws identically like that shown in Fig. 3 of the Benthall patent, No. 890,401, in suit? A. No.” The following question and answer is to be found at the close of Brandenburg’s testimony: “Q. Throughout your deposition you have analyzed constructions showing in a number of patents. Have you ever seen in operation any machine built in absolute strict accordance with the exact structure disclosed in any of the patents you have discussed? A. No.” It is insisted by complainant that a new combination of old things may be patentable, and in support thereof cites the cases of Loom Co. v. Higgins, 105 U. S. 580, 26 L. Ed. 1177; Seymour v. Osborne, 11 Wall. 516, 20 L. Ed. 33; “The Barb Wire Fence Patent,” 143 U. S. 275, 12 Sup. Ct. 443, 36 L. Ed. 154; Bates v. Coe, 98 U. S. 31, 25 L. Ed. 68; Hobbs v. Beach, 180 U. S. 383, 21 Sup. Ct. 409, 45 B. Ed. 586; National Hollow Brake-Beam v. Interchangeable Brake Beam, 106 Fed. 693, 45 C. C. A. 544. This rule is well-established, but in the case upon which it relies the combination is new, and the result of the combination of the old elements is also new. In the case at bar there is no co-operation between the elements; the throats having their sides meeting at an angle. A protected point is disclosed in Hazelton’s patents, and is therefore not new. Wedge-shaped throats are disclosed in the Hazelton patent, No. 253,554, and the Scott patent, No. 125,338, is also old. There being no co-operation between these functions, we have the result that each must act in the old way; the joint product being aggregation of the old result, which, under the rule, is not patentable. In the case of Hailes v. Van Wormer, 20 Wall. 353, 22 L. Ed. 241, the Supreme Court, in referring to a patent on a stove claiming in combination fire pot, magazine, and draft opening, in the third syllabus said: “No one, by \"bringing together several" }, { "docid": "22342042", "title": "", "text": "improvement he made was the production, not of the skill of the mechanic, but of the intuitive genius of the inventor. Thomson v. Bank, 53 Fed. 256, 3 C. C. A. 518, 10 U. S. App. 500; Griswold v. Harker, 62 Fed. 389, 393, 10 C. C. A. 435, 439, 27 U. S. App. 122, 152; Loom Co. v. Higgins, 105 U. S. 580, 591, 26 L. Ed. 1177; Consolidated Safety-Valve Co. v. Crosby Steam-Gauge & Valve Co., 113 U. S. 157, 179, 5 Sup. Ct. 513, 28 L. Ed. 939; Magowan v. Packing Co., 141 U. S. 332, 341, 343, 12 Sup. Ct. 71, 35 L. Ed. 781; In re Barbed-Wire Patent, 143 U. S. 275, 281, 283, 12 Sup. Ct. 443, 450, 36 L. Ed. 154. The combination of mechanical devices found in the second claim of the first patent to Hien was novel and useful, and the patent which secured it is valid. Turning to the first, second, and seventh claims of the second patent to Hien, we are met by the contention of counsel for the appellee that they are anticipated by the combination of his first patent, because the camber or resilience in the beam, which is the only new factor in these claims, may be produced, maintained, and adjusted by simply turning the nuts of the former device. In opposition to this view counsel for the appellants argue that this camber in the beam or the cambered beam of the second patent is a new element, not described or claimed, and not found, in the combination of the first patent, and that its addition to that combination constitutes a new and patentable invention. The argument is ingenious and persuasive, but it is certainly fallacious. The camber or resilience in the beam is one of the products or functions of the brake beam of the first patent; not,1 indeed, the ultimate function which that beam was created to perform, the function of stopping cars, but nevertheless a function of that device, because it may be produced by the use of that combination by simply turning" }, { "docid": "9330655", "title": "", "text": "lines, which later brought success, is entitled to his own construction; and the same rule applies to Weinberg. “If the advance towards the thing desired is gradual, and proceeds step by step, so that no one can claim the complete whole, then each is entitled only to the specific form of -device which he produces, and every other inventor is entitled to Ids own specific form, so long as it differs from those of his competitors, and does not include theirs.” Adams El. Ry. Co. v. Lindell Ry. Co., 77 Fed. 432, 23 C. C. A. 223, quoting from Railway Co. v. Sayles, 97 U. S. 554, 24 L. Ed. 1053. It is true that some of the Jay claims do not count on this open air-vent, but the plaintiffs can have no benefit from that fact. The patents are on combinations of elements, not on the elements themselves. An essential element of the combination is the means of breaking vacuum by the air-port connection. It is the full combination which by the statute the inventor is required to claim: “He shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery.” He is not authorized to claim two or four out of the six elements of his combination, but the whole six; and, if he fails to comply with the statute, the court will read into the claim the omitted elements for the purpose of examining into its validity or infringement. Westinghouse v. Boyden Power-Brake Co., 170 U. S. 537, 558, 18 Sup. Ct. 707, 42 L. Ed. 1136. It is true, of course, that a patentee may claim two or more combinations, if they actually exist, and one may include another; but each must be a complete combination in and of itself, and not a portion only. Gordon v. Warder, 150 U. S. 47, 14 Sup. Ct. 32, 37 L. Ed. 392. The three patents in suit are sustained and held not infringed. Bill to be dismissed, with costs." }, { "docid": "2901279", "title": "", "text": "suggests any co-operation of the elements upon the principle adopted by the patent in suit, or upon any principle adapted to serve the same purpose, the use of the old elements may limit, but cannot defeat, the patent. * * * The finding in the old devices, one portion here, one in another, and so on, should not defeat a patent for the combination; which is only truly anticipated by a prior device having identically the same elements, or their mechanical equivalents, cooperating to produce the same results.” Imperial Bottle Cap & Machine Co. v. Crown Cork & Seal Co., 139 F. 312, 319, 320. The same general principle which this court was, quite recently, called upon to announce in a case involving a process patent, is applicable here. This court said: “A presumption of invention is not overcome by the fact that an expert may be able to build up the patented process by selecting parts' taken from the prior art. That wisdom which comes after the fact will not be permitted to defeat the claim of him who first fully accomplishes the desired end, be it ever so simple, for in the law of patents it is the last step that wins. Diamond Rubber Co. v. Consolidated Rubber Tire Co., 220 U. S. 428, 31 S. Ct. 444, 55 L. Ed. 527; Carnegie Steel Co. v. Cambria Iron Co., 185 U. S. 403, 22 S. Ct. 698, 46 L. Ed. 968; Webster Loom Co. v. Higgins, 105 U. S. 580, 26 L. Ed. 1177.” Vortex Mfg. Co. v. Ply-Rite Contracting Co. (D. C.) 33 E.(2d) 302, 308. Were there any doubt as to the patentability of the device here in issue, the court would be compelled to resolve such doubt in favor of the plaintiff, because of the commercial success of the device, as indicated by testimony which is not contra dieted. Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U. S. 45, 43 S. Ct. 322, 67 L. Ed. 523; Trane Co. v. Nash Engineering Co. (C. C. A.) 25 F.(2d) 267; Thropp’s Sons Co." }, { "docid": "22342063", "title": "", "text": "claim on references cited in the patent office, and accepts a patent on an amended claim, he is thereby estopped from maintaining that the amended claim covers the combinations shown in the references, and from claiming that it has the breadth of the claim that was rejected. Roemer v. Peddie, 132 U. S. 313, 317, 10 Sup. Ct. 98, 33 L. Ed. 382; Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co., 152 U. S. 425, 429, 14 Sup. Ct. 627, 38 L. Ed. 500; Brill v. Car Co., 90 Fed. 666, 668, 33 C. C. A. 213, 215, 62 U. S. App. 276, 282; Railroad Co. v. Kearney, 158 U. S. 461, 469, 15 Sup. Ct. 871, 39 L. Ed. 1055; Knapp v. Morss, 150 U. S. 221, 14 Sup. Ct. 81, 37 L. Ed. 1059; Crawford v. Heysinger, 123 U. S. 589, 8 Sup. Ct. 399, 31 L. Ed. 269. But this is the limit of the estoppel. One who acquiesces in the rejection of his claim because it is said to be anticipated by other patents or references is not thereby estopped from claiming and securing; by an amended claim every known and useful improvement which he has invented that is not disclosed by those references. The only limitation, therefore, imposed upon the second claim of the patent to Hien by the rejection of the original claim, was that he was thereby estopped from maintaining that it covered the devices disclosed in the references ■cited by the examiner, which the latter believed were within the limits of the claim first presented. In an earlier part of this opinion each of these references has been carefully considered, and has been found to be without the limits of the amended claim, and yet that claim has been found to be broad enough to protect the principle and the combination which the appellee has copied. The proceedings in the patent office, therefore, have not so restricted the scope of this patent that the appellee can appropriate the principle and the combination it discloses and secures, and then escape liability by" }, { "docid": "13848838", "title": "", "text": "the lower end of the chain to a basket is the equivalent of the specific means pointed out in the appellee’s combination, it would follow that attaching it to any article of furniture, or to the wall, as in the Reid patent, would also be a mechanical equivalent. Brown made claims broad enough to include such methods of attaching the lower end of the chain, but in view of the prior art they were rejected by the Patent Office. A claim cannot be so construed as to cover what was rejected by the Patent Office in the application for the patent. Knapp v. Morss, 150 U. S. 221, 14 Sup. Ct. 81, 37 L. Ed. 1059. In Cleveland Pneumatic Tool Co. v. Chicago Pneumatic Tool Co., 135 Fed. 783, 68 C. C. A. 485, it was said: “A device which, if existent before the making of a patented invention, would not anticipate it, cannot, if made after the issue of the patent, be said to infringe it.” See, also, Riverside Heights Orange Growers’ Ass’n v. Stebler, 240 Fed. 703, 709, — C. C. A. —, and cases there cited. We think it clear that the appellee’s claims should be so interpreted as to cover only details of construction, and that the appellant’s device does not infringe, since it lacks the element which is the distinguishing feature of Brown’s invention. It appears from the pleadings and the evidence that before the appellee’s patent issued the appellant had been using a device identical with that of the appellee, and that it continued so to do from the date of the patent, November 3, 1914, to December 1st following. For that infringement the appellant is answerable to the appellee in damages, on the principles announced in Dowagiac Mfg. Co. v. Minnesota Plow Co., 235 U. S. 641, 35 Sup. Ct 221, 59 L. Ed. 398. The decree of the court below is reversed, and the cause is remanded for further proceedings. fe^For other cases see same topic & KFY-NUMBER in all Key-Numbered Digests <& Indexes" }, { "docid": "6798868", "title": "", "text": "of the diamond shqpe prong, but evidently it did not; and to the man to whom it did ought not to be denied the quality of inventor. There are many instances in the reported decisions of this court where a monopoly has been sustained in favor of the last of a series of inventors, all of whom were groping to attain a certain result, which only the last one of the number seemed able to grasp.” The Barbed Wire Patent, 143 U. S. 275, 283, 12 Sup. Ct. 443, 446 (36 L. Ed. 154). See, also, Loom Co. v. Higgins, 105 U. S. 580, 591, 26 L. Ed. 1177; Consolidated Valve Co. v. Crosby Valve Co., 113 U. S. 157, 179, 5 Sup. Ct. 513, 28 L. Ed. 939. The Wood pump was at once successful commercially as well as mechanically. “In view of the phenomenal success of the patented pipe, after the public became aware of its advantages, * * * we are of the opinion that any doubt as to patentability should be resolved in favor of the patent.” Stillwell v. McPherson, Highway Com’r, 218 Fed. 839, 840, 134 C. C. A. 611, 612. See, also, Mineral Separation, Ltd., v. Hyde, 242 U. S. 261, 270, 37 Sup. Ct. 82, 61 L. Ed. 286. We think that the Wood patent was not invalid for want of novelty. (2) A defense most earnestly urged was that plaintiff’s invention had been anticipated by several patents. Where anticipation is relied on as a defense, it should be clearly proved, and, in cases of reasonable doubt, the doubt should be resolved in favor of the patent attacked. Coffin v. Ogden, 18 Wall. 120, 21 L. Ed. 821; Victor Talking Machine Co. v. Duplex Phonograph Co. (C. C.) 177 Fed. 248; Simonds Rolling Machine Co. v. Hathorn Mfg. Co., 93 Fed. 958, 36 C. C. A. 24. Referring to the Thomson patent, which is claimed to have anticipated the Wood patent, it does not appear to have been put to practical use to any extent. That this should be considered on the question" }, { "docid": "6688789", "title": "", "text": "state in which I left it in December, 1885. It was not in a condition to run commercially. It never was in a condition to work commercially. It was in a constant state of progress, improving like every other machine.” Of the exhibit Judge Wheeler says: “The use of it was open; and mechanically, but not commercially successful, and was on the latter account abandoned.” This finding is fully justified by the proof. It is this abandoned failure, covered with the dust of 14 years of oblivion, which is relied on to defeat the appellees’ patent. If it had been able to unhair pelts successfully it meant untold wealth to its owner. Covert knew that the 14 years referred to¡ was a period of great activity in the unhairing business. Do not the same presumptions hold as in the case of the Lake patent? If the Covert machine were of any practical use is it conceivable that during all this period of activity it would have remained unused or that it would remain unused to-day? Covert came nearer than any one else to a successful machine. He had but one more step to take and here he became bewildered and went astray. He missed the apparently simple arrangement of the rotary brush which alone was necessary. It will not do to say that the prior art showed such a brush. Every element of the combination in controversy was unquestionably old, but there was nothing in the prior art to suggest a rotary brush working in the environment shown in the Sutton patent. There was nowhere a rotary brush making a “part” on a keen edged stretcher-bar and brushing the fur down and out of reach of the cutting knives during the moment necessary for the removal of the stiff hairs. It is the presence of this element in the combination which produces the new result and entitles its originator to protection. Loom Co. v. Higgins, 105 U. S. 580, 26 L. Ed. 1177; Topliff v. Topliff, 145 U. S. 156, 12 Sup. Ct. 825, 36 L. Ed. 658; Hobbs v." }, { "docid": "6688790", "title": "", "text": "Covert came nearer than any one else to a successful machine. He had but one more step to take and here he became bewildered and went astray. He missed the apparently simple arrangement of the rotary brush which alone was necessary. It will not do to say that the prior art showed such a brush. Every element of the combination in controversy was unquestionably old, but there was nothing in the prior art to suggest a rotary brush working in the environment shown in the Sutton patent. There was nowhere a rotary brush making a “part” on a keen edged stretcher-bar and brushing the fur down and out of reach of the cutting knives during the moment necessary for the removal of the stiff hairs. It is the presence of this element in the combination which produces the new result and entitles its originator to protection. Loom Co. v. Higgins, 105 U. S. 580, 26 L. Ed. 1177; Topliff v. Topliff, 145 U. S. 156, 12 Sup. Ct. 825, 36 L. Ed. 658; Hobbs v. Beach, 180 U. S. 383, 21 Sup. Ct. 409, 45 L. Ed. 586. An admitted success should not be destroyed by an admitted failure. Entertaining the opinion that the Lake and Covert machines were incapable of unhairing pelts successfully, that they were commercial failures, unrecognized by the trade and abandoned by their designers, and having reached the conclusion that Sutton was the first to discover the important change which assured a perfect machine, it follows that he is entitled to a construction of his claim which will permit him to hold what he has actually contributed to the art. The appellant’s machine is made under the Mischke patent of January 2, 1900. It has a stretcher-bar, means for feeding the skin over the bar, a stationary card above the bar, a rotary separating brush below the bar and mechanism whereby the stretcher-bar is moved towards and along the brush so that a parting is effected and the fur is brushed down on the “off side” of the bar. In short, there is in the machine" }, { "docid": "192684", "title": "", "text": "and creative faculty, and not merely the exercise of reason and experience, or the act of a mechanic skilled in the art. Walker on Patents, second chapter; Thompson v. Boisselier, 114 U. S. 1, 12, 5 Sup. Ct. 1042, 29 L. Ed. 76; Atlantic Works v. Brady, 107 U. S. 192, 2 Sup. Ct. 225, 27 L. Ed. 438; Brown et al. v. Piper, 91 U. S. 37, 23 L. Ed. 200. It must be said, of course, that what appear to be simple devices often are found to have great merit, and that, now that a thing has succeeded, “it may seem very plain to any one that he could have done it as well.” Loom Co. v. Higgins, 105 U. S. 580, 591, 26 L. Ed. 1177. But, in the cases which we have already cited, and in many others, the courts have held that, in passing upon the question of invention, we must be governed by matters of common knowledge, and by attempting to distinguish between mere mechanical devices and those which appeal to an intuitive and creative faculty of the mind. It seems to us that any man of ordinary mechanical skill would see at once that the dangers of an inflexible roof over the entrance to a descending elevator may be avoided by displacing a portion of the roof, and, if need be, by attaching hinges to the displaced portion, and that so removing the roof section does not involve anything more than the act’of an observant mechanic skilled in the art. We must find that the patent in question is void for want of patent-ability. In reaching this conclusion we have allowed its due weight to the presumption in favor of the validity of the patent arising from the action of the Patent Office in granting it. But such action does not excuse us from a careful examination of the character and nature of the matter upon which the patent is sought to be sustained. Having- found that the patent is invalid for want of invention, it is not necessary to pass upon the" }, { "docid": "15683739", "title": "", "text": "But there are important qualifications to this rule. First, it is not an invariable one. Webster Loom Co. v. Higgins, supra, and Knapp v. Morss, 150 U. S. 221, 227, 14 S. Ct. 81, 37 L. Ed. 1059. Again, such a new combination of old elements is not irrebuttable proof of invention, but merely, as we have seen, “evidence” of it. Webster Loom Co. v. Higgins, supra; Knapp v. Morss, supra; National Tube Co. v. Aiken (C. C. A. 6) 163 F. 254, 261. In the third place, in the language ,of Mr. Justice Strong, in Hailes v. Van Wormer, supra, “the results must be a product of the combination, and not a mere aggregate of several results, each the complete product of one of the combined elements.” In other words, as was stated by the late Judge Gilbert of this court, in Pelton Water Wheel Co. v. Doble, 190 F. 760, 766: “In order to be patentable, a combination of elements must in their co-relation produce a different force, or effect, or result, from the sum of that which is produced by their separate parts.” See, also, Pickering v. McCullough, supra; Knapp v. Morss, supra. In the fourth place, and most important of all, “an instrument or manufacture which is the result of mechanical skill merely is not patentable. Mechanical skill is one thing; invention is a different thing. Perfection of workmanship, however much it may * * * diminish expense, is not patentable. The distinction between mechanical skill, with its conveniences and advantages and inventive genius, is recognized in all the cases.” Reckendorfer v. Faber, 92 U. S. 347, 356, 357, 23 L. Ed. 719. See, also, National Tube Co. v. Aiken, supra, at pages 260, 261 of 163 F.; H. J. Heinz Co. v. Cohn, supra; Keszthelyi v. Doheny Stone Drill Co. (C. C. A. 9) 59 F. (2d) 3, 7, 8. We turn now to apply the foregoing principles to the instant case. On the subject of the prior art and of the lack of invention, the master found as follows: “Summing up the prior art" }, { "docid": "22342043", "title": "", "text": "contention of counsel for the appellee that they are anticipated by the combination of his first patent, because the camber or resilience in the beam, which is the only new factor in these claims, may be produced, maintained, and adjusted by simply turning the nuts of the former device. In opposition to this view counsel for the appellants argue that this camber in the beam or the cambered beam of the second patent is a new element, not described or claimed, and not found, in the combination of the first patent, and that its addition to that combination constitutes a new and patentable invention. The argument is ingenious and persuasive, but it is certainly fallacious. The camber or resilience in the beam is one of the products or functions of the brake beam of the first patent; not,1 indeed, the ultimate function which that beam was created to perform, the function of stopping cars, but nevertheless a function of that device, because it may be produced by the use of that combination by simply turning the nuts upon the ends of its tension rod. Now, the function or result of the operation of a machine or combination is not patentable under our laws, and therefore the camber in the beam could not be monopolized by means of a patent. The means, the mechanical device, by which that camber was produced and that alone, was capable of protection by such a franchise. Fuller v. Yentzer, 94 U. S. 288, 24 L. Ed. 103; Pencil Co. v. Howard, 20 Wall. 498, 507, 22 L. Ed. 410; Miller v. Manufacturing Co., 151 U. S. 186, 201, 14 Sup. Ct. 310, 38 L. Ed. 121; Knapp v. Morss, 150 U. S. 221, 228, 14 Sup. Ct. 81, 37 L. Ed. 1059; Carver v. Hyde, 16 Pet. 513, 519, 10 L. Ed. 1051; Le Roy v. Tatham, 14 How. 156, 14 L. Ed. 367; Corning v. Burden, 15 How. 252, 14 L. Ed. 683; Burr v. Duryee, 1 Wall. 531, 17 L. Ed. 650. Again, since a function is not patentable, a combination of functions" }, { "docid": "14768879", "title": "", "text": "key-actuated plunger for engaging said flange at a diagonally opposite point from said lug and provided with locking recesses, means on the underside of said cover including integral ribs adapted to occupy said recesses for normally holding said plunger in position to be actuated by a key, means for holding said plunger in the locked and unlocked position, and means permitting a vertical movement of said plunger to pass from the locked to the unlocked position and vice versa.” The evidence discloses that a number of improvements in meter boxes, especially with reference to -locking and fastening down the lids thereon,- either -had been patented or were in cojnmon use before Rynearson obtained his patent, and that the claim of that patent was limited by the Patent Office to the diametrical rib attached to the underside , of the lid, the plunger operating through a hole in it, and the spring used in connection with the plunger. Where a broad claim of invention is' rejected, and the inventor acquiesces and substitutes a narrower claim, which is allowed, he cannot thereafter insist that the claims allowed cover the claims rejected. Shepard v. Carrigan, 116 U. S. 593, 6 S. Ct. 493, 29 L. Ed. 723; Corbin Cabinet Lock Co. v. Eagle Lock Co., 150 U. S. 38, 14 S. Ct. 28, 37 L. Ed. 989; Knapp v. Morss, 150 U. S. 221, 14 S. Ct. 81, 37 L. Ed. 1059; Hubbell v. United States, 179 U. S. 77, 21 S. Ct. 24, 45 L. Ed. 95; Computing Scale Co. v. Automatic Scale Co., 204 U. S. 609, 27 S. Ct. 307, 51 L. Ed. 645. A presumption arises from the grant of letters patent to Crotto that his invention is different from that of Rynearson. Kokomo Fence Co. v. Kitselman, 189 U. S. 8, 23 S. Ct. 521, 47 L. Ed. 689. A comparison of the two patents discloses, as it appears to us, that there is a difference. The Crotto device does not have a diametrical rib. The plunger is held in plaee by bosses or lugs, depending from the" }, { "docid": "14948784", "title": "", "text": "the PTO Board of Appeals in Ex Parte Frederick C. Holtz, Jr., supra, fully supports the foregoing analysis and conclusion. Anticipation One element necessary to sustain patent validity is novelty. Eli Lilly & Co. v. Premo Pharmaceutical Laboratories, Inc., 630 F.2d 120 (3d Cir.), cert. denied 449 U.S. 1014, 101 S.Ct. 573, 66 L.Ed.2d 473 (1980). This requirement’has been codified in 35 U.S.C. § 102 (1982) and is closely related to the nonobvious requirement of 35 U.S.C. § 103. The standard for lack of novelty, for “anticipation,” is one of strict identity. To anticipate a claim for a patent, a single prior source must contain all of the essential elements of that claim. 1 D. Chisum, Patents § 3.02 (1978). The classic test of anticipation is set forth in Knapp v. Morss, 150 U.S. 221, 14 S.Ct. 81, 37 L.Ed. 1059 (1893), and it provides “that which infringes, if later, would anticipate if earlier.” Id., at 228, 14 S.Ct. at 84, (quoting Peters v. Active Mfg. Co., 129 U.S. 530, 537, 9 S.Ct. 389, 392, 32 L.Ed. 738 (1889)). In addition to the novelty requirement, § 102 provides certain statutory bar or lofes of right provisions. Of specific relevance in this case is § 102(b), which the defendants cite as invalidating the Holtz patent at suit. § 102 provides in its pertinent part: A person shall be entitled to a patent unless— (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States ____ The defendants make several contentions with respect to statutory bar and anticipation. First, the defendants contend that the Mott article “Progress Report on Hot Forging Pre-Alloyed Metal Powders,” supra, provides a basis for the invalidation of the Holtz patent. Defendants contend that § 102(b) applies not only to prior publication of the invention in suit, but also to the prior publication of an invention with substantial identity to the patent in suit. Application" }, { "docid": "15683738", "title": "", "text": "produce a new and beneficial result, never attained before, it is evidence of invention.” See, also, Seymour v. Osborne, 11 Wall. (78 U. S.) 516, 542, 20 L. Ed. 33; Gould v. Rees, 15 Wall. (82 U. S.) 187, 189, 21 L. Ed. 39; Hailes v. Van Wormer, 20 Wall. (87 U. S.) 353, 368, 22 L. Ed. 241; Pickering v. McCullough, 104 U. S. 310, 317, 26 L. Ed. 749; Cantrell v. Wallick, 117 U. S. 689, 694, 6 S. Ct. 970, 29 L. Ed. 1017; The Barbed Wire Patent, 143 U. S. 275, 283, 284, 12 S. Ct. 443, 450, 36 L. Ed. 154; Leeds & Catlin Co. v. Victor Talking Mach. Co., 213 U. S. 301, 318, 29 S. Ct. 495, 53 L. Ed. 805; Diamond Rubber Co. v. Consol. Rubber Tire Co., 220 U. S. 428, 442, 443, 31 S. Ct. 444, 55 L. Ed. 527; Bliss v. Spangler (C. C. A. 9) 217 F. 394, 397; Bankers’ Utilities Co. v. Pacific Nat. Bank, supra, at page 18 of 18 F.(2d). But there are important qualifications to this rule. First, it is not an invariable one. Webster Loom Co. v. Higgins, supra, and Knapp v. Morss, 150 U. S. 221, 227, 14 S. Ct. 81, 37 L. Ed. 1059. Again, such a new combination of old elements is not irrebuttable proof of invention, but merely, as we have seen, “evidence” of it. Webster Loom Co. v. Higgins, supra; Knapp v. Morss, supra; National Tube Co. v. Aiken (C. C. A. 6) 163 F. 254, 261. In the third place, in the language ,of Mr. Justice Strong, in Hailes v. Van Wormer, supra, “the results must be a product of the combination, and not a mere aggregate of several results, each the complete product of one of the combined elements.” In other words, as was stated by the late Judge Gilbert of this court, in Pelton Water Wheel Co. v. Doble, 190 F. 760, 766: “In order to be patentable, a combination of elements must in their co-relation produce a different force, or effect, or result, from" }, { "docid": "2954928", "title": "", "text": "combination patent is clear. It is well stated in Robinson, §§ 155 and 156; Webster Loom Co. v. Higgins, 105 U. S. 580, 26 L. Ed. 1177; Leeds & Catlin Co. v. Victor Talking Mach. Co., 213 U. S. 301, 29 S. Ct. 495, 53 L. Ed. 805; Hamilton Beach Mfg. Co. v. P. A. Geier Co. (C. C. A.) 230 F. 430; Hale & Kilburn Mfg. Co. v. Oneonta, C. & R. S. R. Co. (C. C.) 124 F. 514; Steiner & Voegtly Hardware Co. v. Tabor Sash Co. (C. C.) 178 F. 831; Emerson Electric Mfg. Co. v. Van Nort Bros. Electric Co. (C. C.) 116 F. 974, 977. The patent in suit involves three elements, the pistol grip, the trigger switch, and the mounting plate. None of these elements was new. But the court finds that placing the trigger switch in the precise location beneath the pistol grip produced a switching handle which operated more conveniently and successfully and made it possible to manipulate the equipment readily with one hand. The particular arrangement of old elements produced a combination which operated in a different and more convenient manner. In Emerson Electric Mfg. Co. v. Van Nort Bros. Electric Co., supra, the court said: “The invention of the patent under consideration is the combination in one device of all the three elements so alleged to have been shown by prior patents in such a way and manner as to produce a new and useful result, or at least to produce the old result in a more facile, economical, and efficient. way. If the combination produces such result by the joint and co-operating aetion of the elements combined, even if they are old, it is invention within the meaning of the patent law, notwithstanding the fact that each of the elements separately considered or in other combinations were old and well known to the, art. Brinkerhoff v. Aloe, 146 U. S. 515, 13 S. Ct. 221, 36 L. Ed. 1068. From the foregoing considerations it is clear that an/ of the prior patents which disclose only single • elements" }, { "docid": "6251406", "title": "", "text": "things were wholly foreign to each other. If we could lay out of view the fact that plaintiff’s patent is for a product and Nicholson’s later patent is for a machine, it would still be true that anticipation depends upon the nature and extent of the earlier disclosure while infringement depends upon the character of the grant as fixed by the claim. The later patent is necessarily relatively specific as compared to an earlier invention; and a finding whether the earlier device, if later, would have infringed the later patent, is not helpful in determining whether the device of the later patent infringes the earlier one. The two questions have no necessary relation to each other. We have had occasion to point out that in this situation equivalency is not mutual. General Co. v. Electric Co., 243 Fed. 188, 193, 1007, 156 C. C. A. 54, 664; Curry v. Union C.o., 230 Fed. 422, 429, 144 C. C. A. 564. . Nor does the fact that Nicholson uses his hands, in transferring his brick from the first wire-cutting device to the second, control the question of infringement. It is true that in Brown v. Davis, 116 U. S. 237, 249, 6 Sup. Ct. 379, 29 L. Ed. 659, the use of the human hand is relied upon as demonstrating noninfringement; but in that case one of the elements of the claim sued upon was a peculiar lever, and defendant dispensed with the lever and used his hand. This was the common case of omission of one of the elements of the claim. There should be the usual injunction and accounting as to defendants’ brick produced in the manner which we have described, and to permit the entry of such decree below, the existing decree\" should be set aside. On Motion to Reopen. PER CURIAM. By opinion filed January 7, 1919, we sustained the patent in suit and directed the usual interlocutory decree. The defendants now present three German patents which are said to anticipate, and ask leave to apply to the court below to reopen the case and put these" }, { "docid": "13720359", "title": "", "text": "old art.” The holding in that case, then, is that the Smith apparatus is made up of old elements, with the possible exception of the curtain partitions to make the corridor. But the use of curtains or other material to’ partition off a corridor for the purpose of conveying a. current of air is not new in itself, nor will it approach invention unless its employment in combination with other old elements produce a new and useful result. Webster Loom Co. v. Higgins, 105 U. S. 580, 591, 26 L. Ed. 1177. The new and useful result produced by the Smith apparatus, and for which he is entitled to protection, is and is only the hatching, of eggs by the method or process contemplated in claims 1, 2, and 3 of the patent. As to the apparatus, its novelty of invention goes only so far as its combination of old elemente is applicable and useful to carry out the prescribed and intended method. The important thing in this patent, as was said in the ease of Expanded Metal Co. v. Bradford, 214 U. S. 366, 381, 29 S. Ct. 652, 53 L. Ed. 1034, in the opinion of the court in that ease, is a method of procedure, not the particular means by which the method shall be practiced. I therefore conclude and construe the decision in Buckeye Incubator Co. et al. v. Hill-pot, supra, to mean that the apparatus, made up of the corridor and other elements, maintains its inventive classification only so far as its adaptability and relevancy to the method employed or permitted under the process claims of the patent is concerned. Boling constructed incubators of different capacities, as has been the practice of the defendants. The larger capacities are made by a duplication of the units of the small sizes, that is to say) the 10,000-egg capacity is constructed by substantially inclosing two 5,000-egg capacity units into one, and the 30,000-egg capacity is substantially combining three units of 10,000-egg capacity. The capacity may also be increased by extending the vertical measurement, thus permitting more egg trays" }, { "docid": "22342041", "title": "", "text": "Loom Co. v. Higgins, 105 U. S. 580, 591, 26 L. Ed. 1177; Manufacturing Co. v. Adams, 151 U. S. 139, 143, 14 Sup. Ct. 295, 38 L. Ed. 103; Magowan v. Packing Co., 141 U. S. 332, 342, 12 Sup. Ct. 71, 35 L. Ed. 781; Graphophone Co. v. Leeds (C. C.) 87 Fed. 873; Topliff v. Topliff, 145 U. S. 156, 164, 12 Sup. Ct. 825, 36 L. Ed. 658. The peculiar combination of devices whicli distinguishes the brake beam of Hien from all those which went before it; its superior lightness, compactness, simplicity, and adjustability; the presumption of validity accompanying his patent; the fact that his combination had not suggested itself to any mechanic skilled in the art during 12 years of diligent search and effort for improvement; the facility and rapidity with which it took the place of old devieés and went into immediate' and extensive use as soon as it was disclosed, — all these facts converge upon the mind with compelling force to prove that the striking and effective improvement he made was the production, not of the skill of the mechanic, but of the intuitive genius of the inventor. Thomson v. Bank, 53 Fed. 256, 3 C. C. A. 518, 10 U. S. App. 500; Griswold v. Harker, 62 Fed. 389, 393, 10 C. C. A. 435, 439, 27 U. S. App. 122, 152; Loom Co. v. Higgins, 105 U. S. 580, 591, 26 L. Ed. 1177; Consolidated Safety-Valve Co. v. Crosby Steam-Gauge & Valve Co., 113 U. S. 157, 179, 5 Sup. Ct. 513, 28 L. Ed. 939; Magowan v. Packing Co., 141 U. S. 332, 341, 343, 12 Sup. Ct. 71, 35 L. Ed. 781; In re Barbed-Wire Patent, 143 U. S. 275, 281, 283, 12 Sup. Ct. 443, 450, 36 L. Ed. 154. The combination of mechanical devices found in the second claim of the first patent to Hien was novel and useful, and the patent which secured it is valid. Turning to the first, second, and seventh claims of the second patent to Hien, we are met by the" } ]

[ { "docid": "1742864", "title": "", "text": "a conduit for the finance companies who were the true “extenders” of consumer loans in the ordinary course of business within the meaning of TILA, and it is urged that all of the defendants are jointly liable for failure to disclose the finance charge and certain other information. The finance companies, on the other hand, contend that the only consumer credit transaction within the intended scope of the Act was a credit sale by the Club to the plaintiffs. The subsequent purchase at a discount of the promissory notes by the finance companies, it is urged, was a bona fide commercial or business transaction exempted from TILA disclosure requirements until the 1974 amendments. The fundamental question is whether Congress intended the finance companies to bear some responsibility for TILA disclosures under the circumstances disclosed. We think it did. An Overview of the Act. The fundamental purpose of the Truth in Lending Act, 15 U.S.C. § 1601 et seq., is to require creditors to disclose the “true” cost of consumer credit, so that consumers can make informed choices among available methods of payment. See 15 U.S.C. § 1601; Mourning v. Family Publications Service, Inc., 411 U.S. 356, 364-65, 93 S.Ct. 1652, 1658, 36 L.Ed.2d 318, 326 (1973); Warren & Larmore, Truth in Lending: Problems of Coverage, 24 Stan.L.Rev. 793 (1972); W. Willier & F. Hart, Consumer Credit Handbook (1969). The Act is remedial in nature. The Act was intended to change the practices of the consumer credit industry, and the statute reflects Congress’ view that this should be done by imposing disclosure requirements on those who “regularly” extend or offer to extend consumer credit. In interpreting the Act, the Federal Reserve Board and the majority of courts have focused on the substance, rather than the form, of credit transactions, and have looked to the practices of the trade, the course of dealing of the parties, and the intention of the parties in addition to specific contractual obligations. Thus, in Mourning v. Family Publications Service, Inc., supra, the Supreme Court said: The hearings held by Congress reflect the difficulty of the task" } ]

[ { "docid": "18916122", "title": "", "text": "Act expressed in part in 15 U.S.C. § 1601: (a) The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of the subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices. At the hearing on damages, this Court afforded the Plaintiffs an opportunity to present evidence of the actual damages each member claimed he or she had sustained because Chase had failed to furnish the Regulation Z Disclosure Form. The Plaintiffs submitted documentary evidence indicating the amount of loan points that Lakeridge had paid to Chase and the amount that the Plaintiffs had paid to Lakeridge and maintained that these loan points constituted their actual damages. This Court, however, finds that the Plaintiffs have not met the requisite showing that they could have obtained credit on more favorable terms but for the alleged violation of the Act. In accord with the actual damages provision of 15 U.S.C. § 1640(a), each member of the class must come forward to prove his or her actual damages. See Boggs v. Alto Trailer Sales, Inc., 511 F.2d 114, 118 (5th Cir.1975). In the instant case, the Plaintiffs have not complied with such requirements. In sum, they can not establish the “causal nexus” necessary for an award of actual damages. III The legislative history of the Act indicates that Congress was aware of the difficulty of establishing that causal link between the financing institution’s non-compliance with the Act and the Plaintiffs’ purported damages. Courts have not only commented on this obstacle, but have also construed it to be the very impetus behind the legislative decision to construct a workable scheme" }, { "docid": "23182968", "title": "", "text": "the Truth in Lending Act is to enhance economic stabilization and competition among financial institutions by requiring the meaningful disclosure of credit terms to consumers. See U.S.Code Cong, and Admin.News, 90th Congress, Second Session, p. 1962-63. The Act does not regulate the credit industry, nor does it impose ceilings on credit charges. The statute contains an express statement of this legislative purpose: The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers.' It is the purpose of this sub-chapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit. 15 U.S.C. § 1601. The Truth in Lending Act provides not only for enforcement by the Federal Trade Commission and other federal agencies, but it also establishes a civil cause of action by a consumer against a creditor who fails to make the required disclosures. 15 U.S.C. § 1640(a). This private cause of action may be brought in either federal or state court. 15 U.S.C. § 1640(e). However, the Truth in Lending Act does not apply to all credit transactions; the Act does not cover “[cjredit transactions involving extensions of credit for business or commercial purposes . . 15 U.S.C. § 1603(1). See also 12 C.F.R. § 226.3(a). Rather, the disclosure requirements of the Act only apply to consumer credit transactions — those “in which the party to whom credit is offered or extended is a natural person, and the money, property, or services which are the subject of the transaction are primarily for personal, family, household, or agricultural purposes.” 15 U.S.C. § 1602(h). See also 12 C.F.R. § 226.2(k). We must examine the transaction as a whole and the purpose for which the credit was extended in order to determine whether this transaction was primarily consumer" }, { "docid": "3966904", "title": "", "text": "been burdened with inkwells of legal jargon. Disclosure statements, now commonplace, were nonexistent. Even those familiar with the business of borrowing money were often hard pressed to decipher the terms of a particular credit transaction because of what was accurately labeled the “hidden costs of borrowing on time.” A wide range of deceitful lending practices was exposed and deplored in the seven years of hearings conducted by the Congressional committees considering the need for this legislation. The House Report accompanying the TILA cited “add on” rates, which were estimated to understate the true cost of credit by as much as fifty percent, and additional service fees and charges, which were added to the finance charge but not disclosed to the borrower, as causing “confusion in the public mind about the true costs of credit.” H.Rep. No. 1040, 90th Cong., 2d Sess. 2 (1968), reprinted in 1968 U.S.Code Cong. & Ad.News 1962, 1970. Senator Sullivan, the principal sponsor of the bill that became Truth-in-Lending, spoke of the need to protect the credit industry against “unfair and dishonest competition from an unscrupulous minority engaging in practices which too often discredit credit and dishonor its ethics.” Id. at 1999-2000. Congress reacted to these recognized inequities by passing the Truth-in-Lending Act. The Act’s purpose was stated in clear terms: The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this subehapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices. 15 U.S.C. § 1601(a) (1976). However, somewhere between the Act’s statutory provisions, the Federal Reserve Board’s implementing regulations and the federal judiciary’s varying interpretations, TILA’s aim of “meaningful disclosure”" }, { "docid": "22137395", "title": "", "text": "as consumers of credit, there may be situations in which a borrower consummates his loan and passes a year without knowing of his lender’s fraud or nondisclosures. We agree with the Sixth Circuit that equitable tolling might be appropriate in certain circumstances. To decide whether equitable tolling should apply to Section 1640(e), our basic inquiry is whether tolling the statute in certain situations will effectuate the congressional purpose of the Truth-in-Lending Act. See Burnett v. New York Central R.R. Co., 380 U.S. 424, 427, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941 (1965). The Supreme Court has repeatedly applied equitable tolling to statutes of limitations to prevent unjust results or to maintain the integrity of a statute. See Bailey v. Glover, 88 U.S. (21 Wall.) 342, 349-50, 22 L.Ed. 636 (1874) (Bankruptcy Act of 1867); Exploration Co. Ltd. v. United States, 247 U.S. 435, 449-50, 38 S.Ct. 571, 573-74, 62 L.Ed. 1200 (1918) (Act of March 3, 1891, 26 Stat. 1093, to vacate land patents); Holmberg v. Armbrecht, 327 U.S. 392, 396-97, 66 S.Ct. 582, 584-85, 90 L.Ed. 743 (1946) (Federal Farm Loan Act); Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 234-35, 79 S.Ct. 760, 762-63, 3 L.Ed.2d 770 (1959) (Federal Employers’ Liability Act). Cf. Zipes v. Trans World Airlines, 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982) (Title VII time requirement for filing charges with Equal Employment Opportunity Commission). Section 1601 of TILA sets forth the purpose of the Act: (a) The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit____ 15 U.S.C. § 1601(a). Thus, Congress through TILA sought to protect consumers’" }, { "docid": "3528798", "title": "", "text": "See Docket. Against that backdrop, the Court finds the damage claim relating to the refusal to honor the rescission request to have been timely filed. Summary of Findings as to Limitations Challenges as to TILA Claim It is only the claim for damages for the lender’s alleged failure to disclose which is time-barred. Accordingly, Count I is dismissed but only as to Decision. As to Countrywide, the motion is denied for two reasons: first, it is Plaintiffs’ intention to raise the TILA claim for recoupment purposes against an anticipated proof of claim. Complaint, ¶2. Second, the Plaintiffs are also alleging a right to rescind on account of those alleged non-disclosures as well as resulting damages. Because the right to rescind is based on the failure of the lender to make disclosure, the Court must determine the merits of that claim regardless of timeliness. If such claim is supported by the record, then the Court must determine if the rescission/damage claim has merit. Assuming it does, the Court must next determine if the record demonstrates that Countrywide knew (or should have known) of that violation when it purchased the loan. TILA’s Disclosure Requirement The Congressional purpose of TILA was to inform the consumer of the true cost of credit: The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices. 15 U.S.C. § 1601(a). Thomka v. A.Z. Chevrolet, Inc., 619 F.2d 246, 248 (3d Cir. 1980) (“The Truth in Lending Act was passed primarily to aid the unsophisticated consumer so that he would not be easily" }, { "docid": "21911403", "title": "", "text": "a separate final judgment under Rule 54(b). On November 17, 1981 defendant filed in the district court a Motion for Reconsideration and Motion to Alter, Amend and Vacate Judgment. On November 19, 1981, a Notice of Appeal was filed. On November 23, 1981, the district court dismissed Provident’s motions. II. Section 1601 of the Act sets forth the congressional purpose for enacting the Truth in Lending Act: The Congress finds that economic stability would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this sub-chapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit. 15 U.S.C. § 1601 (1976). The Act was passed to prevent the unsophisticated consumer from being misled as to the total cost of financing. See Mourning v. Family Publications Service, Inc., 411 U.S. 356, 363-69, 93 S.Ct. 1652, 1657-60, 36 L.Ed.2d 318 (1973). It mandates the disclosure of certain information in financing agreements and enforces that mandate by “a system of strict liability in favor of consumers who have secured financing when [the] standard^] [are] not met.” Thomka v. A. Z. Chevrolet, 619 F.2d 246, 248 (3d Cir. 1980); 15 U.S.C. § 1640(a). See also Ives v. W. T. Grant Co., 522 F.2d 791 (2d Cir. 1975). A plaintiff thus does not need to show that he was in fact deceived by substandard disclosures. See Dzadovsky v. Lyons Ford Sales, Inc., 593 F.2d 538, 539 (3d Cir. 1979) (per curiam). Moreover, since the Act provides for statutory damages in addition to actual damages, a plaintiff need not even show actual harm. The Act obligates “[e]ach creditor . . . [to] disclose clearly and conspicuously, in accordance with the regulations of the Board, to each person to whom consumer credit is extended and" }, { "docid": "23236502", "title": "", "text": "duty to disclose according to the standards imposed by the Truth in Lending Act. Adoption of this theory by the court would also allow Goldman’s action to proceed. Before beginning our analysis, we note that the violation defined in the Act is that of not disclosing the method the creditor will use when computing finance charges. The intent of Congress in enacting the legislation is set forth in 15 U.S.C. § 1601 which states: The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this sub-chapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit. The Act does not condemn in specific terms the situation where there has been a false or misleading disclosure. This type of behavior is, however, encompassed within the legislation, the intent of which is to “assure a meaningful disclosure of credit terms.” In practical terms, under an open end credit plan, there is no extension of credit simply by the issuance of the card. An agreement has been reached between a potential borrower and a lender who defines the conditions and terms under which its credit service may be used. Until the consumer negotiates a transaction using the credit card there has been no extension of credit — no debt has accrued and the creditor’s funds have not been transferred to the use of the borrower. This type of credit plan differs from the close end plans not only because no credit has been extended at the time of the agreement, but also because no set amount of debt has been incurred. Open end credit plans may impose ceilings or debt limits on their customers’ line of credit, but as payments are made, the lines" }, { "docid": "875879", "title": "", "text": "for the best terms available and, at times, were prompted to assume liabilities they could not meet. * * * * * * The Truth in Lending Act was designed to remedy the problems which had developed. The House Committee on Banking and Currency reported, in regard to the then proposed legislation: “[B]y requiring all creditors to disclose credit information in a uniform manner, and by requiring all additional mandatory charges imposed by the creditor as an incident to credit be included in the computation of the applicable percentage rate, the American consumer will be given the information he needs to compare the cost of credit and to make the best informed decision on the use of credit.” This purpose was stated explicitly in § 102 of the legislation enacted: “The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this subehapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.” (Footnotes omitted.) In interpreting various sections of the statute, the courts have recognized the Act’s remedial character and generally have construed the act liberally to effectuate its purposes. See. e. g., Littlefield v. Walt Flanagan and Company, 498 F.2d 1133,1136 (10th Cir. 1974); Eby v. Reb Realty, Inc., 495 F.2d 646, 650 (9th Cir. 1974); North Carolina Freed Company, Inc. v. Board of Governors of the Federal Reserve System, 473 F.2d 1210, 1214 (2d Cir.), cert. denied, 414 U.S. 827, 94 S.Ct. 48, 38 L.Ed.2d 61 (1973); Ratner v. Chemical Bank New York Trust Company, 329 F.Supp. 270, 280 (S.D. N.Y.1971). The “twice the finance charge” recovery provisions of § 130(a)(2)(A) of the Act were intended by Congress as a means of achieving the enforcement of the Act by" }, { "docid": "12001880", "title": "", "text": "whether the remedy that is part of the action under the Truth-in-Lending Act is a penal sanction. In Murphy v. Household Finance Corp., 560 F.2d 206 (6th Cir. 1977), the Sixth Circuit Court of Appeals focused on three factors in its analysis of whether a particular statutory provision was penal. It looked at: (a) whether the purpose of the action was to redress individual wrongs or wrongs to the public; (b) whether the recovery ran to the individual or public; (c) whether the recovery was disproportionate to the harm suffered. Id. at 209. A consideration of the first factor — the purpose of the action — involves a basic analysis of the purposes of the entire Truth-in-Lending Act. It is true that in some senses the purpose of the Act and of this action is to redress both individual wrongs and wrongs to the public, in the sense of redressing a broad social problem. However the first section of the Act states: § 1601. Congressional findings and declaration of purpose The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this sub-chapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit. In this statement of purpose, Congress indicated that the primary purpose of the Act is to enable the individual consumer to be able to credit shop and avoid the uninformed use of credit. As the Seventh Circuit Court of Appeals noted in Smith, what is mandated are not conditions of credit, but only disclosures, leaving it up to each consumer to select his own credit. Smith at 414. As to the first factor discussed in Murphy, we find that the primary purpose of this action is to redress individual" }, { "docid": "10190450", "title": "", "text": "her standing to prosecute this claim. . Both 15 U.S.C. § 1602(f) and Conn.Gen.Stat. § 36-393(e) define “creditor” in pertinent part as follows: “The term ‘creditor’ refers only to creditors who regularly extend, or arrange for the extension of, credit which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required, whether in connection with loans, sales of property or services, or otherwise.” . 15 U.S.C. § 1601. Congressional Findings and Declaration of Purpose. (a) The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices. .15 U.S.C. § 1605. Determination of Finance Charge — Definition. (a) Except as otherwise provided in this section, the amount of the finance charge in connection with any consumer credit transaction shall be determined as the sum of all charges, payable directly or indirectly by the person to whom the credit is extended, and imposed directly or indirectly by the creditor as an incident to the extension of credit, including any of the following types of charges which are applicable: (1) interest, time price differential, and any amount payable under a point, discount, or other system of additional charges. (2) service or carrying charge. (3) loan fee, finder’s fees, or similar charge. (4) fee for an investigation or credit report. (5) premium or other charges for any guarantee or insurance protecting the creditor against the obligor’s default or other credit loss." }, { "docid": "22445422", "title": "", "text": "their intention to rescind the mortgage transaction for failure to make the required disclosures but that the defendants had taken actions inconsistent with rescission. The prayer for relief was three-fold: (1) . . . for the damages permitted and described in title 15 U.S. C. § 1640, together with their costs and a reasonable attorney’s fee in the cause; (2) for a preliminary injunction to restrain the defendants from enforcing any remedy against the plaintiffs upon the second mortgage ; and (3) that the court declare the mortgage void and the preliminary injunction be made permanent. The complaint was filed on April 25, 1972, and the defendants filed a timely motion to dismiss for failure to bring the action within one year of the accrual of the claim stated. The district court granted the motion and entered a judgment dismissing the action on its merits. The opinion of Judge Neese appears at 344 F.Supp. 680 (E.D.Tenn.1972). The narrow question presented on appeal is whether a violation of the duty to disclose information to a borrower occurs at the time such disclosure is first required to be made, or whether it is a continuing violation until such time as the disclosure is actually made. In order to decide this question we must examine the overall purpose of the Act as well as the particular sections referred to in the complaint. The purpose of Congress in enacting the Truth in Lending Act is set forth in 15 U.S.C. § 1601 as follows: § 1601. Congressional findings and declaration of purpose The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit. Pursuant" }, { "docid": "22137396", "title": "", "text": "90 L.Ed. 743 (1946) (Federal Farm Loan Act); Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 234-35, 79 S.Ct. 760, 762-63, 3 L.Ed.2d 770 (1959) (Federal Employers’ Liability Act). Cf. Zipes v. Trans World Airlines, 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982) (Title VII time requirement for filing charges with Equal Employment Opportunity Commission). Section 1601 of TILA sets forth the purpose of the Act: (a) The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit____ 15 U.S.C. § 1601(a). Thus, Congress through TILA sought to protect consumers’ choice through full disclosure and to guard against the divergent and at times fraudulent practices stemming from uninformed use of credit. See Mourning v. Family Publications Service, Inc., 411 U.S. 356, 363-64 nn. 18, 19, 93 S.Ct. 1652, 1657-58 nn. 18, 19, 36 L.Ed.2d 318 (1973) (citing H.R.Rep. No. 1040, 90th Cong., 1st Sess., 13 (1967); S.Rep. No. 392, 90th Cong., 1st Sess. 1-2 (1967) U.S.Cong. & Admin.News 1968, p. 1962). The courts have construed TILA as a remedial statute, interpreting it liberally for the consumer. Riggs v. Government Employees Financial Corp., 623 F.2d 68, 70-71 (9th Cir. 1980). As the Sixth Circuit noted, “[ojnly if Congress clearly manifests its intent to limit the federal court’s jurisdiction will it be precluded from addressing allegations of fraudulent concealment which by their very nature, if true, serve to make compliance with the limitation period imposed by Congress an impossibility.” Jones v. TransOhio Savings Ass’n., 747 F.2d at 1041. For these reasons, we hold that the, limitations period in Section 1640(e) runs from the date of consummation of" }, { "docid": "727757", "title": "", "text": "ORDER CHAPMAN, District Judge. This suit was brought pursuant to the Truth in Lending Act, 15 U.S.C. §§ 1601 et seq., to recover the penalty established by § 1640. On August 19, 1976, plaintiff purchased a used car from defendant Auto Associates, Inc., and financed part of the purchase price. Iri connection with this loan, this defendant completed a loan form entitled “Installment Contract and Security Agreement” in which the terms of the loan and the security agreement were set forth. This contract was purchased from Auto Associates by defendant TranSouth Financial Corporation which has been dismissed by a previous order of this Court. Plaintiff seeks by this lawsuit to recover $743.84, which is double the amount of the finance charge, because of certain discrepancies between the disclosures on the form and the requirements imposed by the Truth in Lending Act and Regulation Z. This matter is presently before the Court on plaintiff’s motion for summary judgment. The purpose behind Congress’ enactment of the Truth in Lending Act is stated by 15 U.S.C. § 1601 as follows: The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this sub-chapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit. The Act and regulations require that lenders clearly disclose loan terms to consumer borrowers and these disclosure requirements must be construed and applied in light of the congressional purpose of promoting the “informed use of credit.” Any disclosure made by a particular lender which comes under judicial scrutiny cannot be analyzed in a vacuum by a strict application of the language of the statutes and regulations. The disclosure requirements should be liberally construed to effectuate the congressional purpose of the Truth in" }, { "docid": "19843779", "title": "", "text": "OPINION SKOPIL, District Judge. Plaintiff, Verla R. Woods, seeks relief for inadequate credit disclosures made in violation of the Federal Truth in Lending Act, 15 U.S.C. § 1601 et seq. (“The Act”) and Regulation Z, 12 C.F.R. 226, promulgated thereunder. Jurisdiction is conferred by 15 U.S.C. § 1640(e). On January 19, 1973, plaintiff entered into a consumer credit transaction with defendant, Beneficial Finance Co. of Eugene (“Beneficial”). She was comaker of a loan for $1,500. Interest on the loan over a three-year payment period totaled $556.32. The annual percentage rate by Beneficial’s calculations was 21.79%. Insurance and other charges totaled $178.15. They were paid from the principal. As a result of this loan transaction a suit is presently pending in state court to foreclose plaintiff’s security interest and for a deficiency judgment. This dispute is presented to me on an agreed set of facts. The parties have briefed the issues of law. The introductory provision of the Truth-in-Lending Act states its purpose clearly and concisely: “The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.” 15 U.S.C. § 1601. The Act “reflects a transition in Congressional policy from a philosophy of ‘Let the buyer beware’ to one of ‘Let the seller disclose’ ”. Mourning v. Family Publications Service, 411 U.S. 356, 377, 93 S.Ct. 1652, 1664, 36 L.Ed.2d 318 (1973). The Act is protective. It serves to slice through the tangle of hidden costs encountered by the borrower. The Act imposes the standard of “meaningful disclosure” upon lenders. The Regulations enacted to implement this standard are of necessity rather technical, but the remedial nature of the Act demands strict" }, { "docid": "3528799", "title": "", "text": "Countrywide knew (or should have known) of that violation when it purchased the loan. TILA’s Disclosure Requirement The Congressional purpose of TILA was to inform the consumer of the true cost of credit: The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices. 15 U.S.C. § 1601(a). Thomka v. A.Z. Chevrolet, Inc., 619 F.2d 246, 248 (3d Cir. 1980) (“The Truth in Lending Act was passed primarily to aid the unsophisticated consumer so that he would not be easily misled as to the total costs of financing.”) To accomplish its purpose, the TILA and its implementing Regulation Z require lenders to disclose to consumers certain material terms clearly and conspicuously in writing. See 15 U.S.C. § 1632(a), 1638(b)(1); 12 C.F.R. § 226.17(a)(1); see also Nichols v. Mid-Penn Consumer Discount Co., 1989 WL 46682 *4 (E.D.Pa.) (“[T]he TILA and Reg. Z ... guarantee ... meaningful disclosure of credit terms by requiring the creditor to give the borrower a Disclosure Statement specifying the credit terms in clear and straightforward language.”) Among the material terms that must be disclosed include the “finance charge.” 15 U.S.C. § 1638(a)(3). Disclosure of Brokers’ Fees as a Finance Charge Plaintiffs allege that the lender-paid broker’s commission should have been separately disclosed as a finance charge. See Complaint ¶7. Both the applicable statute and regulation define “finance charge” to include certain broker’s fees: (6) Borrower-paid mortgage broker fees, including fees paid directly to the broker or the lender (for delivery to the broker) whether such fees are paid in cash or financed." }, { "docid": "23182967", "title": "", "text": "rights against Engineers Testing Laboratories; again, no Rule 54(b) certification had been issued. The plaintiffs appealed from each order separately at the time each was entered. This court held that — since the two orders, when considered together, “terminated this litigation just as effectively as would have been the case had the district judge gone through the motions of entering a single order formally reciting the substance of the earlier two orders” — the first order was appealable under the practical approach to finality previously enunciated by the Supreme Court. Id. at 1231. See Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949). In this case the district court’s orders of September 29, 1978 and April 30, 1979 when considered together effectively terminated this litigation. Therefore, under the Jeteo rationale this court has jurisdiction to review the order dismissing Moss’s complaint. Truth in Lending Act The purpose of the Truth in Lending Act is to enhance economic stabilization and competition among financial institutions by requiring the meaningful disclosure of credit terms to consumers. See U.S.Code Cong, and Admin.News, 90th Congress, Second Session, p. 1962-63. The Act does not regulate the credit industry, nor does it impose ceilings on credit charges. The statute contains an express statement of this legislative purpose: The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers.' It is the purpose of this sub-chapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit. 15 U.S.C. § 1601. The Truth in Lending Act provides not only for enforcement by the Federal Trade Commission and other federal" }, { "docid": "23236501", "title": "", "text": "the relevant date for the limitations period should be the date on which the charge was first assessed. That is the date on which a debtor may be expected to first discover that a violation has occurred. If no disclosure was made, of course, the debtor would be cognizant of that fact on the day the credit disclosure forms were given to him, but, Goldman argues that when there has been inaccurate, partial or misleading disclosure, there is no way, prior to the billing of an inconsistent finance charge, for the violation to be ascertained and action taken. Goldman concludes that using the date of the imposition of the first finance charge as the triggering date in open end credit transactions where there has been a disclosure which appears on its face to comply with the Act would be consistent with the purposes of the Act. Goldman’s second category is that of “continuing violations.” Under this approach, he argues that the limitations period did not begin to run until the Bank had fulfilled its statutory duty to disclose according to the standards imposed by the Truth in Lending Act. Adoption of this theory by the court would also allow Goldman’s action to proceed. Before beginning our analysis, we note that the violation defined in the Act is that of not disclosing the method the creditor will use when computing finance charges. The intent of Congress in enacting the legislation is set forth in 15 U.S.C. § 1601 which states: The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this sub-chapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit. The Act does not condemn in specific terms the situation" }, { "docid": "22445423", "title": "", "text": "occurs at the time such disclosure is first required to be made, or whether it is a continuing violation until such time as the disclosure is actually made. In order to decide this question we must examine the overall purpose of the Act as well as the particular sections referred to in the complaint. The purpose of Congress in enacting the Truth in Lending Act is set forth in 15 U.S.C. § 1601 as follows: § 1601. Congressional findings and declaration of purpose The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit. Pursuant to § 1604 the Board of Governors of the Federal Reserve System issued its Regulation Z (12 CFR § 226 (1969)) which provides, in part, as follows : REGULATION Z PART 226 — TRUTH IN LENDING § 226.1 Authority, scope, purpose, etc. (a) Authority, scope, and purpose. (1) This part comprises the regulations issued by the Board of Governors of- the Federal Reserve System pursuant to title I (Truth in Lending Act) and title V (General Provisions) of the Consumer Credit Protection Act, as amended (15 U.S.C. Section 1601 et seq.). Except as otherwise provided herein, this part applies to all persons who in the ordinary course of business regularly extend, or offer to extend, or arrange, or offer to arrange, for the extension of consumer credit as defined in paragraph (k) of § 226.2 and to all persons who issue credit cards. (2) This part implements the Act, the purpose of which is to assure that every customer who has need for consumer credit is given meaningful information with respect to the cost of" }, { "docid": "22108590", "title": "", "text": "the extent applicable.” And it lists, inter alia, both the periodic rates “and the corresponding nominal annual percentage rate * * Clearly, “applicable” means “relevant” under the plan or statement in question. And that — when the plaintiff faced a finance charge if he chose to accept defendant’s invitation to pay only the $10 minimum, and take the credit — was exactly the case for both the periodic rate defendant did show and the annual rate it omitted. The characterization of § 127(b) as “historical” is demonstrably wrong in at least one other respect. Looking strictly to the future, the tenth item required to be shown (as defendant showed it) is the “date by which, or the period (if any) within which, payment must be made to avoid additional finance charges.” But there are grounds more profound than these semantical ones for rejecting defendant’s view. The thrust of the Act and its fundamental weapon of compelled disclosure is “prospective.” Its purpose is to put the borrower in possession of the pertinent information before the plunge, so. that he may know and intelligently compare his options. This appears at the outset in the findings and declaration of purpose, § 102, 15 U.S.C. § 1601 (Supp. V): “The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.” Throughout the legislative process of achieving truth in lending, this was the general theme, and it is at war with defendant’s position. Relevant legislative history shows that Congress expected the monthly statement to make people like the plaintiff aware of their credit options. They were to have, prospectively, not only the monthly rate (which" }, { "docid": "22814446", "title": "", "text": "life insurance is not included as part of the finance charge, Interpretation § 226.-402 requires that the term of the insurance be disclosed to the customer; (4) that the term of the insurance was disclosed in full on the reverse side of the Instalment Sale Contract; (5) that the appropriate standard for evaluating the adequacy of disclosure of the credit life insurance term was the specific disclosure provisions of Regulation Z, § 226.8(a), 12 C.F.R. § 226.8(a), which require disclosure on the document’s face; and that, therefore, disclosure on the reverse side constituted noncompliance; and (6) that GMAC was a “creditor” within the meaning of the Act and jointly liable with Timmers for any violation of the Act. Philbeck was awarded $1,000 in statutory damages and $2,520 in attorney’s fees by the court below. . Truth in Lending Act § 102, 15 U.S.C. § 1601, states: § 1601. Congressional findings and declaration of purpose The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is tbe purpose of this sub-chapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit. . Truth in Lending Act § 105, 15 U.S.C. § 1604, provides: § 1604. Rules and regulations The Board shall prescribe regulations to carry out the purposes of this subchapter. These regulations may contain such classifications, differentiations, or other provisions, and may provide for such adjustments and exceptions for any class of transactions, as in the judgment of the Board are necessary or proper to effectuate the purposes of this subchapter, to prevent circumvention or evasion thereof, or to facilitate compliance therewith. . See generally Allen M. Campbell Co. Gen. Con., Inc. v. Lloyd Wood Const. Co., supra, 446 F.2d at 265: [I]t is an" } ]

[ { "docid": "6819989", "title": "", "text": "in the district court of the United States for the judicial district in which the provider is located or in the District Court for the District of Columbia and shall be tried pursuant to the applicable provisions under chapter 7 of Title 5 notwithstanding any other provisions in section 405 of this title. . See text supra at notes 54-55. . See note 60 supra. . That appellant could not obtain satisfaction of claims for more extensive reimbursement through the administrative process is highly questionable. Although the Provider Reimbursement Review Board'cannot invalidate a regulation as contrary to law, it is fully empowered to grant exceptions to the regulations at issue here. See 20 C.F.R. § 405.460(e), (f) (1977); Association of Am. Medical Colleges v. Weinberger, supra note 2, at 10, J.App. 265. The record does not indicate that appellant’s member hospitals have ever applied for an exception. Id. . Aristocrat South, Inc. v. Mathews, 420 F.Supp. 23, 25 (D.D.C.1976). Indeed, other circuits have held that Salfi forecloses jurisdiction under § 1331(a) in reimbursement actions emanating from the Medicare Act notwithstanding a constitutional attack. South Windsor Convalescent Home, Inc. v. Mathews, 541 F.2d 910, 913 (2d Cir. 1976) (constitutional challenge to a regulation); Hazelwood Chronic & Convalescent Hosp., Inc. v. Weinberger, 543 F.2d 703, 705 (9th Cir. 1976), vacated for reconsideration in light of Califano v. Sanders, supra note 28, 430 U.S. 952, 97 S.Ct. 1595, 51 L.Ed.2d 801 (1977) (constitutional assault on regulations); see Gallo v. Mathews, 538 F.2d 1148, 1150 (5th Cir. 1976). Compare Dr. John T. MacDonald Foundation, Inc. v. Mathews, 554 F.2d 714 (5th Cir. 1977), in which the court recognized § 1331(a) jurisdiction over a provider-reimbursement dispute arising prior to the time that § 1395oo (f) was broadened to allow review of final decisions of the Board, see note 68 infra. The court observed: During the period before it provided adequate statutory review within the Medicare Act, and during that period only, Congress did not intend § [2]05(h) to preclude federal-question jurisdiction over such matters as this. We [recognize jurisdiction] realizing that our construction is strained" } ]

[ { "docid": "3162069", "title": "", "text": "claims for benefits), rev’d on other grounds, 456 U.S. 188, 102 S.Ct. 1665, 72 L.Ed.2d 1 (1982). See also St. Louis University v. Blue Cross Hospital Service, 537 F.2d 283, 291-93 (8th Cir.), cert. denied, 429 U.S. 977, 97 S.Ct. 484, 50 L.Ed.2d 584 (1976) (jurisdiction under § 1331 to consider provider’s due process claim that hearing on reimbursement was inadequate). But cf. Trinity Memorial Hospital v. Associated Hospital Service, Inc., 570 F.2d 660, 665 (7th Cir.1977) (although district court had no jurisdiction over provider’s due process claims under § 1331, Court of Claims has jurisdiction over due process claim). If the statute were, construed to deprive all courts of jurisdiction over plaintiffs’ substantial constitutional claims, that preclusion itself would present a due process constitutional problem. See Weinberger v. Salfi, 422 U.S. 749, 762, 95 S.Ct. 2457, 2465, 45 L.Ed.2d 522 (1975); Johnson v. Robison, 415 U.S. 361, 367, 94 S.Ct. 1160, 1165-66, 39 L.Ed.2d 389 (1974). Federal jurisdiction over the constitutional claims would also seem to be required since the only persons to whom plaintiffs could present their due process claims would be hearing officers, who do not even have to be lawyers and who are employed by the private insurance company whose practices are being challenged. See Schweiker v. McClure, 456 U.S. 188, 102 S.Ct. 1665, 1672 & n. 14, 72 L.Ed.2d 1 (1982). Alternatively, jurisdiction is probably available under the mandamus statute. 28 U.S.C. § 1361. Cf. Heckler v. Ringer, — U.S. —, —, 104 S.Ct. 2013, 2022, 80 L.Ed.2d 622 (1984) (“We have on numerous occasions declined to decide whether the third sentence of [42 U.S.C.] § 405(h) bars mandamus jurisdiction over claims arising under the Social Security Act.”). The Second Circuit has held mandamus jurisdiction available in social security cases, despite section 205(h), for procedural challenges that are unrelated to the merits of a claim. See Dietsch v. Schweiker, 700 F.2d 865, 868 (2d Cir.1983); Ellis v. Blum, 643 F.2d 68 (2d Cir.1981). See also Soberal-Perez v. Schweiker, 549 F.Supp. 1164 (E.D.N.Y.1982) (for claim seeking to require Secretary to provide Social Security notices in Spanish," }, { "docid": "3652517", "title": "", "text": "Califano v. Yamasaki, 442 U.S. 682, 689, 99 S.Ct. 2545, 2551, 61 L.Ed.2d 176 (1979), it held that class actions and nationwide injunctive relief were permissible under § 405(g). In Schweiker v. McClure, 456 U.S. 188, 102 S.Ct. 1665, 72 L.Ed.2d 1 (1982), the Court assumed, without discussion, that it possessed jurisdiction over a constitutional challenge to benefit determination procedures. Finally, in United States v. Erika, 456 U.S. 201, 102 S.Ct. 1650, 72 L.Ed.2d 12 (1982), it held that § 1395ff of the Act barred appeals of Part B benefit determinations, and did not consider § 405(h). Plaintiffs argue that these precedents do not foreclose their contention that § 1331 jurisdiction exists to redress the Secretary’s violation of APA, and we agree. There is persuasive authority for that proposition and we conclude to follow it. See, e.g., National Association of Home Health Agencies v. Schweiker, 690 F.2d 932 (D.C.Cir. 1982); Daniel Freeman Memorial Hosp. v. Schweiker, 656 F.2d 473 (9 Cir.1981); Humana of South Carolina, Inc. v. Califano, 590 F.2d 1070, 1080 (D.C.Cir.1978); St. Louis Univ. v. Blue Cross Hosp. Serv., 537 F.2d 283, 291-294 (8 Cir.); cert. den. sub nom. Faith Hosp. Ass’n v. Blue Cross Hosp. Serv., Inc., 429 U.S. 977, 97 S.Ct. 484, 50 L.Ed.2d 584 (1976). But see Hadley Memorial Hosp., Inc. v. Schweiker, 689 F.2d 905, 910-12 (10 Cir.1982). These cases limit the bar of § 405(h) to claims brought to recover benefits and permit the exercise of § 1331 jurisdiction to adjudicate any other right for which no alternative form of judicial relief is available. The Home Health Agencies case is one of the most persuasive in this line of authorities. It is also one of the latest and it collects all of the pertinent authorities extant at the time it was decided. There, numerous home health agencies and a trade association attacked the validity of regulations requiring home health agencies to seek medicare reimbursement determinations and payment from government-designated regional intermediaries. Because there was no statutory right of judicial review, they sought to invoke federal question jurisdiction to adjudicate their claims that the" }, { "docid": "14564268", "title": "", "text": "court erred in the disposition of Appellees’ substantive claim and, to that extent, we must reverse. It is so ordered. . 5 U.S.C. § 553 (1976). . 42 U.S.C. §§ 1395-1395tt (1976 & Supp. IV 1980). . Id. §§ 1395j-1395w (1976 & Supp. IV 1980). . Id. §§ 1395c-1395i (1976 & Supp. IV 1980). . Id. § 1395x(m) (1976 & Supp. IV 1980). . Id. §§ 1395f(a) & (b), 1395x(m), (o) & (u) (1976 & Supp. IV 1980). . Id. § 1395h(a) (Supp. IV 1980). . Id. . Id. § 1395g (1976 & Supp. IV 1980). . Id. § 1395kk(a) (1976). . Medicare-Medicaid Anti-Fraud and Abuse Amendments, Pub.L.No.95-142, 91 Stat. 1175, 1198-99 (1977) (codified at 42 U.S.C. §§ 1395h(e)(1), (2), (3) & 1395h(f) (Supp. IV 1980)). . H.R.Rep.No. 1167, 96th Cong., 2d Sess. 368, reprinted in 1980 U.S.Code Cong. & Ad.News 5526, 5731-32. . HHAs may either be affiliated with another provider (such as a hospital or rehabilitation center), in which case they are referred to as “provider-based”, or they may be “freestanding”, in which case they operate without such an affiliation. . Omnibus Budget Reconciliation Act of 1980, Pub.L.No.96 — 499, § 930(o), 94 Stat. 2599, 2632 (1980) (codified at 42 U.S.C. § 1395h(e)(4) (Supp. IV 1980)). . The instruction was included in a letter sent directly to all intermediaries, with directions to furnish copies to the HHAs they served. . The other approximately 2,000 HHAs were to deal with their current intermediaries, since those intermediaries had been designated as regional intermediaries. . The district court dismissed Appellees’ Due Process claim because it was an attack on the Secretary’s future determination of “reasonable costs” and not on the administrative instruction being challenged and because it was based on the “speculative” possibility that Appellees would not be totally compensated for the costs attributable to the transition. National Association of Home Health Agencies v. Schweiker, No. 81-3160, slip op. at 8 (D.D.C. 10 March 1982). The parties have not appealed that ruling. . 42 U.S.C. § 1395ii (1976). . This court has decided two cases involving section 405(h). Humana of South" }, { "docid": "14564271", "title": "", "text": "of the scope of section 405(h). See text at notes 47 — 49 infra. . Appellants’ Brief at 13 (emphasis added). . 42 U.S.C. § 405(h) (1976). . Id. § 1395ii (1976). . 590 F.2d 1070 (D.C.Cir.1978). . Id. at 1080 (footnote omitted). . Id. (footnote omitted). . Daniel Freeman Memorial Hospital v. Schweiker, 656 F.2d 473, 476 (9th Cir. 1981). . See text at notes 39-40, infra. . If jurisdiction did exist under section 1395 oo, requiring Appellees to utilize that section would not merely change the basis under which the district court exercised its jurisdiction. It would require Appellees to refrain from attacking the disputed regulation until they filed a cost report with their intermediaries on or before 31 March 1983. Appellees would then be required to file a claim with the Provider Reimbursement Review Board, which would decide the issue. Following a final decision by the Review Board, or a reversal, affirmance, or modification thereof by the Secretary, Appellees could finally press their claim in federal court. Thus, the Secretary’s argument is of more than academic interest. . 42 U.S.C. § 139500(a)(1)(A) (1976). Section 1395oo review is also available when the intermediary fails to make a final decision in a timely manner, id. § 1395oo(a)(1)(B) & (C), a situation clearly not involved here. . Id. § 1395oo(a) (1976). . Id. § 139500(f)(1) (Supp. IV 1980). . Humana, 590 F.2d at 1081 (footnote omitted). . 569 F.2d 101 (D.C.Cir.1977). . Humana, 590 F.2d at 1079 (emphasis added). . Id. (emphasis added). . AAMC, 569 F.2d at 104. . Id. at 107 (emphasis added). . Schweiker, slip op. at 10. . 1980 Omnibus Budget Reconciliation Act, Pub.L.No. 96-499, § 955, 94 Stat. 2599, 2647 (1980). . See H.R.Rep.No. 1167, 96th Cong., 2d Sess. 394, reprinted in 1980 U.S.Code Cong. & Ad. News 5526, 5757. . On appeal the Secretary addressed this issue only in a footnote, Appellants’ Brief at 24 n.22, despite the district court’s observation that its resolution was “far from clear.” Schweiker, slip op. at 5. . 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975)." }, { "docid": "14564274", "title": "", "text": "Cir. 1980); Hospital San Jorge, Inc. v. U. S. Secretary of HEW, 598 F.2d 684, 686 (1st Cir. 1979); Trinity Memorial Hospital of Cudahy, Inc. v. Associated Hospital Service, Inc., 570 F.2d 660, 666 (7th Cir. 1977); St. Louis University v. Blue Cross Hospital Service, 537 F.2d 283, 287-89 (8th Cir. 1976). The Seventh Circuit noted that a federal court might have jurisdiction to review a decision by the Secretary if it were “in direct conflict with an express mandate of the Medicare Act.” Trinity Memorial, 570 F.2d at 666 n.9. . Drennan v. Harris, 606 F.2d 846, 850 (9th Cir. 1979); Dr. John T. MacDonald Foundation, Inc. v. Califano, 571 F.2d 328, 332 (5th Cir.), cert. denied, 439 U.S. 893, 99 S.Ct. 250, 58 L.Ed.2d 238 (1978). . Chelsea Community Hospital, SNF v. Michigan Blue Cross Association, 630 F.2d 1131, 1134-36 (6th Cir. 1980); United States v. Aquavella, 615 F.2d 12, 20-21 (2d Cir. 1979); Whitecliff, Inc. v. United States, 536 F.2d 347, 351 (Ct.Cl.1976), cert. denied, 430 U.S. 969 (1977). . Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 1857, 44 L.Ed.2d 377 (1975). . Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1510-11, 18 L.Ed.2d 681 (1967). See also Rusk v. Court, 369 U.S. 367, 379-80, 82 S.Ct. 787, 794, 7 L.Ed.2d 809 (1962). . 42 U.S.C. § 1395Ü (1976). . Aquavella, 615 F.2d at 19. . Chelsea Community Hospital, 630 F.2d at 1135. . St. Louis University, 537 F.2d at 289. . We do not mean to imply that a federal court may disregard section 405(h) anytime the concerns expressed above are not present. To do so would be to disregard the Supreme Court’s statement that “the third sentence of § 405(h) is more than a codified requirement of administrative exhaustion.” Weinberger v. Salfi, 422 U.S. 749, 757, 95 S.Ct. 2457, 2463, 45 L.Ed.2d 522 (1975). We note that the articulated concerns are not implicated by allowing courts to decide cases such as the present one only to show that our reading of the statute is reasonable. When section 405(h) does" }, { "docid": "14564273", "title": "", "text": ". 42 U.S.C. § 405(g) (Supp. IV 1980). This provision, unlike section 405(h), was not incorporated into the Medicare Act. See 42 U.S.C. § 1395ii (1976). . Salfi, 422 U.S. at 762, 95 S.Ct. at 2465. . See cases cited in note 19, supra. . Bussey v. Harris, 611 F.2d 1001, 1005 (5th Cir. 1980); Hospital San Jorge, Inc. v. U. S. Secretary of HEW, 598 F.2d 684, 686 (1st Cir. 1979); Dr. John T. MacDonald Foundation, Inc. v. Califano, 571 F.2d 328, 331-32 (5th Cir.), cert. denied, 439 U.S. 893, 99 S.Ct. 250, 58 L.Ed.2d 238 (1978); Trinity Memorial Hospital of Cudahy, Inc. v. Associated Hospital Service, Inc., 570 F.2d 660, 667 (7th Cir. 1977); South Windsor Convalescent Home, Inc. v. Mathews, 541 F.2d 910, 913-14 (2d Cir. 1976); St. Louis University v. Blue Cross Hospital Service, 537 F.2d 283, 291-93 (8th Cir.), cert. denied sub nom. Faith Hospital Association v. Blue Cross Hospital Service, Inc., 429 U.S. 977, 97 S.Ct. 484, 50 L.Ed.2d 584 (1976). . Kechijian v. Califano, 621 F.2d 1 (1st Cir. 1980); Hospital San Jorge, Inc. v. U. S. Secretary of HEW, 598 F.2d 684, 686 (1st Cir. 1979); Trinity Memorial Hospital of Cudahy, Inc. v. Associated Hospital Service, Inc., 570 F.2d 660, 666 (7th Cir. 1977); St. Louis University v. Blue Cross Hospital Service, 537 F.2d 283, 287-89 (8th Cir. 1976). The Seventh Circuit noted that a federal court might have jurisdiction to review a decision by the Secretary if it were “in direct conflict with an express mandate of the Medicare Act.” Trinity Memorial, 570 F.2d at 666 n.9. . Drennan v. Harris, 606 F.2d 846, 850 (9th Cir. 1979); Dr. John T. MacDonald Foundation, Inc. v. Califano, 571 F.2d 328, 332 (5th Cir.), cert. denied, 439 U.S. 893, 99 S.Ct. 250, 58 L.Ed.2d 238 (1978). . Chelsea Community Hospital, SNF v. Michigan Blue Cross Association, 630 F.2d 1131, 1134-36 (6th Cir. 1980); United States v. Aquavella, 615 F.2d 12, 20-21 (2d Cir. 1979); Whitecliff, Inc. v. United States, 536 F.2d 347, 351 (Ct.Cl.1976), cert. denied, 430 U.S. 969 (1977). . Dunlop v." }, { "docid": "15762759", "title": "", "text": "availability of adequate statutory review under the Act); St. Louis University v. Blue Cross Hospital Service, Inc., 537 F.2d 283 (8th Cir.), cert. denied sub nom. Faith Hospital Ass’n. v. Blue Cross Hospital Service, Inc., 429 U.S. 977, 97 S.Ct. 484, 50 L.Ed.2d 584 (1976) (§ 405(h) does not preclude district court jurisdiction of due process challenges to the procedures adopted by the Secretary to determine Medicare reimbursements). The Second Circuit concluded that Salfi effectively cut off federal question jurisdiction under Section 1331(a) in these cases, but found that the Court of Claims had exclusive jurisdiction to review reimbursement disputes. South Windsor Convalescent Home, Inc. v. Mathews, 541 F.2d 910 (2d Cir. 1976). Accord, Whitecliff, Inc. v. United States, 536 F.2d 347 (Ct.Cl.1976), cert. denied, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977). . Since the issue is not relevant to our disposition of this case, we express no opinion on the propriety of Northlake’s effort to amend the complaint after dismissal of the action. . 42 U.S.C. § 1395ff(c) (1979) provides: Any institution or agency dissatisfied with any determination by the Secretary that it is not a provider of services, or with any determination described in section 1395cc(b)(2) of this title, shall be entitled to a hearing thereon by the Secretary (after reasonable notice and opportunity for hearing) to the same extent as is provided in section 405(b) of this title, and to judicial review of the Secretary’s final decision after such hearing as is provided in section 405(g) of this title. . See note 4 supra. . In supporting its claim for a pre-termination hearing, Northlake relied heavily on this court’s decision in Hathaway v. Mathews, 546 F.2d 227 (7th Cir. 1976). In that case, we held that the Secretary could not terminate Medicaid payments to a nursing home until the home had been given notice of the charges and a hearing in which the validity of the charges could be challenged. The result was carefully tailored to a “balancing of factors peculiar to [that] litigation,” Id. at 232, and must be limited to those facts" }, { "docid": "5337699", "title": "", "text": "this jurisdictional bar might arise where a provider reimbursement dispute presented a colorable constitutional claim and the Act provided no available administrative process leading to judicial review. See Cervoni v. Secretary of HEW, 581 F.2d 1010, 1016-17 (1st Cir. 1978). In such a situation one circuit court, rather than read § 405(h) to foreclose judicial review of a constitutional claim, has held § 405(h) to constitute no jurisdictional bar. St. Louis University v. Blue Cross Hospital Service, 537 F.2d 283, 291-92 (8th Cir.), cert. denied, 429 U.S. 977, 97 S.Ct. 484, 50 L.Ed.2d 584 (1976). Other circuits, however, have held § 405(h) to bar federal question jurisdiction notwithstanding the presence of a constitutional ques tion. Dr. John T. MacDonald Foundation v. Califano, 571 F.2d 328, 331 (5th Cir.) (en banc), cert. denied, - U.S. -, 99 S.Ct. 250, 58 L.Ed.2d 238 (1978); Trinity Memorial Hospital of Cudahy, Inc. v. Associated Hospital Service, Inc., 570 F.2d 660, 667 (7th Cir. 1977); see South Windsor Convalescent Home, Inc. v. Mathews, 541 F.2d 910 (2d Cir. 1976). This circuit has not yet addressed this question, Rhode Island Hospital v. Califano, 585 F.2d at 1157-58 n.3, and we find no need to do so here. The district court concluded that the Hospital was foreclosed from pursuing its constitutional claim, on the basis of its having joined in a stipulation “to limit the issues in controversy” which says nothing whatever about such a claim and appears to preserve only the Hospital’s substantive x-ray income claim. In the context of the history of the case and other representations by the Hospital, we sympathize with the district court’s view that this stipulation considerably undercuts any attempt at a constitutional argument. We also think the court would have been justified in ruling, in any event, that even had a constitutional claim been maintainable, there was no colorable basis for such a claim on this record. Assuming, without deciding, the Hospital has a protected property right to reimbursement for medical services to Medicare patients, compare Cervoni v. Secretary of HEW, 581 F.2d at 1017-19, we do not see any" }, { "docid": "14564269", "title": "", "text": "case they operate without such an affiliation. . Omnibus Budget Reconciliation Act of 1980, Pub.L.No.96 — 499, § 930(o), 94 Stat. 2599, 2632 (1980) (codified at 42 U.S.C. § 1395h(e)(4) (Supp. IV 1980)). . The instruction was included in a letter sent directly to all intermediaries, with directions to furnish copies to the HHAs they served. . The other approximately 2,000 HHAs were to deal with their current intermediaries, since those intermediaries had been designated as regional intermediaries. . The district court dismissed Appellees’ Due Process claim because it was an attack on the Secretary’s future determination of “reasonable costs” and not on the administrative instruction being challenged and because it was based on the “speculative” possibility that Appellees would not be totally compensated for the costs attributable to the transition. National Association of Home Health Agencies v. Schweiker, No. 81-3160, slip op. at 8 (D.D.C. 10 March 1982). The parties have not appealed that ruling. . 42 U.S.C. § 1395ii (1976). . This court has decided two cases involving section 405(h). Humana of South Carolina, Inc. v. Califano, 590 F.2d 1070 (D.C.Cir.1978); Association of American Medical Colleges v. Califano, 569 F.2d 101 (D.C.Cir.1977). The section has also spawned numerous litigation in other circuits. United States v. Sanet, 666 F.2d 1370 (11th Cir. 1982); Hopewell Nursing Home v. Schweiker, 666 F.2d 34 (4th Cir. 1981); Daniel Freeman Memorial Hospital v. Schweiker, 656 F.2d 473 (9th Cir. 1981); Chelsea Community Hospital, SNF v. Michigan Blue Cross, 630 F.2d 1131 (6th Cir. 1980); Kechijian v. Califano, 621 F.2d 1 (1st Cir. 1980); Bussey v. Harris, 611 F.2d 1001 (5th Cir. 1980); Trinity Memorial Hospital of Cudahy, Inc. v. Associated Hospital Service, Inc., 570 F.2d 660 (7th Cir. 1977); South Windsor Convalescent Home, Inc. v. Mathews, 541 F.2d 910 (2d Cir. 1976); St. Louis University v. Blue Cross Hospital Service, 537 F.2d 283 (8th Cir.), cert. denied sub nom. Faith Hospital Association v. Blue Cross Hospital Service, Inc., 429 U.S. 977, 97 S.Ct. 484, 50 L.Ed.2d 584 (1976). As noted later, the courts of appeals have been less than consistent in their interpretation" }, { "docid": "15420784", "title": "", "text": "407. The first issue we must consider, however, is whether the district court had jurisdiction to hear this case. I. In 42 U.S.C. § 405(h), the Social Security Act provides that 42 U.S.C. § 405(g) establishes the exclusive jurisdictional basis for a suit seeking “to recover on any claim arising under” the Act. The district court, however, based its jurisdiction on the mandamus statute, 28 U.S.C. § 1361. The Supreme Court has yet to determine whether mandamus jurisdiction is appropriate to review SSA procedures. See Califano v. Yamasaki, 442 U.S. 682, 698, 99 S.Ct. 2545, 2556, 61 L.Ed.2d 176 (1979); Norton v. Mathews, 427 U.S. 524, 529-30, 96 S.Ct. 2771, 2774-75, 49 L.Ed.2d 672 (1976); Hadley Memorial Hospital, Inc. v. Schweiker, 689 F.2d 905, 912 (10th Cir.1982). Recently, however, the Supreme Court granted certiorari in a case which presents that issue. Heckler v. Ringer, - U.S. -, 103 S.Ct. 3535, 77 L.Ed.2d 1386 (1983). In Ringer, the Ninth Circuit ruled that when the plaintiff is simply asking a court to require SSA to provide procedural safeguards, without addressing any substantive right to benefits, mandamus jurisdiction is proper: the language [in 42 U.S.C. § 405(h) ] prohibiting reliance on the federal question or mandamus provisions for any action “to recover on a claim arising under” the Act only applied to actual claims for benefits. We noted that “when suit is brought simply to vindicate an interest in procedural regularity, there is no statutory bar.” Ringer v. Schweiker, 697 F.2d 1291, 1293-94 (9th Cir.1982) (quoting Daniel H. Freeman Memorial Hospital v. Schweiker, 656 F.2d 473, 476 (9th Cir.1981)). Accord Powderly v. Schweiker, 704 F.2d 1092, 1095 (9th Cir. 1983); Humana of South Carolina, Inc. v. Califano, 590 F.2d 1070, 1080 (D.C.Cir.1978); White v. Mathews, 559 F.2d 852, 856 (2d Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 500 (1978). We are persuaded by the distinction the Ringer court and other courts have drawn between suits seeking to establish a right to benefits and suits requesting that SSA provide a procedure through which the right to benefits can be contested." }, { "docid": "22726647", "title": "", "text": "obviously appreciated that the task of administering the Medicare Program would be burdensome enough with the processing of concrete claims for services already rendered, without also providing for a scheme by which an individual could obtain a declaratory ruling on whether certain services would be covered should the individual elect to obtain them in the future.” Brief for Petitioner 37, n. 26 (emphasis in original). There is a wealth of authority in the lower courts for the proposition that when the Social Security Act provides no avenue for review, there is no claim arising under that Act within the meaning of § 205(h) and hence no bar to jurisdiction under 28 U. S. C. § 1331. See National Assn. of Home Health Agencies v. Schweiker, 223 U. S. App. D. C. 209, 217-218, 690 F. 2d 932, 940-942 (1982), cert. denied, 459 U. S. 1205 (1983); Chelsea Community Hospital, SNF v. Michigan Blue Cross Assn., 630 F. 2d 1131, 1133-1136 (CA6 1980); Humana of South Carolina, Inc. v. Califano, 191 U. S. App. D. C. 368, 374-375, 590 F. 2d 1070, 1076-1077 (1978); Overlook Nursing Home, Inc. v. United States, 214 Ct. Cl. 60, 64-65, 556 F. 2d 500, 502 (1977); Hazelwood Chronic & Convalescent Hospital, Inc. v. Weinberger, 543 F. 2d 703, 706-707 (CA9 1976); Whitecliff, Inc. v. United States, 210 Ct. Cl. 53, 56-59, 536 F. 2d 347, 350-351 (1976), cert. denied, 430 U. S. 969 (1977); Rothman v. Hospital Service of Southern California, 510 F. 2d 956, 958-959 (CA9 1975); Kingsbrook Jewish Medical Center v. Richardson, 486 F. 2d 663, 666-668 (CA2 1973); Mid Atlantic Nephrology Center, Ltd. v. Califano, 433 F. Supp. 23, 31-32 (Md. 1977); Hillside Community Hospital of Ukiah v. Mathews, 423 F. Supp. 1168, 1172-1173 (ND Cal. 1976); Americana Nursing Centers, Inc. v. Weinberger, 387 F. Supp. 1116, 1118 (SD Ill. 1975); Mount Sinai Hospital of Greater Miami, Inc. v. Weinberger, 376 F. Supp. 1099, 1005-1108 (SD Fla. 1974), rev’d on other grounds, 517 F. 2d 329 (CA5 1975), modified, 522 F. 2d 179, cert. denied, 425 U. S. 935 (1976); Gainville v." }, { "docid": "15762758", "title": "", "text": "for the judicial district in which the plaintiff resides, or has his principal place of business..... . As the Supreme Court noted in Salfi, the language of Section 405(h) actually bars actions under 28 U.S.C. § 41 (1970). At the time Section 405(h) was enacted, however, Section 41 contained all of the grants of jurisdiction to the United States district courts under Title 28 including the predecessor to Section 1331(a). Salfi, 422 U.S. at 756, n.3, 95 S.Ct. at 2462. . At least three circuits ruled that the Supreme Court’s reasoning in Salfi did not necessarily preclude § 1331 jurisdiction in these cases. See e. g., Humana of South Carolina, Inc. v. Caiifano, 590 F.2d 1070 (D.C.Cir.1978) (§ 405(h) is not summoned into play when suit is brought to vindicate an interest in procedural regularity); Dr. John T. MacDonald Foundation, Inc. v. Mathews, 554 F.2d 714 (5th Cir. 1977), vacated, 571 F.2d 328, cert. denied, 439 U.S. 893, 99 S.Ct. 250, 58 L.Ed.2d 238 (1978) (§ 1331 jurisdiction exists for claims arising prior to the availability of adequate statutory review under the Act); St. Louis University v. Blue Cross Hospital Service, Inc., 537 F.2d 283 (8th Cir.), cert. denied sub nom. Faith Hospital Ass’n. v. Blue Cross Hospital Service, Inc., 429 U.S. 977, 97 S.Ct. 484, 50 L.Ed.2d 584 (1976) (§ 405(h) does not preclude district court jurisdiction of due process challenges to the procedures adopted by the Secretary to determine Medicare reimbursements). The Second Circuit concluded that Salfi effectively cut off federal question jurisdiction under Section 1331(a) in these cases, but found that the Court of Claims had exclusive jurisdiction to review reimbursement disputes. South Windsor Convalescent Home, Inc. v. Mathews, 541 F.2d 910 (2d Cir. 1976). Accord, Whitecliff, Inc. v. United States, 536 F.2d 347 (Ct.Cl.1976), cert. denied, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977). . Since the issue is not relevant to our disposition of this case, we express no opinion on the propriety of Northlake’s effort to amend the complaint after dismissal of the action. . 42 U.S.C. § 1395ff(c) (1979) provides: Any" }, { "docid": "3162068", "title": "", "text": "when constitutional procedural claims were in issue, were cases in which jurisdiction would ultimately lie under section 205(g) after a final disposition. The issue was whether the exhaustion requirement of section 205(g) had been satisfied or waived. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Here there is no possible claim under 205(g), 42 U.S.C. § 405(g). Doubt as to whether this type of claim should be construed as barred by section 205(h), 42 U.S.C. § 405(h), should be resolved in favor of finding jurisdiction since the availability of judicial review for constitutional questions is generally “presumed.” Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977). See also Trinity Memorial Hospital v. Associated Hospital Service, Inc., 570 F.2d 660, 665 (7th Cir.1977). Courts have found jurisdiction over claims challenging Medicare Part B procedures on constitutional grounds. See Leduc v. Harris, 488 F.Supp. 588, 590 (D.Mass.1980); McClure v. Harris, 503 F.Supp. 409, 412 (N.D.Cal.1980) (jurisdiction over constitutional claims because they are collateral to claims for benefits), rev’d on other grounds, 456 U.S. 188, 102 S.Ct. 1665, 72 L.Ed.2d 1 (1982). See also St. Louis University v. Blue Cross Hospital Service, 537 F.2d 283, 291-93 (8th Cir.), cert. denied, 429 U.S. 977, 97 S.Ct. 484, 50 L.Ed.2d 584 (1976) (jurisdiction under § 1331 to consider provider’s due process claim that hearing on reimbursement was inadequate). But cf. Trinity Memorial Hospital v. Associated Hospital Service, Inc., 570 F.2d 660, 665 (7th Cir.1977) (although district court had no jurisdiction over provider’s due process claims under § 1331, Court of Claims has jurisdiction over due process claim). If the statute were, construed to deprive all courts of jurisdiction over plaintiffs’ substantial constitutional claims, that preclusion itself would present a due process constitutional problem. See Weinberger v. Salfi, 422 U.S. 749, 762, 95 S.Ct. 2457, 2465, 45 L.Ed.2d 522 (1975); Johnson v. Robison, 415 U.S. 361, 367, 94 S.Ct. 1160, 1165-66, 39 L.Ed.2d 389 (1974). Federal jurisdiction over the constitutional claims would also seem to be required since the only persons to whom" }, { "docid": "14564270", "title": "", "text": "Carolina, Inc. v. Califano, 590 F.2d 1070 (D.C.Cir.1978); Association of American Medical Colleges v. Califano, 569 F.2d 101 (D.C.Cir.1977). The section has also spawned numerous litigation in other circuits. United States v. Sanet, 666 F.2d 1370 (11th Cir. 1982); Hopewell Nursing Home v. Schweiker, 666 F.2d 34 (4th Cir. 1981); Daniel Freeman Memorial Hospital v. Schweiker, 656 F.2d 473 (9th Cir. 1981); Chelsea Community Hospital, SNF v. Michigan Blue Cross, 630 F.2d 1131 (6th Cir. 1980); Kechijian v. Califano, 621 F.2d 1 (1st Cir. 1980); Bussey v. Harris, 611 F.2d 1001 (5th Cir. 1980); Trinity Memorial Hospital of Cudahy, Inc. v. Associated Hospital Service, Inc., 570 F.2d 660 (7th Cir. 1977); South Windsor Convalescent Home, Inc. v. Mathews, 541 F.2d 910 (2d Cir. 1976); St. Louis University v. Blue Cross Hospital Service, 537 F.2d 283 (8th Cir.), cert. denied sub nom. Faith Hospital Association v. Blue Cross Hospital Service, Inc., 429 U.S. 977, 97 S.Ct. 484, 50 L.Ed.2d 584 (1976). As noted later, the courts of appeals have been less than consistent in their interpretation of the scope of section 405(h). See text at notes 47 — 49 infra. . Appellants’ Brief at 13 (emphasis added). . 42 U.S.C. § 405(h) (1976). . Id. § 1395ii (1976). . 590 F.2d 1070 (D.C.Cir.1978). . Id. at 1080 (footnote omitted). . Id. (footnote omitted). . Daniel Freeman Memorial Hospital v. Schweiker, 656 F.2d 473, 476 (9th Cir. 1981). . See text at notes 39-40, infra. . If jurisdiction did exist under section 1395 oo, requiring Appellees to utilize that section would not merely change the basis under which the district court exercised its jurisdiction. It would require Appellees to refrain from attacking the disputed regulation until they filed a cost report with their intermediaries on or before 31 March 1983. Appellees would then be required to file a claim with the Provider Reimbursement Review Board, which would decide the issue. Following a final decision by the Review Board, or a reversal, affirmance, or modification thereof by the Secretary, Appellees could finally press their claim in federal court. Thus, the Secretary’s argument is" }, { "docid": "23030061", "title": "", "text": "disabused us of that notion, however, in Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), holding that § 10 does not provide an independent source of subject matter jurisdiction to review agency actions. The Court based its holding on the recent expansion of § 1331(a) jurisdiction that obliterated any necessity for § 10 review jurisdiction and therefore evidenced Congress’ intent that § 10 was not an independent source of jurisdiction. Sanders necessitated the second panel attempt, reported at 554 F.2d 714 (1977). The court again held that review jurisdiction existed, not under the A.P.A., but pursuant to 28 U.S.C. § 1331, the basic grant of federal question jurisdiction. Although the court held that § 1331 provided jurisdiction, the court limited the availability of such review to the “time window” from 1968 until the Congress expressly provided review machinery in 1973. Again the Supreme Court has provided us with assistance, however. In Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), the Court held that § 405(h) precludes district court review of Social Security Act awards. The Court held not only that § 1331 review of the merits of the award was unavailable, but also that constitutional claims were precluded. Hence, this en banc determination. The evolution of this issue in our court is reflected in the varied treatments of the same issue in the other forums. The Eighth Circuit has held that although § 405(h) precludes review of agency findings of fact and law, § 405(h) does not preclude jurisdiction to entertain constitutional claims. St. Louis University v. Blue Cross Hospital Service, 537 F.2d 283 (8th Cir. 1976), cert. denied, 429 U.S. 977, 97 S.Ct. 484, 50 L.Ed.2d 584 (1977). The Second and Seventh Circuits have determined that § 405(h) precludes district court review of all claims arising under the Medicare Act, including constitutional claims. They did “hold,” however, that review jurisdiction exists in the Court of Claims. South Windsor Convalescent Home, Inc. v. Mathews, 541 F.2d 910 (2d Cir. 1976); Trinity Memorial Hospital of Cudahy, Inc. v. Associated Hospital Service," }, { "docid": "1039870", "title": "", "text": "§ 1395oo (1982). . Fiscal intermediaries, like the Blue Cross Association, are assigned to review providers’ claims and to make the payments on behalf of the Secretary. Id. § 1395h (1982). The provider hospitals file claims for payment annually with the fiscal intermediaries. 42 C.F.R. § 405.454(f) (1983). The fiscal intermediary then determines which costs are allowable under the Act and how much reimbursement the provider is entitled to for the year. Id. If a provider wishes to contest the intermediary’s determination, a hearing before the PRRB may be requested. 42 U.S.C. § 1395oo (1982). The PRRB’s decision constitutes final agency action unless the Secretary, acting through the Administrator or Deputy Administrator of the Health Care Financing Administration (HCFA), modifies or reverses the PRRB’s determination. Id. This final decision is then subject to judicial review pursuant to 42 U.S.C. § 1395oo(f)(l) (1982). . Humana, Inc. v. Schweiker, C.A. No. 81-0853 and Humana v. Schweiker, C.A. No. 81-1311 raise identical issues for the fiscal years ending in 1976 and 1977. These claims were disallowed by the Administrator and are included in this appeal. . Appellee alleges that this court lacks subject matter jurisdiction for Humana’s pre-1973 claims. Appellee's Brief at 7a. Since appellants limit their appeal to reimbursement for fiscal years ending 1973 through 1977, we do not find it necessary to address the jurisdictional issue. See Appellant’s Brief at 4. . 42 U.S.C. § 1395oo(f)(l) (1982). . 5 U.S.C. §§ 701-706 (1982). . Id. § 706(2)(A). . Richey Manor, Inc. v. Schweiker, 684 F.2d 130, 134 (D.C.Cir.1982). See Springdale Convalescent Center v. Mathews, 545 F.2d 943 (5th Cir.1977). . Villa View Community Hospital, Inc. v. Heckler, 728 F.2d 539 (D.C.Cir.1984) (per curiam). . Appellants’ Brief at 30. . Id. . Appellee’s Brief at 40. . 42 U.S.C. § 1395x(v)(l)(B) (1982). . Appellants’ Brief at 12. . Id. . Id. . 677 F.2d 118 (D.C.Cir.1981) (per curiam). Although this opinion dealt largely with the issue of collateral estoppel, it explicitly affirmed the portion of the district court’s opinion dealing with stock maintenance costs. “For reasons amply delineated by the District Court," }, { "docid": "5337698", "title": "", "text": "and Defendant held a conference in which all the adjustments made by Defendant and made a part of the complaint were transacted, except the adjustment relative to X-Rays.” This was verified by the parties’ September 25, 1975 stipulation, in which they agreed, “[tjhat they have settled all the adjustments on the Complaint except for the X-Rays claim . . . [and] [tjhat the said X-Rays controversy is a matter of law that can be submitted to the Court by Memoranda by both parties without the need of a hearing.” The district court subsequently dismissed the case for lack of subject matter jurisdiction. The Hospital argues that federal question jurisdiction is present under 28 U.S.C. § 1331(a). As our opinion in Rhode Island Hospital v. Califano, 585 F.2d 1153 (1st Cir. 1978), makes clear, however, federal question jurisdiction over Medicare provider reimbursement disputes is barred by § 205(h) of the Social Security Act, 42 U.S.C. § 405(h), which is expressly made applicable to the Medicare Act by 42 U.S.C. § 1395Ü. The only possible exception to this jurisdictional bar might arise where a provider reimbursement dispute presented a colorable constitutional claim and the Act provided no available administrative process leading to judicial review. See Cervoni v. Secretary of HEW, 581 F.2d 1010, 1016-17 (1st Cir. 1978). In such a situation one circuit court, rather than read § 405(h) to foreclose judicial review of a constitutional claim, has held § 405(h) to constitute no jurisdictional bar. St. Louis University v. Blue Cross Hospital Service, 537 F.2d 283, 291-92 (8th Cir.), cert. denied, 429 U.S. 977, 97 S.Ct. 484, 50 L.Ed.2d 584 (1976). Other circuits, however, have held § 405(h) to bar federal question jurisdiction notwithstanding the presence of a constitutional ques tion. Dr. John T. MacDonald Foundation v. Califano, 571 F.2d 328, 331 (5th Cir.) (en banc), cert. denied, - U.S. -, 99 S.Ct. 250, 58 L.Ed.2d 238 (1978); Trinity Memorial Hospital of Cudahy, Inc. v. Associated Hospital Service, Inc., 570 F.2d 660, 667 (7th Cir. 1977); see South Windsor Convalescent Home, Inc. v. Mathews, 541 F.2d 910 (2d Cir. 1976). This" }, { "docid": "1039869", "title": "", "text": "and payment of any additional sums accordingly due. So ordered. . 42 U.S.C. §§ 1395-1395xx (1982). . Id. . Id. §§ 1395c to i-2 (1982). . Id. § 1395x(v)(l)(A). . Id. . Id. . 419 F.Supp. 253 (D.D.C.1976), aff'd in part, rev’d in part, 590 F.2d 1070 (D.C.Cir.1978). This case was filed directly in the district court. The suit challenged the Secretary's method of calculating the rate of return on equity capital to be paid to proprietary hospitals. The district court remanded the case to the Secretary to conduct a study of the factors affecting the economics of proprietary hospitals. 419 F.Supp. at 262. On appeal, this court held that the district court did not have jurisdiction to hear challenges to the rate of return for the post-1973 fiscal years. See Humana of South Carolina v. Califano, 590 F.2d 1070 (D.C.Cir.1978). Humana was first required to submit its claims to the primary jurisdiction of the PRRB. On remand, the case was consolidated with two others then pending in the district court. . See 42 U.S.C. § 1395oo (1982). . Fiscal intermediaries, like the Blue Cross Association, are assigned to review providers’ claims and to make the payments on behalf of the Secretary. Id. § 1395h (1982). The provider hospitals file claims for payment annually with the fiscal intermediaries. 42 C.F.R. § 405.454(f) (1983). The fiscal intermediary then determines which costs are allowable under the Act and how much reimbursement the provider is entitled to for the year. Id. If a provider wishes to contest the intermediary’s determination, a hearing before the PRRB may be requested. 42 U.S.C. § 1395oo (1982). The PRRB’s decision constitutes final agency action unless the Secretary, acting through the Administrator or Deputy Administrator of the Health Care Financing Administration (HCFA), modifies or reverses the PRRB’s determination. Id. This final decision is then subject to judicial review pursuant to 42 U.S.C. § 1395oo(f)(l) (1982). . Humana, Inc. v. Schweiker, C.A. No. 81-0853 and Humana v. Schweiker, C.A. No. 81-1311 raise identical issues for the fiscal years ending in 1976 and 1977. These claims were disallowed by the" }, { "docid": "23030062", "title": "", "text": "precludes district court review of Social Security Act awards. The Court held not only that § 1331 review of the merits of the award was unavailable, but also that constitutional claims were precluded. Hence, this en banc determination. The evolution of this issue in our court is reflected in the varied treatments of the same issue in the other forums. The Eighth Circuit has held that although § 405(h) precludes review of agency findings of fact and law, § 405(h) does not preclude jurisdiction to entertain constitutional claims. St. Louis University v. Blue Cross Hospital Service, 537 F.2d 283 (8th Cir. 1976), cert. denied, 429 U.S. 977, 97 S.Ct. 484, 50 L.Ed.2d 584 (1977). The Second and Seventh Circuits have determined that § 405(h) precludes district court review of all claims arising under the Medicare Act, including constitutional claims. They did “hold,” however, that review jurisdiction exists in the Court of Claims. South Windsor Convalescent Home, Inc. v. Mathews, 541 F.2d 910 (2d Cir. 1976); Trinity Memorial Hospital of Cudahy, Inc. v. Associated Hospital Service, Inc., 570 F.2d 660 (7th Cir., decided Dec. 16, 1977). To complete the spectrum, the Court of Claims has held that jurisdiction exists in the Court of Claims pursuant to 28 U.S.C. § 1491 to review the Secretary’s decision, at least as to law and constitutional claims, despite § 405(h). Whitecliff, Inc. v. United States, 536 F.2d 347 (Ct.C1.1976), cert. denied, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977). These decisions were necessitated by and based upon the Supreme Court decision in Weinberger v. Salfi, supra. In Salfi, although the Court did not analyze § 405(h) in the Medicare context, the Court did hold that § 405(h) precludes district court review of claims arising under the Social Security Act, from which § 405(h) was lifted. Plaintiffs brought a class action, styled under § 1331, claiming the statute denying benefits to widows married less than nine months to the deceased wage earner to be unconstitutional. Although the claim in Salfi was styled under the Constitution, the Court held that because the Social Security Act" }, { "docid": "14564272", "title": "", "text": "of more than academic interest. . 42 U.S.C. § 139500(a)(1)(A) (1976). Section 1395oo review is also available when the intermediary fails to make a final decision in a timely manner, id. § 1395oo(a)(1)(B) & (C), a situation clearly not involved here. . Id. § 1395oo(a) (1976). . Id. § 139500(f)(1) (Supp. IV 1980). . Humana, 590 F.2d at 1081 (footnote omitted). . 569 F.2d 101 (D.C.Cir.1977). . Humana, 590 F.2d at 1079 (emphasis added). . Id. (emphasis added). . AAMC, 569 F.2d at 104. . Id. at 107 (emphasis added). . Schweiker, slip op. at 10. . 1980 Omnibus Budget Reconciliation Act, Pub.L.No. 96-499, § 955, 94 Stat. 2599, 2647 (1980). . See H.R.Rep.No. 1167, 96th Cong., 2d Sess. 394, reprinted in 1980 U.S.Code Cong. & Ad. News 5526, 5757. . On appeal the Secretary addressed this issue only in a footnote, Appellants’ Brief at 24 n.22, despite the district court’s observation that its resolution was “far from clear.” Schweiker, slip op. at 5. . 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). . 42 U.S.C. § 405(g) (Supp. IV 1980). This provision, unlike section 405(h), was not incorporated into the Medicare Act. See 42 U.S.C. § 1395ii (1976). . Salfi, 422 U.S. at 762, 95 S.Ct. at 2465. . See cases cited in note 19, supra. . Bussey v. Harris, 611 F.2d 1001, 1005 (5th Cir. 1980); Hospital San Jorge, Inc. v. U. S. Secretary of HEW, 598 F.2d 684, 686 (1st Cir. 1979); Dr. John T. MacDonald Foundation, Inc. v. Califano, 571 F.2d 328, 331-32 (5th Cir.), cert. denied, 439 U.S. 893, 99 S.Ct. 250, 58 L.Ed.2d 238 (1978); Trinity Memorial Hospital of Cudahy, Inc. v. Associated Hospital Service, Inc., 570 F.2d 660, 667 (7th Cir. 1977); South Windsor Convalescent Home, Inc. v. Mathews, 541 F.2d 910, 913-14 (2d Cir. 1976); St. Louis University v. Blue Cross Hospital Service, 537 F.2d 283, 291-93 (8th Cir.), cert. denied sub nom. Faith Hospital Association v. Blue Cross Hospital Service, Inc., 429 U.S. 977, 97 S.Ct. 484, 50 L.Ed.2d 584 (1976). . Kechijian v. Califano, 621 F.2d 1 (1st" } ]